17542 Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Rules and Regulations

2. Part 97 is amended to read as

follows:

§§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33

and 97.35 [Amended]

By amending: § 97.23 VOR, VOR/

DME, VOR or TACAN, and VOR/DME

or TACAN; § 97.25 LOC, LOC/DME,

LDA, LDA/DME, SDF, SDF/DME;

§ 97.27 NDB, NDB/DME; § 97.29 ILS,

ILS/DME, ISMLS, MLS, MLS/DME,

MLS/RNAV; § 97.31 RADAR SIAPs;

§ 97.33 RNAV SIAPs; and § 97.35

COPTER SIAPs, identified as follows:

* * * Effective upon Publication

FDC date State City Airport FDC No. SIAP

01/03/97 ... FL Gainesville .............. Gainesville Regional ................................ 7/0043 VOR OR GPS–A, AMDT 10...

01/13/97 ... SC Greer ...................... Greenville-Spartanburg ............................ 7/0261 ILS RWY 21, AMDT 2A...

01/13/97 ... SC Greer ...................... Greenville-Spartanburg ............................ 7/0262 ILS RWY 3, AMDT 20A...

01/13/97 ... SC Greer ...................... Greenville-Spartanburg ............................ 7/0263 NDB OR GPS RWY 3, AMDT 14...

03/05/97 ... MN Minneapolis ............ Minneapolis-St Paul Intl (Wold-Chamberlain).7/1190 ILS RWY 22, AMDT 4A...

THIS CORRECTS TL 97–08.

03/10/97 ... KS Parsons .................. Tri-City ..................................................... 7/1242 NDB OR GPS RWY 35, AMDT 5...

THIS CORRECTS NOTAM IN TL 97–08.

03/19/97 ... MA Nantucket ............... Nantucket Memorial ................................. 7/1465 ILS RWY 24, AMDT 15...

03/19/97 ... MO Mosby ..................... Mosby/Clay County Regional .................. 7/1463 GPS RWY 18, ORIG...

03/20/97 ... AR Dumas .................... Billy Free Muni ......................................... 7/1495 VOR/DME OR GPS RWY 36, AMDT

2A...

03/20/97 ... AR Dumas .................... Billy Free Muni ......................................... 7/1496 NDB RWY 36, ORIG...

03/20/97 ... AR McGehee ................ McGehee Muni ........................................ 7/1494 VOR/DME OR GPS–A, AMDT 2...

03/20/97 ... MO Kansas City ............ Kansas City Downtown ............................ 7/1457 ILS RWY 19, AMDT 20B...

03/20/97 ... NH Lebanon .................. Lebanon Muni .......................................... 7/1489 ILS RWY 18, AMDT 3A...

03/20/97 ... NJ Robbinsville ............ Trenton-Robbinsville ................................ 7/1501 VOR OR GPS RWY 29, AMDT 10...

03/21/97 ... LA Covington ............... Greater St. Tammany .............................. 7/1512 GPS RWY 17, ORIG...

03/21/97 ... LA Welsh ...................... Welsh ....................................................... 7/1515 VOR/DME OR GPS RWY 6, AMDT 3...

03/25/97 ... MA Westfield ................. Barnes Muni ............................................ 7/1557 NDB RWY 20, AMDT 13...

03/25/97 ... MA Westfield ................. Barnes Muni ............................................ 7/1558 VOR OR GPS RWY 20, AMDT 18...

03/25/97 ... MA Westfield ................. Barnes Muni ............................................ 7/1559 VOR OR TACAN OR GPS RWY 2,

AMDT 2...

03/25/97 ... MA Westfield ................. Barnes Muni ............................................ 7/1560 ILS RWY 20, AMDT 3...

03/27/97 ... AL Greensboro ............. Greensboro Muni ..................................... 7/1643 NDB OR GPS RWY 36, ORIG...

03/27/97 ... AR Monticello ............... Monticello Muni/Ellis Field ....................... 7/1647 VOR–A, AMDT 5...

03/27/97 ... AR Monticello ............... Monticello Muni/Ellis ................................ 7/1648 GPS RWY 3 ORIG...

03/27/97 ... KY Campbellsville ........ Taylor County .......................................... 7/1636 GPS RWY 5, ORIG...

03/27/97 ... KY Campbellsville ........ Taylor County .......................................... 7/1638 SDF RWY 23, AMDT 2...

03/27/97 ... KY Campbellsville ........ Taylor County .......................................... 7/1640 NDB OR GPS RWY 23, AMDT 3...

03/27/97 ... KY Campbellsville ........ Taylor County .......................................... 7/1642 VOR/DME OR GPS–A, AMDT 5...

03/27/97 ... OK Clinton .................... Clinton-Sherman ...................................... 7/1665 VOR OR GPS RWY 35L, AMDT 11...

03/27/97 ... TX Carthage ................. Panola Co-Sharpe Field .......................... 7/1672 NDB OR GPS RWY 35, AMDT 1...

03/27/97 ... TX Marfa ...................... Marfa Muni ............................................... 7/1655 VOR RWY 30, AMDT 4...

03/27/97 ... TX Marshall .................. Harrison County ....................................... 7/1669 RNAV RWY 33, AMDT 1A...

03/27/97 ... TX Marshall .................. Harrison County ....................................... 7/1670 GPS RWY 33, ORIG–A...

03/27/97 ... TX Marshall .................. Harrison County ....................................... 7/1671 VOR/DME–A, AMDT 4B...

03/28/97 ... MI Sturgis .................... Kirsch Muni .............................................. 7/1683 NDB RWY 18, AMDT 5...

03/28/97 ... MI Sturgis .................... Kirsch Muni .............................................. 7/1684 NDB RWY 24, AMDT 10...

03/28/97 ... MN South St Paul ......... South St Paul Muni-Richard E. Fleming

Field.

7/1696 NDB OR GPS–B, AMDT 3B...

03/31/97 ... OH Norwalk ................... Norwalk-Huron County ............................ 7/1729 VOR OR GPS–A, AMDT 5...

04/01/97 ... TX Fort Worth .............. Fort Worth Alliance .................................. 7/1765 GPS RWY 34R, ORIG–A...

04/01/97 ... TX Fort Worth .............. Fort Worth Alliance .................................. 7/1766 GPS RWY 16L, ORIG–A...

04/01/97 ... TX Fort Worth .............. Fort Worth Alliance .................................. 7/1768 ILS RWY 34R, AMDT 2A...

[FR Doc. 97–9246 Filed 4–9–97; 8:45 am]

BILLING CODE 4910–13–M

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.

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.
Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Rules and Regulations 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.
17544 Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Rules and Regulations

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.

§ 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

§ 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.

§ 1603.102 Filing a complaint.

(a) Who may make a complaint.

Individuals referred to in § 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.

§ 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.

§ 1603.104 Service of the complaint.

Upon receipt of a complaint, the

Commission shall promptly serve the

respondent with a copy of the

complaint.

§ 1603.105 Withdrawal of a complaint.

The complainant may withdraw a

complaint at any time by so advising the

Commission in writing.

§ 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.
Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Rules and Regulations 17545

§ 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.

§ 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.

§ 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

§ 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.

§ 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).

§ 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.

§ 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
17546 Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Rules and Regulations

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.

§ 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.

§ 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.

§ 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

§ 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.

§ 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 § 1603.209.

§ 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

(81⁄2 × 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.

§ 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 § 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

§ 1603.108 shall not be called as

witnesses or be subject to discovery in

any adjudication under this part.

§ 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).
Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Rules and Regulations 17547

§ 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.

§ 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.

§ 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.

§ 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.

§ 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

§ 1603.107 or any other grounds

authorized by this part. A summary

decision shall otherwise conform to the

requirements of § 1603.217.

§ 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

§ 1603.301 Appeal to the Commission.

Any party may appeal to the

Commission the dismissal of a

complaint under § 1603.107, any matter

certified for interlocutory review under

§ 1613.213, or the administrative law

judge’s decision under § 1603.216 or

§ 1603.217.

§ 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.

§ 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 § 1603.209.

§ 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
17548 Federal Register / Vol. 62, No. 69 / Thursday, April 10, 1997 / Rules and Regulations

prepare a recommended decision for

consideration by the Commission.

(b) When an administrative law judge

certifies a matter for interlocutory

review under § 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 § 1603.302, the decision of the

administrative law judge under

§ 1603.217 or a dismissal under

§ 1603.107 shall become the final order

of the Commission. A final order under

this paragraph shall not have

precedential significance.

§ 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.

§ 1603.306 Judicial review.

Any party to a complaint who is

aggrieved by a final decision under

§ 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

DEPARTMENT OF THE TREASURY

Office of Foreign Assets Control

31 CFR Part 500

Foreign Assets Control Regulations:

Overflight Payments to North Korea

AGENCY: Office of Foreign Assets

Control, Treasury.

ACTION: Final rule; amendment.

SUMMARY: This rule amends the Foreign

Assets Control Regulations to authorize

by general license payments with

respect to the provision of services by

North Korea in connection with the

overflight of North Korea or emergency

landings in North Korea by aircraft

owned or controlled by a person subject

to the jurisdiction of the United States

or registered in the United States.

EFFECTIVE DATE: April 7, 1997.

FOR FURTHER INFORMATION CONTACT:

Steven I. Pinter, Chief of Licensing, tel.:

202/622–2480, or William B. Hoffman,

Chief Counsel, tel.: 202/622–2410,

Office of Foreign Assets Control,

Department of the Treasury,

Washington, DC 20220.

SUPPLEMENTARY INFORMATION:

Electronic Availability

This document is available as an

electronic file on The Federal Bulletin

Board the day of publication in the

Federal Register. By modem, dial 202/

512–1387 and type ‘‘/GO FAC,’’ or call

202/512–1530 for disk or paper copies.

This file is available for downloading

without charge in WordPerfect 5.1,

ASCII, and Adobe AcrobatTM readable

(*.PDF) formats. For Internet access, the

address for use with the World Wide

Web (Home Page), Telnet, or FTP

protocol is: fedbbs.access.gpo.gov. The

document is also accessible for

downloading in ASCII format without

charge from Treasury’s Electronic

Library (‘‘TEL’’) in the ‘‘Business, Trade

and Labor Mall’’ of the FedWorld

bulletin board. By modem, dial 703/

321–3339, and select the appropriate

self–expanding file in TEL. For Internet

access, use one of the following

protocols: Telnet = fedworld.gov

(192.239.93.3); World Wide Web (Home

Page) = http://www.fedworld.gov; FTP

= ftp.fedworld.gov (192.239.92.205).

Additional information concerning the

programs of the Office of Foreign Assets

Control is available for downloading

from the Office’s Internet Home Page:

http://www.ustreas.gov/treasury/

services/fac/fac.html, or in fax form

through the Office’s 24–hour fax–on–

demand service: call 202/622–0077

using a fax machine, fax modem, or

(within the United States) a touch–tone

telephone.

Background

As part of the October 21, 1994

United States–Democratic People’s

Republic of Korea Agreed Framework,

the United States undertook to ease

economic sanctions against North

Korea. As a measure consistent with this

foreign policy, the Treasury Department

is amending the Foreign Assets Control

Regulations, 31 CFR part 500 (the

‘‘Regulations’’), by adding § 500.585 to

authorize, by general license, the

payment of fees with respect to the

provision of services by North Korea in

connection with the overflight of North

Korea or emergency landings in North

Korea by aircraft owned or controlled by

a person subject to the jurisdiction of

the United States or registered in the

United States.

Because the Regulations involve a

foreign affairs function, Executive Order

12866 and the provisions of the

Administrative Procedure Act, 5 U.S.C.

553, requiring notice of proposed

rulemaking, opportunity for public

participation, and delay in effective date

are inapplicable. Because no notice of

proposed rulemaking is required for this

rule, the Regulatory Flexibility Act, 5

U.S.C. 601–612, does not apply.

List of Subjects in 31 CFR Part 500

Administrative practice and

procedure, Banks, banking, Blocking of

assets, Cambodia, Exports, Finance,

Foreign claims, Foreign investment in

the United States, Foreign trade,

Imports, Information and informational

materials, International organizations,

North Korea, Penalties, Reporting and

recordkeeping requirements, Securities,

Services, Specially designated nationals,

Terrorism, Travel restrictions, Trusts

and estates, Vietnam.

For the reasons set forth in the

preamble, 31 CFR part 500 is amended

as set forth below:

1. The authority citation for part 500

is revised to read as follows:

Authority: 50 U.S.C. App. 1–44; Pub. L.

101-410, 104 Stat. 890 (28 U.S.C. 2461 note);

Pub. L. 104-132, 110 Stat. 1214, 1254 (18

U.S.C. 2332d); E.O. 9193, 7 FR 5205, 3 CFR,

1938–1943 Comp., p. 1174; E.O. 9989, 13 FR

4891, 3 CFR, 1943–1948 Comp., p. 748.

Subpart E—Licenses, Authorizations,

and Statements of Licensing Policy

2. Section 500.585 is added to read as

follows:

§ 500.585 Payments for services rendered

by North Korea to United States aircraft

authorized.

Payments to North Korea of charges

for services rendered by the Government

of North Korea in connection with the

overflight of North Korea or emergency

landing in North Korea by aircraft

owned or controlled by a person subject

to the jurisdiction of the United States

or registered in the United States are

authorized.

Dated: March 24, 1997.

R. Richard Newcomb,

Director, Office of Foreign Assets Control.

Approved: March 31, 1997.

James E. Johnson,

Assistant Secretary (Enforcement).

[FR Doc. 97–9206 Filed 4–7–97; 12:05 pm]

BILLING CODE 4810–25–F