PART 1921—RULES OF PRACTICE IN ENFORCEMENT PROCEEDINGS UNDER SECTION 41 OF THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT Authority: Sec. 41, Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 941); 5 U.S.C. 301. Source: 27 FR 4165, May 2, 1962, unless otherwise noted. Redesignated at 28 FR 7909, Aug. 2, 1963, and further redesignated at 36 FR 25232, Dec. 31, 1971. Subpart A—Applicability of Rules; Definitions § 1921.1 Applicability of rules. This part provides rules of practice for administrative hearings relating to the enforcement of section 41 of the Longshoremen's and Harbor Workers' Compensation Act and the safety regulations promulgated thereunder which are published in parts 1915 and 1918 of this subtitle. This part applies only to proceedings held under section 41(b)(5) of the Act. It does not apply to any other administrative proceedings held under section 41 of the Act. § 1921.2 Definitions. (a) Act (b) Chief Hearing Examiner (c) Respondent (d) Assistant Secretary Subpart B—Prehearing Procedures § 1921.3 Complaints. (a) Issuance. (b) Contents. (c) Amendments. (d) Notice of hearing. § 1921.4 Answer. (a) Filing and service. (b) Contents; failure to file. (1) Contain a statement of the facts which constitute the grounds of defense, and shall specifically admit, explain, or deny, each of the allegations of the complaint unless the respondent is without knowledge, in which case the answer shall so state; or (2) State that the respondent admits all of the allegations of the complaint. The answer may contain a waiver of hearing. Failure to file an answer to or plead specifically to any allegation of the complaint shall constitute an admission of such allegation. (c) Procedure upon admission of facts. § 1921.5 Motions and requests. Motions or requests shall be filed with the Chief Hearing Examiner, except that those made during the course of the hearing shall be filed with the hearing examiner or shall be stated orally and made part of the transcript. Each motion or request shall state the particular order, ruling, or action desired, and the grounds therefor. The hearing examiner is authorized to rule upon all motions or requests filed or made prior to the filing of his report. § 1921.6 Intervention. At any time after the institution of proceedings and before the hearing examiner makes his decision, the hearing examiner may, upon petition in writing and for good cause shown, permit any interested person, including an employer, employee, labor or trade organization, or Federal or State agency, to intervene therein. The petition shall state with precision and particularity: (a) The petitioner's relationship to the matters involved in the proceedings, (b) The nature of any material he intends to present in evidence, (c) The nature of any argument he intends to make, and (d) Any other reason that he should be allowed to intervene. § 1921.7 Stipulations of compliance. At any time prior to the issuance of a complaint in the proceeding, the Assistant Solicitor in charge of trial litigation may in his discretion, enter into stipulations with the prospective respondent, whereby the latter admits the material facts and agrees to discontinue the acts or practices which are intended to be set up as violative of the Act or parts 1915 and 1918 of this subtitle. Such stipulations shall be admissible as evidence of such acts and practices in any subsequent proceeding in law or equity or under these regulations against such person. § 1921.8 Consent findings and order. (a) General. (b) Content. (1) That the order shall have the same force and effect as an order made after full hearing; (2) That the entire record on which any order may be based shall consist solely of the complaint and the agreement; (3) A waiver of any further procedural steps before the hearing examiner or the Director; and (4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement. (c) Submission. (1) Submit the proposed agreement to the hearing examiner for his consideration; or (2) Inform the hearing examiner that agreement cannot be reached. (d) Disposition. § 1921.9 Prehearing conferences. (a) Upon his own motion or the motion of the parties, the hearing examiner may direct the parties or their counsel to meet with him for a conference to consider: (1) Simplification of the issues; (2) Necessity or desirability of amendments to pleadings for purposes of clarification, simplification, or limitation; (3) Stipulations, admissions of fact and of contents and authenticity of documents; (4) Limitation of the number of expert witnesses; and (5) Such other matters as may tend to expedite the disposition of the proceeding. (b) The record shall show the matters disposed of by order and by agreement in such pretrial conferences. The subsequent course of the proceeding shall be controlled by such action. Subpart C—Hearing and Related Matters § 1921.10 Appearances. (a) Representation. (b) Failure to appear. § 1921.11 Postponement or change of place of hearing. If in the judgment of the hearing examiner convenience or necessity so requires, he may postpone the time or change the place of the hearing. § 1921.12 Hearing. (a) Order of proceeding; burden of proof. (b) Evidence In general. (2) Objections. (3) Exceptions. (c) Official notice. Provided, (d) Oral argument before the hearing examiner. (e) Transcript. Subpart D—Decision and Order § 1921.13 Decision of the hearing examiner. (a) Filing of transcript of evidence. (b) Proposed findings of fact, conclusions, and orders. (c) Decision of the hearing examiner. (1) Findings and conclusions, with reasons and bases, therefor, upon each material issue of fact, law, or discretion presented on the record, and (2) An appropriate order. Except in cases under § 1921.8(b), the decision of the hearing examiner shall be based upon a consideration of the whole record and supported by reliable, probative, and substantial evidence and upon the basis of the preponderance of the evidence. § 1921.14 Exceptions. Within 20 days after the date of the decision of the hearing examiner, the parties may file exceptions thereto with supporting reasons. Any party who desires to take exception to any matter set out in that decision shall transmit his exceptions in writing to the Chief Hearing Examiner, referring to the specific findings of fact, conclusions of law, or order excepted to, and the specific pages of transcript relevant to the exceptions, and suggesting corrected findings of fact, conclusions of law, or order. § 1921.15 Transmittal of record. Immediately following the period allowed for filing exceptions, the hearing examiner shall transmit the record of the proceeding to the Assistant Secretary. The record shall include: The pleadings, motions, and requests filed, and rulings thereon; the transcript of the testimony taken at the hearing, together with the exhibits filed; any documents or papers filed in connection with prehearing conferences; such proposed findings of fact, conclusions of law, and orders, and supporting reasons, as may have been filed in connection with the hearing; the hearing examiner's decision; and such exceptions, statements of objections, and briefs in support thereof, as may have been filed in the proceeding. § 1921.16 Decision and order of the Director. (a) Upon the basis of and after due consideration of the whole record, the Assistant Secretary shall render his decision, which shall adopt, modify, or set aside the findings, conclusions, and order contained in the decision of the hearing examiner, and shall include a statement of the reasons or bases for the action taken. With respect to the findings of fact, the Assistant Secretary shall upset only those findings that are clearly erroneous. Copies of the decision and order shall be served upon the parties. (b) When a final order of the Assistant Secretary issued pursuant to § 1921.13(c) or paragraph (a) of this section has been in force for 2 years or more, a party may file with the Assistant Secretary a petition for modification or vacation of the order. Such petition must be in writing, and must be based upon satisfactory compliance with the order during the 24 months immediately preceding the filing thereof and upon such changes in conditions and circumstances as to demonstrate, if established, that a continuation of the order in full force and effect is no longer required to assure satisfactory compliance with the regulations under the order. Such changes in conditions and circumstances as are relied upon must be expressly set forth together with the reasons why petitioner believes relief is justified and the precise nature of the relief sought. The petition may be supported by affidavits as to matters of fact. (c) If, after such investigation as the Assistant Secretary deems appropriate, in his judgment sufficient cause has been shown to justify the relief requested, he will enter an order granting relief. If in his judgment, sufficient cause has not been shown he shall so notify petitioner, who may then in writing request a hearing. Upon receipt of such request the Assistant Secretary will refer the petition with its supporting documents and the request to the Chief Hearing Examiner who will assign the matter for a hearing to be held on not less than 10 days notice at a time and place to be set by the hearing examiner. The Deputy Solicitor of Labor may file a pleading and otherwise appear in opposition to the petition. The hearing will be subject to all of the provisions of §§ 1921.9 through 1921.22. [31 FR 11144, Aug. 23, 1966] Subpart E—Miscellaneous § 1921.17 Service; copies of documents and pleadings. (a) Manner of service. (b) Proof of service. (c) Service upon Department, number of copies of pleading or other documents. § 1921.18 Witnesses and fees. Witnesses subpoenaed by any party shall be paid the same fees and mileage as are paid for like services in the District Courts of the United States. The witness fees and mileage shall be paid by the party at whose instance the witnesses appear. § 1921.19 Depositions. (a) When, how, and by whom taken. (b) Application. (c) Notice. (d) Taking and receiving in evidence. § 1921.20 Subpoenas. All applications for subpoenas ad testificandum and subpoenas duces tecum shall be made in writing to the hearing examiner. Application for subpoenas duces tecum shall specify as exactly as possible the documents to be produced, showing their general relevancy and reasonable scope. § 1921.21 Hearing examiners. (a) Who presides. (b) How assigned. (c) Powers. (1) To administer oaths and affirmations; (2) To issue subpoenas upon proper applications as provided in § 1921.20; (3) To rule upon offers of proof and receive relevant evidence; (4) To take or cause to be taken depositions and to determine their scope; (5) To regulate the course of the hearing and the conduct of the parties and their counsel therein; (6) To hold conferences for the settlement or simplification of the issues by consent of the parties; (7) To consider and rule upon procedural requests; (8) To make and file decisions in conformity with this part. (9) To take any action authorized by the rules in this part or in conformance with the Administrative Procedure Act. (d) Consultation. (e) Disqualification of hearing examiners. (2) Whenever any party shall deem the hearing examiner for any reason to be disqualified to preside, or to continue to preside, in a particular proceeding, that party shall file with the Chief Hearing Examiner a motion to disqualify and remove such hearing examiner, such motion to be supported by affidavits setting forth the alleged grounds for disqualification. The Chief Hearing Examiner shall rule upon the motion. (f) Contemptuous conduct; failure or refusal of a witness to appear or answer. § 1921.22 Computation of time. Sundays and holidays shall be included in computing the time allowed for filing any document or paper under this part. When such time expires on a Sunday or legal holiday, such period shall be extended to include the next following business day.