This subpart defines the scope of audiovisual coverage of
departmental administrative hearings. It describes the types of
proceedings where such coverage is encouraged, defines areas
where such coverage is prohibited (as in certain enforcement
proceedings or where witnesses object) and areas where a decision
concerning coverage is made after weighing the values involved in
permitting coverage against the reasons for not permitting it.
§ 2.11 General principles.
The following general principles will be observed in
granting or denying requests for permission to cover hearings
audiovisually:
(a) Notice and comment and on-the-record rule making
proceedings may involve administrative hearings. If such
administrative hearings are held, we encourage their audiovisual
coverage.
(b) Audiovisual coverage shall be excluded in
adjudicatory proceedings involving the rights or status of
individuals (including those of small corporations likely to be
indistinguishable in the public mind from one or a few
individuals) in which an individual's past culpable conduct or
other aspect of personal life is a primary subject of
adjudication, and where the person in question objects to
coverage.
(c) Certain proceedings involve balancing of conflicting
values in order to determine whether audiovisual coverage should
be allowed. Where audiovisual coverage is restricted, the
reasons for the restriction shall be stated in the record.
§ 2.12 Audiovisual coverage
permitted.
The following are the types of hearings where the Department
encourages audiovisual coverage:
(a) All hearings involving notice and comment and
on-the-record rule making proceedings. The Administrative
Procedure Act provides for notice of proposed rule making with
provision for participation by interested parties through
submission of written data, views, or arguments, with or without
opportunity for oral presentation (5 U.S.C. 553). (In many cases
the Department follows the above procedure in matters exempted
from these requirements of 5 U.S.C. 553.) On-the-record rule
making proceedings under 5 U.S.C. 556 and 557 are also hearings
where audiovisual coverage of hearings is encouraged. Examples
of hearings encompassed by this paragraph are:
(1) Hearings to establish or amend safety or health
standards under the Occupational Safety and Health Act of 1970,
29 U.S.C. 651.
(2) Hearings to determine the adequacy of State laws under
the Occupational Safety and Health Act of 1970.
(b) Hearings to collect or review wage data upon which to
base minimum wage rates determined under various laws, such as
the Davis-Bacon Act (40 U.S.C. 276a) and related statutes and the
Service Contract Act of 1965 (41 U.S.C. 353, as amended by Pub.
L. 92-473 approved October 9, 1972).
(c) Hearings under section 4(c) of the Service Contract Act
of 1965 (41 U.S.C. 353, subsection (c) added by Pub. L. 92-473
approved October 9, 1972) to determine if negotiated rates are
substantially at variance with those which prevail in the
locality for services of a character similar.
(d) Hearings before the Wage Appeals Board (Parts 1, 3, 5,
and 7 of this chapter).
(e) Hearings held at the request of a Federal agency to
resolve disputes under the Davis-Bacon and related Acts,
involving prevailing wage rates or proper classification which
involve significant sums of money, large groups of employees or
novel or unusual situations.
(f) Hearings of special industry committees held pursuant
to the Fair Labor Standards Act, as amended (29 U.S.C. 201 et
seq.) for the purpose of recommending minimum wage rates to
be paid in Puerto Rico, the Virgin Islands, and American
Samoa.
(g) Hearings pursuant to section 13(a) of the Welfare and
Pension Plans Disclosure Act (29 U.S.C. 308d) to determine
whether a bond in excess of $500,000 may be prescribed.
(h) Hearings where the Department is requesting information
needed for its administrative use in determining what our
position should be (e.g., our hearings on the 4-day, 40-hour
workweek).
§ 2.13 Audiovisual coverage
prohibited.
The Department shall not permit audiovisual coverage of the
following types of hearings if any party objects:
(a) Hearings to determine whether applications for
individual variances should be issued under the Occupational
Safety and Health Act of 1970.
(b) Hearings (both formal and informal) involving alleged
violations of various laws such as the Davis-Bacon Act (40 U.S.C.
276a, et seq.) and related Acts, the Contract Work Hours
and Safety Standards Act (40 U.S.C. 327 et seq.), the
Service Contract Act (41 U.S.C. 351 et seq.), the Walsh
Healey Act (41 U.S.C. 35 et seq.), under section 41 of the
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.
941 et seq.), the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. 201 et seq.), and any informal hearings
or conferences under the Occupational Safety and Health Act of
1970 (29 U.S.C. 651 et seq.) which are not within the
jurisdiction of the Occupational Safety and Health
Commission.
(c) Adversary hearings under the Longshoremen's and Harbor
Workers' Compensation Act (33 U.S.C. 901 et seq.) and
related Acts, which determine an employee's right to
compensation.
(d) Hearings which determine an employee's right to
compensation under the Federal Employees' Compensation Act (5
U.S.C. 8101 et seq.).
§ 2.14 Proceedings in which the
Department balances conflicting values.
In proceedings not covered by §§ 2.12 and 2.13, the
Department should determine whether the public's right to know
outbalances the individual's right to privacy. When audiovisual
coverage is restricted or excluded, the record shall state fully
the reasons for such restriction or exclusion. For example,
there would be included in this category hearings before the
Board of Contract Appeals involving appeals from contracting
officer decisions involving claims for extra costs for extra
work, extra costs for delay in completion caused by the
Government or for changes in the work, conformity hearings
arising under State unemployment insurance laws, etc.
§ 2.15 Protection of witnesses.
A witness has the right, prior to or during his testimony, to
exclude audiovisual coverage of his testimony in any hearing
being covered audiovisually.
§ 2.16 Conduct of hearings.
The presiding officer at each hearing which is audiovisually
covered is authorized to take any steps he deems necessary to
preserve the dignity of the hearing or prevent its disruption by
persons setting up or using equipment needed for its audiovisual
coverage.