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8 900.59 Motions and requests.

(a) General. All motions and requests shall be filed with the hearing clerk, except that those made during the course of an oral hearing may be filed with the presiding officer or may be stated orally and made a part of the transcript.

The presiding oficer is authorized to rule upon all motions and requests filed or made prior to the transmittal by the hearing clerk to the Secretary of the record as provided in this subpart. The Secretary shall rule upon all motions and requests filed after that time.

(b) Certification of motions. The submission or certification of any motion, request, objection, or other question to the Secretary prior to the transmittal of the record to the Secretary, as provided in this subpart, shall be in the discretion of the presiding officer. $ 900.60 Oral hearings before presiding

officer. (a) Time and place. The presiding officer shall set a time and place for hearing and shall file with the hearing clerk a notice stating the time and place of hearing. If any change in the time or place of hearing becomes necessary, it shall be made by the preside ing officer, who, in such event, shall file with the hearing clerk a notice of the change. Such notice shall be served upon the parties, unless it is made during the course of an oral hearing and made a part of the transcript.

(b) Appearances-(1) Representation. In any proceeding under the act, the parties may appear in person or by counsel or other representative. The Department, if represented by counsel, shall be represented by an attorney assigned by the General Counsel of the Department, and such attorney shall present or supervise the presentation of the position of the Department.

(2) Debarment of counselor representative. Whenever, while a proceeding is pending before him, the presiding officer finds that a person acting as counsel or representative for any party to the proceeding is guilty of unethical or unprofessional conduct, the presiding officer may order that such person be precluded from further acting as counsel or representative in such proceeding. An appeal to the Secretary may be taken from any such order, but the proceeding shall not be delayed or suspended pend

ing disposition of the appeal: Provided, That the presiding officer may suspend the proceeding for a reasonable time for the purpose of enabling the client to obtain other counsel or representative.

In case the presiding officer has issued an order precluding a person from further acting as counse or representative in the proceeding, the presiding officer, within a reasonable time thereafter, shall submit to the Secretary a report of the facts and circumstances surrounding the issuance of the order and shall recommend what action the Secretary should take respecting the appearance of such person as counsel or representative in other proceedings before the Secretary. Thereafter, the Secretary may, after notice and an opportunity for hearing, issue such order respecting the appearance of such person as counsel or representative in proceedings before the Secretary as the Secretary finds to be appropriate.

(3) Failure to appear. If the petitioner, after being duly notified, fails to appear at the hearing, he shall be deemed to have authorized the Secretary, without further procedure, to dismiss the proceeding with or without prejudice, as the Secretary may determine. In the event that the petitioner appears at the hearing and no representative of the Department appears, the presiding officer shall proceed ex parte to hear the evidence of the petitioner: Provided, That failure on the part of such representative of the Department to appear at a hearing shall not be deemed to be a waiver of the Department's right to file suggested findings of fact, conclusions, and order; to be served with a copy of the presiding officer's report; and to file exceptions with and to submit argument before the Secretary with respect thereto.

(c) Order of proceeding. Except as may be determined otherwise by the presiding officer, the petitioner shall proceed first at the hearing.

(d) Evidence-(1) In general. The hearing shall be publicly conducted, and the testimony given at the hearing shall be reported verbatim.

The testimony of witnesses at a hearing shall be upon oath or affirmation and subject to cross-examination.

Any witness may, in the discretion of the presiding officer, be examined separately and apart from all other witnesses except those who may be parties to the proceeding.

The presiding oficer shall exclude, insofar as practicable, evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely.

(2) Objections. If a party objects to the admission or rejection of any evidence or to the limitation of the scope of any examination or cross-examination, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding officer. The transcript shall not include argument or debate thereon, except as ordered by the presiding officer. The ruling of the presiding oficer on any objection shall be a part of the transcript.

Only objections made before the presiding officer may subsequently be relied upon in the proceeding.

(3) Depositions. The deposition of any witness shall be admitted, in the manner hereinafter provided in and subject to the provisions of $ 900.61.

(4) Affidavits. Except as is otherwise provided in this subpart, afidavits may be admitted only if the evidence is otherwise admissible and the parties agree (which may be determined by their failure to make timely objections) that affidavits may be used.

(5) Proof and authentication of oficial records or documents. An official record or document, when admissible for any purpose, shall be admissible in evi. dence without the production of the person who made or prepared the same. Such record or document shall, in the discretion of the presiding oficer, be evidenced by an official publication thereof or by a copy attested by the person having legal custody thereof and accompanied by a certificate that such person has the custody.

(6) Exhibits. All written statements, charts, tabulations, or similar data offered in evidence at the hearing shall, after identification by the proponent and upon a satisfactory showing of the admissibility of the contents thereof, be numbered as exhibits and received in evidence and made a part of the record. Except where the presiding officer finds that the furnishing of copies is impracticable, a copy of each exhibit, in addition to the original, shall be filed with the presiding officer for the use of each other party to the proceeding. The presiding officer shall advise the parties as

to the exact number of copies which will be required to be filed and shall make and have noted on the record the proper distribution of the copies.

If the testimony of a witness refers to a statute, or to a report, document, or transcript, the presiding officer, after inquiry relating to the identification of such statute, report, document, or transcript, shall determine whether the same shall be produced at the hearing and physically be made a part of the evidence as an exhibit, or whether it shall be incorporated into the evidence by reference. If relevant and material matter offered in evidence is embraced in a report, document, or transcript containing immaterial or irrelevant matter, such immaterial or irrelevant matter shall be excluded and shall be segregated insofar as practicable, subject to the direction of the presiding officer.

(7) Official notice. Official notice will be taken of such matters as are judicially noticed by the courts of the United States and of any other matter of technical, scientific, or commercial fact of established character: Provided, That the parties shall be given adequate notice, at the hearing or by reference in the presiding oficer's report or the tentative order or otherwise, of matters so noticed, and (except where oficial notice is taken, for the first time in the proceeding, in the final order) shall be given adequate opportunity to show that such facts are erroneously noticed.

(8) Offer of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof shall consist of a brief statement describing the evidence to be offered. If the evidence consists of a brief oral statement or of an exhibit, it shall be inserted into the transcript in toto. In such event, it shall be considered a part of the transcript if the Secretary decides that the presiding oficer's ruling in excluding the evidence was erroneous. The presiding officer shall not allow the insertion of such evidence in toto if the taking of such evidence will consume a considerable length of time at the hearing. In the latter event, if the Secretary decides that the presiding offcer erred in excluding the evidence, and that such error was substantial, the hearing shall be reopened to permit the taking of such evidence.

(e) Oral argument before presiding of- the rules in this part to take depositions, ficer. Oral argument before the presid- before whom the proposed examination ing oficer shall be allowed unless the pre- is to be made; (3) the proposed time and siding officer finds that the denial of such place of the examination, which shall argument will not deprive the parties of be at least 15 days after the date of the an adequate opportunity for oral argu- mailing of the application; and (4) the ment subsequently in the proceeding. reasons why such deposition should be Such argument may be limited by the taken. presiding officer to any extent that he (c) Presiding officer's order for taking finds necessary for the expeditious dis- deposition. If, after the examination of position of the proceeding and shall be the application, the presiding officer is reduced to writing and made part of the of the opinion that the deposition should transcript.

be taken, he shall order its taking. The (f) Transcript. (1) During the pe

order shall be filled with the hearing riod in which the proceeding has an ac

clerk and shall be served upon the partive status in the Department, a copy of

ties and shall state: (1) the time and the transcript and exhibits shall be kept place of the examination (which shall on file in the office of the hearing clerk, not be less than 10 days after the filing where it shall be available for examina- of the order); (2) the name of the officer tion during official hours of business.

before whom the examination is to be Thereafter said transcript and exhibits

made; (3) the name of the deponent. shall be made available by the hearing

The officer and the time and place need clerk for examination during official

not be the same as those suggested in hours of business after prior request and

the application. reasonable notice to the hearing clerk.

(d) Qualifications of oficer. The (2) If a personal copy of the tran- deposition shall be taken before the prescript is desired, such copy may be ob

siding officer, or before an officer authortained upon written application filed

ized by the law of the United States or with the reporter, and upon payment of

by the law of the place of the examinafees at the rate (if any) provided in the

tion to administer oaths, or before an contract between the reporter and the

oficer authorized by the Secretary to Secretary.

administer oaths.

(e) Procedure on examination. The $ 900.61 Depositions.

deponent shall be examined under oath (a) Procedure in lieu of deposition. or afirmation and shall be subject to Before any party may have testimony cross-examination. The testimony of taken by deposition, said party shall, the deponent shall be recorded by the if practicable, submit to the other officer or by some person under his direcparty an affidavit which shall set tion and in his presence. In lieu of oral forth the facts to which the witness examination, parties may transmit writwould testify, if the deposition should be ten interrogatories to the oficer prior to taken. If, after examination of such afi- the examination and the officer shall davit, the other party agrees, or (within propound such interrogatories to the de10 days after submission of the affidavit) ponent. fails to object, that the affidavit may be The applicant must arrange for the used in lieu of the deposition, the presid- examination of the witness either by oral ing officer shall admit the affidavit in examination or by written interrogatoevidence and shall not order the deposi- ries. If it is found by the presiding offtion to be taken.

cer, upon the protest of a party to the (b) Application for taking deposition. proceeding, that such party has his resiUpon the application of a party to the dence and his place of business more proceeding, the presiding officer may, at than 100 miles from the place of the exany time after the filing of the moving amination and that it would constitute paper, order, under the facsimile signa- an undue hardship upon such party to ture of the Secretary, the taking of tes. be represented at the examination, the timony by deposition. The application applicant will be required to conduct the shall be in writing and shall be filed with examination by means of interrogatories. the hearing clerk and shall set forth: When the examination is conducted by (1) the name and address of the proposed means of interrogatories, copies of the deponent; (2) the name and address of interrogatories shall be served upon the the person (referred to hereinafter in this other parties to the proceeding at least section as the “officer”), qualified under five days prior to the date set for the examination, and the other parties shall documents desired and shall show their be afforded an opportunity to file with competency, relevancy, and materiality the officer cross-interrogatories at any and the necessity for their production. time prior to the time of the examina- (c) Service of subpenas. Subpenas tion.

may be served (1) by a United States (f) Certification by officer. The offi- Marshal or his deputy, or (2) by any cer shall certify on the deposition that other person who is not less than 18 the deponent was duly sworn by him years of age, or (3) by registering and and that the deposition is a true record mailing a copy of the subpena addressed of the deponent's testimony. He shall to the person to be served at his or its then securely seal the deposition, to- last known residence or principal place gether with two copies thereof, in an of business or residence. Proof of seryenvelope and mail the same by regis- ice may be made by the return of service tered mail to the hearing clerk.

on the subpena by the United States (g) Use of depositions. A deposition

Marshal or his deputy; or, if served by ordered and taken in accord with the

an individual other than a United States provisions of this section may be used

Marshal or his deputy, by an affidavit in a proceeding under the act if the of such person stating that he personally presiding oficer finds that the evidence

served a copy of the subpena upon the is otherwise admissible and (1) that the person named therein; or, if service was witness is dead; or (2) that the witness by registered mail, by an affidavit made is at a distance greater than 100 miles by the person mailing the subpena that from the place of hearing, unless it ap

it was mailed as provided in this parapears that the absence of the witness graph and by the signed return postwas procured by the party offering the

office receipt: Provided, That, if the deposition; or (3) that the witness is subpena is issued on behalf of the Deunable to attend or testify because of

partment, the return receipt without an age, sickness, infirmity, or imprison

affidavit of mailing shall be sufficient ment; or (4) that the party offering the

proof of service. In making personal deposition has endeavored to procure the service, the person making service shall attendance of the witness by subpena but leave a copy of the subpena with the has been unable to do so; or (5) that person subpenaed; the original, bearing such exceptional circumstances exist as

or accompanied by the required proof of to make it desirable, in the interests of service, shall be returned to the official justice, to allow the deposition to be

who issued the same. used. If a deposition has been taken, $ 900.63 Fees and mileage. and the party upon whose application it was taken refuses to offer it in evi

Witnesses who are subpenaed and who dence, the other party may offer the

appear in such proceeding, including deposition, or any part thereof, in evi

witnesses whose depositions are taken, dence.

shall be paid the same fees and mileage

that are paid witnesses in the courts of $ 900.62 Subpenas.

the United States, and persons taking (a) Issuance of subpenas. The at- depositions shall be entitled to the same tendance of witnesses and the production fees as are paid for like services in the of documentary evidence from any courts of the United States, to be paid by place in the United States on behalf of the party at whose request the deposition any party to the proceeding may, by is taken. Witness fees and mileage shall subpena, be required at any designated be paid by the party at whose instance place of hearing. Subpenas may be is- the witnesses appear, and claims theresued by the Secretary or by the presiding for, as to witnesses subpenaed on behall officer, under the facsimile signature of of the Department, shall be proved bethe Secretary, upon a reasonable show- fore the person issuing the subpena, and, ing by the applicant of the grounds, as to witnesses subpenaed on behalf of necessity, and reasonable scope thereof. any other party, shall be presented to

(b) Application for subpena duces such party. tecum. Subpenas for the production of

& 900.64 The presiding officer's report. documentary evidence, unless issued by the presiding officer upon his own mo- (a) Filing the transcript of evidence. tion, shall be issued only upon a verified (1) As soon as practicable after the close written application. Such application of the hearing, the presiding officer shall shall specify, as exactly as possible, the transmit to the hearing clerk an original

and three copies of the transcript of the testimony and the original and all copies of the exhibits not already on file in the office of the hearing clerk. The presiding officer shall attach to the original transscript of testimony his certificate stating that to the best of his knowledge and belief, the transcript is a true, correct, and complete transcript of the testimony given in the hearing except in such particulars as he shall specify, and that the exhibits transmitted are all the exhibits received in evidence at the hearing with such exceptions as he shall specify. A copy of such certification shall be attached to each copy of the transcript of testimony. In accordance with such certificate the presiding officer shall note on the original transcript and the hearing clerk shall cause to be noted on other copies of the transcript, each correction detailed in such certificate by adding or crossing out (but without obscuring the text as originally transcribed) at the appropriate places any words necessary to make the text conform to the correct meaning, as certified by the presiding officer.

(2) Immediately following the filing of the transcript, the hearing clerk shall advise each party to the proceeding as to the date of such filing.

(b) Proposed findings of fact, conclusions, and orders. Within 10 days (unless the presiding officer shall have announced at the hearing a shorter or longer period of time) after the transcript has been filed with the hearing clerk, as provided in paragraph (a) of this section, each party may file with the hearing clerk proposed findings of fact, conclusions, and order, based solely upon the evidence of record, and briefs in support thereof.

(c) Presiding oficer's report. The presiding officer, within a reasonable time after the termination of the period allowed for the filing of proposed findings of fact, conclusions, and orders, and briefs in support thereof, shall prepare, upon the basis of the record, and shall file with the hearing clerk, his report, a copy of which (together with notification of the date fixed by the presiding oficer for the filing of exceptions thereto) shall be served by the hearing clerk upon each of the parties.

(d) Exceptions. Within a period of time (to be fixed by the presiding officer but not to exceed 20 days) after the

filing of the presiding officer's report, the parties may file exceptions to the report. Any party who desires to take exception to any matter set out in the report shall transmit his exceptions in writing to the hearing clerk, referring, where practicable, to the relevant pages of the transcript, and suggesting a corrected finding of fact, conclusion, or order. Within the same period of time, each party shall transmit to the hearing clerk a brief statement in writing concerning each of the objections taken to the action of the presiding oficer, as set out in $ 900.60, upon which the party wishes to rely, referring, where practicable, to the pertinent pages of the transcript. A party, if he files exceptions or a statement of objections, shall state in writing whether he desires to make an oral argument thereon before the Secretary; otherwise, it shall be considered that he does not desire to make such oral argument.

(e) Revision of presiding officer's report. If exceptions are filed to the presiding officer's report, as provided in paragraph (d) of this section, the presiding oficer, after consideration of such exceptions, shall make and file with the hearing clerk a draft of the findings of fact, conclusions, and final order of the Secretary, which shall include such revision of his report as he deems to be appropriate in view of such exceptions. $ 900.65 Transmittal of record.

The hearing clerk, immediately following the filing of the revision of the presiding officer's report, or upon notification by the presiding officer that no revision will be made, shall transmit to the Secretary the record of the proceeding. Such record shall include: the petition; motions and requests filed with the hearing clerk, and rulings thereon; the transcript of the testimony taken at the hearing, together with the exhibits filed therein; any documents or papers filed in connection with prehearing conferences; such proposed findings of fact, conclusions, and orders, and briefs in support thereof, as may have been filed in connection with the hearing; the presiding officer's report; such exceptions, statements of objections, and briefs in support thereof, as may have been filed in the proceeding; and the presiding officer's draft of the findings of fact, conclusions, and final order of the Secretary.

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