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§ 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 officer 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 presiding 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 counsel or 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 counsel 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 officer 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 officer 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, affidavits 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 official records or documents. An official record or document, when admissible for any purpose, shall be admissible in evidence without the production of the person who made or prepared the same. Such record or document shall, in the discretion of the presiding officer, 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 officer's report or the tentative order or otherwise, of matters so noticed, and (except where official 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 officer'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 officer 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 officer. Oral argument before the presiding officer shall be allowed unless the presiding officer finds that the denial of such argument will not deprive the parties of an adequate opportunity for oral argument subsequently in the proceeding. Such argument may be limited by the presiding officer to any extent that he finds necessary for the expeditious disposition of the proceeding and shall be reduced to writing and made part of the transcript.

(f) Transcript. (1) During the period in which the proceeding has an active status in the Department, a copy of the transcript and exhibits shall be kept on file in the office of the hearing clerk, where it shall be available for examination during official hours of business. Thereafter said transcript and exhibits shall be made available by the hearing clerk for examination during official hours of business after prior request and reasonable notice to the hearing clerk.

(2) If a personal copy of the transcript is desired, such copy may be obtained upon written application filed with the reporter, and upon payment of fees at the rate (if any) provided in the contract between the reporter and the Secretary.

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(a) Procedure in lieu of deposition. Before any party may have testimony taken by deposition, said party shall, if practicable, submit to the other party an affidavit which shall set forth the facts to which the witness would testify, if the deposition should be taken. If, after examination of such affidavit, the other party agrees, or (within 10 days after submission of the affidavit) fails to object, that the affidavit may be used in lieu of the deposition, the presiding officer shall admit the affidavit in evidence and shall not order the deposition to be taken.

(b) Application for taking deposition. Upon the application of a party to the proceeding, the presiding officer may, at any time after the filing of the moving paper, order, under the facsimile signature of the Secretary, the taking of testimony by deposition. The application shall be in writing and shall be filed with the hearing clerk and shall set forth: (1) the name and address of the proposed deponent; (2) the name and address of the person (referred to hereinafter in this section as the "officer"), qualified under

the rules in this part to take depositions, before whom the proposed examination is to be made; (3) the proposed time and place of the examination, which shall be at least 15 days after the date of the mailing of the application; and (4) the reasons why such deposition should be taken.

(c) Presiding officer's order for taking deposition. If, after the examination of the application, the presiding officer is of the opinion that the deposition should be taken, he shall order its taking. The order shall be filed with the hearing clerk and shall be served upon the parties and shall state: (1) the time and place of the examination (which shall not be less than 10 days after the filing of the order); (2) the name of the officer before whom the examination is to be made; (3) the name of the deponent. The officer and the time and place need not be the same as those suggested in the application.

(d) Qualifications of officer. The deposition shall be taken before the presiding officer, or before an officer authorized by the law of the United States or by the law of the place of the examination to administer oaths, or before an officer authorized by the Secretary to administer oaths.

(e) Procedure on examination. The deponent shall be examined under oath or affirmation and shall be subject to cross-examination. The testimony of the deponent shall be recorded by the officer or by some person under his direction and in his presence. In lieu of oral examination, parties may transmit written interrogatories to the officer prior to the examination and the officer shall propound such interrogatories to the deponent.

The applicant must arrange for the examination of the witness either by oral examination or by written interrogatories. If it is found by the presiding officer, upon the protest of a party to the proceeding, that such party has his residence and his place of business more than 100 miles from the place of the examination and that it would constitute an undue hardship upon such party to be represented at the examination, the applicant will be required to conduct the examination by means of interrogatories. When the examination is conducted by means of interrogatories, copies of the interrogatories shall be served upon the other parties to the proceeding at least five days prior to the date set for the

examination, and the other parties shall be afforded an opportunity to file with the officer cross-interrogatories at any time prior to the time of the examination.

(f) Certification by officer. The officer shall certify on the deposition that the deponent was duly sworn by him and that the deposition is a true record of the deponent's testimony. He shall then securely seal the deposition, together with two copies thereof, in an envelope and mail the same by registered mail to the hearing clerk.

(g) Use of depositions. A deposition ordered and taken in accord with the provisions of this section may be used in a proceeding under the act if the presiding officer finds that the evidence is otherwise admissible and (1) that the witness is dead; or (2) that the witness is at a distance greater than 100 miles from the place of hearing, unless it appears that the absence of the witness was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has endeavored to procure the attendance of the witness by subpena but has been unable to do so; or (5) that such exceptional circumstances exist as to make it desirable, in the interests of justice, to allow the deposition to be used. If a deposition has been taken, and the party upon whose application it was taken refuses to offer it in evidence, the other party may offer the deposition, or any part thereof, in evidence.

§ 900.62 Subpenas.

(a) Issuance of subpenas. The attendance of witnesses and the production of documentary evidence from any place in the United States on behalf of any party to the proceeding may, by subpena, be required at any designated place of hearing. Subpenas may be issued by the Secretary or by the presiding officer, under the facsimile signature of the Secretary, upon a reasonable showing by the applicant of the grounds, necessity, and reasonable scope thereof.

(b) Application for subpena duces tecum. Subpenas for the production of documentary evidence, unless issued by the presiding officer upon his own motion, shall be issued only upon a verified written application. Such application shall specify, as exactly as possible, the

documents desired and shall show their competency, relevancy, and materiality and the necessity for their production.

(c) Service of subpenas. Subpenas may be served (1) by a United States Marshal or his deputy, or (2) by any other person who is not less than 18 years of age, or (3) by registering and mailing a copy of the subpena addressed to the person to be served at his or its last known residence or principal place of business or residence. Proof of service may be made by the return of service on the subpena by the United States Marshal or his deputy; or, if served by an individual other than a United States Marshal or his deputy, by an affidavit of such person stating that he personally served a copy of the subpena upon the person named therein; or, if service was by registered mail, by an affidavit made by the person mailing the subpena that it was mailed as provided in this paragraph and by the signed return postoffice receipt: Provided, That, if the subpena is issued on behalf of the Department, the return receipt without an affidavit of mailing shall be sufficient proof of service. In making personal service, the person making service shall leave a copy of the subpena with the person subpenaed; the original, bearing or accompanied by the required proof of service, shall be returned to the official who issued the same.

§ 900.63 Fees and mileage.

Witnesses who are subpenaed and who appear in such proceeding, including witnesses whose depositions are taken, shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and persons taking depositions shall be entitled to the same fees as are paid for like services in the courts of the United States, to be paid by the party at whose request the deposition is taken. Witness fees and mileage shall be paid by the party at whose instance the witnesses appear, and claims therefor, as to witnesses subpenaed on behalf of the Department, shall be proved before the person issuing the subpena, and, as to witnesses subpenaed on behalf of any other party, shall be presented to such party.

§ 900.64 The presiding officer's report.

(a) Filing the transcript of evidence. (1) As soon as practicable after the close of the hearing, the presiding officer shall 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 officer'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 officer 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 officer, 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 officer, 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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