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to revoke, quash, or modify any such trol the subsequent course of the prosubpena;
ceedings, unless modified at the hearing (3) To receive relevant evidence and to prevent manifest injustice. Except as to rule upon the admission of evidence authorized by law, the administrative law and offers of proof;
judge shall not consult any person or (4) To take or cause despositions to party on any fact in issue unless upon be taken;
notice and opportunity for all parties to (5) To regulate the course of the hear participate, nor be responsible to or subing and the conduct of the parties and ject to the supervision or direction of any their counsel;
officer, employee, or agent engaged in the (6) To hold conferences for the set performance of investigative or prosecuttlement or simplification of issues or for ing functions. No officer, employee, or any other proper purpose; and
agent engaged in the performance of in(7) TO consider and rule upon, as vestigative or prosecuting functions in Justice may require, all procedural and any case shall, in that case or a factually other motions appropriate in an ad related case, participate or advise in the versary proceeding, except that an ad decision of the administrative law judge ministrative law judge shall not have except as a witness or counsel in the power to decide any motion to dismiss proceedings. the proceedings or other motion which (d) Attendance at hearings. A hearing results in final determination of the shall ordinarily be private and shall be merits of the proceedings.
attended only by the parties, their repre
sentatives or counsel, witnesses while Without limitation on the foregoing pro
testifying, and other persons having an visions of this paragraph, the adminis
official interest in the proceedings: Protrative law judge shall, subject to the pro
vided, however, That on written request visions of this part, have all the authority
by a party or representatives of the of section 556(c) of title 5 of the United
Board of Directors, or on the Board's own States Code.
motion, the Board, in its discretion and (c) Prehearing conference. The ad
to the extent permitted by law, may perministrative law judge may, on his own
mit other persons to attend or may order initiative or at the request of any party,
the hearing to be public. direct counsel for all parties to meet
(e) Transcript of testimony. Hearings with him at a specified time and place
shall be recorded and transcripts will be prior to the hearing, or to submit sug made available to any party upon paygestions to him in writing, for the pur
ment of the cost thereof and, in the event pose of considering any or all of the
the hearing is public, shall be furnished following:
on similar payment to other interested (1) Simplification and clarification of
persons. A copy of the transcript of the the issues;
testimony taken at any hearing, duly (2) Stipulations, admissions of fact
certified by the reporter, together with and of the contents and authenticity of
all exhibits, all papers and requests filed documents;
in the proceedings, and any briefs or (3) Matters of which official notice will
memoranda of law theretofore filed in be taken; and
the proceeding, shall be filed with the (4) Such other matters as may aid in Executive Secretary of the Corporation, the orderly disposition of the proceeding, who shall transmit the same to the adincluding disclosure of the names of ministrative law judge. The Secretary witnesses and of documents or other
shall promptly serve notice upon each of physical exhibits which will be intro
the parties of such filing and transduced in evidence in the course of the mittal. The administrative law judge proceeding.
shall have authority to rule upon moSuch conferences shall, at the request of
tions to correct the record. any party, be recorded and at the conclu (f) Order of procedure. The counsel sion thereof the administrative law judge for the Corporation shall open and close. shall enter in the record an order which (g) Continuances and changes or exrecites the results of the conference. tensions of time and changes of place of Such order shall include the adminis hearing. Except as otherwise expressly trative law judge's rulings upon matters provided by law, the Board of Directors considered at the conference, together may by the notice of hearing or subsewith appropriate directions to the par quent order provide time limits different ties, if any; and such order shall con from those specified in this part, and the
Board of Directors may, on its own initiative or for good cause shown, change or extend any time limit prescribed by these rules or the notice of hearing, or change the time and place for beginning any hearing hereunder. The administrative law judge may cont ue or adjourn a hearing from time to time and, as permitted by law or agreed to by the parties, from place to place. Extensions of time for making any filing or performing any act required or allowed to be done within a specified time in the curse of a proceeding may be granted by the administrative law judge for good cause shown.
(h) Call for further evidence, oral argument, briefs, reopening of hearing. The administrative law judge may call for the production of further evidence upon any issue, may permit oral argument and submission of briefs at the hearing and, upon appropriate notice, may reopen any hearing at any time prior to the certification of his recommended decision to the Executive Secretary. The Board of Directors shall render its decision within 90 days after the Executive Secretary has notified the parties, pursuant to $ 308.13, that the case has been submitted to the Board of Directors for final decision, unless within such 90-day period the Board of Directors shall order that such notice be set aside and the case reopened for further proceedings. (32 FR 11147, Aug. 1, 1967, as amended at 38 FR 14263, 14264, May 31, 1973) $ 308.6 Subpenas.
(a) Issuance. The administrative law judge, or in the event he is unavailable, the Board of Directors, shall issue subpenas at the request of any party, requiring the attendance of witnesses or the production of documentary evidence at any designated place of hearing; except that where it appears to the administrative law judge or the Board of Directors that the subpena may be unreasonable, oppressive, excessive in scope, or unduly burdensome, the party seeking the subpena may be required, as a condition precedent to the issuance of the subpena, to show the general relevance and reasonable scope of the testimony or other evidence sought. In the event the administrative law judge or the Board of Directors, after consideration of all the circumstances, determines that the subpena or any of its terms are unreasonable, oppressive,
excessive in scope, or unduly burdensome, he or it may refuse to issue the subpena, or issue it only upon such conditions as fairness requires.
(b) Motion to quash. Any person to whom a subpena is directed may, prior to the time specified therein for compliance but in no event more than five days after the date of service of such subpena, with notice to the party requesting the subpena, apply to the administrative law judge, or, if he is unavailable, to the Board of Directors, to revoke, quash, or modify such subpena, accompanying such application with a statement of the reasons therefor.
(c) Service of subpena. Service of a subpena upon a person named therein shall be made by delivering a copy of the subpena to such person and by tendering the fees for 1 day's attendance and the mileage as specified in paragraph (d) of this section, except that when a subpena is issued at the instance of the Board of Directors fees and mileage need not be tendered at the time of service of the subpena. If service is made by a U.S. marshal, or his deputy, or an employee of the Corporation, such service shall be evidenced by his return thereon. If made by any other person, such person shall make affidavit thereto, describing the manner in which service is made, and return such affidavit on or with the original subpena. In case of failure to make service, reasons for the failure shall be stated on the original subpena. The original subpena, bearing or accompanied by the required return, affidavit or statement, shall be returned without delay to the administrative law judge.
(d) Attendance of witnesses. The attendance of witnesses and the production of documents pursuant to a subpena, issued in connection with a hearing provided for in Subpart B, C, or D of this part, may be required from any place in any State or in any territory at any designated place where the hearing is being conducted. Witnesses subpenaed in any proceeding under this part shall be paid the same fees and mileage that are paid witnesses in the district courts of the United States.
(e) Depositions. The Board of Directors or administrative law judge, by subpena or subpena duces tecum, may order evidence to be taken by deposition in any proceeding at any stage thereof. Such depositions may be taken by the administrative law judge or before any
person designated by the Board of Di relevance of evidence. Failure to object rectors or administrative law jridge and to questions or evidence shall not be having power to administer oaths. Unless deemed a waiver except where the notice is waived, no deposition shall be ground of the objection is one which taken except after at least 5 days' might have been obviated or removed 11 potice to the parties to the proceeding presented at that time. The questions
(1) Application and order to take oral propounded and the answers thereto, todeposition. Any party desiring to take the gether with all objections made (but not oral deposition of a witness, in connec including argument or debate) shall be tion with any hearing provided for in this recorded by the person taking the depopart, shall make application in writing to sition, or under his direction. The depothe administrative law judge or, in the sition shall be subscribed by the witness, event he is unavailable, to the Board of unless the parties by stipulation waived Directors, setting forth the reasons why the signing or the witness is ill or cansuch deposition should be taken, the not be found or refused to sign, and cername and post office address of the wit tiñed as a true and complete transcript ness, the matters concerning which the thereof by the person taking the deposiwitness is expected to testify, its rele tion. If the deposition is not subscribed vance, and the time when, the place to by the witness, such person shall state where, and the name and post office ad on the record this fact and the reason dress of the person before whom it is therefor. Such person shall promptly desired the deposition be taken. A copy of send the original and two copies of such such application shall be served upon deposition, together with the original and every other party to the proceeding by two copies of all exhibits, by registered the party making such application. Upon mail to the Executive Secretary of the & showing that (1) the proposed witness Corporation unless otherwise directed in will be unable to attend or may be pre the order authorizing the taking of the vented from attending the hearing be deposition. Interested parties shall make cause of age, sickness or infirmity, or will their own arrangements with the person otherwise be unavailable at the hearing, taking the deposition for copies of the (2) his testimony will be material, and testimony and the exhibits. (3) the taking of the deposition will not (h) Introduction as evidence. Subject result in any undue burden to any other to appropriate rulings on such objections party or in undue delay of the proceed to questions of evidence as were noted at ing, the administrative law judge or the the time the deposition was taken or as Board of Directors may, in his or its dis would be valid were the witness personcretion, by such subpena or subpena ally present and testifying (except obduces tecum, order the oral deposition to jections waived under the third sentence be taken. Such subpena will name the of paragraph (g) of this section), the witness whose deposition is to be taken deposition or any part thereof may be and specify the time when, the place read in evidence by any party to the prowhere, and the person before whom the ceeding. Only such part or the whole of a witness is to testify, but such time and deposition as is received in evidence at a place, and the person before whom the hearing shall constitute a part of the deposition is ordered to be taken, may or record in such proceeding upon which & may not be the same as those named in decision may be based. the application. Notice of the issuance of (i) Payment of fees. Witnesses whose such subpena shall be served upon each oral depositions are taken shall be enof the parties a reasonable time, and in titled to the same fees as are paid for like no event less than five days, in advance services in the courts of the United of the time fixed for the taking of the States. Fees of persons taking such depdeposition.
ositions and the fees of the reporter shall (g) Procedure on deposition; objec be paid by the person upon whose applitions. Each witness testifying upon oral cation the deposition was taken. deposition shall be duly sworn, and the 132 FR 11147, Aug. 1, 1967, as amended at adverse party shall have the right to 38 FR 14264, May 31, 1973) cross-examine. Objections to questions or evidence shall be in short form, stat
& 308.7 Rules of evidence. ing the grounds of objection relied upon;
(a) Evidence. Every party shall have but the person taking the deposition the right to present his case or defense shall not have power to rule upon ques
by oral and documentary evidence, to tions of competency or materiality or submit rebuttal evidence and to conduct
such cross-examination as may be re judge or the Board of Directors. Written quired for a full and true disclosure of memoranda or briefs may be filed with the facts. Irrelevant, immaterial, or un motions or answers or objections thereto, duly repetitious evidence shall be ex stating the points and authorities relied cluded.
upon in support of the position taken. (b) Objections. Objections to the ad (d) Rulings on motions. Except as mission or exclusion of evidence shall be otherwise provided in this part, the in short form, stating the grounds of administrative law judge shall rule objections relied upon, and the tran upon all motions properly addressed script shall not include argument thereon to him and upon such other motions except as ordered, allowed, or requested as the Board of Directors may direct, by the administrative law judge. Rulings except that if the administrative law on such objections and on any other judge finds that a prompt decision by matters shall be a part of the transcript. the Board of Directors on a motion is Failure to object to admission or exclu essential to the proper conduct of the sion of evidence or to any ruling shall be proceeding, he may refer such motion to considered a waiver of such objection. the Board of Directors for decision. The
(c) Official notice. All matters offi. Board of Directors shall rule upon all cially noticed by the administrative law motions properly submitted to it for judge shall appear on the record.
decision. 132 FR 11147, Aug. 1, 1967, as amended at (e) Appeal from rulings on motions. 38 FR 14264, May 31, 1973]
All motions and answers or objections & 308.8 Motions.
thereto and rulings thereon shall be
come part of the record. Rulings of an (a) in writing. An application or re administrative law judge on any motion quest for an order or ruling not other
may not be appealed to the Board of wise specifically provided for in this part
Directors prior to its consideration of the shall be made by motion. After an admin administrative law judges recommended istrative law judge has been designated to
decision, findings and conclusions except preside at a hearing and before the fling
by special permission of the Board of with the Secretary of his recommended
Directors; but they shall be considered decision, pursuant to $ 308.9, such appli
by the Board of Directors in reviewing cations or requests shall be addressed to
the record. Requests to the Board of and filed with him. At all other times
Directors for special permission to apmotions shall be addressed to the Board
peal from such rulings of the adminisof Directors and filed with the Secre
trative law judge shall be filed promptly, tary. Motions shall be in writing, except
in writing, and shall briefly state the that a motion made at a session of a
grounds relied on. The moving party hearing may be made orally upon the rec
shall immediately serve a copy thereof ord unless the administrative law judge
on every other party to the proceeding. directs that it be reduced to writing. All
(f) Continuation of hearing. Unless written motions shall state with particu
otherwise ordered by the administrative larity the order or relief sought and the
law judge or the Board of Directors, the grounds therefor.
hearing shall continue pending the de(b) Objections. Within 5 days after
termination of any motion by the Board service of any written motion, or within
of Directors. such other period of time as may be fixed by the administrative law judge or the
132 FR 11147, Aug. 1, 1967, as amended at
38 FR 14264, May 31, 1973) Board of Directors, any party may file a written answer or objection to such 8 308.9 Proposed findings and conclu. motion. The moving party shall have
sions and recommended decision. no right to reply, except as permitted (a) Proposed findings and conclusions by the administrative law judge or the by parties. Each party to a hearing shall Board of Directors. As a matter of dis have a period of 15 days after service of cretion, the administrative law judge or the notice by the Executive Secretary the Board of Directors may waive the re of the Corporation of the filing and quirements of this section as to motions transmittal of the record, as provided in for extensions of time, and may rule paragraph (e) of $ 308.5, or such further upon such motions ex parte.
time as the administrative law judge (c) Oral argument. No oral argument for good cause shall determine, to file will be heard on motions except as other with the administrative law judge wise directed by the administrative law proposed findings of fact, conclusions
of law and order, which may be ac findings. conclusions, and proposed order companied by a brief or memorandum of the administrative law judge or any in support thereof. Such proposals shall portion thereof, or to his failure to adopt be supported by citation of such statutes, a proposed finding or conclusion, or to decisions and other authorities, and by the admission or exclusion of evidence page references to such portions of the or other ruling of the administrative law record, as may be relevant. All such pro judge, within the time prescribed in parposals, briefs and memoranda shall be agraph (a) of this section, shall be come a part of the record.
deemed to be a waiver of objection (b) Recommended decision and filing thereto. of record. The administrative law judge (32 FR 11147, Aug. 1, 1967, as amended at shall, within 30 days after the expira 38 FR 14264, May 31, 1973) tion of the time allowed for the filing of
Briefs. proposed findings, conclusions, and order,
8 308.11 or within such further time as the Board (a) Contents. All briefs shall be conof Directors for good cause shall deter fined to the particular matters in issue. mine, file with the Executive Secretary Each exception or proposed finding or of the Corporation and certify to the conclusion which is briefed shall be supBoard of Directors for decision the entire ported by a concise argument or by citarecord of the hearing, which shall in tion of such statutes, decisions or other clude his recommended decision, findings authorities and by page reference to such of fact, conclusions of law, and proposed portions of the record or recommended order, the transcript, exhibits (including decision of the administrative law judge on request of any of the parties any ex as may be relevant. If the exception rehibits excluded from evidence or tenders lates to the admission or exclusion of of proof), exceptions, rulings, and all evidence, the substance of the evidence briefs and memoranda filed in connec admitted or excluded shall be set forth tion with the hearing. Promptly upon in the brief with appropriate references such filing the Executive Secretary of the to the transcript. Corporation shall serve upon each party (b) Reply briefs. Reply briefs may be to the proceeding a copy of the admin filed with the Executive Secretary of the istrative law judge's recommended deci Corporation within 10 days after service sion, findings, conclusions, and proposed of briefs and shall be confined to matters order. The provisions of this paragraph in original briefs of opposing parties. and $ 308.10 shall not apply, however, Further briefs may be filed only with the In any case where the hearing was held permission of the Board of Directors. before the Board of Directors.
(c) Delays. Briefs not filed on or be132 FR 11147, Aug. 1, 1967, as amended at fore the time fixed in this subpart will 38 FR 14264, May 31, 1973)
be received only upon special permis& 308.10 Exceptions.
sion of the Board of Directors. (a) Filing. Within 15 days after serv
(32 FR 11147, Aug. 1, 1967, as amended at
38 FR 14264, May 31, 1973) ice of the recommended decision, findIngs, conclusions, and proposed order of $ 308.12 Oral argument before the the administrative law judge, or such
Board of Directors. further time as the Board of Directors
Upon its own initiative, or upon the for good cause shall determine, any party
written request of any party made within (other than a party who has not filed
the time prescribed for the filing of exan answer in accordance with para
ceptions, a brief in support thereof, or graphs (a) and (d) of $ 308.4, unless no
a reply brief, if any, for oral argument answer was required of such party by
on the findings, conclusions, and recomthe Board of Directors) may file with the
mended decision of the administrative Executive Secretary of the Corporation
law judge, the Board of Directors, if it exceptions thereto or any part thereof,
considers justice will best be served, may or to the failure of the administrative
order the matter to be set down for oral law judge to make any recommendation, finding, or conclusion, or to the admis
argument before the Board of Directors sion or exclusion of evidence, or other
or one or more members thereof. Oral ruling of the administrative law judge,
argument before the Board of Directors supported by such brief as may appear
shall be recorded unless otherwise oradvisable.
dered by the Board of Directors. (b) Waiver. Failure of a party to file 132 FR 11147. Aug. 1, 1967, as amended at exceptions to the recommended decision, 38 FR 14264, May 31, 1973)