§ 747.7 Subpenas.

(a) Issuance. The trial examiner, or in the event he is unavailable, the Administrator, 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 trial examiner or the Administrator 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 general relevance and reasonable scope of the testimony or other evidence sought. In the event the trial examiner or the Administrator, 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 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 5 days after the date of service of such subpena, with notice to the party requesting the subpena, apply to the trial examiner, or If he is unavailable, to the Administrator, 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 Administrator 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 Administration, 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 trial examiner.

(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 this part, may be required from 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 Administrator or trial examiner, 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 trial examiner or before any person designated by the Administrator or trial examiner and having power to administer oaths. Unless notice is waived, no deposition shall be taken except after at least 5 days' notice to the parties to the proceeding.

(f) Application and order to take oral deposition. Any party desiring to take the oral deposition of a witness, in connection with any hearing provided for in this part, shall make application in writing to the trial examiner or, in the event he is unavailable, to the Administrator, setting forth the reasons why such depositions should be taken, the name and address of the witness, the matters concerning which the witness is expected to testify, its relevance, and the time when, the place where, and the name and address of the person before whom, it is desired the deposition be taken. A copy of such application shall be served upon every other party to the proceeding by the party making such application. Upon showing that (1) the proposed witness will be unable to attend or may be prevented from attending the hearing because of age, sickness, or infirmity, or will otherwise be unavailable at the hearing, (2) his testimony will be material, and (3) the taking of the deposition will not result in any undue burden to any other party or in undue delay of the proceeding, the trial examiner or the Administrator may, in his discretion. by such subpena or subpena duces tecum, order the oral deposition to be taken. Such subpena will name the witness whose deposition is to be taken and specify the time when, the place where and the person before whom the witness is to testify, but such time and place, and

the person before whom the deposition is ordered to be taken, may or may not be the same as those named in the application. Notice of the issuance of such subpena shall be served upon each of the parties a reasonable time, and in no event less than 5 days, in advance of the time fixed for the taking of the deposition.

(g) Procedure on deposition; objections. Each witness testifying upon oral deposition shall be duly sworn, and the adverse party shall have the right to cross-examine. Objections to questions or evidence shall be in short form, stating the grounds of objection relied upon; but the person taking the deposition shall not have the power to rule upon questions of competency or materiality or relevance of evidence. Failure to object to questions or evidence shall not be deemed a waiver except where the ground of the objection is one which might have been obviated or removed if presented at that time. The questions propounded and the answers thereto, together with all objections made (but not including argument or debate) shall be recorded by the person taking the deposition, or under his direction. The deposition shall be subscribed by the witness, unless the parties by stipulation waived the signing or the witness is ill or cannot be found or refused to sign, and certified as a true and complete transcript thereof by the person taking the deposition. If the deposition is not subscribed to by the witness, the person taking the deposition shall state this fact on the record and the reason therefor. Such person shall promptly send the original and two copies of such deposition, together with the original and two copies of all exhibits, by registered mail to the Administrator unless otherwise directed in the order authorizing the taking of the deposition. Interested parties shall make their own arrangements with the person taking the deposition for copies of the testimony and the exhibits.

(h) Introduction as evidence. Subject to appropriate rulings on such objections to questions of evidence as were noted at the time the deposition was taken or as would be valid were the witness personally present and testifying (except objections waived under paragraph (g) of this section), the deposition or any part thereof may be read in evidence by any party to the proceeding. Only such part or the whole of a deposition as is re

ceived in evidence shall constitute a part of the record of the proceeding upon which a decision may be based.

(1) Payment of fees. Witnesses whose oral depositions are taken shall be entitled to the same fees as are paid for like services in the district courts of the United States. Fees of persons taking such depositions and the fees of the reporter shall be paid by the person upon whose application the deposition was taken.

(j) Judicial enforcement. Any party to proceedings under this part may apply to the United States District Court for the District of Columbia, or the United States district court for the judicial district or the United States court in any territory in which such proceeding is being conducted, or where the witness resides or carries on business, for enforcement of any subpena or subpens duces tecum issued pursuant to this part, and such courts shall have jurisdiction and power to order and require compliance therewith.

8747.8 Rules of evidence.

(a) Evidence. Every party shall have the right to present his case or defense by oral and documentary evidence, to submit rebuttal evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded.

(b) Objections. Objections to the admission or exclusion of evidence shall be in short form, stating the grounds relied upon, and the transcript shall not include argument thereon except as ordered, allowed, or requested by the trial examiner. Rulings on objections and on any other matters shall be a part of the transcript. Failure to object to admission or exclusion of evidence or to any ruling shall be considered a waiver of such objection.

(c) Official notice. All matters offcially noticed by the trial examiner shall appear on the record.

§ 747.9 Motions.

(a) In writing. An application or request for an order or ruling not otherwise specifically provided for in this part shall be made by motion. After a trial examiner has been designated and before the filing with the Administrator of his recommended decision, such applications or requests shall be addressed

to and filled with the trial examiner. At all other times motions shall be addressed to and filed with the Administrator. Motions shall be in writing, except that a motion made at a session of a hearing may be made orally upon the record unless the trial examiner directs that it be reduced to writing. All written motions shall state with particularity the order or relief sought and the grounds therefor.

(b) Objections. Within 5 days after service of any written motion, or within such other period as may be fixed by the trial examiner or the Administrator, any party may file a written answer or objection to such motion. The moving party shall have no right to reply, except as permitted by the trial examiner or the Administrator. As a matter of discretion, the trial examiner or the Administrator may waive the requirements of this section as to motions for extensions of time, and may rule upon such motions ex parte.

(c) Oral argument. No oral argument will be heard on motions except as otherwise directed by the trial examiner or the Administrator. Written memoranda or briefs may be filed with motions or answers or objections thereto, stating the points and authorities relied upon in support of the position taken.

(d) Rulings on motions. Except as otherwise provided in this part, the trial examiner shall rule upon all motions properly addressed to him and upon such other motions as the Administrator directs, except that if the trial examiner finds that a prompt decision by the Administrator on a motion is essential to the proper conduct of the proceeding, he may refer that motion to the Administrator for decision. The Administrator shall rule upon all motions properly submitted to him for decision.

(e) Appeal from rulings on motions. All motions and answers or objections thereto and rulings thereon shall become a part of the record. Rulings of a trial examiner on any motion may not be appealed to the Administrator prior to his consideration of the trial examiner's recommended decision, findings, and conclusions except by special permission of the Administrator; but they shall be considered by the Administrator in reviewing the record. Requests to the Administrator for special permission to appeal from such rulings of the trial examiner shall be filed promptly, in writ

ing, and shall briefly state the grounds relied upon. The moving party shall immediately serve a copy thereof on every other party to the proceeding.

(f) Continuation of hearing. Unless otherwise ordered by the trial examiner or the Administrator, the hearing shall be continued pending the determination of any motion by the Administrator. § 747.10 Proposed findings and conclusions and recommended decision.

(a) Proposed findings and conclusions by parties. Each party to a hearing shall have a period of 15 days after service of the Administrator's notice of the filing and transmittal of the record as provided in § 747.6(e), or such further time as the trial examiner for good cause shall determine, to file with the trial examiner proposed findings of fact, conclusions of law, and orders which may be accompanied by a brief or memorandum in support thereof. Such proposals shall be supported by citation of those statutes, decisions, and other authorities which may be relevant and by page references to appropriate parts of the record. All such proposals, briefs, and memoranda shall become a part of the record.

(b) Recommended decision and filing of record. The trial examiner shall, within 30 days after the expiration of the time allowed for the filing of proposed findings, conclusions, and order, or within such further time as the Administrator for good cause shall determine, file with and certify to the Administrator for decision the entire record of the hearing, which shall include his recommended decision, findings of fact, conclusions of law, and proposed order, the transcript, exhibits (including on request of any of the parties any exhibits excluded from evidence or tenders of proof), exceptions, rulings, and all briefs and memoranda filed in connection with the hearing. Promptly upon such filing the Administrator shall serve upon each party to the proceeding a copy of the trial examiner's recommended decision, findings, conclusion and proposed order. The provisions of this paragraph and 8747.11 shall not apply, however, in any case where the hearing was held before the Administrator. § 747.11

Exceptions.

(a) Filing. Within 15 days after service of the recommended decision, findings, conclusions, and proposed order of the

trial examiner, or such further time as the Administrator for good cause shall determine, any party (other than a party who has not filed an answer in accordance with paragraphs (a) and (d) of § 747.4, unless no answer was required of such party by the Administrator) may file with the Administrator exceptions thereto or any part thereof, or to the failure of the trial examiner to make any recommendation, finding, or conclusion, or to the admission or exclusion of evidence, or other ruling of the trial examiner, supported by such brief as may appear advisable.

(b) Waiver. Failure of a party to file exceptions to the recommended decision, findings, conclusions, and proposed order of the trial examiner or any portion thereof, or to his failure to adopt a proposed finding or conclusion, or to the admission or exclusion of evidence or other ruling of the trial examiner, within the time prescribed in paragraph (a) of this section, shall be deemed a waiver of objection thereto. 747.12

Briefs.

(a) Contents. All briefs shall be confined to the particular matters in issue. Each exception or proposed finding or conclusion which is briefed shall be supported by a concise argument or by citation of such statutes, decisions or other authorities and by page references to such portions of the record or recommended decision of the trial examiner as may be relevant. If the exception relates to the admission or exclusion of evidence, the substance of the evidence admitted or excluded shall be set forth in the brief with appropriate references to the transcript.

(b) Reply briefs. Reply briefs may be filed with the Administrator within 10 days after service of briefs and shall be confined to matters in original briefs of opposing parties. Further briefs may be filed only with the permission of the Administrator.

(c) Delays. Briefs not filed on or before the time fixed in this subpart will be received only upon special permission of the Administrator.

§ 747.13 Oral argument before the Administrator.

Upon its own initiative, or upon the written request of any party made within the time prescribed for the filing of exceptions, a brief in support thereof, or a

reply brief, if any, for oral argument on the findings, conclusions, and recommended decision of the trial examiner, the Administrator, if he considers that justice will best be served, may order the matter to be set down for oral argument before him. Oral argument before the Administrator shall be recorded unless otherwise ordered by the Administrator. § 747.14 Notice of submission to the Administrator.

Upon the filing of the record with the Administrator, and upon the expiration of the time for the filing of exceptions and all briefs, including reply briefs or any further briefs permitted by the Administrator and upon the hearing of oral argument by the Administrator if ordered by the Administrator, the Administrator shall notify the parties that the case has been submitted to him for final decision.

§ 747.15 Decision of the Administrator.

Appropriate members of the staff of the National Credit Union Administration, who are not engaged in the performance of investigative or prosecuting functions in the case, or in a factually related case, may advise and assist the Administrator in the consideration of the case and in the preparation of appropriate documents for its disposition. Copies of the decision and order of the Administrator shall be furnished to the parties to the proceedings, the credit union involved, and to the appropriate State supervisory authority, in the case of a State-chartered credit union. § 747.16 Filing papers.

Recommended decisions, exceptions, briefs and other papers required to be filed with the Administrator in any proceedings shall be filed with the Administrator, National Credit Union Administration, Washington, DC 20456. Any such papers may be sent to the Administrator by mail but must be received in the office of the Administrator in Washington, D.C., or post marked by a post office, within the time limit for such filing. 136 FR 11855, June 22, 1971, as amended at 38 FR 7218, Mar. 19, 1973]

§ 747.17 Service.

(a) By the Administrator. All documents or papers required to be served by the Administrator upon any party afforded a hearing shall be served by him

or his duly authorized representative. Such service, except for service upon counsel for the Administration, shall be made by personal service or by registered mail, addressed to the last known address as shown on the records of the Administration, on the attorney or representative of record of such party, Provided, That if there is no attorney or representative of record, such service shall be made upon such party at the last known address as shown on the records of the Administration. Such service may also be made in such other manner reasonably calculated to give actual notice as the Administrator may by regulation or otherwise provide.

(b) By the parties. Except as otherwise expressly provided in this Part, all documents or papers filed in a proceeding under this part shall be served by the party filing the same upon the attorneys or representatives of record of all other parties to the proceeding, or, if any party is not so represented, then upon such party. Such service may be made by personal service or by registered or certified mail addressed to the last known address of such parties, or their attorneys or representatives of record. All such documents or papers shall, when tendered to the Administrator or trial examiner for filing, show that such service has been made.

(c) Copies of any notice or order served by the Administrator upon any State-chartered credit union or any director, officer, or committee member thereof or other person participating in the conduct of its affairs, pursuant to the provisions of this part, shall also be sent to the appropriate State supervisory authority having supervision of such credit union.

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of time begins to run is not to be included. The last day so computed shall be included, unless it is a Saturday, Sunday or legal holiday in the District of Columbia, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, nor such legal holiday. Intermediate Saturdays, Sundays, and legal holidays shall be included in the computation unless the time within which the act is to be performed is 10 days or less in which event Saturdays, Sundays, and legal holidays shall not be included.

(b) Service by mail. Whenever any party has the right or is required to do some act or take some proceeding, within a period of time prescribed in this part, after the service upon him of any document or other paper of any kind, and such service is made by mail, 3 days shall be added to the prescribed period from the date when the matter served is deposited in the U.S. mail.

§ 747.20 Documents in proceedings confidential.

Unless and until otherwise ordered by the Administrator, the notice of hearing, the transcript, the recommended decision of the trial examiner, exceptions thereto, proposed findings or conclusions, the findings and conclusions of the Administrator and other papers which are filed in connection with any hearing shall not be made public, and shall be for the confidential use only of the Administrator, the trial examiner, the parties and appropriate authorities.

8 747.21 Formal requirements as to papers filed.

(a) Form. All papers filled under this subpart shall be printed, typewritten, or otherwise reproduced. All copies shall be clear and legible.

(b) Signature. The original of all papers filed by a credit union shall be signed by an officer thereof, and if filed by another party shall be signed by said party, or by the duly authorized agent or attorney of the credit union or other party, and in all such cases shall show the signer's address. Counsel for the Administration shall sign the original of all papers filed by him.

(c) Caption. All papers filled must include at the head thereof, or on a title page, the name of the Administration, the name of the party, and the subject of the particular paper.