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Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / Rules and Regulations issues a subpoena, a check for witness fees and mileage need not accompany the subpoena.
g A party, or the individual to whom the subpoena is directed, may file with the ALJ a motion to quash the subpoena within ten days after service, or on or before the time specified in the subpoena for compliance if it is less than ten days after service.
1174.24

Protective orders.

a A party, prospective witness, or deponent may file a motion for a protective order that seeks to limit the availability or disclosure of evidence with respect to discovery sought by an opposing party or with respect to the hearing.
b In issuing a protective order, the ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
1 That the parties shall not have discovery;
2 That the parties shall have discovery only on specified terms and conditions;
3 That the parties shall have discovery only through a method of discovery other than requested;
4 That the parties shall not inquire into certain matters, or that the parties shall limit the scope of discovery to certain matters;
5 That the parties shall conduct discovery with no one present except persons designated by the ALJ;
6 That the parties shall seal the contents of the discovery;
7 That a sealed deposition shall be opened only by order of the ALJ;
8 That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation shall not be disclosed or shall be disclosed only in a designated way; or 9 That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as the ALJ
directs.

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1174.25 Filing and serving documents with the ALJ.

a Documents filed with the ALJ must include an original and two copies.
Every document filed in the proceeding must contain a title e.g., motion to quash subpoena, a caption setting forth the title of the action, and the case number assigned by the ALJ. Every document must be signed by the person
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on whose behalf the paper was filed, or by his or her representative.
b Documents are considered filed when they are mailed. The mailing date may be established by a certificate from the party or its representative, or by proof that the document was sent by certified or registered mail.
c A party filing a document with the ALJ must, at the time of filing, serve a copy of such document on every other party. When a party is represented by a representative, the partys representative must be served in lieu of the party.
d A certificate from the individual serving the document constitutes proof of service. The certificate must set forth the manner in which the document was served.
e Service upon any party of any document other than the complaint must be made by delivering a copy or by placing a copy in the United States mail, postage prepaid and addressed to the partys last known address.
f If a party consents in writing, documents may be sent electronically.
In this instance, service is complete upon transmission unless the serving party receives electronic notification that transmission of the communication was not completed.
1174.26

Computation of time.

a In computing any period of time under this part or in an order issued under it, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday that is observed by the Federal government, in which event it includes the next business day.
b When the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays that are observed by the Federal government are excluded from the computation.
c Where a document has been served or issued by placing it in the mail, an additional five days will be added to the time permitted for any response.
1174.27
proof.

The hearing and the burden of
a The ALJ conducts a hearing in order to determine whether a defendant is liable for a civil penalty, assessment, or both and, if so, the appropriate amount of the penalty and/or assessment.
b The hearing will be recorded and transcribed. The transcript of testimony, exhibits and other evidence admitted at the hearing, and all papers and requests filed in the proceeding, constitute the record for the ALJs and the authority heads decisions.

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c The hearing will be open to the public unless otherwise ordered by the ALJ for good cause shown.
d The authority must prove a defendants liability and any aggravating factors by a preponderance of the evidence.
e A defendant must prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.
1174.28

Presentation of evidence.

a The ALJ shall determine the admissibility of evidence.
b Except as provided in this part, the ALJ shall not be bound by the Federal Rules of Evidence, but the ALJ may apply the Federal Rules of Evidence where he or she deems appropriate.
c The ALJ shall exclude irrelevant and immaterial evidence.
d The ALJ may exclude evidence, although relevant, if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.
e The ALJ shall exclude evidence, although relevant, if it is privileged under Federal law.
f Evidence concerning compromise or settlement offers shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.
g The ALJ shall permit the parties to introduce rebuttal witnesses and evidence.
h All documents and other evidence taken for the record must be open to examination by all parties unless the ALJ orders otherwise.
1174.29

Witness testimony.

a Except as provided in paragraph b of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.
b At the ALJs discretion, the ALJ
may admit testimony in the form of a written statement or deposition. The party offering such a statement must provide it to all other parties along with the last known address of the witness, in a manner which allows sufficient time for other parties to subpoena the witness for cross-examination at the hearing. The parties shall exchange deposition transcripts and prior written statements of witnesses proposed to testify at the hearing as provided in 1174.22.
c The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence.
d The ALJ shall permit the parties to conduct such cross-examination as may
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