be

(e) Public Access to Oral Hearing. All oral hearings, except those involving employee grievances, shall public unless, for good cause shown, a closed hearing is ordered by the judge.

(f) Witnesses. Subpoenaed witnesses shall be paid the same fees and mileage costs as are paid in the Federal courts. The party who requests the witness's presence shall be responsible for paying such fees. Except in the case of subpoenas issued on behalf of a Federal government entity, one day's fees and mileage costs shall be tendered to the subpoenaed witness at the time of service of the subpoena. Subsequent entitlements shall be payable following the appearance and release of the witness.

(g) Recording and Transcripts. Oral hearings will be recorded verbatim. The judge may make a final, initial or recommended decision without having an official transcript of the record, unless a transcript is required pursuant to statute or to rules set forth in this chapter. A transcript or copies of a recording may be obtained by the parties upon request to the recording service. Any fees in connection therewith shall be the responsibility of the parties.

[49 FR 33630, Aug. 24, 1984, as amended at 54 FR 34748, Aug. 21, 1989]

§ 134.20 Prehearing conferences.

(a) Nature of Prehearing Conference. The judge, upon motion of any party or upon his or her own motion, may direct all parties or their counsel to confer and consider:

(1) Simplification, clarification, compromise, or settlement of the issues;

(2) Necessity and desirability of amendments to the pleadings;

(3) Stipulations, admissions of fact, and the contents, admissibility, and authenticity of documents;

(4) Where an oral hearing is involved, expedition in the presentation of evidence, including, but not limited to, restriction of the number of witnesses;

(5) A statement of the issues as they then appear;

(6) A proposed plan and schedule of discovery;

(7) Any limitations proposed to be placed on discovery; and

(8) Such other matters as may aid in the orderly disposition of the proceeding, including disclosure of the names of witnesses and furnishing for inspection or copying of non-privileged documents, papers, books, or other physical exhibits, which constitute or contain evidence relevant to the subject matter involved and which are in the possession, custody, or control of any party to the proceeding.

(b) Record of Prehearing Conference. A pre-hearing conference may be conducted by telephone or in person at a time and place convenient to all parties, and, in the discretion of the judge, may be recorded verbatim.

(c) Order. After such prehearing conference, the judge will issue an order that recites the actions taken and the agreements made. Such order shall control the subsequent course of the proceeding, unless modified.

(a) Filing and Service. Except where the judge permits an oral motion to be made at a conference, or on the record in an oral hearing or telephone conference, all motions shall be written, shall be filed with the Office, and shall be served upon all parties in accordance with §§ 134.14 and 134.15 of this part.

(b) Contents of Motion. All motions shall state the particular order, ruling, or action requested and the grounds and authority therefor.

(c) Answer and Filing of Briefs. No later than ten days after the service of any motion, or within such time as the judge may direct for good cause shown, the opposing party shall serve and file an answer to the motion, or be deemed to have consented to the relief sought. The moving party shall have no right to reply, except as permitted by the judge. No oral argument will be heard on motions unless the judge directs otherwise. Written briefs may be filed with motions and with answers thereto.

(d) Disposition of Motion. All motions shall be ruled upon by the judge assigned, unless the judge is unavailable. In that event, if circumstances warrant, such motion may be acted upon by the Assistant Administrator

or

the Chief Administrative Law Judge of the Office, as appropriate.

§ 134.22 Summary decision.

(a) Motion for Summary Decision. Any party who believes that there is no genuine issue of material fact of decisional significance, and that he or she is entitled to a decision as a matter of law, may move for a summary decision as to all or any part of the proceeding.

(b) Contents of Motion. The motion shall include a statement of the facts as to which the moving party contends there is no genuine issue, shall be supported by the pleadings, and may be accompanied by affidavits and a legal memorandum or brief.

(c) Answer to Motion. No later than 20 days after the service of the motion, any other party may serve and file an opposition thereto, and may countermove for summary decision in his or her favor.

(d) Order. When a motion for summary decision is granted, the judge will issue an appropriate order as to the issues SO determined. If the motion is denied, in whole or in part, the judge will issue an order specifying those facts about which there is no genuine issue and those material facts of decisional significance found to be controverted in good faith. Further proceedings will then be ordered.

§ 134.23 Interlocutory appeals.

(a) General Rules. An interlocutory appeal is an appeal of a ruling made by a judge during the course of the proceeding, other than a ruling on a request for recusal or a ruling that is fully dispositive of the proceeding. A motion for leave to take an interlocutory appeal will not be entertained in those proceedings specified

in

§ 134.32(a) (2), (3), and (4) of this part, in which the judge's decision is the final decision of the Agency, or in formal employee grievances. In all other proceedings, an interlocutory appeal shall not be permitted unless, upon motion by a party, or upon the judge's determination, the judge certifies that the question presented is immediately appealable. Interlocutory appeals from a ruling by a judge will be decided by the Agency reviewing of

ficial identified in the applicable substantive regulations governing the proceeding.

(b) Motion for Certification. A party seeking leave to take an interlocutory appeal shall file a motion for certification no later than 10 days after issuance of the ruling to which the motion applies. The motion shall include arguments in support of both the certification and the relief requested on the merits.

(c) Basis for Certification. The judge will certify a ruling for interlocutory review only if he or she determines that:

(1) The ruling involves an important question of law or policy regarding which there are substantial grounds for a difference of opinion; and

(2) An immediate review will materially expedite completion of the proceeding or denial of review would cause undue hardship to a party or the public.

(d) Order. The judge will issue expeditiously an order granting or denying a motion for certification and, if certification is granted, will refer the record to the Agency reviewing official. If certification is denied, the issue may be raised in any appeal of the judge's decision on the merits.

(e) Stay of Proceeding. A stay of the proceeding, while an interlocutory appeal is pending, shall be at the discretion of the judge.

[49 FR 33630, Aug. 24, 1984, as amended at 54 FR 34748, Aug. 21, 1989]

§ 134.24 Discovery.

(a) Except as provided in paragraph (b) of this section, in the judge's discretion, and upon motion, a party may obtain discovery in the form of requests for admissions, interrogatories, depositions, or requests for production of documents, regarding any matter, not privileged, that is relevant to the subject matter of the proceeding. It is not a ground for objection that the information sought will be inadmissible, if it appears reasonably calculated to lead to the discovery of admissible evidence. The judge will ordinarily limit the length of time allowed for discovery consistent with the exigencies of the proceeding.

50-041 0-91--18

(b) For purposes of proceedings relating to the Minority Small Business and Capital Ownership Development Program (8(a) Program), the Administrative Law Judge may permit discovery in accordance with paragraph (a) of this section only if the determination(s) required by

§ 124.210(h) has (have) first been made.

[49 FR 33630, Aug. 24, 1984, as amended at 54 FR 34748, Aug. 21, 1989]

§ 134.25 Subpoenas.

(a) Scope. A request for the issuance of a subpoena requiring a witness to appear and testify at a specific place and time or production of documents shall be made to the judge, except that subpoenas shall not be authorized for any proceeding relative to internal Agency determinations, e.g. formal employee grievances and arbitrations.

(b) Requests. Requests for subpoenas may be made on the record at the oral hearing or ex parte by written application, in triplicate. All requests shall clearly identify the person subpoenaed and shall be supported by a showing of the relevance, scope and materiality of the evidence sought. Requests for a subpoena duces tecum shall specify with particularity the books, papers, and documents desired and the facts expected to be provided thereby, and shall be affirmed in accordance with § 134.15 of this part.

(c) Service. The following rules shall apply to service of subpoenas:

(1) Service of a subpoena shall be made by any person who is over 18 years of age, or by certified mail, return receipt requested.

(2) Service of a subpoena by a person other than a United States Marshal or Deputy shall be attested by the person making such service. The attesting affidavit shall state the date, time, and method of service.

(3) In the case of service by certified mail, a copy of the document shall be addressed to the person or business entity to be served, at its residence, principal office or place of business. The return receipt shall be proof of service of the document.

(d) Motion to Quash. Motions to limit or quash a subpoena shall be served and filed no later than 10 days

If any party fails to comply with a written or oral order of the judge, the judge may impose appropriate sanctions including, but not limited to:

(a) Drawing an inference in favor of a party regarding the information sought;

(b) Prohibiting the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon, evidence relating to the information sought;

(c) Permitting the requesting party to introduce secondary evidence concerning the information sought;

(d) Striking any part of the pleadings of the party failing to comply with such request; or

(e) Taking such other appropriate action as is deemed necessary to serve the ends of justice.

§ 134.28 Evidence.

(a) Applicability of the Federal Rules of Evidence. Unless otherwise provided by statute or this part, the Federal Rules of Evidence may be used as a general guide in all proceedings subject to this part.

(b) Admissibility. All material, relevant, and otherwise reliable information is admissible, but may be ex

cluded if its probative value is substantially outweighed by unfair prejudice or confusion of the issues, or if it is needlessly cumulative. Introduction of hearsay evidence will be permitted when it is deemed reliable, probative, material and relevant. Irrelevant, immaterial or unduly repetitious evidence shall be excluded.

(c) Parties' Rights to Present Evidence or Witnesses. The parties shall have the following rights regarding the presentation of evidence and wit

nesses:

(1) When an oral hearing or a telephone conference has been provided, a party shall be entitled to present his or her case or defense by oral, documentary and physical evidence, by depositions, and by duly authenticated copies of records and documents, to submit rebuttal evidence, and to conduct reasonable cross-examination.

(2) When no oral hearing or telephone conference has been provided, a party shall be entitled to present his or her case or defense by documentary and physical evidence, by depositions, and by duly authenticated copies of records and documents.

(d) Objections. Motions objecting to the admission of evidence, or to the conduct of the proceeding, may be made orally on the record where an oral hearing or telephone conference has been provided, or shall be served and filed in accordance with § 134.21(a) of this part, and shall include a short statement of the grounds therefor. Argument thereon, or briefs or legal memoranda, if requested by the judge, shall be included in the record. Rulings on objections will be made at the time of the objection or prior to the receipt of further evidence, unless the judge orders otherwise, and will be a part of the record. No objections shall be deemed waived by further participation in the proceeding and an automatic exception shall be deemed applicable to every adverse ruling.

(f) Exhibits. All exhibits offered into evidence shall be numbered and marked so as to identify the party offering the exhibit and shall be filed with the judge in accordance with a pre-trial order or, if there is no pretrial order, no later than seven days prior to the oral hearing or telephone conference. Copies of all such exhibits shall be served simultaneously upon the opposing party in the proceeding. Admission of exhibits not so served shall be within the judge's discretion. Any information that constitutes proprietary or confidential information may be made the subject of a motion for a protective order.

(g) Offer of proof. Whenever evidence is excluded by the judge, the offering party may make an offer of proof of what the party expects to establish with respect thereto. In the case of an oral hearing or telephone conference, if the offer of proof consists of an oral statement, it shall be included in the record. If the offer of proof consists of an exhibit or other documentary evidence, it shall be marked for identification and retained in the record so as to be available for consideration by any reviewing authority.

(a) Docket File. Upon commencement of a proceeding, the matter will be assigned a docket number. The docket file will consist of the petition, order to show cause or notice, all other pleadings, motions, judge's orders and decisions, evidence admitted into evidence during the proceeding, and any oral hearing or telephone conference record. Public access to such file shall be permitted as follows:

(1) Except as provided in paragraph (a)(2) of this section, the docket file will be available for public inspection at the Office during normal business hours, and copies of such material may be obtained upon payment of the applicable charges;

(2) The following information in the docket file shall not be subject to public inspection or copying:

(i) Information subject to a protective order issued pursuant to § 134.18(c) of this part;

amount loaned but not repaid or otherwise due, plus interest accrued to the date of referral, penalties, and costs, including any fee charged by the Internal Revenue Service. If a note has not been accelerated, the principal amount eligible for offset is limited to the principal portion of installments due, but not paid, as of the day of referral.

(4) Notice. Notice means the information sent to the debtor pursuant to paragraph (c) of this section. The information may be included on or with a bill or monthly statement. The date of notice is three days after mailing by SBA.

(5) Dispute. A dispute is a written statement that all or part of an alleged debt is not past due or is not legally enforceable supported by documentation or other evidence. Offers of compromise, repayment plans, requests for deferrals and other requests or offers are not disputes.

(b) Referral. SBA may request the IRS to offset any tax refund payable to an individual who has a past due, legally enforceable debt of $25.00 or more due to the Agency. SBA shall make the referral in the form and on the dates prescribed by the IRS.

(c) Notice. Before making a referral, SBA will mail a notice to the debtor's last known address stating that SBA intends to refer the debt to IRS for a tax refund deduction unless the debtor pays the past due amount or disputes the debt according to the procedures explained below within 60 days. The notice will include an address where disputes must be sent.

(d) Other preconditions. Prior to referring a debt, SBA will:

(1) Disclose the loan status to a consumer reporting agency as provided by 31 U.S.C. 3711(f) and implemented in 13 CFR 140.3; and

(2) Satisfy any other conditions prescribed by the Secretary of the Treasury in 26 CFR 301.6402-6T or other regulations.

(e) Disputes. A debtor may request a review by SBA if the debtor believes that all or part of the debt is not past due or legally enforceable as follows:

(1) The debtor must send a written request for review to the address provided in the notice.

(2) The request must state the amount disputed and the reasons why the debtor believes that the debt is not past due or is not legally enforceable.

(3) The request must include any documents which the debtor wishes to be considered or state that additional information will be submitted within the time permitted.

(4) The request, and any additional information submitted pursuant to paragraph (e)(3) of this section, must be received by SBA, at the address stated in the notice, within 60 days of the notice provided for in paragraph (c) of this section.

(f) Reviews. The SBA field office responsible for servicing a debt will review disputes. SBA shall consider any documentation and arguments submitted by the debtor and agency records. A decision that any disputed portion of the debt is eligible to be referred shall be reviewed and concurred in by a supervisory official. SBA shall send a written notice of the decision to the debtor.

(g) Change in amount due. SBA will notify IRS of any reduction in the amount due within 10 business days of receipt of payments or notice of other reductions. SBA will not report increases in the amount due after the original referral. However, any fee charged by IRS may be imposed and added to the balance at the time of offset.

(g) Prior reviews. Any debt which has been reviewed pursuant to this section, or any other section of this part, or which has been reduced to a judgment, may not be disputed except on the grounds of payments made, or events occurring, subsequent to the previous review.

(h) Simultaneous referrals. SBA may refer a debt to IRS for a tax refund offset and take additional action at the same time or in sequence. Such additional action may include, but is not limited to, disclosing the debt to a consumer reporting agency as permitted by 31 U.S.C. 3711(f) and 13 CFR 140.3. When SBA makes simultaneous or sequential referrals, only one review is required, provided that:

(1) SBA gives notice of each intended action at least 60 days before the first action;