§ 904.204 Duties and powers of Judge. The Judge has all powers and responsibilities necessary to preside over the parties and the hearing, to hold prehearing conferences, to conduct the hearing, and to render decisions in accordance with these regulations and 5 U.S.C. 554 through 557, including, but not limited to, the authority and duty to do the following: ( a ) Rule on timeliness of hearing requests pursuant to § 904.201(c);
( b ) Rule on a request to participate as a party in the hearing by allowing, denying, or limiting such participation (such ruling will consider views of the parties and be based on whether the requester could be directly and adversely affected by the determination and whether the requester can be expected to contribute materially to the disposition of the proceedings);
( c ) Schedule the time, place, and manner of conducting the pre-hearing conference or hearing, continue the hearing from day to day, adjourn the hearing to a later date or a different place, and reopen the hearing at any time before issuance of the decision, all in the Judge's discretion, having due regard for the convenience and necessity of the parties and witnesses;
( d ) Schedule and regulate the course of the hearing and the conduct of the participants and the media, including the power to rule on motions to close the hearing in the interests of justice; seal the record from public scrutiny to protect privileged information, trade secrets, and confidential commercial or financial information; and strike testimony of a witness who refuses to answer a question ruled to be proper;
( e ) Administer oaths and affirmations to witnesses;
( f ) Rule on contested discovery requests, establish discovery schedules, and, whenever the ends of justice would thereby be served, take or cause depositions or interrogatories to be taken and issue protective orders under § 904.251(h);
( g ) Rule on motions, procedural requests, and similar matters;
( h ) Receive, exclude, limit, and otherwise rule on offers of proof and evidence;
( i ) Examine and cross-examine witnesses and introduce into the record on the Judge's own initiative documentary or other evidence;
( j ) Rule on requests for appearance of witnesses or production of documents and take appropriate action upon failure of a party to effect the appearance or production of a witness or document ruled relevant and necessary to the proceeding; as authorized by law, issue subpoenas for the appearance of witnesses or production of documents;
( k ) Require a party or witness at any time during the proceeding to state his or her position concerning any issue or his or her theory in support of such position;
( l ) Take official notice of any matter not appearing in evidence that is among traditional matters of judicial notice; or of a non-privileged document required by law or regulation to be filed with or published by a duly constituted government body; or of any reasonably available public document; provided that the parties will be advised of the matter noticed and given reasonable opportunity to show the contrary;
( m ) Assess a civil penalty or impose a permit sanction, condition, revocation, or denial of permit application, taking into account all of the factors required by applicable law;
( n ) Prepare and submit a decision or other appropriate disposition document and certify the record;
( o ) Award attorney fees and expenses as provided by applicable statute or regulation;
( p ) Grant preliminary or interim relief; or
( q ) Impose, upon the motion of any party, or *sua sponte*, appropriate sanctions. ( 1 ) Sanctions may be imposed when any party, or any person representing a party, in an administrative proceeding under this part has failed to comply with this part, or any order issued under this part, and such failure to comply: ( i ) Materially injures or prejudices another party by causing additional expenses; prejudicial delay; or other injury or prejudice;
( ii ) Is a clear and unexcused violation of this part, or any order issued under this part; or
( iii ) Unduly delays the administrative proceeding.
( 2 ) Sanctions that may be imposed include, but are not limited to, one or more of the following: ( i ) Issuing an order against the party;
( ii ) Rejecting or striking any testimony or documentary evidence offered, or other papers filed, by the party;
( iii ) Expelling the party from the administrative proceedings;
( iv ) Precluding the party from contesting specific issues or findings;
( v ) Precluding the party from making a late filing or conditioning a late filing on any terms that are just;
( vi ) Assessing reasonable expenses, incurred by any other party as a result of the improper action or failure to act; and
( vii ) Taking any other action, or imposing any restriction or sanction, authorized by applicable statute or regulation, deemed appropriate by the Judge.
( 3 ) No sanction authorized by this section, other than refusal to accept late filings, shall be imposed without prior notice to all parties and an opportunity for any party against whom sanctions would be imposed to be heard. Such opportunity to be heard may be on such notice, and the response may be in such form as the Judge directs and may be limited to an opportunity for a party or a party's representative to respond orally immediately after the act or inaction is noted by the Judge.
( 4 ) The imposition of sanctions is subject to interlocutory review pursuant to § 904.254 in the same manner as any other ruling.
( 5 ) Nothing in this section shall be read as precluding the Judge from taking any other action, or imposing any restriction or sanction, authorized by applicable statute or regulation.
[71 FR 12448, Mar. 10, 2006, as amended at 75 FR 35632, June 23, 2010; 87 FR 38938, June 30, 2022]