1. (1) The presiding examiner shall require parties proposing to litigate issues in the proceeding to provide a list of specific issues they propose to litigate, in advance of or at an issues conference, along with a sufficient explanation of why litigation is necessary for each such issue. All issues to be litigated must be relevant. Issues and evidence are relevant if they assist the board in making the required findings pursuant to PSL section 168(2) and the required determinations pursuant to PSL section 168(3) including the considerations required by PSL section 168(4).
2. (2) All evidence submitted must be relevant and material. Evidence is material if it has the reasonable potential to affect the outcome of the board's findings or determinations under PSL section 168.
3. (3) Although relevant, evidence may be excluded if its value as proof is substantially outweighed by a potential for unfair prejudice, confusion of the issues, undue delay, or it is needlessly repetitious or duplicative. The presiding examiner may also preclude irrelevant, repetitive, redundant or immaterial evidence and irrelevant or unduly repetitious cross-examination.
4. (4) All rules of privilege will be observed.
5. (5) Other rules of evidence need not be strictly applied. Hearsay evidence may be admitted if a reasonable degree of reliability is shown.
6. (6) Where a part of a document is offered as evidence by one party, any party may offer the entire document as evidence or the presiding examiner may require the entire document to be submitted as evidence.
7. (7) Any party may move that evidence, including records and documents, in the possession of the DPS, or other public records, be received in evidence in the form of copies or excerpts or by incorporation by reference.
8. (8) Records or documents incorporated by reference will be available for examination by the parties before being received in evidence.
9. (9) Briefs and other documents that attempt to persuade through argument are not evidence and may not be entered into the evidentiary record of a proceeding.

10. (10) Any party may move that official notice be taken of:

    1. (i) facts of which judicial notice could be taken pursuant to rule 4511 of the Civil Practice Law and Rules; and
    2. (ii) other facts within the specialized knowledge of the board.

11. (11) When official notice is taken of a material fact of which judicial notice could not be taken and that does not appear in the evidence in the record, every party will be given notice thereof and will, on timely request, be afforded an opportunity to dispute such fact or its materiality prior to a decision granting or denying a certificate.

    (b) Burden of proof.

12. (1) The applicant has the burden of proof to demonstrate that all findings and determinations required by section 168 of the PSL can be made by the board, and after the board's jurisdiction has ceased, that all determinations required by the commission may be made.

13. (2) The burden of proof to sustain a motion is on the party making the motion.

    (c) Standard of proof.

    Whenever factual matters are involved, the party bearing the burden of proof must sustain that burden by a preponderance of the evidence unless a higher standard has been established by statute or regulation.

(a) Evidence.