party shall file an answer to the motion or request or shall be deemed to have no objection to the granting of the relief asked for in the motion or request. Unless permitted by the Secretary or Administrative Law Judge, the complainant shall have no right to reply to the answer.

(e) Certification to Secretary. The submission or certification of any motion, request, objection or other question to the Secretary prior to the time when the Administrative Law Judge's Recommended Decision is filed with the Hearing Clerk shall be in the discretion of the Administrative Law Judge, except as provided in this section. The Administrative Law Judge may either rule upon or certify the motion, request, objection, or other question, but not both.

§ 202.17 Procedure upon failure to request oral hearing or waiver of oral hearing.

(a) General. Failure to request an oral hearing within the time allowed for the filing of the answer shall constitute a waiver of such hearing. Except as provided in § 202.18, upon such failure to request an oral hearing, or upon express waiver of such hearing, by the parties, the parties shall have a period of 20 days from the final date for filing the answer in which to file sworn statements or affidavits in support of their respective positions. Within a reasonable time thereafter, the Examiner shall issue his Recommended Decision, which shall be served upon the parties in the manner provided in § 202.27: Provided, however, That if such sworn statements or affidavits raise any material issue of fact, the Administrative Law Judge may afford the parties an opportunity to submit sworn statements or affidavits in reply or supplemental thereto or he may set the matter down for an oral hearing with respect to such material issues of fact. In the event the matter is set down for oral hearing, the rules in § 202.19 shall be applicable.

(b) Exceptions to Administrative Law Judge's Recommended Decisions. Within 30 days after service of the Administrative Law Judge's Recommended Decision, the parties may take exception to any matter set out in such report, and in such case shall file exceptions in writing with the Hearing Clerk suggesting corrected findings of fact, conclusions, or order. A party may file a brief in support of any exceptions or objections which he

may file. A party, if he files exceptions, shall state in writing whether he desires to make an oral argument thereon before the Secretary in the manner provided in § 202.23; otherwise he shall be deemed to have waived such oral argument.

(c) Final order. As soon as practicable after the expiration of the period for filing exceptions and briefs, or, in case oral argument is had, and as soon as practicable thereafter, the Secretary shall issue his final decision and order, including his ruling on any exceptions filed by the parties. The order shall be served upon the parties in the manner provided in § 202.27.

[36 F.R. 1316, Jan. 27, 1971, as amended at 36 F.R. 2959, Feb. 13, 1971]

§ 202.18 Procedure upon admission of facts.

(a) General. Failure to file an answer shall constitute an admission of all the material allegations of fact contained in the complaint. The admission, in the answer or by failure to file an answer, of all the material allegations of fact contained in the complaint, shall constitute a waiver of oral hearing. Upon such admission of facts, the Administrative Law Judge, without further procedure or hearing, shall issue his Recommended Decision, in which he shall adopt as his proposed findings of fact the material facts alleged in the complaint. The Administrative Law Judge's Recommended Decision shall be served upon the parties in the manner provided in § 202.27.

(b) Exceptions to Administrative Law Judge's report. Within 10 days after service of the Administrative Law Judge's Recommended Decision parties may take exception to any matter set out in such Recommended Decision, and in such case shall file exceptions in writing with the Hearing Clerk suggesting corrected findings of fact, conclusions, or order. A party may file a brief in support of any exceptions or objections which he may file. A party, if he files exceptions, shall state in writing whether he desires to make an oral argument thereon before the Secretary in the manner provided in § 202.23; otherwise he shall be deemed to have waived such oral argument.

(c) Final order. As soon as practicable after the expiration of the period for filing exceptions and briefs, or, in case oral argument is had, as soon as practicable thereafter, the Secretary shall issue his

final decision and order, including his ruling on any exceptions filed by the parties. The decision and order shall be served upon the parties in the manner provided in § 202.27.

§ 202.19 Procedure upon request for an oral hearing.

(a) Time and place of hearing. If and when the proceeding has reached the stage where an oral hearing is to be held, the Administrative Law Judge, giving careful consideration to the convenience of the parties, shall set a time and place of hearing and shall file with the Hearing Clerk a notice stating the time and place of hearing. If any change in the time or place of the hearing is made, the Administrative Law Judge shall file with the Hearing Clerk a notice of such change, which notice shall be served upon the parties, unless it is made during the course of an oral hearing and made a part of the transcript.

(b) Appearances (1) Representation. The parties may appear in person or by counsel or other representative. Parties who appear in person and persons who appear as counsel or in a representative capacity must conform to the standards of ethical conduct required of practitioners before the courts of the United States. Whenever the Secretary finds, after notice and opportunity for hearing, that a person, who is acting or has acted as counsel or representative for another person in any proceeding before the Secretary, is unfit to act as such representative or counsel, he will order that such person be precluded from acting as counsel or representative in any proceeding under the Act. The procedure in such case will be governed by the applicable provisions of this part.

(2) Failure to appear. If any party to the proceeding, after being duly notified, fails to appear at the hearing, he shall be deemed to have waived the right to an oral hearing in the proceeding. In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present shall have an election whether to present his evidence, in whole or in part, in the form of affidavits or by oral testimony before the Administrative Law Judge. Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the Administrative Law Judge's Recommended Decision and to

file exceptions and make oral argument before the Secretary with respect thereto, in the manner provided in §§ 202.19 (h) and 202.23.

(c) Order of proceeding. Except as may be determined otherwise by the Administrative Law Judge, the complainant shall proceed first at the hearing.

(d) Evidence-(1) General. The testimony of witnesses at the hearing shall be upon oath or affirmation and subject to cross-examination. Any witness may, in the discretion of the Administrative Law Judge, be examined separately and apart from all other witnesses except those who may be parties to the proceeding. The Administrative Law Judge shall admit all relevant and material evidence, except evidence which is unduly repetitious.

(2) Objections. If a party objects to the admission or rejection of any evidence or the limitation of the scope of any examination or cross-examination, he shall state briefly the grounds for such objection, whereupon an automatic exception will follow if the objection is overruled by the Administrative Law Judge. Only objections made before the Administrative Law Judge may be subsequently relied upon in the proceeding.

(3) Depositions. The deposition of any witness shall be admitted in the manner provided in and subject to the provisions of § 202.20.

(4) Records of the Department. A true copy of every written entry in the records of the Department made by an officer or employee thereof in the course of his official duty and relevant and material to the issues involved in the hearing, shall be admissible as prima facie evidence of the facts stated therein, without the production of such officer or employee.

(5) Exhibits. Except where the Administrative Law Judge finds that the furnishing of copies is impracticable, copies of each exhibit, in addition to the original, shall be filed with the Administrative Law Judge for the use of the other parties to the proceeding. A true copy of an exhibit may, in the discretion of the Administrative Law Judge, be substituted for the original.

(6) Official notice. Official notice may be taken of the official publications of the Department and other Federal agencies, of such matters as are judicially noticed in the courts of the United States, and of any other matter of technical or scien

tific fact of established character: Provided however, That the parties shall be given adequate notice, at the hearing or by reference in the Administrative Law Judge's Recommended Decision or otherwise, of matters so noticed, and shall be given adequate opportunity to show that such facts are erroneously noticed.

(7) Offer of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof for excluded oral testimony shall consist of a brief statement describing the nature of the evidence excluded. If the evidence consists of an exhibit, it shall be inserted in the record in toto. In the event the Secretary decides that the Administrative Law Judge's ruling in excluding the evidence was erroneous and prejudicial, the hearing shall be reopened to permit the taking of such evidence,

(e) Transcripts-(1) Filing and certification. Oral hearings shall be stenographically reported and transcribed. As soon as practicable after the close of the hearing, the Administrative Law Judge shall cause to be transmitted to the Hearing Clerk an original and two copies of the transcript of testimony and the original and copies of exhibits introduced or offered in evidence at the hearing. He shall attach to the original transcript of the evidence a certification stating that the transcript is a true transcript of the testimony offered or received at the hearing, except in such particulars as he shall specify, and that the exhibits transmitted are all the exhibits offered or introduced at the hearing, with such exceptions as he shall specify. A copy of such certificate shall be attached to each of the copies of the transcript of evidence.

(2) Ordering copies. Parties to the proceeding or other persons who desire a copy of the transcript of the hearing may place orders at the close of the hearing with the reporter who will furnish and deliver such copies directly to the purchaser upon payment therefor at the rate per page provided by the contract between the reporter and the purchaser.

(f) Proposed findings of fact, conclusions, and order. Within such time as the Administrative Law Judge may pre

scribe, each party may file with the Hearing Clerk proposed findings of fact, conclusions, and order, based solely on the record, and a brief in support thereof. A copy of each such document filed by a party shall be served upon the other party or parties in the manner provided in § 202.27.

(g) Administrative Law Judge's Recommended Decision. The Administrative Law Judge, within a reasonable time after the termination of the period allowed to the parties for the filing of proposed findings of fact, conclusions, and orders, and briefs in support thereof, shall prepare on the basis of the record and shall file with the Hearing Clerk, his Recommended Decision, a copy of which shall be served upon each of the parties in the manner provided in § 202.27.

(h) Exceptions; objections; requests for oral arguments. (1) Within 30 days after service of the Administrative Law Judge's Recommended Decision, the parties may take exception to any matter set out in such report, and in such case shall file exceptions in writing with the Hearing Clerk, referring to the relevant pages of the transcript, and suggesting corrected findings of fact, conclusions, or order. Within the same period of time, either party may file with the Hearing Clerk a brief statement in writing concerning each of the objections taken to the action of the Administrative Law Judge at the hearing, as set out in § 202.19(d) (2), upon which the party wishes to rely, referring where relevant, to the pages of the transcript. A party may file a brief in support of an exceptions or objections which he may file.

(2) A party, if he files exceptions or a statement of objections, shall state in writing, whether he desires to make an oral argument thereon before the Secretary; otherwise, he shall be deemed to have waived such oral argument.

(i) Final order. As soon as practicable after the expiration of the period for filing exceptions, objections, and briefs, or, in case oral argument is had, as soon as practicable thereafter, the Secretary shall issue his final decision and order, including his ruling on any exceptions or objections filed by the parties. The decision and order shall be served upon the parties in the manner provided in § 202.27.

[36 FR 1317, Jan. 27, 1971, as amended at 36 FR 2959, Feb. 13, 1971]

§ 202.20 Depositions.

(a) Application for taking deposition. Upon the application of a party to the proceeding, the Administrative Law Judge may at any time after the filing of the complaint, order the taking of testimony by deposition. The application shall be in writing and shall be filed with the Hearing Clerk and shall set forth: (1) The name and address of the proposed deponent; (2) the name and address of the person (referred to in this section as the "officer") qualified under the rules in this part to take depositions, before whom the proposed examination is to be made; (3) the proposed time and place of the examination, which should be at least 15 days after the date of the mailing of the application; and (4) the reasons why such deposition should be taken.

(b) Administrative Law Judge's order for taking deposition. If the Administrative Law Judge is satisfied that good cause for taking the deposition is present, he may order its taking. The order shall be filed with the Hearing Clerk and shall be served upon the parties and shall state: (1) The time and place of examination (which shall not be less than 15 days after the filing of the order); (2) the name of the officer before whom the examination is to be made; and (3) the name of the deponent. The officer and the time and place need not be the same as those suggested in the application.

(c) Qualifications of officer. The deposition shall be made before the Administrative Law Judge, or before an officer authorized by the law of the United States or by the law of the place of the examination to administer oaths, or before an officer authorized by the Secretary to administer oaths. No deposition shall be made before an officer who is a relative (within the third degree by blood or marriage), employee, attorney, or counsel of any party or who is a relative (within the third degree by blood or marriage) or employee of any attorney or counsel for any party or who is financially interested in the result of the proceeding: Provided, however, That an officer who is an employee of the Department and is not a relative of any such party, attorney, or counsel may take depositions in any proceeding under the act.

(d) Procedure on examination. The deponent shall be examined under oath

or affirmation and shall be subject to cross-examination. The testimony of the deponent shall be recorded by the officer or by some person under his direction and in his presence. In lieu of oral crossexamination, parties may transmit written cross-interrogatories to the officer prior to the examination and the officer shall propound such cross-interrogatories to the deponent.

The applicant must arrange for the examination of the witness either by oral examination or by written interrogatories. If it is found by the Administrative Law Judge, upon the protest of a party to the proceeding, that such party has his residence and his place of business more than 100 miles from the place of the examination and that it would constitute an undue hardship upon such party to be represented at the examination, the applicant will be required to conduct the examination by means of interrogatories. When the examination is conducted by means of interrogatories, copies of the interrogatories shall be served upon the other parties to the proceeding at least 5 days prior to the date set for the examination, and the other parties shall be afforded an opportunity to file with the officer cross-interrogatories at any time prior to the time of the examination.

(e) Signature by witness. The transcript of the deposition shall be read to or by the deponent, unless such reading is waived by the parties and the deponent. Any changes which the deponent wishes to make shall be entered upon the deposition by the officer, with a statement of the reasons given by the deponent for such changes. The deposition shall be signed by the deponent, unless the parties by stipulation waive such signing, or unless the deponent is ill or cannot be found or refuses to sign. If the deponent does not sign, the officer shall sign and shall state on the record the reason why the deponent did not sign. In such case the deposition shall be as valid as though signed by the deponent, unless the Administrative Law Judge finds that the reason given by the deponent for his refusal to sign requires rejection of the deposition in whole or in part.

(f) Certification by officer. The officer shall certify on the deposition that the deponent was duly sworn by him and

that the deposition is a true record of the deponent's testimony. He shall then securely seal the deposition, together with two copies thereof, in an envelope and mail the same by registered or certified mail to the Hearing Clerk.

(g) Use of depositions. A deposition ordered and taken in accord with the provisions of this section, or in accord with the provisions of the Rules of Civil Procedure of the Courts of the United States, may be used in a proceeding under the act if the Administrative Law Judge finds that the evidence is otherwise admissible and (1) that the witness is dead; or (2) that the witness is at a greater distance than 100 miles from the place of hearing, unless it appears that the absence of the witness was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has endeavored but has been unable to procure the attendance of the witness by subpena; or (5) in any event, upon application and notice that such exceptional circumstances exist as to make it desirable, in the interests of justice and with due regard to the importance of presenting the testimony orally before the Examiner, to allow the deposition to be used. If any part of a deposition is put in evidence by a party, any other party may require the production of the remainder, or any other portion, of the deposition.

§ 202.21 Subpenas.

(a) Issuance of subpenas. The attendance of witnesses and the production of documentary evidence from any place in the United States on behalf of any party to the proceeding may, by subpena, be required at any designated place of hearing. Subpenas may be issued by the Secretary or by the Examiner, upon a reasonable showing by the applicant of the grounds, necessity, and reasonable scope thereof.

(b) Application for subpena duces tecum. Subpenas for the production of documentary evidence, unless issued by the Administrative Law Judge upon his own motion, shall be issued only upon a verified written application. Such application shall specify, as exactly as possible, the documents desired and shall show their competency, relevancy, and

materiality and the necessity for their production.

Subpenas

(c) Service of subpenas. may be served (1) by a U.S. marshal or his deputy, (2) by any other person who is not less than 18 years of age, or (3) by registering or certifying and mailing a copy of the subpena addressed to the person to be served at his or its last known residence or principal place of business. Proof of service may be made by the return of service on the subpena by the U.S. marshal or his deputy; or, if served by an individual other than a U.S, marshal or his deputy, by an affidavit of such person stating that he personally served a copy of the subpena upon the person named therein; or if the service was by registered or certified mail, by an affidavit made by the person mailing the subpena that it was mailed as provided herein and by the signed return post office receipt: Provided however, That where the subpena is issued on behalf of the Secretary, the return receipt without an affidavit of mailing shall be sufficient proof of service. In making personal service, the person making service shall leave a copy of the subpena with the person subpenaed; the original, bearing or accompanied by the required proof of service, shall be returned to the official who issued the same.

Witnesses summoned before the Administrative Law Judge or the Secretary shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken, and the persons taking the same, shall be entitled to the same fees as are paid for like services in the courts of the United States. Fees shall be paid by the party at whose intance the witness appears or the deposition is taken.

§ 202.23 Argument before Secretary.

(a) Request for oral argument; waiver. Unless a party has included in his exceptions or objections a request for oral argument or has filed a separate request for argument prior to the expiration of the last date for filing such exceptions or objections, he shall be deemed to have waived his right to such oral argument. (b) Briefs. The parties may, with the consent of the Secretary, file written