of the presiding officer and has been unable to reach such agreement. If part of the issues raised by motion have been resolved by agreement, the affidavit shall specify the issues so resolved and the issues remaining unresolved.

(b) Scope, time, and number. Interrogatories may relate to any matters which can be inquired into under § 502.201(c), and the answers may be used to the same extent as provided in § 502.203 for the use of the deposition of a party. Interrogatories may be sought after interrogatories have been answered, but the presiding officer, on motion of the deponent or the party interrogated, may make such protective order as justice may require. The number of interrogatories or of sets of interrogatories to be served is not limited except as justice requires to protect the party from annoyance, expense, embarrassment, or oppression. The provisions of § 502.204 (b) are applicable for the protection of the party from whom answers to interrogatories are sought under this section. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the presiding officer may order that such an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time.

(c) Option to produce business records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. [Rule 12(f)]

[G.O. 16, Amdt. 4, 33 FR 14409, Sept. 25, 1968, as amended by Amdt. 10, 37 FR 19135, Sept. 19, 1972; Amdt. 12, 39 FR 33224, Sept. 16, 1974]

§ 502.207 Production of documents and things and entry upon land for inspection and other purposes.

(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of 502.201 and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of § 502.201.

(b) Procedure. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve a written response within 30 days after the service of the request or within such shorter or longer time as the presiding officer may allow. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under § 502.210 or § 502.211 with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. Oral argument on responses or objections shall not be heard unless the presiding officer, as a matter of discretion, deems that the matter cannot be decided on the pleadings.

(c) Time and procedural requirements. Any party desiring to serve a re

quest as provided by this section must comply with the applicable provisions of § 502.201(b) (2). Any party submitting a request who desires to move for an order under § 502.210 or § 502.211 with respect to any objection to or other failure to respond to the request must file an appropriate motion within 15 days after Idate of service of the written response. Failure to file a timely motion, absent good cause, shall constitute a waiver of the party's right to utilize the provisions of § 502.210 or § 502.211 with respect to objection to or other failure to respond to the request. Such motion will not be entertained unless counsel for the moving party files with the Commission on or before the due date for filing a reply to the motion an affidavit certifying that he has conferred with counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention of the presiding officer and has been unable to reach such an agreement. If part of the issues raised by motion have been resolved by agreement, the affidavit shall specify the issues so resolved and the issues remaining unresolved. [Rule 12(g)]

[G.O. 16, Amdt. 12, 39 FR 33224, Sept. 16, 1974]

§ 502.208 Requests for Admission.

(a) (1) A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of § 502.201(c) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness if any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Any party desiring to serve a request as provided by this section must comply with the applicable proviisons of § 502.201(b) (2).

(2) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the presiding officer may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney. If objection is

made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of § 502.208(c) deny the matter or set forth reasons why he cannot admit or deny it.

(3) The party who has requested the admissions may move to determine the sufficiency of the answers or objections provided that he files an appropriate motion within 15 days after date of service of such answers or objections. Oral argument on answers or objections shall not be heard unless the presiding officer, as a matter of discretion, deems that the matter cannot be decided on the pleadings. Unless the presiding officer determines that an objection is justified, he shall order that an answer be served. If the presiding officer determines that an answer does not comply with the requirements of this rule, he may order either that the matter is admitted or that an amended answer be served. The presiding officer may, in lieu of these orders, determine that final disposition of the request be made at a prehearing conference or at a designated time prior to hearing.

(b) Effect of admission. Any matter admitted under this rule is conclusively established unless the presiding officer on motion permits withdrawal or amendment of the admission. The presiding officer may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the presiding officer that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission

made by a party under this rule is for the purpose of the pending proceeding only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.

(c) Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under § 502.208 (a), and if the party requesting the admission thereafter proves the genuineness of the document or the truth of the matter, he may apply to the presiding officer for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The presiding officer shall make the order unless he finds that (1) the request was held objectionable pursuant to § 502.208(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit [Rule 12(h)].

[G.O. 16, Amdt. 12, 39 FR 33224, Sept. 16, 1974]

§ 502.209

Use of discovery procedures directed to the Commission. Oral deposition, written interrogatories motions for the discovery and production of documents and things for inspection, copying, or photographing, and requests for admission as described in §§ 502.204, 502.205, 502.207, and 502.208 directed to Commission staff personnel shall be permitted to the same extent such depositions are permitted of any other party or person and shall be governed by the rules of §§ 502.204, 502.205, 502.207, and 502.208, except that copies of any such notice to take a deposition shall be served on the Secretary of the Commission. Written interrogatories directed to the Commission under § 502.206 shall be served on the Secretary of the Commission. Such interrogatories will be answered and signed by those staff personnel with knowledge of the facts. The answers will be served by the Secretary of the Commission upon the parties to the proceedings. [Rule 12(1).]

§ 502.210 Refusal to make discovery:

consequences.

(a) Refusal to answer. If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the

proponent of the question may prefer. Thereafter on reasonable notice to all persons affected thereby, he may apply to the presiding officer for an order compelling an answer. Upon the refusal of a deponent to answer any interrogatory submitted under § 502.205 or upon the refusal of a party to answer any interrogatory submitted under § 502.206, the proponent of the question may on like notice make like application for such an order. Application for any order made pursuant to this section shall be filed within the time limits and in accordance with the provisions set forth in § 502.206, § 502.207, and § 502.208 where applicable. With respect to depositions, unless otherwise ordered by the presiding officer for good cause shown, application shall be filed within 15 days after deponent's refusal to answer.

(b) Sanctions for failure to comply with order. If a party or an officer or duly authorized agent of a party refuses to obey an order made under paragraph (a) of this section requiring him to answer designated questions or to produce any document or other thing for inspection, copying or photographing or to permit it to be done, the presiding officer may make such orders in regard to the refusal as are just, and among others the following:

(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any party thereof, or rendering a judgment by default against the disobedient party.

(c) Enforcement of orders. In the event of refusal to obey an order made under paragraph (a) of this section the affected party or the commission may apply for enforcement to a district court having jurisdiction of the parties, provided that the affected party seeks court enforcement within 20 days of the date of refusal to obey the order in question. Failure to seek enforcement in timely

fashion will result in a waiver of the affected party's rights to enforcement of the subject order. [Rule 12(j)]

[G.O. 16, Amdt. 4, 33 FR 14409, Sept. 25, 1968, as amended by Amdt. 10, 37 FR 19135, Sept. 19, 1972; Amdt. 12, 39 FR 33225, Sept. 16, 1974]

§ 502.211

Witnesses and evidence located in a foreign country.

(a) Motions. Whenever the person to be deposed or the document or other thing to be produced, inspected, copied, or photographed is located in a foreign country, all motions for protective orders as described in § 502.204 (b), all motions for production as described in § 502.207, and all motions for orders compelling an answer as described in § 502.210(a) shall be made to the Commission. All such motions relating to persons, documents or other things located in the United States shall be made to the presiding officer. Application for any order made pursuant to this section shall be filed within the time limits and in accordance with the provisions set forth in §§ 502.206, 502.207 and 502.208 where applicable. With respect to depositions, unless otherwise ordered by the Commission for good cause shown, application shall be filed within 15 days after deponent's refusal to answer.

(b) Sanctions for failure to comply with order. In the event of refusal to obey an order of the Commission described in paragraph (a) of this section, the Commission may make such orders or take such actions in regard to the refusal as are just, including the specific sanctions provided in § 502.210(b).

(c) Enforcement of orders. Application to a district court for enforcement of an order which relates to persons, documents, or other things located in a foreign country shall be made by the Commission. In the event of refusal to obey an order of the Commission described in paragraph (a) of this section the affected party may request the Commission to seek court enforcement provided that such request is filed with the Commission within 20 days of the date of refusal to obey the order in question. Failure of the affected party to file a timely request with the Commission will result in a waiver of the affected party's rights to enforcement of the subject order. [Rule 12(k)]

[G.O. 16, Amdt. 4, 33 FR 14409, Sept. 25, 1968, as amended by Amdt. 10, 37 FR 19135,

Sept. 19, 1972; Amdt. 12, 39 FR 33225, Sept. 16, 1974]

Subpart M-Briefs; Requests for Findings; Decisions; Exceptions (Rule 13) § 502.221 Briefs; requests for findings.

The presiding officer shall fix the time and manner of filling briefs and any enlargement of time. The period of time allowed shall be the same for all parties unless the presiding officer, for good cause shown, directs otherwise. Briefs shall be served upon all parties pursuant to Subpart H of this part (Rule 8). In investigations instituted on the Commission's own motions, the presiding officer may require Hearing Counsel to file a request for findings of fact and conclusions within a reasonable time prior to the filing of briefs. Service of the request shall be in accordance with the provisions of Subpart H of this part (Rule 8). In addition to the ordinary summary of evidence, with reference to exhibit numbers and pages of the transcript, and statement of law with appropriate citations of the authorities relied upon. Briefs shall contain proposed findings of fact and conclusions in serially numbered paragraphs unless otherwise directed by the presiding officer. Briefs exceeding twenty (20) pages excluding appendices, shall contain a subject index with page references and a list of authorities cited. [Rule 13(a).]

(Rule 1-17), inclusive, of this part. [Rule 13(d).]

§ 502.225 Decisions- contents and service.

All initial, recommended, tentative, and final decisions will include a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record, and the appropriate rule, order, sanction, relief, or denial thereof. A copy of each decision when issued shall be served on the parties to the proceeding. [Rule 13(e).]

§ 502.226

Decision based on official notice; public documents.

(a) Official notice may be taken of such matters as might be judicially noticed by the courts, or of technical or scientific facts within the general knowledge of the Commission as an expert body: Provided, That where a decision or part thereof rests on the official notice of a material fact not appearing in the evidence in the record, the fact of official notice shall be so stated in the decision, and any party, upon timely request, shall be afforded an opportunity to show the contrary.

(b) Whenever there is offered in evidence (in whole or in part) a public document, such as an official report, decision, opinion, or published scientific or economic statistical data issued by any of the executive departments (or their subdivisions), legislative agencies or committees, or administrative agencies of the Federal Government (including Government-owned corporations), or a similar document issued by a state or its agencies, and such document (or part thereof) has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered in evidence as a public document by specifying the document or relevant part thereof. [Rule 13 (f).]

§ 502.227 Exceptions, to decisions; replies thereto; and review of decisions by Commission.

Within fifteen (15) days after date of service of the initial, recommended, or tentative decision, unless a shorter period is fixed under § 502.103 (Rule 7(c)), any party may file a memorandum excepting to any conclusions, findings, or statements contained in such decision, and a

brief in support of such memorandum. Such exceptions and brief shall constitute one document, shall indicate with particularity alleged errors, shall indicate page of the transcript and exhibit number when referring to the record, and shall be served on all parties pursuant to Subpart H of this part (Rule 8). Any adverse party may file and serve a reply to such exceptions within fifteen (15) days after the date of service thereof, which shall contain appropriate transcript and exhibit references. In the absence of ascertained error or exceptions, a recommended or tentative decision will be taken by the Commission as the basis of its decision. Whenever the officer who presided at the reception of the evidence, or other qualified officer, makes an initial decision, such decision shall become the decision of the Commission thirty (30) days after date of service thereof, (and the Secretary shall so notify the parties), unless within such thirty (30) day period, or greater time as enlarged by the Commission for good cause shown, request for review is made in exceptions filed, or notice of review is served upon the parties. Upon the filing of exceptions to, or review of, an initial decision, such decision shall become inoperative until the Commission determines the matter. Where exceptions are filled to, or the Commission reviews, an initial decision, the Commission, except as it may limit the issues upon notice or by rule, will have all the powers which it would have in making the initial decision. Whenever the Commission shall determine to review an initial decision on its own initiative, notice of such intention shall be served upon the parties within thirty (30) days after date of service of the initial decision. [Rule 13(g).]

§ 502.228 Request for enlargement of time for filing exceptions and replies thereto.

Requests for enlargement of time within which to file exceptions, and briefs in support thereof, or replies to exceptions shall conform to the applicable provisions of § 502.102 (Rule 7(b)). Except for good cause shown, such requests shall be filed and served not later than five (5) days before the expiration of the time fixed for the filing of such documents. Any enlargement of time granted will automatically extend by the same period the date for the filing of