copies of such transcript may obtain the same from the official reporter upon payment of the fees fixed therefor.

(b) Availability to persons who give evidence in investigations and nonpublic proceedings. Any person compelled to furnish data or to give evidence in any investigation shall be entitled to retain or, upon payment of the lawfully prescribed fees therefor to the Official Reporter, the Secretary, or other designated officer of the Commission, to obtain a copy of the official transcript thereof; Provided, however, That where such data or evidence have been furnished or given in a nonpublic investigatory proceeding conducted by the Commission, such person may, for good cause, be limited to an inspection only, either in person or by a duly accredited representative, of the official transcript of his testimony. [Order 141, 12 F.R. 8478, Dec. 19, 1947] § 1.22

Witnesses.

Witnesses

(a) Oral examination. shall be examined orally unless the testimony is taken by deposition as provided in § 1.24, or the facts are stipulated in the manner provided in §§ 1.18 and 1.25, or the testimony is submitted in prepared written form as provided in § 1.26 (c) (2) (iii). Witnesses whose testimony is to be taken shall be sworn, or shall affirm, before their testimony shall be deemed evidence in the proceeding or any questions are put to them.

(b) Expert witnesses. Written testimony of an expert witness may be received as provided in § 1.20, where properly supported by the oral testimony of its author on direct examination, subject to cross-examination and motions to strike.

(c) Fees of witnesses. Witnesses subpenaed by the Commission shall be paid the same fees and mileage as are paid for like services in the District Courts of the United States. Witnesses subpenaed at the instance of participants shall be paid the same fees by the participant at whose instance the witness is subpenaed; and the Commission, before issuing any subpena as provided in § 1.23, may require a deposit of an amount adequate to cover the fees and mileage involved. [Order 141, 12 F.R. 8479, Dec. 19, 1947, as amended by Order 217, 24 F.R. 9473, Nov. 24, 1959]

§ 1.23 Subpenas.

(a) Issuance. Subpenas for the attendance of witnesses or for the production of documentary evidence, unless di

rected by the Commission upon its own motion, will issue only upon application in writing to the Commission or the presiding officer, except that during sessions of a hearing in a proceeding, such application may be made orally on the record before the Commission or presiding officer, who is hereby given authority to determine the relevancy and materiality of the evidence sought and to issue such subpenas in accordance with such determination. Such written applications shall be verified and shall specify as nearly as may be the general relevance, materiality, and scope of the testimony or documentary evidence sought, including, as to documentary evidence, specification as nearly as may be, of the documents desired and the facts to be proved by them in sufficient detail to indicate the materiality and relevance of such documents.

(b) Service and return. If service of subpena is made by United States marshal or his deputy, such service shall be evidenced by his return thereof. If made by another person, such person shall make affidavit thereof, describing the manner in which service is made, and shall return such affidavit on or with the original subpena. In case of failure to make service, the reasons for the failure shall be stated on the original subpena. In making service, a copy of the subpena shall be exhibited to and left with the person to be served. The original subpena, bearing or accompanied by the authorized return, affidavit or statement, shall be returned forthwith to the Secretary or, if so directed on the subpena, to the presiding officer before whom the person named in the subpena is required to appear.

(c) Fees of witnesses. Witnesses who are subpenaed shall be paid fees as provided in § 1.22.

[Order 141, 12 F.R. 8479, Dec. 19, 1947] § 1.24

Depositions.

(a) When permissible. The testimony of any witness may be taken by deposition, upon application by a participant in a proceeding pending before the Commission, at any time before the hearing is closed, upon approval by the Commission or the presiding officer.

(b) Notice and application. Unless notice is waved, no deposition shall be taken except after at least 10 days' notice to the parties within the United States, and 15 days' notice when a deposition is to be taken elsewhere. Such notice shall

be given in writing by the participant proposing to take such deposition or by his attorney to the other participants or their attorneys of record and to the Commission. In such notice and application to take evidence by deposition, the participant desiring to take the deposition shall state the name and post office address of the witness, the subject matter concerning which the witness is expected to testify, the time and place of taking the deposition, the name and post office address of the officer before whom it is desired that the deposition be taken, and the reason why such deposition should be taken. The other participants may, within the time stated in this section, make any appropriate response to such notice and application. Such notices and responses thereto shall conform, as applicable, to the requirements of §§ 1.5 and 1.15 to 1.17, inclusive.

(c) Authorization for taking. Thereupon, if the application so warrants, the Commission or presiding officer, will issue and serve, within a reasonable time in advance of the time fixed for taking testimony, upon the participants or their attorneys an authorization naming the witness whose deposition is to be taken, and the time, place and officer before whom the witness is to testify, but such time, place and officer so specified may or may not be the same as those named in the said notice and application.

(d) Officer before whom taken-(1) Within the United States. Such depositions may be taken before a member, a presiding officer or other authorized representative of the Commission, any judge, commissioner, or clerk of any court of the United States, any chancellor, judge, or justice of a State court, any mayor or chief magistrate, of a city, or any notary public, not being counsel or attorney for any of the participants, or interested in the proceeding or investigation, according to such designation as may be made in the authorization.

(2) In foreign countries. Where such deposition is taken in a foreign country, it may be taken before a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or before such person or officer as may be designated in the authorization or agreed upon by the parties by stipulation in writing filed with and approved by the Commission or the presiding officer. The magistrate, person, or officer so designated in this section will be referred to as the Officer.

(e) Oath and reduction to writing. Every person whose testimony is taken by deposition shall be sworn, or shall affirm concerning the matter about which he shall testify, before any questions are put or testimony given. The testimony shall be reduced to writing by the Officer, or under his direction, after which the deposition shall be subscribed by the witness and certified in the usual form by the Officer. Unless otherwise directed in the authorization, after the deposition has been subscribed and certified, it shall, together with the number of copies specified in the authorization, the copies being made by such Officer or under his direction, be forwarded by such Officer in a sealed envelope addressed to the Commission at its office in Washington 25, D.C., with sufficient stamps for postage affixed. Upon receipt thereof, the Secretary shall file the original in the proceeding and shall forward a copy to each party or his attorney of record and to staff counsel.

(f) Form. Such deposition shall conform to the requirements of § 1.15 in all respects except as to the number of copies.

(g) Scope and conduct of examination. Unless otherwise directed in the authorization, the deponent may be examined regarding any matter which is relevant to the issues involved in the pending proceeding, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things, and the identity and location of persons having knowledge of relevant facts. Parties or their attorneys and staff counsel shall have the right of cross-examination, objection and exception. In making objections to questions or evidence, the grounds relied upon shall be stated briefly, but no transcript filed by the Officer shall include argument or debate. Objections to questions or evidence shall be noted by the Officer upon the deposition, but he shall not have power to decide on the competency or materiality or relevancy of evidence. Objections to questions or evidence not taken before the Officer shall be deemed waived.

(h) Not part of record unless received in evidence. No part of a deposition shall constitute a part of the record in the proceeding, unless received in evidence by the Commission or presiding officer. Objection may be made at the hearing in the proceeding to receiving in evidence any deposition or part thereof for any

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(a) Presentation and effect. pendently of the orders or rulings issued as provided by § 1.18, the parties and staff counsel may stipulate as to any relevant matters of fact or the authenticity of any relevant documents. Such stipulations may be received in evidence at a hearing, and when so received shall be binding on the parties and staff counsel with respect to the matters therein stipulated.

(b) Form, style, and service. Stipulations shall conform to the applicable requirements of §§ 1.15 to 1.17 inclusive, except stipulations made orally on the record during hearings.

[Order 141, 12 F.R. 8479, Dec. 19, 1947, as amended by Order 217, 24 F.R. 9473, Nov. 24, 1959]

(a) Form and admissibility. In any proceeding before the Commission or a presiding officer relevant and material evidence shall be admissible, but there shall be excluded such evidence as is unduly repetitious or cumulative, or such evidence as is not of the kind which would affect reasonable and fair-minded men in the conduct of their daily affairs.

(b) Reception and ruling on. The presiding officer, subject to appeal to the Commission as provided in § 1.28, shall rule on the admissibility of all evidence, and shall otherwise control the reception of evidence so as to confine it to the issues in the proceeding. The number of expert witnesses to be heard on any issue may be limited appropriately or the production of further evidence upon any issue may be called for, as provided in § 1.20.

(c) Documentary—(1) Designation. Where relevant and material matter offered in evidence is embraced in a document containing other matter not material or relevant and not intended to be put in evidence, the participant offering

the same shall plainly designate the matter so offered, segregating and excluding insofar as practicable the immaterial or irrelevant parts. If other matter is in such document in such bulk or extent as would necessarily encumber the record, such document will not be received in evidence, but may be marked for identification, and, if properly authenticated, the relevant and material parts thereof may be read into the record, or if the Commission or the presiding officer so directs, a true copy of such matter in proper form shall be received in evidence as an exhibit, and copies shall be delivered by the participant offering the same to the other parties or their attorneys and staff counsel appearing at the hearing, who shall be afforded an opportunity to examine the entire document and to offer in evidence in like manner other material and relevant portions thereof.

(2) Commission's files. (i) In case any matter contained in a report or other document on file with the Commission is offered in evidence, such report or other document need not be produced or marked for identification, but may be offered in evidence by specifying the report, document, or other file containing the matter so offered.

(ii) Public document items. 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 Governmentowned corporations), or a similar document issued by a State or its agencies, and such document (or part thereof) has been shown by the offerer 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 item by specifying the document or relevant part thereof without regard to the requirements of subparagraph (5) of this paragraph.

(iii) Prepared expert testimony. Direct testimony of any witness within his special field may be offered as an exhibit, or as prepared written testimony to be copied into the transcript: Provided, That copies of such proposed exhibit or prepared written testimony shall have been served upon all parties to the proceeding or their attorneys of record, and

staff counsel, at least 5 days in advance of the session of the hearing at which such exhibit or prepared written testimony is offered unless all parties in attendance at the session of the hearing at which such exhibit or prepared written testimony is offered, and staff counsel shall agree that all or any part of such 5 days' prior service be waived: And provided further, That the presiding officer, absent such agreement, may permit the introduction of such written testimony after having given all parties and staff counsel present a reasonable opportunity (not less than 24 hours) to examine it. Whenever in the circumstances of a particular case it is deemed necessary or desirable, the Commission or the presiding officer may direct that expert testimony to be given upon direct examination shall be reduced to exhibit form or to the form of prepared written testimony and be served and offered in the manner hereinbefore described. A reasonable period of time shall be allowed for the preparation of such written testimony. All parties offering prepared written testimony, whether in the form of an exhibit or to be copied into the transcript, shall insert line numbers on each page, in the left-hand margin.

(3) Records in other proceedings. When any portion of the record in any other proceeding before the Commission is offered in evidence and shown to be relevant and material to the instant proceeding, a true copy thereof shall be presented in the form of an exhibit, together with additional copies as provided in subparagraph (5) of this paragraph, unless:

(i) The participant offering the same agrees to supply, within a period of time specified by the Commission or the presiding officer, such copies at his own expense, if and when so required; and

(ii) The portion is specified with particularity in such manner as to be readily identified, and upon motion is admitted in evidence by reference to the records of the other proceedings.

(4) Form and size. Wherever practicable, all exhibits of a documentary character received in evidence shall be on paper of good quality and so prepared as to be plainly legible and durable, whether printed, photostated or typewritten, and shall conform to requirements of § 1.15 whenever practicable.

the

(5) Copies to parties and Commission. Except as otherwise provided in these rules, when exhibits of a documentary

character are offered in evidence, copies shall be furnished to the presiding officer and to the parties or counsel, including staff counsel, unless the Commission or the presiding officer otherwise directs. In addition, unless otherwise directed by the Commission or the presiding officer, two copies of each exhibit of documentary character shall be furnished for the use of the Commission.

(d) Official notice of facts. Official notice may be taken by the Commission and the presiding examiner of such matters as might be judicially noticed by the courts of the United States, or any matters as to which the Commission by reason of its functions is an expert. Any participant shall, on timely request, be afforded an opportunity to show the contrary. Any participant requesting the taking of official notice after the conclusion of the hearing must set forth the reasons claimed to justify failure to make the request prior to the close of the hearing.

(e) Depositions and stipulations. (See §§ 1.24 and 1.25.)

[Order 141, 12 FR. 8480, Dec. 19, 1947, as amended by Order 169, 19 F.R. 974, Feb. 19, 1954; Order 175, 19 F.R. 5213, Aug. 18, 1954; Order 339, 32 F.R. 5772, Apr. 11, 1967; Order 376, 33 F.R. 18436, Dec. 12, 1968] $ 1.27

Presiding officers.

(a) Designation. When evidence is to be taken in a proceeding, either the Commission, or, when duly designated for that purpose, one or more of its members, examiners, or other representative appointed according to law, may preside at the hearing.

(b) Authority delegated. Presiding officers duly designated by the Commission to preside at hearings shall have the authority, within the Commission's powers and subject to its published rules, as follows:

(1) To regulate the course of hearings, including the scheduling thereof, subject to the approval of the Chief Hearing Examiner, and the recessing, reconvening, and adjournment thereof, unless otherwise provided by the Commission, as provided in § 1.13(e);

(2) To administer oaths and affirmations;

(3) To issue subpenas;

(4) To rule upon offers of proof and receive evidence;

(5) To take or cause depositions to be taken;

(6) To hold appropriate conferences before or during hearings;

(7) To dispose of procedural matters but not, before their initial or recommended decisions, to dispose of motions made during hearings to dismiss proceedings or other motions which involve final determination of proceedings;

(8) Within their discretion, or upon direction of the Commission, to certify any question to the Commission for its consideration and disposition;

(9) To submit their initial or recommended decisions in accordance with § 1.30;

(10) To take any other action necessaly or appropriate to the discharge of the duties vested in them, consistent with the statutory or other authorities under which the Commission functions and with the rules, regulations, and policies of the Commission.

(c) Limitations. Presiding officers shall perform no duties inconsistent with their duties and responsibilities as such. Save to the extent required for the disposition of ex parte matters as authorized by law and by the rules of the Commission, no presiding officer shall, in any proceeding in which the Commission may so direct, or in any proceeding for an adjudication required by statute to be determined on the record after opportunity for hearing, other than in determining applications for initial licenses and proceedings involving the validity or application of rates, the facilities or practices of public utilities or naturalgas companies, consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate.

(d) Conduct of hearings. It is the duty of the presiding officer to conduct a fair and impartial hearing and to maintain order. Any disregard by participants or counsel of his rulings on matters of order and procedure shall be noted on the record, and where he deems it necessary, shall be made the subject of a special written report to the Commission. In the event that participants or counsel should be guilty of disrespectful, disorderly or contumacious language or conduct in connection with any hearing, the presiding officer immediately may submit to the Commission his report thereon, together with his recommendations, and in his discretion suspend the hearing.

[Order 141, 12 F.R. 8480, Dec. 19, 1947, as amended by Order 217, 24 F.R. 9473, Nov. 25, 1959; Order 229, 25 FR. 10869, Nov. 16, 1960]

§ 1.28 Appeals to Commission from rulings of presiding officers.

(a) During hearing or conference. Rulings of presiding officers may not be appealed from during the course of hearings or conferences except in extraordinary circumstances where prompt decision by the Commission is necessary to prevent detriment to the public interest. In such instance the matter shall be referred forthwith by the presiding officer to the Commission for determination.

(b) Offers of proof. Any offer of proof made in connection with an objection taken to any ruling of the presiding officer rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall constitute the offer of proof.

(c) Commission action. Unless the Commission acts upon questions referred by presiding officers to the Commission for determination or upon appeals taken to the Commission from rulings of presiding officers within thirty days after referral or filing of the appeal, whichever is later, such referrals or appeals shall be deemed to have been denied. The parties to the proceeding shall be given appropriate notice of the date of the referral or appeal, by the presiding examiner or the appellant as the case may be.

[Order 141, 12 F.R. 8480, Dec. 19, 1947, as amended by Order 217, 24 F.R. 9473, Nov. 25, 1959; Order 373, 33 F.R. 17174, Nov. 20, 1968]

$ 1.29

Briefs and oral arguments before presiding officers and proposed findings and orders.

(a) Briefs, when filed. Unless waived by the parties and staff counsel with the consent of the presiding officer, whether oral argument be heard or not, at the close of the taking of testimony in each proceeding, the presiding officer shall fix the time for the filing and service of briefs, giving due regard to the nature of the proceeding, the magnitude of the record, and the complexity or importance of the issues involved; and he shall fix the order in which such briefs shall be filed. The first or initial brief shall be filed by the party or parties upon