ment as deemed appropriate in the proceeding. Such argument shall be transcribed and bound with the transcript of testimony.

(c) Contents and scope. In oral arguments there may be presented proposed findings and conclusions and, if desired, the reasons therefor, and such proposed forms of order or rule as may be deemed requisite in view of the facts, the law, and the public interest. Briefs should contain: (1) A concise statement of the case, (2) an abstract of the evidence relied upon by the party filing, preferably assembled by subjects, with references to the pages of the record or exhibits where the evidence appears, and (3) proposed findings and conclusions and, if desired, a proposed form of order or rule, together with the reasons and authorities therefor, separately stated.

(d) Briefs, form of. Exhibits should not be reproduced in the brief, but may, if desired, be reproduced in an appendix to the brief. Any analyses of exhibits relied on should be included in the part of the brief containing the abstract of evidence under the subjects to which they pertain. Every brief of more than 20 pages shall contain on its front leaves a subject index, with page references, and a list of all cases cited, alphabetically arranged, with references to the pages where the citations appear. All briefs shall be as concise as possible and shall in all other respects conform to the requirements of § 1.15.

(e) Briefs, filing and service. Briefs not filed and served on or before the dates fixed therefor shall not be accepted for filing, except by special permission of the Commission or the presiding officer. All briefs shall be accompanied by a certificate showing service upon all parties or their attorneys who appeared at the hearing or on brief, and except where filing of a different number is permitted or directed by the Commission or presiding officer, 20 copies of each brief shall be furnished for the use of the Commission. Requests for the extension of time in which to file briefs shall conform to the requirements of § 1.13, and shall be filed at least five days before the time fixed for filing such briefs. [Order 141, 12 FR 8480, Dec. 19, 1947]

§ 1.30 Decisions.

(a) Initial decisions by presiding officers. In proceedings in which the Commission has not presided at the reception of evidence, except as otherwise provided in this part, the presiding officer, as soon as practicable after the conclusion of the hearing and expiration of the time for filing of briefs, shall certify and file with the Secretary, for the Commission, a copy of the record of the hearing, including his report thereon. Except as otherwise provided, such presiding officer's report shall constitute the initial decision, which shall be served upon all parties, or their attorneys of record, and staff counsel, who may file exceptions in the manner and within the time provided in § 1.31.

(b) Recommended or tentative decisions. In proceedings in which, prior to the filing of the presiding officer's report, the Commission, with notice to the parties, directs (in specific cases or by general rule) the certification to it of the record for decision by the Commission, unless otherwise provided, the presiding officer's report shall constitute a recommended decision, except that in rule making or determining applications for initial licenses, in lieu thereof, (1) the Commission may designate any of its responsible officers to recommend a decision, or (2) the Commission may issue a tentative decision. Such recommended or tentative decision shall be served upon all parties, or their attorneys of record, and staff counsel, who may file exceptions in the manner and within the time provided in § 1.31.

(c) Waiver and omission of intermediate decision procedure. (1) In lieu of any intermediate decision (initial by presiding officer, recommended by presiding officer or designated responsible officer, or tentative by the Commission), any party or staff counsel in any proceeding may request that the Commission forthwith render the final decision; and if all other parties and staff counsel join or concur in such request, it shall be deemed to have been granted unless the Commission denies such request within 10 days next fol

lowing its submission or filing. In such requests for omitting the intermediate decision procedure there shall be specified:

(i) The concurrence of the other parties and staff counsel;

(ii) Whether opportunity for presenting oral argument or filing briefs before the presiding officer or Commission is desired or waived;

(iii) Whether opportunity for presenting proposed findings and conclusions with supporting reasons therefor, is desired or waived; and

(iv) Whether the parties reserve only their rights to apply to the Commission for rehearing and to petition for judicial review of the Commission's decision or order as may be provided for by the statute under which the proceeding was initiated and conducted.

(2) In rule-making or initial licensing proceedings the Commission, with or without request or motion therefor, may render the decision upon a finding on the record that due and timely execution of its functions imperatively and unavoidably so requires.

(3) Requests for waiver and omission of the intermediate decision procedure shall be by motion filed with the Commission at any time during, but not later than five days next following, the conclusion or adjournment sine die of the hearing; shall be in writing under oath, subscribed and verified; and shall in all other respects conform to the requirements of §§ 1.12 and 1.15 to 1.17, inclusive: Provided, however, That during sessions of hearings in proceedings, motions for such waiver and omission may be made orally on the record before the presiding officer, who shall forthwith report the same to the Commission.

(d) Final decisions. All decisions of the Commission shall be final (subject only to application for rehearing provided for by the statute under which the proceeding is initiated and conducted), except tentative decisions that may be issued in rule-making or determining applications for initial licenses as herein provided. Final decisions shall include:

(1) Decisions by the Commission in proceedings in which the Commission

has presided at the reception of evidence;

(2) Decisions upon appeal of intermediate decisions to the Commission by the parties or staff counsel, by filing exceptions in the manner and time provided by § 1.31, or upon review initiated by the Commission within 10 days next following the expiration of the time for filing exceptions under the aforesaid section, or such other time as the Commission may fix in specific cases;

(3) Intermediate initial or tentative decisions, upon the expiration of the time provided for an appeal to or review by the Commission without such appeal or review having been initiated;

(4) Decisions by the Commission in rule-making, or initial licensing proceedings, in which the Commission omits the intermediate decision procedure upon a finding that due and timely execution of its functions imperatively and unavoidably so requires;

(5) Decisions by the Commission in proceedings in which the intermediate decision procedure has been omitted in accordance with paragraph (c)(1) and (3) of this section.

(6) Decisions by the Commission in shortened proceedings as provided in § 1.32.

(e) Rehearing only of final decisions. No application for rehearing, provided for by the statute under which a proceedings is initiated and conducted, will be entertained by the Commission until a decision is issued and becomes final under the provisions of this section.

(f) No participation by investigative or prosecuting officers. In any proceeding in which a Commission adjudication is made after hearing, no officer, employee, or agent assigned to work upon the investigation or trial of the proceeding or to assist in the trial thereof, shall, in that or any factually related proceeding, participate or advise as to the findings, conclusions or decision, except as a witness or counsel in public proceedings.

(g) Contents. All decisions shall inIclude a statement of (1) findings and conclusions, as well as the reasons or

30-038 0784

basis therefor, upon all the material issues of fact, law, or discretion presented on the record, and (2) the appropriate rule, order, sanction, relief, or denial thereof. There shall be stated all facts officially noticed pursuant to § 1.26, relied upon in the decision.

(h) Part of record. All decisions (including initial, recommended, or tentative decisions) shall become a part of the record.

(i) Service. All decisions shall be filed with the Secretary who shall serve copies thereof upon all parties or their attorneys of record, including staff counsel, whose appearances have been entered pursuant to § 1.20(e). Such service shall be by mail or by delivery to the parties or their attorneys, as may be appropriate, in accordance with § 1.17.

(j) Unavailability of presiding officer. If a presiding officer becomes unavailable to the Commission, the Commission will either designate another qualified officer to report and recommend the decision or will cause the record to be certified to it for decision, as may be deemed appropriate, giving notice to the parties or their attorneys of record.

(k) Application of section. This section shall apply in all proceedings required by statute to be determined on the record after opportunity for hearing.

[Order 141, 12 FR 8481, Dec. 19, 1947, as amended by Order 175, 19 FR 5213, Aug. 18, 1954; Order 479, 38 FR 9294, Apr. 13, 1973]

§ 1.31 Exceptions to intermediate decisions, briefs; briefs and oral arguments before the Commission.

(a) Briefs on exceptions, briefs opposing exceptions, filing of. Any party or staff counsel desiring to appeal to the Commission shall, within 30 days after the service of a copy of an intermediate decision (initial or recommended by subordinates, or tentative by Commission), or such other time as may be fixed by the Secretary, file exceptions to the decision or part thereof in a brief (designated "Brief on Exceptions"). "Briefs Opposing Exceptions" may be filed in response to briefs on exceptions within 20 days

after the time limited for the filing of briefs on exceptions or such other time as may be fixed by the Secretary. No further response will be entertained unless the Commission, upon motion or its own initiative, so orders. (b) Nature and service of briefs on exceptions and of briefs opposing exceptions. (1) Briefs on exceptions shall contain (i) a short statement of the case, (ii) a summary of the basic position of the party filing, (iii) the grounds upon which the exceptions rest and (iv) the argument in support with appropriate references to the record and legal authorities. There may also be included specific findings and conclusions proposed in lieu of those to which exception is taken and any proposed additional findings and conclusions. Exceptions to the form of order or rule shall specify the portions thereof to which exception is taken, and may set forth a form of order or rule suggested in lieu of that served. Briefs opposing exceptions shall generally follow the same style prescribed for briefs on exceptions, but may omit a statement of the case if it was correctly stated in a brief on exceptions.

(2) Briefs on exceptions and briefs opposing exceptions shall be self contained and limited to fifty pages in length, provided that for good cause the limitation on length may be altered or waived for either class of briefs upon application to and order of the Chief Administrative Law Judge of the Commission, or an examiner acting in his absence, within the time limited for filing of the respective briefs.

(3) Subject to the foregoing requirements, briefs shall conform to the applicable provisions of §§ 1.15, 1.16, and 1.17, as to copies, form, and service, but need not be verified under oath. Fifteen copies of each document shall be filed with the Commission in addition to the copies served on the parties to the proceedings.

any part of an intermediate decision which is not the subject of exceptions may not thereafter be raised before the Commission in oral argument, or in an application for Commission rehearing, and shall be deemed to have been waived. The Commission may refuse to consider exceptions to a ruling admitting or excluding evidence unless there was an objection at the time the ruling was made or within any deferred time provided by the presiding officer.

(d) Oral argument on exceptions. Any party or staff counsel filing a brief on exceptions or brief opposing exceptions may by motion request an opportunity to present oral argument to the Commission on the intermediate decision. Such motion must be filed within the time limited for the filing of briefs opposing exceptions. If oral argument is ordered, it shall be limited, unless otherwise specified, to matters properly raised by the briefs.

(e) Briefs and oral argument on waiver of intermediate decision. Parties requesting a decision by the Commission without an intermediate decision in a proceeding in which the Commission has not presided at the reception of the evidence shall include their requests for opportunity to file briefs or to make oral argument in the motion for waiver of the intermediate decision, as provided in § 1.30(c). Such briefs and argument as may be ordered shall conform to the requirements of § 1.29 insofar as applicable. [Order 277, 29 FR 3698, Mar. 25, 1964]

§ 1.32 Shortened procedures.

(a) Where hearing waived. In any proceeding in which the Commission is authorized to act after opportunity for hearing, if the parties waive hearing, such opportunity shall be deemed to have been afforded by service or publication in the FEDERAL REGISTER of notice of the application or other initial pleading, request, or other filing, such notice fixing a reasonable period of time within which any person desiring to be heard may file a protest or petition. Upon the expiration of such period of time, in the absence of a request for hearing, the Commission may forthwith dispose of the matter

upon the basis of the pleadings and other submittals and the studies and recommendations of the staff. A party not requesting oral hearing in its pleadings shall be deemed to have waived a hearing for the purpose of such disposition, but shall not be bound by such waiver for the purposes of any application for rehearing with respect to an order so entered.

(b) Noncontested proceedings. In any proceeding required by statute to be set for hearing, the Commission when it appears to be in the public interest and to be the interest of the parties to grant the relief or authority requested in the initial pleɛding, and to omit the intermediate decision procedure, may after a hearing during which no opposition or contest develops, forthwith dispose of the proceedings upon consideration of the pleadings and other evidence filed and incorporated in the record: Provided, (1) The applicant or initial pleader requests that the intermediate decision procedure be omitted and waives oral hearing and opportunity for filing exceptions to the decision of the Commission; and (2) no issue of substance is raised by any request to be heard, protest or petition filed subsequent to publication in the FEDERAL REGISTER of the notice of the filing of an initial pleading and notice or order fixing date of hearing, which notice or order shall state that the Commission considers the proceeding a proper one for disposition under the provisions of this section and shall otherwise conform with the requirements of § 1.19. Requests for the procedure provided by this section may be contained in the initial pleading or subsequent request in writing to the Commission. The decision of the Commission in such proceeding after noncontested hearing, will be final, subject to reconsideration by the Commission upon application for rehearing as provided by statute.

(Secs. 15, 16, 52 Stat. 829, 830, secs. 213, 308, 309 (49 Stat. 858, 859; 15 U.S.C. 717n, 7170, 16 U.S.C. 825g, 825h))

[Order 141, 12 FR 8482, Dec. 19, 1947, as amended by Order 570, 42 FR 40191, Aug. 9, 1977]

§ 1.33 Reopening proceedings.

to

(a) By parties-(1) Petition reopen. At any time after the conclusion of a hearing in a proceeding or adjournment thereof sine die, but before issuance by the presiding officer of an initial decision, any party to the proceeding or staff counsel may file with the presiding officer a petition to reopen the proceeding for the purpose of taking additional evidence. Copies of such petition shall be served upon all participants, or their attorneys of record, and shall set forth clearly the facts claimed to constitute grounds requiring reopening of the proceeding, including material

changes of fact or of law alleged to have occurred since the conclusion of the hearing, and shall in all other respects conform to the applicable requirements of §§ 1.7 and 1.15 to 1.17, inclusive.

(2) Responses. Within 15 days following the service of such petition, any other party to the proceeding or staff counsel may file with the presiding officer his answer thereto, and in default thereof shall be deemed to have waived any objection to the granting of such petition.

(3) Action by presiding officer. As soon as practicable after the filing of responses to such petitions or default thereof, as the case may be, the presiding officer will grant or deny such petition.

(b) By presiding officer on his own initiative. At any time prior to the filing of his initial decision, after notice to the parties and opportunity to be heard, a presiding officer may reopen the proceeding for the reception of further evidence on his own motion, if he has reason to believe that conditions of fact or of law have so changed as to require, or that the public interest requires, the reopening of such proceeding.

(c) By Commission action. The above provisions of this section shall apply equally to petitions for and the issuance by the Commission of an order reopening the proceeding, where an initial decision has been issued by the presiding officer but no Commission decision has yet been issued, or where the initial decision by a presid

ing officer has been omitted and no Commission decision has yet been issued.

[Order 217, 24 FR 9473, Nov. 25, 1959, as amended by Order 444-A, 39 FR 12731, Apr. 8, 1974]

§ 1.34 Application for rehearing.

(a) Form, filing, and service. An application for rehearing of a proceeding may be filed within 30 days after the issuance of any final decision or order by the Commission. Such application shall be made by petition, under oath, stating specifically the grounds relied upon, shall be filed with the Commission and served by the petitioner upon all parties to the proceeding or their attorneys of record, and shall in all other respects conform to the requirements of §§ 1.7 and 1.15 to 1.17, inclusive.

(b) Specification of errors. Such petitions for rehearing shall state concisely the alleged errors in the Commission decision or order. If an order of the Commission is sought to be vacated, reversed, or modified by reason of matters that have arisen since the hearing and decision or order, or by reason of a consequence that would result from compliance therewith, the matters relied upon by the petitioner shall be set forth in the petition.

(c) Action on. Unless the Commission acts upon the application for rehearing within thirty days after it is filed, such application shall be deemed to have been denied.

(d) Response. No answers to petitions for rehearing will be entertained by the Commission. If, and to the extent, however that rehearing is granted by the Commission, a response in the nature of an answer may be filed by any party or staff counsel within 15 days after the issuance of the order granting rehearing. Such response shall be confined to the issues upon which rehearing has been granted, and shall be served by the proponent upon all parties to the proceeding or their attorneys of record. All such responses shall in all other respects conform to the requirements of §§ 1.15 to 1.17, inclusive.

(Secs. 313 and 19, 49 Stat. 860, 52 Stat. 831; 16 U.S.C. 8257, 15 U.S.C. 717r)