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 cffered. 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 herein before described. A reasonable period of time shall be allowed for the preparation of such written testi

mony. 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. All such prepared written testimony when filed and served, shall be authenticated by an appropriate affidavit of the witness.

(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 the requirements of 1.15 whenever practicable.

(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.

clusion 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 FR 974, Feb. 19, 1954; Order 175, 19 FR 5213, Aug. 18, 1954; Order 339, 32 FR 5772, Apr. 11, 1967; Order 478, 38 FR 8738, Apr. 6, 1973]

§ 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, administrative law judge, 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, 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 necessary 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 FR. 9478, Nov. 25, 1959; Order 229, 25 FR 10869, Nov. 16, 1960; Order 472, 38 FR 4245, Feb. 12, 1978]

§ 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 offcer 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 documen

tary 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 administrative law judge 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 be fore 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 whom rests the burden of proof, except that the presiding officer, when in his judgment the circumstances or exigencies require, may direct that briefs shall be filled simultaneously. In no proceeding, whether briefs are to be filed simultaneously or otherwise, shall any party upon whom rests the burden of proof be denied the right to file a reply brief.

(b) Oral argument, when made. When, in the opinion of the presiding officer, time permits and the nature of the proceedings, the complexity or importance of the issues of fact or law involved, and the public interest warrant, such presiding officer may, either of his own motion or at the request of a party or staff counsel at or before the close of the taking of testimony allow and fix a time for the presentation of oral argument, imposing such limits of time on the

argument 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 tine fixed for filing such briefs. [Order 141, 12 F.R. 8480, Dec. 19, 19471

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

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

(ii) Whether opportunity for presenting oral argument or filling 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 include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented or 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.

(1) Service. All decisions shall be filled 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 re

quired by statute to be determined on the record after opportunity for hearing. [Order 141, 12 F.R. 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 de cisions, briefs; briefs and oral arguments before the Commission.

(a) Briefs on exceptions, briefs opposing exceptons, 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 (1) a short statement of the case, (11) 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.