(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.

(c) Failure to except or to object to rulings on evidence results in a waiver. Failure to file a brief on exceptions within the time allowed under this section shall constitute a waiver of all objections to the intermediate decisions served. Objections to 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 filled 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. 8698, 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 or the Commission's rules and regulations to be set for hearing, the Commission when it appears to be in the public interest and to the interest of the parties to grant the relief or authority requested in the initial pleading, 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, submittals 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.

[Order 141, 12 FR 8482, Dec. 19, 1947, as amended by Order 518, 39 FR 40942, Nov. 22, 1974]

§ 1.33

Reopening proceedings.

(a) By parties—(1) Petition to 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 presiding 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. 8251, 15 U.S.C. 717r) [Order 141, 12 F.R. 8483, Dec. 19, 1947, as amended by Order 175, 19 FR. 5213, Aug. 18, 1954; Order 251, 27 F.R. 5767, June 19, 1962; 27 F.R. 6384, July 6, 1962]

days following the date when such requirement became effective, a notice, under oath, stating that such requirement has been met or complied with: Provided, however, That the Commission, by rule or order, or by making specific provision therefor in a license or permit, may provide otherwise for the giving of such notice of compliance. Such reports shall conform in all other respects to the requirements of §§ 1.15 and 1.16, except that five conformed copies of such notice shall be filed in lieu of the fourteen conformed copies required by § 1.15 (b). [Order 141, 12 F.R. 8483, Dec. 19, 1947, as amended by Order 175, 19 F.R. 5213, Aug. 18, 1954]

§ 1.36 Public information and requests.

Section 3.102 of this chapter describes the methods by which the Commission makes information available to the public. This section prescribes the rules governing public notice of proceedings, publication of decisions, and public records of the Commission.

(a) Notice of proceedings. Notice of applications, formal complaints, and petitions other than petitions to intervene, is provided for in §§ 1.17 and 1.37. Notice of applications for certificates of public convenience and necessity under section 7 of the Natural Gas Act is provided for by § 157.9 of this chapter. Notice of applications for certificates of public convenience and necessity under section 7 of the Natural Gas Act is provided for by § 157.9 of this chapter. Notice of public sessions and proceedings and of meetings of the Commission is provided by §§ 1.3 and 1.3a of this chapter. Notice of hearings and of initiation or pendency of rulemaking proceedings is provided for in § 1.19. Notice of applications under Part I of the act for preliminary permits and licenses is provided for by §§ 4.31 and 4.81 of this chapter. Notice of proposed alterations or surrenders of license under section 6 of the Federal Power Act may be given by filing and publication in the FEDERAL REGISTER as provided in § 1.19(a), and, where deemed desirable by the Commission, by local newspaper advertisement. Notice of rates charged and changes therein is provided for by the filing requirements of Parts 35 and 154 of this chapter. Any other notice required by statute, rule, regulation, or order, or deemed desirable, may be given

by filing and publication in the FEDERAL REGISTER as provided in § 1.19(a) or by service as provided in § 1.17(a).

(b) Notice and publication of decisions, rules, statements of policy, organization, and operations. Service of intermediate and final decisions upon parties to the proceedings is provided in § 1.30 (a), (b), and (1). Descriptions of the Commission's organization, its methods of operation, statements of policy and interpretations, procedural and substantive rules, and amendments thereto will be filed with and published in the FEDERAL REGISTER. Commission opinions together with accompanying orders, Commission orders, and intermediate decisions will be released to the press and made available to the public promptly. Copies of Commission opinions, orders in the nature of opinions, rulemaking and selected procedural orders, and intermediate decisions which have become final are published in the Federal Power Commission Reports (____FPC____) and may be procured from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, upon payment of prescribed charges.

(c) Public records. The public records of the Commission, available for inspection and copying upon a request reasonably describing the document, during regular business hours in the public reference room maintained by the Office of Public Information, include: (1) All submittals and filings as follows:

(i) Applications, declarations, complaints (both formal and informal), petitions and other papers seeking Commission action;

(ii) Financial and statistical and other reports to the Commission, power system statements, statements of claimed cost of licensed projects, original cost and reclassification studies, proposed accounting entries, certificates of notification (under section 204 (e) of the Federal Power Act), rates or rate schedules and related data and concurrences, and other filings and submittals to the Commission in compliance with the requirement of any statute, executive order, or Commission rule, regulation, order, license, or permit;

(iii) All answers, replies, responses, objections, protests, motions, stipulations, exceptions, other pleadings, notices, depositions, certificates, proofs

of service, transcripts or oral arguments, and briefs in any matter or proceeding;

(iv) All exhibits, attachments and appendices to, amendments and corrections of, supplements to, or transmittals or withdrawals of, any of the foregoing:

(v) Any Commission correspondence relating to any of the foregoing.

(2) All other parts of the formal record in any matter or proceeding set for formal or statutory hearing and any Commission correspondence related thereto. "Matter or proceeding" means the Commission's elucidation of the relevant facts and applicable law, consideration thereof, and action thereupon with respect to a particular subject within the Commission's jurisdiction. initiated by a filing or submittal or a Commission notice or order. "Formal record" includes in addition to all the filings and submittals in a matter or proceeding, any notice or Commission order initiating the matter or proceeding, and, if a hearing is held, the following: The designation of the presiding officer, transcript of hearing, all exhibits received in evidence, all exhibits offered but not received in evidence, offers of proof, motions, stipulation, subpenas, proofs of service, reference to the Commission, and determinations made by the Commission thereon, certifications to the Commission, and anything else upon which action of the presiding officer or the Commission may be based; it does not include any unaccepted offer of settlement made by a party in the course of a proceeding and not formally submitted to the Commission.

(3) Any proposed testimony or exhibit filed with the Commission but not yet offered or received in evidence.

(4) All presiding officer actions and all presiding officer correspondence and memoranda to or from others with the exception of internal communications within the Office of Administrative Law Judges.

(5) All Commission orders, notices, findings, opinions, determinations, and other actions in any matter or proceeding and all Commission minutes which have been approved.

(6) All Commission correspondence relating to any furnishing of data or information, except to or by another branch, department, or agency of the Government.

(7) Commission correspondence' with respect to the furnishing of data, information, comments, or recommendations to or by another branch, department, or agency of the Government where furnished to satisfy a specific requirement of a statute or where made public by that branch, department or agency.

(8) Commission correspondence and reports on legislative matters under consideration by the Bureau of the Budget or Congress but only if and after made public or released for publication by that Bureau or the Committee or Member of Congress involved.

(9) Staff reports on statements of claimed cost by licensees where such reports have been served on the licensee.

(10) Commission correspondence on interpretation of the Uniform System of Accounts and letters on such interpretation signed by the Chief Accountant and sent to others than the Commission, a Commissioner, or any of the staff.

(11) Commission correspondence on the interpretation or applicability of any statute, rule, regulation, order, license, or permit issued or administered by the Commission and letters of opinion on that subject signed by the General Counsel and sent to others than the Commission, a Commissioner, or any of the staff.

(12) Copies of all filings, certifications, pleadings, records, briefs, orders, judgments, decrees, and mandates in court proceedings to which the Commission is a party and all correspondence with the courts or clerks of court.

(13) The Commission's Administrative and Operating Manuals.

(14) Transcripts, electronic recordings, or minutes of Commission meetings closed to public observation containing material nonexempt pursuant to § 1.3a of this Part.

(15) All other records of the Commission except for those that are:

(i) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order;

(11) Related solely to the internal personnel rules and practices of an agency;

(iii) Specifically exempted from disclosure by statute (other than 5 U.S.C. 552b), provided that such statute (A) re

1 As defined in § 1.1(f) (22).

39

quires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(iv) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(v) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(vi) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(vii) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would interfere with enforcement proceedings, deprive a person of a right to a fair trial or an impartial adjudication, constitute an unwarranted invasion of personal privacy, disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, disclose investigative techniques and procedures, or endanger the life or physical safety of law enforcement personnel; or

(viii) Geological and geophysical information and data, including maps, concerning wells.

(15) Any reasonably segregable portion of a record after deletion of the portions which are exempt under this section.

(16) The following are examples of Information which is not part of the public records of the Commission:

(1) Files and records containing facts or information not permitted to be divulged by section 301 of the Federal Power Act or section 8 of the Natural Gas Act because knowledge thereof was gained during the course of examination of books, records, data, or accounts pursuant to those sections and divulgence thereof has not been ordered by the Commission;

(ii) Files and records classified under Executive Order No. 10501, 3 CFR, 194953 Comp., p. 979, for national security purposes;

(iii) Written communications between or among the Commission, members of

the Commission, the Secretary, and expressly designated members of the staff while particularly assigned, in accordance with all applicable legal requirements, to aid the Commission in the drafting of any order and findings, with or without opinion in any matter or proceeding;

(iv) Unaccepted offers of settlement in any matter or proceeding unless or until made public by act of the offeror.

(d) [Reserved]

(e) Index of Commission actions. The Office of Public Information will maintain and make available for public ininspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this section to be made available or published. The index will be published quarterly and copies or supplements thereto will be distributed by sale or otherwise.

(f) Timetables and procedures in event of withholding of public records. (1) The Director of Public Information will determine within ten days (except Saturdays, Sundays, and legal public holidays) after receipt of a request for public records whether to comply with such request and will immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal any adverse determination in writing to the Chairman.

(2) The Chairman, in his capacity as administrative head of the agency pursuant to Section 1 of Reorganization Plan No. 9 of 1950, will make a determination with respect to any appeal within twenty days (except Saturdays, Sundays, and legal public holidays after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the Chairman will notify the person making such request of the provisions for judicial review of that determination.

(3) In unusual circumstances, the time limits prescribed in this section may be extended by the Secretary by written notice to the person making such request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice will specify a date that would result in an extension for more than ten working days in the aggregate. One tenday extension may be invoked at the initial stage, or at the appellate stage,