there shall be filed with the Commission an original or certified copy of the power of attorney or other document authorizing the person to sign. [Rule 8(b).] § 502.113 Service by the Commission.

Complaints filed pursuant to § 502.62 (Rule 5(b)), amendments to complaints, and complainant's memoranda filed in shortened procedure cases will be served by the Commission. In addition to and accompanying the original of every document filed with the Commision for service by the Commission, there shall be a sufficient number of copies for use of the Commission (see § 502.118 (Rule 8(h)) and for service on each party to the proceeding. [Rule 8(c).]

Except as otherwise specifically provided by the rules in this part, all pleadings, documents, and papers of every kind (except requests for subpenas) in proceedings before the Commission under the rules in this part (other than documents served by the Commission under § 502.113 (Rule 8(c)) and documents submitted at a hearing or prehearing conference) shall, when tendered to the Commission or the presiding officer for filing, show that service has been made upon all parties to the proceeding and upon any other persons required by the rules in this part to be served. Such service shall be made by delivering one copy to each party in person or by mail, properly addressed with postage prepaid, and mailed in sufficient time to reach the parties on the date on which the original is due to be filed with the Commission. [Rule 8(d).] Service on attorney or other § 502.115

representative.

When a party has appeared by attorney or other representative, service upon each attorney or other representative of record will be deemd service upon the party: Provided, however, That if two or more attorneys of record are partners or associates of the same firm, only one of them need be served. [Rule 8(e).]

§ 502.116 Date of service.

The date of service of documents served by the Commission shall be the date shown in the service stamp thereon. The date of service of documents served by parties shall be the day when the matter served is deposited in the United States mail, or is delivered in person, as the case may be. In computing the time

The original of every document filed with the Commission and required to be served upon all parties to a proceeding shall be accompanied by a certificate of service signed by the party making service, stating that such service has been made upon each party to the proceeding. Certificates of service may be in substantially the following form:

I hereby certify that I have this day served the foregoing document upon all parties of record in this proceeding by mailing (or by delivering in person), a copy to each such person in sufficient time to reach such person on the date document is due to be filed with the Commission. Dated at day of

(Signature) (For)

[Rule 8(g).]

-

this 19__.

§ 502.118 Copies of documents for use of the Commission.

Except as otherwise provided in the rules in this part, the original and fifteen (15) copies of every document filed and served in proceedings before the Commission, except exhibits made a part of the record, shall be furnished for the Commission's use. If a certificate of service accompanied the original document, a copy of such certificate shall be attached to each such copy of the document. [Rule 8(h).]

Subpart 1-Subpenas (Rule 9)

Subpenas for the attendance of witnesses or the production of evidence shall be issued upon request of any party, without notice to any other party. Requests for subpenas for the attendance of witnesses may be made orally or in writing; requests for subpenas for the production of evidence shall be in writing. The party requesting the subpena shall tender to the presiding officer an original and at least two copies of such subpena. Where it appears to the presiding officer that the subpena sought may be unreasonable, oppressive, excessive in scope, or unduly burdensome, he may in his discretion, as a condition precedent to the issuance of the subpena, require the person seeking the subpena to show the general relevance and rea

sonable scope of the testimony or other evidence sought. [Rule 9(a).]

§ 502.132 Motions to quash or modify.

(a) Except when issued at a hearing, within ten (10) days after service of a subpena for attendance of a witness or a subpena for production of evidence, but in any event at or before the time specified in the subpena for compliance therewith, the person to whom the subpena is directed may, by motion with notice to the party requesting the subpena, petition the presiding officer to quash or modify the subpena.

(b) If served at the hearing, the person to whom the subpena is directed may, by oral application at the hearing, within a reasonable time fixed by the presiding officer, petition the presiding officer to revoke or modify the subpena. [Rule 9(b).]

§ 502.133 Attendance and mileage fees. Witnesses summoned by subpena to a hearing are entitled to the same fees and mileage that are paid to witnesses in courts of the United States. Fees and mileage shall be paid, upon request, by the party at whose instance the witness appears. [Rule 9(c).]

§ 502.134 Service of subpenas.

If service of subpena is made by a United States marshal, or his deputy, or an employee of the Commission, such service shall be evidenced by his return thereon. If made by any other person, such person shall make affidavit thereto, describing the manner in which service is made, and 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 the original subpena shall be exhibited to the person served, shall be read to him if he is unable to read, and a copy thereof shall be left with him. The original subpena, bearing or accompanied by required return, affidavit, or statement, shall be returned without delay to the Commission, or if so directed on the subpena, to the presiding officer before whom the person named in the subpena is required to appear. [Rule 9(d).]

§ 502.135 Subpena of Commission employees, documents or things.

A subpena for the attendance of a Commission employee, or for the production of Commission evidence, shall be

served upon the General Counsel. The General Counsel may file a motion to quash the subpena within five (5) days of service of the subpena and prohibit such attendance until such time as the presiding officer rules on the motion to quash. [Rule 9(e).]

Subpart J-Hearings; Presiding
Officers; Evidence (Rule 10)

§ 502.141 Hearings not required by

statute.

The Commission may call informal public hearings, not required by statute, to be conducted under the rules in this part where applicable, for the purpose of rule making or to obtain information necessary or helpful in the determination of its policies or the carrying out of its duties, and may require the attendance of witnesses and the production of evidence. [Rule 10(a).]

§ 502.142 Hearings required by statute. In complaint and answer cases, investigations on the Commission's own motion, and in other rule making and adjudication proceedings in which a hearing is required by statute, formal hearings shall be conducted pursuant to section 7 of the Administrative Procedure Act. [Rule 10(b).]

§ 502.143 Notice of nature of hearing, jurisdiction, and issues.

Persons entitled to notice of hearings, except those notified by complaint served under § 502.113 (Rule 8 (c)), will be duly and timely informed of (a) the nature of the proceeding, (b) the legal authority and jurisdiction under which the proceeding is conducted, and (c) the terms, substance, and issues involved, or the matters of fact and law asserted, as the case may be. Such notice shall be published in the FEDERAL REGISTER unless all persons subject thereto are named and either are personally served or otherwise have actual notice thereof in accordance with law. [Rule 10(c).] § 502.144 Notice of time and place of

hearing.

Notice of hearing will designate the time and place thereof, the person or persons who will preside, and the kind of decision to be issued. The date or place of a hearing for which notice has been issued may be changed when warranted. Reasonable notice will be given to the parties or their representatives of the time and place of the change there

The examiners of the Commission's Office of Hearing Examiners will be designated by the Chief Examiner to preside at hearings required by statute, in rotation so far as practicable, unless the Commission or one or more members thereof shall preside; and also at hearings not required by statute when designated to do so by the Commission. If the presiding officer assigned to a proceeding becomes unavailable to the Commission, the Commission or (if such presiding officer was a hearing examiner) the Chief Examiner shall designate a qualified officer to take his place. Any motion predicated upon the substitution of a new presiding officer for one originally designated shall be made within ten (10) days after notice of such substitution. [Rule 10(e).]

§ 502.146 Commencement of functions of Office of Hearing Examiners. In proceedings handled by the Office of Hearing Examiners, its functions shall attach (a) upon the service by the Commission of a complaint filed pursuant to § 502.62 (Rule 5(b)), or (b) by reference by the Commission of a petition for a declaratory order pursuant to § 502.68 (Rule 5 (h)), or (c) the filing of a special docket application pursuant to § 502.92 (Rule 6(b)), or (d) upon the initiation of a proceeding and ordering of hearing before a hearing examiner. [Rule 10 (1).]

§ 502.147 Functions and powers.

(a) of presiding officer. The officer designated to hear a case shall have authority to arrange and give notice of hearing; sign and issue subpenas authorized by law; take or cause depositions to be taken; rule upon proposed amendments or supplements to pleadings; hold conferences for the settlement or simplification of issues by consent of the parties; regulate the course of the hearing; prescribe the order in which evidence shall be presented; dispose of procedural requests or similar matters; hear and rule upon motions, administer oaths and affirmations; examine witnesses; direct witnesses to testify or produce evidence available to them which will aid in the determination of any question of

fact in issue; rule upon offers of proof and receive relevant, material, reliable and probative evidence; act upon petitions to intervene; permit submission of facts, arguments, offers of settlement, and proposals of adjustment; hear oral argument at the close of testimony; fix the time for filing briefs, motions, and other documents to be filled in connection with hearings and the examiner's decision thereon, except as otherwise provided by the rules in this part; act upon petitions for enlargement of time to file such documents including answers to formal complaints; and dispose of any other matter that normally and properly arises in the course of proceedings. The presiding officer or the Commission may exclude any person from a hearing for disrespectful, disorderly, or contumacious language or conduct.

(b) Of Chief Examiner when presiding officer is unavailable. When the presiding officer is unavailable for any reason, and the exercise of any of his powers and functions, as described in the rules in this part, is due, timely, and necessary, the Chief Examiner (or his designee) may exercise such powers and functions until said presiding officer becomes available or until his successor is designated. (c) All of the functions delegated in Subparts A to Q (Rule 1-17) of this part, inclusive, to the Chief Examiner, presiding officer, or hearing examiner include the functions with respect to hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business, or matter, pursuant to the provisions of section 105 of Reorganization Plan No. 7 of 1961. [Rule 10(g).]

§ 502.148 Consolidation of proceedings.

The Commission, the Chief Examiner (or his designee) may order two or more proceedings which involve substantially the same issues consolidated and heard together. [Rule 10 (h).]

§ 502.150 Further evidence required by presiding officer during hearing.

At any time during the hearing the presiding officer may call for further evidence upon any issue, and require such evidence where available to be presented by the party or parties concerned, either at the hearing or adjournment thereof. [Rule 10(j).]

§ 502.151 Exceptions to rulings of presiding officer unnecessary.

Formal exceptions to rulings of the presiding officer are unnecessary. It is sufficient that a party, at the time the ruling of the presiding officer is made or sought, makes known the action which he desires the presiding officer to take or his objection to an action taken, and his grounds therefor. [Rule 10(k).]

§ 502.152 Offer of proof.

An 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. [Rule 10 (1).]

§ 502.153 Appeal from ruling of presiding officer.

Rulings of the presiding officer may not be appealed prior to, or during the course of the hearing except where the presiding officer shall grant a motion for dismissal of the proceeding in whole or in part, or shall find it necessary to allow an appeal to the Commission to prevent substantial delay, expense, or detriment to the public interest, or undue prejudice to a party. An appeal under this section shall be made within ten (10) days of the service of the presiding officer's ruling. The provisions of § 502.10 (Rule 1(j)) shall not apply to this section. [Rule 10(m).]

§ 502.154 Rights of parties as to presentation of evidence.

Every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such crossexamination as may be required for a full and true disclosure of the facts.

The presiding officer shall, however, have the right and duty to limit the introduction of evidence and the examination and cross-examination of witnesses when in his judgment such evidence or examination is cumulative or is productive of undue delay in the conduct of the hearing. [Rule 10(n).]

§ 502.155 Burden of proof.

At any hearing in a suspension proceeding under section 3 of the Intercoastal Shipping Act, 1933 (§ 502.67) (Rule 5(g)) the burden of proof to show that the suspended rate, fare, charge, classification, regulation, or practice is just and reasonable shall be upon the respondent carrier or carriers. In all other cases, the burden shall be on the proponent of the rule or order. [Rule 10(o).]

(a) The use of written statements in lieu of oral testimony shall be resorted to where the presiding officer in his discretion rules that such procedure is appropriate. The statements shall be numbered in paragraphs, and each party in his rebuttal shall be required to list the paragraphs to which he objects, giving an indication of his reasons for objecting. Statistical exhibits shall contain a short commentary explaining the conclusions which the offeror draws from the data. Any portion of such testimony which is argumentative shall be excluded. Where written statements are used, copies of the statement and any rebuttal statement shall be furnished to all parties, as shall copies of exhibits. The examiner shall fix respective dates for the exchange of such written rebuttal statements and exhibits in advance of the hearing to enable study by the parties of such testimony. Thereafter the parties shall endeavor to stipulate as many of the facts set forth in the written testimony as they may be able to agree upon. Oral examination of witnesses shall thereafter be confined to facts which remain in controversy, and a reading of the written statements at the hearing will be dispensed with unless the presiding officer otherwise directs.

(b) Where a formal hearing is held in a rulemaking proceeding, interested persons will be afforded an opportunity to participate through submission of relevant, material, reliable and probative written evidence properly verified: Provided, That such evidence submitted by persons not present at the hearing will not be made a part of the record if objected to by any party on the ground that the person who submits the evidence is not present for cross-examination. [Rule 10(q).]

§ 502.158 Documents containing matter not material.

Where written matter offered in evidence is embraced in a document containing other matter which is not intended to be offered in evidence, the party offering shall present the original document to all parties at the hearing for their inspection, and shall offer a true copy of the matter which is to be introduced unless the presiding officer determines that the matter is short enough to be read into the record. Opposing parties shall be afforded an opportunity to introduce in evidence, in like manner, other portions of the original document which are material and relevant. [Rule 10(r).]

§ 502.159 Copies of exhibits.

One copy of each exhibit shall be furnished to the official reporter, to each of the parties present at the hearing and to the presiding officer unless he directs otherwise. [Rule 10(s).]

§ 502.160

Records in other proceedings. When any portion of the record before the Commission in any proceeding other than the one being heard is offered in evidence, a true copy of such portion shall be presented for the record in the form of an exhibit unless the parties represented at the hearing stipulate upon the record that such portion may be incorporated by reference. [Rule 10(t).] § 502.161 Commission's files.

Where any matter contained in a tariff, report, or other document on file with the Commission is offered in evidence, such document need not be produced or marked for identification, but the matter so offered shall be specified in its particularity, giving tariff number and page number of tariff, report, or document in such manner as to be readily identified, and may be received in evidence by reference, subject to com

86-102-68-36

parison with the original document on file. [Rule 10(u).]

§ 502.162 Stipulations.

The parties may, by stipulation, agree upon any facts involved in the proceeding and include them in the record with the consent of the presiding officer. It is desirable that facts be thus agreed upon whenever practicable. Written stipulations shall be subscribed and shall be served upon all parties of record unless presented at the hearing or prehearing conference. [Rule 10(v).]

§ 502.163 Receipt of documents after hearing.

Documents or other writings to be submitted for the record after the close of the hearing will not be received in evidence except upon permission of the presiding officer. Such documents or other writings when submitted shall be accompanied by a statement that copies have been served upon all parties, and shall be received, except for good cause shown, not later than ten (10) days after the close of the hearing and not less than ten (10) days prior to the date set for filing briefs. Exhibit numbers will not be assigned until such documents are actually received and incorporated in the record. [Rule 10 (w).]

§ 502.164 Oral argument at hearings.

Oral argument at the close of testimony may be ordered by the presiding officer in his discretion. [Rule 10(x).] § 502.165 Official transcript.

The Commission will designate the official reporter for all hearings. The official transcript of testimony taken, together with any exhibits and any briefs or memoranda of law filed therewith, shall be filed with the Commission. Transcripts of testimony will be available in any proceeding under the rules in this part, and will be supplied by the official reporter to the parties and to the public, except when required for good cause to be held confidential, at rates not to exceed the maximum rates fixed by contract between the Commission and the reporter. [Rule 10(y).]

§ 502.166 Corrections of transcript.

Motions made at the hearing to correct the record will be acted upon by the presiding officer. Motions made after the hearing to correct the record shall be filed with the presiding officer within ten (10) days after receipt of the tran