CFR Subpart G

CFR Subpart G
in effect

18 C.F.R. § 385.701 Applicability (Rule 701).

This subpart applies to decisions in proceedings set for hearing under subpart E of this part, including any decision on a certified question, interlocutory appeal, or reopening, and to any decision on rehearing, except that: (a) The provisions of this subpart, other than those relating to rehearing or reopening, do not apply to consideration of an offer of settlement; and (b) This subpart applies to summary disposition only to the extent provided in Rule 217.

18 C.F.R. § 385.702 Definitions (Rule 702).

For purposes of this subpart: (a) Initial decision means any decision rendered by a presiding officer in accordance with Rule 708; (b) Final decision means any decision referred to in Rule 713.

18 C.F.R. § 385.703 Contents of decisions (Rule 703).

Any decision in a proceeding is part of the record of that proceeding and will contain: (a) A ruling on each exception presented and any finding or conclusion, with supporting reasons, on any material issue of fact, law, or discretion presented on the record; and (b) The appropriate rule, order, sanction, relief, or a denial of any rule, order, motion, or relief.

18 C.F.R. § 385.704 Rights of participants before initial decision (Rule 704).

After testimony is taken in a proceeding, or phase of a proceeding, the presiding officer will afford every participant an opportunity to: (a) Submit written initial briefs in accordance with Rule 706, except that the presiding officer may provide an opportunity for oral argument in lieu of, or in addition to, initial briefs; and (b) Submit written reply briefs in accordance with Rule 706, except that the presiding officer may: (1) Provide an opportunity for oral reply argument in lieu of, or in addition to, reply briefs; or (2) For good cause, deny opportunity for reply or limit the issues which may be addressed in any reply.

18 C.F.R. § 385.705 Additional powers of presiding officer with respect to briefs (Rule 705).

(a) Limitations on briefs. A presiding officer, with due regard to the nature of the proceeding, may limit the length of any brief to be filed under Rule 706. (b) Additional briefs and other filings. If appropriate, the presiding officer may permit or require briefs or other filings in addition to those provided for in Rule 706.

18 C.F.R. § 385.706 Initial and reply briefs before initial decision (Rule 706).

(a) When filed. The presiding officer will prescribe a time for filing initial or reply briefs and for service of such briefs, giving due regard to the nature of the proceeding, the extent of the record, and the number and complexity of the issues. Unless the presiding officer otherwise orders, the time prescribed in a proceeding for filing briefs will be the same for all initial briefs and the same for all reply briefs. (b) Contents. (1) An initial brief filed with the presiding officer must include: (i) A concise statement of the case; (ii) A separate section containing proposed findings and conclusions, unless waived by the presiding officer; (iii) Arguments in support of the participant's position; and (iv) Any other matter required by the presiding officer. (2)(i) A reply brief filed with the presiding officer must be limited to a response to any arguments and issues raised in the initial briefs. (ii) The presiding officer may impose limits on the reply brief in addition to any prescribed under paragraph (b)(2)(i) of this section. (c) Form. (1) An exhibit admitted in evidence or marked for identification in the record may not be reproduced in the brief, but may be reproduced, within reasonable limits, in an appendix to the brief. Any pertinent analysis of an exhibit may be included in a brief. (2) If a brief exceeds 20 pages, the brief must be accompanied by a table of contents and of points made, including page references, and an alphabetical list of citations, with page references. (d) Record. All initial and reply briefs will accompany the record and be available to the Commission and the presiding officer for consideration in deciding the case.

18 C.F.R. § 385.707 Oral argument before initial decision (Rule 707).

(a) Procedure. The presiding officer will designate the order of any oral argument to be held, set a time limit on each argument, and make any other procedural rulings. (b) Scope. (1) If oral argument is held without an initial brief, each participant must be given the opportunity to present orally the information required or permitted to be included in initial briefs under Rule 706(b). (2) If oral argument is held in addition to an initial or reply brief, oral argument may be limited to issues considered by the presiding officer to be appropriate issues for oral argument. (c) Inclusion of transcript of oral argument. All oral arguments will be transcribed and included in the record and will be available to the Commission and the presiding officer in deciding the case.

18 C.F.R. § 385.708 Initial decisions by presiding officer (Rule 708).

(a) Applicability. This section applies to any proceeding in which a presiding officer, other than the Commission, presided over the reception of the evidence. (b) General rule. (1) Except as otherwise ordered by the Commission or provided in paragraph (b)(2) of this section, the presiding officer will prepare a written initial decision. (2)(i) If time and circumstances require, the presiding officer may issue an order stating that an oral initial decision will be issued. (ii) An oral decision is considered served upon all participants when the decision is issued orally on the record. Promptly after service of the oral decision, the presiding officer will prepare the oral initial decision contained in the transcript in the format of a written initial decision. (3) Any initial decision prepared under paragraph (b)(1) or (b)(2) of this section will be certified to the Commission by the presiding officer with a copy of the record in the proceeding. (4) Not later than 35 days after the certification of an initial decision, under paragraph (b)(3) of this section, the presiding officer, after notifying the participants and receiving no objection from them, may make technical corrections to the initial decision. (c) Initial decision prepared and certified by presiding officer. (1) The presiding officer who presides over the reception of evidence will prepare and certify the initial decision, if any, unless the officer is unavailable or the Commission provides otherwise in accordance with 5 U.S.C. 557(b). (2) If the presiding officer who presided over the reception of evidence becomes unavailable, the Chief Administrative Law Judge may issue an order designating another qualified presiding officer to prepare and certify the initial decision. (d) Finality of initial decision. For purposes of requests for rehearing under Rule 713, an initial decision becomes a final Commission decision 10 days after exceptions are due under Rule 711 unless: (1) Exceptions are timely filed under Rule 711; or (2) The Commission issues an order staying the effectiveness of the decision pending review under Rule 712.

18 C.F.R. § 385.709 Other types of decisions (Rule 709).

In lieu of an initial decision under Rule 708, the Commission may order any type of decision as provided by 5 U.S.C. 557(b), or permit waiver of the initial decision as provided by Rule 710.

18 C.F.R. § 385.710 Waiver of the initial decision (Rule 710).

(a) General rule. Any participant may file a motion requesting the Commission to issue a final decision without any initial decision. If all participants join in the motion, the motion is granted, unless the Commission denies the motion within 10 days after the date of filing of the motion or, in the case of an oral motion under paragraph (c)(2) of this section, within 10 days after the motion is transmitted to the Commission. If all participants do not join in the motion, the motion is denied unless the Commission grants the motion within 30 days of filing of the motion or, in the case of an oral motion under paragraph (c)(2) of this section, within 30 days after the motion is transmitted to the Commission. (b) Content. Any motion to waive the initial decision filed with the Commission must specify: (1) Whether any participant waives any procedural right; (2) Whether all participants concur in the request to waive the initial decision; (3) The reasons that waiver of the initial decision is in the interest of parties and the public interest; (4) Whether any participant desires an opportunity for filing briefs; and (5) Whether any participant desires an opportunity for oral argument before the presiding officer, the Commission, or an individual Commissioner. (c) How and when made. (1) Any written motion under this section may be filed at any time, but not later than the fifth day following the close of the hearing conducted under subpart E of this part. (2) An oral motion under this section may be made during a hearing session, in which case the presiding officer will transmit to the Commission the relevant portions of the transcript of the hearing in which the motion was made. (d) Waiver by presiding officer. A motion for waiver of the initial decision, requested for the purpose of certification of a contested settlement pursuant to Rule 602(h)(2)(iii)(A), may be filed with, and decided by, the presiding officer. If all parties join in the motion, the presiding officer will grant the motion. If not all parties join in the motion, the motion is denied unless the presiding officer grants the motion within 30 days of filing the written motion or presenting an oral motion. The contents of any motion filed under paragraph (d) of this section must comply with the requirements in paragraph (b) of this section. A motion may be oral or written, and may be made whenever appropriate for the consideration of the presiding officer.

18 C.F.R. § 385.711 Exceptions and briefs on and opposing exceptions after initial decision (Rule 711).

(a) Exceptions. (1)(i) Any participant may file with the Commission exceptions to the initial decision in a brief on exceptions not later than 30 days after service of the initial decision. (ii) Not later than 20 days after the latest date for filing a brief on exceptions, any participant may file a brief opposing exceptions in response to a brief on exceptions. (iii) A participant may file, within the time set for filing briefs opposing exceptions, a brief on exceptions solely for the purpose of incorporating by reference one or more numbered exceptions contained in the brief of another participant. A brief filed under this clause need not comply with the requirements set forth in paragraph (b) of this section. (2) A brief on exceptions or a brief opposing exceptions may not exceed 100 pages, unless the Chief Administrative Law Judge, upon motion, changes the page limitation. (3) The Secretary may extend, on motion or upon direction of the Commission, the time limits for any brief on or opposing exceptions. No additional briefs are permitted, unless specifically ordered by the Commission. (4) A participant may not attach to, or incorporate by reference in, any brief on exceptions or brief opposing exceptions any portion of an initial or reply brief filed in the proceeding. (b) Nature of briefs on exceptions and of briefs opposing exceptions. (1) Any brief on exceptions and any brief opposing exceptions must include: (i) If the brief exceeds 10 pages in length, a separate summary of the brief not longer than five pages; and (ii) A presentation of the participant's position and arguments in support of that position, including references to the pages of the record or exhibits containing evidence and arguments in support of that position. (2) Any brief on exceptions must include, in addition to matters required by paragraph (b)(1) of this section: (i) A short statement of the case; (ii) A list of numbered exceptions, including a specification of each error of fact or law asserted; and (iii) A concise discussion of the policy considerations that may warrant full Commission review and opinion. (3) A brief opposing exceptions must include, in addition to matters required by paragraph (b)(1) of this section: (i) A list of exceptions opposed, by number; and (ii) A rebuttal of policy considerations claimed to warrant Commission review. (c) Oral argument. (1) Any participant filing a brief on exceptions or brief opposing exceptions may request, by written motion, oral argument before the Commission or an individual Commissioner. (2) A motion under paragraph (c)(1) of this section must be filed within the time limit for filing briefs opposing exceptions. (3) No answer may be made to a motion under paragraph (c)(1) and, to that extent, Rule 213(a)(3) is inapplicable to a motion for oral argument. (4) A motion under paragraph (c)(1) of this section may be granted at the discretion of the Commission. If the motion is granted, any oral argument will be limited, unless otherwise specified, to matters properly raised by the briefs. (d) Failure to take exceptions results in waiver—(1) Complete waiver. If a participant does not file a brief on exceptions within the time permitted under this section, any objection to the initial decision by the participant is waived. (2) Partial waiver. If a participant does not object to a part of an initial decision in a brief on exceptions, any objections by the participant to that part of the initial decision are waived. (3) Effect of waiver. Unless otherwise ordered by the Commission for good cause shown, a participant who has waived objections under paragraph (d)(1) or (d)(2) of this section to all or part of an initial decision may not raise such objections before the Commission in oral argument or on rehearing.

18 C.F.R. § 385.712 Commission review of initial decisions in the absence of exceptions (Rule 712).

(a) General rule. If no briefs on exceptions to an initial decision are filed within the time established by rule or order under Rule 711, the Commission may, within 10 days after the expiration of such time, issue an order staying the effectiveness of the decision pending Commission review. (b) Briefs and argument. When the Commission reviews a decision under this section, the Commission may require that participants file briefs or present oral arguments on any issue. (c) Effect of review. After completing review under this section, the Commission will issue a decision which is final for purposes of rehearing under Rule 713.

18 C.F.R. § 385.713 Request for rehearing (Rule 713).

(a) Applicability. (1) This section applies to any request for rehearing of a final Commission decision or other final order, if rehearing is provided for by statute, rule, or order. (2) For the purposes of rehearing under this section, a final decision in any proceeding set for hearing under subpart E of this part includes any Commission decision: (i) On exceptions taken by participants to an initial decision; (ii) When the Commission presides at the reception of the evidence; (iii) If the initial decision procedure has been waived by consent of the participants in accordance with Rule 710; (iv) On review of an initial decision without exceptions under Rule 712; and (v) On any other action designated as a final decision by the Commission for purposes of rehearing. (3) For the purposes of rehearing under this section, any initial decision under Rule 709 is a final Commission decision after the time provided for Commission review under Rule 712, if there are no exceptions filed to the decision and no review of the decision is initiated under Rule 712. (b) Time for filing; who may file. A request for rehearing by a party must be filed not later than 30 days after issuance of any final decision or other final order in a proceeding. (c) Content of request. Any request for rehearing must: (1) State concisely the alleged error in the final decision or final order; (2) Conform to the requirements in Rule 203(a), which are applicable to pleadings, and, in addition, include a separate section entitled “Statement of Issues,” listing each issue in a separately enumerated paragraph that includes representative Commission and court precedent on which the party is relying; any issue not so listed will be deemed waived; and (3) Set forth the matters relied upon by the party requesting rehearing, if rehearing is sought based on matters not available for consideration by the Commission at the time of the final decision or final order. (d) Answers. (1) The Commission will not permit answers to requests for rehearing. (2) The Commission may afford parties an opportunity to file briefs or present oral argument on one or more issues presented by a request for rehearing. (e) Request is not a stay. Unless otherwise ordered by the Commission, the filing of a request for rehearing does not stay the Commission decision or order. (f) Commission action on rehearing. Unless the Commission acts upon a request for rehearing within 30 days after the request is filed, the request is denied.

18 C.F.R. § 385.714 Certified questions (Rule 714).

(a) General rule. During any proceeding, a presiding officer may certify or, if the Commission so directs, will certify, to the Commission for consideration and disposition any question arising in the proceeding, including any question of law, policy, or procedure. (b) Notice. A presiding officer will notify the participants of the certification of any question to the Commission and of the date of any certification. Any such notification may be given orally during the hearing session or by order. (c) Presiding officer's memorandum; views of the participants. (1) A presiding officer should solicit, to the extent practicable, the oral or written views of the participants on any question certified under this section. (2) The presiding officer must prepare a memorandum which sets forth the relevant issues, discusses all the views of participants, and recommends a disposition of the issues. (3) The presiding officer must append to any question certified under this section the written views submitted by the participants, the transcript pages containing oral views, and the memorandum of the presiding officer. (d) Return of certified question to presiding officer. If the Commission does not act on any certified question within 30 days after receipt of the certification under paragraph (a) of this section, the question is deemed returned to the presiding officer for decision in accordance with the other provisions of this subpart. (e) Certification not suspension. Unless otherwise directed by the Commission or the presiding officer, certification under this section does not suspend the proceeding.

18 C.F.R. § 385.715 Interlocutory appeals to the Commission from rulings of presiding officers (Rule 715).

(a) General rule. A participant may not appeal to the Commission any ruling of a presiding officer during a proceeding, unless the presiding officer under paragraph (b) of this section, or the motions Commissioner, under paragraph (c) of this section, finds extraordinary circumstances which make prompt Commission review of the contested ruling necessary to prevent detriment to the public interest or irreparable harm to any person. (b) Motion to the presiding officer to permit appeal. (1) Any participant in a proceeding may, during the proceeding, move that the presiding officer permit appeal to the Commission from a ruling of the presiding officer. The motion must be made within 15 days of the ruling of the presiding officer and must state why prompt Commission review is necessary under the standards of paragraph (a) of this section (2) Upon receipt of a motion to permit appeal under subparagraph (a)(1) of this section, the presiding officer will determine, according to the standards of paragraph (a) of this section, whether to permit appeal of the ruling to the Commission. The presiding officer need not consider any answer to this motion. (3) Any motion to permit appeal to the Commission of an order issued under Rule 604, or appeal of a ruling under paragraph (a) or (b) of Rule 905, must be granted by the presiding officer. (4) A presiding officer must issue an order, orally or in writing, containing the determination made under paragraph (b)(2) of this section, including the date of the action taken. (5) If the presiding officer permits appeal, the presiding officer will transmit to the Commission: (i) A memorandum which sets forth the relevant issues and an explanation of the rulings on the issues; and (ii) the participant's motion under paragraph (b)(1) of this section and any answer permitted to the motion. (6) If the presiding officer does not issue an order under paragraph (b)(1) of this section within 15 days after the motion is filed under paragraph (b)(1) of this section, the motion is denied. (c) Appeal of a presiding officer's denial of motion to permit appeal. (1) If a motion to permit appeal is denied by the presiding officer, the participant who made the motion may appeal the denial to the Commissioner who is designated Motions Commissioner, in accordance with this paragraph. For purposes of this section, “Motions Commissioner” means the Chairman or a member of the Commission designated by the Chairman to rule on motions to permit interlocutory appeal. Any person filing an appeal under this paragraph must serve separate copies of the appeal on the Motions Commissioner and on the General Counsel by Express Mail or by hand delivery. (2) A participant must submit an appeal under this paragraph not later than 7 days after the motion to permit appeal under paragraph (b) of this section is denied. The appeal must state why prompt Commission review is necessary under the standards set forth in paragraph (c)(5) of this section. The appeal must be labeled in accordance with § 385.2002(b) of this chapter. (3) A participant who appeals under this paragraph must file with the appeal a copy of the written order denying the motion or, if the denial was issued orally, the relevant portions of the transcript. (4) The Motions Commissioner may, in considering an appeal under this paragraph, order the presiding officer or any participant in the proceeding to provide additional information. (5) The Motions Commissioner will permit an appeal to the Commission under this paragraph only if the Motions Commissioner finds extraordinary circumstances which make prompt Commission review of the contested ruling necessary to prevent detriment to the public interest or to prevent irreparable harm to a person. If the Motions Commissioner makes no determination within 7 days after filing the appeal under this paragraph or within the time the Motions Commissioner otherwise provides to receive and consider information under this paragraph, the appeal to the Commission under paragraph (b) of this section will not be permitted. (6) If appeal under paragraph (b) of this section is not permitted, the contested ruling of the presiding officer will be reviewed in the ordinary course of the proceeding as if the appeal had not been made. (7) If the Motions Commissioner permits an appeal to the Commission, the Secretary will issue an order containing that decision. (d) Commission action. Unless the Commission acts upon an appeal permitted by a presiding officer under paragraph (b) of this section, or by the Motions Commissioner under paragraph (c) of this section, within 15 days after the date on which the presiding officer or Motions Commissioner permits appeal, the ruling of the presiding officer will be reviewed in the ordinary course of the proceeding as if the appeal had not been made. (e) Appeal not to suspend proceeding. Any decision by a presiding officer to permit appeal under paragraph (b) of this section or by the Motions Commissioner to permit an appeal under paragraph (c) of this section will not suspend the proceeding, unless otherwise ordered by the presiding officer or the Motions Commissioner.

18 C.F.R. § 385.716 Reopening (Rule 716).

(a) General rule. To the extent permitted by law, the presiding officer or the Commission may, for good cause under paragraph (c) of this section, reopen the evidentiary record in a proceeding for the purpose of taking additional evidence. (b) By motion. (1) Any participant may file a motion to reopen the record. (2) Any motion to reopen must set forth clearly the facts sought to be proven and the reasons claimed to constitute grounds for reopening. (3) A participant who does not file an answer to any motion to reopen will be deemed to have waived any objection to the motion provided that no other participant has raised the same objection. (c) By action of the presiding officer or the Commission. If the presiding officer or the Commission, as appropriate, has reason to believe that reopening of a proceeding is warranted by any changes in conditions of fact or of law or by the public interest, the record in the proceeding may be reopened by the presiding officer before the initial or revised initial decision is served or by the Commission after the initial decision or, if appropriate, the revised initial decision is served.

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