whether filed by mail, telegraph or otherwise, shall be deemed to have been filed with the AEC as of the time received in the Office of the Secretary at the AEC's offices in Germantown, Maryland, or in the AEC Public Document Room, 1717 H Street NW., Washington, D. C.

(b) In any case involving an application for an export license under § 50.44 of this chapter, a petition to intervene with respect to such application must be served upon the parties and filed with the AEC within 30 days after publication in the FEDERAL REGISTER of a notice of the filing of such application.

(c) As soon as is practicable after filing of a petition and the hearing of argument, if any, the Commission will issue and serve an order either permitting or denying intervention. If the order is a denial of intervention, it shall contain a statement of the grounds. If a petition is filed after a notice of hearing has been issued, the designated presiding officer will act upon the petition. An order permitting intervention may be conditioned upon such terms as the Commission or presiding officer may direct.

[21 F. R. 805, Feb. 4, 1956, as amended at 22 F. R. 7679, Sept. 27, 1957; 23 F. R. 5064, July 3, 1958]

$ 2.706 Effect of intervention or denial thereof. (a) A person permitted to intervene becomes a party to the proceeding.

(b) Where a notice of hearing has been issued or a hearing has begun, the admission thereafter of an intervener shall not of itself enlarge or alter the issues without amendment as provided in § 2.741.

(c) An order denying intervention I will be without prejudice to any proposed limited appearance by the petitioner as one who is not a party for the purposes provided in § 2.731.

§ 2.707 Consolidation. Upon motion and good cause shown or upon its own initiative, the Commission may contemporaneously consider or consolidate for hearing or for other purposes two or more proceedings if it finds that such action will be conducive to the proper dispatch of its business and to the ends of justice.

§ 2.708 Hearings, formal and informal. Hearings will be either formal or informal. Formal hearings will be held in cases of adjudication, as that

term is used in the Administrative Procedure Act, unless the parties otherwise agree, and in such other cases as may specifically be directed. Informal hearings will normally be held for the purposes of obtaining necessary or useful information, and affording participation by interested persons, in the formulation, amendment, or rescission of rules and regulations.

§ 2.709 Authority to administer oaths and affirmations. Any oath or affirmation required by or pursuant to the regulations in this chapter may be administered by any person authorized to administer oaths for general purposes by the laws of the United States, or the laws of any state, territory or possession of the United States, or of the District of Columbia, or the Commonwealth of Puerto Rico, wherein such oath or affirmation is administered, or by any consular officer of the United States. This section shall not be construed as an exclusive enumeration of the persons who may administer such oaths or affirmations.

INFORMAL HEARINGS

§ 2.720 Informal hearing procedure. The procedure to be followed in informal hearings shall be such as will best serve the purpose of the hearing. For example, an informal hearing may consist of the submission of written data, views, or arguments with or without oral argument, or may partake of the nature of a conference, or may assume some of the aspects of a formal hearing in which the subpena of witnesses and the production of evidence may be permitted or directed.

§ 2.730

FORMAL HEARINGS

Parties. The parties to a formal hearing shall be AEC, the licensee or applicant as the case may be, and any person permitted to intervene pursuant to § 2.705.

§ 2.731 Limited appearances by persons not parties. With the consent of the presiding officer, limited appearances may be entered without request for or grant of permission to intervene by persons who are not parties to a hearing. With the consent of the presiding officer, and on due notice to the parties, such persons may make oral or written statements of their position on the issues involved in the proceeding, but may not otherwise participate in the hearing.

§ 2.732 Designation of presiding officer, disqualification, unavailability. (a) There will be designated to preside at hearings one or more members of the Commission, or an officer or board to whom has been delegated final authority in the matter with which the hearing is concerned, or a hearing examiner appointed pursuant to section 11 of the Administrative Procedure Act. To the extent practicable, the name of the presiding officer designated will be included in the notice of hearing or, if omitted from the notice, made known to the parties or public as soon as is possible thereafter, prior to the holding of the hearing.

(b) Whenever a presiding officer deems himself disqualified he shall notify the Commission and withdraw from the hearing. Any party shall have 7 days, but not beyond expiration of the hearing unless further extended for good cause shown, after notice or knowledge of the designation of the presiding officer in which to file a request that the presiding officer withdraw on the ground of personal bias or other disqualification. The request shall be accompanied by an affidavit setting forth the facts alleged to constitute the ground for disqualification. The presiding officer may file a response thereto. If the presiding officer believes himself not disqualified, he may so rule and proceed with the hearing; and in such case, the Commission will determine the matter only as a part of the decision in the case where exceptions are filed to the presiding officer's intermediate decision. The presiding officer may, in his discretion, certify the question to the Commission for consideration and disposition, and suspend the hearing until the Commission has ruled on the question.

(c) Whenever a presiding officer becomes unavailable in the course of a hearing another presiding officer will be designated. If the presiding officer becomes unavailable after the taking of evidence at a hearing has been concluded, in lieu of designating another presiding officer the Commission may direct that the record be forwarded to it for decision.

§ 2.733 Powers of presiding officers. From the date of his designation in a case until transfer of the case to the Commission, or expiration of the time for filing exceptions to his intermediate de

(a)

§ 2.734 Separation of functions. Hearing examiners appointed pursuant to section 11 of the Administrative Procedure Act shall perform no duties inconsistent with their duties and responsibilities as presiding officers, and shall not be responsible to or subject to the supervision or direction of any officer or employee engaged in the performance of investigative or prosecuting functions for AEC.

(b) In any case of adjudication other than initial licensing,

(1) The presiding officer, unless he is a member of the Commission or officer having final authority in the case, may not consult any person or party on any fact in issue except upon notice and opportunity for all parties to participate, save to the extent required for the disposition of ex parte matters as authorized by law;

(2) No officer or employee of AEC, other than a member of the Commission or officer having final authority in the case, who has engaged in the performance of any investigative or prosecuting function in the case or a factually related case may participate or advise in the intermediate or final decision, except as witness or counsel in the formal hearing.

§2.735 Notice of hearing. (a) Whenever a hearing is granted, AEC will give timely notice of the hearing to all parties and to other persons, if any, entitled to notice. Such notice will state the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing is to be held; the matters of fact and law asserted or to be considered, which will be identified as the "Specification of Issues"; and a request for an answer. The time and place for hearing will be fixed with due regard for the convenience and necessity of the parties or their representatives.

(b) The notice of hearing may be a separate notice or when appropriate may be embodied in an order to show cause or other order.

(c) The procedure for issuance of the notice of hearing and specifying of the issues by AEC shall not affect the burden of proof.

§ 2.736 Answer. (a) Within the time allowed by the notice of hearing for filing and serving an answer, and as required, the answer of a licensee or applicant shall fully advise AEC and any other parties as to the nature of the defense or other position of the answering party, the items of the specification of issues he proposes to controvert and those he does not controvert, and whether or not he proposes to appear and present evidence. If facts are alleged in the specification of issues the answer shall admit or deny specifically each allegation of fact; or where knowledge is lacking, the answer may so state and the statement shall operate as a denial. Allegations of fact not denied shall be deemed to be admitted. Matters alleged as affirmative defenses or positions shall be separately stated and identified and, in the absence of a reply, shall be deemed to be controverted. The answer of an intervener shall fully advise AEC and other parties of his position and whether or not he proposes to appear and present evidence.

(b) If a party does not oppose any order or proposed action of AEC embodied in or accompanying the notice of hearing or does not wish to appear and give evidence at the hearing, the answer shall so state. In lieu of appearing, the party may if he chooses submit a statement of reasons why the proposed order or sanction should not be issued or should be different than proposed, and the Commission will attribute such

weight as it deems deserving to the written reasons.

§ 2.737 Reply. In appropriate cases AEC may file and serve a reply to the answer or, if the answer affects other parties to the proceeding, may permit such parties to file and serve a reply.

§ 2.738 Default. Failure of a party to file and serve an answer within the time provided in the notice of hearing or as prescribed in this part or to appear at a hearing, shall be deemed to authorize the Commission, in its discretion, as to such party (a) to find the facts alleged in the specification of issues to be true and to enter such finding or order as may be appropriate, without further notice or hearing; or (b) to proceed to take proof, without further notice, on the allegations or issues set forth in the specification of issues.

§ 2.739 Admissions. After answer has been filed, any party may file and serve upon the opposing side a written request for the admission of the genuineness and authenticity of any relevant documents described in or attached to the request or for the admission of the truth of any relevant matters of fact stated in the request. Each matter for which an admission is requested shall be deemed admitted unless within the time designated in the request, but not less than 10 days after service thereof or such further time as the presiding officer may allow upon motion and notice, the party to whom the request is directed serves upon the requesting party a sworn statement either denying the matters upon which the admission is requested or setting up the reasons why he cannot truthfully admit or deny such matters.

(a)

§ 2.740 Prehearing conferences. In order to provide opportunity for the settlement of a proceeding or any of the issues therein, or for agreement upon procedural and other matters, there may be held at any time prior to or during a hearing, upon due notice of the time and place given to all parties, such conferences of the parties as, in the discretion of the presiding officer, time, the nature of the proceeding, and the public interest may permit.

(b) Action taken at a prehearing conference may be recorded for appropriate use at the hearing in the form of a written stipulation among the parties reciting the matters upon which there

has been agreement. The stipulation shall be binding upon the parties thereto. § 2.741 Amendments. At any time prior to the time fixed for hearing but not later than five days prior, the party responsible for the specification of issues, answer, or reply, respectively, may amend the same by filing an amendment and serving it upon the parties. At any time thereafter, amendments may be permitted in the discretion of the presiding officer upon such terms as he shall prescribe.

§ 2.742 Hearings, public. Except as may be required pursuant to section 181 of the act, hearings shall be public.

CROSS REFERENCE: For regulations with respect to special procedures applicable to adJudicatory proceedings involving restricted data, see Subpart H of this part.

§ 2.743 Official reporter, transcript. Hearings shall be reported under the supervision of the presiding officer, stenographically or by other means, by an official reporter, who may be designated from time to time by AEC or may be a regular employee of AEC. The transcript of the report shall be a part of the record and the sole official transcript of the proceeding. Except as limited pursuant to section 181 of the act or order of the Commission, the transcript will be open for inspection at AEC offices and copies may be obtained from the official reporter upon payment of the charges fixed therefor. Errors in the transcript may be corrected by order of the presiding officer following a notice of motion to correct filed and served on the affected parties within 10 days after notice that the completed transcript has been received by AEC, or as otherwise agreed upon by the parties and approved by the presiding officer.

§ 2.744 Subpenas. (a) Upon application by any party to a hearing, the designated presiding officer or, if he is not available, a member of the Commission or other designated officer will issue to such party subpenas requiring the attendance and testimony of witnesses or the production of evidence in the hearing. In his discretion, the officer to whom application is made may require from the requesting party a showing of general relevance of the testimony or evidence sought and may withhold issuance of the subpena if such showing is not made; but such officer shall not attempt to determine the admissibility

of evidence in passing upon an application for subpena.

(b) Every subpena shall bear the name of the Commission, the name and office of the issuing officer, and the title of the hearing, and shall command the person to whom it is directed to attend and give testimony or produce specified data at a designated time and place. The subpena shall also contain a statement advising of the existence of the quashing procedure provided in paragraph (f) of this section.

(c) Unless the service of a subpena is acknowledged on its face by the witness, it shall be served by a person who is not a party to the hearing and is not less than 18 years of age, but may in any case be served by an officer or employee of AEC. Service of a subpena upon a person named therein shall be made by delivering a copy of the subpena to such person and by tendering him the fees for one day's attendance and the mileage allowed by law. When the subpena is issued on behalf of AEC, fees and mileage may but need not be tendered, and the subpena may be served by registered mail.

(d) Witnesses summoned before AEC shall be paid by the party at whose instance they appear the same fees and mileage that are paid to witnesses in the district courts of the United States.

(e) The person serving the subpena shall make proof of service by filing the subpena and the required return, affidavit, or acknowledgment of service with the officer before whom the witness is required to testify or produce evidence or with AEC. Failure to make proof of service shall not affect the validity of the service.

(f) Upon motion made promptly, and in any event at or before the time specified in the subpena for compliance, by the person to whom the subpena is directed, and upon notice to the party to whom the subpena was issued, the presiding officer or, if he is unavailable, the Commission may (1) quash or modify the subpena if it is unreasonable or requires evidence not relevant to any matter in issue, or (2) condition denial of the motion upon just and reasonable terms.

(g) Upon application and for good cause shown, AEC will seek judicial enforcement of a subpena issued to a party and which has not been quashed.

§ 2.745 Depositions. (a) Upon application and good cause shown, the designated presiding officer or, if he is unavailable, the Commission may order that the testimony of any person, including a party, be taken by deposition upon oral examination or written interrogatories for use as evidence in the hearing. The attendance of witnesses may be compelled by the use of a subpena.

(b) The application shall be in writing and shall be served upon the parties and filed, giving reasonable notice of the proposed time and place for taking the deposition, the name and address of each person to be examined, if known, or if the name is not known a general description sufficient to identify him or the class or group to which he belongs, and the reasons why such deposition should be taken. If good cause is shown, an order will be issued authorizing the deposition, and specifying the time, place, and manner of taking of the deposition, any limitations imposed for the benefit of witnesses or parties, and the number of copies of the deposition to be supplied. The order shall be served upon all parties by the person proposing to take the deposition a reasonable period in advance of the time fixed for taking testimony.

(c) Within the United States, depositions shall be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held. Outside the United States, depositions shall be taken before a secretary of an embassy or legation, consul general, vice consul, or consular agent of the United States, or a person authorized to administer oaths designated by AEC or agreed upon by the parties by stipulation in writing filed with AEC.

(d) Unless the order provides otherwise, the deponent may be examined regarding any matter not privileged, which is relevant to the subject matter involved in the hearing. He shall be sworn or shall affirm before any questions are put to him. Examination and cross-examination shall proceed as at a hearing. Each question propounded shall be recorded and the answer taken down in the words of the witness. Objections on questions of evidence shall be noted in short form without the arguments. However, the officer shall not decide on the competency, materiality, or relevancy of evidence but shall record the evidence subject to objection. Objec

tions to questions or evidence not made before the officer shall not be deemed waived unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(e) When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signed by him, unless he is ill or cannot be found or refuses to sign. The officer shall certify to the deposition, and if not signed by the deponent shall certify to the reasons therefor, and shall promptly forward the deposition by registered mail to AEC. The party taking the deposition shall give prompt notice of its filing to all other parties.

(f) Where the deposition is to be taken upon written interrogatories, the party proposing the deposition shall serve upon each of the parties and file a copy of the proposed interrogation showing each interrogatory separately and consecutively numbered, the name and address of the person who is to answer them, and the name, descriptive title, and address of the officer before whom they are to be taken. Within 7 days after service any party may serve cross-interrogatories upon the party proposing to take the deposition. Objections to interrogatories or crossinterrogatories shall be made promptly after service and will be settled by the presiding officer or the Commission, as the case may be; provided that objections to form, unless made before the order for taking the deposition is issued, shall be deemed waived. Except as the parties otherwise agree, the deposition upon written interrogatories shall be taken only with the deponent, the officer, and the reporter or stenographer present during the interrogation, to which fact the officer shall certify. The interrogatories, cross interrogatories, and the answers shall be recorded and signed, and the deposition certified, returned, and filed as in the case of a deposition upon oral examination.

(g) A deposition will not become a part of the record in the hearing until and unless received in evidence by the presiding officer, upon his own motion or the motion of any party. If only part of a deposition is offered in evidence by a party, any other party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. A party