§ 385.711Exceptions and briefs on and opposing exceptions after initial decision (Rule 711).
(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.
(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.
[Order 225, 47 FR 19022, May 3, 1982, as amended by Order 375, 49 FR 21316, May 21, 1984; Order 575, 60 FR 4860, Jan. 25, 1995]
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