XXIII. Additional Evidence, Submission of the Record, and Oral Argument

Rule 77 provides for the submission of the record of a proceeding, which occurs after the taking of evidence, oral argument, and the filing of briefs. Rule 74 provides for the production of additional evidence after the hearing is adjourned, and Rule 84 provides for the taking of additional evidence after submission.

As currently written, these rules mistakenly refer to the submission and reopening of the "proceeding." More accurately, it is the record, not the proceeding, that is submitted or reopened to take the additional evidence; the proceeding itself is not closed until a final decision issues. Accordingly, we propose to substitute the word "record" for the word "proceeding."

Rule 74 mistakenly states that (1) further evidence under this rule is taken "after submission," and (2) it is to be filed. More accurately, in contrast to Rule 84 which addresses the taking of further evidence after submission, Rule 74 is intended to address the further production of evidence, pursuant to ruling of the presiding officer at hearing, prior to submission. In addition, Rule 74 mistakenly provides for the filing of such further evidence. However, while it is appropriate to serve such further evidence, documentary evidence is generally not to be filed. (See Rule 2.7(b).) Rather, it is admitted into the evidentiary record by ruling of the presiding officer. We propose to modify Rule 74 to correct these inaccuracies.

Rule 76 provides that the Commission "or the presiding officer" may direct the presentation of oral argument before the Commission. The Commission has the discretion, where not otherwise obligated by law, to schedule the presentation of oral argument before it. However, it is not apparent to us that the presiding officer has the authority to direct the Commission to entertain oral argument before it, without further review. We therefore propose to modify the rule to provide, instead, that the assigned Commissioner or Administrative Law Judge may recommend to the Commission that it direct the presentation of oral argument.