In the Matter of the Complaint:

 CHARLES SMITH,
 10478 NW 31st Terrace,
 Miami, FL  33172-1216;

 CS ENTERPRISES, INC.,
 10478 NW 31st Terrace,
 Miami, FL  33172-1216,

 and
 AMCAN ENTERPRISES, INC.,
 10478 NW 31st Terrace,
 Miami, FL  33172-1216

 d/b/a NORTH AMERICAN DIRECTORIES
 & THE WASHINGTON YELLOW PAGES,
 1001 Fourth Ave., Suite 3200,
 Seattle, WA  98154-1101
 and
 NORTH AMERICAN DIRECTORIES,
 THE ARIZONA YELLOW PAGES,
 4350 E. Camelback Rd., #200-F,
 Phoenix, AZ  85018-2763

 P.S. Docket No. 36/129

 06/3/91

 Cohen, James A., Judicial Officer

 APPEARANCES FOR COMPLAINANT: Jerry Belenker, Esq., Edward Lawee, Esq.,
 Consumer Protection Division, Law Department, United States Postal Service,
 Washington, DC  20260-1144 

 APPEARANCES FOR RESPONDENTS: Frank J. Shannon, Esq., Mark J. Lewyn, Esq.,
 422 Candler Building, 127 Peachtree Street, N.E., Atlanta, GA  30303-1810

Respondents have filed a Motion to be Heard and to Present Evidence to dispute a fact officially-noticed in an Initial Decision issued by an Administrative Law Judge. Complainant opposes the motion.

The officially-noticed fact relates to the representation alleged to be false in paragraph 7(d) of the Complaint. Paragraph 7(d) alleges that Respondents' solicitation falsely represents that:

"the area of distribution of Respondents' directory will encompass all telephone subscribers in the region" (Compl. #7(d)).

The Administrative Law Judge found that Respondents' solicitation makes this representation and that it is materially false. n1 In so doing, the Administrative Law Judge took official notice of the fact that standard yellow page directories are typically supplied to all telephone subscribers in the recipients' area (I.D., FOF 18 & 19).

n1 1. The Administrative Law Judge also determined that Respondents make the representations alleged in Paragraphs 7(a), (c) and (f) of the Complaint, and that those representations are materially false (I.D. COL 2 & 3). Those allegations are not the subject of Respondents' motion.

Respondents contend that Complainant presented no evidence concerning the distribution of yellow page directories and under Federal Rule of Evidence 201(e) n2 Respondents are entitled to be heard and to present evidence to rebut the Administrative Law Judge's finding that standard yellow page directories are typically supplied to all telephone subscribers in a region. Respondents also argue that the area of distribution of yellow page directories is not a fact on which judicial notice may be taken under the Federal Rules of Evidence.

n2 2. Rule 201(e) provides:

"(e) Opportunity to be heard

A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken."

The Federal Rules of Evidence are applicable to § 3005 proceedings except as otherwise provided in the Rules of Practice or as relaxed by the presiding officer to ensure a fair hearing. 39 C.F.R. § 952.18(a). The Rules of Practice specifically provide that official notice of facts may be taken, n3 but unlike the Federal Rules, they do not offer a party an opportunity to present rebuttal evidence. However, the Administrative Procedure Act includes such a requirement in 5 U.S.C. § 556(e). n4 Thus, under the Administrative Procedure Act, parties to a § 3005 proceeding are entitled, on timely request, to present evidence to rebut an officially-noticed fact.

n3. 39 C.F.R. § 952.18(d) provides: "Official notice or knowledge may be taken of the types of matters of which judicial notice or knowledge may be taken."

n4. 5 U.S.C. § 556(e) provides in pertinent part: "When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary."

As Respondents contend, the only basis for the Administrative Law Judge's conclusion that Respondents' solicitation makes the false representation alleged in Paragraph 7(d) of the Complaint is the officially-noticed finding of fact. While the fact found by the Administrative Law Judge appears to be a fact on which official notice may be taken, Respondents have not had an opportunity to be heard and to present contrary evidence. Since the Administrative Law Judge's decision with respect to the falsity of the representation alleged in Paragraph 7(d) rests on the officially-noticed fact, Respondents timely requested and therefore are entitled to have an opportunity to present contrary evidence.

Accordingly, this proceeding is remanded to the Administrative Law Judge for the purpose of allowing the parties an opportunity to present evidence pertaining to the officially-noticed fact contained in the Initial Decision. The appeal will be held in abeyance while this issue is pending before the Administrative Law Judge.