Page images
PDF
EPUB

pending before him, may reduce any time limit prescribed in the regulations in this part. 8 201.55 Postponement of hearing.

Applications for postponement of any hearing date may be granted upon & showing of good cause on the part of the applicant. Answers to such applications are permitted.

Subpart F-Rule Making (Rule 6) & 201.61 Petition for issuance, amend

ment, or repeal of rule or regulation. Any interested person may file with the Administration a petition for the issuance, amendment, or repeal of a rule designed to implement, interpret, or prescribe law, policy, organization, procedure, or practice requirements of the Administration. The petition shall set forth the interest of petitioner and the nature of the relief desired, shall include any facts, views, arguments, and data deemed relevant by petitioner, and shall be subscribed to. If such petition is for the amendment or repeal of a rule, it shall be accompanied by proof of service on all persons, if any, specifically named in such rule, and shall conform in all other aspects to Subpart D of this part. Answers to such petition shall conform to the requirements of Subpart D of this part. $ 201.62 Notice of proposed rule mak

through submission of written data, views, or arguments, with or without opportunity to present the same orally in any manner: Provided, That where the proposed rules are such as are required by statute to be made on the record after opportunity for a hearing, or where a hearing is ordered by the Administration upon petition of any party or upon its own initiative, such hearing shall be conducted pursuant to sections 7 and 8 of the Administrative Procedure Act. § 201.64 Contents of rules.

The Administration will incorporate in any rules to be adopted a concise general statement of their basis and purpose. $ 201.65 Effective date of rules.

The publication or service of any substantive rule shall be made not less than 30 days prior to its effective date except (a) as otherwise provided by the Administration for good cause found and published in the FEDERAL REGISTER or (b) in the case of rules granting or recognizing exemption or relieving restriction, interpretative rules, and statements of policy. Subpart G-Formal Proceedings, No

tice, Pleadings, Replies (Rule 7) $ 201.71 Commencement of proceed

ings. Formal proceedings may be commenced with respect to any phase of an application for Government aid or other relief, the processing of which by statute requires a public hearing. The Administration may, in its discretion, also direct the holding of a hearing not required by statute for any purpose authorized in the statutes it administers. $ 201.72 Notice.

Notice of any matter which may result in or involves the institution of a formal proceeding will be given by publication in the FEDERAL REGISTER in sufficient detail and in sufficient time to apprise interested persons of the nature of the issues to be heard and to allow for an opportunity to file petitions for leave to intervene. & 201.73 Joinder of proceedings.

(a) Two or more matters which have been set for hearing by the Administration, and which involve similar issues, may be consolidated for the purpose of hearing. Such consolidation may, at the

ing.

After receipt of petitions and any answers thereto described in § 201.61, or upon its own initiative, the Administration may, in its discretion, direct that notice thereof be published in the FEDERAL REGISTER unless all persons subject thereto are named and either are personally served or otherwise have actual notice thereof in accordance with law. Except where publication of notice of proposed rule making and public hearing is required by statute, this section shall not apply to interpretative rules, general statements of policy, organization rules, rules of procedure, or practice of the Administration, or amendments thereto, or any situation in which the Administration for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 201.63 Participation in rule making.

Interested persons will be afforded an opportunity to participate in rule making

discretion of the Administration, or Pre- discretion of the Administration if the siding Officer after hearing has been case has not been assigned for hearing, ordered, be ordered upon petition of any otherwise in the discretion of the Presid. party to said hearing or upon the initia ing Oficer designated to conduct the tive of the Administration.

hearing; Provided, That after a prehear(b) A petition to consolidate shall be ing conference has been heid no amendfiled not later than the first prehearing ment shall be allowed which would subconference in the proceeding with which stantially broaden the issues, unless consolidation is requested, and shall re an opportunity is afforded all parties to late only to then pending applications. answer such amended pleadings and to If made at such conference, the petition prepare for hearing upon the broadened may be oral. A petition which is not issues. The Presiding Oficer may direct timely filed shall be dismissed unless the à party to state its case more fully and petitioner shall clearly show good cause in more detail by way of amendment. If for the failure to file said petition on a response to an amended pleading is time. A petition which does not relate necessary, it may be filed and served. to an application pending at the time of Amendments or supplements allowed or before a prehearing conference in a prior to hearing will be served in the proceeding with which consolidation is same manner as the original pleading. requested, shall likewise be dismissed un Whenever by the regulations in this part less the petitioner shall clearly show good à pleading is required to be subscribed, cause for a failure to file the application the amendment or supplement shall also within the prescribed period.

be subscribed. § 201.74 Declaratory orders.

8 201.78 Petition for leave to intervene. The Administration may issue a de- A petition for leave to intervene may claratory order to terminate a proceeding be filed in any proceeding before the or to remove uncertainty. Petitions for Administration. The petition will be the issuance thereof shall state clearly granted by the presiding officer if the and concisely the nature of the contro proposed intervenor establishes that it versy or uncertainty, shall cite the statu has a substantial interest in the proceedtory authority involved, shall include a

ing and will not unduly broaden the is

ing and will not unduly broad complete statement of the facts and sues therein or unduly delay the progrounds supporting the petition, together ceeding. All such petitions shall be with a full disclosure of petitioner's in filed prior to the opening of the prehearterest.

ing conference, or if none is held, before & 201.75 Petitions general.

the commencement of hearing, unless

petitioner shows good cause for allowing All petitions shall be written and shall

the petition at a later time. Intervenstate the Petitioner's grounds of interest

tion petitions shall be served in the same in the subject matter, the facts relied

manner as other petitions, and shall be upon, and the relief sought, and shall cite

subject to answer. Intervention petithe authority upon which the petition

tions will be granted where necessary to rests. The petition shall be served upon

protect substantial interests of the petiall parties named therein or affected

tioner and where intervention will not thereby. Answers to petitions may be materially broaden the issues. A person filed.

granted permission to intervene becomes $ 201.76 Applications for Government

a party to the proceeding.

& 201.79 Motions. Applications for operating-differential All motions and requests for rulings subsidies, charter of Government-owned shall state the relief sought, the authorvessels, and other types of Government ity relied upon, and the facts alleged. aid shall conform to the requirements set If made before or after the hearing, forth in the various general orders and such motions shall be in writing. If other regulations of the Administration

made at the hearing, they may be stated specifically provided therefor.

orally: Provided, however, That the pre

siding officer may require that such mo8 201.77 Amendments or supplements

tion be reduced to writing and filed and to pleadings.

served in the same manner as a formal Amendments or supplements to any motion. Answers to formal motions pleading will be allowed or refused in the shall comply with the requirements of

aid.

[ocr errors]

8 201.80. Motions and answers thereto shall be addressed to the presiding offcer if the case is pending before such officer. Oral argument upon a written motion in which an answer has been filed may be granted within the discretion of the Administration or the presiding offcer, as the case may be. A repetitious motion will not be entertained. 201.80 Answers to applications, peti

tions, or motions. A pleading filed in response to an application, petition, or motion is called an answer. An answer may be filed to any application, petition, motion or pleading which is required to be served on the answering party or noticed in the FEDERAL REGISTER. An answer to a written application, petition, or motion shall be in writing and shall be filed within ten days after service of the pleading which it answers. Any new matter raised in an answer shall be deemed to be controverted. A response to an answer is called a reply. A short reply restricted to such new matters may be filed within five days of service of the answer. Subpart H-Responsibilities and

Duties of Presiding Officer (Rule 8) & 201.85 Commencement of functions

of Office of Hearing Examiners. In proceedings handled by the Office of Hearing Examiners, its functions shall attach upon notice of the institution of a formal proceeding involving a prehearing conference and/or a hearing by the Administration. 201.86 Presiding officer.

A Hearing Examiner of the Ofice of Hearing Examiners of the Administration will be designated by the Chief Hearing Examiner to preside at hearings required by statute, or directed to be held under the Administration's discretionary authority, in rotation so far as practicable, unless the Administration shall designate one or more Members thereof to serve as presiding officers or members of the staff in proceedings not required by statute. 8 201.87 Authority of presiding officer.

The officer designated to hear a case shall have authority to arrange and issue notice of the date, time and place of hearings; under appropriate circumstances consolidate dockets for joint hearing; sign and issue subpoenas authorized by law; take or cause deposi

tions to be taken; rule upon proposed amendments or supplements to pleadings; hold conferences for the settlement or simplification of matters embraced in the proceedings; regulate the course of the hearing; prescribe the order in which evidence shall be presented; dispose of procedural requests or similar matters; hear and initially rule upon all motions and petitions before him; administer oaths and affirmations; examine witnesses, direct witnesses to testify or produce available evidence and to submit reports, studies and analyses of data available to them which may be generally relevant and material to the determination of any questions of fact in issue; rule upon offers of proof and receive competent, relevant, material, reliable, and probative evidence; exclude irrelevant, immaterial, unreliable, repetitious or cumulative evidence; exclude crossexamination which is primarily intended to elicit self-serving declarations in favor of the witness: and limit cross-examination to interrogatories which are required for a full and true disclosure of the facts in issue; act upon petitions to intervene; act upon submission of facts, or argument; initially consider offers of settlement or other proposals of adjustment upon which recommendations to the Administration may be made; hear oral argument at the close of testimony; fix the time for filing briefs, motions and other documents to be filed in connection with hearings and replies thereto; and issue the initial or recommended decisions and dispose of any other pertinent. matter that normally and properly arises in the course of proceedings. When the presiding officer is unavailable for any reason, and the exercise of any of his powers and functions, as described he in, is due, timely, and necessary, the Chief Hearing Examiner may exercise such powers and functions until the presiding oficer becomes available or until his successor is designated. $201.88 Postponement or change of

place by presiding officer. If, in the judgment of the presiding oficer, convenience or necessity so requires he may postpone the time or change the place of hearing. 8 201.89 Disqualification of presiding

officer, Any presiding officer may at any time withdraw if he deems himself disqualified, in which case another presiding offi

cer will be designated. If a party to a proceeding, or his representative, files in good faith a timely and sufficient afidavit of personal bias or disqualification of a presiding officer, the Administration will determine the matter as a part of the record and decision in the case. Subpart Summary Disposition

(Rule 9) & 201.91 Filing of motions, answers.

Any party or (if a petition to intervene shall have been filed but not have been acted upon) any prospective party may at or before the first prehearing conference in any proceeding, or at such later time as might be allowed by the presiding officer, move with supporting aiiidavits for a summary disposition in his favor of all or any part of the proceeding. Any adverse party may within 20 days serve opposing affidavits or may countermove for summary disposition. Oral argument thereon may be granted in the discretion of the presiding officer. & 201.92 Ruling on motion.

The presiding officer may grant such motion if the application, motion, or other pleadings, affidavits or depositions, if any, and matters of official notice show that there is no genuine issue as to any material facts, that there is no necessity that further facts be developed in the record, and that such party is entitled to a decision as a matter of law. & 201.93 Review of ruling, appeal.

The order of the presiding officer de nying a motion for summary disposition shall be subject to interlocutory appeal under the provisions of $ 201.123. An order granting a motion for summary disposition is automatically reviewable by the Administration in accordance with the provisions of $ 201.133 and shall not be final until acted upon by the Administration. Subpart - Prehearing Conference;

Settlements; Procedural Agreements

(Rule 10) & 201.101 Prehearing conference.

Prior to any hearing a prehearing conference may be held before the presiding officer. Written notice of a prehearing conference shall be transmitted by the Secretary of the Administration or the Chief Hearing Examiner to all parties of record including persons whose

petitions for leave to intervene in the proceeding have not theretofore been granted, and where practicable, by general release to the public press.

(a) At the prehearing conference the following matters, among others, shall be considered: (1) Petitions for leave to intervene; (2) motions for consolidation or severance of dockets for joint or separate hearing to the extent that the Administration has not theretofore taken specific action; (3) simplification and delineation of the issues to be heard; (4) designation of matters in respect of which official notice may be taken; (5) requests for discovery and production of evidence considered to be generally relevant and material to the issues in the proceeding; (6) stipulations; (7) limitation of number of witnesses, particularly the avoidance of duplicate expert witnesses; (8) procedure applicable to the proceeding; (9) offers of settlement, as hereinafter to be more particularly discussed in § 201.103; and (10) scheduling of the dates for exchange of exhibits, written testimony both afirmative and rebuttal and establishing the date, time and place for hearing.

(b) If deemed necessary or appropriate, the presiding officer may also, on his own motion, or on motion of Public Counsel direct any party to a proceeding to prepare and submit exhibits setting forth studies, forecasts, or estimates on matters relevant and material to the issues in the proceeding to be sponsored by witnesses available for cross-examination thereon. & 201.102 Prehearing rulings.

The presiding officer will, where practicable, issue prehearing rulings, acting on petitions for leave to intervene, delineating the issues, summarizing the rulings made at the conference, specifying a schedule for the exchange of exhibits and written testimony, the date, time and place of hearing and specifying a time for the filing of exceptions to the rulings. The prehearing rulings shall be served upon all parties to the proceeding and any persons who participated in the conference. Exceptions to the prehearing rulings may be filed by any such party or person within the time specified therein. The presiding officer may serve amended rulings in the light of the exceptions presented. Such rulings and amendments, if any, shall constitute the official account of the conference and shall control the subsequent course of the

proceeding, but they may be reconsidered and modified at any time to protect the public interest or to prevent injustice. 8 201.103 Opportunity for agreement of

parties and settlement of case. Where time, the nature of the proceeding, and the public interest permit, all interested parties shall have the opportunity for submission to and consideration by the presiding oficer of offers of settlement, or proposals of adjustment together with facts and/or arguments relevant to such offers or proposals without prejudice to the rights of the parties. The presiding officer need not be present at any negotiations of such nature. The presiding officer shall issue an initial or recommended decision thereon recommending approval or disapproval of such offer of settlement or proposal of adjustment to the Administration for final action thereon. No agreement, offer, or proposal shall be admissible in evidence over the objection of any party in any hearing on the matter. When any settlement does not dispose of the whole proceeding, the remaining issues shall be determined in accordance with sections 7 and 8 of the Administrative Procedure Act. Subpart K-Discovery and Deposi

tions (Rule 11). & 201.109 Discovery and production of

documents. Upon request of any party showing good cause therefor, at the prehearing conference or otherwise upon notice to all other parties, the Administration or presiding officer may direct any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged which constitute or contain evidence relating to any matter, not privileged, which is relevant to the subject matter involved in the pending proceeding, and which are in his possession, custody or control. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just. In lieu of such inspections the material may be produced in exhibit form and served upon all parties to a formal proceeding. Such ex

hibits may also, upon request of any party, be offered in evidence at a hearing. & 201.110 Depositions: request for

orders to take; time of filing. The Administration or presiding officer may, upon proper request of a party to a proceeding or under circumstances deemed proper, issue an order to take a deposition regarding any matter, not privileged, which is relevant to the subject matter involved in the proceedings. A motion to take a deposition shall be filed not less than fifteen (15) days before the proposed date for taking the deposition, unless a shorter period is fixed under 8 201.54, and shall set forth the reason for the deposition, the place and time of taking, the officer before whom it is to be taken, the name and address of each witness to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and whether the deposition is to be based upon written interrogatories or upon oral examination. If the deposition is to be based upon oral examination, the motion shall contain a statement of the matters concerning which each witness will testify. If the deposition is to be based on written interrogatories, the motion shall be accompanied by the interrogatories to be propounded, serially numbered. Copies of all motions to take depositions, and accompanying interrogatories, if any, shall conform to the requirements of Subpart D of this part. Objection to the taking of such depositions may be made in an answer to such motion. Without prejudice to objection, the answer may also state objection to any individual interrogatory, and if the deposition is permitted, the presiding officer will rule upon such objections to interrogatories. A party served with an order to take a deposition on written interrogatories shall have ten (10) days after date of service of such order unless a shorter period is fixed under $201.54, within which to file and serve written cross interrogatories, which shall be served pursuant to Subpart D of this part. Answers to applications for cross interrogatories may be filed in accordance with & 201.80. Upon the issuance of an order by the Administration or the presiding officer for the taking of a deposition, the Docket Clerk shall mail a copy thereof to all parties, including the party who requested the deposition. An application to

« PreviousContinue »