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8 0.11 Oral hearing before referee.

(a) Request for oral hearing. Any party may request an oral hearing on the facts by including such request in the complaint or answer or by a separate request in writing filed with the hearing clerk. Failure by the respondent to request an oral hearing within the time allowed for the filing of the answer shall constitute a waiver of such hearing, and any respondent so failing to request an oral hearing will be deemed to have agreed that the proceeding may be decided upon a record formed under the shortened procedure provided for in 8 0.17.

Waiver of oral hearing shall not be deemed to be a waiver of the right to make oral argument before the Secretary upon exceptions to the referee's report. Such argument will be allowed in accordance with the provisions of $ 0.19.

(b) Time and place. If and when the proceeding has reached the stage where an oral hearing is to be held, the referee, giving careful consideration to the convenience of the parties, shall set a time and place for hearing and shall file with the hearing clerk a notice stating the time and place. If any change in the time or place of the hearing is made, the referee shall file with the hearing clerk a notice of such change, which notice shall be served upon the parties, unless it is made during an oral hearing and made a part of the transcript.

(c) Appearances—(1) Representation. In any proceeding, the parties may appear in person or by counsel or other representative. The Secretary, if represented by counsel, shall be represented by an attorney assigned by the Solicitor of the Department.

Persons who appear as counsel or in a representative capacity at a hearing must conform to the standards of ethical conduct required of practitioners before the courts of the United States. Whenever the Secretary finds, after notice and opportunity for hearing, that a person, who is acting or has acted as counsel or representative for another person in any proceeding before the Secretary, is unfit to act as such representative or counsel, he will order that such person be precluded from acting as counsel or representative in any proceeding under the act. The procedure in such case will be

governed by the applicable provisions of this subpart.

(2) Failure to appear. If any party to the proceeding, after being duly notified, fails to appear at the hearing, he shall be deemed to have waived the right to an oral hearing in the proceeding. In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present shall have an election to present his evidence, in whole or in part, in the form of affidavits or by oral testimony before the referee.

Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the referee's report and to file exceptions and make oral argument before the Secretary with respect thereto, in the manner provided in this subpart.

(d) Order of proceeding. Except as may be determined otherwise by the referee, the complainant shall proceed first at the hearing.

(e) Evidence-(1) In general. The testimony of witnesses at a hearing shall be upon oath or affirmation administered by the referee and shall be subject to cross-examination.

Any witness may, in the discretion of the referee, be examined separately and apart from all other witnesses except those who may be parties to the proceeding.

The referee shall exclude evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely.

(2) Objections. If a party objects to the admission or rejection of any evidence or to the limitation of the scope of any examination or cross-examination, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the referee. The transcript shall not include argument or debate thereon except as ordered by the referee. The ruling of the referee on any objection shall be a part of the transcript.

Only objections made before the referee may subsequently be relied upon in the proceeding.

13) Depositions. The deposition of any witness shall be admitted, in the manner provided in and subject to the provisions of g 0.12.

(4) Afidavits. Except as is otherwise provided in this subpart, affidavits may

be admitted only if the evidence is otherwise admissible and the parties agree that afidavits may be used.

(5) Proof of documents. A true copy of every written entry in the records of the Department, made by an oficer or employee thereof in the course of his official duty, and relevant to the issues involved in the hearing, shall be admissible as prima facie evidence of the facts stated therein, without the production of such oficer or employee.

(6) Exhibits. Except where the referee finds that the furnishing of copies is impracticable, a copy of each exhibit, in addition to the original, shall be filed with the referee for the use of each other party to the proceeding. The referee shall advise the parties as to the exact number of copies which will be required to be filed and shall make and have noted on the record the proper distribution of the copies.

(7) Oficial notice. Official notice will be taken of such matters as are judicially noticed by the courts of the United States and of any other matter of technical or scientific fact of established character; Provided, That the parties shall be given adequate notice, at the hearing or by reference in the referee's report or tentative order or otherwise, of matters so noticed, and shall be given adequate opportunity to show that such facts are erroneously noticed.

(8) Offer of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof shall consist of a brief statement describing the evidence to be offered. If the evidence consists of a brief oral statement or of an exhibit, it shall be inserted into the transcript in toto. In such event, it shall be considered a part of the transcript if the Secretary decides that the referee's ruling in excluding the evidence was erroneous. The referee shall not allow the insertion of such evidence in toto if the taking of such evidence will consume a considerable length of time at the hearing. In the latter event, if the Secretary decides that the referee's ruling in excluding the evidence was erroneous, the hearing shall be reopened to permit the taking of such evidence.

(f) Oral argument before referee. In disciplinary proceedings, oral argument

before the referee shall be allowed u the referee finds that the denial of argument will not deprive the parti an adequate opportunity for oral a ment subsequently in the procee Such argument may be limited by referee to any extent that he finds essary for the expeditious dispositic the proceeding.

(g) Transcript. Copies of the t script may be obtained upon writter plication filed with the reporter, upon payment of fees at the rate vided in the contract between the porter and the Secretary, 8 0.12 Depositions.

(a) Application for taking deposi Upon the application of a party to proceeding, the referee may, at any after the filing of the complaint, o the taking of testimony by deposit The application shall be in writing shall be filed with the hearing clerk shall set forth: (1) The name and dress of the proposed deponent; (2) name and address of the person (refe to hereinafter in this section as “officer”), qualified under in this sub to take depositions, before whom proposed examination is to be made; the proposed time and place of the ex: ination, which should be at least 15 after the date of the mailing of the plication; and (4) the reasons why s deposition should be taken.

(b) Referee's order for taking dep tion. If the referee is satisfied that g cause for taking the deposition is pz ent, he may order its taking. The or shall be filed with the hearing clerk shall be served upon the parties and si state: (1) The time and place of the amination (which shall not be less te 10 days after the filing of the orde (2) the name of the officer before wh the examination is to be made; (3) name of the deponent. The officer a the time and place need not be the sa as those suggested in the application. (c) Qualifications of officer.

I deposition “may be taken before judge of any court of the United Stat or any United States commissioner, any clerk of a district court, or any cha cellor, justice, or judge of a supreme superior court, mayor or chief magistr: of a city, judge of a county court, or coof common pleas of any of the Unit States, or any notary public, not bei

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of counsel or attorney to either of the parties, nor interested in the event of the proceedings":

(d) Procedure on examination (1) The deponent shall be examined under oath or affirmation and shall be subject to cross-examination. The testimony of the deponent shall be recorded by the officer or by some person under his direction and in his presence. In lieu of oral cross-examination, parties may transmit written cross-interrogatories to the officer prior to the examination and the officér shall propound such cross-interrogatories to the deponent.

(2) The applicant must arrange for the examination of the witness either by oral examination or by written interrogatories. If it is found by the refree, upon the protest of a party to the proceeding, that such party has his residence and his place of business more than 100 miles from the place of the examination and that it would constitute an undue hardship upon such party to be represented at the examination, the applicant will be required to conduct the examination by means of interrogatories. When the examination is conducted by means of interrogatories, copies of the interrogatories shall be served upon the other parties to the proceeding at least five days prior to the date set for the examination, and the other parties shall be afforded an opportunity to file with the officer cross-interrogatories at any time prior to the time of the examination.

(e) Signature by witness. The transcript of the deposition shall be read to or by the deponent, unless such reading is waived by the parties and the deponent. Any changes which the deponent wishes to make shall be entered upon the deposition by the officer, with a statement of the reasons given by the deponent for such changes. The deposition shall be signed by the deponent unless the parties by stipulation waive such signing, or unless the deponent is ill or cannot be found or refuses to sign. If the deponent does not sign, the officer shall sign and shall state on the record the reason why the deponent did not sign. In such case the deposition shall be as valid as though signed by the deponent, unless the referee finds that the

reason given by the deponent for his refusal to sign requires rejection of the deposition in whole or in part.

(f) Certification by officer. The officer shall certify on the deposition that the deponent was duly sworn by him and that the deposition is a true record of the deponent's testimony. He shall then securely seal the deposition, together with two copies thereof, in an envelope and mail the same by registered mail to the hearing clerk.

(g) Use of depositions. A deposition ordered and taken in accord with the provisions of this section may be used in a proceeding if the referee finds that the evidence is otherwise admissible and (1) that the witness is dead; or (2) that the witness is at a greater distance than 100 miles from the place of hearing, unless it appears that the absence of the witness was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has endeavored but has been unable to procure the attendance of the witness by subpena; or (5), in any event, upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interests of justice and with due regard to the importance of presenting the testimony orally before the referee, to allow the deposition to be used. If any part of a deposition is put in evidence by a party, and other party may require the production of the remainder, or any other portion, of the deposition. 8 0.13 Subpenas. (a) Issuance of subpenas.

The attendance of witnesses and the production of documentary evidence from any place in the United States on behalf of any party to the proceeding may, by subpena, be required at any designated place of hearing. Subpenas may be issued by the Secretary or by the referee, upon a reasonable showing by the applicant of the grounds, necessity, and reasonable scope thereof.

(b) Application for subpena duces tecum. Subpenas for the production of documentary evidence, unless issued by the referee upon his own motion, shall be issued only upon a verified written application. Such application shall specify, as exactly as possible, the documents desired and shall show their competency.

? Words in quotation marks are from 24 Stat. 383; 49 U.S.C. 12, which is made applicable to proceedings under the Commodity Exchange Act by sec. 6(b), 42 Stat. 1001, as amended; 7 U.S.C. 15.

relevancy, and materiality and the ne- and (e) such other matters as ma cessity of their production.

pedite and aid in the disposition o (c) Service of subpenas. Subpenas proceeding. No transcript of such may be served (1) by a United States ference shall be made, but the re Marshal or his deputy, or (2) by any shall prepare and file for the reco other person who is not less than 18 written summary of the action tak years of age, or (3) by registering and the conference, which shall incorp mailing a copy of the subpena addressed any written stipulations or agreen to the person to be served at his or its made by the parties at the confez last known principal place of business or or as a result of the conference. I residence. Proof of service may be made circumstances are such that a coz by the return of service on the subpena ence is impracticable, the referee by the United States Marshal or his request the parties to correspond deputy; or, if served by an individual him for the purpose of accomplis other than a United States Marshal or any of the objects set forth in this his deputy, by an affidavit of such per- tion. The referee shall forward ca son, stating that he personally served a of letters and documents to the pa copy of the subpena upon the person as the circumstances require. Cc named therein; or, if service was by reg- spondence in such negotiations shal: istered mail, by an affidavit made by the be a part of the record, but the re person mailing the subpena that it was

shall submit a written summary for mailed as provided herein and by the record if any action is taken. signed returned post-office receipt: Pro

8 0.16 Referee's report. vided, That where the subpena is issued on behalf of the Secretary, the return (a) Filing the transcript of evide receipt. without an affidavit of mailing As soon as practicable after the clos shall be sufficient proof of service. In the hearing, the reporter shall tran. making personal service, the person mak- to the hearing clerk the transcript of ing service shall leave a copy of the sub- testimony and the exhibits introdo

in vidence at the hearing, except s pena with the person subpenaed; the original, bearing or accompanied by the portions of the transcript and exh: required proof of service, shall be re- as shall have been delivered to the

eree. turned to the official who issued the

The hearing clerk will advise e

party to the proceeding as to the dat same.

which the transcript was filed. $ 0.14 Fees of witnesses.

(b) Proposed findings of fact, con Witnesses summoned before the ref

sions, and orders. Within 10 days a eree or before the Secretary shall be paid

receipt of notice that the transcript the same fees and mileage that are paid

been filed, each party may file with witnesses in the courts of the United

hearing clerk proposed findings of f States, and witnesses whose depositions

conclusions, and orders, based so are taken, and the persons taking the

upon the record, and a brief in supp same, shall be entitled to the same fees

thereof. as are paid for like services in the courts

(c) Referee's report. The refe of the United States. Fees shall be paid

within a reasonable time after the by the party at whose instance the wit

mination of the period allowed for ness appears or the deposition is taken.

filing of proposed findings of fact, c $ 0.15 Prehearing conferences.

clusions, and orders, and briefs in s

port thereof, shall prepare, upon In any proceeding in which it appears

basis of the record, and shall file w that such procedure will expedite the

the hearing clerk, his report, a copy proceeding, the referee, at any time

which shall be served upon each of prior to the commencement of the oral

parties. hearing, may request the parties or their

(d) Exceptions. Within 20 days af counsel to appear at a conference before

receipt of the referee's report, the parı him to consider (a) the simplification of

may file exceptions to the report. A issues; (b) the necessity or desirability

party who desires to take exception of amendments to pleadings; (c) the

any matter' set out in the report sh possibility of obtaining stipulations of

transmit his exceptions in writing to fact and of documents which will avoid

hearing clerk, referring to the releva unnecessary proof; (d) the limitation of

pages of the transcript, and suggestin the number of expert or other witnesses;

corrected findings of fact, conclusion,

11 50-035-71---2

order. Within the same period of time, shall be served promptly by the hearing
each party shall transmit to the hearing clerk upon the respondent.
clerk a brief statement in writing con- (c) Respondent's answering state-
cerning each of the objections taken to ment. Within 20 days after receipt of
the action of the referee at the hearing, the complainant's opening statement
as set out in § 0.11, upon which the party the respondent may file with the hearing
wishes to rely, referring, where relevant, clerk, in triplicate, in support of his an-
to the pages of the transcript. A party, swer, an answering statement of the
if he files exceptions or a statement of facts. A copy of the answering state-
objections, shall state in writing whether ment shall be served promptly by the
he desires to make an oral argument hearing clerk upon the complainant.
thereon before the Secretary; otherwise, (d) Complainant's statement in reply.
he shall be deemed to have waived such Within 10 days after receipt of the an-
oral argument.

swering statement, the complainant may $0.17 Shortened procedure.

file with the hearing clerk, in triplicate,

a statement in reply, which shall be con(a) Consent of parties. Whenever it

fined strictly to replying to the facts and appears to the referee who is assigned to

arguments set forth in the answering a proceeding that the proceeding can be

statement. more expeditiously handled under the

(e) Contents of statements. As used informal procedure provided for in this

in this section, the term "statement” insection, he shall suggest to the parties

cludes (1) statements of fact signed and that they consent to the use of such

sworn to by persons having knowledge of procedure. Except where oral hearing

those facts; (2) documents filed as a part has been waived by failure to request it

of the proof of the alleged facts (which in proper time or otherwise, parties are

documents shall be properly identified by free to consent to such procedure if they

verified statements in the statement filed choose; declination of consent will not

or otherwise authenticated in such a affect or prejudice the rights or interests

manner that they would be admissible in of any party. A party, if he has not

evidence at an oral hearing under the waived oral hearing, may consent to

rules in this subpart); and (3) briefs the use of the shortened procedure on

containing argument to sustain the conthe condition that the statements of fact

tentions of the party submitting the be submitted in the form of depositions

statement. When practicable, the docurather than affidavits. In such case, if

ments which constitute the record of any the other parties agree, depositions shall

transaction in dispute should be made & be required to be filed in lieu of af

part of the statement. fidavits. If any party who has not waived oral hearing does not consent to

(f) Verification. Any facts stated in

the statement must be sworn to (before the use of the shortened procedure, the proceeding will be set for oral hearing.

a person legally authorized to administer The request that the shortened procedure

oaths or before a person designated by be used need not originate with the ref

the Secretary for the purpose) by a per

son who states in the affidavit that he eree; any party may address a request to the referee asking that the shortened

has actual knowledge of the facts. Exprocedure be used. The referee, in his

cept under unusual circumstances, which suggestion to the parties, will set a short

shall be set forth in the affidavit, any period of time in which the parties may

such person shall be one who would apindicate their consent to the shortened

pear as a witness if an oral hearing were procedure; at the end of that period,

held. The original of each document the referee will notify the parties that

must show the signature, capacity, and the shortened procedure will or will not

impression seal (if the officer is required be used. All requests, suggestions, and

by law to have a seal) of the officer adnotices mentioned in this section shall

ministering the oath and the date therebe filed with the hearing clerk.

of. Copies must bear a notation that the (b) Complainant's opening statement.

original shows the data required in this Within 20 days after receipt of notice

respect. If a party elects to do so, he that the shortened procedure will be may file his statement of facts in the used, the complainant shall file with the form of depositions rather than affihearing clerk, in triplicate, in support davits. Depositions filed of the complaint, an opening statement

under the

shortened procedure, whether filed as a of the facts. A copy of such document result of a requirement in the consent to

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