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$ 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. Tailure 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 $ 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 afidavits 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 briefiy 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.

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

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

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

(5) Proof of documents. A true copy of every written entry in the records of the Department, made by an officer 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 officer 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) Official 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 unless the referee finds that the denial of such argument will not deprive the parties of an adequate opportunity for oral argument subsequently in the proceeding. Such argument may be limited by the referee to any extent that he finds necessary for the expeditious disposition of the proceeding.

(g) Transcript. Copies of the transcript may be obtained upon written application filed with the reporter, and upon payment of fees at the rate provided in the contract between the reporter and the Secretary. $ 0.12 Depositions.

(a) Application for taking deposition. Upon the application of a party to the proceeding, the referee may, at any time after the filing of the complaint, order the taking of testimony by deposition. The application shall be in writing and shall be filed with the hearing clerk and shall set forth: (1) The name and address of the proposed deponent; (2) the name and address of the person (referred to hereinafter in this section as the “officer"), qualified under in this subpart to take depositions, before whom the proposed examination is to be made; (3) the proposed time and place of the examination, which should be at least 15 days after the date of the mailing of the application; and (4) the reasons why such deposition should be taken.

(b) Referee's order for taking deposition. If the referee is satisfied that good cause for taking the deposition is present, he may order its taking. The order shall be filed with the hearing clerk and shall be served upon the parties and shall state: (1) The time and place of the examination (which shall not be less than 10 days after the filing of the order); (2) the name of the officer before whom the examination is to be made; (3) the name of the deponent. The officer and the time and place need not be the same as those suggested in the application.

(c) Qualifications of officer. The deposition "may be taken before any judge of any court of the United States, or any United States commissioner, or any clerk of a district court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being

of counsel or attorney to either of the reason given by the deponent for his reparties, nor interested in the event of the fusal to sign requires rejection of the proceedings"?

deposition in whole or in part. (d) Procedure on examination. (1) (f) Certification by officer. The ofiThe deponent shall be examined under cer shall certify on the deposition that oath or affirmation and shall be subject to the deponent was duly sworn by him and cross-examination. The testimony of that the deposition is a true record of the the deponent shall be recorded by the of- deponent's testimony. He shall then seficer or by some person under his direc- curely seal the deposition, together with tion and in his presence. In lieu of oral two copies thereof, in an envelope and cross-examination, parties may transmit mail the same by registered mail to the written cross-interrogatories to the ofi- hearing clerk. cer prior to the examination and the offi

(g) Use of depositions. A deposition cer shall propound such cross-interroga- ordered and taken in accord with the tories to the deponent.

provisions of this section may be used in (2) The applicant must arrange for a proceeding if the referee finds that the the examination of the witness either by evidence is otherwise admissible and (1) oral examination or by written interroga- that the witness is dead; or (2) that the tories. If it is found by the refree, upon witness is at a greater distance than 100 the protest of a party to the proceeding, miles from the place of hearing, unless it that such party has his residence and his appears that the absence of the witness place of business more than 100 miles

was procured by the party offering the from the place of the examination and deposition; or (3) that the witness is that it would constitute an undue hard- unable to attend or testify because of age, ship upon such party to be represented sickness, infirmity, or imprisonment; or at the examination, the applicant will be (4) that the party offering the deposition required to conduct the examination by has endeavored but has been unable to means of interrogatories. When the procure the attendance of the witness by examination is conducted by means of subpena; or (5), in any event, upon apinterrogatories, copies of the interroga- plication and notice, that such exceptories shall be served upon the other tional circumstances exist as to make it parties to the proceeding at least five desirable, in the interests of justice and days prior to the date set for the exami- with due regard to the importance, of nation, and the other parties shall be presenting the testimony orally before afforded an opportunity to file with the the referee, to allow the deposition to be officer cross-interrogatories at any time used. If any part of a deposition is put prior to the time of the examination. in evidence by a party, and other party

(e) Signature by witness. The tran- may require the production of the rescript of the deposition shall be read to mainder, or any other portion, of the or by the deponent, unless such reading deposition. is waived by the parties and the depo

8 0.13 Subpenas. nent. Any changes which the deponent wishes to make shall be entered upon the

(a) Issuance of subpenas. The atdeposition by the officer, with a state- tendance of witnesses and the producment of the reasons given by the depo

tion of documentary evidence from any nent for such changes. The deposition place in the United States on behalf of shall be signed by the deponent unless any party to the proceeding may, by the parties by stipulation waive such subpena, be required at any designated signing, or unless the deponent is ill or

place of hearing. Subpenas may be iscannot be found or refuses to sign. If sued by the Secretary or by the referee, the deponent does not sign, the officer upon a reasonable showing by the applishall sign and shall state on the record cant of the grounds, necessity, and reathe reason why the deponent did not sonable scope thereof. sign. In such case the deposition shall (b) Application for subpena duces tebe as valid as though signed by the de- cum. Subpenas for the production of ponent, unless the referee finds that the documentary evidence, unless issued by

the referee upon his own motion, shall 2 Words in quotation marks are from 24

be issued only upon a verified written apStat. 383; 49 U.S.C. 12, which is made applicable to proceedings under the Commodity

plication. Such application shall specify, Exchange Act by sec. 6(b), 42 Stat. 1001, as

as exactly as possible, the documents deamended; 7 U.S.C. 15.

sired and shall show their competency,

relevancy, and materiality and the necessity of their production.

(c) Service of subpenas. Subpenas may be served (1) by a United States Marshal or his deputy, or (2) by any other person who is not less than 18 years of age, or (3) by registering and mailing a copy of the subpena addressed to the person to be served at his or its last known principal place of business or residence. Proof of service may be made by the return of service on the subpena by the United States Marshal or his deputy; or, if served by an individual other than a United States Marshal or his deputy, by an affidavit of such person, stating that he personally served a copy of the subpena upon the person named therein; or, if service was by registered mail, by an affidavit made by the person mailing the subpena that it was mailed as provided herein and by the signed returned post-office receipt: Provided, That where the subpena is issued on behalf of the Secretary, the return receipt without an affidavit of mailing shall be sufficient proof of service. In making personal service, the person making service shall leave a copy of the subpena with the person subpenaed; the original, bearing or accompanied by the required proof of service, shall be returned to the official who issued the same. $ 0.14 Fees of witnesses.

Witnesses summoned before the referee or before the Secretary shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken, and the persons taking the same, shall be entitled to the same fees as are paid for like services in the courts of the United States. Fees shall be paid by the party at whose instance the witness appears or the deposition is taken. $ 0.15 Prehearing conferences.

In any proceeding in which it appears that such procedure will. expedite the proceeding, the referee, at any time prior to the commencement of the oral hearing, may request the parties or their cour to appear at a conference before him to consider (a) the simplification of issues; (b) the necessity or desirability of amendments to pleadings; (c) the possibility of obtaining stipulations of fact and of documents which will avoid unnecessary proof; (d) the limitation of the number of expert or other witnesses;

and (e) such other matters as may expedite and aid in the disposition of the proceeding. No transcript of such conference shall be made, but the referee shall prepare and file for the record a written summary of the action taken at the conference, which shall incorporate any written stipulations or agreements made by the parties at the conference or as a result of the conference. If the circumstances are such that a conference is impracticable, the referee may request the parties to correspond with him for the purpose of accomplishing any of the objects set forth in this section. The referee shall forward copies of letters and documents to the parties as the circumstances require. Correspondence in such negotiations shall not be a part of the record, but the referee shall submit a written summary for the record if any action is taken. $ 0.16 Referee's report.

(a) Filing the transcript of evidence. As soon as practicable after the close of the hearing, the reporter shall transmit to the hearing clerk the transcript of the testimony and the exhibits introduced in evidence at the hearing, except such portions of the transcript and exhibits as shall have been delivered to the referee, The hearing clerk will advise each party to the proceeding as to the date on which the transcript was filed.

(b) Proposed findings of fact, conclusions, and orders. Within 10 days after receipt of notice that the transcript has been filed, each party may file with the hearing clerk proposed findings of fact, conclusions, and orders, based solely upon the record, and a brief in support thereof.

(c) Referee's report. The referee, within a reasonable time after the termination of the period allowed for the filing of proposed findings of fact, conclusions, and orders, and briefs in support thereof, shall prepare, upon the basis of the record, and shall file with the hearing clerk, his report, a copy of which shall be served upon each of the parties.

(d) Exceptions. Within 20 days after receipt of the referee's report, the parties may file exceptions to the report. Any party who desires to take exception to any matter set out in the report shall transmit his exceptions in writing to the hearing clerk, referring to the relevant pages of the transcript, and suggesting a corrected findings of fact, conclusion, or


order. Within the same period of time, each party shall transmit to the hearing clerk a brief statement in writing concerning each of the objections taken to the action of the referee at the hearing, as set out in $ 0.11, upon which the party wishes to rely, referring, where relevant, to the pages of the transcript. A party, if he files exceptions or a statement of objections, shall state in writing whether he desires to make an oral argument thereon before the Secretary; otherwise, he shall be deemed to have waived such oral argument. 80.17 Shortened procedure.

(a) Consent of parties. Whenever it appears to the referee who is assigned to a proceeding that the proceeding can be more expeditiously handled under the informal procedure provided for in this section, he shall suggest to the parties that they consent to the use of such procedure. Except where oral hearing has been waived by failure to request it in proper time or otherwise, parties are free to consent to such procedure if they choose; declination of consent will not affect or prejudice the rights or interests of any party. A party, if he has not waived oral hearing, may consent to the use of the shortened procedure on the condition that the statements of fact be submitted in the form of depositions rather than affidavits. In such case, if the other parties agree, depositions shall be required to be filed in lieu of affidavits. If any party who has not waived oral hearing does not consent to the use of the shortened procedure, the proceeding will be set for oral hearing. The request that the shortened procedure be used need not originate with the referee; any party may address a request to the referee asking that the shortened procedure be used. The referee, in his suggestion to the parties, will set a short period of time in which the parties may indicate their consent to the shortened procedure; at the end of that period, the referee will notify the parties that the shortened procedure will or will not be used. All requests, suggestions, and notices mentioned in this section shall be filed with the hearing clerk.

(b) Complainant's opening statement. Within 20 days after receipt of notice that the shortened procedure will be used, the complainant shall file with the hearing clerk, in triplicate, in support of the complaint, an opening statement of the facts. A copy of such document

shall be served promptly by the hearing clerk upon the respondent.

(c) Respondents answering statement. Within 20 days after receipt of the complainant's opening statement the respondent may file with the hearing clerk, in triplicate, in support of his answer, an answering statement of the facts. A copy of the answering statement shall be served promptly by the hearing clerk upon the complainant.

(d) Complainant's statement in reply. Within 10 days after receipt of the answering statement, the complainant may file with the hearing clerk, in triplicate, a statement in reply, which shall be confined strictly to replying to the facts and arguments set forth in the answering statement.

(e) Contents of statements. As used in this section, the term "statement” includes (1) statements of fact signed and sworn to by persons having knowledge of those facts; (2) documents filed as a part of the proof of the alleged facts (which documents shall be properly identified by verified statements in the statement filed or otherwise, authenticated in such a manner that they would be admissible in evidence at an oral hearing under the rules in this subpart); and (3) briefs containing argument to sustain the contentions of the party submitting the statement. When practicable, the documents which constitute the record of any transaction in dispute should be made a part of the statement.

(f) Verification. Any facts stated in the statement must be sworn to (before a person legally authorized to administer oaths or before a person designated by the Secretary for the purpose) by a person who states in the affidavit that he has actual knowledge of the facts. Except under unusual circumstances, which shall be set forth in the affidavit, any such person shall be one who would appear as a witness if an oral hearing were held. The original of each document must show the signature, capacity, and impression seal (if the officer is required by law to have a seal) of the officer administering the oath and the date thereof. Copies must bear a notation that the original shows the data required in this respect. If a party elects to do so, he may file his statement of facts in the form of depositions rather than affidavits. Depositions filed under the shortened procedure, whether filed as a result of a requirement in the consent to

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