Page images
PDF
EPUB

(e) The term "Commodity Exchange States Department of Agriculture, in his Authority” means the Commodity Ex- capacity as Administrator of the Com. change Authority, United States Depart- modity Exchange Act, or any officer or ment of Agriculture;

employee of the Commodity Exchange (f) The term "FEDERAL REGISTER" Authority to whom he has heretofore means the publication provided for by lawfully delegated or may hereafter lawthe act of July 26, 1935 (49 Stat. 500, as fully delegate the authority to act in his amended; 44 U.S.C. 301-314), and acts stead; supplementary thereto and amendatory (s) The term "examiner" means any thereof;

examiner in the Office of Hearing Ex(g) The term "hearing" means that aminers, United States Department of part of the proceeding which involves Agriculture. the submission of evidence and means

RULES APPLICABLE TO DISCIPLINARY either an oral or a written hearing;

PROCEEDINGS (h) The term "party" includes the Commission in those instances in which $ 0.53 Institution of proceedings. it is named as a party of record in the

(a) Application to institute proceedproceeding;

ings. Any interested person having any (i) The term "complainant” means

information of any violation of the act, the party upon whose complaint the pro

or of any of the orders or regulations ceeding is instituted;

promulgated thereunder, by any board (j) The term “respondent” means the

of trade or by any director, officer, agent, party proceeded against;

or employee thereof may file with the (k) The term “disciplinary proceed- Act Administrator an application reing” means any proceeding (other than

questing the institution of such proceeda 6a proceeding) before the Commission

ing as is authorized under the act. Such arising under the act, in which proceed

application shall be in writing, signed by ing it is required by law that the order or

or on behalf of the applicant, and shall other determination of the Commission

include a short and simple statement of shall be made only after an opportunity

the facts constituting the alleged violafor a hearing, and, if a hearing be held,

tion and the name and address of the only upon the basis of a record made in

aplicant and the name and address of the course of such hearing;

the person against whom the applicant (1) The term "rulemaking proceed

complains. ing” means any proceeding before the (b) Status of applicant. The person Commission arising under subsection (1)

filing an application as described in parof section 4a of the act;

agraph (a) of this section shall have no (m) The term “6a proceeding" means

legal status in the proceeding which any proceeding arising under section 6a

may be instituted as a result of the apof the act;

plication, except where the applicant (n) The term “Solicitor" means the

may be permitted to intervene therein, Solicitor of the Department;

in the manner provided in this subpart, (0) The term “hearing clerk” means

or may be called as a witness, and the the hearing clerk, United States Depart

applicant's identity shall not be divulged ment of Agriculture, Washington 25,

by any employee of the Department, exD.C.; (p) The term "referee" means an ex

cept with the applicant's prior consent aminer conducting a proceeding under

or upon court order.

(c) Who may institute. If, after inthe act; (q) The term "referee's report” (pre

vestigation of the matters complained of siding officer's report) means the ref

in the application described in paragraph eree's report to the Commission, and

(a) of this section, or after investigation

made on ist own motion, the Commission includes the referee's proposed (1) findings of fact and conclusions with re

has reason to believe that any board

of trade or any director, officer, agent, spect to all material issues of fact, law

or employee thereof has violated or is or discretion, as well as the reasons or

violating any of the provisions of the basis therefor, (2) order, and (3) rulings on findings, conclusions and orders sub

act, or of any of the regulations promulmitted by the parties;

gated thereunder, the Commission will (r) The term “Act Administrator"

institute an appropriate proceeding: Promeans the Administrator of the Com- vided, That in any case, except one of modity Exchange Authority, United w.illfulness or one in which the public

health, interest or safety otherwise requires, prior to the institution of a proceeding for the suspension or revocation of any designation of a contract market, facts or conditions which may warrant such action shall be called to the attention of the market in writing and such market shall be accorded opportunity to demonstrate or achieve compliance with all lawful requirements. Proceedings will be instituted only upon complaints issued by the Commission and will not be instituted upon pleadings filed by private persons. $ 0.54 Stipulations and consent orders.

(a) Stipulation of compliance. At any time prior to the issuance of the complaint in any proceeding, the Commission, in its discretion, may enter into a stipulation with the prospective respondent, whereby the latter admits the material facts and agrees to discontinue the acts or practices which are intended to be set up as violative of the act. Such stipulations shall be admissible as evidence of such acts and practices in any subsequent proceeding against such person before the Commission.

(b) Consent order. At any time after the issuance of the complaint and prior to the hearing in any proceeding, the Commission, in its discretion, may allow the respondent to consent to an order. In so consenting, the respondent must submit, for filing in the record, a stipulation or statement in which he admits at least those facts necessary to the Commission's jurisdiction and agrees that an order may be entered against him. Upon a record composed of the complaint and the stipulation or agreement consenting to the order, the Commission may enter the order consented to by the respondent, which shall have the same force and effect as an order made after oral hearing. 8 0.55 Complaints.

(a) Filing and service. All complaints shall be filed with the hearing clerk. The provisions of $ 0.72 shall govern the film ing, number of copies, and service of such papers.

(b) Contents. A complaint shall state briefly and clearly the allegations of fact which constitute a basis for the proceeding and shall specify with particularity the matters or things in issue. Complaints shall not include charges, implied charges, or requirements phrased generally in the words of the act, but the

words of the act may be identified and quoted or used in preliminary recitals.

(c) Amendments. At any time prior to the close of the hearing, the complaint may be amended; but, in case of an amendment adding new provisions, the hearing shall, at the request of the respondent, be adjourned for a period not exceeding 15 days. Amendments subsequent to the first amendment or subsequent to the filing of an answer by the respondent may be made only with leave of the referee or with the written consent of the adverse party. $ 0.56 Docket number.

Each proceeding, immediately following its institution, shall be assigned a docket number by the hearing clerk, and thereafter the proceeding shall be referred to by such number. $ 0.57

Referees. (a) Assignment. No referee shall be assigned to serve in any proceeding who (1) has any pecuniary interest in any matter or business involved in the proceeding, (2) is related within the third degree by blood or marriage to any party to the proceeding, or (3) has participated in the investigation preceding the institution of the proceeding or in the determination that it should be instituted or in the preparation of the complaint or in the development of the evidence to be introduced therein.

(b) Disqualification of referee. Any party may file with the hearing clerk a timely affidavit of disqualification of the referee which shall set forth with particularity the grounds of alleged disqualification. After such investigation or hearing as the Commission may deem necessary, it may find the affidavit without merit or may direct that another referee be assigned to the proceeding. Where the affidavit is found without merit, the affidavit, any record made thereon, and the finding and order of the Commission shall be made a part of the record.

A referee shall ask to be withdrawn from any proceeding in which he deems himself disqualified for any reason.

(c) Conduct. The referee shall conduct the proceeding in a fair and impartial manner and, save to the extent required for the disposition of ex parte matters as authorized by law, he shall not consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate.

1

law;

(d) Powers of referee. Subject to re- that the hearing be held without answer view by the Commission as provided else- or other pleading. The answer shall be where in this subpart, the referee, in any served upon the complainant, and any proceeding assigned to him, shall have other party of record, in the manner propower to:

vided in $ 0.72. (1) Rule upon motions and requests; (b) Contents; failure to file. Such

(2) Set the time and place of hearing, answer shall (1) contain a statement of adjourn the hearing from time to time, the facts which constitute the grounds and change the time and place of of defense, and shall specifically ac nit, hearing;

deny, or explain each of the allegations (3) Administer oaths and affirmations of the complaint unless respondent is and take affidavits;

without knowledge, in which case the (4) Issue subpenas requiring the at- answer shall so state; or (2) state that tendance and testimony of witnesses and the respondent admits all of the allegathe production of books, records, con- tions of the complaint. The answer may tracts, papers, and other documentary contain a waiver of hearing. evidence;

Failure to file an answer to or plead (5) Summon and examine witnesses specifically to any allegation of the comand receive evidence;

plaint shall constitute an admission of (6) Take or order the taking of such allegation. depositions;

(c) Procedure ироп admission of (7) Admit or exclude evidence;

facts. The admission, in the answer or (8) Hear oral argument on facts or by failure to file an answer, of all the

material allegations of fact contained in (9) Do all acts and take all measures the complaint shall constitute a waiver necessary for the maintenance of order of hearing. Upon such admission of and efficient conduct of the proceeding. facts, the referee, without further inyes

(e) who may act in the absence of tigation or hearing, shall prepare his rethe referee. In case of the absence of port, in which he shall adopt as his the referee, or his inability to act, the proposed findings of fact the material powers and duties to be performed by facts alleged in the complaint. Unless him under these rules of practice in con- the parties have waived service of the nection with a proceeding assigned to referee's report, it shall be served upon him may, without abatement of the them in the manner provided in $ 0.72. proceeding unless otherwise ordered by The parties shall be given an opportunity the Commission, be assigned to any other to file exceptions to the report, to file referee.

briefs in support of such exceptions, and

to make oral argument thereon before $ 0.58 Intervention.

the Commission. Any request to make At any time after the institution of a oral argument before the Commission proceeding, and before it has been sub- must be filled in the manner and within mitted to the Commission for final con- the time provided in $ 0.66 (d). sideration, the Commission or the referee

$ 0.60 Motions and requests. may, upon petition in writing and for good cause shown, permit any person to

(a) General. All motions and requests intervene therein. The petition shall

shall be filed with the hearing clerk, exstate with preciseness and particularity:

cept that those made during the course (a) The petitioner's relationship to the

of an oral hearing may be filed with the matters involved in the proceeding, (b) referee or may be stated orally and made the nature of the material he intends to a part of the transcript. present in evidence, (c) the nature of the

The referee is authorized to rule upon argument he intends to make, (d) any

all motions and requests filed or made other reason that he should be allowed prior to the filing of his report with the to intervene.

hearing clerk as provided in this subpart.

The Commission will rule upon all mo$ 0.59 The answer.

tions and requests filed after that time. (a) Filing and service. Within 20 (b) Motions entertained. Any motion days after service of the complaint, the will be entertained except a motion to respondent shall file, in quintuplicate, dismiss on the pleadings. with the hearing clerk an answer, signed The submission or certification of any by the respondent or his attorney: Pro- motion, recruest, objection, or other quesvided, That the Commission may order tion to the Commission prior to the time when the referee's report is filed with the case will be governed by the applicable hearing clerk shall be in the discretion of provisions of this subpart. the referee.

(2) Failure to appear. If any party to 8 0.61 Oral hearing before referee.

the proceeding, after being duly notified,

fails to appear at the hearing, he shall (a) Request for oral hearing. Any be deemed to have waived the right to party may request an oral hearing on the an oral hearing in the proceeding. In facts by including such request in the the event that a party appears at the complaint or answer or by a separate hearing and no party appears for the request in writing filed with the hearing opposing side, the party who is present clerk. Failure by the respondent to re- shall have an election to present his eviquest an oral hearing within the time

dence, in whole or in part, in the form allowed for the filing of the answer shall of affidavits or by oral testimony before constitute a waiver of such hearing, and the referee. any respondent so failing to request an

Failure to appear at a hearing shall oral hearing will be deemed to have

not be deemed to be a waiver of the right agreed that the proceeding may be de- to be served with a copy of the referee's cided upon a record formed under the report and to file exceptions and make shortened procedure provided for in oral argument before the Commission $ 0.77.

with respect thereto, in the manner proWaiver of oral hearing shall not be vided in this subpart. deemed to be a waiver of the right to (d) Order of proceeding. Except as make oral argument before the Commis

may be determined otherwise by the refsion upon exceptions to the referee's re- eree, the complainant shall proceed first port. Such argument will be allowed in at the hearing. accordance with the provisions of $ 0.69. (e) Evidence-(1) In general. The (b) Time and place. If and when the

testimony of witnesses at a hearing shall proceeding has reached the stage where be upon oath or affirmation administered an oral hearing is to be held, the referee, by the referee and shall be subject to giving careful consideration to the con- cross-examination. venience of the parties, shall set a time Any witness may, in the discretion of and place for hearing and shall file with the referee, be examined separately and the hearing clerk a notice stating the apart from all other witnesses except time and place. If any change in the those who may be parties to the protime or place of the hearing is made, the ceeding. referee shall file with the hearing clerk The referee shall exclude evidence a notice of such change, which notice which is immaterial, irrelevant, or unshall be served upon the parties, unless duly repetitious, or which is not of the it is made during an oral hearing and sort upon which responsible persons are made a part of the transcript.

accustomed to rely. (c) Appearances(1) Representation. (2) Objections. If a party objects to In any proceeding, the parties may ap- the admission or rejection of any evipear in person or by counsel or other rep- dence or to the limitations of the scope resentative. The Commission, if repre- of any examination or cross-examinasented by counsel, shall be represented tion, he shall state briefly the grounds of by an attorney assigned by the Solicitor such objection, whereupon an automatic of the Department.

exception will follow if the objection is Persons who appear as counsel or in a overruled by the referee. The transcript representative capacity at a hearing shall not include argument or debate must conform to the standards of ethical thereon except as ordered by the referee. conduct required of practitioners before The ruling of the referee on any objecthe courts of the United States. When- tion shall be a part of the transcript. ever the Commission finds, after notice Only objections made before the refand opportunity for hearing, that a per- eree may subsequently be relied upon in son, who is acting or has acted as coun- the proceeding. sel or representative for another person (3) Depositions. The deposition of in any proceeding before the Commis- any witness shall be admitted, in the sion, is unfit to act as such representa- manner provided in and subject to the tive or counsel, it will order that such provisions of $ 0.62. person be precluded from acting as coun- (4) Afidavits. Except as is otherwise sel or representative in any proceeding provided in the rules in this subpart, under the act. The procedure in such affidavits may be admitted only if the

evidence is otherwise adrnissible 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 Commission or 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 or 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 Commission 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 Commission 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 the payment of fees at the rate provided in the contract with the reporter. $ 0.62 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 comp nt, 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 the rules 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 par

« PreviousContinue »