Sec.

0.93 0.94

0.92 Argument before the Commission. Preparation and issuance of order. Applications for reopening hearings, for rehearings or rearguments of proceedings, or for reconsideration of orders.

0.95 Filing; service; extensions of time; additional time for filing; and computation of time.

RULES APPLICABLE TO ALL PROCEEDINGS 0.96 Hearings before the Commission.

SOURCE: The provisions of this Part 0 appear at 13 FR. 7820, Dec. 18, 1948, unless otherwise noted.

Subpart A-Rules Applicable to Proceedings Before the Secretary of Agriculture

AUTHORITY: The provisions of this Subpart A issued under sec. 8a, 49 Stat. 1500; 7 U.S.C. 12a.

§ 0.0 Scope and applicability of rules of practice.

Sections 0.1-0.22, inclusive, shall apply to the conduct of all disciplinary proceedings as defined in § 0.2(j).

Sections 0.1, 0.2 and 0.23-0.27, inclusive, shall apply to the conduct of all rule-making proceedings as defined in § 0.2(k).

§ 0.1 Meaning of words.

Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand.

As used in this subpart, the terms as defined in section 2 of the act shall apply with equal force and effect. In addition, and except as may be provided otherwise in this subpart:

(a) The term "act" means in Commodity Exchange Act, approved September 21, 1922 (42 Stat. 998); as amended June 15, 1936 (49 Stat. 1491; 7 U.S.C. 1-17a), and other legislation supplementary thereto and amendatory thereof;

(b) The term "Department" means the United States Department of Agriculture;

(c) The term "Secretary" means the Secretary of Agriculture or any person to whom authority has heretofore lawfully been delegated, or to whom authority may hereafter lawfully be delegated, to act in his stead;

(d) The term "Commodity Exchange Authority" means the Commodity Ex

change Authority, United States Department of Agriculture;

(e) The term "FEDERAL REGISTER” means the publication provided for by the act of July 26, 1935, as amended (49 Stat. 500, as amended; 44 U.S.C.; and Sup., ch. 8B).

(f) The term "hearing" means that part of the proceeding which involves the submission of evidence and means either an oral or a written hearing;

(g) The term "party" includes the Secretary in those instances where he is named as a party of record in the proceeding;

(h) The term "complainant" means the party upon whose complaint the proceeding is instituted;

(i) The term "respondent" means the party proceeded against;

(j) The term "disciplinary proceeding" means any proceeding before the Secretary arising under the act, in which proceeding it is required by law that the order or other determination of the Secretary shall be made only after an opportunity for a hearing, and, if a hearing be held, only upon the basis of a record made in the course of such hearing;

(k) The term "rule-making proceeding" means any proceeding before the Secretary arising under section 5a (4) and (5) of the act;

(1) The term "hearing clerk" means the hearing clerk, United States Department of Agriculture, Washington 25, D.C.;

(m) The term "referee" means an examiner conducting a proceeding under the act;

(n) The term "referee's report" (presiding officer's report) means the referee's report to the Secretary, and includes the referee's proposed (1) findings of fact and conclusions with respect to all material issues of fact, law or discretion, as well as the reasons or basis therefor, (2) order, and (3) rulings on findings, conclusions and order submitted by the parties;

(o) The term "Act Administrator" means the Administrator of the Commodity Exchange Authority, United States Department of Agriculture, in his capacity as Administrator of the Commodity Exchange Act, or any officer or employee of the Commodity Exchange Authority to whom he has heretofore lawfully delegated or may hereafter lawfully delegate the authority to act in his stead;

(p) The term "examiner" means any examiner in the Office of Hearing Examiners, United States Department of Agriculture.

RULES APPLICABLE TO DISCIPLINARY
PROCEEDINGS

§ 0.3 Institution of proceedings.

(a) Application to institute proceeding. Any interested person having any information of any violation of the act, or of any of the regulations promulgated thereunder, by any person (other than a contract market) may file with the Act Administrator an application requesting the institution of such proceeding as is authorized under the act. Such application shall be in writing, signed by or on behalf of the applicant, and shall include a short and simple statement of the facts constituting the alleged violation and the name and address of the applicant and the name and address of the person against whom the applicant complains.

(b) Status of applicant. The person filing an application as described in paragraph (a) of this section shall have no legal status in the proceeding which may be instituted as a result of the application, except where the applicant may be permitted to intervene therein, in the manner provided in this subpart, or may be called as a witness, and the applicant's identity shall not be divulged by any employee of the Department, except with the applicant's prior consent or upon court order.

(c) Who may institute. If, after investigation of the matters complained of in the application described in paragraph (a) of this section, or after investigation made on his own motion, the Secretary "has reason to believe that any person (other than a contract market) is violating or has violated any of the provisions of the act, or any of the rules and regulations made pursuant to its requirements, or has manipulated or is attempting to manipulate the market price of any commodity, in interstate commerce, or for future delivery on or subject to the rules of any board of trade,' ," he will institute a proceeding: Provided, That in any case, except one of wilfulness or one in which the public health, interest or safety otherwise requires, prior to the institution of a proceeding for the suspension or revocation

1 Words in quotation marks from sec. 6 (b), 42 Stat. 1001, as amended; 7 U.S.C. 15.

of a registration or license, facts or conditions which may warrant such action shall be called, in writing, to the attention of the person complained against, and such person shall be accorded opportunity to demonstrate or achieve compliance with all lawful requirements. Proceedings will be instituted only upon complaints issued by the Secretary and will not be instituted upon pleadings filed by private persons.

§ 0.4 Stipulations and consent orders.

(a) Stipulation of compliance. At any time prior to the issuance of the complaint in any proceeding, the Secretary, in his 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 Secretary.

(b) Consent order. At any time after the issuance of the complaint and prior to the hearing in any proceeding, the Secretary, in his 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 Secretary'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 Secretary may enter the order consented to by the respondent, which shall have the same force and effect as an order made after oral hearings. § 0.5

Complaints.

(a) Filing and service. All complaints shall be filed with the hearing clerk. The provisions of § 0.22 shall govern the filing, number of copies, and service of complaints.

(b) Contents. A complaint shall state briefly and clearly the allegations of fact which constitute a basis for the proceedings and shall specify with particularity the matters or things in issue. Complaints shall not include charges, implied charges, or requirments 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.

§ 0.6 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.

§ 0.7 Referees.

(a) Assignment. No referee shall be assigned to serve in any proceedings 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.

Any

(d) Disqualification of referee. 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 Secretary may deem necessary, he 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 Secretary 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.

(d) Powers of referee. Subject to review by the Secretary as provided else

where in this subpart, the referee, in any proceeding assigned to him, shall have power to:

(1) Rule upon motions and requests;

(2) Set the time and place of hearing, adjourn the hearing from time to time, and change the time and place of hearing;

(3) Administer oaths and affirmations and take affidavits;

(4) Issue subpenas requiring the attendance and testimony of witnesses and the production of books, records, contracts, papers, and other documentary evidence;

(5) Summon and examine witnesses and receive evidence;

(6) Take or order the taking of depositions;

(7) Admit or exclude evidence;

(8) Hear oral argument on facts or law;

(9) Do all acts and take all measures necessary for the maintenance of order and efficient conduct of the proceeding.

(e) Who may act in the absence of the referee. In case of the absence of the referee, or his inability to act, the powers and duties to be performed by him under this subpart in connection with a proceeding may, without abatement of the proceeding unless otherwise ordered by the Secretary, be assigned to any other referee.

At any time after the institution of a proceeding, and before it has been submitted to the Secretary for final consideration, the Secretary or the referee may, upon petition in writing and for good cause shown, permit any person to intervene therein. The petition shall state with preciseness and particularity: (a) The petitioner's relationship to the matters involved in the proceeding, (b) the nature of the material he intends to present in evidence, (c) the nature of the argument he intends to make, (d) any other reason that he should be allowed to intervene.

§ 0.9 The answer.

(a) Filing and service. Within 20 days after service of the complaint, the respondent shall file, in triplicate, with the hearing clerk, an answer, signed by the respondent or his attorney: Provided, That the Secretary may order that the hearing be held without answer or other pleading. The answer shall be served upon the complainant, and any other

party of record, in the manner provided in § 0.22.

(b) Contents; failure to file. Such answer shall (1) contain a statement of the facts which constitute the grounds of defense, and shall specifically admit, deny, or explain each of the allegations of the complaint unless the respondent is without knowledge, in which case the answer shall so state; or (2) state that the respondent admits all of the allegations of the complaint. The answer may contain a waiver of hearing.

Failure to file an answer to or plead specifically to any allegation of the complaint shall constitute an admission of such allegation.

(c) Procedure upon admission of facts. The admission, in the answer or by failure to file an answer, of all the material allegations of fact contained in the complaint shall constitute a waiver of hearing. Upon such admission of facts, the referee, without further investigation or hearing, shall prepare his report, in which he shall adopt as his proposed findings of fact the material facts alleged in the complaint. Unless the parties have waived service of the referee's report, it shall be served upon them in the manner provided in § 0.22. The parties shall be given an opportunity to file exceptions to the report, to file briefs in support of such exceptions, and to make oral argument thereon before the Secretary. Any request to make oral argument before the Secretary must be filed in the manner and within the time provided in § 0.16(d).

§ 0.10 Motions and requests.

(a) General. All motions and requests shall be filed with the hearing clerk, except that those made during the course of an oral hearing may be filed with the referee or may be stated orally and made a part of the transcript.

The referee is authorized to rule upon all motions and requests filed or made prior to the filing of his report with the hearing clerk, as hereinafter provided. The Secretary will rule upon all motions and requests filed after that time.

(b) Motions entertained. Any motion will be entertained except a motion to dismiss on the pleadings.

The submission or certification of any motion, request, objection, or other question to the Secretary prior to the time when the referee's report is filed with the hearing clerk shall be in the discretion of the referee.