Page images

the shortened procedure or voluntarily, shall conform to the provisions set forth in $ 0.12.

(g) Stipulations. In addition to or in lieu of such statements, the parties may file with the hearing clerk stipulations of fact signed by the parties or their representatives. Such stipulations shall become a part of the record. The stipulations must be filed with the hearing clerk within 20 days after notice that the shortened procedure will be used; or, if the complainant's opening statement is filed, within 20 days after the filing of such statement; or, if an answering statement is filed, within 15 days after the filing thereof; or, if a statement in reply is filed, within 15 days after the filing thereof.

(h) Waiver of right to file. Failure to file, within the time prescribed, any statement or stipulation required or authorized under this section shall constitute a waiver of the right to file such statement or stipulation. In such case, the referee may prepare his report and the Secretary may make the final determination upon the evidence contained in the record at the time of such failure to file, except that no determination, other than dismissal of the proceeding, shall be made if the complainant fails to file an opening statement of the facts.

(i) Referee's report under the shortened procedure. Except as otherwise may be directed by the referee, the filing of the complainant's statement in reply will conclude the presentation of evidence. The referee will thereupon file with the hearing clerk a notice that the parties may file proposed findings of fact, conclusions, and orders within 10 days after service of such notice. Upon the expiration of the period set for the filing of proposed findings, conclusions, and orders, the referee will prepare his report, and the same procedure shall be followed thereafter as in proceedings where an oral hearing has been held.

(j) Assignment for oral hearing. At the request of any party or upon the referee's own motion, the proceeding shall be set for oral hearing at any stage of the proceeding prior to the filing of the referee's report: Provided, That, where the party making such request has waived oral hearing by failure to request it in proper time, as provided in $ 0.11(a), the assignment for oral hearing shall be in the discretion of the referee.

8 0.18 Transmittal of record.

The hearing clerk, immediately following the period allowed for the filing of exceptions, shall transmit to the Secretary the record of the proceeding. Such record shall include: the pleadings; motions and requests filed, and rulings thereon; the transcript of the testimony taken at the hearing, together with the exhibits filed therein; any statements filed under the shortened procedure; any documents or papers filed in connection with prehearing conferences; such proposed findings of fact, conclusions, and orders, and briefs in support thereof, as may have been filed in connection with the hearing; the referee's report; and such exceptions, statements of objections, and briefs in support thereof, as ma have been filed in the proceeding. $ 0.19 Argument before Secretary.

(a) Oral argument. Unless a party has included in his exceptions a request for oral argument or has filed a separate request for oral argument prior to the expiration of the last date for filing such exceptions, he shall be deemed to have waived his right to such oral argument.

(b) Briefs. The parties may file written briefs either in addition to oral argument or in lieu thereof.

(c) Scope of argument. Except where the Secretary determines that argument on additional issues would be helpful, argument, whether oral or on brief, shall be limited to the issues raised by the exceptions and statement of objections. If the Secretary determines that additional issues should be argued, counsel for the parties shall be given reasonable notice of such determination, so as to permit preparation of adequate argument on all the issues to be argued. $ 0.20 Preparation and issuance of

order. (a) Preparation of order. As soon as practicable after the receipt of the record from the hearing clerk, or, in case oral argument was had, as soon as practicable thereafter, the Secretary, upon the basis of and after due consideration of the record, shall prepare his order in the proceedin which shall include findings, conclusions, order, and rulings on motions, exceptions, statements of objections, and proposed findings, conclusions, and orders submitted by the parties, not theretofore ruled upon. If an oral argument was held, the order shall be prepared by and shall

be issued over the signature of the of- must state specifically the grounds relied ficial who heard such oral argument, upon. unless the parties shall consent to a dif- (2) Petitions to reopen hearings. A ferent arrangement. At no stage of the petition to reopen a hearing to take furproceeding between its institution and

ther evidence may be filed at any time the issuance of the order shall the Secre- prior to the issuance of the final order tary discuss ex parte the merits of the Every such petition shall state briefly proceeding with any person who is con- the nature and purpose of the evidence nected with the proceeding in an ad- to be adduced, shall show that such evivocative or an investigative capacity, or dence is not merely cumulative, and shall with any representative of such person: set forth a good reason why such eviProvided, however, That the Secretary dence was not adduced at the hearing. may discuss the merits of the case with Every such petition shall be served by such a person if all parties to the pro- the hearing clerk on the other parties ceeding, or their representatives, have to the proceeding. been given an opportunity to be present. (3) Petitions to rehear or reargue proAny memorandum or other communica- ceedings, or to reconsider orders. A petition addressed to the Secretary, during tion to rehear or reargue the proceeding the pendency of the proceeding, and re- or to reconsider the order must be filed lating to the merits thereof, by, or on within 15 days after the date of the serybehalf of, any party shall be regarded as ice of the order. Every such petition argument made in the proceeding and must state specifically the matters shall be filed with the hearing clerk, who claimed to have been erroneously decided shall serve a copy thereof upon the op- and alleged errors must be briefly stated. posite party to the proceeding, and op- (b) Procedure for disposition of petiportunity shall be given the opposite tions. Within 20 days following the party to file a reply thereto.

service of any petition provided for in (b) Issuance of order. The order, this section, the other party to the proprepared as described in paragraph (a) ceeding shall file with the hearing clerk of this section, shall be issued and served an answer thereto. As soon as practiupon the parties and upon all contract cable thereafter, the Secretary shall anmarkets as the final order in the proceed- nounce the decision whether to grant or ing without further procedure: Provided, to deny the petition. Unless the SecreThat, if the terms of the order differ sub- tary shall determine otherwise, operation stantially from those proposed in the re- of the order shall not be stayed pending port of the referee, the Secretary may, if the decision whether to grant or to deny he deems it advisable to do so, direct the petition. In the event that any such that a copy of the order be served upon petition is granted by the Secretary, the the parties as a tentative order; and, in applicable rules of practice, as set out such event, opportunity shall be given elsewhere in this subpart, shall be folthe parties to file exceptions thereto and lowed. A person filing a petition under written arguments or briefs in support of this section shall be regarded as the such exceptions. In such case, if no ex- complainant, although he shall be receptions are filed within 20 days follow- ferred to as the complainant or responding the service of the tentative order, it ent, depending upon his designation in shall be issued and served as the final the original proceeding. order in the proceeding.

$ 0.22 Filing; service; extensions of $ 0.21 Applications for reopening hear- time; additional time for filing; and

ings; for rehearings or rearguments computation of time. of proceedings; or for reconsidera

(a) Filing; number of copies. Except tion of orders.

as is provided otherwise in this section, (a) Petition requisitem(1) Filing; all documents or papers required or auservice. An application for reopening thorized by this subpart to be filed with the hearing to take further evidence, the hearing clerk shall be filed in triplior for rehearing or reargument of the cate: Provided, That, where there are proceeding, or for reconsideration of the more than two parties to the proceeding, order must be made by petition to the a sufficient number of copies shall be Secretary filed with the hearing clerk, filed so as to provide for service upon who immediately shall notify and serve all the parties to the proceeding. Any a copy thereof upon the other party to document or paper, required or authorthe proceeding. Every such petition ized under the rules in this subpart to be filed with the hearing clerk, shall, in Washington, D.C.; or, if authorized to during the course of an oral hearing, be be filed with any officer or employee of filed with the referee.

the Department at any place outside the (b) Service; proof of service. Copies District of Columbia, it shall be deemed of all such papers shall be served upon to be filed at the time when it reaches the parties by the hearing clerk, by the the office of such officer or employee. referee, or by some other employee of (e) Additional time for filing. The the Department or by a United States me for the filling of any document or Marshal or his deputy. Service shall be paper required or authorized under this made either (1) by delivering a copy of subpart to be filed shall be five days the document or paper to the individual longer when the party resides or has his to be served or to a member of the part- or its principal place of business at any nership to be served or to the president, place west of 104° west longitude. secretary, or other executive officer or

(f) Computation of time. Sundays any director of the corporation, organi- and holidays shall be included in comzation, or association to be served, or

puting the time allowed for the filing of to the attorney or agent of record of

any document or paper: Provided, That such individual, partnership, corpora- when such time expires on a Sunday or tion, organization, or association; or (2)

legal holiday, such period shall be exby leaving a copy of the document or

tended to include the next following paper at the principal office or place of

business day. business of such individual, partnership, corporation, organization, or association, RULES OF PRACTICE APPLICABLE TO RULEor of his or its attorney or agent of rec

MAKING PROCEEDINGS ord; or (3) by registering and mailing

$ 0.23 Requests for promulgation, a copy of the document or paper, ad

amendment, or rescission of reguladressed to such individual, partnership,

tions. corporation, organization, or association, or to his or its attorney or agent

Any interested person may file with of record, at his or its last known prin- the Act Administrator, a request that an cipal office, place of business, or resi- order of the Secretary, promulgating a dence. Proof of service under this sec- regulation under section 5a (4) or (5) of tion shall be made by the affidavit of the the act, should be promulgated, amended, person who actually made the service,

or rescinded. Such request shall be in provided that, if the service be made by

writing, signed by or on behalf of the registered mail, as outlined in subparagraph (3) of this paragraph, proof of

person making the request, and shall service shall be made by the return post

contain the alleged reasons for the prooffice receipt. The affidavit or post-office

mulgation, amendment, or rescission of receipt contemplated herein shall be filed the order. No right to a hearing shall with the hearing clerk, and the fact of accrue by virtue of the filing of such a filing thereof shall be noted on the docket request: Provided, That notice shall be of the proceeding.

given of the denial in whole or in part of (c) Extensions of time. The time for

any such request and, except in affirmthe filing of any document or paper re

ing a prior denial or where the denial is quired or authorized under this subpart

self-explanatory, such notice shall be acto be filed may be extended by the referee (before the referee's report is filed) or by

companied by a simple statement of prothe Secretary (after the referee's report

cedural or other grounds for denial. is filed), if request for such extension of 80.24 Status of persons requesting protime is made prior to or on the final date mulgation, amendment, or rescission allowed for such flling, and if, in the of regulations. judgment of the referee or the Secretary,

No person who requests the promulgaas the case may be, after notice to and consideration of the views of the other

tion, amendment, or rescission of any party, there is good reason for the ex

regulation, as provided in $ 0.23, shall tension.

have a legal status in any proceeding (d) Effective date of filing. Any

growing out of such request except that document or paper required or author- he may appear and testify and may file ized under this subpart to be filed, shall statements in any such proceeding in be deemed to be filed at the time when it accordance with the provisions of this reaches the Department of Agriculture


& 0.25 Notice of hearing.

At least 10 days prior to any public hearing held in a rule-making proceeding, unless the Secretary shall determine that an emergency exists which requires a shorter period of notice, notice of such hearing shall be published in the FEDERAL REGISTER and shall be sent to all persons known to be interested in the proposed regulation. The notice shall state the time and place of hearing and shall contain one or more of the following:

(a) The exact text or a summary thereof of proposed findings, conclusions, and order;

(b) A summary of the results of any investigation made, or conference held in anticipation of the hearing;

(c) A statement of the issues to be considered at the hearing, insofar as such issues may be known at the time of issuance of the notice. $ 0.26 Conduct of hearing.

(a) Presiding officer. Each such hearing shall be presided over by the Act Administrator, or by an employee of the Commodity Exchange Authority whom he shall designate, or by such other official or employee of the Department as the Secretary may designate for the purpose. The hearing shall be conducted in such a way as to afford to interested persons a reasonable opportunity to be heard on matters relevant to the issues involved and so as to obtain a clear and orderly record. The presiding officer shall have authority to administer oaths or affirmations and to take all other actions necessary to the orderly conduct of the hearing.

(b) Continuance of hearing. Each such hearing shall be held at the time and place set forth in the notice of hearing, but may at such time and place be continued by the presiding officer from day to day or adjourned to a later date or to a different place without notice other than the announcement thereof at the hearing.

(c) Order of proceeding. At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. Evidence shall then be received with respect to the matters specified in the notice of hearing in such order as the presiding officer shall prescribe.

(d) Submission of evidence. All interested persons shall be given reasonable opportunity to offer evidence with respect to the matters specified in the notice of hearing. Every witness shall, before proceeding to testify, be sworn, after which he shall state his name, address, and whom he represents at the hearing and shall give such other information respecting his appearance as the presiding officer may request. The presiding officer shall confine the evidence to the questions before the hearing but shall not apply the technical rules of evidence. Affidavits as to relevant facts may be admitted in evidence at the hearing. Every witness shall be subject to questioning by the presiding officer or by any other representative of the Department, but cross-examination by private persons shall not be permitted except when the presiding officer expressly permits it.

(e) Transcript of the evidence. Testimony given at the hearing shall be reported verbatim. All supporting written statements, charts, tabulations, or similar data offered in evidence at the hearing, and which are deemed by the presiding officer to be authentic and relevant, shall be numbered as exhibits and received in evidence and made a part of the record. Unless the presiding oficer finds that the furnishing of copies is impracticable, two copies of the exhibits shall be submitted and in typewritten, printed, or mimeographed form. If sufficient copies are not available, the presiding officer may have any exhibit read in evidence or may require additional copies to be furnished within a specified time.

(f) Written arguments. The presiding officer shall announce at the hearing a reasonable period within which interested persons may file with him written arguments based on the evidence received at the hearing. Written arguments will not be accepted unless an original and two copies are filed. The period for filing written arguments may be extended by the presiding oficer for good cause.

(g) Copies of the record. Any person desiring a copy of the transcript of testimony or of any written exhibit or written argument shall be entitled thereto 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.

[ocr errors]

$ 0.27 Preparation and issuance of

order. (a) Preparation of proposed final order. Within a reasonable period of time after the hearing, the presiding officer, assisted by such employees of the Commodity Exchange Authority and of the Office of the Solicitor as the Act Administrator and the Solicitor, respectively may direct, shall prepare such proposed final order as is appropriate and practicabie. Such order shall include findings of fact and conclusions based thereon, but the findings of fact need not be based solely upon the testimony or exhibits received in evidence at the hearing.

(b) Submission of proposed final order to the Secretary. Immediately upon completion of its preparation, the proposed final order shall be submitted by the presiding officer to the Secretary for approval and signature. The proposed final order shall be accompanied by a copy of the transcript and of any exhibits that may have been introduced, and by a memorandum containing a summary of the evidence contained in the record and of such other factual data upon which the findings of fact in the proposed final order were based.

(c) Tentative issuance of proposed final order. The Secretary may, if he deems it advisable to do so, issue the proposed final order as a tentative order. In such event, the tentative order shall be published in the FEDERAL REGISTER, and interested persons who appeared at the hearing shall be given a reasonable opportunity to file exceptions to the tentative order and to file briefs in support of such exceptions.

(d) Publication of the final order. The full text of the final order in any rulemaking proceeding shall be published in the FEDERAL REGISTER, and a copy of the order shall be sent to each contract market. RULES APPLICABLE TO ALL PROCEEDINGS $ 0.28 Hearings before the Secretary.

The Secretary may act in the place and stead of a referee or presiding officer in any proceeding under this subpart. When he so acts, the hearing clerk shall transmit the record to the Secretary at the expiration of the period provided for the filing of proposed findings of fact, conclusions and orders, and the Secretary shall thereupon, after due consideration of the record, issue his final order

in the proceeding: Provided, That he may issue a tentative order, in which event the parties shall be afforded an opportunity to file exceptions before the issuance of the final order. Subpart B-Rules Applicable to Pro

ceedings Before the Commodity Exchange Commission AUTHORITY: The provisions of this Subpart B issued under 42 Stat. 998, as amended; 7 U.S.C. 1-17a. $ 0.50 Scope and applicability of rules

of practice. Sections 0.51–0.72, inclusive, shall apply to the conduct of all disciplinary proceedings as defined in $ 0.52. Sections 0.51, 0.52, and 0.73–0.77, inclusive, shall apply to the conduct of all rulemaking proceedings as defined in $ 0.52. Sections 0.51, 0.52, and 0.78–0.95, inclusive, shall apply to the conduct of all 6a proceedings as defined in $ 0.52. $ 0.51 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. $ 0.52 Definitions.

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 the 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 “Commission" means the Commodity Exchange Commission or any person to whom the Commission has heretofore lawfully delegated, or to whom the Commission may hereafter lawfully delegate, the authority to act in its stead;

« PreviousContinue »