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.

§ 0.17

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) Respondent's 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

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.

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 may 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.

(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 proceeding 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 official who heard such oral argument, unless the parties shall consent to a different arrangement. At no stage of the proceeding between its institution and the issuance of the order shall the Secretary discuss ex parte the merits of the proceeding with any person who is connected with the proceeding in an advocative or an investigative capacity, or with any representative of such person: Provided, however, That the Secretary may discuss the merits of the case with such a person if all parties to the proceeding, or their representatives, have been given an opportunity to be present. Any memorandum or other communication addressed to the Secretary, during the pendency of the proceeding, and relating to the merits thereof, by, or on behalf of, any party shall be regarded as argument made in the proceeding and shall be filed with the hearing clerk, who shall serve a copy thereof upon the opposite party to the proceeding, and opportunity shall be given the opposite party to file a reply thereto.

(b) Issuance of order. The order, prepared as described in paragraph (a) of this section, shall be issued and served upon the parties and upon all contract markets as the final order in the proceeding without further procedure: Provided, That, if the terms of the order differ substantially from those proposed in the report of the referee, the Secretary may, if he deems it advisable to do so, direct that a copy of the order be served upon the parties as a tentative order; and, in such event, opportunity shall be given the parties to file exceptions thereto and written arguments or briefs in support of such exceptions. In such case, if no exceptions are filed within 20 days following the service of the tentative order, it shall be issued and served as the final order in the proceeding.

§ 0.21 Applications for reopening hearings; for rehearings or rearguments of proceedings; or for reconsideration of orders.

(a) Petition requisite (1) Filing; service. An application for reopening the hearing to take further evidence, or for rehearing or reargument of the proceeding, or for reconsideration of the order must be made by petition to the Secretary filed with the hearing clerk, who immediately shall notify and serve a copy thereof upon the other party to the proceeding. Every such petition

must state specifically the grounds relied

upon.

(2) Petitions to reopen hearings. A petition to reopen a hearing to take further evidence may be filed at any time prior to the issuance of the final order Every such petition shall state briefly the nature and purpose of the evidence to be adduced, shall show that such evidence is not merely cumulative, and shall set forth a good reason why such evidence was not adduced at the hearing. Every such petition shall be served by the hearing clerk on the other parties to the proceeding.

(3) Petitions to rehear or reargue proceedings, or to reconsider orders. A petition to rehear or reargue the proceeding or to reconsider the order must be filed within 15 days after the date of the service of the order. Every such petition must state specifically the matters claimed to have been erroneously decided and alleged errors must be briefly stated.

(b) Procedure for disposition of petitions. Within 20 days following the service of any petition provided for in this section, the other party to the proceeding shall file with the hearing clerk an answer thereto. As soon as practicable thereafter, the Secretary shall announce the decision whether to grant or to deny the petition. Unless the Secretary shall determine otherwise, operation of the order shall not be stayed pending the decision whether to grant or to deny the petition. In the event that any such petition is granted by the Secretary, the applicable rules of practice, as set out elsewhere in this subpart, shall be followed. A person filing a petition under this section shall be regarded as the complainant, although he shall be referred to as the complainant or respondent, depending upon his designation in the original proceeding.

§ 0.22

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

(a) Filing; number of copies. Except as is provided otherwise in this section, all documents or papers required or authorized by this subpart to be filed with the hearing clerk shall be filed in triplicate: Provided, That, where there are more than two parties to the proceeding, a sufficient number of copies shall be filed so as to provide for service upon all the parties to the proceeding. Any document or paper, required or authorized under the rules in this subpart to

be filed with the hearing clerk, shall, during the course of an oral hearing, be filed with the referee.

(b) Service; proof of service. Copies of all such papers shall be served upon the parties by the hearing clerk, by the referee, or by some other employee of the Department or by a United States -Marshal or his deputy. Service shall be made either (1) by delivering a copy of the document or paper to the individual to be served or to a member of the partnership to be served or to the president, secretary, or other executive officer or any director of the corporation, organization, or association to be served, or to the attorney or agent of record of such individual, partnership, corporation, organization, or association; or (2) by leaving a copy of the document or paper at the principal office or place of business of such individual, partnership, corporation, organization, or association, or of his or its attorney or agent of record; or (3) by registering and mailing a copy of the document or paper, addressed to such individual, partnership, corporation, organization, or association, or to his or its attorney or agent of record, at his or its last known principal office, place of business, or residence. Proof of service under this section shall be made by the affidavit of the person who actually made the service, provided that, if the service be made by registered mail, as outlined in subparagraph (3) of this paragraph, proof of service shall be made by the return postoffice receipt. The affidavit or post-office receipt contemplated herein shall be filed with the hearing clerk, and the fact of filing thereof shall be noted on the docket of the proceeding.

(c) Extensions of time. The time for the filing of any document or paper required or authorized under this subpart to be filed may be extended by the referee (before the referee's report is filed) or by the Secretary (after the referee's report is filed), if request for such extension of time is made prior to or on the final date allowed for such filling, and if, in the judgment of the referee or the Secretary, as the case may be, after notice to and consideration of the views of the other party, there is good reason for the extension.

in Washington, D.C.; or, if authorized to be filed with any officer or employee of the Department at any place outside the District of Columbia, it shall be deemed to be filed at the time when it reaches the office of such officer or employee.

(e) Additional time for filing. The time for the filing of any document or paper required or authorized under this subpart to be filed shall be five days longer when the party resides or has his or its principal place of business at any place west of 104° west longitude.

(f) Computation of time. Sundays and holidays shall be included in computing the time allowed for the filing of any document or paper: Provided, That when such time expires on a Sunday or legal holiday, such period shall be extended to include the next following business day.

RULES OF PRACTICE APPLICABLE TO RULEMAKING PROCEEDINGS

§ 0.23 Requests for promulgation, amendment, or rescission of regulations.

Any interested person may file with the Act Administrator, a request that an order of the Secretary, promulgating a regulation under section 5a (4) or (5) of the act, should be promulgated, amended, or rescinded. Such request shall be in writing, signed by or on behalf of the person making the request, and shall contain the alleged reasons for the promulgation, amendment, or rescission of the order. No right to a hearing shall accrue by virtue of the filing of such a request: Provided, That notice shall be given of the denial in whole or in part of any such request and, except in affirming a prior denial or where the denial is self-explanatory, such notice shall be accompanied by a simple statement of procedural or other grounds for denial.

$ 0.24 Status of persons requesting promulgation, amendment, or rescission of regulations.

No person who requests the promulgation, amendment, or rescission of any regulation, as provided in § 0.23, shall have a legal status in any proceeding growing out of such request except that he may appear and testify and may file statements in any such proceeding in accordance with the provisions of this subpart.

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 officer 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 officer 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.