Sec.

0.92

0.93

0.94

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 F.R. 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.

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.

(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