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where in this subpart, the referee, in any party of record, in the manner provided proceeding assigned to him, shall have in 0.22. power to:
(b) Contents; failure to file. Such (1) Rule upon motions and requests; answer shall (1) contain a statement of
(2) Set the time and place of hearing, the facts which constitute the grounds adjourn the hearing from time to time, of defense, and shall specifically admit, and change the time and place of hear- deny, or explain each of the allegations ing;
of the complaint unless the respondent is (3) Administer oaths and affirmations without knowledge, in which case the and take affidavits;
answer shall so state; or (2) state that (4) Issue subpenas requiring the at- the respondent admits all of the allegatendance and testimony of witnesses and tions of the complaint. The answer may the production of books, records, con- contain a waiver of hearing. tracts, papers, and other documentary Failure to file an answer to or plead evidence;
specifically to any allegation of the com(5) Summon and examine witnesses plaint shall constitute an admission of and receive evidence;
such allegation. (6) Take or order the taking of depo- (c) Procedure upon admission of facts. sitions;
The admission, in the answer or by fail(7) Admit or exclude evidence;
ure to file an answer, of all the material (8) Hear oral argument on facts or allegations of fact contained in the comlaw;
plaint shall constitute a waiver of hear(9) Do all acts and take all measures ing. Upon such admission of facts, the necessary for the maintenance of order referee, without further investigation or and efficient conduct of the proceeding. hearing, shall prepare his report, in
(e) who may act in the absence of the which he shall adopt as his proposed referee. In case of the absence of the findings of fact the material facts alleged referee, or his inability to act, the powers in the complaint. Unless the parties and duties to be performed by him under have waived service of the referee's rethis subpart in connection with a pro- port, it shall be served upon them in the ceeding may, without abatement of the manner provided in § 0.22. The parties proceeding unless otherwise ordered by shall be given an opportunity to file exthe Secretary, be assigned to any other ceptions to the report, to file briefs in referee.
support of such exceptions, and to make $ 0.8 Intervention.
oral argument thereon before the Secre
tary. Any request to make oral arguAt any time after the institution of a ment before the Secretary must be filed proceeding, and before it has been sub- in the manner and within the time promitted to the Secretary for final con- vided in $ 0.16(d). sideration, the Secretary or the referee
$ 0.10 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 of (a) The petitioner's relationship to the 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 referee is authorized to rule upon the argument he intends to make, (d) all motions and requests filed or made any other reason that he should be al- prior to the filing of his report with the lowed to intervene.
hearing clerk, as hereinafter provided. 8 0.9 The answer.
The Secretary will rule upon all motions
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 triplicate, with dismiss on th: pleadings. the hearing clerk, an answer, signed by The submission or certification of any the respondent or his attorney: Provided, motion, request, objection, or other quesThat the Secretary may order that the tion to the Secretary prior to the time hearing be held without answer or other when the referee's report is filed with the pleading. The answer shall be served hearing clerk shall be in the discretion upon the complainant, and any other of the referee.
$ 0.11 Oral hearing before referee.
(a) Request for oral hearing. Any party may request an oral hearing on the facts by including such request in the complaint or answer or by a separate request in writing filled with the hearing clerk. Failure by the respondent to request an oral hearing within the time allowed for the filing of the answer shall constitute a waiver of such hearing, and any respondent so failing to request an oral hearing will be deemed to have agreed that the proceeding may be decided upon a record formed under the shortened procedure provided for in $ 0.17.
Waiver of oral hearing shall not be deemed to be a waiver of the right to make oral argument before the Secretary upon exceptions to the referee's report. Such argument will be allowed in accordance with the provisions of $ 0.19.
(b) Time and place. If and when the proceeding has reached the stage where an oral hearing is to be held, the referee, giving careful consideration to the convenience of the parties, shall set a time and place for hearing and shall file with the hearing clerk a notice stating the time and place. If any change in the time or place of the hearing is made, the referee shall file with the hearing clerk a notice of such change, which notice shall be served upon the parties, unless it is made during an oral hearing and made a part of the transcript.
(c) Appearances—(1) Representation. In any proceeding, the parties may appear in person or by counsel or other representative. The Secretary, if represented by counsel, shall be represented by an attorney assigned by the Solicitor of the Department.
Persons who appear as counsel or in a representative capacity at a hearing must conform to the standards of ethical conduct required of practitioners before the courts of the United States. Whenever the Secretary finds, after notice and opportunity for hearing, that a person, who is acting or has acted as counsel or representative for another person in any proceeding before the Secretary, is unfit to act as such representative or counsel, he will order that such person be precluded from acting as counsel or representative in any proceeding under the act. The procedure in such case will be
governed by the applicable provisions of this subpart.
(2) Failure to appear. If any party to the proceeding, after being duly notified, fails to appear at the hearing, he shall be deemed to have waived the right to an oral hearing in the proceeding. In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present shall have an election to present his evidence, in whole or in part, in the form of affidavits or by oral testimony before the referee.
Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the referee's report and to file exceptions and make oral argument before the Secretary with respect thereto, in the manner provided in this subpart.
(d) Order of proceeding. Except as may be determined otherwise by the referee, the complainant shall proceed first at the hearing.
(e) Evidence-(1) In general. The testimony of witnesses at a hearing shall be upon oath or affirmation administered by the referee and shall be subject to cross-examination.
Any witness may, in the discretion of the referee, be examined separately and apart from all other witnesses except those who may be parties to the proceeding.
The referee shall exclude evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely.
(2) Objections. If a party objects to the admission or rejection of any evidence or to the limitation of the scope of any examination or cross-examination, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the referee. The transcript shall not include argument or debate thereon except as ordered by the referee. The ruling of the referee on any objection shall be a part of the transcript.
Only objections made before the referee may subsequently be relied upon in the proceeding.
(3) Depositions. The deposition of any witness shall be admitted, in the manner provided in and subject to the provisions of $ 0.12.
(4) Affidavits. Except as is otherwise provided in this subpart, affidavits may
be admitted only if the evidence is otherwise admissible 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 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 of 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 Secretary 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 Secretary 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 payment of fees at the rate provided in the contract between the reporter and the Secretary. $ 0.12 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 complaint, 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 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 crder 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 parties, nor interested in the event of the proceedings".?
(d) Procedure on examination. The deponent shall be examined under oath or affirmation and shall be subject to cross-examination. The testimony of the deponent shall be recorded by the officer or by some person under his direction and in his presence. In lieu of oral cross-examination, parties may transmit written cross-interrogatories to the officer prior to the examination and the oficer shall propound such cross-interrogatories to the deponent.
(2) The applicant must arrange for the examination of the witness either by oral examination or by written interrogatories. If it is found by the refree, upon the protest of a party to the proceeding, that such party has his residence and his place of business more than 100 miles from the place of the examination and that it would constitute an undue hardship upon such party to be represented at the examination, the applicant will be required to conduct the examination by means of interrogatories. When the examination is conducted by means of interrogatories, copies of the interrogatories shall be served upon the other parties to the proceeding at least five days prior to the date set for the examination, and the other parties shall be afforded an opportunity to file with the officer cross-interrogatories at any time prior to the time of the examination.
(e) Signature by witness. The transcript of the deposition shall be read to or by the deponent, unless such reading is waived by the parties and the deponent. Any changes which the deponent wishes to make shall be entered upon the deposition by the officer, with a statement of the reasons given by the deponent for such changes. The deposition shall be signed by the deponent unless the parties by stipulation waive such signing, or unless the deponent is ill or cannot be found or refuses to sign. If the deponent does not sign, the officer shall sign and shall state on the record the reason why the deponent did not sign. In such case the deposition shall be as valid as though signed by the deponent, unless the referee finds that the
reason given by the deponent for his refusal to sign requires rejection of the deposition in whole or in part.
(f) Certification by officer. The officer shall certify on the deposition that the deponent was duly sworn by him and that the deposition is a true record of the deponent's testimony. He shall then securely seal the deposition, together with two copies thereof, in an envelope and mail the same by registered mail to the hearing clerk.
(g) Use of depositions. A deposition ordered and taken in accord with the provisions of this section may be used in a proceeding if the referee finds that the evidence is otherwise admissible and (1) that the witness is dead; or (2) that the witness is at a greater distance than 100 miles from the place of hearing, unless it appears that the absence of the witness was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has endeavored but has been unable to procure the attendance of the witness by subpena; or (5), in any event, upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interests of justice and with due regard to the importance of presenting the testimony orally before the referee, to allow the deposition to be used. If any part of a deposition is put in evidence by a party, and other party may require the production of the remainder, or any other portion, of the deposition. $ 0.13 Subpenas.
(a) Issuance of subpenas. The attendance of witnesses and the production of documentary evidence from any place in the United States on behalf of any party to the proceeding may, by subpena, be required at any designated place of hearing. Subpenas may be issued by the Secretary or by the referee, upon a reasonable showing by the applicant of the grounds, necessity, and reasonable scope thereof.
(b) Application for subpena duces teсит. Subpenas for the production of documentary evidence, unless issued by the referee upon his own motion, shall be issued only upon a verified written application. Such application shall specify, as exactly as possible, the documents desired and shall show their competency,
2 Words in quotation marks are from 24 Stat. 383; 49 U.S.C. 12, which is made applicable to proceedings under the Commodity Exchange Act by sec. 6(b), 42 Stat. 1001, as amended; 7 U.S.C. 15.
relevancy, and materiality and the ne- and (e) such other matters as may excessity of their production.
pedite and aid in the disposition of the (c) Service of subpenas. Subpenas proceeding. No transcript of such conmay be served (1) by a United States ference shall be made, but the referee Marshal or his deputy, or (2) by any shall prepare and file for the record a other person who is not less than 18 written summary of the action taken at years of age, or (3) by registering and the conference, which shall incorporate mailing a copy of the subpena addressed any written stipulations or agreements to the person to be served at his or its made by the parties at the conference last known principal place of business or or as a result of the conference. If the residence. Proof of service may be made circumstances are such that a conferby the return of service on the subpena ence is impracticable, the referee may by the United States Marshal or his request the parties to correspond with deputy; or, if served by an individual him for the purpose of accomplishing other than a United States Marshal or any of the objects set forth in this sechis deputy, by an affidavit of such per- tion. The referee shall forward copies son, stating that he personally served a of letters and documents to the parties copy of the subpena upon the person as the circumstances require. Correnamed therein; or, if service was by reg- spondence in such negotiations shall not istered mail, by an affidavit made by the be a part of the record, but the referee person mailing the subpena that it was shall submit a written summary for the mailed as provided herein and by the record if any action is taken. signed returned post-office receipt: Pro
Referee's report. vided, That where the subpena is issued on behalf of the Secretary, the return (a) Filing the transcript of evidence. receipt without an affidavit of mailing As soon as practicable after the close of shall be sufficient proof of service. In the hearing, the reporter shall transmit making personal service, the person mak- to the hearing clerk the transcript of the ing service shall leave a copy of the sub- testimony and the exhibits introduced pena with the person subpenaed; the in evidence at the hearing, except such original, bearing or accompanied by the portions of the transcript and exhibits required proof of service, shall be re- as shall have been delivered to the refturned to the official who issued the eree. The hearing clerk will advise each same.
party to the proceeding as to the date on
which the transcript was filed. $ 0.14 Fees of witnesses.
(b) Proposed findings of fact, concluWitnesses summoned before the ref
sions, and orders. Within 10 days after eree or before the Secretary shall be paid
receipt of notice that the transcript has the same fees and mileage that are paid been filed, each party may file with the witnesses in the courts of the United
hearing clerk proposed findings of fact, States, and witnesses whose depositions
conclusions, and orders, based solely are taken, and the persons taking the
upon the record, and a brief in support same, shall be entitled to the same fees
thereof. as are paid for like services in the courts
(c) Referee's report. The referee, of the United States. Fees shall be paid
within a reasonable time after the terby the party at whose instance the wit
mination of the period allowed for the ness appears or the deposition is taken.
filing of proposed findings of fact, con$ 0.15 Prehearing conferences.
clusions, and orders, and briefs in supIn any proceeding in which it appears
port thereof, shall prepare, upon the
basis of the record, and shall file with that such procedure will expedite the
the hearing clerk, his report, a copy of proceeding, the referee, at any time
which shall be served upon each of the prior to the commencement of the oral
parties. hearing, may request the parties or their counsel to appear at a conference before
(d) Exceptions. Within 20 days after him to consider (a) the simplification of
receipt of the referee's report, the parties
Any issues; (b) the necessity or desirability
may file exceptions to the report.
party who desires to take exception to of amendments to pleadings; (c) the
any matter set out in the report shall possibility of obtaining stipulations of
transmit his exceptions in writing to the fact and of documents which will avoid
hearing clerk, referring to the relevant unnecessary proof; (d) the limitation of
pages of the transcript, and suggesting a the number of expert or other witnesses; corrected findings of fact, conclusion, or 66035 0-67-2