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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 Commission 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 Commission, 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 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 Commission may, if it 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.

§ 0.71

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 Commission 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 Commission shall announce the decision whether to grant or to deny the petition. Unless the Commission 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 Commission, the applicable rules of practice, as set out elsewhere in this part, 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.

§ 0.72 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 subpart, all documents or papers required or authorized by the rules in this subpart to be filed with the hearing clerk shall be filed in quintuplicate: Provided, That, where there are more than two parties to the proceeding, a sufficient number of copies shall be filed so as to provide the service upon all the parties to the proceeding. Any document or paper, required or authorized under these rules 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 27

$0.73

the parties by the hearing clerk, by the Tricice, or by some other employee of Lo Department, or by a United States W or his deputy. Service shall be matt einer (1) by delivering a copy of sot Gocument or paper to the individual Ayed or to a member of the part

served or to the president, or other executive officer or wag bukana) of the corporation, organiociation to be served, or to Ane or agent of record of such

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partnership, corporation, oror association; or (2) by copy of the document or paper pal office or place of business ividual, partnership, corporawatuation, or association, or of ... attorney or agent of record; or tering and mailing a copy of doyment or paper, addressed to such partnership, corporation, or, or association, or to his or its of agent of record, at his or its ... principal office, place of busi

idence. Proof of service hereBull be made by the affidavit of

who actually made the service w that, if the service be made by mail, as outlined in subparaof this paragraph, proof of all be made by the return post ipt. The affidavit or post-office contemplated in this paragraph fed with the hearing clerk, and of filing thereof shall be noted docket of the proceeding. Katensions of time. The time for ing of any document or paper re

or authorized under the rules in apart to be filed may be extended Teleree (before the referee's report 1..., or by the Commission (after the ... report is filed), if request for

tension of time is made prior to or ...final date allowed for such filing, in the judgment of the referee or 1... Commission, as the case may be,

notice to and consideration of the w of the other party, there is good for the extension.

d. Effective date of filing. Any documint or paper required or authorized to od under this subpart, shall be and to be filed at the time when it Then the Department of Agriculture In Washington, D.C.

Additional time for filing. The Time for the filing of any document or papo rcquired or authorized under this

filed shall be five days 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

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

Any interested person may file with the Act Administrator a request that an order of the Commission, promulgating a regulation under subsection (1) of section 4a 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 selfexplanatory, such notice shall be accompanied by a simple statement of procedural or other grounds for denial. A hearing may be called either as a result of such a request or upon the Commission's own motion.

§ 0.74 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 § 0.73, 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.

§ 0.75 Notice of hearing.

At least 10 days prior to any public hearing held in a rule-making proceeding, unless the Commission 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

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(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 person as the Commission 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 Commission, 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, four copies of the exhibits shall be submitted and in typewritten, printed, or mimeographed form. 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.

If

(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 four 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 with the reporter.

§ 0.77 Preparation and order.

issuance

of

(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 practicable. Such order shall include findings of fact and conclusions

(d) Powers of referee. Subject to review by the Commission as provided elsewhere 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 these rules of practice in connection with a proceeding assigned to him may, without abatement of the proceeding unless otherwise ordered by the Commission, be assigned to any other referee.

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At any time after the institution of a proceeding, and before it has been submitted to the Commission for final consideration, the Commission 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 'ervene.

The answer.

ing and service. Within 20 er service of the complaint, the lent shall file, in quintuplicate, e hearing clerk an answer, signed respondent or his attorney: ProThat the Commission 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 § 0.72.

(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 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 § 0.72. 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 Commission. Any request to make oral argument before the Commission must be filed in the manner and within the time provided in § 0.66(d). § 0.60 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 provided in this subpart. The Commission 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 Commission prior to the time

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when the referee's report is filed with the hearing clerk shall be in the discretion of the referee.

§ 0.61

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 filed 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 § 0.77.

Waiver of oral hearing shall not be deemed to be a waiver of the right to make oral argument before the Commission upon exceptions to the referee's report. Such argument will be allowed in accordance with the provisions of § 0.69.

(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

notice of such change, which notice hall be served upon the parties, unless 1 is made during an oral hearing and 11ade a part of the transcript.

(c) Appearances (1) Representation. I any proceeding, the parties may appear in person or by counsel or other representative. The Commission, 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 Commission 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 Commission, is unfit to act as such representative or counsel, it 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 Commission 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.

The

(e) Evidence—(1) In general. 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 limitations 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 § 0.62.

(4) Affidavits. Except as is otherwise provided in the rules in this subpart, affidavits may be admitted only if the

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