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 Commission or 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 or 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 Commission 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 Commission 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 the payment of fees at the rate provided in the contract with the reporter.

§ 0.62 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 the rules 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 order 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 par

ties, 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 officer shall propound such cross-interrogatories to the deponent.

The applicant must arrange for the examination of the witness either by oral examination or by written interrogatories. If it is found by the referee, 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 de

Words in quotation marks from 24 Stat. 383, as amended; 49 U.S.C. 12, which is made applicable to proceedings under the Commodity Exchange Act by sec. 6(b) as amended (42 Stat. 1001, as amended; 7 U.S.C. 15).

ponent, 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 offcer 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, any other party may require the production of the remainder, or any other portion, of the deposition. § 0.63 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 Commission or by the referee, upon a reasonable showing by the applicant of the grounds, necessity, and reasonable scope thereof.

(b) Application for subpena duces tecum. Subpenas for the production of documentary evidence, unless issued by the referee upon his own motion, shall be issued only upon verified written application. Such application shall specify

may be served (1) by a United States Marshal or his deputy, or (2) by any other person who is not less than 18 years of age, or (3) by registering and mailing a copy of the subpena addressed to the person to be served at his or its last known principal place of business or residence. Proof of service may be made by the return of service on the subpena by the United States Marshal or his deputy; or, if served by an individual other than a United States Marshal or his deputy, by an affidavit of such person, stating that he personally served a copy of the subpena upon the person named therein; or, if service was by registered mail, by an affidavit made by the person mailing the subpena that it was mailed as provided herein and by the signed return postoffice receipt: Provided, That where the subpena is issued on behalf of the Commission, the return receipt without an affidavit of mailing shall be sufficient proof of service. In making personal service, the person making service shall leave a copy of the subpena with the person subpenaed; the original, bearing or accompanied by the required proof of service, shall be returned to the official who issued the same.

§ 0.64 Fees of witnesses.

Witnesses summoned before the referee or before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken, and the persons taking the same, shall be entitled to the same fees as are paid for like services in the courts of the United States. Fees shall be paid by the party at whose instance the witness appears or the deposition is taken. § 0.65 Prehearing conferences.

In any proceeding in which it appears that such procedure will expedite the proceeding, the referee, at any time prior to the commencement of the oral hearing, may request the parties or their counsel to appear at a conference before him to consider (a) the simplification of issues; (b) the necessity or desirability of amendments to pleadings; (c) the possibility of obtaining stipulations of fact and of documents which will avoid unnecessary proof; (d) the limi

tation of the number of expert or other witnesses; and (e) such other matters as may expedite and aid in the disposition of the proceeding. No transcript of such conference shall be made, but the referee shall prepare and file for the record a written summary of the action taken at the conference which shall incorporate any written stipulations or agreements made by the parties at the conference or as a result of the conference. If the circumstances are such that a conference is impracticable, the referee may request the parties to correspond with him for the purpose of accomplishing any of the objects set forth in this section. The referee shall forward copies of letters and documents to the parties as the circumstances require. Correspondence in such negotiations shall not be a part of the record, but the referee shall submit a written summary for the record if any action is taken.

§ 0.66 Referee's report.

(a) Filing the transcript of evidence.. As soon as practicable after the close of the hearing, the reporter shall transmit to the hearing clerk the transcript of the testimony and the exhibits introduced in evidence at the hearing, except such portions of the transcript and exhibits as shall have been delivered to the referee. The hearing clerk will advise each party to the proceeding as to the date on which the transcript was filed.

(b) Proposed findings of fact, conclusions, and orders. Within 10 days after receipt of notice that the transcript has been filed, each party may file with the hearing clerk proposed findings of fact, conclusions, and orders, based solely upon the record, and a brief in support thereof.

(c) Referee's report. The referee, within a reasonable time after the termination of the period allowed for the filing of proposed findings of fact, conclusions, and orders, and briefs in support thereof, shall prepare, upon the basis of the record and shall file with the hearing clerk, his report, a copy of which shall be served by the hearing clerk upon each of the parties.

(d) Exceptions. Within 20 days after receipt of the referee's report, the parties may file exceptions to the report. Any party who desires to take exception to any matter set out in the report shall transmit his exceptions in writing to the hearing clerk, referring to the relevant pages of the transcript and suggesting

a corrected finding of fact, conclusion, or 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 § 0.61, 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 Commission; otherwise, he shall be deemed to have waived such oral argument. § 0.67 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 quintuplicate, 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 quintuplicate, 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 quintuplicate, 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 these rules of practice); 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 on voluntarily, shall conform to the provisions set forth in § 0.62.

(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 Commission 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.

(1) 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.

At

(j) Assignment for oral hearing. 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 § 0.61(a), the assignment for oral hearing shall be in the discretion of the referee.

§ 0.68

Transmittal of record.

The hearing clerk, immediately following the period allowed for the filing of exceptions, shall transmit to the Commission 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.

$0.69 Argument before Commission.

(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 Commission 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 Commission 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. § 0.70 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 the case oral argument was had, as soon as practical thereafter, the Commission, upon the basis of and after due consideration of the record, shall prepare its order in the proceeding which shall include findings, conclusions, order, and rulings on motions, exceptions, proposed findings, conclusions and orders submitted by the parties, not theretofore ruled upon. At no stage of the proceeding between its institution and the issuance of the order shall the Commission discuss ex parte the