(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) any 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 of practice in this part); 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 this section.

(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 examiner may prepare his report and the Secretary may make his 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) Examiner's report under the shortened procedure. Except as otherwise may be directed by the examiner, the filing of the complainant's statement in reply will conclude the presentation of evidence. The examiner 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 examiner 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 examiner's own motion, the proceeding shall be set for oral hearing at any stage of the proceeding prior to the filing of the examiner'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 § 202.11 the assignment for oral hearing shall be in the discretion of the examiner.

[6 F. R. 3136, June 28, 1941, as amended at 12 F. R. 1132, Feb. 19, 1947]

The

§ 202.18 Transmittal of record. 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 examiner's report; and such exceptions, statements of objections, and briefs in support thereof as may have been filed in the proceeding.

[6 F. R. 3136, June 28, 1941, as amended at 12 F. R. 1132, Feb. 19, 1947]

§ 202.19 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 arguments 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.

§ 202.20 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 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 in an investigative capacity, or with any representative of such person: Provided, That the Secretary may discuss the merits of the case with such a person if all parties to the proceeding, or

31011-59-28

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 will 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 examiner, 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.

[6 F. R. 3136, June 28, 1941, as amended at 12 F. R. 1131, Feb. 19, 1947]

§ 202.21 Applications for reopening hearings; for rehearing 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

Page 405

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 his 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 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 herein, shall be followed. A person filing a petition under this section shall be regarded as the moving party or complainant, although he shall be referred to as the complainant or respondent, depending upon his designation in the original proceeding.

[6 F. R. 3136, June 28, 1941, as amended at 12 F. R. 1131, Feb. 19, 1947]

§ 202.22 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 the rules in this part to be filed with the hearing clerk shall be filed in duplicate: 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 part to be filed. with the hearing clerk, shall, during the course of an oral hearing, be filed with the examiner.

(b) Service; proof of service. Copies of all such documents or papers shall be served upon the parties by the hearing clerk, by the examiner, or by some other

employee of the Department, or by a United States Marshall 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, oganization, 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 residence or principal office or place of business. Proof of service hereunder 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 post-office receipt. The affidavit and post-office receipt contemplated in this section 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 (except an informal complaint) required or authorized under the rules in this part to be filled may be extended by the examiner (before the examiner's report is filed) or by the Secretary (after the examiner's report is filed), if request for such extension of time is made prior to or on the final date allowed for such filing, and if, in the judgement of the examiner, 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.

(d) Effective date of filing. Any document or paper required or authorized under the rules in this part to be filed shall be deemed to be filed at the time when it reaches the Department of Agriculture in Washington, D. C.; or, if authorized to be filed with an 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 (except an informal complaint) required or authorized under the rules in this part 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 filling 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 APPLICABLE TO RATE PROCEEDINGS

§ 202.23 Notices of inquiry and other moving papers-(a) Filing and service. If the procedure described in § 202.3 (b) fails to effect an amicable or informal adjustment and indicates the probability of a violation of the act, or of the regulations or orders of the Secretary issued pursuant thereto, a formal complaint or other form of moving paper shall be filed, in triplicate, with the hearing clerk, who promptly shall serve a true copy thereof upon the respondent, as provided in § 202.22. A notice shall also be published in the FEDERAL REGISTER, which notice shall contain the contents of the moving paper filed in the proceeding, or a summary thereof, and a statement of a reasonable period of time within which any interested person may file with the hearing clerk a written request to be heard.

(b) Who may file. Rate proceedings may be instituted only upon notices of inquiry or other form of moving papers filed by the Administrator, acting either as a result of the informal complaint procedure hereinbefore provided or on his own motion: Provided, That, if the Administrator shall so determine, a rate proceeding may be instituted upon a moving paper filed by the person who filed the informal complaint.

(c) Contents. Notices of inquiry and other forms of moving papers instituting rate proceedings shall, so far as practicable state briefly and clearly the allegations of fact which constitute a basis for the proceeding and specify with particularity the matters or things in issue.

(d) Amendments. The provisions of § 202.6 (d) shall be applicable in rate proceedings.

§ 202.24 Docket number. The provisions of § 202.7 shall be applicable in rate proceedings.

§ 202.25 Examiners—(a) Assignment. No examiner shall be assigned to serve in any proceeding who (1) has any pecuniary interest in any matter or business involved in the proceeding; or (2) is related within the third degree by blood or marriage to any party to the proceeding.

(b) Disqualification of examiner. The provisions of § 202.8 (b) shall be applicable in rate proceedings.

(c) Powers. The provisions of § 202.8 (d) shall be applicable in rate proceedings.

(d) Who may act in absence of examiner. The provisions of § 202.8 (e) shall be applicable in rate proceedings.

[6 F. R. 3136, June 28, 1941, as amended at 12 F. R. 1131, Feb. 19, 1947]

§ 202.26 Intervention. At any time after the institution of a rate proceeding, and before it has been submitted to the Secretary for final consideration, the Secretary or the examiner 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; and

(d) Any other reason that he should be allowed to intervene.

§ 202.27 Prehearing conferences. The provisions of § 202.15 shall be applicable in rate proceedings.

§ 202.28 Motions and requests. The provisions of § 202.10 shall be applicable in rate proceedings.

§ 202.29 Oral hearing before examiner—(a) Request for oral hearing. Any party desiring an oral hearing shall file with the hearing clerk a written request therefor. Failure to request an oral hearing within 10 days following the service of the moving paper shall constitute a waiver of such hearing, and the party so failing will be deemed to have

agreed that the proceeding may be decided upon a record formed under the shortened procedure provided for in § 202.34.

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 examiner's report as provided in § 202.35.

(b) Time and place. The provisions of § 202.11 (b) shall be applicable in rate proceedings.

(c) Appearances (1) Representation. The provisions of § 202.11 (c) (1) shall be applicable in rate proceedings.

(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 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 whether to present his evidence, in whole or in part, in the form of affidavits or by oral testimony before the examiner.

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 examiner's report and to file exceptions and make oral argument before the Secretary with respect thereto, in the manner provided in §§ 202.35 and 202.36.

(d) Order of proceeding. The provisions of § 202.11 (d) shall be applicable in rate proceedings.

(e) Evidence. The provisions of § 202.11 (e) shall be applicable to rate proceedings.

(f) Oral argument before examiner. In rate proceedings, oral orgument before the examiner shall not be allowed except as the examiner may request or permit such argument in connection with a proposed ruling upon the admissibility of evidence or other matters pertaining to the conduct of the hearing.

(g) Transcript. The provisions of § 202.11 (g) shall be applicable in rate proceedings.

[6 F. R. 3136, June 28, 1941, as amended at 12 F. R. 1131, Feb. 19, 1947]

§ 202.30 Depositions. The provisions of § 202.12 shall be applicable in rate proceedings.

§ 202.31 Subpenas. The provisions of § 202.13 shall be applicable in rate proceedings.

§ 202.32 Fees of witnesses. The provisions of § 202.14 shall be applicable in rate proceedings.

§ 202.33 The examiner's report—(a) Filing the transcript of evidence. The provisions of § 202.16 (a) shall be applicable in rate proceedings.

(b) Suggested findings of fact, conclusions, and order. Within 10 days after the transcript has been filed with the hearing clerk, as provided in paragraph (a) of this section, each party may file with the hearing clerk proposed findings of fact, conclusions, and order, based solely upon the evidence of record, and briefs in support thereof. 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 examiner in the hearing, as provided in § 202.29 (e), upon which the party wishes to rely, referring, where relevant, to the pages of the transcript.

(c) The examiner's report. 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, the examiner, with the assistance of and after consultation with such employees of the Department as may be assigned for the purpose, shall prepare, upon the basis of the record, and shall file with the hearing clerk, a report.

[6 F. R. 3136, June 28, 1941, as amended at 12 F. R. 1131, 1132, Feb. 19, 1947]

§ 202.34 The shortened procedure. The provisions of § 202.17 shall be applicable in rate proceedings.

§ 202.35 Exceptions. Within 20 days after receipt of the examiner's report, the parties may file exceptions thereto. 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 proposing 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 examiner at the hearing, as set out in § 202.11, 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