",Yillia:Ji H. Rohen., I:0-;C

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interlocutory appeal from the examiner’s ruling, and on February 12 complaint counsel filed a statement in opposition thereto.

(1) The examiner erred in his ruling that respondent’s motion was not one made in the proceeding before him. Rule 3.6(a) provides that “During the time a proceeding is before a hearing examiner, all motions therein. . . shall be addressed to the hearing examiner, and if within his authority shall be ruled upon by him. Any motion upon which the hearing examiner has no authority to rule shall be certified by him to the Commission with his recommendation.” Since respondent’s motion was made during the pendency of the proceeding before the examiner, it was incumbent upon the latter either to rule upon it or certify it to the Commission with his recommendation. He did neither.

(2) Considering respondent’s motion as properly before the Commission, as respondent asks us to consider it, we agree with the examiner that it should be denied. Nothing in the Administrative Procedure Act or in the basic principles of fair procedure precludes the Commission from creating and following a procedure for settling disputes without recourse to adjudication. Consent negotiations are not a stage in an adjudication but a means of establishing whether adjudication can be avoided altogether. Like investigations, consent hegotiations ave distinct from the adjudicative process and hence are not governed by the standards which control adjudicative procedure.

(8) Our conclusion that respondent’s motion, which is the basis of its request for Jeave to file an interlocutory appeal, must be denied moots respondent’s request. Accordingly,

It is ordered, (1) That respondent’s motion to compel service of staff memorandum be, and it hereby is, denied; and (2) that respondent’s request for leave to file interlocutory appeal be, and it hereby is, dismissed.

FRITO-LAY, INC.

Docket 8606. Order, Mar. 18, 1964 Order returning to hearing examiner his request to hold hearings in eight different cities. :

Orver Routine Uron Crerrtiricatr or NECESSITY By certificate of necessity filed on February 27, 1964, the hearing examiner in the above-captioned proceeding requests the Commission to permit hearings in this matter to be held in eight cities with “reasonable intervals” between hearings in these locations and between complaint counsel's case and respondent’s case. Section 3.16(d) of the Commission’s Procedures and Rules of Practice provides:

Hearings shall proceed with all n asonablc expedition. "(nIe58 the Commis ion otherwise orders upon a certificate of necet:sity therefor by the hearing examiner all hearings shall be held at one plal'e and shall continue without suspension unti concluded. (This does not bar overnight, week end, or holiday recess€.: or other brief intervals of the sort normally involved in:judicial pl'ol'eeding This Rule expresses the determination of the Conunission that the public interest in having fair, orderly and expeditious adjudicative proceedings is normally best served by a requirement of continuous hearings to be held in one place. This is not an inflexible principle, and exceptions will be allowed upon a showing that the public interest would in a particular case be better served by deviating from the prescribed procedure. Such deviation wil not be allowed by the Commis- , 8\-el1 ifsion merely upon request therefor without supporting reasons the parties to the proceeding are willing to conduct it without regard to the requirements of Section 3. 16 (d).

In the present case, the examiner makes his request to hold hearings in more than one city and non-continuously on the basis or complaint counsers motion filed February 10, 196- and respondent's reply thereto filed February 24. An examination of these motions, howevel' discloses that neither contains any supporting reasons, except in the most generaJ and purely conclusory terms, for the requested departures from the Section 3. 16(d) procedure. )Jar doc's the examiller's certificate of necessity furnish any concrete reasons why the Commission should waive the requirements or the Rule. :JIoreover, the Commission is given no indication as to the length or the "reasonable intervals reqllested in the certificate.

For the foregoing reasons the Commission lacks any basis in the papers berore it for making a,n infonned determination as to,,,hether the public interest justifies the requests made in the certificate of necessit.y. Accordingly, J t ordered That this matter be, and it hereby is, returned to the hearing examiner for reconsideration in light of this oreIer. Commissioner 1faclntyre not concurring.

CHESEBROUGH-POND' , !XC.