2021-24449
[Federal Register Volume 86, Number 220 (Thursday, November 18, 2021)]
[Rules and Regulations]
[Pages 64349-64362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24449]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 12
RIN 3038-AF17
Changing Position Title of Judgment Officer to Administrative
Judge
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule.
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SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC)
is adopting technical amendments to its Rules Relating to Reparations
to change the position title of the Judgment Officer to Administrative
Judge and to incorporate gender neutral language, where applicable.
DATES: Effective November 18, 2021.
FOR FURTHER INFORMATION CONTACT: Eugene Smith, Director, Office of
Proceedings, Commodity Futures Trading Commission, at (202) 418-5395 or
[email protected], Three Lafayette Centre, 1155 21st Street NW,
Washington, DC 20581.
SUPPLEMENTARY INFORMATION: In February 2013, the Commission amended 17
CFR parts 10 and 12 to clarify the role and authority of its
[[Page 64350]]
Judgment Officers.\1\ In this rulemaking, the Commission is adopting
technical amendments to 17 CFR part 12 that more accurately describe
the duties performed by the adjudicator in reparations cases and other
administrative proceedings by changing the title of Judgment Officer to
Administrative Judge. The technical amendments adopted in this final
rule simplify and improve the language of the rules by using plain
language for the adjudicator instead of the overly legalistic term
``Judgment Officer,'' and by incorporating gender neutral language into
part 12, where applicable; thereby, making the rules easier to
understand.
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\1\ Proceedings Before the Commodity Futures Trading Commission,
78 FR 12933 (Feb. 26, 2013).
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Related Matters
A. Administrative Procedure Act
The amendments to the Commission's regulations in this rulemaking
do not establish any new substantive or legislative rules, but rather
are technical amendments to its Rules Relating to Reparations to change
the position title of the Judgment Officer to Administrative Judge and
to incorporate gender neutral language, where applicable. The
amendments to the Commission's regulations relate solely to agency
management, organization, procedure, and practice and provide technical
corrections of a minor and administrative nature. Therefore, this
rulemaking is excepted from the public rulemaking provisions of the
Administrative Procedure Act.\2\ Additionally, an agency may issue a
new rule in some circumstances without publication in the Federal
Register of a notice of proposed rulemaking with an opportunity for
comment if the agency for ``good cause'' finds (and incorporates the
finding and a brief statement of the reasons therefor in the rules
issued) that notice and public procedure thereon are ``impracticable,
unnecessary, or contrary to the public interest.'' \3\ As noted
earlier, the amendments to part 12 are technical edits to improve the
language of the rules and incorporate gender neutral language. Good
cause thus exists as the final rule implements changes that affect
internal agency management, organization and procedure that exempts it
from notice and comment rulemaking. Further, as the revisions to the
Commission's regulations in this rulemaking will not cause any party to
undertake efforts to comply with the regulations as revised, the
Commission has determined to make this rulemaking effective upon
publication in the Federal Register.\4\
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\2\ 5 U.S.C. 553(a) and (b)(A). Rulemaking procedures do not
apply, to the extent that there is involved a matter relating to
agency management or personnel or to public property, loans, grants,
benefits, or contracts or to interpretative rules, general
statements of policy, or rules of agency organization, procedure, or
practice.
\3\ 5 U.S.C. 553(b).
\4\ Section 553(d) of the APA, 5 U.S.C. 553(d), provides, in
part, that a rule may not be made effective less than 30 days before
its effective date except as otherwise provided by the agency for
good cause found and published with the rule.
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B. Regulatory Flexibility Act
The Regulatory Flexibility Act requires the Commission to consider
whether the regulations it adopts will have a significant economic
impact on a substantial number of small entities.\5\ The Commission is
obligated to conduct a regulatory flexibility analysis for any rule for
which the agency publishes a general notice of proposed rulemaking
pursuant to section 553(b) of the Administrative Procedure Act or any
other law.\6\ This rulemaking is excepted from the public rulemaking
provisions of the Administrative Procedure Act. Accordingly, the
Commission is not required to conduct a regulatory flexibility analysis
for this rulemaking.
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\5\ See 5 U.S.C. 601 et seq.
\6\ 5 U.S.C. 601(2).
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C. Paperwork Reduction Act
The Commission may not conduct or sponsor, and a respondent is not
required to respond to, a collection of information contained in a
rulemaking unless the information collection displays a currently valid
control number issued by the Office of Management and Budget (OMB)
pursuant to the Paperwork Reduction Act of 1995 (Paperwork Reduction
Act).\7\ This final rule does not contain a collection of information
as defined in the Paperwork Reduction Act and, therefore, is not
subject to the requirements of the Paperwork Reduction Act.
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\7\ See 44 U.S.C. 3501 et seq.
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D. Cost-Benefit Analysis
Section 15 of the Commodity Exchange Act, as amended by the
Commodity Futures Modernization Act of 2000, provides that before
promulgating a regulation under the Act or issuing an order, the
Commission shall consider the costs and benefits of the action of the
Commission.\8\ These rules govern internal agency organization,
procedure, and practice, and therefore the Commission finds that none
of the considerations enumerated in section 15(a)(2) of the Commodity
Exchange Act, as amended, are applicable to these rules.
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\8\ 7 U.S.C. 19(a).
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E. Congressional Review Act
This final rule is not a rule as defined in the Congressional
Review Act.\9\
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\9\ See 5 U.S.C. 801 through 808.
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List of Subjects in 17 CFR Part 12
Administrative practice and procedure, Consumer protection,
Organization and functions (Government agencies), Reparations.
For the reasons stated in the preamble, the Commodity Futures
Trading Commission amends 17 CFR part 12 as set forth below:
PART 12--RULES RELATING TO REPARATIONS
0
1. The authority citation for part 12 continues to read as follows:
Authority: 7 U.S.C. 2(a)(12), 12a(5), and 18.
0
2. Revise Sec. 12.2 to read as follows:
Sec. 12.2 Definitions.
For purposes of this part:
Act means the Commodity Exchange Act, as amended, 7 U.S.C. 1, et
seq.
Administrative Judge means an employee of the Commission who is
authorized to conduct all reparations proceedings. In appropriate
circumstances, the functions of an Administrative Judge may be
performed by an Administrative Law Judge.
Administrative Law Judge means an administrative law judge
appointed pursuant to the provisions of 5 U.S.C. 3105.
Commission means the Commodity Futures Trading Commission.
Commission decisional employee means an employee or employees of
the Commission who are or may reasonably be expected to be involved in
the decisionmaking process in any proceeding, including, but not
limited to: An Administrative Judge; members of the personal staffs of
the Commissioners, but not the Commissioners themselves; members of the
staffs of the Administrative Law Judges, but not an Administrative Law
Judge; members of the staffs of the Administrative Judges; members of
the Office of the General Counsel; members of the staff of the Office
of Proceedings; and other Commission employees who may be assigned to
hear or to participate in the decision of a particular matter.
Complainant means a person who, individually or jointly with
others, has applied to the Commission for a reparation award pursuant
to section 14(a) of the Act, but shall not include a cross claimant or
any other type of
[[Page 64351]]
third-party claimant. The term ``complainant'' under this part applies
equally to two or more persons who have applied jointly for a
reparation award.
Complaint means any document which constitutes an application for a
reparation award pursuant to section 14(a) of the Act, regardless of
whether it is denominated as such.
Counterclaim means an application for a reparation award by a
respondent against a complainant which satisfies the requirements of
Sec. 12.19. A counterclaim does not mean a cross claim or other type
of third party claim.
Director of the Office of Proceedings means an employee of the
Commission who serves as the administrative head of that Office, with
responsibility and authority to assure that the rules in this part are
administered in a manner which will effectuate the purposes of section
14(b) of the Act. The Director is authorized to convene meetings of all
personnel in the Office of Proceedings, including Administrative
Judges, Administrative Law Judges, and the Judges' personally assigned
law clerks. The Director shall have the authority to delegate their
duties to administer Sec. Sec. 12.15, 12.24, 12.26, and 12.27, and,
shall have the authority to assign and, if necessary, reassign the
duties of, and set reasonable standards for performance for, all
personnel in the Office, including the Administrative Judges, but not
including Administrative Law Judges and their personally assigned law
clerks.
Ex parte communication means an oral or written communication not
on the public record with respect to which reasonable prior notice to
all parties is not given, but does not include:
(1) A discussion, after consent has been obtained from all of the
named parties, between a party and an Administrative Judge or
Administrative Law Judge, or the staffs of the foregoing, pertaining
solely to the possibility of settling the case without the need for a
decision;
(2) Requests for status reports, including questions relating to
service of the complaint, and the registration status of any persons,
on any matter or proceeding covered by this part; or
(3) Requests made to the Office of Proceedings or the Office of the
General Counsel for interpretation of this part.
Formal decisional procedure means, where the amount of total
damages claimed exceeds $30,000, exclusive of interest and costs, a
procedure elected by the complainant or a respondent where the parties
may be granted an oral hearing. A formal decisional proceeding is
governed by subpart E of this part.
Hearing means that part of a proceeding which involves the
submission of proof, either by oral presentation or written submission.
Interested person means any party, and includes any person or
agency permitted limited participation or to state views in a
reparation proceeding, or other person who might be adversely affected
or aggrieved by the outcome of a proceeding (including the officers,
agents, employees, associates, affiliates, attorneys, accountants or
other representatives of such persons), and any other person having a
direct or indirect pecuniary or other interest in the outcome of a
proceeding.
Office of the General Counsel refers to the members of the
Commission's staff who provide assistance to the Commission in its
direct review of any proceeding conducted pursuant to this part.
Office of Proceedings means that Office within the Commission
comprised of the Administrative Law Judges, Administrative Judges, the
Director of that Office, the Proceedings Clerk, and members of the
staffs of the foregoing, which administers the rules in this part,
other than the rules in this part authorizing direct review by the
Commission.
Order means the whole or any part of a final procedural or
substantive disposition of a reparation proceeding by the Commission,
an Administrative Law Judge, an Administrative Judge, or the
Proceedings Clerk.
Party means a complainant, respondent or any other person or agency
named or admitted as a party in a reparation matter.
Person means any individual, association, partnership, corporation
or trust.
Pleading means the complaint, the answer to the complaint, any
supplement or amendment thereto, and any reply to the foregoing.
Proceeding means a case in which the pleadings have been forwarded
and in which a procedure has been commenced pursuant to Sec. 12.26.
Proceedings Clerk means that member of the Commission's staff in
the Office of Proceedings who shall maintain the Commission's
reparation docket, assign reparation cases to an appropriate
decisionmaking official, and act as custodian of the records of
proceedings.
Punitive damages means damages awarded (no more than two times the
amount of actual damages) in the case of any action arising from a
willful and intentional violation in the execution of an order on the
floor of a contract market. An order does not have to be actually
executed to render a violation subject to punitive damages. As a
prerequisite to an award of punitive damages, a complainant must claim
actual and punitive damages, prove actual damages, and demonstrate that
punitive damages are appropriate.
Registrant means any person who--
(1) Was registered under the Act at the time of the alleged
violation;
(2) Is subject to reparation proceedings by virtue of section 4m of
the Commodity Exchange Act, regardless of whether such person was ever
registered under the Act; or
(3) Is otherwise subject to reparation proceedings under the Act.
Reparation award means the amount of monetary damages a party may
be ordered to pay.
Respondent means any person or persons against whom a complainant
seeks a reparation award pursuant to section 14(a) of the Act.
Summary decisional procedure means, where the amount of total
damages claimed does not exceed $30,000, exclusive of interest and
costs, a procedure elected by the complainant or the respondent wherein
an oral hearing need not be held and proof in support of each party's
case may be supplied in the form and manner prescribed by Sec. 12.208.
A summary decisional proceeding is governed by subpart D of this part.
Voluntary decisional procedure means, regardless of the amount of
damages claimed, a procedure which the complainant and the respondent
have chosen voluntarily to submit their claims and counterclaims,
allowable under this part, for an expeditious resolution by an
Administrative Judge. By electing the voluntary decisional procedure,
parties agree that a decision issued by an Administrative Judge shall
be without accompanying findings of fact and shall be final without
right of Commission review or judicial review. A voluntary decisional
proceeding is governed by subpart C of this part.
0
3. Amend Sec. 12.5 as follows:
0
a. Revise paragraph (a); and
0
b. Remove the undesignated paragraph following paragraph (a).
The revision reads as follows:
Sec. 12.5 Computation of time.
(a) In general. In computing any period of time prescribed by the
rules in this part or allowed by the Commission, the Director of the
Office of Proceedings, an Administrative Judge, or an Administrative
Law Judge, the day of the act, event, or default from which the
designated period of time begins to run is not to be included. The last
day of the period so computed is to be included unless it is a
Saturday, a Sunday, or a
[[Page 64352]]
legal holiday, in which event the period runs until the end of the next
day which is not a Saturday, a Sunday, or a legal holiday. Intermediate
Saturdays, Sundays, and legal holidays shall be excluded from the
computation only when the period of time prescribed or allowed is less
than seven (7) days.
* * * * *
0
4. In Sec. 12.6, revise paragraph (a) to read as follows:
Sec. 12.6 Extensions of time; adjournments; postponements.
(a) In general. Except as otherwise provided by law or by the rules
in this part, for good cause shown, the Commission, or an
Administrative Judge, Administrative Law Judge, or the Director of the
Office of Proceedings, before whom a matter is then pending, on their
own motion or the motion of a party, may at any time extend or shorten
the time limit prescribed by the rules in this part for filing any
document. In any instance in which a time limit is not prescribed for
an action to be taken concerning any matter, the Commission or one of
the other officials mentioned above may set a time limit for that
action.
* * * * *
0
5. In Sec. 12.7, republish paragraph (c) heading and revise paragraph
(c)(1) to read as follows:
Sec. 12.7 Ex parte communications in reparation proceedings.
* * * * *
(c) Sanctions. (1) Upon receipt of an ex parte communication
knowingly made or knowingly caused to be made by a party in violation
of the prohibition contained in paragraph (a)(1) of this section, the
Commission, Administrative Law Judge, or an Administrative Judge may,
to the extent consistent with the interests of justice and the policy
of the Act, require the parties to show cause why their claims or
interest in the proceeding should not be dismissed, denied,
disregarded, or otherwise adversely affected on account of such
violation.
* * * * *
0
6. Revise Sec. 12.8 to read as follows:
Sec. 12.8 Separation of functions.
(a) An Administrative Judge, or Administrative Law Judge, will not
be responsible to or subject to the supervision or direction of any
officer, employee, or agent of the Commission engaged in the
performance of investigative or prosecutorial functions for the
Commission.
(b) No officer, employee, or agent of the Federal Government
engaged in the performance of investigative or prosecutorial functions
in connection with any proceeding shall, in that proceeding or a
factually related proceeding, participate or advise in the decision of
an Administrative Judge, or Administrative Law Judge, except as a
witness in the proceeding, without the express written consent of the
parties to the proceeding. This paragraph (b) shall not apply to the
Commissioners.
0
7. In Sec. 12.9, republish paragraph (a) heading and revise paragraphs
(a)(1) and (b) to read as follows:
Sec. 12.9 Practice before the Commission.
(a) Practice--(1) By non-attorneys. Individuals may appear pro se
(on their own behalf); a general partner may represent the partnership;
a bona fide officer of a corporation, trust, or association may
represent the corporation, trust, or association.
* * * * *
(b) Debarment of counsel or representative during the course of a
proceeding. (1) Whenever, while a proceeding is pending before them, an
Administrative Judge or an Administrative Law Judge finds that a person
acting as counsel or representative for any party to the proceeding is
guilty of contemptuous conduct, such official may order that such
person be precluded from further acting as counsel or representative in
the proceeding. An immediate appeal to the Commission may be taken from
any such order, pursuant to the provisions of Sec. 12.309, but the
proceeding shall not be delayed or suspended pending disposition of the
appeal; Provided, that the official may suspend the proceedings for a
reasonable time for the purpose of enabling the party to obtain other
counsel or representative.
(2) Whenever the Administrative Judge or Administrative Law Judge
has issued an order precluding a person from further acting as counsel
or representative in a proceeding, such official, within a reasonable
time thereafter, shall submit to the Commission a report of the facts
and circumstances surrounding the issuance of the order and shall
recommend what action the Commission should take respecting the
appearance of such person as counsel or representative in other
proceedings before the Commission.
* * * * *
0
8. In Sec. 12.10, revise paragraphs (b) and (c) to read as follows:
Sec. 12.10 Service.
* * * * *
(b) Service of orders and decisions. A copy of all notices,
rulings, opinions, and orders of the Proceedings Clerk, the Director of
the Office of Proceedings, an Administrative Judge, an Administrative
Law Judge, the General Counsel or any employee under the General
Counsel's supervision as the General Counsel may designate, or the
Commission shall be served by the Proceedings Clerk on each of the
parties. The Commission, in its discretion and with due consideration
for the convenience of the parties, may serve the aforementioned
documents to the parties by electronic means.
(c) Designation of person to receive service. The first page of the
first document filed in a proceeding by a party or participant shall
include the contact information of a person authorized to receive
service on their behalf. Thereafter, service of documents shall be made
upon the person authorized unless service on the party is ordered by an
Administrative Judge, an Administrative Law Judge or the Commission, or
unless no person authorized to receive service can be found, or unless
the person authorized to receive service is changed by the party upon
due notice to all other parties.
0
9. In Sec. 12.11, republish paragraph (d) heading and revise
paragraphs (d)(1), (d)(2) introductory text, and (d)(2)(i) and (iii) to
read as follows:
Sec. 12.11 Formalities of filing of documents with the Proceedings
Clerk.
* * * * *
(d) Signature--(1) Manner. The original of all papers must be
signed in ink by persons filing the same or by their duly authorized
agents or attorneys.
(2) Effect. The signature on any document of persons acting either
for themselves or as attorney or agent for another constitutes
certification by them that:
(i) They have read the document and know the contents thereof;
* * * * *
(iii) To the best of their knowledge, information and belief, every
statement contained in the document is true and not misleading; and
* * * * *
0
10. In Sec. 12.12, revise paragraphs (b) introductory text and (b)(1)
and (3) to read as follows:
Sec. 12.12 Signature.
* * * * *
(b) Effect. The signature on any document of any persons acting
either for themselves or as attorney or agent for another constitutes
certification by them that:
[[Page 64353]]
(1) They have read the document subscribed and know the contents
thereof;
* * * * *
(3) To the best of their knowledge, information, and belief, every
statement contained in the document is true and not misleading; and
* * * * *
0
11. In Sec. 12.13, revise paragraph (b)(2) to read as follows:
Sec. 12.13 Complaint; election of procedure.
* * * * *
(b) * * *
(2) Subscription and verification of the complaint. Each complaint
shall be signed personally by an individual complainant or by a duly
authorized officer or agent of a complainant who is not a natural
person. Complainant's signature shall be given under oath or
affirmation under penalty of law attesting either that complainant
knows the facts set forth in the complaint to be true, or believes the
facts set forth to be true, in which event the information upon which
complainant formed that belief shall be set forth with particularity.
* * * * *
0
12. Revise Sec. 12.14 to read as follows:
Sec. 12.14 Withdrawal of complaint.
At any time prior to service of notification to the complainant
pursuant to Sec. 12.15(a) of the Director of the Office of
Proceedings' determination to forward the complaint to a registrant,
complainant may file a written notice of withdrawal of the complaint
which shall terminate the Commission's consideration of the complaint
without prejudice to complainant's right to re-file a reparations
complaint based upon the same set of facts within two years after the
cause of action accrues. If the complainant has previously filed a
notice of withdrawal of a complaint based upon the same set of facts,
the notice of withdrawal of complaint shall terminate the case with
prejudice to complainant's rights to re-file a complaint in reparations
based on the same set of facts, but such termination shall be regarded
by the Commission as without prejudice to complainant's right to seek
redress in such alternative forums as may be available for adjudication
of the claims.
0
13. In Sec. 12.15, revise paragraph (b) to read as follows:
Sec. 12.15 Notification of complaint.
* * * * *
(b) Determination not to forward complaint. The Director may, in
their discretion, refuse to forward a complaint as to a particular
respondent if it appears that the matters alleged therein are not
cognizable in reparations, or that grounds exist pursuant to Sec.
12.24(c) or (d) for refusing to forward the complaint. If the Director
of the Office of Proceedings should determine not to forward the
complaint to all registrants named in the complaint in accordance with
this section, no proceeding shall be held thereon and the complainant
shall be notified to that effect. If the Director determines to forward
the complaint as to less than all of the registrants, the complainant
shall be so notified. A termination of the complaint as to any
registrant shall be regarded by the Commission as without prejudice to
the right of the complainant to seek such alternative forms of relief
as may be available.
0
14. Revise Sec. 12.17 to read as follows:
Sec. 12.17 Satisfaction of complaint.
A respondent may satisfy the complaint:
(a) By paying to the complainant either the amount to which the
complainant claims to be entitled as set forth in the complaint or such
other amount as the complainant will accept in satisfaction of the
claim; and
(b) By submitting to the Commission notice of satisfaction and
withdrawal of the complaint, duly executed by the complainant and the
respondent.
0
15. In Sec. 12.18, revise paragraphs (b), (c), and (d) to read as
follows:
Sec. 12.18 Answer; election of procedure.
* * * * *
(b) Motion for reconsideration of determination to forward the
complaint. An answer may include a motion for reconsideration of the
determination to forward the complaint, specifying the grounds
therefor, which the Director of the Office of Proceedings, in their
discretion, may grant by terminating the case pursuant to Sec. 12.27,
or deny by forwarding the pleadings and matters of record for an
elected decisional proceeding pursuant to Sec. 12.26. The inclusion in
an answer of a motion for reconsideration shall not preclude a
respondent, if the motion is denied, from moving for dismissal at a
later stage of the proceeding for the same reasons cited in a motion
for reconsideration pursuant to this paragraph (b).
(c) Subscription and verification of the answer. An answer shall be
signed personally by each registrant on behalf of whom it is filed or
by a duly authorized officer or agent of any such registrant who is not
a natural person. Each registrant's signature shall be given under
oath, or by affirmation under penalty of law, attesting that the signer
has read the answer; that to the best of the signer's knowledge all of
the statements in the answer, the counterclaim (if any), and the
materials required by this part to be appended thereto, are accurate
and true, and that the answer (and counterclaim, if any) has not been
interposed for delay.
(d) Affidavit of service. The registrant shall file with the answer
an affidavit showing that a true copy of the answer has been served
upon the complainant, either personally or by first-class mail
addressed to the complainant at the address set forth in the complaint.
* * * * *
0
16. In Sec. 12.20, revise paragraphs (a) and (c) to read as follows:
Sec. 12.20 Response to counterclaim; reply; election of procedure.
(a) Response to counterclaim. If an answer asserts a counterclaim,
the complainant shall, within thirty (30) days after service of the
answer by the respondent:
(1) Satisfy the counterclaim as if it were a complaint, in the
manner prescribed by Sec. 12.17; or
(2) File a reply to the counterclaim with the Commission.
* * * * *
(c) Election of decisional procedure. If neither the complainant
nor the respondent, in the complaint or answer respectively, has
previously made an election of the summary decisional procedure or the
formal decisional procedure, the complainant may make such an election
in the reply.
0
17. In Sec. 12.21, revise paragraph (a) to read as follows:
Sec. 12.21 Voluntary dismissal.
(a) At any time after the Director of the Office of Proceedings has
served notification to the parties pursuant to Sec. 12.15 of the
Director's determination to forward the complaint to the respondent for
a response, either the complainant or the respondent may obtain
dismissal of the complaint (or the proceeding, if one has commenced) by
filing a stipulation of dismissal, duly executed by all of the
complainants and each respondent against whom the complaint has been
forwarded (or added as a party in the course of a proceeding); provided
however, that if the stipulation is filed after any respondent has
filed an answer, the terms of the stipulation shall include a dismissal
of any counterclaims in the answer.
* * * * *
0
18. In Sec. 12.22, revise paragraph (b) to read as follows:
[[Page 64354]]
Sec. 12.22 Default proceedings.
* * * * *
(b) Default procedure. Upon a party's failure to respond timely to
a complaint or counterclaim as prescribed in Sec. Sec. 12.16 and
12.20, or timely to comply with Sec. 12.25(b) or (c), the Director of
the Office of Proceedings shall forward the pleadings, and other
materials then of record, to an Administrative Judge or Administrative
Law Judge who may thereafter enter findings and conclusions concerning
the questions of violations and damages and, if warranted, enter a
reparation award against the non-responding party. If the facts which
are treated as admitted are considered insufficient to support a
violation or the amount of reparations sought, the Administrative Judge
or Administrative Law Judge may order production of supplementary
evidence from the party not in default and may enter a default order
and an award based thereon.
* * * * *
0
19. In Sec. 12.23, revise paragraph (b) to read as follows:
Sec. 12.23 Setting aside of default.
* * * * *
(b) Default order final. A default order that has become final
pursuant to Sec. 12.22(c) shall not be set aside except upon a motion
filed and served by the defaulted party showing that the defaulted
party should be relieved from the default order because of fraud
perpetrated on a decisionmaking official or the Commission, mistake,
excusable neglect, or because the order is void for want of
jurisdiction. Such a motion shall also show that, if the default order
were set aside, there would be a reasonable likelihood of success for
the defaulted party's claim or defense on the merits and that no party
would be prejudiced thereby. Motions to set aside a final default order
for fraud, mistake, or excusable neglect shall be filed within one year
after the order was issued. All motions to set aside default orders
shall be decided, in the first instance, by the official who issued the
order. A denial of a motion to set aside a default order that has
become final shall be treated as an initial decision, which may be
appealed to the Commission in accordance with the requirements of Sec.
12.401. A grant of a motion to set aside a final default order shall be
treated as a nonfinal order which may be appealed only in accordance
with the requirements of Sec. 12.309.
0
20. In Sec. 12.24, revise paragraphs (a)(1)(iii) and (e) to read as
follows:
Sec. 12.24 Parallel proceedings.
(a) * * *
(1) * * *
(iii) Is governed by a compulsory counterclaim rule of Federal
court procedure which required the complainant in reparations to assert
all of complainant's claims (including those based on alleged
violations of the Commodity Exchange Act, and any regulation or order
issued thereunder) as counterclaims in that proceeding;
* * * * *
(e) Exceptions. At the time notice of a parallel proceeding is
filed pursuant to paragraph (b) of this section, or any time
thereafter, any party, or the receiver or trustee, may file and serve
upon other parties a statement in support of or in opposition to any
action taken or to be taken pursuant to paragraph (c) or (d) of this
section. This statement shall be addressed to the Office of
Proceedings, attention of the Proceedings Clerk. Upon receipt of any
such statement, the Proceedings Clerk shall immediately forward the
statement to the official with responsibility over the case. The notice
and the statements filed by the parties shall be reviewed by that
official who, on or before the effective date of action taken pursuant
to paragraphs (c)(1) and (2) and (d)(1) and (2) of this section, may
take such actions as, in the official's opinion, are necessary to
ensure that the parties to the matter or proceedings are not unduly
prejudiced.
* * * * *
0
21. In Sec. 12.25, revise paragraphs (b) and (c) to read as follows:
Sec. 12.25 Filing fees.
* * * * *
(b) Fees payable upon filing an answer. (1) If a complainant, in
the complaint, has elected the voluntary decisional procedure, a
respondent who, in the answer, elects the summary decisional procedure
(available only where the amount of damages claimed in the complaint or
as counterclaims does not exceed $30,000) shall, at the time of filing
the answer, pay a filing fee of $75.00.
(2) If a complainant, in the complaint, has elected the voluntary
decisional procedure, a respondent who, in the answer, elects the
formal decisional procedure (available only where the amount of damages
claimed in the complaint or as counterclaims exceeds $30,000) shall, at
the time of filing the answer, pay a filing fee of $200.00.
(c) Fees payable upon filing a reply. In any case in which a
counterclaim has been made, unless a complainant in the complaint, or
the respondent in an answer, has elected the summary decisional
procedure or the formal decisional procedure a complainant, who in the
reply elects either of these procedures, shall, at the time of filing
the reply, pay a filing fee of $75.00 or $200.00, respectively,
depending whether the procedure elected by complainant is pursuant to
subpart D or E of this part.
0
22. Revise Sec. 12.26 to read as follows:
Sec. 12.26 Commencement of a reparation proceeding.
(a) Commencement of voluntary decisional proceeding. Where
complainant and respondent in the complaint and answer have elected the
voluntary decisional procedure pursuant to subpart C of this part and
the complainant has paid the filing fee required by Sec. 12.25, the
Director of the Office of Proceedings shall, if in the Director's
opinion the facts warrant taking such action, forward the pleadings and
all materials of record to the Proceedings Clerk for a proceeding to be
conducted in accordance with subpart C of this part. The Proceedings
Clerk shall forthwith notify the parties of such action. Such
notification shall be accompanied by an order issued by the Proceedings
Clerk requiring the parties to complete all discovery, as provided in
subpart B of this part, within 50 days thereafter. A voluntary
decisional proceeding commences upon service of such notification and
order. As soon as practicable after service of such notification, the
Proceedings Clerk shall assign the case to an Administrative Judge for
a final decision.
(b) Commencement of summary decisional proceeding. Where the amount
claimed as damages, exclusive of interest and costs, in the complaint
or in counterclaim does not exceed $30,000, and either a complainant or
a respondent in the complaint, answer, or reply, has elected the
summary decisional procedure pursuant to subpart D of this part, and
has paid the filing fee required by Sec. 12.25, the Director of the
Office of Proceedings shall, if in the Director's opinion the facts
warrant taking such action, forward the pleadings and all materials of
record to the Proceedings Clerk for a proceeding to be conducted in
accordance with subpart D of this part. The Proceedings Clerk shall
forthwith notify the parties of such action. Such notification shall be
accompanied by an order issued by the Proceedings Clerk requiring the
parties to complete all discovery, as provided in subpart B of this
part, within 50 days thereafter. A summary decisional proceeding
commences upon service of such
[[Page 64355]]
notification. As soon as practicable after service of such
notification, the Proceedings Clerk shall assign the case to an
Administrative Judge for disposition.
(c) Commencement of formal decisional proceeding. Where the amount
claimed as damages in the complaint or as counterclaims exceeds
$30,000, exclusive of interest and costs, and either a complainant or a
respondent in the complaint, answer or reply, has elected the formal
decisional procedure pursuant to subpart E of this part, and has paid
the filing fee required by Sec. 12.25, the Director of the Office of
Proceedings shall, if in the Director's opinion the facts warrant
taking such action, forward the pleadings and the materials of record
to the Proceedings Clerk for a proceeding to be conducted in accordance
with subpart E of this part. The Proceedings Clerk shall forthwith
notify the parties of such action. Such notification shall be
accompanied by an order issued by the Proceedings Clerk requiring the
parties to complete all discovery, as provided in subpart B of this
part, within 50 days thereafter. A formal decisional proceeding
commences upon service of such notification and order. As soon as
practicable after service of such notification, the Proceedings Clerk
shall assign the case to an Administrative Judge. All provisions of
this part that refer to and grant authority to or impose obligations
upon an Administrative Law Judge shall be read as referring to and
granting authority to and imposing obligations upon the Administrative
Judge.
0
23. In Sec. 12.30, revise paragraph (c) to read as follows:
Sec. 12.30 Methods of discovery.
* * * * *
(c) Sanctions for abuse of discovery. If an Administrative Law
Judge or an Administrative Judge finds that any party, without
substantial justification, has necessitated the filing of a motion for
a protective order or for an order compelling discovery, or any other
discovery-related motions, that party shall, if the motion is granted,
be ordered to pay, at the termination of the proceeding, the reasonable
expenses of the moving party incurred in filing the motion, unless the
decisionmaking official finds that circumstances exist which would make
an award of such expenses unjust. If a decisionmaking official finds
that any party, without substantial justification, has filed a motion
for a protective order or for an order compelling discovery, or any
discovery-related motions, that party shall, if the motion is denied,
be ordered to pay, at the termination of the proceeding, the reasonable
expenses of an adverse party incurred in opposing the motion, unless
the decisionmaker finds that circumstances exist which would make an
award of such expenses unjust.
* * * * *
0
24. In Sec. 12.33, revise paragraphs (b), (c), and (d) to read as
follows:
Sec. 12.33 Admissions.
* * * * *
(b) Reply. Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless within twenty (20)
days after service of the request, the party upon whom the request is
directed files and serves upon the party requesting a verified written
answer or objection to the matter. If objection is made, the reasons
therefor shall be stated. The answer shall specifically deny the matter
or set forth in detail the reasons why the answering party cannot
truthfully admit or deny the matter. A denial shall fairly meet the
substance of the requested admission and when good faith requires that
an answering party qualify the answer and deny only a part of the
matter of which an admission is requested, the answering party shall
specify so much of it as is true and qualify or deny the remainder.
Answering parties may not give a lack of information or knowledge as a
reason for failure to admit or deny unless they state that they have
made reasonable inquiry and that the information known or reasonably
available to them is insufficient to enable them to admit or deny.
Parties who consider that a matter of which an admission has been
requested presents a genuine issue for trial may not, on that ground
alone, object to the request; they may deny the matter or set forth
reasons why they cannot admit or deny it.
(c) Determining sufficiency of answers or objections. The party who
has requested the admissions may move to determine the sufficiency of
the answers or objections. Unless the objecting party sustains the
burden of showing that the objection is justified, the official
presiding over discovery shall order that an answer be served. If such
official determines that an answer does not comply with the
requirements of this section, that official may order either that the
matter is admitted or that an amended answer be served.
(d) Effect of admission. Any matter admitted under this section is
conclusively established and may be used as proof against the party who
made the admission. However, the discovery or decisionmaking official
may permit withdrawal or amendment when the presentation of the merits
of the proceeding will be served thereby and the party who obtains the
admission fails to satisfy such official that withdrawal or amendments
will prejudice them in maintaining an action or defense on the merits.
0
25. Revise Sec. 12.34 to read as follows:
Sec. 12.34 Discovery by a decisionmaking official.
(a) Applicability. The provisions of this section shall apply to
all decisional proceedings commenced pursuant to Sec. 12.26. For the
purposes of this section, the term ``decisionmaking official'' shall
mean an Administrative Judge or Administrative Law Judge assigned to
render a decision in the proceeding.
(b) Production of documents and tangible things--(1) Order for
production. A decisionmaking official may, upon the official's own
motion, order a party or non-party to produce copies of specifically
designated documents, papers, books, accounts, or tangible things (or
categories of any of the foregoing) which are in the possession,
custody or control of the party, non-party or agent thereof, against
whom the order is directed. Except as provided in paragraph (b)(2) of
this section, a party or nonparty ordered to produce documents or any
of the items under this paragraph (b)(1) shall file and serve the
documents and items listed in the order within twenty (20) days from
the date of service of the order, or within such period of time as the
decisionmaking official may direct. The decisionmaking official may
issue subpoenas to compel the production by parties or non-parties of
such documents and tangible things as are described in this section.
(2) Trade secrets, commercially sensitive or confidential
information. If any party or person against whom an order to produce
has been directed acting in good faith has reason to believe that any
documents or other tangible thing ordered to be produced contains a
trade secret, or commercially sensitive or other confidential
information, the party or person may, in lieu of serving any such
document, in accordance with paragraph (b)(1) of this section, file and
serve a written request for confidential treatment of such documents.
Any such request for confidential treatment shall be accompanied by a
verified statement identifying with particularity the information on
those documents considered to be trade secrets, commercially sensitive
or confidential information, with reasons therefor, and
[[Page 64356]]
indicating which portions, if any, of those documents may be served on
other parties without disclosure of such information. Upon considering
a request for confidential treatment in accordance with this paragraph
(b)(2), the decisionmaking official may, if upon a finding that the
information identified in the request warrants confidential treatment
and is not probative of any material fact in controversy, make copies
of the documents produced, delete such information from the copies, and
serve the copies as modified upon the other parties, with or without an
appropriate protective order limiting dissemination to the parties and
their counsel, if any.
(3) Inability to produce. Any party or person who cannot produce
documents or other tangible things called for in an order for
production, because those documents or things are not in their
possession, custody, or control, shall file and serve within the time
provided in paragraph (b)(1) of this section a verified statement
identifying the documents which cannot be produced and setting forth
with particularity the reasons for non-production.
(c) Order for written testimony. The decisionmaking official may,
upon the official's own motion, order a party or non-party witness to
submit verified statements or written responses to interrogatories, or
both, as to all relevant matters within the party's personal knowledge
which are required in response to the order. A party or person ordered
to file affidavits and/or verified written responses to interrogatories
shall file and serve the documents within such period of time as the
decisionmaking official may direct. The official may issue subpoenas to
compel the filing by parties or non-parties of such verified statements
and written responses as are described in this paragraph (c).
0
26. In Sec. 12.35, revise the introductory text to read as follows:
Sec. 12.35 Consequence of a party's failure to comply with a
discovery order.
If a party fails to comply with an order compelling discovery, or
an order issued pursuant to Sec. 12.34, the official assigned to
render the decision in the case may, upon motion by a party or on the
official's own motion, take such action in regard thereto as is just,
including but not limited to the following:
* * * * *
0
27. In Sec. 12.101, revise the section heading and the introductory
text to read as follows:
Sec. 12.101 Functions and responsibilities of the Administrative
Judge.
The Administrative Judge shall be responsible for the fair and
orderly conduct of the proceeding and shall have the authority:
* * * * *
0
28. Revise Sec. 12.102 to read as follows:
Sec. 12.102 Disqualification of Administrative Judge.
(a) At their own request. An Administrative Judge may withdraw from
a voluntary decisional proceeding when they consider themselves to be
disqualified on the grounds of personal bias, conflict of interest, or
similar bases. In such event the Administrative Judge shall immediately
notify the Commission and each of the parties of the withdrawal and of
the basis for such action.
(b) Upon the request of a party. Any party may request an
Administrative Judge to disqualify themselves on the grounds of
personal bias, conflict of interest, or similar bases. Interlocutory
review of an adverse ruling by the Administrative Judge may be sought
without certification of the matter by the Administrative Judge only in
accordance with the procedures set forth in Sec. 12.309.
0
29. In Sec. 12.106, revise paragraph (a) to read as follows:
Sec. 12.106 Final decision and order.
(a) When a final decision is required. After all submissions of
proof have been received, the Administrative Judge shall make the final
decision. Upon its issuance, the final decision shall forthwith be
filed with the Proceedings Clerk, and immediately served on the
parties. The Proceedings Clerk shall also serve a notice, to accompany
the final decision, of the effect of a failure by a party ordered to
pay a reparation award to file the documents required by Sec.
12.407(c).
* * * * *
0
30. Revise Sec. 12.200 to read as follows:
Sec. 12.200 Scope and applicability of this subpart.
The rules set forth in this subpart are applicable only to
proceedings forwarded pursuant to Sec. 12.26(b). The rules in subpart
B of this part permitting discovery are applicable in a summary
decisional proceeding. Unless specifically made applicable, the rules
prescribed in subparts C and E of this part shall not apply to such
proceedings. Parties to a proceeding forwarded pursuant to Sec.
12.26(b) may, by signed agreement filed at any time prior to the
issuance of the initial decision, or of any other order disposing of
all issues in the proceeding, elect to have all of the issues in the
proceeding decided pursuant to the voluntary decisional procedure. Upon
receiving a timely filed stipulation signed by all parties evidencing
such an election, the Administrative Judge shall conduct the proceeding
and render a decision pursuant to subpart C of this part.
0
31. In Sec. 12.201, revise the section heading, the introductory text,
and paragraphs (a) and (d) to read as follows:
Sec. 12.201 Functions and responsibilities of the Administrative
Judge.
The Administrative Judge shall be responsible for the fair and
orderly conduct of the proceeding and shall have the authority--
(a) In the Administrative Judge's discretion, to conduct pre-
decision conferences in accordance with Sec. 12.206;
* * * * *
(d) To take such action as is appropriate under Sec. 12.35, if a
party fails to comply with an order issued by the Administrative Judge
pursuant to Sec. 12.34;
* * * * *
0
32. Revise Sec. 12.202 to read as follows:
Sec. 12.202 Disqualification of Administrative Judge.
(a) At their own request. An Administrative Judge may withdraw from
a summary decisional proceeding when they consider themselves to be
disqualified on the grounds of personal bias, conflict of interest, or
similar bases. In such event, the Administrative Judge shall
immediately notify the Commission and each of the parties of the
withdrawal and of the basis for such action.
(b) Upon the request of a party. Any party may request an
Administrative Judge to disqualify themselves on the grounds of
personal bias, conflict of interest, or similar bases. Interlocutory
review of an order denying such a request may be sought without
certification of the matter by the Administrative Judge only in
accordance with the procedures set forth in Sec. 12.309.
0
33. In Sec. 12.204, revise paragraphs (a) and (b) to read as follows:
Sec. 12.204 Amended and supplemental pleadings.
(a) Amendments to pleadings. At any time before the parties have
concluded their submission of proof, the Administrative Judge may allow
amendments of the pleadings either upon written consent of the parties,
or for good cause shown, provided
[[Page 64357]]
however, that any pleading as amended shall not contain an allegation
of damages in excess of $30,000. Any party may file a response to a
motion to amend the pleadings within ten (10) days after the date of
service upon that party of the motion.
(b) Supplemental pleadings. At any time before the parties have
concluded their submissions of proof, and upon such terms as are just,
the Administrative Judge may, upon motion by a party, permit a party to
serve a supplemental pleading setting forth transactions, occurrences
or events which have happened since the date of the pleadings sought to
be supplemented and which are relevant to any of the issues in the
proceeding: Provided however, that any pleading as supplemented may not
contain an allegation of damages in excess of $30,000. Any party may
file a response to a motion to supplement the pleadings within ten (10)
days after the date of service upon that party of the motion.
* * * * *
0
34. In Sec. 12.205, revise paragraphs (a) and (b), republish the
paragraph (c) heading, and revise paragraphs (c)(1) and (2) to read as
follows:
Sec. 12.205 Motions.
(a) In general. Motions for relief not otherwise specifically
provided for in this subpart (Sec. Sec. 12.200 through 12.210), other
than discovery-related motions and motions for extensions of time and
similar procedural orders, shall not be allowed. Except as otherwise
specifically provided in this subpart, all motions permitted under the
provisions of this subpart shall be directed to the Administrative
Judge prior to the filing of the initial decision, and to the
Commission after the initial decision has been filed. Motions for
extensions of time and similar procedural orders may be acted upon at
any time, without awaiting a response thereto. Any party adversely
affected by such action may request reconsideration, vacation or
modification of such action.
(b) Answer to motions. Any party may serve and file a written
response to a motion within ten (10) days after service of the motion,
or within such longer or shorter period as is established by the
provisions of this part, or as the Administrative Judge or the
Commission may direct.
(c) Dismissal--(1) By the Administrative Judge. An Administrative
Judge, acting upon their own motion, may:
(i) Dismiss the entire proceeding without prejudice to
counterclaims, if the Administrative Judge finds that the matters
alleged in the complaint fail to state a claim cognizable in
reparations; or
(ii) Order dismissal of any claim, counterclaim, or party from the
proceeding if the Administrative Judge finds, after review of the
record, that such claim or counterclaim (by itself or as applied to any
party) is not cognizable in reparations.
(2) Motion for dismissal by a party. Any party who believes that
grounds exist for dismissal of the entire complaint, or of any claim
therein, or of any counterclaim or party from the proceeding, may file
a motion for dismissal specifying the claims or parties to be dismissed
and the reasons therefor. Upon consideration of the whole record, the
Administrative Judge may grant or deny such motion, in whole or in
part.
* * * * *
0
35. Amend Sec. 12.206 as follows:
0
a. Redesignate paragraphs (a) through (g) as paragraphs (a)(1) through
(7);
0
b. Designate the introductory text as paragraph (a) introductory text;
0
c. Revise newly designated paragraph (a) introductory text;
0
d. Designate the undesignated paragraph following newly redesignated
paragraph (a)(7) as paragraph (b); and
0
e. Revise newly designated paragraph (b).
The revisions read as follows:
Sec. 12.206 Pre-decision conferences.
(a) At any time after a summary decisional proceeding has been
commenced pursuant to Sec. 12.26(b), the Administrative Judge may, in
their discretion, conduct one or more pre-decision conferences to be
held in Washington, DC, or by telephone, with all parties, for the
purposes of:
* * * * *
(b) At or following the conclusion of such a conference, the
Administrative Judge may serve a pre-decision memorandum and order
setting forth the agreements, if any, reached by the parties, any
procedural determinations made by the Administrative Judge, and the
issues for resolution not disposed of by the admissions or agreements
by the parties. Such order, when issued, shall control the subsequent
course of the proceeding unless modified to prevent injustice.
0
36. In Sec. 12.207, revise paragraphs (a), (b), (c), and (d) to read
as follows:
Sec. 12.207 Summary disposition.
(a) Filing of motions, answers. Any parties who believe that there
is no genuine issue of material fact to be determined and that they are
entitled to a decision as a matter of law concerning all issues of
liability in the proceeding may file a motion for summary disposition
at any time until the parties have concluded their submissions of
proof. Any adverse party, within ten (10) days after service of the
motion, may file and serve opposing papers or may countermove for
summary disposition.
(b) Supporting papers. A motion for summary disposition shall
include a statement of the material facts as to which the moving party
contends there is no genuine issue, supported by the pleadings, and by
affidavits, other verified statements, admissions, stipulations, and
interrogatories. The motion may also be supported by briefs containing
points and authorities in support of the contention of the party making
the motion. When a motion is made and supported as provided in this
section, unless otherwise ordered by the Administrative Judge, adverse
parties may not rest upon the mere allegations, but shall serve and
file in response a statement setting forth those material facts as to
which they contend a genuine issue exists, supported by affidavits and
other verified material. They may also submit a brief of points and
authorities.
(c) Summary disposition upon motion of the Administrative Judge. If
the Administrative Judge believes that there may be no genuine issue of
material fact to be determined and that one of the parties may be
entitled to a decision as a matter of law, the Administrative Judge may
direct the parties to submit papers in support of and in opposition to
summary disposition, substantially as provided in paragraphs (a) and
(b) of this section.
(d) Ruling on summary disposition. The Administrative Judge may
grant summary disposition if the undisputed pleaded facts, affidavits,
other verified statements, admissions, stipulations, and matters of
official notice show that:
(1) There is no genuine issue as to any material fact;
(2) There is no necessity that further facts be developed in the
record; and
(3) A party is entitled to a decision in that party's favor as a
matter of law.
* * * * *
0
37. In Sec. 12.208, revise paragraph (b) to read as follows:
Sec. 12.208 Submissions of proof.
* * * * *
(b) Oral testimony and examination. The Administrative Judge may
order an oral hearing for the presentation of testimony and examination
of the parties and their witnesses when appropriate and necessary for
the
[[Page 64358]]
resolution of factual issues, upon motion by either a party or the
Administrative Judge. An oral hearing held under this section will be
convened by conference telephone call as provided in Sec. 12.209(b),
except that an in-person hearing may be held in Washington, DC, under
the circumstances set forth in Sec. 12.209(c).
0
38. Revise Sec. 12.209 to read as follows:
Sec. 12.209 Oral testimony.
(a) Generally. When the Administrative Judge determines that an
oral hearing is necessary and appropriate, such oral hearing will be
held either by telephone or in person in Washington, DC, as set forth
in paragraphs (b) through (d) of this section. The Administrative
Judge, in their discretion with consideration for the convenience of
the parties and their witnesses, will determine the time and date of
such hearing. During an oral hearing, in their discretion, the
Administrative Judge may regulate appropriately the course and sequence
of testimony and examination of the parties and their witnesses and
limit the issues.
(b) Telephonic hearings. When an Administrative Judge has
determined to hold an oral hearing by telephone, an order to that
effect will be issued at least 15 days prior to the hearing notifying
the parties of the date and time of the hearing. The order will direct
the parties to confirm, at least 48 hours in advance of the hearing,
that the correct telephone numbers for the parties and their witnesses
are on file with the Office of Proceedings, and warn that failure to
provide correct telephone numbers may be deemed waiver of that party's
right to participate in the hearing, to present evidence, or to cross-
examine other witnesses. If a party is unavailable by telephone at the
appointed time, any other party in attendance may present testimony,
and the Administrative Judge also may impose any appropriate sanction
listed in Sec. 12.35. All telephonic hearings will be recorded
electronically but will be transcribed only upon direction of the
Administrative Judge (if necessary) or in the event of Commission
review. The parties may secure a copy of the recording of the hearing
from the Proceedings Clerk upon written request and payment of the cost
of the recording.
(c) Washington, DC, hearings. In exceptional circumstances and when
an in-person hearing is determined to be necessary in resolving the
issues, the Administrative Judge may order an in-person hearing in
Washington, DC, upon written request by a party and the agreement of at
least one opposing party. The Administrative Judge will issue notice of
the time, date, and location of an in-person hearing to the parties at
least 30 days in advance of the hearing. Except as otherwise provided
in this section, an in-person hearing will be held and recorded in the
manner prescribed in Sec. 12.312(c) through (f). A party not agreeing
to appear at the hearing in Washington, DC, may be ordered to
participate by telephone. Any party not appearing in person or by
telephone will be deemed to have waived the right to participate in the
hearing, to present evidence, or to cross-examine other witnesses;
further, that party may be subject to such action under Sec. 12.35 as
the Administrative Judge may find appropriate. The Administrative Judge
may order any party who requests or agrees to appear at a hearing in
Washington, DC, and fails to appear without good cause, to pay any
reasonable costs unnecessarily incurred by parties appearing at such a
hearing.
(d) Compulsory process. An application for a subpoena requiring a
non-party to participate in a telephonic hearing or to appear at an in-
person hearing in Washington, DC, may be made in writing to the
Administrative Judge without notice to the other parties. The standards
for issuance or denial of an application for a subpoena, the service
and travel fee requirements, and the method for enforcing such
subpoenas are set forth at Sec. 12.313.
0
39. In Sec. 12.210, revise paragraphs (a), (b) introductory text,
(b)(1), and (c) to read as follows:
Sec. 12.210 Initial decision.
(a) In general. Proposed findings of fact and conclusions of law
briefs shall not be allowed. As soon as practicable after all
submissions of proof have been received, the Administrative Judge shall
make the initial decision, which will be filed forthwith with the
Proceedings Clerk. Upon filing of an initial decision, the Proceedings
Clerk shall immediately serve upon the parties a copy of the initial
decision and a notification of the effect of a party's failure timely
to appeal the initial decision to the Commission, as provided in
paragraphs (d) and (e) of this section, as well as the effect of a
failure by a party who has been ordered to pay a reparation award
timely to file the documents required by Sec. 12.407(c).
(b) Content of initial decision. In the initial decision in a
summary decisional proceeding, the Administrative Judge shall:
(1) Include a brief statement of the findings as to the facts, with
reference to those portions of the record which support those findings;
* * * * *
(c) Costs; prejudgment interest. The Administrative Judge may, in
the initial decision, award costs (including the costs of instituting
the proceeding, and if appropriate, reasonable attorneys' fees) and, if
warranted as a matter of law under the circumstances of the particular
case, prejudgment interest to the party in whose favor a judgment is
entered.
* * * * *
0
40. Amend Sec. 12.303 as follows:
0
a. Redesignate paragraphs (a) through (g) as paragraphs (a)(1) through
(7);
0
b. Designate the introductory text as paragraph (a) introductory text;
0
c. Revise newly designated paragraph (a) introductory text;
0
d. Designate the undesignated paragraph following newly redesignated
paragraph (a)(7) as paragraph (b); and
0
e. Revise newly designated paragraph (b).
The revisions read as follows:
Sec. 12.303 Pre-decision conferences.
(a) During the time period permitted for discovery pursuant to
Sec. 12.30(d), and thereafter, Administrative Law Judges may, in their
discretion, conduct one or more pre-decision conferences to be held in
Washington, DC, or by telephone, with all parties for the purposes of:
* * * * *
(b) At or following the conclusion of a pre-decision conference,
Administrative Law Judges may serve a pre-decision memorandum and order
setting forth the agreements reached by the parties, any procedural
determinations made by them, and the issues for resolution not disposed
of by admissions or agreements by the parties. Such an order shall
control the subsequent course of the proceeding unless modified to
prevent injustice.
0
41. In Sec. 12.304, revise the introductory text and paragraph (e) to
read as follows:
Sec. 12.304 Functions and responsibilities of the Administrative Law
Judge.
Once an Administrative Law Judge has been assigned the case, the
Administrative Law Judge shall be responsible for the fair and orderly
conduct of a formal decisional proceeding and shall have the authority:
* * * * *
(e) In the Administrative Law Judge's discretion, to conduct pre-
decision conferences, for the purposes prescribed in Sec. 12.303, at
any time after a
[[Page 64359]]
proceeding has commenced pursuant to Sec. 12.26(c);
* * * * *
0
42. Revise Sec. 12.305 to read as follows:
Sec. 12.305 Disqualification of Administrative Law Judge.
(a) At their own request. An Administrative Law Judge may withdraw
from a formal decisional proceeding when they consider themselves to be
disqualified on the grounds of personal bias, conflict of interest, or
similar bases. In such event, they shall immediately notify the
Commission and each of the parties of the withdrawal and of the basis
for such action.
(b) Upon the request of a party. Any party may request an
Administrative Law Judge to disqualify themselves on the grounds of
personal bias, conflict of interest, or similar bases. Interlocutory
review of an order denying such a request may be sought without
certification of the matter by an Administrative Law Judge, only in
accordance with the procedures set forth in Sec. 12.309.
0
43. In Sec. 12.307, revise paragraphs (a) and (b) to read as follows:
Sec. 12.307 Amended and supplemental pleadings.
(a) Amendments to pleadings. At any time before the parties have
concluded their submissions of proof, the Administrative Law Judge may
allow amendments of the pleadings either upon written consent of the
parties or for good cause shown. Any party may file a response to a
motion to amend the pleadings within ten (10) days after the date of
service upon that party of the motion.
(b) Supplemental pleadings. At any time before the parties have
concluded their submissions of proof, and upon such terms as are just,
an Administrative Law Judge may, upon motion by a party, permit a party
to serve a supplemental pleading setting forth transactions,
occurrences or events which have happened since the date of the
pleadings sought to be supplemented and which are relevant to the
issues in the proceeding. Any party may file a response to a motion to
supplement the pleadings within ten (10) days after the date of service
upon that party of the motion.
* * * * *
0
44. In Sec. 12.308, revise paragraph (b), republish paragraph (c)
heading, and revise paragraph (c)(1) to read as follows:
Sec. 12.308 Motions.
* * * * *
(b) Answer to motions. Any party may serve and file a written
response to a motion within ten (10) days after service of the motion
upon that party, or within such longer or shorter period as established
by this part, or as the Administrative Law Judge or the Commission may
direct.
(c) Dismissal--(1) By the Administrative Law Judge. The
Administrative Law Judge, acting on their own motion, may, at any time
after they have been assigned the case:
(i) Dismiss the entire proceeding, without prejudice to
counterclaims, if they find that none of the matters alleged in the
complaint state a claim that is cognizable in reparations; or
(ii) Order dismissal of any claim, counterclaim, or party from the
proceeding if they find that such claim or counterclaim (by itself, or
as applied to a party) is not cognizable in reparations.
* * * * *
0
45. In Sec. 12.309, revise paragraphs (a)(1), (d), and (e) to read as
follows:
Sec. 12.309 Interlocutory review by the Commission.
* * * * *
(a) * * *
(1) The appeal is from a ruling pursuant to Sec. 12.102, Sec.
12.202, or Sec. 12.305 refusing to grant a motion to disqualify an
Administrative Judge or Administrative Law Judge;
* * * * *
(d) Proceedings not stayed. The filing of an application for
interlocutory review and a grant of review shall not stay proceedings
before an Administrative Law Judge (or an Administrative Judge, if
applicable) unless that official or the Commission shall so order. The
Commission will not consider a motion for a stay unless the motion
shall have first been made to the Administrative Law Judge (or, if
applicable, the Administrative Judge) and denied.
(e) Interlocutory review by the Commission on its own motion.
Nothing in this section should be construed as restricting the
Commission from acting on its own motion to review on an interlocutory
basis any ruling of an Administrative Law Judge, Proceedings Officer or
an Administrative Judge in any proceeding commenced pursuant to Sec.
12.26.
0
46. In Sec. 12.310, revise paragraphs (a), (b), and (d) to read as
follows:
Sec. 12.310 Summary disposition.
(a) Filing of motions, answers. Any parties who believe that there
is no genuine issue of material fact to be determined and that they are
entitled to a decision as a matter of law concerning all issues of
liability in the proceeding may file a motion for summary disposition
at any time before a determination is made by the Administrative Law
Judge to order an oral hearing in the proceeding. Any adverse party,
within ten (10) days after service of the motion, may file and serve
opposing papers or may countermove for summary disposition.
(b) Supporting papers. A motion for summary disposition shall
include a statement of all material facts as to which the moving party
contends that there is no genuine issue, supported by the pleadings,
and by affidavits, other verified statements, admissions, stipulations,
and interrogatories. The motion may also be supported by briefs
containing points and authorities in support of the contention of the
party making the motion. When a motion is made and supported as
provided in this section, unless otherwise ordered by the
Administrative Law Judge, an adverse party may not rest upon the mere
allegations, but shall serve and file in response a statement setting
forth those material facts as to which the adverse party contends a
genuine issue exists, supported by affidavits and other verified
material. The adverse party may also submit a brief of points and
authorities.
* * * * *
(d) Summary disposition upon motion of the Administrative Law
Judge. If the Administrative Law Judge believes that there may be no
genuine issue of material fact to be determined and that one of the
parties may be entitled to a decision as a matter of law, the
Administrative Law Judge may direct the parties to submit papers in
support of and in opposition to summary disposition, and may hear oral
argument, substantially as provided in paragraphs (a), (b), and (c) of
this section.
* * * * *
0
47. Revise Sec. 12.311 to read as follows:
Sec. 12.311 Disposing of proceeding or issues without oral hearing.
If the Administrative Law Judge determines that the documentary
proof and other tangible forms of proof submitted by the parties are
sufficient to permit resolution of some or all of the factual issues in
the proceeding without the need for oral testimony, the Administrative
Law Judge may order that all proof relating to such issues be submitted
in documentary and tangible form, and dispose of such issues without an
oral hearing. In such an
[[Page 64360]]
event, proof in support of the complaint, answer, and reply, may be
found in those verified documents, in depositions on written
interrogatories, in admissible documents obtained through discovery, in
other verified statements of fact, documents, and tangible evidence.
0
48. In Sec. 12.312, revise paragraphs (b) introductory text, (b)(2),
(d)(1), (2), and (4), and (g) to read as follows:
Sec. 12.312 Oral hearing.
* * * * *
(b) Location of hearing. Unless the Director of the Office of
Proceedings for reasons of administrative economy or practical
necessity determines otherwise, and except as provided in this
paragraph (b), the location of an oral hearing shall be in one of the
following cities: Albuquerque, N.M.; Atlanta, Ga.; Boston, Mass.;
Chicago, Ill.; Cincinnati, Ohio; Columbia, S.C.; Denver, Colo.;
Houston, Tex.; Kansas City, Mo.; Los Angeles, Cal.; Minneapolis, Minn.;
New Orleans, La.; New York, N.Y.; Oklahoma City, Okla.; Phoenix, Ariz.;
San Diego, Cal.; San Francisco, Cal.; Seattle, Wash.; St. Petersburg,
Fla.; and Washington, DC. The Administrative Law Judge may, in any case
where a party avers, in an affidavit, that none of the foregoing cities
is located within 300 miles of the party's principal residence, waive
this paragraph (b) and, upon giving due regard for the convenience of
all of the parties, order that the hearing be held in a more convenient
locale.
* * * * *
(2) Effect of failure to appear. If any party to the proceeding
fails to appear at the hearing, or at any part thereof, the non-
appearing party shall to that extent be deemed to have waived the
opportunity for an oral hearing in the proceeding. The Administrative
Law Judge, for just cause, may take such action as is appropriate
pursuant to Sec. 12.35 against a party who fails to appear at the
hearing. In the event that a party appears at the hearing and no party
appears for the opposing side, the party who is present may present
evidence, in whole or in part, in the form of affidavits or by oral
testimony, before the Administrative Law Judge.
* * * * *
(d) * * *
(1) Conduct direct and cross-examination of parties and witnesses.
All witnesses at a hearing for the purpose of taking evidence shall
testify under oath or affirmation, which shall be administered by the
Administrative Law Judge. Unless otherwise ordered by the
Administrative Law Judge, parties shall be entitled to present oral
direct testimony and other documentary proof, and to conduct direct
examination and cross examine adverse parties and witnesses. To
expedite the hearing, the Administrative Law Judge may, in their
discretion, order that the direct testimony of the parties and their
witnesses be presented in documentary form, by affidavit,
interrogatory, and other documents. In any event, the Administrative
Law Judge, in their discretion, may permit cross examination, without
regard to the scope of direct testimony, as to any matter which is
relevant to the issues in the proceeding;
(2) Introduce exhibits. The original of each exhibit introduced in
evidence or marked for identification shall be filed unless the
Administrative Law Judge permits the substitution of copies for the
original documents. A copy of each exhibit introduced by a party or
marked for identification shall be supplied by the introducing party to
the Administrative Law Judge and to each other party to the proceeding.
Exhibits shall be maintained by the reporter who shall serve as
custodian of the exhibits until they are transmitted to the Proceedings
Clerk pursuant to paragraph (f) of this section;
* * * * *
(4) Make offers of proof. When an objection to a question
propounded to a witness is sustained, examiners may make a specific
offer of what they expect to prove by the answer of the witness.
Rejected exhibits, adequately marked for identification, shall be
retained in the record so as to be available for consideration by any
reviewing authority.
* * * * *
(g) Proposed findings of fact and conclusions of law; briefs. An
Administrative Law Judge, upon their own motion or upon motion of a
party, may permit the filing of post-hearing proposed findings of fact
and conclusions of law. Absent an order permitting such findings and
conclusions, none shall be allowed. Unless otherwise ordered by the
Administrative Law Judge and for good cause shown, the proposed
findings and conclusions (including briefs in support thereof), shall
not exceed twenty-five (25) pages and shall be filed not later than
forty-five (45) days after the close of the oral hearing.
0
49. In Sec. 12.313, revise paragraphs (a)(2) and (b)(3), republish
paragraph (c) heading, and revise paragraphs (c)(1) and (2) and
(c)(3)(ii) to read as follows:
Sec. 12.313 Subpoenas for attendance at an oral hearing.
(a) * * *
(2) Standards for issuance or denial of subpoenas. The
Administrative Law Judge considering any application for a subpoena
shall issue the subpoena if they are satisfied the application complies
with this section and the request is not unreasonable, oppressive,
excessive in scope or unduly burdensome. In the event they determine
that a requested subpoena or any of its terms is unreasonable,
oppressive, excessive in scope, or unduly burdensome, the
Administrative Law Judge may refuse to issue the subpoena, or may issue
it only upon such conditions as they determine fairness requires.
(b) * * *
(3) Rulings. The motion shall be decided by the Administrative Law
Judge and the order shall provide such terms and conditions for the
production of the material, the disclosure of the information, or the
appearance of the witnesses as may appear necessary and appropriate for
the protection of the public interest.
(c) Service of subpoenas--(1) How effected. Service of a subpoena
upon a party shall be made in accordance with Sec. 12.10. Service of a
subpoena upon any other person shall be made by delivering a copy of
the subpoena to them as provided in paragraph (c)(2) or (3) of this
section, and by tendering to them the fees for one day's attendance and
the mileage as specified in paragraph (e) of this section. When the
subpoena is issued at the instance of any officer or agency of the
United States, fees and mileage need not be tendered at the time of
service.
(2) Service upon a natural person. Delivery of a copy of a subpoena
and tender of fees and mileage to a natural person may be effected by:
(i) Handing them to the person;
(ii) Leaving them at the person's office with the person in charge
thereof or, if there is no one in charge, by leaving the subpoena in a
conspicuous place therein;
(iii) Leaving them at the person's dwelling place or usual place of
abode with some person of suitable age and discretion then residing
therein;
(iv) Mailing them by registered or certified mail to them at their
last known address; or
(v) Any other method whereby actual notice is given to the person
and the fees and mileage are timely made available.
(3) * * *
[[Page 64361]]
(ii) Mailing them by registered or certified mail to any such
representative at the person's last known address; or
* * * * *
0
50. In Sec. 12.314, revise paragraphs (a) and (b)(1) to read as
follows:
Sec. 12.314 Initial decision.
(a) In general. The Administrative Law Judge as soon as practicable
after the parties have completed their submissions of proof, or after
the conclusion of an oral hearing if one is held, shall render the
initial decision, which shall forthwith be filed with the Proceedings
Clerk, and a copy of which shall be served immediately by the
Proceedings Clerk upon each of the parties. The Proceedings Clerk shall
also serve a notice, to accompany the initial decision, of the effect
of a party's failure timely to appeal to the Commission the initial
decision, as provided in paragraphs (d) and (e) of this section, and
the effect of a failure of a party who has been ordered to pay a
reparation award timely to file the documents required by Sec.
12.407(c).
(b) * * *
(1) Include a brief statement of findings as to the facts, with
references to those portions of the record which support those
findings;
* * * * *
0
51. Revise Sec. 12.402 to read as follows:
Sec. 12.402 Appeal of disposition of less than all claims or parties
in a proceeding.
(a) In general. Where two or more different claims for relief are
presented, or where multiple parties are involved, in a proceeding
forwarded pursuant to Sec. 12.26(b) or (c), the Administrative Judge
or Administrative Law Judge, may upon the Judge's own motion or by
motion of a party, direct that an initial decision or other order
disposing of one or more, but fewer than all of the claims or parties,
shall be final and immediately appealable to the Commission. Such a
direction may be made only upon an express determination that there is
no just reason for delay. When such a direction is made, a party may
appeal the initial decision or order in accordance with the procedure
prescribed by Sec. 12.401.
(b) When decision is not appealable. In the absence of such a
direction by the Administrative Judge or an Administrative Law Judge,
an initial decision or order disposing of fewer than all of the claims
or all of the parties shall be subject to revision by the decisionmaker
at any time before a disposition is made of all remaining claims or
parties, and no appeal may be taken to the Commission pursuant to this
section.
0
52. Revise Sec. 12.405 to read as follows:
Sec. 12.405 Leave to adduce additional evidence.
Any time prior to issuance of its final decision pursuant to Sec.
12.406, the Commission may, after notice to the parties and an
opportunity for them to present their views, reopen the hearing to
receive further evidence. The application shall show to the
satisfaction of the Commission that the additional evidence is
material, and that there were reasonable grounds for failure to adduce
such evidence at the hearing. The Commission may receive the additional
evidence or may remand the proceeding to the Administrative Judge or
Administrative Law Judge to receive the additional evidence.
0
53. In Sec. 12.407, revise paragraphs (c) introductory text and (d) to
read as follows:
Sec. 12.407 Satisfaction of reparation award; enforcement;
sanctions.
* * * * *
(c) Automatic suspension. A person required to pay a reparation
award shall be prohibited from trading on all contract markets and if
such person is registered, the registration shall be suspended
automatically, without further notice, unless such person shall, within
fifteen (15) days after the time limit for satisfaction of an award (as
prescribed in paragraph (a) or (b) of this section) expires, file with
the Proceedings Clerk and serve on the other parties:
* * * * *
(d) Reinstatement. The sanctions imposed in accordance with
paragraph (c) of this section shall remain in effect until the person
required to pay the reparation award demonstrates to the satisfaction
of the Commission that the amount required has been paid in full
including prejudgment interest if awarded and post-judgment interest at
the prevailing rate computed in accordance with 28 U.S.C. 1961 from the
date directed in the final order to the date of payment, compounded
annually. In the event an award of post-judgment interest is
inadvertently omitted, such interest nevertheless shall run as
calculated in accordance with 28 U.S.C. 1961 and the rules in this
part.
* * * * *
0
54. In Sec. 12.408, revise the introductory text and paragraphs (a)(2)
introductory text, (a)(2)(ii) and (iii), (a)(3), (4), and (6), and (b)
to read as follows:
Sec. 12.408 Delegation of authority to the General Counsel.
Pursuant to the authority granted under section 2(a)(4) and
2(a)(11) of the Commodity Exchange Act, as amended, 7 U.S.C. 4a(c) and
4a(j), the Commission hereby delegates, until such time as it orders
otherwise, the following functions to the General Counsel, to be
performed by them, or such person or persons under their direction as
they may designate from time to time:
(a) * * *
(2) Remand, with or without specific instructions, initial
decisions or other orders disposing of the entire proceeding to the
appropriate officer (Director of the Office of Proceedings,
Administrative Judge, or Administrative Law Judge) in the following
situations--
* * * * *
(ii) Where, in their judgment, clarification or supplementation of
an initial decision or other order disposing of the entire proceeding
prior to Commission review is appropriate; and
(iii) Where, in their judgment, a ministerial act necessary to the
proper conduct of the proceeding has not been performed;
(3) Deny applications for interlocutory review by the Commission of
a ruling of an Administrative Judge or Administrative Law Judge in
cases in which the Administrative Judge or Administrative Law Judge has
not certified the ruling to the Commission in the manner prescribed by
Sec. 12.309, and the ruling does not concern the disqualification of,
or a motion to disqualify, an Administrative Judge or Administrative
Law Judge, or the suspension of, or failure to suspend, an attorney
from participating in reparation proceedings;
(4) Dismiss any appeal from an initial decision or other
disposition of the entire proceeding by an Administrative Law Judge (or
Administrative Judge), in a proceeding where such appeal is not filed
or perfected in accordance with Sec. 12.401, and deny any application
for interlocutory review if it is not filed in accordance with Sec.
12.309;
* * * * *
(6) Enter any order that, in their judgment, will facilitate or
expedite Commission review of an initial decision or other order
disposing of the entire proceeding.
(b) Notwithstanding the provisions of paragraph (a) of this
section, in any case in which the General Counsel believes it
appropriate, the General Counsel or their designee may submit the
matter to the Commission for its consideration.
* * * * *
[[Page 64362]]
Issued in Washington, DC, on November 3, 2021, by the
Commission.
Christopher Kirkpatrick,
Secretary of the Commission.
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix to Changing Position Title of Judgment Officer to
Administrative Judge--Commission Voting Summary
On this matter, Acting Chairman Behnam and Commissioners Stump
and Berkovitz voted in the affirmative.* No Commissioner voted in
the negative.
---------------------------------------------------------------------------
* Commissioner Berkovitz submitted his written vote on this
matter prior to departing the Commission on October 15, 2021.
[FR Doc. 2021-24449 Filed 11-17-21; 8:45 am]
BILLING CODE 6351-01-P