FR Doc E8-25354[Federal Register: October 24, 2008 (Volume 73, Number 207)]
[Rules and Regulations]
[Page 63359-63361]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24oc08-8]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Parts 10 and 12
RIN 3038-AC50
Proceedings Before the Commodity Futures Trading Commission
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule.
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SUMMARY: The Commodity Futures Trading Commission (``Commission'') is
amending its Rules of Practice and Rules Relating to Reparation
Proceedings, respectively, to standardize service and filing by
electronic means. The amendments also revise rules regarding formatting
requirements of reparations documents filed with the Proceedings Clerk.
DATES: Effective October 24, 2008.
FOR FURTHER INFORMATION CONTACT: Thuy Dinh, Office of General Counsel,
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st
Street, NW., Washington, DC 20581. Telephone: (202) 418-5128.
SUPPLEMENTARY INFORMATION: Personal delivery and delivery by U.S. mail
are the manners of filing and service authorized in proceedings under
17 CFR Part 12. Since 1998, Part 10 of the Commission Rules has
provided an additional means--service by fax. Up to now, neither Parts
10 nor 12 have provided for service by e-mail. In keeping with the
demands of today's world, and especially in light of cautionary
measures used in the post-September 11 climate that have slowed
incoming mail to the agency, the Commission proposes to authorize fax
and e-mail as additional manners of filing and service, to: (1) Avoid
undue delay; (2) take advantage of technological developments, which
will be faster and less costly than the mails; and (3) streamline
procedures.
The Commission and the federal government overall are engaged in
ongoing efforts to use technology to increase efficiency. Since March
2000, the Commission has allowed customers, clients of Commission
registrants and commodity pool participants to sign electronically
certain documents required under the Commodity Exchange Act (``CEA''),
7 U.S.C. 1 et seq. and Commission Rules. See, e.g., 17 CFR 1.3(tt) and
1.4 (rules dealing with electronic signatures). In May 2000, the Office
of Management and Budget issued a Guide on Implementation of the
Government Paperwork Elimination Act (``GPEA'') at 65 FR 255508, 2000
WL 517619. More recently, on July 25, 2007, the Commission, acting on a
request made by the National Futures Association (``NFA''), amended 17
CFR 171.9(b) to allow for service by fax and e-mail in appeals from NFA
actions. Thus, the amendments complement existing Commission Rules and
government policy dealing with electronic submissions.
All of the amendments under Parts 10 and 12 make filing and service
by fax and e-mail effective upon transmission. While authorizing these
electronic means of filing and service, the Commission wishes to make
clear that these options may be used on a case-by-case basis at the
discretion of the Presiding Officer, with the parties' consent. Signed
documents filed or served by electronic means must be in PDF or other
non-alterable form. With respect to Part 12, when a document to be
filed requires the concurrent submission of a filing fee, filing is not
complete until the fee has been paid. See Commission Rule 12.25.
The Part 12 amended rules also allow filing and service by
commercial package delivery service, which is already allowed under the
Part 10 rules. To harmonize Parts 10 and 12, when documents are served
by mail, the length of time within which a party being served in a Part
10 proceeding may respond is extended from three (3) extra days as Part
10 currently provides, to five (5) extra days, as provided in Part 12.
The amendments affect the Rules' provisions respecting service upon
parties by the Proceedings Clerk on behalf of the Commission, i.e.,
Commission Rules 10.12(b) and 12.10(a)(3), providing that the
Commission, in its discretion and with
[[Page 63360]]
due consideration for the convenience of the parties, may serve
documents (i.e., rulings, opinions and orders) to the parties by
electronic means.
The amendments also update Commission Rules 12.11(a) and (c) for
filing hard copy pleadings. For example, outdated requirements such as
references to mimeographed filings are hereby removed from the rule.
Related Matters
A. No Notice Is Required Under 5 U.S.C. 553
The Commission has determined that these amendments are exempt from
the provisions of the Administrative Procedure Act, 5 U.S.C. 553, which
generally require notice of proposed rulemaking and provide other
opportunities for public participation. According to the exemptive
language of 5 U.S.C. 553, these amendments pertain to ``rules of agency
organization, procedure, or practice,'' as to which there exists agency
discretion not to provide notice. In addition, notice and public
procedure are unnecessary in this case because the proposed amendments
are self-explanatory. If made effective immediately, they will promote
efficiency and facilitate the Commission's core mission without
imposing a new burden. For the above reasons, the notice requirements
under 5 U.S.C. 553 are inapplicable.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601 et seq.,
requires agencies with rulemaking authority to consider the impact
those rules will have on small businesses. With respect to persons
seeking Commission review of final exchange and NFA decisions, and
initial decisions in reparation and administrative enforcement matters,
the amendments impose no additional burden and in fact ease existing
burdens by providing more options, greater certainty and increased
predictability concerning filing and service. Accordingly, the Acting
Chairman, on behalf of the Commission, hereby certifies, pursuant to 5
U.S.C. 605(b), that the amendments will not have a significant economic
impact on a substantial number of small businesses.
C. Paperwork Reduction Act
The amendments to Parts 10 and 12 do not impose a burden within the
meaning and intent of the Paperwork Reduction Act of 1980, 44 U.S.C.
3501, et seq.
D. Cost-Benefit Analysis
Section 15(a) of the Act, 7 U.S.C. 19(a), requires the Commission
to consider the costs and benefits of its action before issuing a new
regulation. The Commission understands that, by its terms, Section
15(a) does not require the Commission to quantify the costs and
benefits of a new regulation or to determine whether the benefits of
the proposed regulation outweigh its costs. Nor does it require that
each proposed rule be analyzed in isolation when that rule is a
component of a larger package of rules or rule revisions. Rather,
Section 15(a) simply requires the Commission to ``consider the costs
and benefits'' of its action.
Section 15(a) further specifies that costs and benefits shall be
evaluated in light of five broad areas of market and public concern:
(1) Protection of market participants and the public; (2) efficiency,
competitiveness, and financial integrity of futures markets; (3) price
discovery; (4) sound risk management practices; and (5) other public
interest considerations. Accordingly, the Commission can, in its
discretion, give greater weight to any one of the five enumerated areas
of concern and can, in its discretion, determine that notwithstanding
its costs, a particular rule is necessary or appropriate to protect the
public interest or to effectuate any of the provisions, or accomplish
any of the purposes, of the Commodity Exchange Act.
The amendments to Parts 10 and 12 will not create any significant
change in the Commission's adjudicatory process. In fact, the
amendments will enhance the protection of market participants and the
public by making filing and service more certain, faster and cheaper.
The amendments do not bear directly upon the risk-benefit factors but
simply increase the efficiency of litigation that arises pursuant to
the operation of futures markets.
List of Subjects in 17 CFR Parts 10 and 12
Administrative practice and procedure, Commodity futures.
0
In consideration of the foregoing, the Commission amends Chapter I of
Title 17 of the Code of Federal Regulations as follows:
PART 10--RULES OF PRACTICE
0
1. The authority citation for Part 10 is revised read as follows:
Authority: Pub. L. 93-463, sec. 101(a)(11), 88 Stat. 1391; 7
U.S.C. 2(a)(12).
0
2. Section 10.12 is amended by revising paragraphs (a)(2), (b) and
(d)(1) to read as follows:
Sec. 10.12 Service and filing of documents; form and execution
(a) * * *
(2) How service is made. Service shall be made by:
(i) Personal service;
(ii) First-class or a more expeditious form of United States mail
or a similar commercial package delivery service;
(iii) Transmitting the documents via facsimile machine (``fax'');
or
(iv) Via electronic mail (``e-mail'').
(v) Service shall be complete at the time of personal service; upon
deposit in the mail or with a similar commercial package delivery
service of a properly addressed document for which all postage or
delivery service fees have been paid; or upon transmission by fax or e-
mail. Where a party effects service by mail or similar package delivery
service (but not by fax or e-mail), the time within which the party
being served may respond shall be extended by five (5) days. Service by
fax or e-mail shall be permitted at the discretion of the Presiding
Officer, with the parties' consent. Signed documents that are served by
e-mail must be in PDF or other non-alterable form.
* * * * *
(b) Service of decisions and orders. A copy of all rulings,
opinions and orders of the Administrative Law Judge and 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.
* * * * *
(d) Filing of documents with the Proceedings Clerk. (1) All
documents which are required to be served upon a party shall be filed
concurrently with the Proceedings Clerk. A document shall be filed by
delivering it in person or by certified or registered mail with return
receipt requested to Proceedings Clerk, Office of Proceedings, Three
Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581; or
faxing the document to (202) 418-5532 or e-mailing it to (PROC_
[email protected]) in accordance with the conditions set forth in
paragraph (a)(2) of this section.
* * * * *
PART 12--RULES RELATING TO REPARATION PROCEEDINGS
0
1. The authority citation for Part 12 shall read as follows:
Authority: 7 U.S.C. 2(a)(12), 12a(5), and 18.
0
2. Section 12.10 is amended by revising paragraphs (a)(2), (a)(3) and
(b) to read as follows:
[[Page 63361]]
Sec. 12.10 Service.
(a) * * *
(2) Filing with the Proceedings Clerk; proof of service. All
documents which are required to be served upon a party shall be filed
concurrently with the Proceedings Clerk, and shall meet the
requirements as to form prescribed by Sec. Sec. 12.11 and 12.12 of
this part. Unless otherwise provided in these rules, a document shall
be filed by:
(i) Delivering it in person;
(ii) Mailing it by first-class or a more expeditious form of United
States mail, or delivering it to a similar commercial package delivery
service;
(iii) Transmitting the documents via facsimile machine (``fax'');
or
(iv) Via electronic mail (``e-mail.'')
(v) Mailed documents must be addressed to: Proceedings Clerk,
Office of Proceedings, Commodity Futures Trading Commission, Three
Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Faxed
documents should be sent to (202) 418-5532 and e-mailed documents to
([email protected]), directed to the Proceedings Clerk. Electronic
filing and service in a given case shall be at the discretion of the
Presiding Officer, with the parties' consent. Signed documents that are
served by e-mail attachment must be in PDF or other non-alterable form.
To be timely filed under this part, a document must be delivered;
mailed by first-class or a more expeditious form of United States mail
or a similar commercial package delivery service; or faxed or e-mailed
to the Proceedings Clerk within the time prescribed for filing. Proof
of filing shall be made by attaching to the document to be filed an
affidavit certifying that the attached document was either deposited in
the mail or with the commercial package delivery service, with postage
or delivery service fees prepaid, addressed to the Proceedings Clerk,
Office of Proceedings, Three Lafayette Centre, 1155 21st Street, NW.,
Washington, DC 20581; or faxed or e-mailed to the Proceeding Clerk on
the date specified in the affidavit. Proof of service of a document
shall be made by filing with the Proceedings Clerk, simultaneously with
the filing of the required document, an affidavit of service executed
by any person 18 years of age or older or a certificate of service
executed by an attorney-at-law qualified to practice before the
Commission. The proof of service shall identify the persons served,
state that service has been made, set forth the date of service, and
recite the manner of service.
(3) 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, a Judgment Officer, Administrative Law
Judge, the Deputy General Counsel for Opinions and Review 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.
(b) How service is made. (1) Service shall be made by:
(i) Personal service;
(ii) First-class or a more expeditious form of United States mail
or a similar commercial package delivery service;
(iii) Fax; or
(iv) E-mail in accordance with the conditions set forth in
paragraph (a)(2) of this section.
(v) Service shall be complete at the time of personal service upon
deposit in the mail or with a commercial package delivery service of a
properly addressed document for which postage or delivery service fees
have been prepaid; or upon transmission by fax or e-mail. Where service
is effected by mail or a commercial package delivery service (but not
by fax or e-mail), the time within which the person served may respond
thereto shall be increased by five (5) days. Signed documents that are
served by e-mail attachment must be in PDF or other non-alterable form.
For the purposes of this Rule, service of any document by the
Proceedings Clerk upon the Commission shall be regarded as service by
mail.
* * * * *
0
3. Section 12.11 is amended by revising paragraphs (a) and (c) to read
as follows:
Sec. 12.11 Formalities of filing of documents with the Proceedings
Clerk.
(a) Number of copies. Unless otherwise specifically provided, or
unless filed by fax or e-mail in accordance with the requirements of
Sec. 12.10(a)(2), an original and one conformed copy of all documents
shall be filed with the Proceedings Clerk.
* * * * *
(c) Format. All documents filed under the Reparation Rules shall be
typewritten, printed, or, if a party is not represented by counsel, in
plainly legible handwriting. Documents sent in hardcopy must be on good
quality white paper, 8\1/2\ by 11\1/2\ inches and bound at the top
only. Documents e-mailed in accordance with the requirements of Sec.
12.10(a)(2) must be in PDF or other non-alterable form. All documents
must be double-spaced, except for quotations more than 3 lines and
footnotes, both of which should be single-spaced.
* * * * *
Issued in Washington, DC, on the 8th of October 2008, by the
Commission.
David A. Stawick,
Secretary of the Commission.
[FR Doc. E8-25354 Filed 10-23-08; 8:45 am]
BILLING CODE 6351-01-P
Last Updated: April 16, 2009