Proceedings Before the Commodity Futures Trading Commission, 12933-12937 [2013-04252]
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12933
Rules and Regulations
Federal Register
Vol. 78, No. 38
Tuesday, February 26, 2013
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
COMMODITY FUTURES TRADING
COMMISSION
17 CFR Parts 10, 12 and 171
Proceedings Before the Commodity
Futures Trading Commission
Confirmation of Service
Commodity Futures Trading
Commission.
ACTION: Final rule.
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AGENCY:
SUMMARY: The Commodity Futures
Trading Commission (‘‘Commission’’) is
amending its Rules of Practice, Rules
Relating to Reparation Proceedings, and
its Rules Relating to Review of National
Futures Association (‘‘NFA’’) Decisions
in Disciplinary, Membership Denial,
Registration and Membership
Responsibility Actions, to simplify and
clarify service, filing and formatting
requirements, particularly those
requirements applicable to electronic
service and filing. The Commission is
also amending its Rules Relating to
Reparations Proceedings to clarify the
authority of its Judgment Officers.
DATES: Effective February 26, 2013.
FOR FURTHER INFORMATION CONTACT:
Jason Gizzarelli, Director, Office of
Proceedings, Commodity Futures
Trading Commission, Three Lafayette
Centre, 1155 21st Street NW.,
Washington, DC 20581. Telephone:
(202) 418–5395.
SUPPLEMENTARY INFORMATION: In 2008,
the Commission amended its rules to
allow for service via electronic mail
(‘‘email’’) for 17 CFR parts 10 and 12,
and via facsimile (‘‘fax’’) for Part 12
(service by fax under Part 10 had been
permitted by the Commission since
1998.) At that time, the Commission
approved these additional means of
service to take advantage of
technological developments that would
be faster and less costly than regular
mail. Today, the Commission has
amended 17 CFR Parts 10, 12 and 171
to simplify and refine the rules for
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service, filing and formatting.
Additionally, the Commission has
amended 17 CFR Parts 10 and 12 to
clarify the role and authority of its
Judgment Officers. The Commission
believes these rule amendments will
increase efficiencies and lower costs for
parties and for the Commission in
administrative enforcement
proceedings, in reparations proceedings,
and in the appellate review of NFA
decisions. Also, the Commission has
designed the amendments to the
reparations rules to make the
reparations forum less legalistic and
more user-friendly for pro se parties.
To ease the burden on parties in
reparations cases, many of whom appear
pro se, the amended rules drop the
requirement of a formal affidavit of
service and now require parties to
submit a signed ‘‘statement of service’’
that: (1) Confirms that service has been
made; (2) identifies each person served;
(3) sets forth the date of service; and (4)
recites the manner of service. The less
formal and less burdensome statement
of service effectively serves the same
purpose as an affidavit of service:
promoting and assuring the full
exchange of information among the
parties by requiring service of
submissions on all of the parties in the
proceeding. A corresponding change has
been made to the 17 CFR Part 10 rules
regarding confirmation of service.
Electronic Service
The amendments to the service rules
in 17 CFR parts 10 and 12 reflect the
Commission’s experience with
electronic filing since 2008, which
generally has been positive. First, the
amendments specifically provide that a
party who consents to service by email
must specify the email address to be
used. Consent is required because it is
not yet possible to assume universal
access to electronic communication.
Second, under these amendments,
actual notice that an email or fax
transmission was not received will
defeat the presumption of receipt that
service is complete on transmission and
will compel the sender to take
additional steps to affect service.
Finally, consistent with 17 CFR 12.1(a),
which provides that the reparations
rules ‘‘shall be construed liberally so as
to secure the just, speedy and
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inexpensive determination of the
issues,’’ the Commission expects that as
electronic technology continues to
advance, its Proceedings Clerk and its
presiding officials will provide guidance
to parties on standards governing such
technical specifications as data
formatting, speed of transmission,
means to transmit attachments, and
security of communication.
Filing and Formatting
The amended rules simplify and
harmonize the filing and formatting
requirements contained in 17 CFR parts
10 and 12. First, the amended rules
provide that parties filing by personal
delivery, mail or commercial delivery
service are no longer required to file any
copies of an original. Second, the
amended rules explicitly provide that
parties filing electronically should not
also send paper copies of the same
documents to the Proceedings Clerk.
Third, the amended rules reduce the
maximum length of briefs in
administrative proceedings from 60 to
50 pages and in reparations proceedings
from 35 to 25 pages. Fourth, the
amended rules simplify the formatting
of filed documents, such as font size,
spacing and related issues. Fifth, the
amendments clarify that documents that
are delivered in person, or delivered by
first-class mail, by a more expeditious
form of United States mail, or by
overnight or similar commercial
delivery service will be considered
timely filed if they are delivered in
person or mailed to the Proceedings
Clerk within the time prescribed for
filing. Finally, the Commission is also
amending 17 CFR 171.8 to allow filing
and service by fax and email.
Judgment Officer
On October 12, 2011, to promote the
efficient use of the Commission’s budget
and personnel resources, the
Commission amended 17 CFR part 12 to
authorize its Judgment Officers to
conduct formal decisional proceedings.
The new 17 CFR part 12 amendments
issued today conform the definition of
‘‘Judgment Officer’’ to the authority of
Judgment Officers to conduct formal
decisional proceedings. These new
amendments also provide that Judgment
Officers may conduct sua sponte
discovery in voluntary decisional
proceedings, as they can in summary
and formal decisional proceedings. This
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amendment will help ensure that the
evidentiary record is adequately
developed in voluntary decisional
proceedings.
The amendment to 17 CFR 10.8,
which authorizes the Commission to
appoint a Presiding Officer other than
an administrative law judge (‘‘ALJ’’) to
conduct proceedings within the scope of
17 CFR part 10, unless some other
provision of law requires the use of an
ALJ in a particular category of
proceeding,1 clarifies that Presiding
Officers who are not ALJs can carry out
the same functions as ALJs in certain
proceedings to deny, condition,
suspend, revoke or place restrictions on
registration. Registration-related
proceedings are subject to procedural
rules set forth in the Commission’s rules
at 17 CFR part 3, as well as the 17 CFR
part 10 Rules of Practice.2 This
amendment will make clear the
Commission’s intent that references to
ALJs in both 17 CFR part 10 and part 3
shall apply to non-ALJ Presiding
Officers when the Commission appoints
such Presiding Officers in registrationrelated proceedings.
Prior to this amendment, the second
sentence of 17 CFR 10.8 stated:
If the Commission determines that a
proceeding within the scope of this subpart
shall be conducted before a Presiding Officer
who is not an Administrative Law 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 designated
Presiding Officer.
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This amendment adds the phrase ‘‘or
of Part 3 of this title’’ following the
words ‘‘this part’’ in this sentence.
1 17 CFR 10.2(n) defines a ‘‘Presiding Officer’’ as
‘‘a member of the Commission, an Administrative
Law Judge, or a hearing officer designated by the
Commission to conduct a hearing on a specific
matter, or the Commission itself * * *.’’ In some
types of proceedings, statutory provisions constrain
the choice of Presiding Officer. For example,
section 6(c)(4)(C)(iii) of the Commodity Exchange
Act (‘‘CEA’’), 7 U.S.C. 9(4)(C)(iii), requires that
proceedings pursuant to section 6(c)(4), 7 U.S.C.
9(4), must be heard by either the Commission or an
ALJ. By contrast, other provisions of the CEA leave
the choice of Presiding Officer to the discretion of
the Commission. For example, CEA section 8a(2),
7 U.S.C. 12a(2), which applies in certain
circumstances where a court or administrative
agency has previously made a determination
regarding a registrant’s conduct, authorizes the
Commission to revoke registration ‘‘with such a
hearing as may be appropriate’’ and does not
specify what type of official must preside.
2 See generally 17 CFR 3.55 through 3.64 and 17
CFR 10.1(a).
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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 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 17 CFR parts 10,
12 and 171 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 CEA, 7 U.S.C.
19(a), requires the Commission to
consider the costs and benefits of its
action before issuing a new regulation.
CEA 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
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management practices; and (5) other
public interest considerations.
The amendments to 17 CFR parts 10,
12 and 171 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 reduce costs
and increase the efficiency of litigation
that arises pursuant to the operation of
futures markets.
List of Subjects
17 CFR Part 10
Administrative practice and
procedure, Authority delegations
(Government agencies), Commodity
futures.
17 CFR Part 12
Administrative practice and
procedure, Commodity futures,
Consumer protection.
17 CFR Part 171
Administrative practice and
procedure, Commodity futures.
For the reasons discussed in the
preamble, the Commodity Futures
Trading Commission amends 17 CFR
parts 10, 12 and 171 as follows:
PART 10—RULES OF PRACTICE
1. The authority citation for part 10
continues to read as follows:
■
Authority: Pub. L. 93–463, sec. 101(a)(11),
88 Stat. 1391; 7 U.S.C. 2(a)(12).
Section 10.102 also issued under 7 U.S.C.
4a, 12a; 5 U.S.C. 10.
■
2. Revise § 10.4 to read as follows:
§ 10.4
Business address; hours.
The Office of Proceedings is located at
Three Lafayette Centre, 1155 21st Street
NW., Washington, DC 20581. Faxes
must be sent to (202) 418–5532, and
emails must be sent to
PROC_filings@cftc.gov. The office is
open from 8:15 a.m. to 4:45 p.m.,
Eastern Time, Monday through Friday,
except on federal holidays.
■ 3. Amend § 10.8 by revising the
introductory text to read as follows:
§ 10.8
Presiding officers.
Unless otherwise determined by the
Commission, all proceedings within the
scope of this Part shall be assigned to an
Administrative Law Judge for hearing. If
the Commission determines that a
proceeding within the scope of this Part
shall be conducted before a Presiding
Officer who is not an Administrative
Law Judge, all provisions of this part or
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of part 3 of this chapter 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 designated Presiding Officer.
*
*
*
*
*
■ 4. Amend § 10.12 by:
■ a. Revising paragraphs (a)(1), (a)(2)(ii)
through (iv), and (a)(3);
■ b. Adding paragraphs (a)(4) through
(6);
■ c. Revising paragraphs (b) through (f);
and
■ d. Removing paragraph (g).
The revisions and additions read as
follows:
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§ 10.12 Service and filing of documents;
form and execution.
(a) Service by a party or other
participant in a proceeding. (1) When
one party serves another with
documents under these rules, a copy
must be served on all other parties as
well as filed with the Proceedings Clerk.
Similarly, when a person files a
document with the Office of
Proceedings, the person must serve a
copy of the document on all other
parties.
(2) * * *
(ii) First-class or a more expeditious
form of United States mail or an
overnight or similar commercial
delivery service;
(iii) Facsimile (‘‘fax’’); or
(iv) Electronic mail (‘‘email’’).
(3) Service by email or fax shall be
permitted at the discretion of the
Presiding Officer, with the parties’
consent. The consent of a party must
specify the email address or fax number
to be used. Signed documents that are
served by email must be in PDF or other
non-alterable form.
(4) Service will be complete at the
time of personal service; upon deposit
in the mail or with an overnight or
similar commercial delivery service of a
properly addressed document for which
all postage or delivery service fees have
been paid; or upon transmission by fax
or email. Service by email or by fax will
not be effective if the party making
service learns that the attempted service
did not reach the person to be served.
(5) Where service is effected by mail
or a commercial delivery service (but
not by fax or email), the time within
which the person being served may
respond shall be extended by five (5)
days.
(6) Statement of service. A statement
of service shall be made by filing with
the Proceedings Clerk, simultaneously
with the filing of the document, a
statement signed by the party making
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service or by his attorney or
representative that:
(i) Confirms that service has been
made,
(ii) Identifies each person served,
(iii) Sets forth the date of service, and
(iv) Recites the manner of service.
(b) Service of decisions and orders. A
copy of all rulings, opinions and orders
shall be served by the Proceedings Clerk
on each of the parties.
(c) Designation of person to receive
service. The first page of the first
document filed in a proceeding by a
party or participant must include the
name and contact information of a
person authorized to receive service on
the party or participant’s behalf. Contact
information must include a post office
address and daytime telephone number,
and should also include the person’s fax
or email. Thereafter service of
documents shall be made upon the
person authorized unless service on the
party himself is ordered by the
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.
(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 first-class mail or a more
expeditious form of United States mail
or by overnight or similar commercial
delivery service 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
emailing it to PROC_Filings@cftc.gov in
accordance with the conditions set forth
in paragraph (a)(2) of this section.
(2) To be timely filed under this part,
a document must be delivered in
person; mailed by first-class or a more
expeditious form of United States mail
or by an overnight or similar
commercial delivery service; or faxed or
emailed to the Proceedings Clerk within
the time prescribed for filing.
(e) Formalities of filing. (1) An
original of all documents shall be filed
with the Proceedings Clerk. If a party
files a document with the Proceedings
Clerk by fax or email, they should not
also send paper copies.
(2) First page. The first page of all
documents filed with the Proceedings
Clerk must include the Commission’s
name, the docket number, the title of
proceeding, the subject of the document,
and the name of the person on whose
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12935
behalf the document is being filed. In
subsequent filings, the case title may be
abbreviated by listing the name of the
first respondent, followed by ‘‘et al.’’ In
the complaint, the title of the action
shall include the names of all the
respondents, but in documents
subsequently filed it is sufficient to state
the name of the first respondent named
in the complaint with an appropriate
indication of other parties.
(3) Format. Documents must be
legible and printed on normal white
paper of eight and one half by eleven
inches. The typeface, margins, and
spacing of all documents presented for
filing must meet the following
requirements: all text must be 12-point
type or larger, except for text in
footnotes which may be 10-point type;
all documents must have at least oneinch margins on all sides; all text must
be double-spaced, except for headings,
text in footnotes, or block quotations,
which may be single-spaced. Emailed
documents must be in PDF or other nonalterable form.
(4) Signatures. (i) The original of all
documents must be signed by the
person filing the same or by his duly
authorized agent or attorney.
(ii) Effect. The signature on any
document of any person acting either for
himself or as attorney or agent for
another constitutes certification by him
that:
(A) He has read the document and
knows the contents thereof;
(B) If executed in any representative
capacity, it was done with full power
and authority to do so;
(C) To the best of his knowledge,
information, and belief, every statement
contained in the document is true and
not misleading; and
(D) The document is not being
interposed for delay.
(5) Length and form of briefs. All
briefs of more than fifteen pages shall
include an index and a table of cases
and other authorities cited. No brief
shall exceed 50 pages in length without
prior permission of the Presiding Officer
or the Commission.
(f) Official docket. The Proceedings
Clerk will maintain the official docket
for each proceeding. The official docket
is available for public inspection in the
Commission’s Office of Proceedings.
■ 5. Amend § 10.102 by revising
paragraph (c) to read as follows:
§ 10.102
Review of initial decisions.
*
*
*
*
*
(c) Briefs. An original of all briefs
submitted under this section shall be
filed with the Proceedings Clerk.
*
*
*
*
*
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PART 12—RULES RELATING TO
REPARATIONS
6. The authority citation for Part 12
continues to read as follows:
■
Authority: 7 U.S.C. 2(a)(12), 12a(5), and 18.
7. Amend § 12.2 by revising the
definition of ‘‘Judgment Officer’’ to read
as follows:
■
§ 12.2
Definitions.
*
*
*
*
*
Judgment Officer means an employee
of the Commission who is authorized to
conduct all reparations proceedings. In
appropriate circumstances, the
functions of a Judgment Officer may be
performed by an Administrative Law
Judge;
*
*
*
*
*
■ 8. Revise § 12.3 to read as follows:
§ 12.3
Business address; hours.
The Office of Proceedings is located at
Three Lafayette Centre, 1155 21st Street
NW., Washington, DC 20581. Faxes
must be sent to (202) 418–5532, and
emails must be sent to
PROC_filings@cftc.gov. The office is
open from 8:15 a.m. to 4:45 p.m.,
Eastern Time, Monday through Friday
except on federal holidays.
■ 9. Revise § 12.10 to read as follows:
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§ 12.10
Service.
(a) General requirements. (1) When
service is required; number of copies.
When one party serves another with
documents under these rules, a copy
must be served on all other parties as
well as filed with the Proceedings Clerk.
Similarly, when a person files a
document with the Office of
Proceedings, the person must serve a
copy of the document on all other
parties. This rule does not apply to a
complaint filed pursuant to § 12.13 of
these rules, which shall only be filed
with the Commission.
(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 an
overnight or similar commercial
delivery service;
(iii) Facsimile (‘‘fax’’); or
(iv) Electronic mail (‘‘email’’).
(3) Service by fax or email shall be
permitted at the discretion of the
Presiding Officer, with the parties’
consent. The consent of a party must
specify the email address or fax number
to be used. Signed documents that are
served by email attachment must be in
PDF or other non-alterable form.
(4) Service will be complete at the
time of personal service; upon deposit
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in the mail or with an overnight or
similar commercial delivery service of a
properly addressed document for which
all postage or delivery service fees have
been paid; or upon transmission by fax
or email. Service by email or by fax will
not be effective if the party making
service learns that the attempted service
did not reach the person to be served.
(5) Where service is effected by mail
or commercial delivery service (but not
by fax or email), the time within which
the person served may respond thereto
shall be extended by five (5) days.
(6) Statement of Service. A statement
of service shall be made by filing with
the Proceedings Clerk, simultaneously
with the filing of the document, a
statement signed by the party making
service or by his attorney or
representative that:
(i) Confirms that service has been
made;
(ii) Identifies each person served;
(iii) Sets forth the date of service; and
(iv) Recites the manner of 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, a
Judgment Officer, 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
himself is ordered by a Judgment
Officer, 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.
■ 10. Revise § 12.11 to read as follows:
§ 12.11 Formalities of filing of documents
with the Proceedings Clerk.
(a) If a party files by personal delivery
or mail, an original of all documents
shall be filed with the Proceedings
Clerk. If a party files a document by fax
or email in accordance with
§ 12.10(a)(2), they should not also send
paper copies.
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(b) First page. The first page of all
documents filed with the Proceedings
Clerk must include the Commission’s
name, the docket number, the title of the
proceeding, the subject of the document
and the name of the person on whose
behalf the document is being filed. In
the complaint, the title of the
proceeding shall include the names of
all the complainants and respondents,
but in documents subsequently filed it
is sufficient to state the name of the first
complainant and first respondent
named in the complaint.
(c) Format. Documents must be
legible and printed on normal white
paper of eight and one half by eleven
inches. Documents emailed in
accordance with the requirements of
§ 12.10(a)(2) must be in PDF or other
non-alterable form. The typeface,
margins, and spacing of all typed
documents presented for filing should
meet the following requirements: all text
should be 12-point type or larger, except
for text in footnotes which may be 10point type; all documents should have
at least one-inch margins on all sides;
all text must be double-spaced, except
for headings, text in footnotes, or block
quotations, which may be single-spaced.
(d) Signature. (1) The original of all
papers must be signed by the person
filing the same or by his duly authorized
agent or attorney.
(2) Effect. The signature on any
document of any person acting either for
himself or as attorney or agent for
another constitutes certification by him
that:
(i) He has read the document and
knows the contents thereof;
(ii) If executed in any representative
capacity, it was done with full power
and authority to do so;
(iii) To the best of his knowledge,
information, and belief, every statement
contained in the document is true and
not misleading; and
(iv) The document has been filed in
good faith and has not been filed to
cause delay.
(e) Length and form of briefs. All
briefs filed containing more than 15
pages shall include an index and a table
of cases and other authorities cited. No
brief shall exceed 25 pages in length
without prior permission of the
Presiding Officer.
(f) 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 first-class
mail or a more expeditious form of
United States mail or by overnight or
similar commercial delivery service to
Proceedings Clerk, Office of
Proceedings, Three Lafayette Centre,
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Federal Register / Vol. 78, No. 38 / Tuesday, February 26, 2013 / Rules and Regulations
1155 21st Street NW., Washington, DC
20581; or faxing the document to (202)
418–5532; or emailing it to
PROC_Filings@cftc.gov in accordance
with the conditions set forth in
paragraph (a)(2) of this section.
(g) To be timely filed under this part,
a document must be delivered in
person; mailed by first-class or a more
expeditious form of United States mail
or by an overnight or similar
commercial delivery service; or faxed or
emailed to the Proceedings Clerk within
the time prescribed for filing.
■ 11. Amend § 12.34 by revising
paragraph (a) to read as follows:
similar commercial delivery service 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 emailing it to
PROC_Filings@cftc.gov. To be timely
filed under this part, a document must
be delivered or mailed to the
Proceedings Clerk within the time
prescribed for filing.
*
*
*
*
*
§ 12.34 Discovery by a decisionmaking
official.
[FR Doc. 2013–04252 Filed 2–25–13; 8:45 am]
BILLING CODE 6351–01–P
(a) Applicability. The provisions of
this rule shall apply to all decisional
proceedings commenced pursuant to
§ 12.26. For the purposes of this rule,
the term ‘‘decisionmaking official’’ shall
mean a Judgment Officer or
Administrative Law Judge assigned to
render a decision in the proceeding.
*
*
*
*
*
■ 12. Amend § 12.101 by revising
paragraphs (a) through (c) to read as
follows:
§ 12.101 Functions and responsibilities of
the Judgment Officer.
*
*
*
*
*
(a) To rule upon discovery-related
motions, and to take such action
pursuant to § 12.35 as is appropriate if
a party fails to comply with a discovery
order;
(b) To issue orders for the production
of documents and tangible things and
orders for written testimony, as
provided in § 12.34;
(c) To issue subpoenas pursuant to
§ 12.34 and § 12.36;
*
*
*
*
*
PART 171—RULES RELATING TO
REVIEW OF NATIONAL FUTURES
ASSOCIATION DECISIONS IN
DISCIPLINARY, MEMBERSHIP DENIAL,
REGISTRATION AND MEMBER
RESPONSIBILITY ACTIONS
13. The authority citation for Part 171
continues to read as follows:
■
Authority: 7 U.S.C. 4a, 12a, and 21, unless
otherwise noted.
14. Amend § 171.8 by revising
paragraph (a) to read as follows:
wreier-aviles on DSK5TPTVN1PROD with RULES
■
§ 171.8
Filing with the Proceedings Clerk.
(a) How to file. Any document that is
required by this part to be filed with the
Proceedings Clerk shall be filed by
delivering it in person or by first-class
mail or a more expeditious form of
United States mail, or by overnight or
VerDate Mar<15>2010
14:06 Feb 25, 2013
Jkt 229001
Issued in Washington, DC, on February 20,
2013, by the Commission.
Melissa D. Jurgens,
Secretary of the Commission.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 50 and 56
[Docket No. FDA–2000–N–0009] (formerly
2000N–0074)
RIN 0910–AG71
Additional Safeguards for Children in
Clinical Investigations of Food and
Drug Administration-Regulated
Products
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Final rule.
SUMMARY: The Food and Drug
Administration (FDA) is amending its
regulations to provide additional
safeguards for children enrolled in
clinical investigations of FDA-regulated
products. This rule finalizes the interim
rule published in 2001 to bring FDA
regulations into compliance with
provisions of the Children’s Health Act
of 2000 (the Children’s Health Act). The
Children’s Health Act requires that all
research involving children that is
conducted, supported, or regulated by
the Department of Health and Human
Services (HHS) be in compliance with
HHS regulations providing additional
protections for children involved as
subjects in research. FDA is taking this
action both to comply with the
congressional mandate and because of
increases in the enrollment of children
in clinical investigations as a result of
ongoing pediatric initiatives.
DATES: This rule is effective March 28,
2013.
FOR FURTHER INFORMATION CONTACT:
Robert M. Nelson, Office of Pediatric
Therapeutics, Food and Drug
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
12937
Administration, 10903 New Hampshire
Ave. Bldg. 32, rm. 5126, Silver Spring,
MD 20993–0002, 301–796–8659.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Highlights of the Final Rule
III. Comments and Agency Response
A. Definitions
B. IRB Membership and Continuing
Education
C. Risk Categories
D. Obtaining Assent From Children
E. Waiver of Permission
F. Wards
G. Biological Products
H. Economic Analysis
I. Requests for Additional Requirements
IV. Legal Authority
V. Environmental Impact
VI. Paperwork Reduction Act
VII. Analysis of Impacts
A. Introduction
B. Updated Analysis
VIII. Federalism
IX. References
I. Background
In the Federal Register of April 24,
2001 (66 FR 20589), FDA published an
interim rule amending its regulations to
provide additional safeguards for
children enrolled in clinical
investigations of FDA-regulated
products (part 50 (21 CFR part 50,
subpart D (FDA subpart D))). The
interim rule brought FDA regulations
into compliance with provisions of the
Children’s Health Act (Pub. L. 106–310).
Title XXVII, section 2701 of the
Children’s Health Act required that
within 6 months of its enactment all
research involving children conducted,
supported, or regulated by HHS be in
compliance with HHS regulations
providing additional protections for
children involved as subjects in
research (45 CFR part 46, subpart D
(HHS subpart D)). The interim rule was
effective on April 30, 2001. Interested
parties were given until July 23, 2001,
to comment on the interim rule.
FDA is finalizing its interim final rule
both to comply with the congressional
mandate in the Children’s Health Act
and because of increases in the
enrollment of children in clinical
investigations, in part as a result of
ongoing pediatric initiatives. Some of
these pediatric initiatives were
described in detail in the interim rule
(66 FR 20589), including the Food and
Drug Administration Modernization Act
of 1997 (FDAMA) and FDA’s 1998
pediatric rule (63 FR 66632, December
2, 1998).
FDAMA established economic
incentives for manufacturers to conduct
pediatric studies on drugs for which
exclusivity or patent protection is
E:\FR\FM\26FER1.SGM
26FER1
]]>Agencies
[Federal Register Volume 78, Number 38 (Tuesday, February 26, 2013)]
[Rules and Regulations]
[Pages 12933-12937]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04252]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 78, No. 38 / Tuesday, February 26, 2013 /
Rules and Regulations
[[Page 12933]]
COMMODITY FUTURES TRADING COMMISSION
17 CFR Parts 10, 12 and 171
Proceedings Before the Commodity Futures Trading Commission
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commodity Futures Trading Commission (``Commission'') is
amending its Rules of Practice, Rules Relating to Reparation
Proceedings, and its Rules Relating to Review of National Futures
Association (``NFA'') Decisions in Disciplinary, Membership Denial,
Registration and Membership Responsibility Actions, to simplify and
clarify service, filing and formatting requirements, particularly those
requirements applicable to electronic service and filing. The
Commission is also amending its Rules Relating to Reparations
Proceedings to clarify the authority of its Judgment Officers.
DATES: Effective February 26, 2013.
FOR FURTHER INFORMATION CONTACT: Jason Gizzarelli, Director, Office of
Proceedings, Commodity Futures Trading Commission, Three Lafayette
Centre, 1155 21st Street NW., Washington, DC 20581. Telephone: (202)
418-5395.
SUPPLEMENTARY INFORMATION: In 2008, the Commission amended its rules to
allow for service via electronic mail (``email'') for 17 CFR parts 10
and 12, and via facsimile (``fax'') for Part 12 (service by fax under
Part 10 had been permitted by the Commission since 1998.) At that time,
the Commission approved these additional means of service to take
advantage of technological developments that would be faster and less
costly than regular mail. Today, the Commission has amended 17 CFR
Parts 10, 12 and 171 to simplify and refine the rules for service,
filing and formatting. Additionally, the Commission has amended 17 CFR
Parts 10 and 12 to clarify the role and authority of its Judgment
Officers. The Commission believes these rule amendments will increase
efficiencies and lower costs for parties and for the Commission in
administrative enforcement proceedings, in reparations proceedings, and
in the appellate review of NFA decisions. Also, the Commission has
designed the amendments to the reparations rules to make the
reparations forum less legalistic and more user-friendly for pro se
parties.
Confirmation of Service
To ease the burden on parties in reparations cases, many of whom
appear pro se, the amended rules drop the requirement of a formal
affidavit of service and now require parties to submit a signed
``statement of service'' that: (1) Confirms that service has been made;
(2) identifies each person served; (3) sets forth the date of service;
and (4) recites the manner of service. The less formal and less
burdensome statement of service effectively serves the same purpose as
an affidavit of service: promoting and assuring the full exchange of
information among the parties by requiring service of submissions on
all of the parties in the proceeding. A corresponding change has been
made to the 17 CFR Part 10 rules regarding confirmation of service.
Electronic Service
The amendments to the service rules in 17 CFR parts 10 and 12
reflect the Commission's experience with electronic filing since 2008,
which generally has been positive. First, the amendments specifically
provide that a party who consents to service by email must specify the
email address to be used. Consent is required because it is not yet
possible to assume universal access to electronic communication.
Second, under these amendments, actual notice that an email or fax
transmission was not received will defeat the presumption of receipt
that service is complete on transmission and will compel the sender to
take additional steps to affect service. Finally, consistent with 17
CFR 12.1(a), which provides that the reparations rules ``shall be
construed liberally so as to secure the just, speedy and inexpensive
determination of the issues,'' the Commission expects that as
electronic technology continues to advance, its Proceedings Clerk and
its presiding officials will provide guidance to parties on standards
governing such technical specifications as data formatting, speed of
transmission, means to transmit attachments, and security of
communication.
Filing and Formatting
The amended rules simplify and harmonize the filing and formatting
requirements contained in 17 CFR parts 10 and 12. First, the amended
rules provide that parties filing by personal delivery, mail or
commercial delivery service are no longer required to file any copies
of an original. Second, the amended rules explicitly provide that
parties filing electronically should not also send paper copies of the
same documents to the Proceedings Clerk. Third, the amended rules
reduce the maximum length of briefs in administrative proceedings from
60 to 50 pages and in reparations proceedings from 35 to 25 pages.
Fourth, the amended rules simplify the formatting of filed documents,
such as font size, spacing and related issues. Fifth, the amendments
clarify that documents that are delivered in person, or delivered by
first-class mail, by a more expeditious form of United States mail, or
by overnight or similar commercial delivery service will be considered
timely filed if they are delivered in person or mailed to the
Proceedings Clerk within the time prescribed for filing. Finally, the
Commission is also amending 17 CFR 171.8 to allow filing and service by
fax and email.
Judgment Officer
On October 12, 2011, to promote the efficient use of the
Commission's budget and personnel resources, the Commission amended 17
CFR part 12 to authorize its Judgment Officers to conduct formal
decisional proceedings. The new 17 CFR part 12 amendments issued today
conform the definition of ``Judgment Officer'' to the authority of
Judgment Officers to conduct formal decisional proceedings. These new
amendments also provide that Judgment Officers may conduct sua sponte
discovery in voluntary decisional proceedings, as they can in summary
and formal decisional proceedings. This
[[Page 12934]]
amendment will help ensure that the evidentiary record is adequately
developed in voluntary decisional proceedings.
The amendment to 17 CFR 10.8, which authorizes the Commission to
appoint a Presiding Officer other than an administrative law judge
(``ALJ'') to conduct proceedings within the scope of 17 CFR part 10,
unless some other provision of law requires the use of an ALJ in a
particular category of proceeding,\1\ clarifies that Presiding Officers
who are not ALJs can carry out the same functions as ALJs in certain
proceedings to deny, condition, suspend, revoke or place restrictions
on registration. Registration-related proceedings are subject to
procedural rules set forth in the Commission's rules at 17 CFR part 3,
as well as the 17 CFR part 10 Rules of Practice.\2\ This amendment will
make clear the Commission's intent that references to ALJs in both 17
CFR part 10 and part 3 shall apply to non-ALJ Presiding Officers when
the Commission appoints such Presiding Officers in registration-related
proceedings.
---------------------------------------------------------------------------
\1\ 17 CFR 10.2(n) defines a ``Presiding Officer'' as ``a member
of the Commission, an Administrative Law Judge, or a hearing officer
designated by the Commission to conduct a hearing on a specific
matter, or the Commission itself * * *.'' In some types of
proceedings, statutory provisions constrain the choice of Presiding
Officer. For example, section 6(c)(4)(C)(iii) of the Commodity
Exchange Act (``CEA''), 7 U.S.C. 9(4)(C)(iii), requires that
proceedings pursuant to section 6(c)(4), 7 U.S.C. 9(4), must be
heard by either the Commission or an ALJ. By contrast, other
provisions of the CEA leave the choice of Presiding Officer to the
discretion of the Commission. For example, CEA section 8a(2), 7
U.S.C. 12a(2), which applies in certain circumstances where a court
or administrative agency has previously made a determination
regarding a registrant's conduct, authorizes the Commission to
revoke registration ``with such a hearing as may be appropriate''
and does not specify what type of official must preside.
\2\ See generally 17 CFR 3.55 through 3.64 and 17 CFR 10.1(a).
---------------------------------------------------------------------------
Prior to this amendment, the second sentence of 17 CFR 10.8 stated:
If the Commission determines that a proceeding within the scope
of this subpart shall be conducted before a Presiding Officer who is
not an Administrative Law 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 designated Presiding
Officer.
This amendment adds the phrase ``or of Part 3 of this title''
following the words ``this part'' in this sentence.
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
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 17 CFR parts 10, 12 and 171 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 CEA, 7 U.S.C. 19(a), requires the Commission
to consider the costs and benefits of its action before issuing a new
regulation. CEA 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.
The amendments to 17 CFR parts 10, 12 and 171 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 reduce costs and increase the efficiency of litigation
that arises pursuant to the operation of futures markets.
List of Subjects
17 CFR Part 10
Administrative practice and procedure, Authority delegations
(Government agencies), Commodity futures.
17 CFR Part 12
Administrative practice and procedure, Commodity futures, Consumer
protection.
17 CFR Part 171
Administrative practice and procedure, Commodity futures.
For the reasons discussed in the preamble, the Commodity Futures
Trading Commission amends 17 CFR parts 10, 12 and 171 as follows:
PART 10--RULES OF PRACTICE
0
1. The authority citation for part 10 continues to read as follows:
Authority: Pub. L. 93-463, sec. 101(a)(11), 88 Stat. 1391; 7
U.S.C. 2(a)(12).
Section 10.102 also issued under 7 U.S.C. 4a, 12a; 5 U.S.C. 10.
0
2. Revise Sec. 10.4 to read as follows:
Sec. 10.4 Business address; hours.
The Office of Proceedings is located at Three Lafayette Centre,
1155 21st Street NW., Washington, DC 20581. Faxes must be sent to (202)
418-5532, and emails must be sent to PROC_filings@cftc.gov. The office
is open from 8:15 a.m. to 4:45 p.m., Eastern Time, Monday through
Friday, except on federal holidays.
0
3. Amend Sec. 10.8 by revising the introductory text to read as
follows:
Sec. 10.8 Presiding officers.
Unless otherwise determined by the Commission, all proceedings
within the scope of this Part shall be assigned to an Administrative
Law Judge for hearing. If the Commission determines that a proceeding
within the scope of this Part shall be conducted before a Presiding
Officer who is not an Administrative Law Judge, all provisions of this
part or
[[Page 12935]]
of part 3 of this chapter 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 designated Presiding Officer.
* * * * *
0
4. Amend Sec. 10.12 by:
0
a. Revising paragraphs (a)(1), (a)(2)(ii) through (iv), and (a)(3);
0
b. Adding paragraphs (a)(4) through (6);
0
c. Revising paragraphs (b) through (f); and
0
d. Removing paragraph (g).
The revisions and additions read as follows:
Sec. 10.12 Service and filing of documents; form and execution.
(a) Service by a party or other participant in a proceeding. (1)
When one party serves another with documents under these rules, a copy
must be served on all other parties as well as filed with the
Proceedings Clerk. Similarly, when a person files a document with the
Office of Proceedings, the person must serve a copy of the document on
all other parties.
(2) * * *
(ii) First-class or a more expeditious form of United States mail
or an overnight or similar commercial delivery service;
(iii) Facsimile (``fax''); or
(iv) Electronic mail (``email'').
(3) Service by email or fax shall be permitted at the discretion of
the Presiding Officer, with the parties' consent. The consent of a
party must specify the email address or fax number to be used. Signed
documents that are served by email must be in PDF or other non-
alterable form.
(4) Service will be complete at the time of personal service; upon
deposit in the mail or with an overnight or similar commercial delivery
service of a properly addressed document for which all postage or
delivery service fees have been paid; or upon transmission by fax or
email. Service by email or by fax will not be effective if the party
making service learns that the attempted service did not reach the
person to be served.
(5) Where service is effected by mail or a commercial delivery
service (but not by fax or email), the time within which the person
being served may respond shall be extended by five (5) days.
(6) Statement of service. A statement of service shall be made by
filing with the Proceedings Clerk, simultaneously with the filing of
the document, a statement signed by the party making service or by his
attorney or representative that:
(i) Confirms that service has been made,
(ii) Identifies each person served,
(iii) Sets forth the date of service, and
(iv) Recites the manner of service.
(b) Service of decisions and orders. A copy of all rulings,
opinions and orders shall be served by the Proceedings Clerk on each of
the parties.
(c) Designation of person to receive service. The first page of the
first document filed in a proceeding by a party or participant must
include the name and contact information of a person authorized to
receive service on the party or participant's behalf. Contact
information must include a post office address and daytime telephone
number, and should also include the person's fax or email. Thereafter
service of documents shall be made upon the person authorized unless
service on the party himself is ordered by the 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.
(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 first-class mail or a more expeditious
form of United States mail or by overnight or similar commercial
delivery service 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 emailing it to PROC_
Filings@cftc.gov in accordance with the conditions set forth in
paragraph (a)(2) of this section.
(2) To be timely filed under this part, a document must be
delivered in person; mailed by first-class or a more expeditious form
of United States mail or by an overnight or similar commercial delivery
service; or faxed or emailed to the Proceedings Clerk within the time
prescribed for filing.
(e) Formalities of filing. (1) An original of all documents shall
be filed with the Proceedings Clerk. If a party files a document with
the Proceedings Clerk by fax or email, they should not also send paper
copies.
(2) First page. The first page of all documents filed with the
Proceedings Clerk must include the Commission's name, the docket
number, the title of proceeding, the subject of the document, and the
name of the person on whose behalf the document is being filed. In
subsequent filings, the case title may be abbreviated by listing the
name of the first respondent, followed by ``et al.'' In the complaint,
the title of the action shall include the names of all the respondents,
but in documents subsequently filed it is sufficient to state the name
of the first respondent named in the complaint with an appropriate
indication of other parties.
(3) Format. Documents must be legible and printed on normal white
paper of eight and one half by eleven inches. The typeface, margins,
and spacing of all documents presented for filing must meet the
following requirements: all text must be 12-point type or larger,
except for text in footnotes which may be 10-point type; all documents
must have at least one-inch margins on all sides; all text must be
double-spaced, except for headings, text in footnotes, or block
quotations, which may be single-spaced. Emailed documents must be in
PDF or other non-alterable form.
(4) Signatures. (i) The original of all documents must be signed by
the person filing the same or by his duly authorized agent or attorney.
(ii) Effect. The signature on any document of any person acting
either for himself or as attorney or agent for another constitutes
certification by him that:
(A) He has read the document and knows the contents thereof;
(B) If executed in any representative capacity, it was done with
full power and authority to do so;
(C) To the best of his knowledge, information, and belief, every
statement contained in the document is true and not misleading; and
(D) The document is not being interposed for delay.
(5) Length and form of briefs. All briefs of more than fifteen
pages shall include an index and a table of cases and other authorities
cited. No brief shall exceed 50 pages in length without prior
permission of the Presiding Officer or the Commission.
(f) Official docket. The Proceedings Clerk will maintain the
official docket for each proceeding. The official docket is available
for public inspection in the Commission's Office of Proceedings.
0
5. Amend Sec. 10.102 by revising paragraph (c) to read as follows:
Sec. 10.102 Review of initial decisions.
* * * * *
(c) Briefs. An original of all briefs submitted under this section
shall be filed with the Proceedings Clerk.
* * * * *
[[Page 12936]]
PART 12--RULES RELATING TO REPARATIONS
0
6. The authority citation for Part 12 continues to read as follows:
Authority: 7 U.S.C. 2(a)(12), 12a(5), and 18.
0
7. Amend Sec. 12.2 by revising the definition of ``Judgment Officer''
to read as follows:
Sec. 12.2 Definitions.
* * * * *
Judgment Officer means an employee of the Commission who is
authorized to conduct all reparations proceedings. In appropriate
circumstances, the functions of a Judgment Officer may be performed by
an Administrative Law Judge;
* * * * *
0
8. Revise Sec. 12.3 to read as follows:
Sec. 12.3 Business address; hours.
The Office of Proceedings is located at Three Lafayette Centre,
1155 21st Street NW., Washington, DC 20581. Faxes must be sent to (202)
418-5532, and emails must be sent to PROC_filings@cftc.gov. The office
is open from 8:15 a.m. to 4:45 p.m., Eastern Time, Monday through
Friday except on federal holidays.
0
9. Revise Sec. 12.10 to read as follows:
Sec. 12.10 Service.
(a) General requirements. (1) When service is required; number of
copies. When one party serves another with documents under these rules,
a copy must be served on all other parties as well as filed with the
Proceedings Clerk. Similarly, when a person files a document with the
Office of Proceedings, the person must serve a copy of the document on
all other parties. This rule does not apply to a complaint filed
pursuant to Sec. 12.13 of these rules, which shall only be filed with
the Commission.
(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 an overnight or similar commercial delivery service;
(iii) Facsimile (``fax''); or
(iv) Electronic mail (``email'').
(3) Service by fax or email shall be permitted at the discretion of
the Presiding Officer, with the parties' consent. The consent of a
party must specify the email address or fax number to be used. Signed
documents that are served by email attachment must be in PDF or other
non-alterable form.
(4) Service will be complete at the time of personal service; upon
deposit in the mail or with an overnight or similar commercial delivery
service of a properly addressed document for which all postage or
delivery service fees have been paid; or upon transmission by fax or
email. Service by email or by fax will not be effective if the party
making service learns that the attempted service did not reach the
person to be served.
(5) Where service is effected by mail or commercial delivery
service (but not by fax or email), the time within which the person
served may respond thereto shall be extended by five (5) days.
(6) Statement of Service. A statement of service shall be made by
filing with the Proceedings Clerk, simultaneously with the filing of
the document, a statement signed by the party making service or by his
attorney or representative that:
(i) Confirms that service has been made;
(ii) Identifies each person served;
(iii) Sets forth the date of service; and
(iv) Recites the manner of 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, a Judgment Officer, 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 himself is
ordered by a Judgment Officer, 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
10. Revise Sec. 12.11 to read as follows:
Sec. 12.11 Formalities of filing of documents with the Proceedings
Clerk.
(a) If a party files by personal delivery or mail, an original of
all documents shall be filed with the Proceedings Clerk. If a party
files a document by fax or email in accordance with Sec. 12.10(a)(2),
they should not also send paper copies.
(b) First page. The first page of all documents filed with the
Proceedings Clerk must include the Commission's name, the docket
number, the title of the proceeding, the subject of the document and
the name of the person on whose behalf the document is being filed. In
the complaint, the title of the proceeding shall include the names of
all the complainants and respondents, but in documents subsequently
filed it is sufficient to state the name of the first complainant and
first respondent named in the complaint.
(c) Format. Documents must be legible and printed on normal white
paper of eight and one half by eleven inches. Documents emailed in
accordance with the requirements of Sec. 12.10(a)(2) must be in PDF or
other non-alterable form. The typeface, margins, and spacing of all
typed documents presented for filing should meet the following
requirements: all text should be 12-point type or larger, except for
text in footnotes which may be 10-point type; all documents should have
at least one-inch margins on all sides; all text must be double-spaced,
except for headings, text in footnotes, or block quotations, which may
be single-spaced.
(d) Signature. (1) The original of all papers must be signed by the
person filing the same or by his duly authorized agent or attorney.
(2) Effect. The signature on any document of any person acting
either for himself or as attorney or agent for another constitutes
certification by him that:
(i) He has read the document and knows the contents thereof;
(ii) If executed in any representative capacity, it was done with
full power and authority to do so;
(iii) To the best of his knowledge, information, and belief, every
statement contained in the document is true and not misleading; and
(iv) The document has been filed in good faith and has not been
filed to cause delay.
(e) Length and form of briefs. All briefs filed containing more
than 15 pages shall include an index and a table of cases and other
authorities cited. No brief shall exceed 25 pages in length without
prior permission of the Presiding Officer.
(f) 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 first-class mail or a
more expeditious form of United States mail or by overnight or similar
commercial delivery service to Proceedings Clerk, Office of
Proceedings, Three Lafayette Centre,
[[Page 12937]]
1155 21st Street NW., Washington, DC 20581; or faxing the document to
(202) 418-5532; or emailing it to PROC_Filings@cftc.gov in accordance
with the conditions set forth in paragraph (a)(2) of this section.
(g) To be timely filed under this part, a document must be
delivered in person; mailed by first-class or a more expeditious form
of United States mail or by an overnight or similar commercial delivery
service; or faxed or emailed to the Proceedings Clerk within the time
prescribed for filing.
0
11. Amend Sec. 12.34 by revising paragraph (a) to read as follows:
Sec. 12.34 Discovery by a decisionmaking official.
(a) Applicability. The provisions of this rule shall apply to all
decisional proceedings commenced pursuant to Sec. 12.26. For the
purposes of this rule, the term ``decisionmaking official'' shall mean
a Judgment Officer or Administrative Law Judge assigned to render a
decision in the proceeding.
* * * * *
0
12. Amend Sec. 12.101 by revising paragraphs (a) through (c) to read
as follows:
Sec. 12.101 Functions and responsibilities of the Judgment Officer.
* * * * *
(a) To rule upon discovery-related motions, and to take such action
pursuant to Sec. 12.35 as is appropriate if a party fails to comply
with a discovery order;
(b) To issue orders for the production of documents and tangible
things and orders for written testimony, as provided in Sec. 12.34;
(c) To issue subpoenas pursuant to Sec. 12.34 and Sec. 12.36;
* * * * *
PART 171--RULES RELATING TO REVIEW OF NATIONAL FUTURES ASSOCIATION
DECISIONS IN DISCIPLINARY, MEMBERSHIP DENIAL, REGISTRATION AND
MEMBER RESPONSIBILITY ACTIONS
0
13. The authority citation for Part 171 continues to read as follows:
Authority: 7 U.S.C. 4a, 12a, and 21, unless otherwise noted.
0
14. Amend Sec. 171.8 by revising paragraph (a) to read as follows:
Sec. 171.8 Filing with the Proceedings Clerk.
(a) How to file. Any document that is required by this part to be
filed with the Proceedings Clerk shall be filed by delivering it in
person or by first-class mail or a more expeditious form of United
States mail, or by overnight or similar commercial delivery service 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 emailing it to PROC_Filings@cftc.gov. To be timely filed
under this part, a document must be delivered or mailed to the
Proceedings Clerk within the time prescribed for filing.
* * * * *
Issued in Washington, DC, on February 20, 2013, by the
Commission.
Melissa D. Jurgens,
Secretary of the Commission.
[FR Doc. 2013-04252 Filed 2-25-13; 8:45 am]
BILLING CODE 6351-01-P
