[Federal Register Volume 73, Number 207 (Friday, October 24, 2008)]
[Rules and Regulations]
[Pages 63359-63361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25354]


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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 ([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