[Federal Register Volume 86, Number 220 (Thursday, November 18, 2021)]
[Rules and Regulations]
[Pages 64349-64362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24449]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 12

RIN 3038-AF17


Changing Position Title of Judgment Officer to Administrative 
Judge

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

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SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC) 
is adopting technical amendments to its Rules Relating to Reparations 
to change the position title of the Judgment Officer to Administrative 
Judge and to incorporate gender neutral language, where applicable.

DATES: Effective November 18, 2021.

FOR FURTHER INFORMATION CONTACT: Eugene Smith, Director, Office of 
Proceedings, Commodity Futures Trading Commission, at (202) 418-5395 or 
[email protected], Three Lafayette Centre, 1155 21st Street NW, 
Washington, DC 20581.

SUPPLEMENTARY INFORMATION: In February 2013, the Commission amended 17 
CFR parts 10 and 12 to clarify the role and authority of its

[[Page 64350]]

Judgment Officers.\1\ In this rulemaking, the Commission is adopting 
technical amendments to 17 CFR part 12 that more accurately describe 
the duties performed by the adjudicator in reparations cases and other 
administrative proceedings by changing the title of Judgment Officer to 
Administrative Judge. The technical amendments adopted in this final 
rule simplify and improve the language of the rules by using plain 
language for the adjudicator instead of the overly legalistic term 
``Judgment Officer,'' and by incorporating gender neutral language into 
part 12, where applicable; thereby, making the rules easier to 
understand.
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    \1\ Proceedings Before the Commodity Futures Trading Commission, 
78 FR 12933 (Feb. 26, 2013).
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Related Matters

A. Administrative Procedure Act

    The amendments to the Commission's regulations in this rulemaking 
do not establish any new substantive or legislative rules, but rather 
are technical amendments to its Rules Relating to Reparations to change 
the position title of the Judgment Officer to Administrative Judge and 
to incorporate gender neutral language, where applicable. The 
amendments to the Commission's regulations relate solely to agency 
management, organization, procedure, and practice and provide technical 
corrections of a minor and administrative nature. Therefore, this 
rulemaking is excepted from the public rulemaking provisions of the 
Administrative Procedure Act.\2\ Additionally, an agency may issue a 
new rule in some circumstances without publication in the Federal 
Register of a notice of proposed rulemaking with an opportunity for 
comment if the agency for ``good cause'' finds (and incorporates the 
finding and a brief statement of the reasons therefor in the rules 
issued) that notice and public procedure thereon are ``impracticable, 
unnecessary, or contrary to the public interest.'' \3\ As noted 
earlier, the amendments to part 12 are technical edits to improve the 
language of the rules and incorporate gender neutral language. Good 
cause thus exists as the final rule implements changes that affect 
internal agency management, organization and procedure that exempts it 
from notice and comment rulemaking. Further, as the revisions to the 
Commission's regulations in this rulemaking will not cause any party to 
undertake efforts to comply with the regulations as revised, the 
Commission has determined to make this rulemaking effective upon 
publication in the Federal Register.\4\
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    \2\ 5 U.S.C. 553(a) and (b)(A). Rulemaking procedures do not 
apply, to the extent that there is involved a matter relating to 
agency management or personnel or to public property, loans, grants, 
benefits, or contracts or to interpretative rules, general 
statements of policy, or rules of agency organization, procedure, or 
practice.
    \3\ 5 U.S.C. 553(b).
    \4\ Section 553(d) of the APA, 5 U.S.C. 553(d), provides, in 
part, that a rule may not be made effective less than 30 days before 
its effective date except as otherwise provided by the agency for 
good cause found and published with the rule.
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B. Regulatory Flexibility Act

    The Regulatory Flexibility Act requires the Commission to consider 
whether the regulations it adopts will have a significant economic 
impact on a substantial number of small entities.\5\ The Commission is 
obligated to conduct a regulatory flexibility analysis for any rule for 
which the agency publishes a general notice of proposed rulemaking 
pursuant to section 553(b) of the Administrative Procedure Act or any 
other law.\6\ This rulemaking is excepted from the public rulemaking 
provisions of the Administrative Procedure Act. Accordingly, the 
Commission is not required to conduct a regulatory flexibility analysis 
for this rulemaking.
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    \5\ See 5 U.S.C. 601 et seq.
    \6\ 5 U.S.C. 601(2).
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C. Paperwork Reduction Act

    The Commission may not conduct or sponsor, and a respondent is not 
required to respond to, a collection of information contained in a 
rulemaking unless the information collection displays a currently valid 
control number issued by the Office of Management and Budget (OMB) 
pursuant to the Paperwork Reduction Act of 1995 (Paperwork Reduction 
Act).\7\ This final rule does not contain a collection of information 
as defined in the Paperwork Reduction Act and, therefore, is not 
subject to the requirements of the Paperwork Reduction Act.
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    \7\ See 44 U.S.C. 3501 et seq.
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D. Cost-Benefit Analysis

    Section 15 of the Commodity Exchange Act, as amended by the 
Commodity Futures Modernization Act of 2000, provides that before 
promulgating a regulation under the Act or issuing an order, the 
Commission shall consider the costs and benefits of the action of the 
Commission.\8\ These rules govern internal agency organization, 
procedure, and practice, and therefore the Commission finds that none 
of the considerations enumerated in section 15(a)(2) of the Commodity 
Exchange Act, as amended, are applicable to these rules.
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    \8\ 7 U.S.C. 19(a).
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E. Congressional Review Act

    This final rule is not a rule as defined in the Congressional 
Review Act.\9\
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    \9\ See 5 U.S.C. 801 through 808.
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List of Subjects in 17 CFR Part 12

    Administrative practice and procedure, Consumer protection, 
Organization and functions (Government agencies), Reparations.

    For the reasons stated in the preamble, the Commodity Futures 
Trading Commission amends 17 CFR part 12 as set forth below:

PART 12--RULES RELATING TO REPARATIONS

0
1. The authority citation for part 12 continues to read as follows:

    Authority: 7 U.S.C. 2(a)(12), 12a(5), and 18.


0
2. Revise Sec.  12.2 to read as follows:


Sec.  12.2   Definitions.

    For purposes of this part:
    Act means the Commodity Exchange Act, as amended, 7 U.S.C. 1, et 
seq.
    Administrative Judge means an employee of the Commission who is 
authorized to conduct all reparations proceedings. In appropriate 
circumstances, the functions of an Administrative Judge may be 
performed by an Administrative Law Judge.
    Administrative Law Judge means an administrative law judge 
appointed pursuant to the provisions of 5 U.S.C. 3105.
    Commission means the Commodity Futures Trading Commission.
    Commission decisional employee means an employee or employees of 
the Commission who are or may reasonably be expected to be involved in 
the decisionmaking process in any proceeding, including, but not 
limited to: An Administrative Judge; members of the personal staffs of 
the Commissioners, but not the Commissioners themselves; members of the 
staffs of the Administrative Law Judges, but not an Administrative Law 
Judge; members of the staffs of the Administrative Judges; members of 
the Office of the General Counsel; members of the staff of the Office 
of Proceedings; and other Commission employees who may be assigned to 
hear or to participate in the decision of a particular matter.
    Complainant means a person who, individually or jointly with 
others, has applied to the Commission for a reparation award pursuant 
to section 14(a) of the Act, but shall not include a cross claimant or 
any other type of

[[Page 64351]]

third-party claimant. The term ``complainant'' under this part applies 
equally to two or more persons who have applied jointly for a 
reparation award.
    Complaint means any document which constitutes an application for a 
reparation award pursuant to section 14(a) of the Act, regardless of 
whether it is denominated as such.
    Counterclaim means an application for a reparation award by a 
respondent against a complainant which satisfies the requirements of 
Sec.  12.19. A counterclaim does not mean a cross claim or other type 
of third party claim.
    Director of the Office of Proceedings means an employee of the 
Commission who serves as the administrative head of that Office, with 
responsibility and authority to assure that the rules in this part are 
administered in a manner which will effectuate the purposes of section 
14(b) of the Act. The Director is authorized to convene meetings of all 
personnel in the Office of Proceedings, including Administrative 
Judges, Administrative Law Judges, and the Judges' personally assigned 
law clerks. The Director shall have the authority to delegate their 
duties to administer Sec. Sec.  12.15, 12.24, 12.26, and 12.27, and, 
shall have the authority to assign and, if necessary, reassign the 
duties of, and set reasonable standards for performance for, all 
personnel in the Office, including the Administrative Judges, but not 
including Administrative Law Judges and their personally assigned law 
clerks.
    Ex parte communication means an oral or written communication not 
on the public record with respect to which reasonable prior notice to 
all parties is not given, but does not include:
    (1) A discussion, after consent has been obtained from all of the 
named parties, between a party and an Administrative Judge or 
Administrative Law Judge, or the staffs of the foregoing, pertaining 
solely to the possibility of settling the case without the need for a 
decision;
    (2) Requests for status reports, including questions relating to 
service of the complaint, and the registration status of any persons, 
on any matter or proceeding covered by this part; or
    (3) Requests made to the Office of Proceedings or the Office of the 
General Counsel for interpretation of this part.
    Formal decisional procedure means, where the amount of total 
damages claimed exceeds $30,000, exclusive of interest and costs, a 
procedure elected by the complainant or a respondent where the parties 
may be granted an oral hearing. A formal decisional proceeding is 
governed by subpart E of this part.
    Hearing means that part of a proceeding which involves the 
submission of proof, either by oral presentation or written submission.
    Interested person means any party, and includes any person or 
agency permitted limited participation or to state views in a 
reparation proceeding, or other person who might be adversely affected 
or aggrieved by the outcome of a proceeding (including the officers, 
agents, employees, associates, affiliates, attorneys, accountants or 
other representatives of such persons), and any other person having a 
direct or indirect pecuniary or other interest in the outcome of a 
proceeding.
    Office of the General Counsel refers to the members of the 
Commission's staff who provide assistance to the Commission in its 
direct review of any proceeding conducted pursuant to this part.
    Office of Proceedings means that Office within the Commission 
comprised of the Administrative Law Judges, Administrative Judges, the 
Director of that Office, the Proceedings Clerk, and members of the 
staffs of the foregoing, which administers the rules in this part, 
other than the rules in this part authorizing direct review by the 
Commission.
    Order means the whole or any part of a final procedural or 
substantive disposition of a reparation proceeding by the Commission, 
an Administrative Law Judge, an Administrative Judge, or the 
Proceedings Clerk.
    Party means a complainant, respondent or any other person or agency 
named or admitted as a party in a reparation matter.
    Person means any individual, association, partnership, corporation 
or trust.
    Pleading means the complaint, the answer to the complaint, any 
supplement or amendment thereto, and any reply to the foregoing.
    Proceeding means a case in which the pleadings have been forwarded 
and in which a procedure has been commenced pursuant to Sec.  12.26.
    Proceedings Clerk means that member of the Commission's staff in 
the Office of Proceedings who shall maintain the Commission's 
reparation docket, assign reparation cases to an appropriate 
decisionmaking official, and act as custodian of the records of 
proceedings.
    Punitive damages means damages awarded (no more than two times the 
amount of actual damages) in the case of any action arising from a 
willful and intentional violation in the execution of an order on the 
floor of a contract market. An order does not have to be actually 
executed to render a violation subject to punitive damages. As a 
prerequisite to an award of punitive damages, a complainant must claim 
actual and punitive damages, prove actual damages, and demonstrate that 
punitive damages are appropriate.
    Registrant means any person who--
    (1) Was registered under the Act at the time of the alleged 
violation;
    (2) Is subject to reparation proceedings by virtue of section 4m of 
the Commodity Exchange Act, regardless of whether such person was ever 
registered under the Act; or
    (3) Is otherwise subject to reparation proceedings under the Act.
    Reparation award means the amount of monetary damages a party may 
be ordered to pay.
    Respondent means any person or persons against whom a complainant 
seeks a reparation award pursuant to section 14(a) of the Act.
    Summary decisional procedure means, where the amount of total 
damages claimed does not exceed $30,000, exclusive of interest and 
costs, a procedure elected by the complainant or the respondent wherein 
an oral hearing need not be held and proof in support of each party's 
case may be supplied in the form and manner prescribed by Sec.  12.208. 
A summary decisional proceeding is governed by subpart D of this part.
    Voluntary decisional procedure means, regardless of the amount of 
damages claimed, a procedure which the complainant and the respondent 
have chosen voluntarily to submit their claims and counterclaims, 
allowable under this part, for an expeditious resolution by an 
Administrative Judge. By electing the voluntary decisional procedure, 
parties agree that a decision issued by an Administrative Judge shall 
be without accompanying findings of fact and shall be final without 
right of Commission review or judicial review. A voluntary decisional 
proceeding is governed by subpart C of this part.

0
3. Amend Sec.  12.5 as follows:
0
a. Revise paragraph (a); and
0
b. Remove the undesignated paragraph following paragraph (a).
    The revision reads as follows:


Sec.  12.5  Computation of time.

    (a) In general. In computing any period of time prescribed by the 
rules in this part or allowed by the Commission, the Director of the 
Office of Proceedings, an Administrative Judge, or an Administrative 
Law Judge, the day of the act, event, or default from which the 
designated period of time begins to run is not to be included. The last 
day of the period so computed is to be included unless it is a 
Saturday, a Sunday, or a

[[Page 64352]]

legal holiday, in which event the period runs until the end of the next 
day which is not a Saturday, a Sunday, or a legal holiday. Intermediate 
Saturdays, Sundays, and legal holidays shall be excluded from the 
computation only when the period of time prescribed or allowed is less 
than seven (7) days.
* * * * *

0
4. In Sec.  12.6, revise paragraph (a) to read as follows:


Sec.  12.6  Extensions of time; adjournments; postponements.

    (a) In general. Except as otherwise provided by law or by the rules 
in this part, for good cause shown, the Commission, or an 
Administrative Judge, Administrative Law Judge, or the Director of the 
Office of Proceedings, before whom a matter is then pending, on their 
own motion or the motion of a party, may at any time extend or shorten 
the time limit prescribed by the rules in this part for filing any 
document. In any instance in which a time limit is not prescribed for 
an action to be taken concerning any matter, the Commission or one of 
the other officials mentioned above may set a time limit for that 
action.
* * * * *

0
5. In Sec.  12.7, republish paragraph (c) heading and revise paragraph 
(c)(1) to read as follows:


Sec.  12.7   Ex parte communications in reparation proceedings.

* * * * *
    (c) Sanctions. (1) Upon receipt of an ex parte communication 
knowingly made or knowingly caused to be made by a party in violation 
of the prohibition contained in paragraph (a)(1) of this section, the 
Commission, Administrative Law Judge, or an Administrative Judge may, 
to the extent consistent with the interests of justice and the policy 
of the Act, require the parties to show cause why their claims or 
interest in the proceeding should not be dismissed, denied, 
disregarded, or otherwise adversely affected on account of such 
violation.
* * * * *

0
6. Revise Sec.  12.8 to read as follows:


Sec.  12.8  Separation of functions.

    (a) An Administrative Judge, or Administrative Law Judge, will not 
be responsible to or subject to the supervision or direction of any 
officer, employee, or agent of the Commission engaged in the 
performance of investigative or prosecutorial functions for the 
Commission.
    (b) No officer, employee, or agent of the Federal Government 
engaged in the performance of investigative or prosecutorial functions 
in connection with any proceeding shall, in that proceeding or a 
factually related proceeding, participate or advise in the decision of 
an Administrative Judge, or Administrative Law Judge, except as a 
witness in the proceeding, without the express written consent of the 
parties to the proceeding. This paragraph (b) shall not apply to the 
Commissioners.

0
7. In Sec.  12.9, republish paragraph (a) heading and revise paragraphs 
(a)(1) and (b) to read as follows:


Sec.  12.9   Practice before the Commission.

    (a) Practice--(1) By non-attorneys. Individuals may appear pro se 
(on their own behalf); a general partner may represent the partnership; 
a bona fide officer of a corporation, trust, or association may 
represent the corporation, trust, or association.
* * * * *
    (b) Debarment of counsel or representative during the course of a 
proceeding. (1) Whenever, while a proceeding is pending before them, an 
Administrative Judge or an Administrative Law Judge finds that a person 
acting as counsel or representative for any party to the proceeding is 
guilty of contemptuous conduct, such official may order that such 
person be precluded from further acting as counsel or representative in 
the proceeding. An immediate appeal to the Commission may be taken from 
any such order, pursuant to the provisions of Sec.  12.309, but the 
proceeding shall not be delayed or suspended pending disposition of the 
appeal; Provided, that the official may suspend the proceedings for a 
reasonable time for the purpose of enabling the party to obtain other 
counsel or representative.
    (2) Whenever the Administrative Judge or Administrative Law Judge 
has issued an order precluding a person from further acting as counsel 
or representative in a proceeding, such official, within a reasonable 
time thereafter, shall submit to the Commission a report of the facts 
and circumstances surrounding the issuance of the order and shall 
recommend what action the Commission should take respecting the 
appearance of such person as counsel or representative in other 
proceedings before the Commission.
* * * * *

0
8. In Sec.  12.10, revise paragraphs (b) and (c) to read as follows:


Sec.  12.10  Service.

* * * * *
    (b) Service of orders and decisions. A copy of all notices, 
rulings, opinions, and orders of the Proceedings Clerk, the Director of 
the Office of Proceedings, an Administrative Judge, an Administrative 
Law Judge, the General Counsel or any employee under the General 
Counsel's supervision as the General Counsel may designate, or the 
Commission shall be served by the Proceedings Clerk on each of the 
parties. The Commission, in its discretion and with due consideration 
for the convenience of the parties, may serve the aforementioned 
documents to the parties by electronic means.
    (c) Designation of person to receive service. The first page of the 
first document filed in a proceeding by a party or participant shall 
include the contact information of a person authorized to receive 
service on their behalf. Thereafter, service of documents shall be made 
upon the person authorized unless service on the party is ordered by an 
Administrative Judge, an Administrative Law Judge or the Commission, or 
unless no person authorized to receive service can be found, or unless 
the person authorized to receive service is changed by the party upon 
due notice to all other parties.

0
9. In Sec.  12.11, republish paragraph (d) heading and revise 
paragraphs (d)(1), (d)(2) introductory text, and (d)(2)(i) and (iii) to 
read as follows:


Sec.  12.11   Formalities of filing of documents with the Proceedings 
Clerk.

* * * * *
    (d) Signature--(1) Manner. The original of all papers must be 
signed in ink by persons filing the same or by their duly authorized 
agents or attorneys.
    (2) Effect. The signature on any document of persons acting either 
for themselves or as attorney or agent for another constitutes 
certification by them that:
    (i) They have read the document and know the contents thereof;
* * * * *
    (iii) To the best of their knowledge, information and belief, every 
statement contained in the document is true and not misleading; and
* * * * *

0
10. In Sec.  12.12, revise paragraphs (b) introductory text and (b)(1) 
and (3) to read as follows:


Sec.  12.12  Signature.

* * * * *
    (b) Effect. The signature on any document of any persons acting 
either for themselves or as attorney or agent for another constitutes 
certification by them that:

[[Page 64353]]

    (1) They have read the document subscribed and know the contents 
thereof;
* * * * *
    (3) To the best of their knowledge, information, and belief, every 
statement contained in the document is true and not misleading; and
* * * * *

0
11. In Sec.  12.13, revise paragraph (b)(2) to read as follows:


Sec.  12.13   Complaint; election of procedure.

* * * * *
    (b) * * *
    (2) Subscription and verification of the complaint. Each complaint 
shall be signed personally by an individual complainant or by a duly 
authorized officer or agent of a complainant who is not a natural 
person. Complainant's signature shall be given under oath or 
affirmation under penalty of law attesting either that complainant 
knows the facts set forth in the complaint to be true, or believes the 
facts set forth to be true, in which event the information upon which 
complainant formed that belief shall be set forth with particularity.
* * * * *

0
12. Revise Sec.  12.14 to read as follows:


Sec.  12.14   Withdrawal of complaint.

    At any time prior to service of notification to the complainant 
pursuant to Sec.  12.15(a) of the Director of the Office of 
Proceedings' determination to forward the complaint to a registrant, 
complainant may file a written notice of withdrawal of the complaint 
which shall terminate the Commission's consideration of the complaint 
without prejudice to complainant's right to re-file a reparations 
complaint based upon the same set of facts within two years after the 
cause of action accrues. If the complainant has previously filed a 
notice of withdrawal of a complaint based upon the same set of facts, 
the notice of withdrawal of complaint shall terminate the case with 
prejudice to complainant's rights to re-file a complaint in reparations 
based on the same set of facts, but such termination shall be regarded 
by the Commission as without prejudice to complainant's right to seek 
redress in such alternative forums as may be available for adjudication 
of the claims.

0
13. In Sec.  12.15, revise paragraph (b) to read as follows:


Sec.  12.15  Notification of complaint.

* * * * *
    (b) Determination not to forward complaint. The Director may, in 
their discretion, refuse to forward a complaint as to a particular 
respondent if it appears that the matters alleged therein are not 
cognizable in reparations, or that grounds exist pursuant to Sec.  
12.24(c) or (d) for refusing to forward the complaint. If the Director 
of the Office of Proceedings should determine not to forward the 
complaint to all registrants named in the complaint in accordance with 
this section, no proceeding shall be held thereon and the complainant 
shall be notified to that effect. If the Director determines to forward 
the complaint as to less than all of the registrants, the complainant 
shall be so notified. A termination of the complaint as to any 
registrant shall be regarded by the Commission as without prejudice to 
the right of the complainant to seek such alternative forms of relief 
as may be available.

0
14. Revise Sec.  12.17 to read as follows:


Sec.  12.17   Satisfaction of complaint.

    A respondent may satisfy the complaint:
    (a) By paying to the complainant either the amount to which the 
complainant claims to be entitled as set forth in the complaint or such 
other amount as the complainant will accept in satisfaction of the 
claim; and
    (b) By submitting to the Commission notice of satisfaction and 
withdrawal of the complaint, duly executed by the complainant and the 
respondent.

0
15. In Sec.  12.18, revise paragraphs (b), (c), and (d) to read as 
follows:


Sec.  12.18   Answer; election of procedure.

* * * * *
    (b) Motion for reconsideration of determination to forward the 
complaint. An answer may include a motion for reconsideration of the 
determination to forward the complaint, specifying the grounds 
therefor, which the Director of the Office of Proceedings, in their 
discretion, may grant by terminating the case pursuant to Sec.  12.27, 
or deny by forwarding the pleadings and matters of record for an 
elected decisional proceeding pursuant to Sec.  12.26. The inclusion in 
an answer of a motion for reconsideration shall not preclude a 
respondent, if the motion is denied, from moving for dismissal at a 
later stage of the proceeding for the same reasons cited in a motion 
for reconsideration pursuant to this paragraph (b).
    (c) Subscription and verification of the answer. An answer shall be 
signed personally by each registrant on behalf of whom it is filed or 
by a duly authorized officer or agent of any such registrant who is not 
a natural person. Each registrant's signature shall be given under 
oath, or by affirmation under penalty of law, attesting that the signer 
has read the answer; that to the best of the signer's knowledge all of 
the statements in the answer, the counterclaim (if any), and the 
materials required by this part to be appended thereto, are accurate 
and true, and that the answer (and counterclaim, if any) has not been 
interposed for delay.
    (d) Affidavit of service. The registrant shall file with the answer 
an affidavit showing that a true copy of the answer has been served 
upon the complainant, either personally or by first-class mail 
addressed to the complainant at the address set forth in the complaint.
* * * * *

0
16. In Sec.  12.20, revise paragraphs (a) and (c) to read as follows:


Sec.  12.20  Response to counterclaim; reply; election of procedure.

    (a) Response to counterclaim. If an answer asserts a counterclaim, 
the complainant shall, within thirty (30) days after service of the 
answer by the respondent:
    (1) Satisfy the counterclaim as if it were a complaint, in the 
manner prescribed by Sec.  12.17; or
    (2) File a reply to the counterclaim with the Commission.
* * * * *
    (c) Election of decisional procedure. If neither the complainant 
nor the respondent, in the complaint or answer respectively, has 
previously made an election of the summary decisional procedure or the 
formal decisional procedure, the complainant may make such an election 
in the reply.

0
17. In Sec.  12.21, revise paragraph (a) to read as follows:


Sec.  12.21  Voluntary dismissal.

    (a) At any time after the Director of the Office of Proceedings has 
served notification to the parties pursuant to Sec.  12.15 of the 
Director's determination to forward the complaint to the respondent for 
a response, either the complainant or the respondent may obtain 
dismissal of the complaint (or the proceeding, if one has commenced) by 
filing a stipulation of dismissal, duly executed by all of the 
complainants and each respondent against whom the complaint has been 
forwarded (or added as a party in the course of a proceeding); provided 
however, that if the stipulation is filed after any respondent has 
filed an answer, the terms of the stipulation shall include a dismissal 
of any counterclaims in the answer.
* * * * *

0
18. In Sec.  12.22, revise paragraph (b) to read as follows:

[[Page 64354]]

Sec.  12.22  Default proceedings.

* * * * *
    (b) Default procedure. Upon a party's failure to respond timely to 
a complaint or counterclaim as prescribed in Sec. Sec.  12.16 and 
12.20, or timely to comply with Sec.  12.25(b) or (c), the Director of 
the Office of Proceedings shall forward the pleadings, and other 
materials then of record, to an Administrative Judge or Administrative 
Law Judge who may thereafter enter findings and conclusions concerning 
the questions of violations and damages and, if warranted, enter a 
reparation award against the non-responding party. If the facts which 
are treated as admitted are considered insufficient to support a 
violation or the amount of reparations sought, the Administrative Judge 
or Administrative Law Judge may order production of supplementary 
evidence from the party not in default and may enter a default order 
and an award based thereon.
* * * * *

0
19. In Sec.  12.23, revise paragraph (b) to read as follows:


Sec.  12.23   Setting aside of default.

* * * * *
    (b) Default order final. A default order that has become final 
pursuant to Sec.  12.22(c) shall not be set aside except upon a motion 
filed and served by the defaulted party showing that the defaulted 
party should be relieved from the default order because of fraud 
perpetrated on a decisionmaking official or the Commission, mistake, 
excusable neglect, or because the order is void for want of 
jurisdiction. Such a motion shall also show that, if the default order 
were set aside, there would be a reasonable likelihood of success for 
the defaulted party's claim or defense on the merits and that no party 
would be prejudiced thereby. Motions to set aside a final default order 
for fraud, mistake, or excusable neglect shall be filed within one year 
after the order was issued. All motions to set aside default orders 
shall be decided, in the first instance, by the official who issued the 
order. A denial of a motion to set aside a default order that has 
become final shall be treated as an initial decision, which may be 
appealed to the Commission in accordance with the requirements of Sec.  
12.401. A grant of a motion to set aside a final default order shall be 
treated as a nonfinal order which may be appealed only in accordance 
with the requirements of Sec.  12.309.

0
20. In Sec.  12.24, revise paragraphs (a)(1)(iii) and (e) to read as 
follows:


Sec.  12.24   Parallel proceedings.

    (a) * * *
    (1) * * *
    (iii) Is governed by a compulsory counterclaim rule of Federal 
court procedure which required the complainant in reparations to assert 
all of complainant's claims (including those based on alleged 
violations of the Commodity Exchange Act, and any regulation or order 
issued thereunder) as counterclaims in that proceeding;
* * * * *
    (e) Exceptions. At the time notice of a parallel proceeding is 
filed pursuant to paragraph (b) of this section, or any time 
thereafter, any party, or the receiver or trustee, may file and serve 
upon other parties a statement in support of or in opposition to any 
action taken or to be taken pursuant to paragraph (c) or (d) of this 
section. This statement shall be addressed to the Office of 
Proceedings, attention of the Proceedings Clerk. Upon receipt of any 
such statement, the Proceedings Clerk shall immediately forward the 
statement to the official with responsibility over the case. The notice 
and the statements filed by the parties shall be reviewed by that 
official who, on or before the effective date of action taken pursuant 
to paragraphs (c)(1) and (2) and (d)(1) and (2) of this section, may 
take such actions as, in the official's opinion, are necessary to 
ensure that the parties to the matter or proceedings are not unduly 
prejudiced.
* * * * *

0
21. In Sec.  12.25, revise paragraphs (b) and (c) to read as follows:


Sec.  12.25  Filing fees.

* * * * *
    (b) Fees payable upon filing an answer. (1) If a complainant, in 
the complaint, has elected the voluntary decisional procedure, a 
respondent who, in the answer, elects the summary decisional procedure 
(available only where the amount of damages claimed in the complaint or 
as counterclaims does not exceed $30,000) shall, at the time of filing 
the answer, pay a filing fee of $75.00.
    (2) If a complainant, in the complaint, has elected the voluntary 
decisional procedure, a respondent who, in the answer, elects the 
formal decisional procedure (available only where the amount of damages 
claimed in the complaint or as counterclaims exceeds $30,000) shall, at 
the time of filing the answer, pay a filing fee of $200.00.
    (c) Fees payable upon filing a reply. In any case in which a 
counterclaim has been made, unless a complainant in the complaint, or 
the respondent in an answer, has elected the summary decisional 
procedure or the formal decisional procedure a complainant, who in the 
reply elects either of these procedures, shall, at the time of filing 
the reply, pay a filing fee of $75.00 or $200.00, respectively, 
depending whether the procedure elected by complainant is pursuant to 
subpart D or E of this part.

0
22. Revise Sec.  12.26 to read as follows:


Sec.  12.26   Commencement of a reparation proceeding.

    (a) Commencement of voluntary decisional proceeding. Where 
complainant and respondent in the complaint and answer have elected the 
voluntary decisional procedure pursuant to subpart C of this part and 
the complainant has paid the filing fee required by Sec.  12.25, the 
Director of the Office of Proceedings shall, if in the Director's 
opinion the facts warrant taking such action, forward the pleadings and 
all materials of record to the Proceedings Clerk for a proceeding to be 
conducted in accordance with subpart C of this part. The Proceedings 
Clerk shall forthwith notify the parties of such action. Such 
notification shall be accompanied by an order issued by the Proceedings 
Clerk requiring the parties to complete all discovery, as provided in 
subpart B of this part, within 50 days thereafter. A voluntary 
decisional proceeding commences upon service of such notification and 
order. As soon as practicable after service of such notification, the 
Proceedings Clerk shall assign the case to an Administrative Judge for 
a final decision.
    (b) Commencement of summary decisional proceeding. Where the amount 
claimed as damages, exclusive of interest and costs, in the complaint 
or in counterclaim does not exceed $30,000, and either a complainant or 
a respondent in the complaint, answer, or reply, has elected the 
summary decisional procedure pursuant to subpart D of this part, and 
has paid the filing fee required by Sec.  12.25, the Director of the 
Office of Proceedings shall, if in the Director's opinion the facts 
warrant taking such action, forward the pleadings and all materials of 
record to the Proceedings Clerk for a proceeding to be conducted in 
accordance with subpart D of this part. The Proceedings Clerk shall 
forthwith notify the parties of such action. Such notification shall be 
accompanied by an order issued by the Proceedings Clerk requiring the 
parties to complete all discovery, as provided in subpart B of this 
part, within 50 days thereafter. A summary decisional proceeding 
commences upon service of such

[[Page 64355]]

notification. As soon as practicable after service of such 
notification, the Proceedings Clerk shall assign the case to an 
Administrative Judge for disposition.
    (c) Commencement of formal decisional proceeding. Where the amount 
claimed as damages in the complaint or as counterclaims exceeds 
$30,000, exclusive of interest and costs, and either a complainant or a 
respondent in the complaint, answer or reply, has elected the formal 
decisional procedure pursuant to subpart E of this part, and has paid 
the filing fee required by Sec.  12.25, the Director of the Office of 
Proceedings shall, if in the Director's opinion the facts warrant 
taking such action, forward the pleadings and the materials of record 
to the Proceedings Clerk for a proceeding to be conducted in accordance 
with subpart E of this part. The Proceedings Clerk shall forthwith 
notify the parties of such action. Such notification shall be 
accompanied by an order issued by the Proceedings Clerk requiring the 
parties to complete all discovery, as provided in subpart B of this 
part, within 50 days thereafter. A formal decisional proceeding 
commences upon service of such notification and order. As soon as 
practicable after service of such notification, the Proceedings Clerk 
shall assign the case to an Administrative Judge. All provisions of 
this part that refer to and grant authority to or impose obligations 
upon an Administrative Law Judge shall be read as referring to and 
granting authority to and imposing obligations upon the Administrative 
Judge.

0
23. In Sec.  12.30, revise paragraph (c) to read as follows:


Sec.  12.30  Methods of discovery.

* * * * *
    (c) Sanctions for abuse of discovery. If an Administrative Law 
Judge or an Administrative Judge finds that any party, without 
substantial justification, has necessitated the filing of a motion for 
a protective order or for an order compelling discovery, or any other 
discovery-related motions, that party shall, if the motion is granted, 
be ordered to pay, at the termination of the proceeding, the reasonable 
expenses of the moving party incurred in filing the motion, unless the 
decisionmaking official finds that circumstances exist which would make 
an award of such expenses unjust. If a decisionmaking official finds 
that any party, without substantial justification, has filed a motion 
for a protective order or for an order compelling discovery, or any 
discovery-related motions, that party shall, if the motion is denied, 
be ordered to pay, at the termination of the proceeding, the reasonable 
expenses of an adverse party incurred in opposing the motion, unless 
the decisionmaker finds that circumstances exist which would make an 
award of such expenses unjust.
* * * * *

0
24. In Sec.  12.33, revise paragraphs (b), (c), and (d) to read as 
follows:


Sec.  12.33   Admissions.

* * * * *
    (b) Reply. Each matter of which an admission is requested shall be 
separately set forth. The matter is admitted unless within twenty (20) 
days after service of the request, the party upon whom the request is 
directed files and serves upon the party requesting a verified written 
answer or objection to the matter. If objection is made, the reasons 
therefor shall be stated. The answer shall specifically deny the matter 
or set forth in detail the reasons why the answering party cannot 
truthfully admit or deny the matter. A denial shall fairly meet the 
substance of the requested admission and when good faith requires that 
an answering party qualify the answer and deny only a part of the 
matter of which an admission is requested, the answering party shall 
specify so much of it as is true and qualify or deny the remainder. 
Answering parties may not give a lack of information or knowledge as a 
reason for failure to admit or deny unless they state that they have 
made reasonable inquiry and that the information known or reasonably 
available to them is insufficient to enable them to admit or deny. 
Parties who consider that a matter of which an admission has been 
requested presents a genuine issue for trial may not, on that ground 
alone, object to the request; they may deny the matter or set forth 
reasons why they cannot admit or deny it.
    (c) Determining sufficiency of answers or objections. The party who 
has requested the admissions may move to determine the sufficiency of 
the answers or objections. Unless the objecting party sustains the 
burden of showing that the objection is justified, the official 
presiding over discovery shall order that an answer be served. If such 
official determines that an answer does not comply with the 
requirements of this section, that official may order either that the 
matter is admitted or that an amended answer be served.
    (d) Effect of admission. Any matter admitted under this section is 
conclusively established and may be used as proof against the party who 
made the admission. However, the discovery or decisionmaking official 
may permit withdrawal or amendment when the presentation of the merits 
of the proceeding will be served thereby and the party who obtains the 
admission fails to satisfy such official that withdrawal or amendments 
will prejudice them in maintaining an action or defense on the merits.

0
25. Revise Sec.  12.34 to read as follows:


Sec.  12.34  Discovery by a decisionmaking official.

    (a) Applicability. The provisions of this section shall apply to 
all decisional proceedings commenced pursuant to Sec.  12.26. For the 
purposes of this section, the term ``decisionmaking official'' shall 
mean an Administrative Judge or Administrative Law Judge assigned to 
render a decision in the proceeding.
    (b) Production of documents and tangible things--(1) Order for 
production. A decisionmaking official may, upon the official's own 
motion, order a party or non-party to produce copies of specifically 
designated documents, papers, books, accounts, or tangible things (or 
categories of any of the foregoing) which are in the possession, 
custody or control of the party, non-party or agent thereof, against 
whom the order is directed. Except as provided in paragraph (b)(2) of 
this section, a party or nonparty ordered to produce documents or any 
of the items under this paragraph (b)(1) shall file and serve the 
documents and items listed in the order within twenty (20) days from 
the date of service of the order, or within such period of time as the 
decisionmaking official may direct. The decisionmaking official may 
issue subpoenas to compel the production by parties or non-parties of 
such documents and tangible things as are described in this section.
    (2) Trade secrets, commercially sensitive or confidential 
information. If any party or person against whom an order to produce 
has been directed acting in good faith has reason to believe that any 
documents or other tangible thing ordered to be produced contains a 
trade secret, or commercially sensitive or other confidential 
information, the party or person may, in lieu of serving any such 
document, in accordance with paragraph (b)(1) of this section, file and 
serve a written request for confidential treatment of such documents. 
Any such request for confidential treatment shall be accompanied by a 
verified statement identifying with particularity the information on 
those documents considered to be trade secrets, commercially sensitive 
or confidential information, with reasons therefor, and

[[Page 64356]]

indicating which portions, if any, of those documents may be served on 
other parties without disclosure of such information. Upon considering 
a request for confidential treatment in accordance with this paragraph 
(b)(2), the decisionmaking official may, if upon a finding that the 
information identified in the request warrants confidential treatment 
and is not probative of any material fact in controversy, make copies 
of the documents produced, delete such information from the copies, and 
serve the copies as modified upon the other parties, with or without an 
appropriate protective order limiting dissemination to the parties and 
their counsel, if any.
    (3) Inability to produce. Any party or person who cannot produce 
documents or other tangible things called for in an order for 
production, because those documents or things are not in their 
possession, custody, or control, shall file and serve within the time 
provided in paragraph (b)(1) of this section a verified statement 
identifying the documents which cannot be produced and setting forth 
with particularity the reasons for non-production.
    (c) Order for written testimony. The decisionmaking official may, 
upon the official's own motion, order a party or non-party witness to 
submit verified statements or written responses to interrogatories, or 
both, as to all relevant matters within the party's personal knowledge 
which are required in response to the order. A party or person ordered 
to file affidavits and/or verified written responses to interrogatories 
shall file and serve the documents within such period of time as the 
decisionmaking official may direct. The official may issue subpoenas to 
compel the filing by parties or non-parties of such verified statements 
and written responses as are described in this paragraph (c).

0
26. In Sec.  12.35, revise the introductory text to read as follows:


Sec.  12.35   Consequence of a party's failure to comply with a 
discovery order.

    If a party fails to comply with an order compelling discovery, or 
an order issued pursuant to Sec.  12.34, the official assigned to 
render the decision in the case may, upon motion by a party or on the 
official's own motion, take such action in regard thereto as is just, 
including but not limited to the following:
* * * * *

0
27. In Sec.  12.101, revise the section heading and the introductory 
text to read as follows:


Sec.  12.101   Functions and responsibilities of the Administrative 
Judge.

    The Administrative Judge shall be responsible for the fair and 
orderly conduct of the proceeding and shall have the authority:
* * * * *

0
28. Revise Sec.  12.102 to read as follows:


Sec.  12.102   Disqualification of Administrative Judge.

    (a) At their own request. An Administrative Judge may withdraw from 
a voluntary decisional proceeding when they consider themselves to be 
disqualified on the grounds of personal bias, conflict of interest, or 
similar bases. In such event the Administrative Judge shall immediately 
notify the Commission and each of the parties of the withdrawal and of 
the basis for such action.
    (b) Upon the request of a party. Any party may request an 
Administrative Judge to disqualify themselves on the grounds of 
personal bias, conflict of interest, or similar bases. Interlocutory 
review of an adverse ruling by the Administrative Judge may be sought 
without certification of the matter by the Administrative Judge only in 
accordance with the procedures set forth in Sec.  12.309.

0
29. In Sec.  12.106, revise paragraph (a) to read as follows:


Sec.  12.106   Final decision and order.

    (a) When a final decision is required. After all submissions of 
proof have been received, the Administrative Judge shall make the final 
decision. Upon its issuance, the final decision shall forthwith be 
filed with the Proceedings Clerk, and immediately served on the 
parties. The Proceedings Clerk shall also serve a notice, to accompany 
the final decision, of the effect of a failure by a party ordered to 
pay a reparation award to file the documents required by Sec.  
12.407(c).
* * * * *

0
30. Revise Sec.  12.200 to read as follows:


Sec.  12.200  Scope and applicability of this subpart.

    The rules set forth in this subpart are applicable only to 
proceedings forwarded pursuant to Sec.  12.26(b). The rules in subpart 
B of this part permitting discovery are applicable in a summary 
decisional proceeding. Unless specifically made applicable, the rules 
prescribed in subparts C and E of this part shall not apply to such 
proceedings. Parties to a proceeding forwarded pursuant to Sec.  
12.26(b) may, by signed agreement filed at any time prior to the 
issuance of the initial decision, or of any other order disposing of 
all issues in the proceeding, elect to have all of the issues in the 
proceeding decided pursuant to the voluntary decisional procedure. Upon 
receiving a timely filed stipulation signed by all parties evidencing 
such an election, the Administrative Judge shall conduct the proceeding 
and render a decision pursuant to subpart C of this part.

0
31. In Sec.  12.201, revise the section heading, the introductory text, 
and paragraphs (a) and (d) to read as follows:


Sec.  12.201  Functions and responsibilities of the Administrative 
Judge.

    The Administrative Judge shall be responsible for the fair and 
orderly conduct of the proceeding and shall have the authority--
    (a) In the Administrative Judge's discretion, to conduct pre-
decision conferences in accordance with Sec.  12.206;
* * * * *
    (d) To take such action as is appropriate under Sec.  12.35, if a 
party fails to comply with an order issued by the Administrative Judge 
pursuant to Sec.  12.34;
* * * * *

0
32. Revise Sec.  12.202 to read as follows:


Sec.  12.202   Disqualification of Administrative Judge.

    (a) At their own request. An Administrative Judge may withdraw from 
a summary decisional proceeding when they consider themselves to be 
disqualified on the grounds of personal bias, conflict of interest, or 
similar bases. In such event, the Administrative Judge shall 
immediately notify the Commission and each of the parties of the 
withdrawal and of the basis for such action.
    (b) Upon the request of a party. Any party may request an 
Administrative Judge to disqualify themselves on the grounds of 
personal bias, conflict of interest, or similar bases. Interlocutory 
review of an order denying such a request may be sought without 
certification of the matter by the Administrative Judge only in 
accordance with the procedures set forth in Sec.  12.309.

0
33. In Sec.  12.204, revise paragraphs (a) and (b) to read as follows:


Sec.  12.204  Amended and supplemental pleadings.

    (a) Amendments to pleadings. At any time before the parties have 
concluded their submission of proof, the Administrative Judge may allow 
amendments of the pleadings either upon written consent of the parties, 
or for good cause shown, provided

[[Page 64357]]

however, that any pleading as amended shall not contain an allegation 
of damages in excess of $30,000. Any party may file a response to a 
motion to amend the pleadings within ten (10) days after the date of 
service upon that party of the motion.
    (b) Supplemental pleadings. At any time before the parties have 
concluded their submissions of proof, and upon such terms as are just, 
the Administrative Judge may, upon motion by a party, permit a party to 
serve a supplemental pleading setting forth transactions, occurrences 
or events which have happened since the date of the pleadings sought to 
be supplemented and which are relevant to any of the issues in the 
proceeding: Provided however, that any pleading as supplemented may not 
contain an allegation of damages in excess of $30,000. Any party may 
file a response to a motion to supplement the pleadings within ten (10) 
days after the date of service upon that party of the motion.
* * * * *

0
34. In Sec.  12.205, revise paragraphs (a) and (b), republish the 
paragraph (c) heading, and revise paragraphs (c)(1) and (2) to read as 
follows:


Sec.  12.205   Motions.

    (a) In general. Motions for relief not otherwise specifically 
provided for in this subpart (Sec. Sec.  12.200 through 12.210), other 
than discovery-related motions and motions for extensions of time and 
similar procedural orders, shall not be allowed. Except as otherwise 
specifically provided in this subpart, all motions permitted under the 
provisions of this subpart shall be directed to the Administrative 
Judge prior to the filing of the initial decision, and to the 
Commission after the initial decision has been filed. Motions for 
extensions of time and similar procedural orders may be acted upon at 
any time, without awaiting a response thereto. Any party adversely 
affected by such action may request reconsideration, vacation or 
modification of such action.
    (b) Answer to motions. Any party may serve and file a written 
response to a motion within ten (10) days after service of the motion, 
or within such longer or shorter period as is established by the 
provisions of this part, or as the Administrative Judge or the 
Commission may direct.
    (c) Dismissal--(1) By the Administrative Judge. An Administrative 
Judge, acting upon their own motion, may:
    (i) Dismiss the entire proceeding without prejudice to 
counterclaims, if the Administrative Judge finds that the matters 
alleged in the complaint fail to state a claim cognizable in 
reparations; or
    (ii) Order dismissal of any claim, counterclaim, or party from the 
proceeding if the Administrative Judge finds, after review of the 
record, that such claim or counterclaim (by itself or as applied to any 
party) is not cognizable in reparations.
    (2) Motion for dismissal by a party. Any party who believes that 
grounds exist for dismissal of the entire complaint, or of any claim 
therein, or of any counterclaim or party from the proceeding, may file 
a motion for dismissal specifying the claims or parties to be dismissed 
and the reasons therefor. Upon consideration of the whole record, the 
Administrative Judge may grant or deny such motion, in whole or in 
part.
* * * * *

0
35. Amend Sec.  12.206 as follows:
0
a. Redesignate paragraphs (a) through (g) as paragraphs (a)(1) through 
(7);
0
b. Designate the introductory text as paragraph (a) introductory text;
0
c. Revise newly designated paragraph (a) introductory text;
0
d. Designate the undesignated paragraph following newly redesignated 
paragraph (a)(7) as paragraph (b); and
0
e. Revise newly designated paragraph (b).
    The revisions read as follows:


Sec.  12.206   Pre-decision conferences.

    (a) At any time after a summary decisional proceeding has been 
commenced pursuant to Sec.  12.26(b), the Administrative Judge may, in 
their discretion, conduct one or more pre-decision conferences to be 
held in Washington, DC, or by telephone, with all parties, for the 
purposes of:
* * * * *
    (b) At or following the conclusion of such a conference, the 
Administrative Judge may serve a pre-decision memorandum and order 
setting forth the agreements, if any, reached by the parties, any 
procedural determinations made by the Administrative Judge, and the 
issues for resolution not disposed of by the admissions or agreements 
by the parties. Such order, when issued, shall control the subsequent 
course of the proceeding unless modified to prevent injustice.

0
36. In Sec.  12.207, revise paragraphs (a), (b), (c), and (d) to read 
as follows:


Sec.  12.207   Summary disposition.

    (a) Filing of motions, answers. Any parties who believe that there 
is no genuine issue of material fact to be determined and that they are 
entitled to a decision as a matter of law concerning all issues of 
liability in the proceeding may file a motion for summary disposition 
at any time until the parties have concluded their submissions of 
proof. Any adverse party, within ten (10) days after service of the 
motion, may file and serve opposing papers or may countermove for 
summary disposition.
    (b) Supporting papers. A motion for summary disposition shall 
include a statement of the material facts as to which the moving party 
contends there is no genuine issue, supported by the pleadings, and by 
affidavits, other verified statements, admissions, stipulations, and 
interrogatories. The motion may also be supported by briefs containing 
points and authorities in support of the contention of the party making 
the motion. When a motion is made and supported as provided in this 
section, unless otherwise ordered by the Administrative Judge, adverse 
parties may not rest upon the mere allegations, but shall serve and 
file in response a statement setting forth those material facts as to 
which they contend a genuine issue exists, supported by affidavits and 
other verified material. They may also submit a brief of points and 
authorities.
    (c) Summary disposition upon motion of the Administrative Judge. If 
the Administrative Judge believes that there may be no genuine issue of 
material fact to be determined and that one of the parties may be 
entitled to a decision as a matter of law, the Administrative Judge may 
direct the parties to submit papers in support of and in opposition to 
summary disposition, substantially as provided in paragraphs (a) and 
(b) of this section.
    (d) Ruling on summary disposition. The Administrative Judge may 
grant summary disposition if the undisputed pleaded facts, affidavits, 
other verified statements, admissions, stipulations, and matters of 
official notice show that:
    (1) There is no genuine issue as to any material fact;
    (2) There is no necessity that further facts be developed in the 
record; and
    (3) A party is entitled to a decision in that party's favor as a 
matter of law.
* * * * *

0
37. In Sec.  12.208, revise paragraph (b) to read as follows:


Sec.  12.208   Submissions of proof.

* * * * *
    (b) Oral testimony and examination. The Administrative Judge may 
order an oral hearing for the presentation of testimony and examination 
of the parties and their witnesses when appropriate and necessary for 
the

[[Page 64358]]

resolution of factual issues, upon motion by either a party or the 
Administrative Judge. An oral hearing held under this section will be 
convened by conference telephone call as provided in Sec.  12.209(b), 
except that an in-person hearing may be held in Washington, DC, under 
the circumstances set forth in Sec.  12.209(c).

0
38. Revise Sec.  12.209 to read as follows:


Sec.  12.209   Oral testimony.

    (a) Generally. When the Administrative Judge determines that an 
oral hearing is necessary and appropriate, such oral hearing will be 
held either by telephone or in person in Washington, DC, as set forth 
in paragraphs (b) through (d) of this section. The Administrative 
Judge, in their discretion with consideration for the convenience of 
the parties and their witnesses, will determine the time and date of 
such hearing. During an oral hearing, in their discretion, the 
Administrative Judge may regulate appropriately the course and sequence 
of testimony and examination of the parties and their witnesses and 
limit the issues.
    (b) Telephonic hearings. When an Administrative Judge has 
determined to hold an oral hearing by telephone, an order to that 
effect will be issued at least 15 days prior to the hearing notifying 
the parties of the date and time of the hearing. The order will direct 
the parties to confirm, at least 48 hours in advance of the hearing, 
that the correct telephone numbers for the parties and their witnesses 
are on file with the Office of Proceedings, and warn that failure to 
provide correct telephone numbers may be deemed waiver of that party's 
right to participate in the hearing, to present evidence, or to cross-
examine other witnesses. If a party is unavailable by telephone at the 
appointed time, any other party in attendance may present testimony, 
and the Administrative Judge also may impose any appropriate sanction 
listed in Sec.  12.35. All telephonic hearings will be recorded 
electronically but will be transcribed only upon direction of the 
Administrative Judge (if necessary) or in the event of Commission 
review. The parties may secure a copy of the recording of the hearing 
from the Proceedings Clerk upon written request and payment of the cost 
of the recording.
    (c) Washington, DC, hearings. In exceptional circumstances and when 
an in-person hearing is determined to be necessary in resolving the 
issues, the Administrative Judge may order an in-person hearing in 
Washington, DC, upon written request by a party and the agreement of at 
least one opposing party. The Administrative Judge will issue notice of 
the time, date, and location of an in-person hearing to the parties at 
least 30 days in advance of the hearing. Except as otherwise provided 
in this section, an in-person hearing will be held and recorded in the 
manner prescribed in Sec.  12.312(c) through (f). A party not agreeing 
to appear at the hearing in Washington, DC, may be ordered to 
participate by telephone. Any party not appearing in person or by 
telephone will be deemed to have waived the right to participate in the 
hearing, to present evidence, or to cross-examine other witnesses; 
further, that party may be subject to such action under Sec.  12.35 as 
the Administrative Judge may find appropriate. The Administrative Judge 
may order any party who requests or agrees to appear at a hearing in 
Washington, DC, and fails to appear without good cause, to pay any 
reasonable costs unnecessarily incurred by parties appearing at such a 
hearing.
    (d) Compulsory process. An application for a subpoena requiring a 
non-party to participate in a telephonic hearing or to appear at an in-
person hearing in Washington, DC, may be made in writing to the 
Administrative Judge without notice to the other parties. The standards 
for issuance or denial of an application for a subpoena, the service 
and travel fee requirements, and the method for enforcing such 
subpoenas are set forth at Sec.  12.313.

0
39. In Sec.  12.210, revise paragraphs (a), (b) introductory text, 
(b)(1), and (c) to read as follows:


Sec.  12.210  Initial decision.

    (a) In general. Proposed findings of fact and conclusions of law 
briefs shall not be allowed. As soon as practicable after all 
submissions of proof have been received, the Administrative Judge shall 
make the initial decision, which will be filed forthwith with the 
Proceedings Clerk. Upon filing of an initial decision, the Proceedings 
Clerk shall immediately serve upon the parties a copy of the initial 
decision and a notification of the effect of a party's failure timely 
to appeal the initial decision to the Commission, as provided in 
paragraphs (d) and (e) of this section, as well as the effect of a 
failure by a party who has been ordered to pay a reparation award 
timely to file the documents required by Sec.  12.407(c).
    (b) Content of initial decision. In the initial decision in a 
summary decisional proceeding, the Administrative Judge shall:
    (1) Include a brief statement of the findings as to the facts, with 
reference to those portions of the record which support those findings;
* * * * *
    (c) Costs; prejudgment interest. The Administrative Judge may, in 
the initial decision, award costs (including the costs of instituting 
the proceeding, and if appropriate, reasonable attorneys' fees) and, if 
warranted as a matter of law under the circumstances of the particular 
case, prejudgment interest to the party in whose favor a judgment is 
entered.
* * * * *

0
40. Amend Sec.  12.303 as follows:
0
a. Redesignate paragraphs (a) through (g) as paragraphs (a)(1) through 
(7);
0
b. Designate the introductory text as paragraph (a) introductory text;
0
c. Revise newly designated paragraph (a) introductory text;
0
d. Designate the undesignated paragraph following newly redesignated 
paragraph (a)(7) as paragraph (b); and
0
e. Revise newly designated paragraph (b).
    The revisions read as follows:


Sec.  12.303   Pre-decision conferences.

    (a) During the time period permitted for discovery pursuant to 
Sec.  12.30(d), and thereafter, Administrative Law Judges may, in their 
discretion, conduct one or more pre-decision conferences to be held in 
Washington, DC, or by telephone, with all parties for the purposes of:
* * * * *
    (b) At or following the conclusion of a pre-decision conference, 
Administrative Law Judges may serve a pre-decision memorandum and order 
setting forth the agreements reached by the parties, any procedural 
determinations made by them, and the issues for resolution not disposed 
of by admissions or agreements by the parties. Such an order shall 
control the subsequent course of the proceeding unless modified to 
prevent injustice.

0
41. In Sec.  12.304, revise the introductory text and paragraph (e) to 
read as follows:


Sec.  12.304  Functions and responsibilities of the Administrative Law 
Judge.

    Once an Administrative Law Judge has been assigned the case, the 
Administrative Law Judge shall be responsible for the fair and orderly 
conduct of a formal decisional proceeding and shall have the authority:
* * * * *
    (e) In the Administrative Law Judge's discretion, to conduct pre-
decision conferences, for the purposes prescribed in Sec.  12.303, at 
any time after a

[[Page 64359]]

proceeding has commenced pursuant to Sec.  12.26(c);
* * * * *

0
42. Revise Sec.  12.305 to read as follows:


Sec.  12.305  Disqualification of Administrative Law Judge.

    (a) At their own request. An Administrative Law Judge may withdraw 
from a formal decisional proceeding when they consider themselves to be 
disqualified on the grounds of personal bias, conflict of interest, or 
similar bases. In such event, they shall immediately notify the 
Commission and each of the parties of the withdrawal and of the basis 
for such action.
    (b) Upon the request of a party. Any party may request an 
Administrative Law Judge to disqualify themselves on the grounds of 
personal bias, conflict of interest, or similar bases. Interlocutory 
review of an order denying such a request may be sought without 
certification of the matter by an Administrative Law Judge, only in 
accordance with the procedures set forth in Sec.  12.309.

0
43. In Sec.  12.307, revise paragraphs (a) and (b) to read as follows:


Sec.  12.307   Amended and supplemental pleadings.

    (a) Amendments to pleadings. At any time before the parties have 
concluded their submissions of proof, the Administrative Law Judge may 
allow amendments of the pleadings either upon written consent of the 
parties or for good cause shown. Any party may file a response to a 
motion to amend the pleadings within ten (10) days after the date of 
service upon that party of the motion.
    (b) Supplemental pleadings. At any time before the parties have 
concluded their submissions of proof, and upon such terms as are just, 
an Administrative Law Judge may, upon motion by a party, permit a party 
to serve a supplemental pleading setting forth transactions, 
occurrences or events which have happened since the date of the 
pleadings sought to be supplemented and which are relevant to the 
issues in the proceeding. Any party may file a response to a motion to 
supplement the pleadings within ten (10) days after the date of service 
upon that party of the motion.
* * * * *

0
44. In Sec.  12.308, revise paragraph (b), republish paragraph (c) 
heading, and revise paragraph (c)(1) to read as follows:


Sec.  12.308   Motions.

* * * * *
    (b) Answer to motions. Any party may serve and file a written 
response to a motion within ten (10) days after service of the motion 
upon that party, or within such longer or shorter period as established 
by this part, or as the Administrative Law Judge or the Commission may 
direct.
    (c) Dismissal--(1) By the Administrative Law Judge. The 
Administrative Law Judge, acting on their own motion, may, at any time 
after they have been assigned the case:
    (i) Dismiss the entire proceeding, without prejudice to 
counterclaims, if they find that none of the matters alleged in the 
complaint state a claim that is cognizable in reparations; or
    (ii) Order dismissal of any claim, counterclaim, or party from the 
proceeding if they find that such claim or counterclaim (by itself, or 
as applied to a party) is not cognizable in reparations.
* * * * *

0
45. In Sec.  12.309, revise paragraphs (a)(1), (d), and (e) to read as 
follows:


Sec.  12.309   Interlocutory review by the Commission.

* * * * *
    (a) * * *
    (1) The appeal is from a ruling pursuant to Sec.  12.102, Sec.  
12.202, or Sec.  12.305 refusing to grant a motion to disqualify an 
Administrative Judge or Administrative Law Judge;
* * * * *
    (d) Proceedings not stayed. The filing of an application for 
interlocutory review and a grant of review shall not stay proceedings 
before an Administrative Law Judge (or an Administrative Judge, if 
applicable) unless that official or the Commission shall so order. The 
Commission will not consider a motion for a stay unless the motion 
shall have first been made to the Administrative Law Judge (or, if 
applicable, the Administrative Judge) and denied.
    (e) Interlocutory review by the Commission on its own motion. 
Nothing in this section should be construed as restricting the 
Commission from acting on its own motion to review on an interlocutory 
basis any ruling of an Administrative Law Judge, Proceedings Officer or 
an Administrative Judge in any proceeding commenced pursuant to Sec.  
12.26.

0
46. In Sec.  12.310, revise paragraphs (a), (b), and (d) to read as 
follows:


Sec.  12.310   Summary disposition.

    (a) Filing of motions, answers. Any parties who believe that there 
is no genuine issue of material fact to be determined and that they are 
entitled to a decision as a matter of law concerning all issues of 
liability in the proceeding may file a motion for summary disposition 
at any time before a determination is made by the Administrative Law 
Judge to order an oral hearing in the proceeding. Any adverse party, 
within ten (10) days after service of the motion, may file and serve 
opposing papers or may countermove for summary disposition.
    (b) Supporting papers. A motion for summary disposition shall 
include a statement of all material facts as to which the moving party 
contends that there is no genuine issue, supported by the pleadings, 
and by affidavits, other verified statements, admissions, stipulations, 
and interrogatories. The motion may also be supported by briefs 
containing points and authorities in support of the contention of the 
party making the motion. When a motion is made and supported as 
provided in this section, unless otherwise ordered by the 
Administrative Law Judge, an adverse party may not rest upon the mere 
allegations, but shall serve and file in response a statement setting 
forth those material facts as to which the adverse party contends a 
genuine issue exists, supported by affidavits and other verified 
material. The adverse party may also submit a brief of points and 
authorities.
* * * * *
    (d) Summary disposition upon motion of the Administrative Law 
Judge. If the Administrative Law Judge believes that there may be no 
genuine issue of material fact to be determined and that one of the 
parties may be entitled to a decision as a matter of law, the 
Administrative Law Judge may direct the parties to submit papers in 
support of and in opposition to summary disposition, and may hear oral 
argument, substantially as provided in paragraphs (a), (b), and (c) of 
this section.
* * * * *

0
47. Revise Sec.  12.311 to read as follows:


Sec.  12.311  Disposing of proceeding or issues without oral hearing.

    If the Administrative Law Judge determines that the documentary 
proof and other tangible forms of proof submitted by the parties are 
sufficient to permit resolution of some or all of the factual issues in 
the proceeding without the need for oral testimony, the Administrative 
Law Judge may order that all proof relating to such issues be submitted 
in documentary and tangible form, and dispose of such issues without an 
oral hearing. In such an

[[Page 64360]]

event, proof in support of the complaint, answer, and reply, may be 
found in those verified documents, in depositions on written 
interrogatories, in admissible documents obtained through discovery, in 
other verified statements of fact, documents, and tangible evidence.

0
48. In Sec.  12.312, revise paragraphs (b) introductory text, (b)(2), 
(d)(1), (2), and (4), and (g) to read as follows:


Sec.  12.312   Oral hearing.

* * * * *
    (b) Location of hearing. Unless the Director of the Office of 
Proceedings for reasons of administrative economy or practical 
necessity determines otherwise, and except as provided in this 
paragraph (b), the location of an oral hearing shall be in one of the 
following cities: Albuquerque, N.M.; Atlanta, Ga.; Boston, Mass.; 
Chicago, Ill.; Cincinnati, Ohio; Columbia, S.C.; Denver, Colo.; 
Houston, Tex.; Kansas City, Mo.; Los Angeles, Cal.; Minneapolis, Minn.; 
New Orleans, La.; New York, N.Y.; Oklahoma City, Okla.; Phoenix, Ariz.; 
San Diego, Cal.; San Francisco, Cal.; Seattle, Wash.; St. Petersburg, 
Fla.; and Washington, DC. The Administrative Law Judge may, in any case 
where a party avers, in an affidavit, that none of the foregoing cities 
is located within 300 miles of the party's principal residence, waive 
this paragraph (b) and, upon giving due regard for the convenience of 
all of the parties, order that the hearing be held in a more convenient 
locale.
* * * * *
    (2) Effect of failure to appear. If any party to the proceeding 
fails to appear at the hearing, or at any part thereof, the non-
appearing party shall to that extent be deemed to have waived the 
opportunity for an oral hearing in the proceeding. The Administrative 
Law Judge, for just cause, may take such action as is appropriate 
pursuant to Sec.  12.35 against a party who fails to appear at the 
hearing. In the event that a party appears at the hearing and no party 
appears for the opposing side, the party who is present may present 
evidence, in whole or in part, in the form of affidavits or by oral 
testimony, before the Administrative Law Judge.
* * * * *
    (d) * * *
    (1) Conduct direct and cross-examination of parties and witnesses. 
All witnesses at a hearing for the purpose of taking evidence shall 
testify under oath or affirmation, which shall be administered by the 
Administrative Law Judge. Unless otherwise ordered by the 
Administrative Law Judge, parties shall be entitled to present oral 
direct testimony and other documentary proof, and to conduct direct 
examination and cross examine adverse parties and witnesses. To 
expedite the hearing, the Administrative Law Judge may, in their 
discretion, order that the direct testimony of the parties and their 
witnesses be presented in documentary form, by affidavit, 
interrogatory, and other documents. In any event, the Administrative 
Law Judge, in their discretion, may permit cross examination, without 
regard to the scope of direct testimony, as to any matter which is 
relevant to the issues in the proceeding;
    (2) Introduce exhibits. The original of each exhibit introduced in 
evidence or marked for identification shall be filed unless the 
Administrative Law Judge permits the substitution of copies for the 
original documents. A copy of each exhibit introduced by a party or 
marked for identification shall be supplied by the introducing party to 
the Administrative Law Judge and to each other party to the proceeding. 
Exhibits shall be maintained by the reporter who shall serve as 
custodian of the exhibits until they are transmitted to the Proceedings 
Clerk pursuant to paragraph (f) of this section;
* * * * *
    (4) Make offers of proof. When an objection to a question 
propounded to a witness is sustained, examiners may make a specific 
offer of what they expect to prove by the answer of the witness. 
Rejected exhibits, adequately marked for identification, shall be 
retained in the record so as to be available for consideration by any 
reviewing authority.
* * * * *
    (g) Proposed findings of fact and conclusions of law; briefs. An 
Administrative Law Judge, upon their own motion or upon motion of a 
party, may permit the filing of post-hearing proposed findings of fact 
and conclusions of law. Absent an order permitting such findings and 
conclusions, none shall be allowed. Unless otherwise ordered by the 
Administrative Law Judge and for good cause shown, the proposed 
findings and conclusions (including briefs in support thereof), shall 
not exceed twenty-five (25) pages and shall be filed not later than 
forty-five (45) days after the close of the oral hearing.

0
49. In Sec.  12.313, revise paragraphs (a)(2) and (b)(3), republish 
paragraph (c) heading, and revise paragraphs (c)(1) and (2) and 
(c)(3)(ii) to read as follows:


Sec.  12.313   Subpoenas for attendance at an oral hearing.

    (a) * * *
    (2) Standards for issuance or denial of subpoenas. The 
Administrative Law Judge considering any application for a subpoena 
shall issue the subpoena if they are satisfied the application complies 
with this section and the request is not unreasonable, oppressive, 
excessive in scope or unduly burdensome. In the event they determine 
that a requested subpoena or any of its terms is unreasonable, 
oppressive, excessive in scope, or unduly burdensome, the 
Administrative Law Judge may refuse to issue the subpoena, or may issue 
it only upon such conditions as they determine fairness requires.
    (b) * * *
    (3) Rulings. The motion shall be decided by the Administrative Law 
Judge and the order shall provide such terms and conditions for the 
production of the material, the disclosure of the information, or the 
appearance of the witnesses as may appear necessary and appropriate for 
the protection of the public interest.
    (c) Service of subpoenas--(1) How effected. Service of a subpoena 
upon a party shall be made in accordance with Sec.  12.10. Service of a 
subpoena upon any other person shall be made by delivering a copy of 
the subpoena to them as provided in paragraph (c)(2) or (3) of this 
section, and by tendering to them the fees for one day's attendance and 
the mileage as specified in paragraph (e) of this section. When the 
subpoena is issued at the instance of any officer or agency of the 
United States, fees and mileage need not be tendered at the time of 
service.
    (2) Service upon a natural person. Delivery of a copy of a subpoena 
and tender of fees and mileage to a natural person may be effected by:
    (i) Handing them to the person;
    (ii) Leaving them at the person's office with the person in charge 
thereof or, if there is no one in charge, by leaving the subpoena in a 
conspicuous place therein;
    (iii) Leaving them at the person's dwelling place or usual place of 
abode with some person of suitable age and discretion then residing 
therein;
    (iv) Mailing them by registered or certified mail to them at their 
last known address; or
    (v) Any other method whereby actual notice is given to the person 
and the fees and mileage are timely made available.
    (3) * * *

[[Page 64361]]

    (ii) Mailing them by registered or certified mail to any such 
representative at the person's last known address; or
* * * * *

0
50. In Sec.  12.314, revise paragraphs (a) and (b)(1) to read as 
follows:


Sec.  12.314   Initial decision.

    (a) In general. The Administrative Law Judge as soon as practicable 
after the parties have completed their submissions of proof, or after 
the conclusion of an oral hearing if one is held, shall render the 
initial decision, which shall forthwith be filed with the Proceedings 
Clerk, and a copy of which shall be served immediately by the 
Proceedings Clerk upon each of the parties. The Proceedings Clerk shall 
also serve a notice, to accompany the initial decision, of the effect 
of a party's failure timely to appeal to the Commission the initial 
decision, as provided in paragraphs (d) and (e) of this section, and 
the effect of a failure of a party who has been ordered to pay a 
reparation award timely to file the documents required by Sec.  
12.407(c).
    (b) * * *
    (1) Include a brief statement of findings as to the facts, with 
references to those portions of the record which support those 
findings;
* * * * *

0
51. Revise Sec.  12.402 to read as follows:


Sec.  12.402   Appeal of disposition of less than all claims or parties 
in a proceeding.

    (a) In general. Where two or more different claims for relief are 
presented, or where multiple parties are involved, in a proceeding 
forwarded pursuant to Sec.  12.26(b) or (c), the Administrative Judge 
or Administrative Law Judge, may upon the Judge's own motion or by 
motion of a party, direct that an initial decision or other order 
disposing of one or more, but fewer than all of the claims or parties, 
shall be final and immediately appealable to the Commission. Such a 
direction may be made only upon an express determination that there is 
no just reason for delay. When such a direction is made, a party may 
appeal the initial decision or order in accordance with the procedure 
prescribed by Sec.  12.401.
    (b) When decision is not appealable. In the absence of such a 
direction by the Administrative Judge or an Administrative Law Judge, 
an initial decision or order disposing of fewer than all of the claims 
or all of the parties shall be subject to revision by the decisionmaker 
at any time before a disposition is made of all remaining claims or 
parties, and no appeal may be taken to the Commission pursuant to this 
section.

0
52. Revise Sec.  12.405 to read as follows:


Sec.  12.405  Leave to adduce additional evidence.

    Any time prior to issuance of its final decision pursuant to Sec.  
12.406, the Commission may, after notice to the parties and an 
opportunity for them to present their views, reopen the hearing to 
receive further evidence. The application shall show to the 
satisfaction of the Commission that the additional evidence is 
material, and that there were reasonable grounds for failure to adduce 
such evidence at the hearing. The Commission may receive the additional 
evidence or may remand the proceeding to the Administrative Judge or 
Administrative Law Judge to receive the additional evidence.

0
53. In Sec.  12.407, revise paragraphs (c) introductory text and (d) to 
read as follows:


Sec.  12.407   Satisfaction of reparation award; enforcement; 
sanctions.

* * * * *
    (c) Automatic suspension. A person required to pay a reparation 
award shall be prohibited from trading on all contract markets and if 
such person is registered, the registration shall be suspended 
automatically, without further notice, unless such person shall, within 
fifteen (15) days after the time limit for satisfaction of an award (as 
prescribed in paragraph (a) or (b) of this section) expires, file with 
the Proceedings Clerk and serve on the other parties:
* * * * *
    (d) Reinstatement. The sanctions imposed in accordance with 
paragraph (c) of this section shall remain in effect until the person 
required to pay the reparation award demonstrates to the satisfaction 
of the Commission that the amount required has been paid in full 
including prejudgment interest if awarded and post-judgment interest at 
the prevailing rate computed in accordance with 28 U.S.C. 1961 from the 
date directed in the final order to the date of payment, compounded 
annually. In the event an award of post-judgment interest is 
inadvertently omitted, such interest nevertheless shall run as 
calculated in accordance with 28 U.S.C. 1961 and the rules in this 
part.
* * * * *

0
54. In Sec.  12.408, revise the introductory text and paragraphs (a)(2) 
introductory text, (a)(2)(ii) and (iii), (a)(3), (4), and (6), and (b) 
to read as follows:


Sec.  12.408  Delegation of authority to the General Counsel.

    Pursuant to the authority granted under section 2(a)(4) and 
2(a)(11) of the Commodity Exchange Act, as amended, 7 U.S.C. 4a(c) and 
4a(j), the Commission hereby delegates, until such time as it orders 
otherwise, the following functions to the General Counsel, to be 
performed by them, or such person or persons under their direction as 
they may designate from time to time:
    (a) * * *
    (2) Remand, with or without specific instructions, initial 
decisions or other orders disposing of the entire proceeding to the 
appropriate officer (Director of the Office of Proceedings, 
Administrative Judge, or Administrative Law Judge) in the following 
situations--
* * * * *
    (ii) Where, in their judgment, clarification or supplementation of 
an initial decision or other order disposing of the entire proceeding 
prior to Commission review is appropriate; and
    (iii) Where, in their judgment, a ministerial act necessary to the 
proper conduct of the proceeding has not been performed;
    (3) Deny applications for interlocutory review by the Commission of 
a ruling of an Administrative Judge or Administrative Law Judge in 
cases in which the Administrative Judge or Administrative Law Judge has 
not certified the ruling to the Commission in the manner prescribed by 
Sec.  12.309, and the ruling does not concern the disqualification of, 
or a motion to disqualify, an Administrative Judge or Administrative 
Law Judge, or the suspension of, or failure to suspend, an attorney 
from participating in reparation proceedings;
    (4) Dismiss any appeal from an initial decision or other 
disposition of the entire proceeding by an Administrative Law Judge (or 
Administrative Judge), in a proceeding where such appeal is not filed 
or perfected in accordance with Sec.  12.401, and deny any application 
for interlocutory review if it is not filed in accordance with Sec.  
12.309;
* * * * *
    (6) Enter any order that, in their judgment, will facilitate or 
expedite Commission review of an initial decision or other order 
disposing of the entire proceeding.
    (b) Notwithstanding the provisions of paragraph (a) of this 
section, in any case in which the General Counsel believes it 
appropriate, the General Counsel or their designee may submit the 
matter to the Commission for its consideration.
* * * * *


[[Page 64362]]


    Issued in Washington, DC, on November 3, 2021, by the 
Commission.
Christopher Kirkpatrick,
Secretary of the Commission.

    Note:  The following appendix will not appear in the Code of 
Federal Regulations.

Appendix to Changing Position Title of Judgment Officer to 
Administrative Judge--Commission Voting Summary

    On this matter, Acting Chairman Behnam and Commissioners Stump 
and Berkovitz voted in the affirmative.* No Commissioner voted in 
the negative.
---------------------------------------------------------------------------

    * Commissioner Berkovitz submitted his written vote on this 
matter prior to departing the Commission on October 15, 2021.

[FR Doc. 2021-24449 Filed 11-17-21; 8:45 am]
BILLING CODE 6351-01-P