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e8-25354

  • FR Doc E8-25354[Federal Register: October 24, 2008 (Volume 73, Number 207)]

    [Rules and Regulations]

    [Page 63359-63361]

    From the Federal Register Online via GPO Access [wais.access.gpo.gov]

    [DOCID:fr24oc08-8]

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    COMMODITY FUTURES TRADING COMMISSION

    17 CFR Parts 10 and 12

    RIN 3038-AC50

    Proceedings Before the Commodity Futures Trading Commission

    AGENCY: Commodity Futures Trading Commission.

    ACTION: Final rule.

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    SUMMARY: The Commodity Futures Trading Commission (``Commission'') is

    amending its Rules of Practice and Rules Relating to Reparation

    Proceedings, respectively, to standardize service and filing by

    electronic means. The amendments also revise rules regarding formatting

    requirements of reparations documents filed with the Proceedings Clerk.

    DATES: Effective October 24, 2008.

    FOR FURTHER INFORMATION CONTACT: Thuy Dinh, Office of General Counsel,

    Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st

    Street, NW., Washington, DC 20581. Telephone: (202) 418-5128.

    SUPPLEMENTARY INFORMATION: Personal delivery and delivery by U.S. mail

    are the manners of filing and service authorized in proceedings under

    17 CFR Part 12. Since 1998, Part 10 of the Commission Rules has

    provided an additional means--service by fax. Up to now, neither Parts

    10 nor 12 have provided for service by e-mail. In keeping with the

    demands of today's world, and especially in light of cautionary

    measures used in the post-September 11 climate that have slowed

    incoming mail to the agency, the Commission proposes to authorize fax

    and e-mail as additional manners of filing and service, to: (1) Avoid

    undue delay; (2) take advantage of technological developments, which

    will be faster and less costly than the mails; and (3) streamline

    procedures.

    The Commission and the federal government overall are engaged in

    ongoing efforts to use technology to increase efficiency. Since March

    2000, the Commission has allowed customers, clients of Commission

    registrants and commodity pool participants to sign electronically

    certain documents required under the Commodity Exchange Act (``CEA''),

    7 U.S.C. 1 et seq. and Commission Rules. See, e.g., 17 CFR 1.3(tt) and

    1.4 (rules dealing with electronic signatures). In May 2000, the Office

    of Management and Budget issued a Guide on Implementation of the

    Government Paperwork Elimination Act (``GPEA'') at 65 FR 255508, 2000

    WL 517619. More recently, on July 25, 2007, the Commission, acting on a

    request made by the National Futures Association (``NFA''), amended 17

    CFR 171.9(b) to allow for service by fax and e-mail in appeals from NFA

    actions. Thus, the amendments complement existing Commission Rules and

    government policy dealing with electronic submissions.

    All of the amendments under Parts 10 and 12 make filing and service

    by fax and e-mail effective upon transmission. While authorizing these

    electronic means of filing and service, the Commission wishes to make

    clear that these options may be used on a case-by-case basis at the

    discretion of the Presiding Officer, with the parties' consent. Signed

    documents filed or served by electronic means must be in PDF or other

    non-alterable form. With respect to Part 12, when a document to be

    filed requires the concurrent submission of a filing fee, filing is not

    complete until the fee has been paid. See Commission Rule 12.25.

    The Part 12 amended rules also allow filing and service by

    commercial package delivery service, which is already allowed under the

    Part 10 rules. To harmonize Parts 10 and 12, when documents are served

    by mail, the length of time within which a party being served in a Part

    10 proceeding may respond is extended from three (3) extra days as Part

    10 currently provides, to five (5) extra days, as provided in Part 12.

    The amendments affect the Rules' provisions respecting service upon

    parties by the Proceedings Clerk on behalf of the Commission, i.e.,

    Commission Rules 10.12(b) and 12.10(a)(3), providing that the

    Commission, in its discretion and with

    [[Page 63360]]

    due consideration for the convenience of the parties, may serve

    documents (i.e., rulings, opinions and orders) to the parties by

    electronic means.

    The amendments also update Commission Rules 12.11(a) and (c) for

    filing hard copy pleadings. For example, outdated requirements such as

    references to mimeographed filings are hereby removed from the rule.

    Related Matters

    A. No Notice Is Required Under 5 U.S.C. 553

    The Commission has determined that these amendments are exempt from

    the provisions of the Administrative Procedure Act, 5 U.S.C. 553, which

    generally require notice of proposed rulemaking and provide other

    opportunities for public participation. According to the exemptive

    language of 5 U.S.C. 553, these amendments pertain to ``rules of agency

    organization, procedure, or practice,'' as to which there exists agency

    discretion not to provide notice. In addition, notice and public

    procedure are unnecessary in this case because the proposed amendments

    are self-explanatory. If made effective immediately, they will promote

    efficiency and facilitate the Commission's core mission without

    imposing a new burden. For the above reasons, the notice requirements

    under 5 U.S.C. 553 are inapplicable.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601 et seq.,

    requires agencies with rulemaking authority to consider the impact

    those rules will have on small businesses. With respect to persons

    seeking Commission review of final exchange and NFA decisions, and

    initial decisions in reparation and administrative enforcement matters,

    the amendments impose no additional burden and in fact ease existing

    burdens by providing more options, greater certainty and increased

    predictability concerning filing and service. Accordingly, the Acting

    Chairman, on behalf of the Commission, hereby certifies, pursuant to 5

    U.S.C. 605(b), that the amendments will not have a significant economic

    impact on a substantial number of small businesses.

    C. Paperwork Reduction Act

    The amendments to Parts 10 and 12 do not impose a burden within the

    meaning and intent of the Paperwork Reduction Act of 1980, 44 U.S.C.

    3501, et seq.

    D. Cost-Benefit Analysis

    Section 15(a) of the Act, 7 U.S.C. 19(a), requires the Commission

    to consider the costs and benefits of its action before issuing a new

    regulation. The Commission understands that, by its terms, Section

    15(a) does not require the Commission to quantify the costs and

    benefits of a new regulation or to determine whether the benefits of

    the proposed regulation outweigh its costs. Nor does it require that

    each proposed rule be analyzed in isolation when that rule is a

    component of a larger package of rules or rule revisions. Rather,

    Section 15(a) simply requires the Commission to ``consider the costs

    and benefits'' of its action.

    Section 15(a) further specifies that costs and benefits shall be

    evaluated in light of five broad areas of market and public concern:

    (1) Protection of market participants and the public; (2) efficiency,

    competitiveness, and financial integrity of futures markets; (3) price

    discovery; (4) sound risk management practices; and (5) other public

    interest considerations. Accordingly, the Commission can, in its

    discretion, give greater weight to any one of the five enumerated areas

    of concern and can, in its discretion, determine that notwithstanding

    its costs, a particular rule is necessary or appropriate to protect the

    public interest or to effectuate any of the provisions, or accomplish

    any of the purposes, of the Commodity Exchange Act.

    The amendments to Parts 10 and 12 will not create any significant

    change in the Commission's adjudicatory process. In fact, the

    amendments will enhance the protection of market participants and the

    public by making filing and service more certain, faster and cheaper.

    The amendments do not bear directly upon the risk-benefit factors but

    simply increase the efficiency of litigation that arises pursuant to

    the operation of futures markets.

    List of Subjects in 17 CFR Parts 10 and 12

    Administrative practice and procedure, Commodity futures.

    0

    In consideration of the foregoing, the Commission amends Chapter I of

    Title 17 of the Code of Federal Regulations as follows:

    PART 10--RULES OF PRACTICE

    0

    1. The authority citation for Part 10 is revised read as follows:

    Authority: Pub. L. 93-463, sec. 101(a)(11), 88 Stat. 1391; 7

    U.S.C. 2(a)(12).

    0

    2. Section 10.12 is amended by revising paragraphs (a)(2), (b) and

    (d)(1) to read as follows:

    Sec. 10.12 Service and filing of documents; form and execution

    (a) * * *

    (2) How service is made. Service shall be made by:

    (i) Personal service;

    (ii) First-class or a more expeditious form of United States mail

    or a similar commercial package delivery service;

    (iii) Transmitting the documents via facsimile machine (``fax'');

    or

    (iv) Via electronic mail (``e-mail'').

    (v) Service shall be complete at the time of personal service; upon

    deposit in the mail or with a similar commercial package delivery

    service of a properly addressed document for which all postage or

    delivery service fees have been paid; or upon transmission by fax or e-

    mail. Where a party effects service by mail or similar package delivery

    service (but not by fax or e-mail), the time within which the party

    being served may respond shall be extended by five (5) days. Service by

    fax or e-mail shall be permitted at the discretion of the Presiding

    Officer, with the parties' consent. Signed documents that are served by

    e-mail must be in PDF or other non-alterable form.

    * * * * *

    (b) Service of decisions and orders. A copy of all rulings,

    opinions and orders of the Administrative Law Judge and the Commission

    shall be served by the Proceedings Clerk on each of the parties. The

    Commission, in its discretion and with due consideration for the

    convenience of the parties, may serve the aforementioned documents to

    the parties by electronic means.

    * * * * *

    (d) Filing of documents with the Proceedings Clerk. (1) All

    documents which are required to be served upon a party shall be filed

    concurrently with the Proceedings Clerk. A document shall be filed by

    delivering it in person or by certified or registered mail with return

    receipt requested to Proceedings Clerk, Office of Proceedings, Three

    Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581; or

    faxing the document to (202) 418-5532 or e-mailing it to (PROC_

    Filings@cftc.gov) 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

    (PROC_Filings@cftc.gov), directed to the Proceedings Clerk. Electronic

    filing and service in a given case shall be at the discretion of the

    Presiding Officer, with the parties' consent. Signed documents that are

    served by e-mail attachment must be in PDF or other non-alterable form.

    To be timely filed under this part, a document must be delivered;

    mailed by first-class or a more expeditious form of United States mail

    or a similar commercial package delivery service; or faxed or e-mailed

    to the Proceedings Clerk within the time prescribed for filing. Proof

    of filing shall be made by attaching to the document to be filed an

    affidavit certifying that the attached document was either deposited in

    the mail or with the commercial package delivery service, with postage

    or delivery service fees prepaid, addressed to the Proceedings Clerk,

    Office of Proceedings, Three Lafayette Centre, 1155 21st Street, NW.,

    Washington, DC 20581; or faxed or e-mailed to the Proceeding Clerk on

    the date specified in the affidavit. Proof of service of a document

    shall be made by filing with the Proceedings Clerk, simultaneously with

    the filing of the required document, an affidavit of service executed

    by any person 18 years of age or older or a certificate of service

    executed by an attorney-at-law qualified to practice before the

    Commission. The proof of service shall identify the persons served,

    state that service has been made, set forth the date of service, and

    recite the manner of service.

    (3) Service of orders and decisions. A copy of all notices,

    rulings, opinions, and orders of the Proceedings Clerk, the Director of

    the Office of Proceedings, a Judgment Officer, Administrative Law

    Judge, the Deputy General Counsel for Opinions and Review or the

    Commission shall be served by the Proceedings Clerk on each of the

    parties. The Commission, in its discretion and with due consideration

    for the convenience of the parties, may serve the aforementioned

    documents to the parties by electronic means.

    (b) How service is made. (1) Service shall be made by:

    (i) Personal service;

    (ii) First-class or a more expeditious form of United States mail

    or a similar commercial package delivery service;

    (iii) Fax; or

    (iv) E-mail in accordance with the conditions set forth in

    paragraph (a)(2) of this section.

    (v) Service shall be complete at the time of personal service upon

    deposit in the mail or with a commercial package delivery service of a

    properly addressed document for which postage or delivery service fees

    have been prepaid; or upon transmission by fax or e-mail. Where service

    is effected by mail or a commercial package delivery service (but not

    by fax or e-mail), the time within which the person served may respond

    thereto shall be increased by five (5) days. Signed documents that are

    served by e-mail attachment must be in PDF or other non-alterable form.

    For the purposes of this Rule, service of any document by the

    Proceedings Clerk upon the Commission shall be regarded as service by

    mail.

    * * * * *

    0

    3. Section 12.11 is amended by revising paragraphs (a) and (c) to read

    as follows:

    Sec. 12.11 Formalities of filing of documents with the Proceedings

    Clerk.

    (a) Number of copies. Unless otherwise specifically provided, or

    unless filed by fax or e-mail in accordance with the requirements of

    Sec. 12.10(a)(2), an original and one conformed copy of all documents

    shall be filed with the Proceedings Clerk.

    * * * * *

    (c) Format. All documents filed under the Reparation Rules shall be

    typewritten, printed, or, if a party is not represented by counsel, in

    plainly legible handwriting. Documents sent in hardcopy must be on good

    quality white paper, 8\1/2\ by 11\1/2\ inches and bound at the top

    only. Documents e-mailed in accordance with the requirements of Sec.

    12.10(a)(2) must be in PDF or other non-alterable form. All documents

    must be double-spaced, except for quotations more than 3 lines and

    footnotes, both of which should be single-spaced.

    * * * * *

    Issued in Washington, DC, on the 8th of October 2008, by the

    Commission.

    David A. Stawick,

    Secretary of the Commission.

    [FR Doc. E8-25354 Filed 10-23-08; 8:45 am]

    BILLING CODE 6351-01-P

    Last Updated: April 16, 2009



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