PART 12—RULES RELATING TO REPARATIONS Authority: 7 U.S.C. 2(a)(12), 12a(5), and 18. Source: 49 FR 6621, Feb. 22, 1984, unless otherwise noted. Subpart A—General Information and Preliminary Consideration of Pleadings § 12.1 Scope and applicability of rules of practice relating to reparations. (a) Part 12 Reparation Rules. (b) Other rules of practice. (c) Applicability of these part 12 Reparation Rules. [49 FR 6621, Feb. 22, 1984, as amended at 59 FR 9635, Mar. 1, 1994] § 12.2 Definitions. For purposes of this part: Act et seq. Administrative Judge Administrative Law Judge Commission Commission decisional employee Complainant Complaint Counterclaim Director of the Office of Proceedings Ex parte communication (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 Hearing Interested person Office of the General Counsel Office of Proceedings Order Party Person Pleading Proceeding Proceedings Clerk Punitive damages Registrant (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 Respondent Summary decisional procedure Voluntary decisional procedure [86 FR 64350, Nov. 18, 2021, as amended at 89 FR 71808, Sept. 4, 2024] § 12.3 Business address; hours. The Office of Proceedings is located at the Commission's Washington, DC headquarters. Faxes must be sent to (202) 418-5532, and emails must be sent to [email protected]. [78 FR 12936, Feb. 26, 2013, as amended at 89 FR 71808, Sept. 4, 2024] § 12.4 Suspension, amendment, revocation and waiver of rules. (a) Suspension or change of rules. Federal Register. (b) Commission waiver of procedures. § 12.5 Computation of time. (a) In general. (b) Date of service of orders. [49 FR 6621, Feb. 22, 1984, as amended at 57 FR 20638, May 14, 1992; 86 FR 64351, Nov. 18, 2021] § 12.6 Extensions of time; adjournments; postponements. (a) In general. (b) Motions for extension of time. [49 FR 6621, Feb. 22, 1984, as amended at 57 FR 20638, May 14, 1992; 59 FR 9636, Mar. 1, 1994; 86 FR 64352, Nov. 18, 2021] § 12.7 Ex parte communications in reparation proceedings. (a) Prohibitions against ex parte communications. ex parte (2) No Commissioner, Administrative Law Judge, or Commission decisional employee shall make or knowingly cause to be made to any interested person outside the Commission an ex parte (b) Procedures for handling ex parte communications. ex parte (1) Place on the public record of the proceeding: (i) All such written communications; (ii) Memoranda stating the substance of all such oral communications; and (iii) All written responses, and memoranda stating the substance of all oral responses, to the materials described in paragraphs (b)(1) (i) and (ii) of this section; and (2) Promptly give written notice of such communication and responses thereto to all parties to the proceedings to which the communication or responses relate. (c) Sanctions. ex parte (2) Any attorney or accountant who knowingly makes or knowingly causes to be made, or who knowingly solicits or knowingly causes the solicitation of, an ex parte (3) Any Commissioner, Administrative Law Judge, or Commission decisional employee who knowingly makes or knowingly causes to be made, or who knowingly solicits or knowingly causes the solicitation of, an ex parte (d) Applicability of prohibitions and sanctions against ex parte communications. ex parte (i) To any person who has actual knowledge that a proceeding has been or will be commenced by order of the Commission; and (ii) To all persons after public notice has been given that a proceeding has been or will be commenced by order of the Commission. (2) The prohibitions of this section shall remain in effect until a final order has been entered in the proceeding which is no longer subject to review by the Commission or to appellate review by a court. [49 FR 6621, Feb. 22, 1984, as amended at 59 FR 9636, Mar. 1, 1994; 86 FR 64352, Nov. 18, 2021] § 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. [86 FR 64352, Nov. 18, 2021] § 12.9 Practice before the Commission. (a) Practice By non-attorneys. pro se bona fide (2) By attorneys. (b) Debarment of counsel or representative during the course of a proceeding. Provided, (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. (c) Withdrawal of representation. pro se, [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64352, Nov. 18, 2021] § 12.10 Service. (a) General requirements When service is required; number of copies. (2) How service is made. (i) Personal service; (ii) First-class or a more expeditious form of United States mail or an overnight or similar commercial delivery service; (iii) Facsimile (“fax”); or (iv) Electronic mail (“email”). (3) Service by fax or email shall be permitted at the discretion of the Presiding Officer, with the parties' consent. The consent of a party must specify the email address or fax number to be used. Signed documents that are served by email attachment must be in PDF or other non-alterable form. (4) Service will be complete at the time of personal service; upon deposit in the mail or with an overnight or similar commercial delivery service of a properly addressed document for which all postage or delivery service fees have been paid; or upon transmission by fax or email. Service by email or by fax will not be effective if the party making service learns that the attempted service did not reach the person to be served. (5) Where service is effected by mail or commercial delivery service (but not by fax or email), the time within which the person served may respond thereto shall be extended by five (5) days. (6) Statement of Service. (i) Confirms that service has been made; (ii) Identifies each person served; (iii) Sets forth the date of service; and (iv) Recites the manner of service. (b) Service of orders and decisions. (c) Designation of person to receive service. [78 FR 12936, Feb. 26, 2013, as amended at 86 FR 64352, Nov. 18, 2021] § 12.11 Formalities of filing of documents with the Proceedings Clerk. (a) If a party files by personal delivery or mail, an original of all documents shall be filed with the Proceedings Clerk. If a party files a document by fax or email in accordance with § 12.10(a)(2), they should not also send paper copies. (b) First page. (c) Format. (d) Signature Manner. (2) Effect. (i) They have read the document and know the contents thereof; (ii) If executed in any representative capacity, it was done with full power and authority to do so; (iii) To the best of their knowledge, information and belief, every statement contained in the document is true and not misleading; and (iv) The document has been filed in good faith and has not been filed to cause delay. (e) Length and form of briefs. (f) All documents which are required to be served upon a party shall be filed concurrently with the Proceedings Clerk. A document shall be filed by delivering it in person or by first-class mail or a more expeditious form of United States mail or by overnight or similar commercial delivery service to Proceedings Clerk, Office of Proceedings, at the Commission's Washington, DC headquarters; or faxing the document to (202) 418-5532; or emailing it to [email protected] (g) To be timely filed under this part, a document must be delivered in person; mailed by first-class or a more expeditious form of United States mail or by an overnight or similar commercial delivery service; or faxed or emailed to the Proceedings Clerk within the time prescribed for filing. [78 FR 12936, Feb. 26, 2013, as amended at 86 FR 64352, Nov. 18, 2021; 89 FR 71808, Sept. 4, 2024] § 12.12 Signature. (a) By whom. (1) By the person or persons on whose behalf they are tendered for filing; (2) By a general partner, officer or director of a partnership, corporation, association, or other legal entity; or (3) By an attorney-at-law having authority with respect thereto. The Proceedings Clerk may require appropriate evidence of the authority of a person subscribing a document on behalf of another person. (b) Effect. (1) They have read the document subscribed and know the contents thereof; (2) If executed in any representative capacity, it was done with full power and authority to do so; (3) To the best of their knowledge, information, and belief, every statement contained in the document is true and not misleading; and (4) The document is not being interposed for delay. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64352, Nov. 18, 2021] § 12.13 Complaint; election of procedure. (a) In general. (b) Form of complaint. (1) Content. (i) The name, residence address, and telephone number (during business hours) of the complainant; (ii) The name, address, and telephone number, if known, of each person alleged in the complaint to have violated the Act or any rule, regulation or order thereunder; (iii) If known, the specific provisions of the Act, rule, regulation, or order claimed to have been violated; (iv) A complete description of complainant's case, including, but not limited to: (A) A description of all relevant facts concerning each and every act or omission which it is claimed constitutes a violation of the Act; and (B) A description of all facts which show or tend to show the manner in which it is claimed that the complainant was injured by the alleged violations; (v) The amount of damages the complainant claims to have suffered and the method by which those damages have been computed, the amount of punitive damages (no more than two times the amount of such actual damages) the complainant claims, if any, and how complainant plans to demonstrate that punitive damages are appropriate; (vi) A statement indicating whether an arbitration proceeding or civil court litigation, based on the same set of facts set forth and involving any party named as a respondent in the complaint, has been instituted, and whether such a proceeding has reached a final disposition or is presently pending; (vii) A statement indicating whether any of the respondents is the subject of receivership or bankruptcy proceedings that are presently pending; (viii) An election of a decisional procedure pursuant to subpart C, D, or E. (A procedure pursuant to subpart D may be elected only if the total amount of damages claimed, exclusive of interest and costs, does not exceed $30,000. A procedure pursuant to subpart E may be elected only if the total amount claimed as damages, exclusive of interest and costs, exceeds $30,000); and (ix) A filing fee in the amount prescribed by § 12.25 of these rules shall be submitted with the complaint at the time of its filing. (2) Subscription and verification of the complaint. (3) Time and place of filing of complaint. (4) Bond required if complainant is nonresident; filing date of nonresident's complaint. (A) A bond in double the amount of the claim either with a surety company approved by the Treasury Department of the United States or two personal sureties, each of whom shall be a citizen of the United States and shall qualify as financially responsible for the entire amount of the bond, which bond shall run to the respondent and be conditioned upon the payment of costs (including reasonable attorney's fees, for the respondent if the respondent shall prevail) and any reparation award that may be issued by the Commission against the complainant on any counterclaim asserted by respondent; or (B) A written request that the bond requirement be waived in accordance with section 14(c) of the Commodity Exchange Act, accompanied by sufficient proof that the country of which the complainant is a resident permits the filing of a complaint by a resident of the United States against a citizen of that country without the furnishing of a bond. (ii) The provisions of paragraphs (b)(4)(i)(A) or (b)(4)(i)(B) of this section must be satisfied within two years after the complainant's cause of action accrues. (iii) When mailed from a foreign country, a nonresident's complaint shall be deemed filed on the date that it is received in proper form by the Commission's Proceedings Clerk, not on the date of mailing from the country of origin. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984, as amended at 51 FR 35507, Oct. 6, 1986; 59 FR 9636, Mar. 1, 1994; 60 FR 49335, Sept. 25, 1995; 86 FR 64353, Nov. 18, 2021; 89 FR 71808, Sept. 4, 2024] § 12.14 Withdrawal of complaint. At any time prior to service of notification to the complainant pursuant to § 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. [86 FR 64353, Nov. 18, 2021] § 12.15 Notification of complaint. (a) Forwarding of complaint to registrant. (b) Determination not to forward complaint. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64353, Nov. 18, 2021] § 12.16 Response to complaint. Within 25 days after the complaint has been served by the Office of Proceedings on the registrant, or within such additional time (not to exceed 10 days absent extraordinary circumstances) as the Director of the Office of Proceedings, or his/her delegee may grant, for good cause shown, each registrant shall either— (a) Satisfy the complaint in accordance with § 12.17 of these rules; or (b) Answer the complaint in the manner prescribed by § 12.18 of these rules. [59 FR 9636, Mar. 1, 1994] § 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. [86 FR 64353, Nov. 18, 2021] § 12.18 Answer; election of procedure. An answer filed pursuant to § 12.16 of these rules shall meet the following requirements: (a) Content. (1) The full name, current address and telephone number (during business hours) of each respondent on whose behalf the answer is filed; (2) A complete description of each registrant's case, including but not limited to, a precise and detailed statement of the facts which constitute each registrant's ground for defense; (3) Admissions, if any, as to the registrant's liability for the amount (or any portion thereof) claimed as damages; (4) A statement indicating whether the registrant is (and if the answer is filed on behalf of two or more registrants, which if any of them are) in receivership or subject to bankruptcy proceedings; (5) A statement indicating whether an arbitration or civil court litigation, based on the same set of facts set forth in the complaint (involving any or all of the parties named therein), is pending; (6) A counterclaim which the registrant wishes to pursue under § 12.19 of these rules; (7) An election of an alternative decisional procedure pursuant to subparts C, D, or E of these rules. (A proceeding pursuant to subpart D may be elected only if the amount of actual damages claimed in the complaint or as counterclaims, exclusive of interest, costs, and punitive damages, does not exceed $30,000. A procedure pursuant to subpart E may be elected only if the amount of actual damages claimed in the complaint or as counterclaims, exclusive of interest, costs, and punitive damages exceeds $30,000; (8) If appropriate, a filing fee in the amount prescribed by § 12.25 shall be submitted with an answer at the time of its filing. (b) Motion for reconsideration of determination to forward the complaint. (c) Subscription and verification of the answer. (d) Affidavit of service. (e) Time and place of filing an answer. [49 FR 6621, Feb. 22, 1984, as amended at 59 FR 9637, Mar. 1, 1994; 60 FR 49335, Sept. 25, 1995; 86 FR 64353, Nov. 18, 2021; 89 FR 71808, Sept. 4, 2024] § 12.19 Counterclaim. A registrant may, at the time of filing an answer to a complaint, set forth as a counterclaim: (a) Facts alleging a violation and a request for a reparation award that would be a proper subject for a complaint under § 12.13 of these rules; or (b) Any claim which at the time the complaint is served the registrant has against the complainant if it arises out of the transaction or occurrence or series of transactions or occurrences set forth in the complaint. § 12.20 Response to counterclaim; reply; election of procedure. (a) Response to counterclaim. (1) Satisfy the counterclaim as if it were a complaint, in the manner prescribed by § 12.17; or (2) File a reply to the counterclaim with the Commission. (b) Form and content of reply. (c) Election of decisional procedure. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64353, Nov. 18, 2021] § 12.21 Voluntary dismissal. (a) At any time after the Director of the Office of Proceedings has served notification to the parties pursuant to § 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, (b) A dismissal of a complaint pursuant to this paragraph shall be with prejudice to complainant's right to re-file a claim in reparations based upon the same set of facts as alleged in the dismissed complaint. Unless otherwise stated in the stipulation, a dismissal ordered pursuant to this paragraph shall be regarded by the Commission as without prejudice to the parties' right to seek redress in such alternative forums as may be available for adjudication of their claims. (c) Upon receiving a written stipulation of dismissal which satisfies the requirements of this rule, the official before whom the matter or proceeding is pending shall issue an order of dismissal, and serve a copy thereof upon each of the parties. (d) This rule shall be applicable at all stages of a reparation proceeding. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64353, Nov. 18, 2021] § 12.22 Default proceedings. (a) Institution of a default proceeding. (b) Default procedure. (c) Finality. [49 FR 6621, Feb. 22, 1984, as amended at 57 FR 20638, May 14, 1992; 86 FR 64353, Nov. 18, 2021] § 12.23 Setting aside of default. (a) Default order not final. (1) Procedure for setting aside non-final default order. (2) Review. (b) Default order final. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64354, Nov. 18, 2021] § 12.24 Parallel proceedings. (a) Definition. (1) An arbitration proceeding or civil court proceeding, involving one or more of the respondents as a party, which is pending at the time the reparation complaint is filed and involves claims or counterclaims that are based on the same set of facts which serve as a basis for all of the claims in the reparations complaint, and which either: (i) Was commenced at the instance of the complainant in reparations; or (ii) Involves counterclaims by the complainant in reparations alleging violations of the Commodity Exchange Act, or any regulation or order issued thereunder; or (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; (2) The appointment by a court of a receivership over the assets, property or proceeds of a respondent named in a reparation complaint where the responsibility of the receivership includes the resolution of claims made by customers; or (3) A petition filed under any chapter of the Bankruptcy Code, 11 U.S.C. 101 et seq., (b) Notice. (1) The caption of the parallel proceeding; (2) The name of the court or the arbitration tribunal (including address and phone number, if known); (3) The docket number or numbers; (4) The date the parallel proceeding was filed (and the current status if known); and (5) If a proceeding in bankruptcy or receivership is pending, the date of the appointment and name and address of the receiver or trustee. A copy of any relevant complaint, petition or order shall be attached to the notice. (c) Effect of pending arbitration or civil court litigation. (2) If notice of a parallel proceeding described in paragraph (a)(1) of this section is received before the initial decision is filed (or before a final decision under § 12.106 of the rules is entered), a proceeding in which a decisional procedure has been commenced shall be dismissed, without prejudice. The effective date of the order of dismissal shall be fifteen (15) days from the date of service of the order by the Proceedings Clerk. (d) Effect of receivership or bankruptcy proceedings. (2) A proceeding in which an elected decisional procedure has been commenced shall be ordered dismissed, without prejudice, as to any respondent who becomes the subject of a parallel proceeding described in paragraph (a)(2) or (a)(3) of this section if notice pursuant to paragraph (b) of this section is received before the filing of an initial decision (or before a final decision is issued pursuant to § 12.106) as to that respondent. The Proceedings Clerk shall notify all parties, including the receiver or trustee, of the order. The effective date of the order shall be fifteen (15) days from the date of the service of the order by the Proceedings Clerk. (e) Exceptions. (f) No right of appeal to the Commission. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64354, Nov. 18, 2021] § 12.25 Filing fees. (a) Fees payable upon filing a complaint. (2) A complainant who, in the complaint wherein the amount of damages claimed does not exceed $30,000, exclusive of interest and costs, has not elected the voluntary decisional procedure shall, at the time of filing the complaint, pay a filing fee of $125.00. (3) A complainant who, in the complaint wherein the amount of damages claimed exceeds $30,000, exclusive of interest and costs, has not elected the voluntary decisional procedure shall, at the time of filing the complaint, pay a filing fee of $250.00. (b) Fees payable upon filing an answer. (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. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984, as amended at 59 FR 9637, Mar. 1, 1994; 86 FR 64354, Nov. 18, 2021] § 12.26 Commencement of a reparation proceeding. (a) Commencement of voluntary decisional proceeding. (b) Commencement of summary decisional proceeding. (c) Commencement of formal decisional proceeding. [86 FR 64354, Nov. 18, 2021] § 12.27 Termination of consideration of pleadings. If the Director of the Office of Proceedings should determine not to proceed in a manner set forth in § 12.26 (a), (b), or (c), consideration of the complaint and the answer (and reply, if any) shall terminate, and no proceeding shall be held on the allegations in any such pleadings. Such termination shall be regarded by the Commission as without prejudice to the right of the parties to seek such alternative forms of relief as may be available to them. If the consideration of the pleadings should be terminated, the Proceedings Clerk shall immediately notify the parties to that effect by registered or certified mail. A determination by the Director not to proceed in the manner set forth in § 12.26 (a), (b), or (c) of these rules is not subject to appeal pursuant to subpart F of these rules. Subpart B—Discovery § 12.30 Methods of discovery. (a) In general. (1) Production of documents or other items (§ 12.31); (2) Deposition on written interrogatories (§ 12.32); (3) Admissions (§ 12.33). (b) Scope of discovery. (1) Relevancy. (2) Protective orders. (i) That discovery not be had; (ii) That discovery may be had only on specified terms and conditions; (iii) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (iv) That a trade secret or other confidential commercial information not be disclosed or be disclosed only in a designated way; and (v) That the parties simultaniously file specified documents or information in sealed envelopes to be opened only as directed by the decisionmaking official. (3) Motions for order compelling discovery. (c) Sanctions for abuse of discovery. (d) Time limit. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984; 49 FR 17750, Apr. 25, 1984; 59 FR 9637, Mar. 1, 1994; 86 FR 64355, Nov. 18, 2021] § 12.31 Production of documents and tangible items. (a) By a party. (b) By a non-party. § 12.32 Depositions on written interrogatories. (a) Notice. (b) Number. (c) Reply. (2) Each interrogatory shall be answered separately and fully in writing, unless objected to, in which event the reasons for objection shall be stated in lieu of an answer. For the purposes of this rule, an evasive or incomplete answer shall be treated as a failure to answer. The answers are to be signed and verified by the person making them. The person upon whom a notice to take a deposition on written interrogatories has been served shall serve a copy of the answers and objections within twenty (20) days after service of the interrogatories. (d) Deposition of a non-party. i.e., (e) Filing of depositions on written interrogatories in a voluntary or summary decisional proceeding. § 12.33 Admissions. (a) Request for admissions. (b) Reply. (c) Determining sufficiency of answers or objections. (d) Effect of admission. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64355, Nov. 18, 2021] § 12.34 Discovery by a decisionmaking official. (a) Applicability. (b) Production of documents and tangible things Order for production. (2) Trade secrets, commercially sensitive or confidential information. (3) Inability to produce. (c) Order for written testimony. [86 FR 64355, Nov. 18, 2021] § 12.35 Consequences 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 § 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: (a) Infer that the documents or things not produced would have been adverse to the party; (b) Rule that for the purposes of the proceeding the information in or contents of the documents or things not produced be taken as established adversely to the party; (c) Rule that the party may not be heard to object to introduction and use of secondary evidence to show what the withheld documents or other evidence would have shown; (d) Rule that a pleading, or part of a pleading, or a motion or other submission by the party, to which the order for production related, be stricken; (e) Dismiss the entire proceeding with prejudice to matters alleged in the complaint, but without prejudice to counterclaims; and (f) Issue a default order and render a decision against the party, whose rights shall thereafter be determined by §§ 12.22 and 12.23 of these rules. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64356, Nov. 18, 2021] § 12.36 Subpoenas to compel discovery. An application for a subpoena requiring a party or non-party to comply with a discovery order issued pursuant to §§ 12.31 and 12.32, may be made, in writing, by any party without notice to other parties, and may be filed simultaneously with the motion for the discovery order. The standards for issuance or denial of such an application, the service requirement, and the method for enforcing such subpoenas shall be determined by the provisions of § 12.313 of these rules. Subpart C—Rules Applicable to Voluntary Decisional Proceedings § 12.100 Scope and applicability of rules. (a) In general. (b) Waiver by electing the voluntary decisional procedure. § 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: (a) To rule upon discovery-related motions, and to take such action pursuant to § 12.35 as is appropriate if a party fails to comply with a discovery order; (b) To issue orders for the production of documents and tangible things and orders for written testimony, as provided in § 12.34; (c) To issue subpoenas pursuant to § 12.34 and § 12.36; (d) To issue orders of default for good cause shown against any party who fails to participate in the proceeding, or to comply with any provisions of these rules; (e) To receive submissions of proof; (f) Make the final decision in accordance with § 12.106 of these rules; and (g) Issue such orders as are necessary and appropriate to effectuate the orderly conduct of the proceeding. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984, as amended at 78 FR 12937, Feb. 26, 2013; 86 FR 64356, Nov. 18, 2021] § 12.102 Disqualification of Administrative Judge. (a) At their own request. (b) Upon the request of a party. [86 FR 64356, Nov. 18, 2021] § 12.103 Filing of documents; subscription; service. Except as otherwise specifically provided in these rules, all documents filed in a voluntary decisional proceeding, including (but not limited to) amended or supplemental pleadings, motions, discovery requests and responses thereto, and submissions of proof, shall meet the requirements of §§ 12.11 and 12.12 of the Reparation Rules as to form, and shall be filed and served in accordance with § 12.10 of the Reparation Rules. § 12.104 Amendments to pleadings; motions. (a) Amendments and supplemental pleadings. (b) Motions. § 12.105 Submission of proof only in documentary or tangible form. Proof in support of the complaint and in support of the respondent's answer (including counterclaims, if any), and any reply thereto, may be found in those verified documents, in verified statements of non-party witnesses, in other verified statements of fact, and in other documents and tangible evidence. No oral testimony by, or examination of, the parties or their witnesses shall be permitted. § 12.106 Final decision and order. (a) When a final decision is required. (b) Content of final decision. (1) A briefly stated conclusion, not accompanied by findings of fact, as to whether the respondent violated any provision of the Act, Commission's regulations or orders, resulting in damages to the complainant; and (2) If one or more counterclaims have been permitted in the proceeding, a brief conclusion, not accompanied by findings of fact, as to whether the complainant is liable to the respondent for such counterclaims; and (3) A determination of the amount of damages, if any, sustained by complainant or respondent in connection with reparation claims or counterclaims, and an order against a party found liable for damages directing that party to pay an award. An award in favor of the complainant shall not exceed the amount of damages in the complaint (including any amendment thereto), and an award in favor of a respondent shall not exceed the amount of damages claimed in a counterclaim (including any amendment thereto). A conclusion made pursuant to paragraph (b)(1) of this section shall not be deemed a finding of the Commission for the purposes of Section 8a of the Commodity Exchange Act. (c) No assessment of prejudgment interest or costs; assessment of post-judgment interest. (d) Effect of final decision and order: No appeal. (e) Effective date of final decision. [49 FR 6621, Feb. 22, 1984, as amended at 59 FR 9637, Mar. 1, 1994; 73 FR 70275, Nov. 20, 2008; 86 FR 64356, Nov. 18, 2021] Subpart D—Rules Applicable to Summary Decisional Proceedings § 12.200 Scope and applicability of this subpart. The rules set forth in this subpart are applicable only to proceedings forwarded pursuant to § 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 § 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. [86 FR 64356, Nov. 18, 2021] § 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 § 12.206; (b) To rule upon all discovery-related motions, and to take such action pursuant to § 12.35 as is appropriate if a party fails to comply with a discovery order; (c) To issue orders for the production of documents and tangible things and orders for written testimony, as provided in § 12.34 of these rules; (d) To take such action as is appropriate under § 12.35, if a party fails to comply with an order issued by the Administrative Judge pursuant to § 12.34; (e) To rule on all motions permitted pursuant to § 12.205; (f) To issue default orders for good cause against parties who fail to participate in the proceeding or to comply with these rules; (g) If an oral hearing is ordered, to preside at the hearing, which shall include the authority to receive relevant evidence, to administer oaths and affirmations, to examine witnesses, and to rule on offers of proof; (h) To issue subpoenas in accordance with the provisions of §§ 12.34, 12.36 and 12.209 of these rules; (i) To make the initial decision in accordance with § 12.210 of these rules; and (j) To issue such orders as are necessary and appropriate to effectuate the orderly conduct of the proceeding. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984, as amended at 59 FR 9637, Mar. 1, 1994; 86 FR 64356, Nov. 18, 2021] § 12.202 Disqualification of Administrative Judge. (a) At their own request. (b) Upon the request of a party. [86 FR 64356, Nov. 18, 2021] § 12.203 Filing of documents; subscription; service. Except as otherwise specifically provided in these rules, all documents filed in a summary decisional proceeding, including (but not limited to) amended or supplemental pleadings, motions, discovery notices and responses thereto, documents produced or filed pursuant to § 12.34 of these rules, and submissions of proof, shall meet the requirements of §§ 12.11 and 12.12 of these rules as to form, and shall be filed and served in accordance with § 12.10 of the Reparation Rules. § 12.204 Amended and supplemental pleadings. (a) Amendments to pleadings. (b) Supplemental pleadings. Provided however, (c) Pleadings to conform to the evidence. [49 FR 6621, Feb. 22, 1984, as amended at 59 FR 9637, Mar. 1, 1994; 86 FR 64356, Nov. 18, 2021] § 12.205 Motions. (a) In general. (b) Answer to motions. (c) Dismissal By the Administrative Judge. (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. (3) Content and effect of order of dismissal. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64357, Nov. 18, 2021] § 12.206 Pre-decision conferences. (a) At any time after a summary decisional proceeding has been commenced pursuant to § 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: (1) Discussing the advisability of electing the voluntary decisional procedure; (2) Encouraging settlement of the entire case, or any part thereof, (such discussions may be ex parte (3) Simplifying or clarifying issues; (4) Obtaining stipulations, admissions of fact and of authenticity of documents; (5) Discussing amendments or supplements to the pleadings; (6) Encouraging an early settlement of disputes relating to discovery; and (7) Discussing any matters of relevance in the proceeding. (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. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64357, Nov. 18, 2021] § 12.207 Summary disposition. (a) Filing of motions, answers. (b) Supporting papers. (c) Summary disposition upon motion of the Administrative Judge. (d) Ruling on summary disposition. (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. (e) Review of ruling; appeal. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64357, Nov. 18, 2021] § 12.208 Submissions of proof. (a) Documentary evidence. (b) Oral testimony and examination. [49 FR 6621, Feb. 22, 1984, as amended at 59 FR 9637, Mar. 1, 1994; 86 FR 64357, Nov. 18, 2021] § 12.209 Oral testimony. (a) Generally. (b) Telephonic hearings. (c) Washington, DC, hearings. (d) Compulsory process. [86 FR 64358, Nov. 18, 2021] § 12.210 Initial decision. (a) In general. (b) Content of initial decision. (1) Include a brief statement of the findings as to the facts, with reference to those portions of the record which support those findings; (2) Make a determination whether or not the respondent has violated any provision of the Commodity Exchange Act, or rule, regulation or order thereunder; (3) Make a determination whether the complainant is liable to any respondent who has made a counterclaim in the proceeding; (4) Determine the amount of damages, if any, that the complainant has sustained as a result of respondent's violations, the amount of punitive damages, if any, for which respondent is liable to complainant, which shall not exceed $30,000, exclusive of interest and costs; and the amount, if any, for which complainant is liable to respondents based on counterclaims, which, in aggregate, shall not exceed $30,000, exclusive of interest and costs; and (5) Include an order directing either the respondent or the complainant, depending upon whose liability is greater, to pay an amount based on the difference in the amounts determined pursuant to paragraph (b)(4) of this section, on or before a date fixed in the order. (c) Costs; prejudgment interest. (d) Effect of initial decision. (1) The initial decision shall not become the final decision as to a party who shall have timely filed and perfected an appeal thereof to the Commission in accordance with § 12.401 of these rules; and (2) The initial decision shall not become final as to any party to the proceeding if, within thirty (30) days after service of the initial decision, the Commission itself shall have placed the case on its own docket for review or stayed the effective date of the initial decision. (e) Effect of failure to file and perfect an appeal to the Commission. [49 FR 6621, Feb. 22, 1984, as amended at 59 FR 9638, Mar. 1, 1994; 86 FR 64358, Nov. 18, 2021] Subpart E—Rules Applicable to Formal Decisional Proceedings § 12.300 Scope and applicability of rules. The rules set forth in this subpart are applicable to proceedings forwarded pursuant to § 12.26(c) of the Reparation Rules. The rules in subpart B permitting discovery are applicable in a formal decisional proceeding, as supplemented by § 12.301. Unless specifically made applicable, the rules prescribed in subparts C and D shall not apply to formal decisional proceedings. Parties to a proceeding forwarded pursuant to § 12.26(c) may, by written agreement filed at any time prior to the issuance of an initial decision, or of any other order disposing of all issues in the proceeding, elect to have all 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 Law Judge shall conduct the proceeding and render a decision pursuant to subpart C of these rules. §§ 12.301-12.302 [Reserved] § 12.303 Pre-decision conferences. (a) During the time period permitted for discovery pursuant to § 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: (1) Discussing the advisability of electing the voluntary decisional procedure; (2) Encouraging a settlement of the entire case, or any part thereof (such discussions may be ex parte (3) Simplifying or clarifying issues; (4) Obtaining stipulations, admissions of fact and of authenticity of documents; (5) Discussing amendments or supplements to the pleadings; (6) Encouraging an early settlement of disputes relating to discovery; and (7) Discussing any matters of relevance in the proceeding. (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. [49 FR 6621, Feb. 22, 1984, as amended at 57 FR 20638, May 14, 1992; 86 FR 64358, Nov. 18, 2021] § 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: (a) To issue such orders as are described in § 12.34 of these rules; (b) To issue subpoenas pursuant to §§ 12.34, 12.36, and 12.313 of these rules; (c) To take such action as is appropriate pursuant to § 12.35 if a party fails to comply with a discovery order, or an order issued pursuant to § 12.34 of these rules; (d) [Reserved] (e) In the Administrative Law Judge's discretion, to conduct pre-decision conferences, for the purposes prescribed in § 12.303, at any time after a proceeding has commenced pursuant to § 12.26(c); (f) To issue pre-hearing orders as required by § 12.312(a); (g) To certify interlocutory matters to the Commission for its determination in accordance with § 12.309; (h) To issue orders of dismissal pursuant to § 12.308; (i) To issue default orders for good cause against parties who fail to participate in the proceeding, or to comply with these rules; (j) If appropriate, to issue orders for summary disposition in the manner prescribed by § 12.310; (k) If an oral hearing is ordered, to preside at the oral hearing, which shall include the authority to receive relevant evidence, to administer oaths and affirmations, to examine witnesses, and to rule on offers of proof; (l) To make the initial decision; and (m) To issue such orders, and take any other actions as are required to give effect to these rules. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984; 49 FR 17750, Apr. 25, 1984, as amended at 57 FR 20637, May 14, 1992; 86 FR 64358, Nov. 18, 2021] § 12.305 Disqualification of Administrative Law Judge. (a) At their own request. (b) Upon the request of a party. [86 FR 64359, Nov. 18, 2021] § 12.306 Filing of documents; subscription; service. Except as otherwise specifically provided in these rules, all documents filed in a formal decisional proceeding including, but not limited to, amended or supplemental pleadings, motions, discovery notices or requests, and responses thereto, documents filed or produced pursuant to § 12.34 of these rules, and submissions of proof, shall meet the requirements of §§ 12.11 and 12.12 of the rules as to form, and shall be filed and served in accordance with § 12.10 of the Reparation Rules. § 12.307 Amended and supplemental pleadings. (a) Amendments to pleadings. (b) Supplemental pleadings. (c) Pleadings to conform to the evidence. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64359, Nov. 18, 2021] § 12.308 Motions. (a) In general. (b) Answer to motions. (c) Dismissal By the Administrative Law Judge. (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. (2) Motion for dismissal by a party. (3) Content and effect of order of dismissal. (d) Motions for procedural orders. (e) Dilatory motions. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64359, Nov. 18, 2021] § 12.309 Interlocutory review by the Commission. Interlocutory review by the Commission of a ruling on a motion by an Administrative Law Judge may be sought only as prescribed in this rule: (a) When interlocutory appeal may be taken. (1) The appeal is from a ruling pursuant to § 12.102, § 12.202, or § 12.305 refusing to grant a motion to disqualify an Administrative Judge or Administrative Law Judge; (2) The appeal is from a ruling pursuant to § 12.9 suspending an attorney from participation in a reparation proceeding; (3) Upon a determination by the Administrative Law Judge certified to the Commission either in writing or on the record, that (i) A ruling sought to be appealed involves a controlling question of law or policy; (ii) An immediate appeal may materially advance the ultimate resolution of the issues in the proceeding; and (iii) Subsequent reversal of the ruling would cause unnecessary delay or expense to the parties; or (4) The appeal is from a ruling which satisfies the conditions of paragraphs (a)(3) (i)-(iii) of this section, despite the absence of certification, and extraordinary circumstances are shown to exist. (b) Procedure to obtain interlocutory review. (1) A statement of the facts necessary to an understanding of the controlling questions determined by the Administrative Law Judge, and to an understanding of the extraordinary circumstances warranting interlocutory review by the Commission; (2) A statement of the question or issue involved in the ruling upon which the application for review is based; (3) A statement of the reasons why, in the opinion of the party requesting review, the ruling was erroneous and should be reversed or modified; and (4) A copy of all papers filed by the parties that relate to the subject matter of the ruling at issue, including the order containing the ruling. Within seven (7) days after service of the application for interlocutory review, any party may file a response in opposition to the application. (c) Standard for review. (d) Proceedings not stayed. (e) Interlocutory review by the Commission on its own motion. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64359, Nov. 18, 2021] § 12.310 Summary disposition. (a) Filing of motions, answers. (b) Supporting papers. (c) Oral argument. (d) Summary disposition upon motion of the Administrative Law Judge. (e) Ruling on summary disposition. (f) Review of ruling; appeal. [49 FR 6621, Feb. 22, 1984, as amended at 86 FR 64359, Nov. 18, 2021] § 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 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. [86 FR 64359, Nov. 18, 2021] § 12.312 Oral hearing. (a) Notification; prehearing order. (1) An order requiring the parties to file and serve, within fifteen days after service of the order, a prehearing memorandum setting forth briefly: (i) A statement of all issues to be tried at the hearing; (ii) An identification of each witness expected to be called by that party; (iii) A summary of the testimony each witness is expected to provide; and (2) A notice stating the time and location of the hearing. Prior to the hearing, the Administrative Law Judge may issue an order based on the contents of the parties' memoranda filed pursuant to paragraph (a)(1) of this section, which, unless modified to prevent injustice, shall control the scope of matters to be tried at the oral hearing. If any change in the time or place of the hearing becomes necessary, it shall be made by the Administrative Law Judge, who, in such event, shall file with the Proceedings Clerk a notice of the change. Such notice shall be served upon the parties, unless it is made during the course of an oral hearing and made a part of the transcript. Hearings shall proceed expeditiously and, absent extraordinary circumstances, shall be held in one location and shall continue, without suspension, until concluded. (b) Location of hearing. (1) Who may appear. (2) Effect of failure to appear. (c) Public hearings. (d) Conduct of the hearing. (1) Conduct direct and cross-examination of parties and witnesses. (2) Introduce exhibits. (3) Make objections. (4) Make offers of proof. (e) Admissibility of evidence. (f) Record of an oral hearing. (g) Proposed findings of fact and conclusions of law; briefs. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984, as amended at 86 FR 64360, Nov. 18, 2021] § 12.313 Subpoenas for attendance at an oral hearing. (a) In general— Application for issuance of subpoenas. ad testificandum duces tecum (2) Standards for issuance or denial of subpoenas. (b) Special requirements relating to application for an issuance of subpoenas for the appearance of commission employees— Form. (2) Content. (i) The relevance of the material, information, or testimony to the matters at issue in the proceeding; (ii) The reasonableness of the scope of the proposed subpoena; and (iii) That such material, information, or testimony is not available from other sources. (3) Rulings. (c) Service of subpoenas How effected. (2) Service upon a natural person. (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) Service upon other persons. (i) Handing them to a registered agent for service, or to any officer, director, or agent in charge of any office of such person; (ii) Mailing them by registered or certified mail to any such representative at the person's last known address; or (iii) Any other method whereby actual notice is given to any such representative and the fees and mileage are timely made available. (d) Motion to quash subpoena. duces tecum, (e) Attendance and mileage fees. (f) Enforcement of subpoenas. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984; 86 FR 64360, Nov. 18, 2021] § 12.314 Initial decision. (a) In general. (b) Content of initial decision. (1) Include a brief statement of findings as to the facts, with references to those portions of the record which support those findings; (2) Make a determination whether or not the respondent has violated any provision of the Commodity Exchange Act, or rule, regulation or order thereunder; (3) Make a determination whether the complainant is liable to any respondent who has made a counterclaim in the proceeding; (4) Determine the amount of damages, if any, that the complainant has sustained as a result of respondent's violations, the amount of punitive damages if warranted, and the amount, if any, for which complainant is liable to a respondent based on a counterclaim; and (5) Include an order directing either the respondent or the complainant, depending upon whose liability is greater, to pay an amount based on the difference in the amounts determined pursuant to paragraph (b)(4) of this section, on or before a date fixed in the order. (c) Costs, prejudgment interest. (d) Effect of initial decision. (1) The initial decision shall not become the final decision as to a party who shall have timely filed and perfected an appeal thereof to the Commission, in accordance with § 12.401 of these rules; and (2) The initial decision shall not become final as to any party to the proceeding if, within thirty (30) days after service of the initial decision, the Commission itself shall have placed the case on its own docket for review or stayed the effective date of the initial decision. (e) Effect of failure to file and perfect an appeal to the Commission. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984, as amended at 59 FR 9638, Mar. 1, 1994; 86 FR 64361, Nov. 18, 2021] § 12.315 Consequences of overstating damages claims not in excess of $30,000. If a party, who has claimed damages in excess of $30,000, is adjudged to be entitled to recover less than the sum or value of $30,000, computed without regard to a damage award to which an opposing party may be adjudged to be entitled, and exclusive of interest and costs, the Administrative Law Judge may assess such party the cost of the transcript of an oral hearing, if such a hearing is held, and, depending upon whether such party paid any part of the filing fee for the proceeding, deny the party such costs or impose such costs on that party. [49 FR 6621, Feb. 22, 1984, as amended at 59 FR 9638, Mar. 1, 1994] Subpart F—Commission Review of Decisions § 12.400 Scope and applicability of rules. The rules set forth in this subpart are applicable to proceedings forwarded pursuant to § 12.26 (b) and (c) of these rules. Except as provided in §§ 12.106(e) and 12.403(b) of these rules, the rules set forth in this subpart are not applicable to proceedings forwarded pursuant to § 12.26(a) of the Reparation Rules. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984] § 12.401 Appeal to the Commission. (a) How effected. (b) Perfecting the appeal; appeal brief. (c) Answering brief. (d) Briefs. (e) Oral argument. (f) Scope of review. sua sponte [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 7, 1984] § 12.402 Appeal of disposition of less than all claims or parties in a proceeding. (a) In general. (b) When decision is not appealable. [86 FR 64361, Nov. 18, 2021] § 12.403 Commission review on its own motion. (a) In general. (b) Commission review of a final decision in a voluntary decisional proceeding. § 12.404 The record of proceedings. The record of proceedings on appeal before the Commission shall include: The pleadings; motions and requests filed, and rulings thereon; the transcript of the testimony taken at an oral hearing, together with the exhibits filed therein; the transcript of testimony taken during an oral examination by telephone; any statements or stipulations filed in any proceeding; any documents or papers filed in connection with prehearing conferences; such proposed findings of fact, conclusions, and orders and briefs as may have been permitted to be filed in connection with an oral hearing; such statements of objections, and briefs in support thereof, as may have been filed in the proceedings; and the initial (or final) decision, or other order disposing of issues in the proceeding. [49 FR 6621, Feb. 22, 1984, as amended at 59 FR 9638, Mar. 1, 1994] § 12.405 Leave to adduce additional evidence. Any time prior to issuance of its final decision pursuant to § 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. [86 FR 64361, Nov. 18, 2021] § 12.406 Final decision of the Commission. (a) Opinion and order. (b) Order on summary affirmance. (c) Filing and service of final decision. (d) Date of the reparation order. [49 FR 6621, Feb. 22, 1984, as amended at 53 FR 17692, May 18, 1988] § 12.407 Satisfaction of reparation award; enforcement; sanctions. (a) Satisfaction of reparation award Where initial decision has become the final decision. (2) Final decision pursuant to § 12.406. (b) Enforcement of reparation award. (c) Automatic suspension. (1) A copy of a certified check or the equivalent showing Satisfaction of the award; or (2) A sworn release executed by each recipient of a reparation award, which has not been satisfied by payment with a certified check or the equivalent; or (3) A verified statement that a judicial appeal has been filed and perfected in accordance with section 14(e) of the Act, 7 U.S.C. 18(e). (This paragraph is applicable only in proceedings commenced pursuant to § 12.26 (b) or (c), and only if the person has timely filed and perfected an appeal to the Commission as prescribed in § 12.401.) (d) Reinstatement. (e) Automatic suspension after appeal. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984, as amended at 50 FR 40332, Oct. 3, 1985; 73 FR 70275, Nov. 20, 2008; 86 FR 64361, Nov. 18, 2021; 89 FR 71808, Sept. 4, 2024] § 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) With respect to reparation proceedings conducted pursuant to section 14 of the Commodity Exchange Act, as amended, 7 U.S.C. 18, and subject to the Commission's Reparation Rules as set forth in part 12 of this chapter, to: (1) Consider and decide miscellaneous procedural motions that may be directed to the Commission pursuant to part 12 of these rules after the initial decision or other order disposing of the entire proceeding has been filed; (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— (i) Where a default order or award has been made pursuant to part 12 of these rules and a motion to vacate the default or an equivalent request has been made; or (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 § 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 § 12.401, and deny any application for interlocutory review if it is not filed in accordance with § 12.309; (5) Strike any filing that does not meet the requirements of, or is not perfected in accordance with, these part 12 rules; and (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. (c) Within seven (7) days after service of a ruling issued pursuant to this § 12.408, a party may file with the Commission a petition for reconsideration of the ruling. Unless the Commission orders otherwise, the filing of a petition for reconsideration shall not operate to stay the effective date of such ruling. [49 FR 6621, Feb. 22, 1984; 49 FR 15070, Apr. 17, 1984; 49 FR 17750, Apr. 25, 1984, as amended at 57 FR 20638, May 14, 1992; 59 FR 9638, Mar. 1, 1994; 64 FR 43071, Aug. 9, 1999; 78 FR 1145, Jan. 8, 2013; 86 FR 64361, Nov. 18, 2021]