of practice contained in Part 10 of this chapter;

(h) "Hearing" means that part of a proceeding which involves the submission of evidence, either by oral presentation or written submission;

(i) "Hearing Clerk" means that member of the Commission's staff designated as such in the Commission's Office of Hearings and Appeals;

(j) "Order" means the whole or any part of a final procedural or substantive disposition of a reparation proceeding by the Commission or by the Presiding Officer;

(k) "Party" includes a complainant, respondent and any other person or agency named or admitted as a party to a reparation proceeding;

(1) "Person" includes an individual, partnership, corporation, association, exchange or other entity or organization;

(m) "Petition" means any document initiating a reparation proceeding pursuant to section 14(a) of the Act, 7 U.S.C. 18(a), whether designated a petition or complaint or otherwise;

(n) "Pleading" means the complaint, the answer to the complaint, any supplement or amendment thereto, and any reply that may be permitted to any answer, supplement or amendment;

(o) "Presiding Officer" means (1) an Administrative Law Judge in all matters where the amount of damages claimed exceeds $2,500 ($5,000 where the complaint is filed with the Commission on or after October 1, 1978) and all cases where the amount of damages claimed is less than $2,500 ($5,000 where the complaint is filed with the Commission on or after October 1, 1978) but where the Commission has determined that a hearing is necessary; and (2) a member of the Commission, an Administrative Law Judge, a Hearing Officer, or such other Commission employee as may be designated by the Commission to conduct the proceeding in all other matters where the amount of damages claimed in the complaint is less than $2,500 ($5,000 where the complaint is filed with the Commission on or after October 1, 1978);

(p) "Proceeding" includes any reparation proceeding and any proceeding conducted pursuant to the rules of practice set forth in Part 10 of this chapter;

(q) “Registrant” means any person who is registered or required to be registered under section 4d, 4e, 4k or 4m of the Commodity Exchange Act, as amended, as a futures commission merchant, floor broker, person associated with a futures commission merchant or agents thereof, commodity trading advisor or commodity pool operator;

(r) "Respondent" means any person against whom a complainant seeks a reparation award pursuant to Section 14 of the Act, 7 U.S.C. 18;

(s) "Reparation award" refers to the amount of damages a respondent may be ordered to pay as provided in section 14(e) of the Act, 7 U.S.C. 18(e);

(t) "Reparation proceeding” means a proceeding pursuant to which a complainant seeks a reparation award against one or more respondents in accordance with section 14 of the Act, 'l U.S.C. 18.

(Secs. 2a(11), 8a(5) and 14 of the Commodity Exchange Act, 7 U.S.C. 4a(j), 12a(5) and 18, as amended by Pub. L. 95-405, sec. 21, 92 Stat. 875-6)

[41 FR 4000, Jan. 27, 1976, as amended at 44 FR 12027, Mar. 5, 1979]

§ 12.4 Business address; hours.

The principal office of the Commission is located at 1007 21st Street NW., Washington, D.C., and its mailing address is 2033 K Street NW., Washington DC 20581, telephone: (202) 2547424. It is open each day, except Saturdays, Sundays and legal public holidays from 8:15 a.m. to at least 4:45 p.m., eastern standard time or eastern daylight savings time, whichever is currently in effect in Washington, D.C. If Commission personnel are present in the offices after 4:45 p.m., they may, at their discretion, accept documents for filing and serve the public in other matters within the scope of this Part. Legal holidays include New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day,

Christmas Day, and any other legal holidays recognized by the Federal Government.

[41 FR 3999, Jan. 27, 1976, as amended at 41 FR 28260, July 9, 1976]

§ 12.5 Suspension, amendment, revocation and waiver of rules.

(a) These rules may, from time to time be suspended, amended or revoked in whole or in part. Notice of such action will be published in the FEDERAL REGISTER.

(b) In the interest of expediting decision or to prevent undue hardship on any party or for other good cause the Commission may order the adoption of expedited procedures and may waive any rule in Subparts D through H of this part in a particular case and may order proceedings in accordance with its direction upon a determination that no party will be prejudiced and that the ends of justice will be served. Reasonable notice shall be given to all parties of any action taken pursuant to this provision.

(c) The Presiding Officer, to expedite decision or to prevent undue hardship on any party may waive any rule in Subparts D through G of this part, when neither party is prejudiced thereby. Reasonable notice shall be given all parties of any action taken pursuant to this provision.

§ 12.6 Computation of time.

In computing any period of time prescribed by these rules or allowed by the Commission, or the Presiding Officer, 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 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.

§ 12.7 Changes of time permitted for filing.

Except as otherwise provided by law or by these rules, for good cause shown, the Commission, or the Presiding Officer 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 for filing any document. In any instance in which a time limit is not prescribed for an action to be taken in a proceeding, the Commission or the Presiding Officer may set a time limit for that action. § 12.8 Date of entry of orders.

In computing any period of time involving the date of the entry of an order the date of entry shall be the date the order is served with the Hearing Clerk.

§ 12.9 Ex parte communications in reparation proceedings.

(a) Definitions. For purposes of this section:

(1) "Commission decisional employee" means 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:

(i) Members of the personal staffs of the Commissioners;

(ii) Members of the staffs of the Administrative Law Judges;

(iii) The Chief and members of the Opinions section;

(iv) Members of the staff of the Office of Hearings and Appeals; and

(v) Other Commission employees who may be assigned to hear or to participate in the decision of a particular matter;

(2) "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 requests for status reports on any matter or proceeding covered by this Part;

(3) "Interested person" includes parties and other persons who might be adversely affected or aggrieved by the outcome of a proceeding; their officers, agents, employees, associates, af

filiates, attorneys, accountants or other representatives; and any other person havinga direct or indirect pecuniary or other interest in the outcome of a proceeding;

(4) "Party" includes a complainant, respondent and any other person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, to a reparation proceeding, and a person or agency permitted limited participation or to state views in a reparation proceeding by the Commission.

(b) Prohibitions against ex parte communications. (1) No interested person outside the Commission shall make or knowingly cause to be made to any Commissioner, Administrative Law Judge or Commission decisional employee an ex parte communication relevant to the merits of a proceeding.

(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 communication relevant to the merits of a proceeding.

(c) Procedures for handling ex parte communications. A Commissioner, Administrative Law Judge or Commission decisional employee who receives, or who makes or knowingly causes to be made, an ex parte communication prohibited by paragraph (b) of this section shall:

(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 (c)(1)(i) and (1)(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.

(d) Sanctions. (1) Upon receipt of an ex parte communication knowingly made or knowingly caused to be made by a party in violation of the prʊhibition contained in paragraph (b)(1) of

this section, the Commission, Administrative Law Judge or other Commission employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the Act, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.

(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 communication which violates the prohibitions contained in paragraph (b) of this section may, on that basis alone, be deemed to have engaged in unprofessional conduct of the type proscribed by 17 CFR 14.8(c).

(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 communication which violates the prohibitions contained in paragraph (b) of this section may, on that basis alone, be deemed to have engaged in conduct of the type proscribed by 17 CFR 140.735-3(b)(3).

(e) Applicability of prohibitions and sanctions against ex parte communications. (1) The prohibitions of this section against ex parte communications shall apply:

(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 or reconsideration by the Commission or to review by any court.

(3) Nothing in this section shall constitute authority to withhold information from Congress.

(Sec. 4, Pub. L. 94-409, 90 Stat. 1246, 1247 (5 U.S.C. 551(14), 556(d) and 557(d)); sec. 101

(a)(11), Pub. L. 93-463, 88 Stat. 1391 (7 U.S.C. 4a(j) (Supp. V, 1975)).) [42 FR 13701, Mar. 11, 1977]

§ 12.10 Separation of functions.

(a) A Presiding Officer 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 the Presiding Officer, except as a witness or counsel in the proceeding, without the express written consent of the respondents in the proceeding. This provision shall not apply to the Commission or a member or members of the Commission.

§ 12.11 Appearance and practice before the Commission.

(a) Appearance-(1) By non-attorneys. An individual may appear pro se (in his own behalf), a member of a partnership may represent the partnership, a bona fide officer of a corporation, trust or association may represent the corporation, trust or association.

(2) By attorneys. An attorney-at-law who is admitted to practice before the highest Court of any State or territory or of the District of Columbia, who has not been suspended or disbarred from appearance and practice before the Commission in accordance with provisions of Part 14 of this Chapter may represent parties as an attorney in proceedings before the Commission.

(b) Practice Before the Commission. Any person may practice before the Commission in connection with a reparation proceeding who has not been suspended or disbarred from appearance or practice before the Commission in accordance with provisions of Part 14 of this Chapter.

(c) Debarment of Counsel or Representative by Presiding Officer During the Course of a Proceeding. (1) When

ever, while a proceeding is pending before him, the Presiding Officer finds that a person acting as counsel or representative for any party to the proceeding is guilty of contemptuous conduct, the Presiding Officer may order that such person be precluded from further acting as counsel or representative in such proceeding. An immediate appeal to the Commission may be taken from any such order, pursuant to the provisions of § 12.47, but the proceeding shall not be delayed or superseded pending disposition of the appeal; Provided, That the Presiding Officer may suspend the proceedings for a reasonable time for the purpose of enabling the party to obtain other counsel or representative.

(2) Whenever the Presiding Officer has issued an order precluding a person from further acting as counsel or representative in the proceeding, the Presiding Officer, 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.

Subpart B-Initial Procedure With Respect to Reparation Complaints § 12.21 Complaint.

Any person complaining of any violation of any provision of the Act or any rule, regulation, or order thereunder by any person who is registered or required to be registered with the Commission under sections 4r, 4e, 4k or 4m of the Act as a futures commission merchant, floor broker, person associated with a futures commission merchant or agents thereof, commodity trading advisor or commodity pool operator may, at any time within two years after the cause of action accrues, apply to the Commission for a reparation award by petitioning the Commission to determine the amount of damage, if any, to which the complainant is entitled as a result of the violation and to issue an order directing the offender to pay that amount to

the complainant on or before a date fixed by the order; Provided, That no such application shall be considered with respect to claims that arose prior to January 23, 1975.

(a) Form of complaint. A complaint submitted to the Commission pursuant to this section shall briefly state the facts that are claimed to constitute a violation of any provision of the Act or any rule, regulation or order thereunder. The facts should be set forth in a manner that will permit each fact to be admitted or denied, as the case may be, by the person or persons alleged to have committed the violations. Each complaint shall include:

(1) The name and residence address of the complainant;

(2) The name and address, if known, of each person alleged in the complaint to have violated the Act or any rule, regulation or order thereunder;

(3) If possible, the specific provisions of the Act, rule, regulation or order claimed to have been violated;

(4) All relevant facts concerning each and every act or omission which it is claimed constitute a violation, including the date and place of each alleged act or omission;

(5) Facts showing the manner in which it is claimed the complainant was injured by the alleged violations;

(6) The amount of damages the complainant claims to have suffered and the method by which those damages have been computed; and

(7) A statement that no arbitration proceeding or civil court litigation, based on the same facts set forth and against the same parties named as respondents in the complaint, has been instituted or is presently pending.

(b) Subscription and verification of the complaint; exhibits. 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. His signature shall be given under oath attesting either that he knows the facts set forth in the complaint to be true, or that he believes the facts set forth to be true, in which event the information upon which he formed that belief shall be set forth with par

ticularity. A true copy of each and every document possessed by or available to the complainant which evidences the facts set forth in the complaint shall be annexed to the complaint.

(c) Time and place of filing of complaint. A complaint shall be filed by delivering a copy thereof, in proper form, to the Commission at its principal offices in Washington, D.C., addressed to the attention of the Reparations Section. The complaint may be filed in person, during normal business hours, or by mail.

(d) Bond required if complainant is non-resident. If a petition for reparations is filed by a non-resident of the United States, the complainant shall first file a bond in double the amount of the claim either with a surety company approved by the Treasury Department of the United States as surety or with 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. The bond shall run to the respondent and be conditioned upon the payment of (1) costs, including reasonable attorney's fees, for the respondent if the respondent shall prevail; and (2) any reparation award that may be issued by the Commission against the complainant on any counterclaim asserted by respondent: Provided, That the furnishing of a bond may be waived if the complainant is a resident of a country which permits filing of a complaint by a resident of the United States against a citizen of that country without the furnishing of a bond.

(Secs. 2a(11), 8a(5) and 14 of the Commodity Exchange Act, 7 U.S.C. 4a(j), 12a(5) and 18, as amended by Pub. L. 95-405, sec. 21, 92 Stat. 875-6)

[41 FR 4001, Jan. 27, 1976, as amended at 44 FR 12027, Mar. 5, 1979]

§ 12.22 Notification to registrant of complaint.

If, in the opinion of the Commission, the facts set forth in a complaint warrant such action, a copy of the complaint, together with any attachments thereto, shall be forwarded by registered mail, certified mail, or otherwise