gent search, no record or entry dealing with a specific matter is found to exist, accompanied by a certificate as provided above, is admissible as evidence that the records of his office contain no such record or entry.

(i) Entries in the regular course of business. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, will be admissible as evidence thereof if it shall appear that it was made in the regular course of business by a person who had a duty to report or record it.

§ 12.81 Filing the transcript of evidence.

As soon as practicable after the close of the hearing, the reporter shall transmit to the Hearing Clerk the transcript of the testimony and the exhibits introduced in evidence at the hearing, except such portions of the transcript and exhibits as shall have been delivered to the Administrative Law Judge.

§ 12.82 Proposed findings and conclusions; briefs.

In any proceeding involving a hearing or an opportunity for hearing, the parties may file written proposed findings and conclusions of law. Briefs may be filed in support of proposed findings either as part of the same document or in a separate document. Any proposed finding or conclusion not briefed may be regarded as waived.

(a) Proposed Findings and Briefs; Time for Filing. Where the parties file proposed findings and briefs, the following schedule shall apply, unless otherwise determined by the Administrative Law Judge:

(1) Initial submission. Proposed findings, conclusions and an initial brief shall be served and filed by the complainant within forty-five (45) days of the close of the hearing;

(2) Answering submission. Proposed findings, conclusions, and an answering brief shall be served and filed by the respondents within thirty (30) days after service of the initial conclusions and brief upon the respondents;

(3) Reply. A reply brief may be filed by the complainant within fifteen (15)

days after service of the answering brief.

(b) Alternative procedures for submissions. In his discretion the Administrative Law Judge may lengthen or shorten the periods for the filing of submissions, may direct simultaneous filings, may direct that respondents make the first filing, or may otherwise modify the procedures set forth in § 12.82(a) for purpose of a particular proceeding.

(c) Briefs. (1) The initial brief should include:

(i) A short, clear and concise statement of the case;

(ii) Specification of the questions intended to be urged; and

(iii) The argument, presenting clearly the points of fact and law relied upon in support of the position taken on each question.

(2) The answering brief shall generally follow the same style as prescribed for the initial brief but may omit a statement of the case if the party does not dispute the statement of the case contained in the initial brief;

(3) Reply briefs should be limited to rebuttal of matters in the prior briefs.

(d) Content and form of proposed findings and conclusions. (1) The findings of fact shall be confined to the material issues of fact presented on the record, with exact citations to the transcripts of record and exhibits in support of each proposed finding.

(2) The proposed findings and conclusions of the party filing initially shall be set forth in consecutively numbered paragraphs and all counterstatements of proposed findings and conclusions shall, in addition to any other matter, indicate which paragraphs of the initial proposals are not disputed.

§ 12.83 Oral arguments.

In his discretion the Administrative Law Judge may hear oral arguments by the parties any time before he files his initial decision with the Hearing Clerk. The argument shall be recorded and transcribed in written form.

§ 12.84 Initial decision.

(a) When initial decision is required. The Administrative Law Judge shall make an initial decision in each reparation proceeding in which a hearing has been conducted.

(b) Content of initial decision. In his initial decision the Administrative Law Judge shall determine whether or not the respondent has violated any provision of the Act or any rule, regulation or order thereunder. If after a hearing, or upon failure of a respondent to appear at a hearing after being duly notified, the Administrative Law Judge determines that the respondent has violated any provision of the Act, or any rule, regulation, or order thereunder, the Administrative Law Judge shall, unless the respondent has already made reparation to the complainant, determine the amount of damage, if any, to which the complainant is entitled as a result of such violation and shall make an order directing the respondent to pay to the complainant such amount on or before a date fixed in the order.

(c) Costs. The Administrative Law Judge may, in the initial opinion, award costs (including the cost of instituting the proceeding, should the complainant prevail) to the party in whose favor a judgment is entered.

(d) Filing of initial decision and order. The Administrative Law Judge as soon as practicable after the final date allowed for filing proposed findings of fact and briefs, or such other time as may be allowed by the Chief Administrative Law Judge, or by the Commission, shall prepare upon the basis of the record and shall file with the Hearing Clerk his decision and order, a copy of which shall be served by the Hearing Clerk upon each of the parties.

(e) Effect of initial decision. The initial decision and order shall become the final decision and order of the Commission thirty (30) days after service thereof, except:

(1) The decision shall not become final as to a party who shall have filed an application for review in accordance with § 12.101, pending Commission disposition of the application or, if the application is granted, pending

the final decision by the Commission upon review of the initial decision.

(2) The initial decision shall not become final as to any party to the proceeding if, within thirty (30) days after 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.

In the event that the initial decision becomes the final decision of the Commission with respect to a party, that party shall be duly notified thereof by the Hearing Clerk. The notice shall state that the time for filing an application for review by the party has expired, that the Commission has determined not to review the initial decision on its own initiative and shall specify the date on which a final order in the proceeding shall become effective as against that party.

Subpart G-Summary Proceedings

§ 12.91 Presiding Officer; evidence.

In all cases in which a hearing is not held, as provided in § 12.71:

(a) A Presiding Officer shall be appointed who is a member of the Commission, an Administrative Law Judge, a Hearing Officer or other such Commission employee as may be appointed by the Commission to conduct the proceeding; and

(b) Proof in support of the complaint and in support of the respondent's answers may be found in those verified documents and may also be supplied in the form of depositions or other verified statements of fact.

§ 12.92 Discovery.

Parties to a summary proceeding may obtain discovery by the methods and in the manner set forth above in §§ 12.62 through 12.66. Copies of all depositions upon written interrogatories and other verified statements obtained through discovery shall be filed in the proceeding by the party on whose behalf the discovery was obtained.

§ 12.93 Submission of evidence.

Each party shall serve and file those depositions and other verified state

ments of fact upon which he relies in support of his pleadings. Thereafter, the parties shall have fifteen (15) days to file replies to such submitted affidavits or verified statements of fact to which they have not previously replied. All such replies shall be confined to the matters set forth in the affidavits and verified statements of fact to which they are responsive.

§ 12.94 Proposed findings and conclusions; briefs.

The parties may file written proposed findings and conclusions and may file briefs under the same conditions as are set forth in § 12.82 with respect to proceedings involving a hearing or an opportunity for hearing.

§ 12.95 Initial decision.

(a) When initial decision is required. The Presiding Officer shall make an initial decision in each reparation proceeding not involving a hearing or an opportunity for hearing.

(b) Consent of initial decision. In his initial decision the Presiding Officer shall determine whether or not the respondents have violated any provision of the Act or any rule, regulation, or order thereunder. If on the basis of the verified pleadings, depositions and other verified documents designated by the parties, the Presiding Officer determines that the respondent has violated any provision of the Act, or any rule, regulation, or order thereunder, the Presiding Officer shall, unless the respondent has already made reparation to the complainant, determine the amount of damage, if any, to which the complainant is entitled as a result of such violation and shall make an order directing the respondent to pay to the complainant such amount on or before a date fixed in the order.

(c) Costs. The Presiding Officer may, in the initial opinion, award costs (including the cost of instituting the proceedings, should the complainant prevail) to the party in whose favor a judgment is entered.

(d) Filing of initial decision and order. The Presiding Officer as soon as practicable after the final date allowed for filing proposed findings of fact and briefs, or such other time as may be al

lowed by the Chief Administrative Law Judge, or by the Commission, shall prepare upon the basis of the record and shall file with the Hearing Clerk his decision and order, a copy of which shall be served by the Hearing Clerk upon each of the parties.

(e) Effect of initial decision. The initial decision and order shall become the final decision and order of the Commission thirty (30) days after service thereof, except:

(1) The initial decision shall not become final as to a party who shall have filed an application for review in accordance with § 12.101, pending Commission disposition of the application or, if the application is granted, pending the final decision by the Commission upon review of the initial decision.

(2) The initial decision shall not become final as to any party to the proceeding if, within thirty (30) days after 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.

In the event that the initial decision becomes the final decision of the Commission with respect to a party, that party shall be duly notified thereof by the Hearing Clerk. The notice shall state that the time for filing an application for review by the party has expired, that the Commission has determined not to review the initial decision on its own initiative and shall specify the date on which a final order in the proceeding shall become effective as against that party.

and 12.49 within fifteen (15) days after service upon the parties of the initial decision;

(2) An application for review shall (i) identify the party seeking review; (ii) specify the issues presented for review; (iii) identify those provisions of the Act or any rule, regulation or order thereunder that are relevant to the stated issues; (iv) set forth a concise statement of the facts material to the consideration of the stated issues; and (v) present a concise argument setting forth the reasons why review by the Commission is necessary or appropriate to resolve an important issue of law or public policy.

(3) Any party opposing the application may serve and file a response within fifteen (15) days after service of the application.

(4) An application shall not exceed 30 pages and a response shall not exceed 25 pages, without leave expressly granted by the Presiding Offi

cer.

(5) After the time for the filing of a response has expired the Commission will determine whether to grant a review, based upon the application for review and the response thereto, without oral argument or further written presentation, unless the Commission shall otherwise direct.

(b) Notice of review. If the Commission should determine to review an initial decision, the Hearing Clerk shall serve a copy of its order granting review upon each of the parties.

(c) Scope of review. Unless the Commission shall otherwise direct, only the issues presented for review as set forth in the application, and all subsidiary issues subsumed therein, will be considered by the Commission.

(d) Briefs and Appendix to Briefs. In the event the Commission should determine to review the initial decision, the parties shall file briefs and designate the contents of the appendix in accordance with the procedures set forth in § 10.102 of the Commission's rules of practice: Provided, That in reparation proceedings the brief of the party who sought review (or if no party sought review, the brief of the complainant) shall be filed within thirty (30) days after service upon the

parties of the Commission's order granting review of the initial decision.

(e) Oral argument. Any party may request, in writing and within the time provided for filing the initial briefs, the opportunity to present oral argument before the Commission, which the Commission may in its discretion grant or deny. In the event the Commission affords the parties the opportunity to present oral argument before the Commission, the oral argument shall be in accordance with the provisions of § 10.103 of this chapter.

§ 12.102 The record of proceeding.

If the Commission grants an application for review of an initial decision or the Commission decides on its own initiative to review an initial decision, the record of the proceedings shall be made available to the Commission. The record of the proceeding shall include: The pleadings, motions and requests filed, and rulings thereon; the transcript of the testimony taken at the hearing, together with the exhibits filed therein; any statements or stipulations filed under the summary procedures; 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 the hearing; such statements of objections, and briefs in support thereof, as may have been filed in the proceedings; and the initial decision.

Sec.

PART 13-PUBLIC RULEMAKING PROCEDURES

13.1 Scope.

13.2 Petition for issuance, amendment, or repeal of a rule.

13.3 Notice of proposed rulemaking. 13.4 Public participation in rulemaking. 13.5 Exceptions to notice requirement and public participation.

13.6 Promulgation of rules; publication.

AUTHORITY: Pub. L. 93-463, Sec. 101(a) (11), 88 Stat. 1391, 7 U.S.C. 4a(j).

SOURCE: 41 FR 17537, Apr. 27, 1976, unless otherwise noted.

§ 13.1 Scope.

The Rules of Part 13 set forth the procedures of the Commodity Futures Trading Commission for the formulation, amendment or repeal of a rule or regulation, insofar as those procedures directly affect the public. Unless otherwise stated, the Rules apply to all rulemaking by the Commission, except to the extent the rulemaking involves Commission management or personnel or public property, loans, grants, benefits or contracts.

§ 13.2 Petition for issuance, amendment, or repeal of a rule.

Any person may file a petition with the Secretariat of the Commission for the issuance, amendment or repeal of a rule of general application. The petition shall be directed to Secretariat, Commodity Futures Trading Commission, 2033 K Street, N.W., Washington, D.C. 20581, and shall set forth the text of any proposed rule or amendment or shall specify the rule the repeal of which is sought. The petition shall further state the nature of the petitioner's interest and may state arguments in support of the issuance, amendment or repeal of the rule. The Secretariat shall acknowledge receipt of the petition, refer it to the Commission for such action as the Commission deems appropriate, and notify the petitioner of the action taken by the Commission. Except in affirming a prior denial or when the denial is selfexplanatory, notice of a denial in whole or in part of a petition shall be accompanied by a brief statement of the grounds of denial.

§ 13.3 Notice of proposed rulemaking.

Whenever the Commission proposes to issue, amend, or repeal any rule or regulation of general application, there shall first be published in the FEDERAL REGISTER a notice of the proposed action. The notice shall include:

(a) A statement of the time, place and nature of the rulemaking procedures, with particular reference to the manner in which interested persons shall be afforded the opportunity to participate in such proceedings;

(b) Reference to the authority under which the rule is proposed; and

(c) Either the terms or substance of the proposed rule or a description of the subjects and issues involved.

§ 13.4 Public participation in rulemaking.

(a) Written Comments. Interested persons will be afforded an opportunity to participate in a rulemaking proceeding of which notice has been given pursuant to § 13.3 of these rules through the submission of statements, information, opinion, and arguments in the manner stated in the notice.

(b) Hearings. When required or permitted by law the Commission may hold hearings in connection with a rulemaking proceeding at which interested persons may be heard, either by oral presentation or upon written submission, and may adopt such procedures as in its judgment will best serve the purpose of the rulemaking proceeding.