(d) An original and five (5) copies of all briefs submitted under this section shall be filed with the Hearing Clerk. (e) The briefs shall follow the form prescribed in § 10.82(c) (1) and (2) of the rules of practice.

(Approved by the Office of Management and Budget under control number 30380022)

[43 FR 59350, Dec. 20, 1978, as amended at 46 FR 63036, Dec. 30, 1981]

§ 9.36 Oral argument.

On its own motion or at the request of either party, the Commission may, in its discretion, hear oral argument by the parties any time before the decision of the Commission is filed with the Hearing Clerk. Any such oral argument shall be recorded and transcribed in written form.

(Approved by the Office of Management and Budget under control number 30380022)

[43 FR 59350, Dec. 20, 1978, as amended at 46 FR 63036, Dec. 30, 1981]

§ 9.37 Decision by the Commission.

(a) Upon review, the Commission may affirm, modify, set aside or remand for further proceedings, in whole or in part, the decision of the exchange. The Commission's decision shall be based upon the record before it including the record of the disciplinary proceeding or other adverse action, any additional evidence provided in accordance with § 9.34(b) and any oral argument made in accordance with § 9.36. The Commission's decision shall be contained in its opinion and order. In the event the Commission is equally divided as to its decision, the decision of the exchange shall be affirmed without a Commission opinion.

(b) The standards for Commission review of the disciplinary action or other adverse action shall be:

(1) Whether the exchange disciplinary action or other adverse action was taken in accordance with the rules of the exchange;

(2) Whether fundamental fairness was observed in the conduct of the disciplinary proceeding or the proceeding resulting in other adverse action;

(3) Whether there is substantial evidence in the record to support a finding that there has been a violation of

Subpart A-General Provisions

§ 10.1 Scope and applicability of rules of practice.

These rules of practice are generally applicable to adjudicatory proceedings before the Commodity Futures Trading Commission under the Commodity Exchange Act. These include proceedings for:

(a) Denial, suspension, revocation, conditioning or restricting of registra tion as a futures commission merchant, introducing broker, or associated person, floor broker, commodity pool operator, commodity trading advisor or leverage transaction merchant pursuant to sections 6(b), 8a(3) and 8a(4) of the Act, 7 U.S.C. 9, 12a(3), 12a(4), or denial, suspension, or revocation of designation as a contract market pursuant to sections 6 and 6(a) of the Act, 7 U.S.C. 8;

(b) The issuance of cease and desist orders pursuant to sections 6b and 6(c) of the Act, 7 U.S.C. 13a and 13b;

(c) Denial of trading privileges pursuant to section 6(b) of the Act, 7 U.S.C. 9;

(d) The assessment of civil penalties pursuant to sections 6(b) and 6b of the Act, 7 U.S.C. 9 and 13a; and

(e) Any other proceedings where the Commission declares them to be applicable.

These rules do not apply to:

(f) Investigations conducted pursuant to sections 8 and 16(a) of the Act, 7 U.S.C. 12 and 20(a), except as specifically made applicable by the Rules Relating to Investigations set forth in Part 11 of this chapter;

(g) Reparation proceedings under section 14 of the Act, 7 U.S.C. 18, except as specifically made applicable by the Rules Relating to Reparation Proceedings set forth in Part 12 of this chapter;

(h) Public rulemaking, except as specifically made applicable by the Rules Relating to Public Rulemaking Procedures sets forth in Part 13 of this title. The rules shall be construed to secure the just, speedy and inexpensive determination of every proceeding with full protection for the rights of all parties therein.

means a judicial-type proceeding leading to the formulation of a final order; (c) "Administrative Law Judge" means an administrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105 (provisions of the rules in this part which refer to Administrative Law Judges may be applicable to other Presiding Officers as well, as set forth in § 10.8);

(d) "Administrative Procedure Act" means those provisions of the Administrative Procedure Act, as codified, which are contained in 5 U.S.C. 551 through 559;

(e) "Commission" means the Commodity Futures Trading Commission;

(f) "Complaint" means any document initiating an adjudicatory proceeding, whether designated a complaint or an order for proceeding or otherwise;

(g) "Division of Enforcement" means that office in the Commission that prosecutes a complaint issued by the Commission;

(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 matter by the Commission or by the Presiding Officer in a matter other than rulemaking;

(k) "Party" includes a person or agency named or admitted as a party to a proceeding;

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

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

ted to any answer, supplement or amendment;

(n) "Presiding Officer" means a member of the Commission, and Administrative Law Judge, or a hearing officer designated by the Commission to conduct a hearing on a specific matter, or the Commission itself, if it is to preside at or accept the introduction of evidence in a particular proceeding (provisions of the rules in this part which refer to Administrative Law Judges may be applicable to other Presiding Officers as well, as set forth in § 10.8);

(o) "Respondent" means a party to an adjudicatory proceeding against whom findings may be made or relief or remedial action may be taken.

§ 10.3 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 A 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 A through G of this part when neither party is prejudiced thereby. Reasonable notice shall be given to all parties of any action taken pursuant to this provision.

(d) Notwithstanding any provision of this part, the Commission may in any proceeding commenced pursuant to section 6(b) of the Act require a respondent to show cause why an order should not be entered against the respondent and may specify a day and place for the hearing not less than three days after service upon the re

spondent of the Commission's complaint and notice of hearing in such proceeding.

(Secs. 2(a), 6(b) and 8a, 42 Stat. 1001, as amended, 49 Stat. 1498, 1499, as amended 88 Stat.; 49 Stat. 1500, as amended, 88 Stat. 1392; 88 Stat. 1389, 1391; 7 U.S.C. 4a, 9 and 12a)

[41 FR 2511, Jan. 16, 1976, as amended at 44 FR 61327, Oct. 25, 1979]

§ 10.4 Business address; hours.

The principal office of the Commission, including the Office of Hearings and Appeals, is located at 1007 21st Street NW., Washington, D.C. and its mailing address is 2033 K Street NW., Washington, D.C. 20581. It is open each day, except Saturdays, Sundays and legal public holidays from 8:15 a.m. to 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 2511, Jan. 16, 1976, as amended at 41 FR 28260, July 9, 1976]

§ 10.5 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 shall not 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 days.

§ 10.6 Changes in 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, at any time may 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.

§ 10.7 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 by the Hearing Clerk.

§ 10.8 Presiding officers.

Unless otherwise determined by the Commission, all proceedings within the scope of this part shall be assigned to an Administrative Law Judge for hearing. If the Commission determines that a proceeding within the scope of this subpart shall be conducted before a Presiding Officer who is not an Administrative Law Judge, all provisions of this part that refer to and grant authority to or impose obligations upon an Administrative Law Judge shall be read as referring to and granting authority to and imposing obligations upon the designated Presiding Officer.

(a) Functions and Responsibilities of Administrative Law Judge. The Administrative Law Judge shall be responsible for the fair and orderly conduct of the proceeding and shall have the authority to:

(1) Administer oaths and affirmations;

(2) Issue subpoenas;

(3) Rule on offers of proof;
(4) Receive relevant evidence;
(5) Examine witnesses;

(6) Regulate the course of the hearing;

(7) Hold prehearing conferences; (8) Consider and rule upon all motions;

(9) Make decisions in accordance with § 10.84 of these rules;

(10) Certify interlocutory matters to the Commission for its determination in accordance with § 10.101 of these rules;

(11) Take such action as is just or appropriate, if a party or agent of a party fails to comply with an order issued by the Administrative Law Judge;

(12) Take any other action required to give effect to these Rules of Practice, including but not limited to requesting the parties to file briefs and statements of position with respect to any issue in the proceeding.

(b) Disqualification of Administrative Law Judge-(1) At his own request. An Administrative Law Judge may withdraw from any proceeding when he considers himself to be disqualified. In such event he immediately shall notify the Commission and each of the parties of his withdrawal and of his reason for such action.

(2) Upon the request of a party. Any party or person who has been granted leave to be heard pursuant to these rules may request an Administrative Law Judge to disqualify himself on the grounds of personal bias, conflict or similar bases. Interlocutory review of an adverse ruling by the Administrative Law Judge may be sought without certification of the matter by the Administrative Law Judge, in accordance with the procedures set forth in § 10.101.

§ 10.9 Separation of functions.

(a) An 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 the Administrative Law Judge, except as a witness or counsel in the proceedings, 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.

§ 10.10 Ex parte communications.

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

(4) "Party" includes a 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 proceeding, and a person or agency permitted limited participation or to state views in a 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