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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 10:10:1.0.1.1.8.1.72.1 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | A | Subpart A—General Provisions | § 10.1 Purpose. | NRC | [64 FR 15641, Apr. 1, 1999, as amended at 72 FR 49483, Aug. 28, 2007] | (a) This part establishes the criteria, procedures, and methods for resolving questions concerning: (1) The eligibility of individuals who are employed by or applicants for employment with NRC contractors, agents, and other individuals who are NRC employees or applicants for NRC employment, and other persons designated by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs of the NRC, for access to Restricted Data under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, or for access to national security information; (2) The eligibility of NRC employees, or the eligibility of applicants for employment with the NRC, for employment clearance; and (3) The eligibility of individuals who are employed by or are applicants for employment with NRC licensees, certificate holders, holders of standard design approvals under part 52 of this chapter, applicants for licenses, certificates, and NRC approvals, and others who may require access related to a license, certificate, or NRC approval, or other activities as the Commission may determine, for access to Restricted Data under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, or for access to national security information. (b) This part is published to implement the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, Executive Order 10865, 25 FR 1583 (February 24, 1960) Executive Order 10450, 18 FR 2489 (April 27, 1954), and Executive Order 12968, 60 FR 40245 (August 2, 1995). | ||||
| 10:10:1.0.1.1.8.1.72.2 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | A | Subpart A—General Provisions | § 10.2 Scope. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 64 FR 15641, Apr. 1, 1999; 72 FR 49483, Aug. 28, 2007] | The criteria and procedures in this part shall be used in determining eligibility for NRC access authorization and/or employment clearance involving: (a) Employees (including consultants) of contractors and agents of the Nuclear Regulatory Commission and applicants for employment; (b) NRC licensees, certificate holders and holders of standard design approvals under part 52 of this chapter, applicants for licenses, certificates, and standard design approvals under part 52 of this chapter, and their employees (including consultants) and applicants for employment (including consulting); (c) NRC employees (including consultants) and applicants for employment; and (d) Any other person designated by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs of the Nuclear Regulatory Commission. | ||||
| 10:10:1.0.1.1.8.1.72.3 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | A | Subpart A—General Provisions | § 10.3 [Reserved] | NRC | ||||||
| 10:10:1.0.1.1.8.1.72.4 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | A | Subpart A—General Provisions | § 10.4 Policy. | NRC | It is the policy of the Nuclear Regulatory Commission to carry out its responsibility for the security of the nuclear energy program in a manner consistent with traditional American concepts of justice. To this end, the Commission has established criteria for determining eligibility for access authorization and/or employment clearance and will afford those individuals described in § 10.2 the opportunity for administrative review of questions concerning their eligibility for access authorization and/or employment clearance. | |||||
| 10:10:1.0.1.1.8.1.72.5 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | A | Subpart A—General Provisions | § 10.5 Definitions. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 51 FR 35999, Oct. 8, 1986; 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15641, Apr. 1, 1999; 75 FR 73938, Nov. 30, 2010] | Access authorization means an administrative determination that an individual (including a consultant) who is employed by or an applicant for employment with the NRC, NRC contractors, agents, and licensees of the NRC, or other person designated by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs, is eligible for a security clearance for access to Restricted Data or National Security Information. Commission means the Nuclear Regulatory Commission of five members or a quorum thereof sitting as a body, as provided by section 201 of the Energy Reorganization Act of 1974, or its designee. Eligible or Eligibility means both initial eligibility and continued eligibility of an individual for access authorization and/or employment clearance. Employment Clearance means an administrative determination that an individual (including a consultant) who is an NRC employee or applicant for NRC employment and other persons designated by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs of the NRC is eligible for employment or continued employment pursuant to subsection 145(b) of the Atomic Energy Act of 1954, as amended. Hearing Counsel means an NRC attorney assigned by the General Counsel to prepare and administer hearings in accordance with this part. Hearing Examiner means a qualified attorney appointed by the Director, Office of Administration, to conduct a hearing in accordance with this part. National Security Information means information that has been determined under Executive Order 13526 or any predecessor or successor order to require protection against unauthorized disclosure and that is so designated. NRC Personnel Security Review Panel means an appeal panel appointed by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs and consisting of three members, two of… | ||||
| 10:10:1.0.1.1.8.2.72.1 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | B | Subpart B—Criteria for Determining Eligibility for Access to Restricted Data or National Security Information or an Employment Clearance | § 10.10 Application of the criteria. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 64 FR 15641, Apr. 1, 1999] | (a) The decision as to access authorization and/or employment clearance is a comprehensive, common-sense judgment, made after consideration of all the information, favorable or unfavorable, relevant to whether the granting of access authorization and/or employment clearance would not endanger the common defense and security and would be clearly consistent with the national interest. (b) The criteria in § 10.11 set forth a number of the types of derogatory information used to assist in making determinations of eligibility for access authorization and/or employment clearance. These criteria are not exhaustive but contain the principal types of derogatory information which create a question as to the individual's eligibility for access authorization and/or employment clearance. While there must necessarily be adherence to such criteria, the NRC is not limited to them, nor precluded from exercising its judgment that information or facts in a case under its cognizance are derogatory although at variance with, or outside the scope of, the stated categories. These criteria are subject to continuing review and may be revised from time to time as experience and circumstances may make desirable. (c) When the reports of investigation of an individual contain information reasonably tending to establish the truth of one or more of the items in the criteria, such information shall be regarded as derogatory and shall create a question as to the individual's eligibility for access authorization and/or employment clearance. A question concerning the eligibility of an individual for access authorization and/or employment clearance shall be resolved in accordance with the procedures set forth in § 10.20 et seq. (d) In resolving a question concerning the eligibility or continued eligibility of an individual for access authorization and/or employment clearance, the following principles shall be applied by the Director, Division of Facilities and Security, Hearing Examiners, and the NRC Personnel Security Review Panel: (1) Inform… | ||||
| 10:10:1.0.1.1.8.2.72.2 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | B | Subpart B—Criteria for Determining Eligibility for Access to Restricted Data or National Security Information or an Employment Clearance | § 10.11 Criteria. | NRC | (a) The criteria for determining eligibility for access authorization and/or employment clearance shall relate, but not be limited, to the following where an individual: (1) Committed, attempted to commit, aided, or abetted another who committed or attempted to commit any act of sabotage, espionage, treason, sedition, or terrorism. (2) Publicly or privately advocated actions that may be inimical to the interest of the United States, or publicly or privately advocated the use of force or violence to overthrow the Government of the United States or the alteration of the form of government of the United States by unconstitutional means. (3) Knowingly established or continued a sympathetic association with a saboteur, spy, traitor, seditionist, anarchist, terrorist, or revolutionist, or with an espionage agent or other secret agent or representative of a foreign nation whose interests may be inimical to the interests of the United States, or with any person who advocates the use of force or violence to overthrow the Government of the United States or the alteration of the form of government of the United States by unconstitutional means. (4) Joined or engaged in any activity knowingly in sympathy with or in support of any foreign or domestic organization, association, movement, group, or combination of persons which unlawfully advocates or practices the commission of acts of force or violence to prevent others from exercising their rights under the Constitution or laws of the United States or any State or any subdivisions thereof by unlawful means, or which advocate the use of force and violence to overthrow the Government of the United States or the alteration of the form of government of the United States by unconstitutional means. (Ordinarily, criteria (3) and (4) will not include chance or casual meetings or contacts limited to normal business or official relations.) (5) Deliberately misrepresented, falsified or omitted relevant and material facts from or in a personnel security questionnaire, a personal qua… | |||||
| 10:10:1.0.1.1.8.2.72.3 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | B | Subpart B—Criteria for Determining Eligibility for Access to Restricted Data or National Security Information or an Employment Clearance | § 10.12 Interview and other investigation. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15642, Apr. 1, 1999] | (a) The Director, Division of Facilities and Security, Office of Administration, may authorize the granting of access authorization and/or employment clearance on the basis of the information in the possession of the NRC or may authorize an interview with the individual, if the individual consents to be interviewed, or other investigation as the Director deems appropriate. On the basis of this interview and/or an investigation, the Director may authorize the granting of access authorization and/or employment clearance. (b) The individual may elect on constitutional or other grounds not to participate in an interview or other investigation; however, such refusal or failure to furnish or authorize the furnishing of relevant and material information is deemed to be derogatory information pursuant to § 10.11(a) (5) and (12). (c) If the Director, Division of Facilities and Security, cannot make a favorable finding regarding the eligibility of an individual for access authorization and/or employment clearance, the question of the individual's eligibility must be resolved in accordance with the procedures set forth in § 10.20 et seq. | ||||
| 10:10:1.0.1.1.8.3.72.1 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.20 Purpose of the procedures. | NRC | [64 FR 15642, Apr. 1, 1999] | These procedures establish methods for the conduct of hearings and administrative review of questions concerning an individual's eligibility for an access authorization and/or an employment clearance pursuant to the Atomic Energy Act of 1954, as amended, and Executive Orders 10450, 10865, and 12968 when a resolution favorable to the individual cannot be made on the basis of the interview or other investigation. | ||||
| 10:10:1.0.1.1.8.3.72.10 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.29 Recommendation of the Hearing Examiner. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989] | (a) The Hearing Examiner's findings and recommendation shall be based upon the entire record consisting of the transcript of the hearing, the documentary and other evidence adduced therein, and the letter of notification and answer. The Hearing Examiner shall also consider the circumstances of the receipt of evidence pursuant to § 10.28, the individual's record of past employment, and the nature and sensitivity of the job the individual is or may be expected to perform. (b) The Hearing Examiner shall make specific findings on each allegation in the notification letter including the reasons for his or her findings, and shall make a recommendation as to the action which should be taken in the case. (c) The Hearing Examiner's recommendation shall be predicated upon his or her findings. If, after considering all the factors in light of the criteria in this part, the Hearing Examiner is of the opinion that granting or continuing access authorization and/or employment clearance to the individual will not endanger the common defense and security and will be clearly consistent with the national interest, a favorable recommendation shall be made; otherwise, an adverse recommendation shall be made. (d) The Hearing Examiner shall submit his or her findings and recommendation in a signed report together with the record of the case to the Director, Office Administration, with the least practical delay. (e) The Hearing Examiner shall not consider the possible impact of the loss of the individual's services upon the NRC program. | ||||
| 10:10:1.0.1.1.8.3.72.11 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.30 New evidence. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31610, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989] | After the close of the hearing, in the event the individual discovers new evidence not previously available or known to him or her, the individual may petition the Hearing Examiner if the Hearing Examiner's recommendation has not yet been issued, or thereafter, the Director, Office of Administration, to reopen the record to receive that evidence. If the Hearing Examiner or the Director, respectively, deem it material and appropriate, the record may be reopened to accept the evidence either by stipulation, with the agreement of the Hearing Counsel, or in a reconvened hearing. | ||||
| 10:10:1.0.1.1.8.3.72.12 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.31 Actions on the recommendations. | NRC | [64 FR 15643, Apr. 1, 1999] | (a) Upon receipt of the findings and recommendation from the Hearing Examiner, and the record, the Director, Office of Administration, shall forthwith transmit it to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs who has the discretion to return the record to the Director, Office of Administration, for further proceedings by the Hearing Examiner with respect to specific matters designated by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs. (b)(1) In the event of a recommendation by the Hearing Examiner that an individual's access authorization and/or employment clearance be denied or revoked, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs shall immediately notify the individual in writing of the Hearing Examiner's findings with respect to each allegation contained in the notification letter, and that the individual has a right to request a review of his or her case by the NRC Personnel Security Review Panel and of the right to submit a brief in support of his or her contentions. The request for a review must be submitted to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs within five days after the receipt of the notice. The brief will be forwarded to the for transmission to the NRC Personnel Security Review Panel not later than 10 days after receipt of the notice. (2) In the event the individual fails to request a review by the NRC Personnel Security Review Panel of an adverse recommendation within the prescribed time, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs may at his or her discretion request a review of the record of the case by the NRC Personnel Security Review Panel. The request will … | ||||
| 10:10:1.0.1.1.8.3.72.13 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.32 Recommendation of the NRC Personnel Security Review Panel. | NRC | [64 FR 15644, Apr. 1, 1999] | (a) The Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs shall designate an NRC Personnel Security Review Panel to conduct a review of the record of the case. The NRC Personnel Security Review Panel shall be comprised of three members, two of whom shall be selected from outside the security field. To qualify as an NRC Personnel Security Review Panel member, the person designated shall have an NRC “Q” access authorization and may be an employee of the NRC, its contractors, agents, or licensees. However, no employee or consultant of the NRC shall serve as an NRC Personnel Security Review Panel member reviewing the case of an employee (including a consultant) or applicant for employment with the NRC; nor shall any employee or consultant of an NRC contractor, agent or licensee serve as an NRC Personnel Security Review Panel member reviewing the case of an employee (including a consultant) or an applicant for employment of that contractor, agent, or licensee. No NRC Personnel Security Review Panel member shall be selected who has knowledge of the case or of any information relevant to the disposition of it, or who for any reason would be unable to issue a fair and unbiased recommendation. (b) The NRC Personnel Security Review Panel shall consider the matter under review based upon the record supplemented by any brief submitted by the individual or the Hearing Counsel. The NRC Personnel Security Review Panel may request additional briefs as the Panel deems appropriate. When the NRC Personnel Security Review Panel determines that additional evidence or further proceedings are necessary, the record may be returned to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs with a recommendation that the case be returned to the Director, Office of Administration, for appropriate action, which may include returning the case to the Hearing Examiner and reconvening the … | ||||
| 10:10:1.0.1.1.8.3.72.14 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.33 Action by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs. | NRC | [64 FR 15644, Apr. 1, 1999] | (a) The Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs, on the basis of the record accompanied by all findings and recommendations, shall make a final determination whether access authorization and/or employment clearance shall be granted, denied, or revoked, except when the provisions of § 10.28 (i), (j), or (l) have been used and the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs determination is adverse, the Commission shall make the final agency determination. (b) In making the determination as to whether an access authorization and/or an employment clearance shall be granted, denied, or revoked, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs or the Commission shall give due recognition to the favorable as well as the unfavorable information concerning the individual and shall take into account the value of the individual's services to the NRC's program and the consequences of denying or revoking access authorization and/or employment clearance. (c) In the event of an adverse determination, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs shall promptly notify the individual through the Director, Office of Administration, of his or her decision that an access authorization and/or an employment clearance is being denied or revoked and of his or her findings with respect to each allegation contained in the notification letter for transmittal to the individual. (d) In the event of a favorable determination, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs shall promptly notify the individual through the Director, Office of Administration. | ||||
| 10:10:1.0.1.1.8.3.72.15 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.34 Action by the Commission. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31610, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15645, Apr. 1, 1999] | (a) Whenever, under the provisions of § 10.28(i), (j), or (l) an individual has not been afforded an opportunity to confront and cross-examine witnesses who have furnished information adverse to the individual and an adverse recommendation has been made by the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs , the Commission shall review the record and determine whether an access authorization and/or an employment clearance should be granted, denied, or revoked, based upon the record. (b) When the Commission determines to deny or revoke access authorization and/or employment clearance, the individual shall promptly be notified through the Director, Office of Administration, of its decision that access authorization and/or employment clearance is being denied or revoked and of its findings and conclusions with respect to each allegation contained in the notification letter for transmittal to the individual. (c) Nothing contained in these procedures shall be deemed to limit or affect the responsibility and powers of the Commission to deny or revoke access to Restricted Data or national security information if the security of the nation so requires. Such authority may not be delegated and may be exercised when the Commission determines that invocation of the procedures prescribed in this part is inconsistent with the national security. Such determination shall be conclusive. | ||||
| 10:10:1.0.1.1.8.3.72.16 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.35 Reconsideration of cases. | NRC | [64 FR 15645, Apr. 1, 1999] | (a) Where, pursuant to the procedures set forth in §§ 10.20 through 10.34, the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs or the Commission has made a determination granting an access authorization and/or an employment clearance to an individual, the individual's eligibility for an access authorization and/or an employment clearance will be reconsidered only when subsequent to the time of that determination, new derogatory information has been received or the scope or sensitivity of the Restricted Data or National Security Information to which the individual has or will have access has significantly increased. All new derogatory information, whether resulting from the NRC's reinvestigation program or other sources, will be evaluated relative to an individual's continued eligibility in accordance with the procedures of this part. (b) Where, pursuant to these procedures, the Commission or Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs has made a determination denying or revoking an access authorization and/or an employment clearance to an individual, the individual's eligibility for an access authorization and/or an employment clearance may be reconsidered when there is a bona fide offer of employment and/or a bona fide need for access to Restricted Data or National Security Information and either material and relevant new evidence is presented, which the individual and his or her representatives are without fault in failing to present before, or there is convincing evidence of reformation or rehabilitation. Requests for reconsideration must be submitted in writing to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs through the Director, Office of Administration. Requests must be accompanied by an affidavit setting forth in detail the information referred to above. The … | ||||
| 10:10:1.0.1.1.8.3.72.2 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.21 Suspension of access authorization and/or employment clearance. | NRC | [64 FR 15642, Apr. 1, 1999] | In those cases where information is received which raises a question concerning the continued eligibility of an individual for an access authorization and/or an employment clearance, the Director, Division of Facilities and Security, through the Director, Office of Administration, shall forward to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs or other Deputy Executive Director, his or her recommendation as to whether the individual's access authorization and/or employment clearance should be suspended pending the final determination resulting from the operation of the procedures provided in this part. In making this recommendation the Director, Division of Facilities and Security, shall consider factors such as the seriousness of the derogatory information developed, the degree of access of the individual to classified information, and the individual's opportunity by reason of his or her position to commit acts adversely affecting the national security. An individual's access authorization and/or employment clearance may not be suspended except by the direction of the Executive Director for Operations, Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs or other Deputy Executive Director. | ||||
| 10:10:1.0.1.1.8.3.72.3 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.22 Notice to individual. | NRC | [64 FR 15642, Apr. 1, 1999] | A notification letter, prepared by the Division of Facilities and Security, approved by the Office of the General Counsel, and signed by the Director, Office of Administration, must be presented to each individual whose eligibility for an access authorization and/or an employment clearance is in question. Where practicable, the letter will be presented to the individual in person. The letter will be accompanied by a copy of this part and must state: (a) That reliable information in the possession of the NRC has created a substantial doubt concerning the individual's eligibility for an access authorization and/or an employment clearance; (b) The information that creates a substantial doubt regarding the individual's eligibility for an access authorization and/or an employment clearance, that must be as comprehensive and detailed as the national security interests and other applicable law permit; (c) That the individual has the right to be represented by counsel or other representative at their own expense; (d) That the individual may request within 20 days of the date of the notification letter, any documents, records and reports which form the basis for the question of their eligibility for an access authorization and/or an employment clearance. The individual will be provided within 30 days all such documents, records and reports to the extent they are unclassified and do not reveal a confidential source. The individual may also request the entire investigative file, which will be promptly provided, as permitted by the national security interests and other applicable law; (e) That unless the individual files with the Director, Office of Administration, a written request for a hearing within 20 days of the individual's receipt of the notification letter or 20 days after receipt of the information provided in response to a request made under paragraph (d) of this section, whichever is later, the Director, Division of Facilities and Security, through the Director, Office of Administration, will submit a recomm… | ||||
| 10:10:1.0.1.1.8.3.72.4 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.23 Failure of individual to request a hearing. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15642, Apr. 1, 1999] | (a) In the event the individual fails to file a timely written request for a hearing pursuant to § 10.22, a recommendation as to the final action to be taken will be made by the Director, Division of Facilities and Security, through the Director, Office of Administration, to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs on the basis of the information in the possession of the NRC, including any answer filed by the individual. (b) The Director, Office of Administration, may for good cause shown, at the request of the individual, extend the time for filing a written request for a hearing or for filing a written answer to the matters contained in the notification letter. | ||||
| 10:10:1.0.1.1.8.3.72.5 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.24 Procedures for hearing and review. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 51 FR 35999, Oct. 8, 1986; 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989] | (a) Upon receipt of a timely filed request for a hearing and answer complying with the requirements set forth in § 10.22, the Director, Office of Administration, shall forthwith appoint a Hearing Examiner, and the General Counsel shall forthwith assign an NRC attorney to act as Hearing Counsel. The Director, Office of Administration, shall promptly notify the individual of the identity of the Hearing Examiner and proposed hearing date, which shall be selected with due regard for the convenience of the parties and their representatives. (b) Within 72 hours of being notified of the identity of the Hearing Examiner, the individual may request that the Hearing Examiner be disqualified for cause by filing with the Director, Office of Administration, a written statement of the individual's reasons for seeking disqualification. The time for filing the request may be extended by the Director, Office of Administration, for good cause shown. If the Director, Office of Administration, grants the request the procedures of paragraph (a) of this section and this paragraph shall be followed just as though there had been no prior appointment. (c) The individual shall have the right to appear at the hearing before the Hearing Examiner, to be represented by counsel or other representative, to introduce documentary or other evidence, and to call, examine, and cross-examine witnesses, subject to the provisions and limitations set forth in this part. | ||||
| 10:10:1.0.1.1.8.3.72.6 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.25 NRC Hearing Counsel. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 64 FR 15643, Apr. 1, 1999] | (a) Hearing Counsel assigned pursuant to § 10.24 will, before the scheduling of the hearing, review the information in the case and will request the presence of witnesses and the production of documents and other physical evidence relied upon by the Director, Division of Facilities and Security, in making a finding that a question exists regarding the eligibility of the individual for an NRC access authorization and/or an employment clearance in accordance with the provisions of this part. When the presence of a witness and the production of documents and other physical evidence is deemed by the Hearing Counsel to be necessary or desirable for a determination of the issues, the Director, Division of Facilities and Security, will make arrangements for the production of evidence and for witnesses to appear at the hearing by subpoena or otherwise. (b) Hearing Counsel is authorized to consult directly with individual's counsel or representative or the individual, if the individual is not so represented, for purposes of reaching mutual agreement upon arrangements for expeditious hearing of the case. Such arrangements may include clarification of issues and stipulations with respect to testimony and contents of documents and other physical evidence. Such stipulations when entered into shall be binding upon the individual and the NRC for the purposes of this part. Prior to any consultation with the individual, the Hearing Counsel shall advise the individual of his or her rights under this part, of his or her right to counsel or other representation, and of the possibility that any statement made by the individual to the Hearing Counsel may be used in subsequent proceedings. (c) The individual is responsible for producing witnesses in his or her own behalf and/or presenting other evidence before the Hearing Examiner to support the individual's answer and defense to the allegations contained in the notification letter. When requested by the individual, however, the Hearing Counsel may assist the individual to the extent… | ||||
| 10:10:1.0.1.1.8.3.72.7 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.26 Appointment of Hearing Examiner. | NRC | The appointment of a Hearing Examiner, pursuant to § 10.24 of this part, shall be from a list of qualified attorneys possessing the highest degree of integrity, ability, and good judgment. To qualify, an attorney shall have an NRC “Q” access authorization and may be an employee of the NRC, its contractors, agents or licensees. However, no employee or consultant of the NRC shall serve as Hearing Examiner hearing the case of an employee (including a consultant) or applicant for employment with the NRC; nor shall any employee or consultant of an NRC contractor, agent or licensee serve as Hearing Examiner hearing the case of an employee (including a consultant) or an applicant for employment of that contractor, agent, or licensee. No Hearing Examiner shall be selected who has knowledge of the case or of any information relevant to the disposition of it, or who for any reason would be unable to issue a fair and unbiased recommendation. | |||||
| 10:10:1.0.1.1.8.3.72.8 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.27 Prehearing proceedings. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15643, Apr. 1, 1999] | (a) After the appointment of the Hearing Examiner, he or she shall be furnished the record in the case, which shall consist of the letter of notification, the request for hearing and its supporting answer, and the notice of hearing, if it has been issued, and any stipulations agreed to by the individual and the Hearing Counsel. (b) The Hearing Examiner may on his or her own motion, or on that of either party, convene a prehearing conference with the Hearing Counsel and the individual and his or her counsel or representative, if any, for the purpose of clarifying the issues, identifying witnesses who may be called, identifying documents and other physical evidence that may be offered into evidence, and entering into stipulations of fact. (c) The parties will be notified by the Hearing Examiner at least ten days in advance of the hearing of the time and place of the hearing. For good cause shown, the Hearing Examiner may order postponements or continuances from time to time. If, after due notice, the individual fails to appear at the hearing, or appears but is not prepared to proceed, the Hearing Examiner shall, unless good cause is shown, return the case to the Director, Division of Facilities and Security, who shall make a recommendation on final action to be taken, through the Director, Office of Administration, to the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs on the basis of the information in the possession of the NRC. | ||||
| 10:10:1.0.1.1.8.3.72.9 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | C | Subpart C—Procedures | § 10.28 Conduct of hearing. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31609, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989; 64 FR 15643, Apr. 1, 1999] | (a) The Hearing Examiner shall conduct the hearing in an orderly, impartial and decorous manner. Technical rules of evidence may be relaxed so that a full evidentiary record may be made based on all material and relevant facts. Hearsay evidence may for good cause shown be received at the discretion of the Hearing Examiner and accorded such weight as the circumstances warrant. (b) The proceedings shall be open only to duly authorized representatives of the staff of the NRC, the individual, his or her counsel or representative, and such persons as may be officially authorized by the Hearing Examiner. Witnesses shall not testify in the presence of other witnesses except that the Hearing Examiner may, at his or her discretion, allow for expert witnesses to be present during testimony relevant to their own testimony. (c) Witnesses, including the individual, shall be examined under oath or affirmation by the party who called them and may be cross-examined by the other. The Hearing Examiner shall rule on all evidentiary matters, may further examine any witness, and may call for additional witnesses or the production of documentary or other physical evidence if, in the exercise of his or her discretion, such additional evidence is deemed necessary to the resolution of an issue. (d) If it appears during the hearing that Restricted Data or national security information may be disclosed, the Hearing Examiner shall assure that disclosure is made only to persons authorized to receive it. (e) The Hearing Examiner may, at any time during the hearing, permit the Hearing Counsel to amend the notification letter to add or modify allegations to be considered. In the event of such an amendment to the notification letter, the individual shall be given an opportunity to answer the amended allegations. If the changes are of such a substantial nature that the individual cannot answer the amended allegations without additional time, the Hearing Examiner shall grant such additional time as he or she deems necessary. (f) The Hearing E… | ||||
| 10:10:1.0.1.1.8.4.72.1 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | D | Subpart D—Miscellaneous | § 10.36 Terminations. | NRC | In the event the individual is no longer an applicant for access authorization and/or employment clearance or no longer requires such, the procedures of this part shall be terminated without a final determination as to the individual's eligibility for access authorization and/or employment clearance. | |||||
| 10:10:1.0.1.1.8.4.72.2 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | D | Subpart D—Miscellaneous | § 10.37 Attorney representation. | NRC | [47 FR 38676, Sept. 2, 1982, as amended at 52 FR 31610, Aug. 21, 1987; 54 FR 53316, Dec. 28, 1989] | In the event the individual is represented by an attorney or other representative, the individual shall file with the Director, Office of Administration, a document designating such attorney or representative and authorizing such attorney or representative to receive all correspondence, transcripts, and other documents pertaining to the proceeding under this part. | ||||
| 10:10:1.0.1.1.8.4.72.3 | 10 | Energy | I | 10 | PART 10—CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE | D | Subpart D—Miscellaneous | § 10.38 Certifications. | NRC | Whenever information is made a part of the record under the exceptions authorized by § 10.28 (i), (j), or (l), the record shall contain certificates evidencing that the required determinations have been made. | |||||
| 15:15:1.1.1.1.15.0.1.1 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.0 General. | DOC | [51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990] | (a) Introduction. The Department of Commerce (hereinafter referred to as the “Department”) recognizes the importance, the advantages, and the benefits of voluntary standards and standardization activities. Such standards may cover, but are not limited to, terms, classes, sizes (including quantities of packaged consumer commodities), dimensions, capacities, quality levels, performance criteria, inspection requirements, marking requirements, testing equipment, test procedures and installation procedures. Economic growth is promoted through: (1) Reduction of manufacturing costs, inventory costs, and distribution costs; (2) Better understanding among manufacturers, producers, or packagers (hereinafter referred to as producers), distributors, users, and consumers; and (3) Simplification of the purchase, installation, and use of the product being standardized. (b) Requirements for Department of Commerce sponsorship. The Department may sponsor the development of a voluntary Product Standard if, upon receipt of a request, the Department determines that: (1) The proposed standard is likely to have substantial public impact; (2) The proposed standard reflects the broad interest of an industry group or an organization concerned with the manufacture, production, packaging, distribution, testing, consumption, or use of the product, or the interest of a Federal or State agency; (3) The proposed standard would not duplicate a standard published by, or actively being developed or revised by, a private standards-writing organization to such an extent that it would contain similar requirements and test methods for identical types of products, unless such duplication was deemed by the Department to be in the public interest; (4) Lack of government sponsorship would result in significant public disadvantage for legal reasons or reasons of domestic and international trade; (5) The proposed standard is not appropriate for development and maintenance by a private standards-writing organization; and (6) The proposed standa… | |||||||
| 15:15:1.1.1.1.15.0.1.10 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.9 Publication of a standard. | DOC | A Voluntary Product Standard published by the department under these procedures shall be assigned an appropriate number for purposes of identification and reference. Public notice shall be given regarding the publication and identification of the standard. A voluntary standard by itself has no mandatory or legally binding effect. Any person may choose to use or not to use such a standard. Appropriate reference in contracts, codes, advertising, invoices, announcements, product labels, and the like may be made to a Voluntary Product Standard published under these procedures. Such reference shall be in accordance with such policies as the Department may establish, but no product may be advertised or represented in any manner which would imply or tend to imply approval or endorsement of that product by the Department or by the Federal Government. | ||||||||
| 15:15:1.1.1.1.15.0.1.11 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.10 Review of published standards. | DOC | (a) Each standard published under these or previous procedures shall be reviewed regularly to determine the feasibility of transferring sponsorship to a private standards-writing organization. While the Department encourages the development of standards to replace Voluntary Product Standards by private standards-writing organizations, withdrawal of a Voluntary Product Standard, which meets the requirements of § 10.0(b), shall not be considered until a replacement standard is published. (b) Each standard published under these or previous procedures shall be reviewed by the Department, with such assistance of the Standing Committee or others as may be deemed appropriate by the Department, within 5 years after initial issuance or last revision and at least every 5 years thereafter. The purpose of this review shall be to determine whether the standard has become obsolete, technically inadequate, no longer acceptable to or used by the industry, or inconsistent with law or established public policy. (c) If any of the above conditions is found to exist, the Department shall initiate action to amend, revise, or withdraw the standard in accordance with § 10.11 or § 10.13. If none is found to exist, the standard shall be kept in effect provided adequate funding is maintained. | ||||||||
| 15:15:1.1.1.1.15.0.1.12 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.11 Revision or amendment of a standard. | DOC | (a) A published standard shall be subject to revision or amendment when it is determined to be inadequate by its Standing Committee or by the Department of one or more of the following reasons or for any other appropriate reasons: (1) Any portion of the standard is obsolete, technically inadequate, or no longer generally acceptable to or used by the industry; (2) The standard or any part of it is inconsistent with law or established public policy; or (3) The standard or any part of it is being used to mislead users or consumers or is determined to be against the interest of users, consumers, or the public in general. (b) A revision of a standard shall be considered by the Department to include changes which are comprehensive in nature, which have a substantive effect on the standards, which change the level of performance or safety or the design characteristics of the product being standardized, or which cannot reasonably be injected into a standard without disturbing the general applicability of the standard. Each suggestion for revision shall be submitted by the Department to the Standing Committee for appropriate consideration. The Standing Committee shall serve the same functions in the revision of a standard as the Standard Review Committee serves in the development of a new standard. The processing of a revision of a standard shall be dependent upon the age of the standard as computed from its effective date and shall be accomplished as follows: (1) A proposed revision of a standard older than 5 years at the time such proposed revision is submitted to the Standing Committee by the Department shall be processed as a new standard under these procedures and, when approved for publication, the standard shall be republished and reidentified to indicate the year in which the revision became effective. The revised standard shall supersede the previously published standard. (2) A proposed revision of a standard less than 5 years at the time such proposed revision is submitted to the Standing Committee by the … | ||||||||
| 15:15:1.1.1.1.15.0.1.13 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.12 Editorial changes. | DOC | The Department may, without prior notice, make such editorial or other minor changes as it deems necessary to reduce ambiguity or to improve clarity in any proposed, recommended, or published standard, or revision or amendment thereof. | ||||||||
| 15:15:1.1.1.1.15.0.1.14 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.13 Withdrawal of a published standard. | DOC | [51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990] | (a) Standards published under these and previous procedures may be withdrawn by the Director of the National Institute of Standards & Technology at any time. Such action will be taken if, after consultation with the Standing Committee as provided in paragraph (a)(1) of this section and after public notice, the Director determines that the standard is: Obsolete; technically inadequate; no longer generally acceptable to and used by the industry; inconsistent with law or established public policy; not in the public interest; or otherwise inappropriate; and revision or amendment is not feasible or would serve no useful purpose. Additionally, a standard may be withdrawn if it cannot be demonstrated that a particular standard has substantial public impact, that it does not duplicate a standard published by a private standards-writing organization, or that lack of government sponsorship would result in significant public disadvantage for legal reasons or for reasons of domestic and international trade. The Director may withdraw a standard if costs to maintain such a standard are not reimbursed by the proponent or other government agencies. (1) Before withdrawing a standard published under these procedures, the Director will review the relative advantages and disadvantages of amendment, revision, development of a new standard, or withdrawal with the members of the Standing Committee, if such committee was appointed or reappointed within the previous five years. (2) Public notice of intent to withdraw an existing standard published under these procedures shall be given and a 30-day period will be provided for the filing with the Director or written objections to the withdrawal. Such objections will be considered and analyzed by the Director before a determination is made to withdraw the standard. If the Director determines that a particular standard does not meet the criteria set out in § 10.0(b), the standard will be withdrawn. (b) The filing under paragraph (a) of this section of a request to retain a standard or sta… | |||||||
| 15:15:1.1.1.1.15.0.1.15 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.14 Appeals. | DOC | [51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990] | (a) Any person directly affected by a procedural action taken by NIST or the Standard Review Committee under §§ 10.5, 10.6 or 10.7 regarding the development of a standard, by NIST or the Standing Committee under § 10.10 regarding the review of a published standard, or under § 10.11 regarding the revision of a standard, or under § 10.13 regarding the withdrawal of a standard, may appeal such action. (b) Such appeal shall be filed in written form with the body taking the action complained of (NIST, the Standard Review Committee, or the Standing Committee) within 30 days after the date of announcement of the action. (c) If appeal is filed with the Standard Review Committee or the Standing Committee, the Committee shall attempt to resolve the appeal informally. If the appeal is filed with NIST, NIST with the consultation and advice of the Standard Review Committee or the Standing Committee, whichever is appropriate, shall attempt to resolve the appeal informally. (d) If the appeal is to the Standard Review Committee or the Standing Committee and the Committee is unable to resolve such an appeal informally, the Committee shall hold a hearing regarding the appeal. Announcement of the hearing shall be made to members of the Standard Review Committee or the Standing Committee and all the acceptors of record, when appropriate, as well as other known interests. Notice of the hearing shall be published in the Federal Register. The hearing will be an informal, nonadversary proceeding at which there will be no formal pleadings or adverse parties. Written statements will be furnished by witnesses prior to the hearing. A record of the hearing will be made. Copies of the written statements and the record of the hearing will be available at cost. (e) Those members of the Committee hearing the appeal will develop a recommendation to the Committee concerning the resolution of the appeal. NIST will review the recommendation and if found acceptable will subject it to a letter ballot of the Committee. Approval by three-fourths o… | |||||||
| 15:15:1.1.1.1.15.0.1.16 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.15 Interpretations. | DOC | [51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990] | (a) An interpretation of a Voluntary Product Standard may be obtained through the submission of a written request. The request shall identify the specific section of the standard involved. (b) In the case of PS 20-70, the “American Softwood Lumber Standard,” interpretations shall be made by the American Lumber Standards Committee (ALSC) under the procedures developed by the ALSC and found acceptable to NIST. (c) In the case of the other Voluntary Product Standards, interpretations shall be made by the appropriate Standing Committees under procedures developed by those committees and found acceptable to NIST. | |||||||
| 15:15:1.1.1.1.15.0.1.17 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.16 Effect of procedures. | DOC | Nothing contained in these procedures shall be deemed to apply to the development, publication, revision, amendment, or withdrawal of any standard which is not identified as a “Voluntary Product Standard” by the Department. The authority of the Department with respect to engineering standards activities generally, including the authority to publish appropriate recommendations not identified as “Voluntary Product Standards,” is not limited in any way by these procedures. | ||||||||
| 15:15:1.1.1.1.15.0.1.2 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.1 Initiating development of a new standard. | DOC | (a) Any group or association of producers, distributors, users, or consumers, or a testing laboratory, or a State or Federal agency, may request the Department to initiate the development and publication of a Voluntary Product Standard under these procedures. Requests shall be in writing, signed by a representative of the group or agency, and forwarded to the Department. The initial request may be accompanied by a copy of a draft of the suggested standard. (b) The request shall include a commitment to provide sufficient funding to cover all costs associated with the development and maintenance of the proposed Voluntary Product Standard. (c) The Department may require additional information such as technical, marketing, or other appropriate data essential to discussion and development of the proposed standard, including, but not limited to, physical, mechanical, chemical, or performance characteristics, and production figures. (d) Upon receipt of an appropriate request and after a determination by the Department that the development of a Voluntary Product Standard is justified, the Department may initiate the development by requesting that a draft of the suggested standard be prepared by an appropriate committee, provided such a draft has not previously been submitted under paragraph (a) of this section. (e) The Department may initiate the development of a Voluntary Product Standard, if such action is deemed by the Department to be in the public interest, notwithstanding the absence of a request from an outside source. A voluntary standard initiated by the Department shall be processed in accordance with all requirements of these procedures and shall be developed in the same manner as a voluntary standard initiated by any group referred to in paragraph (a) of this section. (f) An agreement regarding funding procedures and receipt of a deposit estimated by the Department to be sufficient to cover the first year's costs shall occur prior to the initiation of any project. | ||||||||
| 15:15:1.1.1.1.15.0.1.3 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.2 Funding. | DOC | [51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990] | Groups who represent producers, distributors, consumers or users, or others that wish to act or continue to act as proponent organizations for the development or maintenance of a Voluntary Product Standard will be required to pay for administrative and technical support services provided by the National Institute of Standards & Technology and such other direct or indirect costs associated with the development or maintenance of that standard as may be deemed appropriate by the Department, including costs to the Department in connection with the operation of the Standard Review Committee and the Standing Committee. Funds may also be provided by a government agency at the request of a proponent organization or when acting on its own behalf for the development or maintenance of a Voluntary Product Standard. Proponents of standards that meet sponsorship criteria established in these procedures shall furnish an initial deposit of funds sufficient to cover the first year's services and other costs. Estimated annual costs will be based on an hourly rate for salary and overhead established by the Department for the National Institute of Standards & Technology's administrative and technical support services plus estimates of direct costs to provide funds for such items as the travel of consumer representatives unable to otherwise attend committee meetings, travel for Department staff, and printing costs. Project funds will be reviewed annually. Excess funds may be refunded or applied to the next accounting period. Should funds from deposits be inadequate during an accounting period, work on the project will continue only if funds are restored to a level estimated adequate to complete the 12-month period. | |||||||
| 15:15:1.1.1.1.15.0.1.4 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.3 Development of a proposed standard. | DOC | [51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990] | (a) A proposed standard as submitted to the Department: (1) Shall be based on adequate technical information, or, in the case of size standards (including standards covering the quantities for packaged consumer commodities), on adequate marketing information, or both, as determined to be appropriate by the Department; (2) Shall not be contrary to the public interest; (3) Shall be technically appropriate and such that conformance or nonconformance with the standard can be determined either during or after the manufacturing process by inspection or other procedures which may be utilized by either an individual or a testing facility competent in the particular field; (4) Shall follow the format prescribed by the National Institute of Standards & Technology. (Copies of the recommended format may be obtained from the Office of Product Standards Policy, National Institute of Standards & Technology, Gaithersburg, Maryland 20899.); (5) Shall include performance requirements if such are deemed by the Department to be technically sound, feasible, and practical, and the inclusion of such is deemed to be appropriate; (6) May include dimensions, sizes, material specifications, product requirements, design stipulations, component requirements, test methods, testing equipment descriptions, and installation procedures. The appropriateness of the inclusion in a standard of any particular item listed in this subparagraph shall be determined by the Department; and (7) Shall be accompanied by rational statements pertaining to the requirements and test methods contained in the standard, if deemed necessary by the Department. (b) A proposed standard that is determined by the Department to meet the criteria set forth in paragraph (a) of this section may be subjected to further review by an appropriate individual, committee, organization, or agency (either government or nongovernment, but not associated with the proponent group). (c) A proposed standard may be circulated by the Department to appropriate producers, distributors,… | |||||||
| 15:15:1.1.1.1.15.0.1.5 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.4 Establishment of the Standard Review Committee. | DOC | (a) The Department shall establish and appoint the members of a Standard Review Committee within a reasonable time after receiving a proposed standard. The committee shall consist of qualified representatives of producers, distributors, and users or consumers of product for which a standard is sought or any other appropriate general interest groups such as State and Federal agencies. When requested by the Standard Review Committee, the Department shall appoint one voting member from among the representatives of the Federal agencies, other than the Department of Commerce. All other representatives of Federal agencies on the Standard Review Committees shall be advisory nonvoting members. (Alternates to committee members may be designated by the Department.) When deemed appropriate by the Department, project funds under § 10.2 may be made available to assure participation by consumer interests on the committee at required meetings. (b) A Standard Review Committee may remain in existence for a period necessary for the final development of the standard, or for 2 years, whichever is less. (c) The Department shall be responsible for the organization of the committee. Any formal operating procedures developed by the committee shall be subject to approval by the Department. The committee may conduct business either in a meeting or through correspondence, but only if a quorum participates. A quorum shall consist of two-thirds of all voting members of the committee. A majority of the voting members of the committee participating shall be required to approve any actions taken by the committee except for the action of recommending a standard to the Department, the requirements for which are contained in § 10.5(b). | ||||||||
| 15:15:1.1.1.1.15.0.1.6 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.5 Development of a recommended standard. | DOC | (a) The Standard Review Committee, with the guidance and assistance of the Department and, if appropriate, the reviewer designated under § 10.3(b), shall review a proposed standard promptly. If the committee finds that the proposal meets the requirements set forth in § 10.3(a), it may recommend to the Department that the proposal be circulated for acceptance under § 10.6. If, however, the committee finds that the proposal being reviewed does not meet the requirements set forth in § 10.3(a), the committee shall change the proposal, after consulting with the proponent group, so that these requirements are met, before recommending such proposal to the Department. (b) The recommendation of a standard by the Standard Review Committee shall be approved by at least three-quarters, or rejected by more than one-quarter, of all of the members of the committee eligible to vote. The voting on the recommendation of a standard shall be conducted by the Department if conducted by letter ballot. If such voting is accomplished at a meeting of the committee, the balloting shall be either by roll call or by signed written ballot conducted by the Department or the chairman of this committee. If conducted by the chairman, a report of the vote shall be made to the Department within 15 days. If the balloting at the meeting does not result in either approval by at least three-quarters of all members (or alternates) eligible to vote (whether present or not), or rejection by more than one-quarter of the members (or alternates) or the committee eligible to vote, the balloting shall be disregarded and the Department shall subsequently conduct a letter ballot of all members of the committee. (c) Any member of the committee casting a negative ballot shall have the right to support an objection by furnishing the chairman of the committee and the Department with a written statement setting forth the basis for the objection. The written statement of objection shall be filed within 15 days after the date of the meeting during which the voting o… | ||||||||
| 15:15:1.1.1.1.15.0.1.7 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.6 Procedures for acceptance of a recommended standard. | DOC | (a) Upon receipt from the Standard Review Committee of a recommended standard and report, the Department shall give appropriate public notice and distribute the recommended standard for acceptance unless: (1) Upon a showing by any member of the committee who has voted to oppose the recommended standard on the basis of an unresolved objection, the Department determines that if such objection were not resolved, the recommended standard: (i) Would be contrary to the public interest, if published; (ii) Would be technically inadequate; or (iii) Would be inconsistent with law or established public policy; or (2) The Department determines that all criteria and procedures set forth herein have not been met satisfactorily or that there is a legal impediment to the recommended standard. (b) Distribution for acceptance or rejection for the purpose of determining general concurrence will be made to a list compiled by the Department, which, in the judgment of the Department, shall be representative of producers, distributors, and users and consumers. (c) Distribution for comment will be made to any party filing a written request with the Department, and to such other parties as the Department may deem appropriate, including testing laboratories and interested State and Federal agencies. (d) The Department shall analyze the recommended standard and the responses received under paragraphs (b) and (c) of this section. If such analysis indicates that the recommended standard is supported by a consensus, it shall be published as a Voluntary Product Standard by the Department: Provided, That all other requirements listed in these procedures have been satisfied. (e) The following definitions shall apply to the term used in this section: (1) “Consensus” means general concurrence and, in addition, no substantive objection deemed valid by the Department. (2) “General concurrence” means acceptance among those responding to the distribution made under paragraph (b) of this section in accordance with the conditions set forth in… | ||||||||
| 15:15:1.1.1.1.15.0.1.8 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.7 Procedure when a recommended standard is not supported by a consensus. | DOC | If the Department determines that a recommended standard is not supported by a consensus, the Department may: (a) Return the recommended standard to the Standard Review Committee for further action, with or without suggestions; (b) Terminate the development of the recommended standard under these procedures; or (c) Take such other action as it may deem necessary or appropriate under the circumstances. | ||||||||
| 15:15:1.1.1.1.15.0.1.9 | 15 | Commerce and Foreign Trade | 10 | PART 10—PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS | § 10.8 Standing Committee. | DOC | (a) The Department shall establish and appoint the members of a Standing Committee prior to the publication of a standard. The committee may include members from the Standard Review Committee, and shall consist of qualified representatives of producers, distributors, and users or consumers of the product covered by the standard, and representatives of appropriate general interest groups such as municipal, State, and Federal agencies. When requested by the Standing Committee, the Department shall appoint one voting member from among the representatives of the Federal agencies, other than the Department of Commerce. When requested by the Standing Committee for PS 20-70, “American Softwood Lumber Standard,” the Department shall appoint two voting members from among the representatives of the Federal agencies, other than the Department of Commerce. All other representatives of Federal agencies shall be advisory nonvoting members of Standing Committees. (Alternates to committee members may be designated by the Department.) When deemed appropriate by the Department, project funds under § 10.2, may be made available to assure participation by consumer interests on the committee at required meetings. (b) Appointments to a Standing Committee may not exceed a term of 5 years. However, the committee may be reconstituted by the Department whenever appropriate, and members may be reappointed by the Department to succeeding terms. Appointments to the committee will be terminated upon the withdrawal of the standard. (c) The Department shall be responsible for the organization of the committee. Any formal operating procedures developed by the committee shall be subject to approval by the Department. The committee may conduct business either in a meeting or through correspondence, but only if a quorum participates. A quorum shall consist of two-thirds of all voting members of the committee. A majority of the voting members of the committee participating shall be required to approve any actions taken by the committee except for … | ||||||||
| 17:17:1.0.1.1.9.1.7.1 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.1 Scope and applicability of rules of practice. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 49 FR 8225, Mar. 5, 1984; 57 FR 19597, Apr. 15, 1993; 59 FR 5701, Feb. 8, 1994; 63 FR 55791, Oct. 19, 1998; 64 FR 30903, June 9, 1999; 75 FR 55449, Sept. 10, 2010; 90 FR 55645, Dec. 3, 2025] | 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, restricting or modifying of registration as a futures commission merchant, retail foreign exchange dealer, introducing broker, or associated person, floor broker, floor trader, commodity pool operator, commodity trading advisor or leverage transaction merchant pursuant to sections 6(c), 8a(2), 8a(3), 8a(4) and 8a(11) of the Act, 7 U.S.C. 9 and 15, 12a(2), 12a(3), 12a(4) and 12(a)(11), or denial, suspension, or revocation of designation as a contract market pursuant to sections 6(a) and 6(b) of the Act, 7 U.S.C. 8; (b) The issuance of cease and desist orders pursuant to sections 6b and 6(d) of the Act, 7 U.S.C. 13a and 13b; (c) Denial of trading privileges pursuant to section 6(c) of the Act, 7 U.S.C. 9 and 15; (d) The assessment of civil penalties pursuant to sections 6(c) and 6b of the Act, 7 U.S.C. 9 and 15 and 13a; (e) The issuance of restitution orders pursuant to section 6(c) of the Act, 7 U.S.C. 9; and (f) Any other proceedings where the Commission declares them to be applicable. These rules do not apply to: (g) 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; (h) 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; (i) Public rulemaking, except as specifically made applicable by the Rules Relating to Public Rulemaking Procedures. 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. | ||||
| 17:17:1.0.1.1.9.1.7.10 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.10 Ex parte communications. | CFTC | [42 FR 13700, Mar. 11, 1977, as amended at 60 FR 54801, Oct. 26, 1995; 89 FR 71807, Sept. 4, 2024] | (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 Deputy General Counsel for Litigation, Enforcement, and Adjudication and staff of the Office of the General Counsel. (iv) Members of the staff of the Office of Proceedings; 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 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 communi… | ||||
| 17:17:1.0.1.1.9.1.7.11 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.11 Appearance in adjudicatory proceedings. | CFTC | (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, an officer or employee of a State Commission or of a department or political subdivision of a State may represent the State Commission or the department or political subdivision of the State in any proceeding. (2) By attorneys. An attorney-at-law who is admitted to practice before the highest Court in 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 the provisions of part 14 of this title, may represent parties in proceedings before the Commission. (b) Debarment of counsel or representative by administrative law judge during the course of a proceeding. (1) Whenever, while a proceeding is pending before him, the Administrative Law Judge finds that a person acting as counsel or representative for any party to the proceeding is guilty of contemptuous conduct, the Administrative Law Judge 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 sought from any such order, pursuant to the terms of § 10.101, but the proceeding shall not be delayed or suspended pending disposition of the appeal: Provided, That the Administrative Law Judge may suspend the proceedings for a reasonable time for the purpose of enabling the party to obtain other counsel or representative. (2) Whenever the Administrative Law Judge has issued an order precluding a person from further acting as counsel for representative in the proceeding, the Administrative Law Judge 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 tak… | |||||
| 17:17:1.0.1.1.9.1.7.12 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.12 Service and filing of documents; form and execution. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 41 FR 28260, July 9, 1976; 60 FR 54802, Oct. 26, 1995; 63 FR 55791, Oct. 19, 1998; 73 FR 63360, Oct. 24, 2008; 78 FR 12935, Feb. 26, 2013; 89 FR 71807, Sept. 4, 2024; 90 FR 55645, Dec. 3, 2025] | (a) Service by a party or other participant in a proceeding. (1) When one party serves another with documents under these rules, a copy must be served on all other parties as well as filed with the Proceedings Clerk. Similarly, when a person files a document with the Office of Proceedings, the person must serve a copy of the document on all other parties. (2) How service is made. Service shall be made by: (i) Personal service; (ii) First-class or a more expeditious form of United States mail or an overnight or similar commercial delivery service; (iii) Facsimile (“fax”); or (iv) Electronic mail (“email”). (v) Service shall be complete at the time of personal service; upon deposit in the mail or with a similar commercial package delivery service of a properly addressed document for which all postage or delivery service fees have been paid; or upon transmission by fax or email. Where a party effects service by mail or similar package delivery service (but not by fax or email), the time within which the party being served may respond shall be extended by five (5) days. Service by fax or email shall be permitted at the discretion of the Presiding Officer, with the parties' consent. Signed documents that are served by email must be in PDF or other non-alterable form. (3) Service by email or fax 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 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… | ||||
| 17:17:1.0.1.1.9.1.7.2 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.2 Definitions. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54801, Oct. 26, 1995; 89 FR 71807, Sept. 4, 2024; 90 FR 55645, Dec. 3, 2025] | For purposes of this part: (a) Act means the Commodity Exchange Act, as amended, 7 U.S.C. 1, et seq.; (b) Adjudicatory proceeding means a judicial-type proceeding leading to the formulation of a final order, including an order by the Commission instituting proceedings pursuant to the Act, making findings, and imposing remedial sanctions; (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) Proceedings Clerk means any member of the Commission's staff designated as such by the Director of the Office of Proceedings. (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; (l) 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 permitted to any answer, supplement or amendment; (n) Presiding Officer means a member of the Commission, and Administrative Law Judge,… | ||||
| 17:17:1.0.1.1.9.1.7.3 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.3 Suspension, amendment, revocation and waiver of rules. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 44 FR 61327, Oct. 25, 1979; 59 FR 5701, Feb. 8, 1994] | (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(c) 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 respondent of the Commission's complaint and notice of hearing in such proceeding. | ||||
| 17:17:1.0.1.1.9.1.7.4 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.4 Business address; hours. | CFTC | [90 FR 55645, Dec. 3, 2025] | The Office of Proceedings is located at the Commission's Washington, DC headquarters. Emails must be sent to PROC__filings@cftc.gov. The office is open from 8:15 a.m. to 4:45 p.m., Eastern Time, Monday through Friday, except on federal holidays. | ||||
| 17:17:1.0.1.1.9.1.7.5 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.5 Computation of time. | CFTC | 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. | |||||
| 17:17:1.0.1.1.9.1.7.6 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.6 Changes in time permitted for filing. | CFTC | 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. | |||||
| 17:17:1.0.1.1.9.1.7.7 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.7 Date of entry of orders. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54801, Oct. 26, 1995] | 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 Proceedings Clerk. | ||||
| 17:17:1.0.1.1.9.1.7.8 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.8 Presiding officers. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 78 FR 12934, Feb. 26, 2013] | 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 part shall be conducted before a Presiding Officer who is not an Administrative Law Judge, all provisions of this part or of part 3 of this chapter 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 r… | ||||
| 17:17:1.0.1.1.9.1.7.9 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | A | Subpart A—General Provisions | § 10.9 Separation of functions. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 63 FR 55791, Oct. 19, 1998] | (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 Commission who is engaged in the performance of investigative or prosecuting functions in connection with any proceeding shall, in that proceeding or any factually related proceeding, participate or advise in the decision of the Administrative Law Judge or the Commission except as witness or counsel in the proceeding, without the express written consent of the respondents in the proceeding. This provision shall not apply to the members of the Commission. | ||||
| 17:17:1.0.1.1.9.2.7.1 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | B | Subpart B—Institution of Adjudica- tory Proceedings; Pleadings; Motions | § 10.21 Commencement of the proceeding. | CFTC | [63 FR 55791, Oct. 19, 1998; 63 FR 68829, Dec. 14, 1998] | An adjudicatory proceeding is commenced when a complaint and notice of hearing is filed with the Office of Proceedings. | ||||
| 17:17:1.0.1.1.9.2.7.2 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | B | Subpart B—Institution of Adjudica- tory Proceedings; Pleadings; Motions | § 10.22 Complaint and notice of hearing. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995; 63 FR 55791, Oct. 19, 1998] | (a) Content. The complaint and notice of hearing shall include: (1) The legal authority and jurisdiction under which the hearing is held; (2) The matters of fact and law to be considered and determined. The complaint shall set forth the matters of fact alleged therein in such manner as will permit a specific response to each allegation. The notice shall notify the respondent of his right to a hearing and shall specify the time required by § 10.23 of these rules for the filing of an answer and the consequence of failure to file an answer. (b) Service. The Proceedings Clerk shall give appropriate notice to each respondent by serving them with a copy of the complaint and notice of hearing. Service may be made in person, by confirmed telegraphic notice, or by registered mail or certified mail, addressed to the last known business or residence address of the person to be served or the address of his duly authorized agent for service. If a respondent is not found at his last known business or residence address and no forwarding address is available, additional service may be made, at the discretion of the Commission, as follows: (1) By publishing a notice of the filing of the proceeding and a summary of the complaint, approved by the Commission or the Administrative Law Judge, once a week for three consecutive weeks in one or more newspapers having a general circulation where the respondent's last known business or residence address was located and, if ascertainable, where the respondent is believed to reside or be doing business currently; and (2) By continuously displaying the complaint on the Commission's Internet web site during the period referred to in paragraph (b)(1) of this section. | ||||
| 17:17:1.0.1.1.9.2.7.3 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | B | Subpart B—Institution of Adjudica- tory Proceedings; Pleadings; Motions | § 10.23 Answer. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995] | (a) When required. Following service of a complaint and notice of hearing as set forth in § 10.22 of these rules, unless otherwise specified in the notice of hearing, each respondent shall file an answer with the Proceedings Clerk within 20 days. (b) Content of answer. The answer shall include: (1) A statement that the respondent admits, denies, or does not have and is unable to obtain sufficient information to admit or deny each allegation; a statement of a lack of information shall have the effect of a denial; any allegation not expressly denied shall be deemed to be admitted; (2) A statement of the facts supporting each affirmative defense. (c) Effect of failure to file answer. A party who fails to file an answer within 20 days shall be in default and, pursuant to procedures set forth in § 10.93 of these rules, the proceeding may be determined against him by the Administrative Law Judge upon his consideration of the complaint, the allegations of which shall then be deemed to be true. (d) Admission of all allegations of fact. If a respondent's answer admits the truth of all the material allegations of fact contained in the complaint, it shall constitute a waiver of hearing on those allegations. However, the Administrative Law Judge may conduct a hearing, if so requested, by any of the parties. Following waiver, the parties may submit proposed findings and conclusions and briefs, as provided in § 10.82 and may appeal any initial decision to the Commission as provided in § 10.102 of these rules. (e) Motion for more definite statement. Where a reasonable showing is made by a respondent that he cannot frame a responsive answer based on the allegations in the complaint, he may move for a more definite statement of the charges against him before filing an answer. A motion for a more definite statement shall be filed within ten days after service of the complaint and shall specify the defects complained of and the particular allegation as to which a more definite statement is sought. | ||||
| 17:17:1.0.1.1.9.2.7.4 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | B | Subpart B—Institution of Adjudica- tory Proceedings; Pleadings; Motions | § 10.24 Amendments and supplemental pleadings. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 63 FR 55791, Oct. 19, 1998] | (a) Complaint and notice of hearing. The Commission may, at any time, amend the complaint and notice of hearing in any proceeding. If the Commission so amends the complaint and notice of hearing, the Administrative Law Judge shall adjust the scheduling of the proceeding to the extent necessary to avoid any prejudice to any of the parties to the proceeding. Upon motion to the Administrative Law Judge and with notice to all other parties and the Commission, the Division of Enforcement may amend a complaint to correct typographical and clerical errors or to make other technical, non-substantive revisions within the scope of the original complaint. (b) Other pleadings. Except for the complaint and notice of hearing, a party may amend any pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, he may amend it within 20 days after it is served. Otherwise a party may amend a pleading only by leave of the Administrative Law Judge, which shall be freely given when justice so requires. (c) Response to amended pleadings. Any party may file a response to any amendment to any pleading, including the complaint, within ten days after the date of service upon him of the amendment or within the time provided to respond to the original pleading, whichever is later. (d) Pleadings to conform to the evidence. When issues not raised by the pleadings but reasonably within the scope of a proceeding initiated by the complaint are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. | ||||
| 17:17:1.0.1.1.9.2.7.5 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | B | Subpart B—Institution of Adjudica- tory Proceedings; Pleadings; Motions | § 10.25 Form of pleadings. | CFTC | All averments of claim and defense shall be made in consecutively numbered paragraphs. The contents of each paragraph shall be limited as far as practicable to a single set of circumstances. | |||||
| 17:17:1.0.1.1.9.2.7.6 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | B | Subpart B—Institution of Adjudica- tory Proceedings; Pleadings; Motions | § 10.26 Motions and other papers. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995; 63 FR 55791, Oct. 19, 1998] | (a) Presentation. An application for a form of relief not otherwise specifically provided for in these rules shall be made by motion, filed with the Proceedings Clerk, which shall be in writing unless made on the record during a hearing. The motion shall state: (1) The relief sought; (2) the basis for relief; and (3) the authority relied upon. If a motion is supported by briefs, affidavits or other papers, they shall be served and filed with the motion. All motions and applications, unless otherwise provided in these rules, shall be directed to the Administrative Law Judge prior to the filing of an initial decision in a proceeding, and to the Commission after the initial decision has been filed. (b) Answers to motions. Any party may serve and file a written response to a motion within ten days after service of the motion upon him or within such longer or shorter period as established by these rules or as the Administrative Law Judge or the Commission may direct. The absence of a response to a motion may be considered by the Administrative Law Judge or the Commission in deciding whether to grant the requested relief. (c) Motions for procedural orders. Motions for procedural orders, including motions for extension of time, may be acted on at any time, without awaiting a response thereto. Any party adversely affected by such order may request reconsideration, vacation or modification of the order. (d) Dilatory motions. Repetitive or numerous motions dealing with the same subject matter shall not be permitted. (e) Review by the Commission. Interloctory review by the Commission of a ruling on a motion by an Administrative Law Judge may be sought in accordance with the procedures and under the circumstances set forth in § 10.101 of these rules. | ||||
| 17:17:1.0.1.1.9.3.7.1 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | C | Subpart C—Parties and Limited Participation | § 10.31 Parties. | CFTC | The parties to an adjudicatory proceeding shall include the Division of Enforcement, each respondent named in the complaint and each person permitted to intervene pursuant to § 10.33 of these rules. A respondent shall cease to be a party or purposes of a pending proceeding when (a) a default order is entered against him pursuant to § 10.93; or (b) the Commission accepts an offer of settlement pursuant to § 10.108 of these rules. | |||||
| 17:17:1.0.1.1.9.3.7.2 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | C | Subpart C—Parties and Limited Participation | § 10.32 Substitution of parties. | CFTC | Upon motion and for good cause shown the Administrative Law Judge may order a substitution of parties. | |||||
| 17:17:1.0.1.1.9.3.7.3 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | C | Subpart C—Parties and Limited Participation | § 10.33 Intervention as a party. | CFTC | (a) Petition for Leave to Intervene. Any person whose interests may be affected substantially by the matters to be considered in a proceeding may petition the Administrative Law Judge for leave to intervene as a party in the proceeding any time after the institution of a proceeding and before such proceeding has been submitted for final consideration. Petitions for leave to intervene shall be in writing and shall set forth with specificity the nature of the petitioner's interest in the proceeding and the manner in which his interests may be affected substantially. The Administrative Law Judge may direct a petitioner requesting intervention to submit himself for examination as to his interest in the proceeding. (b) Response to petition. A petition for leave to intervene shall be served by the petitioner upon all parties to the proceeding, who may support or oppose the petition in a document filed within ten days after service of the petition upon them or within such other period as the Administrative Law Judge may direct in a particular case. (c) Leave to intervene—when granted. No person shall be admitted as a party to a proceeding by intervention unless the Administrative Law Judge is satisfied that (1) a substantial interest of the person seeking to intervene may be adversely affected by the matter to be considered in the proceeding; (2) that his intervention will not materially prejudice the rights of any party, through delay or otherwise; (3) that his participation as a party will otherwise be consistent with the public interest; and (4) that leave to be heard pursuant to § 10.34 would be inadequate for the protection of his interests. The burden shall be upon the petitioner to satisfy the Administrative Law Judge on these issues. (d) Rights of intervenor. A person who has been granted leave to intervene shall from that time forward have all the rights and responsibilities of a party to the proceeding. | |||||
| 17:17:1.0.1.1.9.3.7.4 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | C | Subpart C—Parties and Limited Participation | § 10.34 Limited participation. | CFTC | (a) Petitions for leave to be heard. Any person may, in the discretion of the Administrative Law Judge, be given leave to be heard in any proceeding as to any matter affecting his interests. Petitions for leave to be heard shall be in writing, shall set forth (1) the nature and extent of the applicant's interest in the proceeding; (2) the issues on which he wishes to participate; and (3) in what manner he wishes to participate. The Administrative Law Judge may direct any person requesting leave to be heard to submit himself to examination as to his interest in the proceeding. (b) Rights of a participant. Leave to be heard pursuant to § 10.34(a) may include such rights of a party as the Administrative Law Judge may deem appropriate, except that oral argument before the Commission may be permitted only by the Commission. | |||||
| 17:17:1.0.1.1.9.3.7.5 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | C | Subpart C—Parties and Limited Participation | § 10.35 Permission to state views. | CFTC | Any person may, in the discretion of the Administrative Law Judge be permitted to file a memorandum or make an oral statement of his views, and the Administrative Law Judge may, in his discretion, accept for the record written communications received from any person. | |||||
| 17:17:1.0.1.1.9.3.7.6 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | C | Subpart C—Parties and Limited Participation | § 10.36 Commission review of rulings. | CFTC | Interlocutory review by the Commission of a ruling as to matters within the scope of § 10.33, § 10.34 or § 10.35 may be sought in accordance with the procedures set forth in § 10.101 of these rules without certification by the Administrative Law Judge. | |||||
| 17:17:1.0.1.1.9.4.7.1 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | D | Subpart D—Prehearing Procedures; Prehearing Conferences; Discovery; Depositions | § 10.41 Prehearing conferences; procedural matters. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 63 FR 55791, Oct. 19, 1998] | In any proceeding the Administrative Law Judge may direct that one or more conferences be held for the purpose of: (a) Clarifying issues; (b) Examining the possibility of obtaining stipulations, admissions of fact and of authenticity or contents of documents; (c) Determining matters of which official notice may be taken; (d) Discussing amendments to pleadings; (e) Limiting the number of witnesses; (f) Considering objections to the introduction of documentary evidence and the testimony of witnesses identified in prehearing materials filed or otherwise furnished by the parties pursuant to § 10.42; (g) Discussing adoption of shortened procedures pursuant to § 10.92; (h) Promoting a fair and expeditious hearing. At or following the conclusion of a prehearing conference, the Administrative Law Judge shall serve a prehearing memorandum containing agreements reached and any procedural determinations made by him, unless the conference shall have been recorded and transcribed in written form and a copy of the transcript has been made available to each party. | ||||
| 17:17:1.0.1.1.9.4.7.2 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | D | Subpart D—Prehearing Procedures; Prehearing Conferences; Discovery; Depositions | § 10.42 Discovery. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995; 63 FR 55792, Oct. 19, 1998; 63 FR 68829, Dec. 14, 1998] | (a) Prehearing materials— (1) In general. Unless otherwise ordered by an Administrative Law Judge, the parties to a proceeding shall furnish to all other parties to the proceeding on or before a date set by the Administrative Law Judge in the form of a prehearing memorandum or otherwise: (i) An outline of its case or defense; (ii) The legal theories upon which it will rely; (iii) The identity, and the city and state of residence, of each witness, other than an expert witness, who is expected to testify on its behalf, along with a brief summary of the matters to be covered by the witness's expected testimony; (iv) A list of documents which it intends to introduce at the hearing, along with copies of any such documents which the other parties do not already have in their possession and to which they do not have reasonably ready access. (2) Expert witnesses. Unless otherwise ordered by the Administrative Law Judge, in addition to the information described in paragraph (a)(1) of this section, any party who intends to call an expert witness shall also furnish to all other parties to the proceeding on or before a date set by the Administrative Law Judge: (i) A statement identifying the witness and setting forth his or her qualifications; (ii) A list of any publications authored by the witness within the preceding ten years; (iii) A list of all cases in which the witness has testified as an expert, at trial or in deposition, within the preceding four years; (iv) A complete statement of all opinions to be expressed by the witness and the basis or reasons for those opinions; and (v) A list of any documents, data or other written information which were considered by the witness in forming his or her opinions, along with copies of any such documents, data or information which the other parties do not already have in their possession and to which they do not have reasonably ready access. (3) The foregoing procedures shall not be deemed applicable to rebuttal evidence submitted by any party at the hearing. (4… | ||||
| 17:17:1.0.1.1.9.4.7.3 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | D | Subpart D—Prehearing Procedures; Prehearing Conferences; Discovery; Depositions | § 10.43 Stipulations. | CFTC | The parties may by stipulation in writing at any stage of the proceeding, or orally made at hearing, agree upon any pertinent facts in the proceeding. It is desirable that the facts be thus agreed upon so far as and whenever practicable. Stipulations may be received in evidence at a hearing and when received in evidence shall be binding on the parties thereto. | |||||
| 17:17:1.0.1.1.9.4.7.4 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | D | Subpart D—Prehearing Procedures; Prehearing Conferences; Discovery; Depositions | § 10.44 Depositions and interrogatories. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995] | (a) When permitted. If it appears that: (1) A prospective witness will be unable to attend or testify at a hearing on the basis of age, illness, infirmity, imprisonment or on the basis that he is or will be outside of the United States at the time of the hearing (unless it appears that the absence of the witness was procured by the party seeking to take the deposition), (2) His testimony is material, (3) It is necessary to take his deposition in the interest of Justice, the Administrative Law Judge may by order direct that his deposition be taken either orally or in the form of written interrogatories, and may issue a subpoena to compel the attendance of the witness for deposition. (b) Application for deposition. Any party desiring to take the deposition of a witness shall make application in writing to the Administrative Law Judge for an order to take deposition. In addition to the showing required in § 10.44(a), the application shall include: (1) The name and post office address of the witness; (2) The specific matters concerning which the witness is expected to testify and their relevance; (3) The reasons why the deposition should be taken, supported by affidavits and a physician's certificate, where appropriate; (4) The time when, the place where, and the name and address of the person before whom the deposition is to be taken; (5) A specification of the documents and materials which the deponent is requested to produce; (6) Application for any subpoenas. (c) Service and reply. A copy of the application to take deposition shall be served upon every other party to the proceeding and upon the person sought to be deposed. Any party or the deponent may serve and file an opposition to the application within seven days after the application is filed. (d) Time when, place where, and officer before whom deposition is taken— (1) Where the deposition is taken. Unless otherwise ordered or agreed to by stipulation, depositions shall be taken in the city or municipality where the deponent is located. … | ||||
| 17:17:1.0.1.1.9.5.7.1 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | E | Subpart E—Hearings | § 10.61 Time and place of hearing. | CFTC | (a) Notice. All parties shall be notified of the time and place of hearing, which shall be fixed with due regard for the public interest and the convenience and necessity of the parties and their representatives. (b) Requests for change. A request for postponement of a hearing or for a change in the place assigned for hearing will be granted by the Administrative Law Judge only for good cause shown. | |||||
| 17:17:1.0.1.1.9.5.7.2 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | E | Subpart E—Hearings | § 10.62 Appearances. | CFTC | (a) Who may appear. The parties may appear in person, by counsel or by other representatives of their choosing, subject to the provisions of § 10.11 of these rules and part 14 of this chapter, dealing with appearance and practice before the Commission. (b) Effect of failure to appear. (1) If any party to the proceeding, after filing an answer fails to appear at the hearing or any part thereof, he shall to that extent be deemed to have waived the right to an oral hearing in the proceeding. In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present may present his evidence, in whole or in part, in the form of affidavits or by oral testimony, before the Administrative Law Judge. (2) A failure to appear at a hearing shall not constitute a waiver of a party's right to propose findings of fact based on the record in the proceeding, to propose conclusions of law or to submit briefs, in the manner provided in § 10.82, if the non-appearing party submits prior to the scheduled hearing or within three days thereafter, a notice of appearance indicating his intent to continue to participate in the proceeding. Otherwise, his failure to appear will constitute a default, and a default order may be sought in accordance with procedures set forth in § 10.93 of these rules. | |||||
| 17:17:1.0.1.1.9.5.7.3 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | E | Subpart E—Hearings | § 10.63 Consolidation; separate hearings. | CFTC | (a) Consolidation. Two or more proceedings involving a common question of law or fact may be joined for hearing of any or all the matters in issue or may be consolidated by order of the Administrative Law Judge. The Administrative Law Judge may make such rulings concerning the conduct of such proceedings as may tend to avoid unnecessary costs or delay. (b) Separate Hearings. The Administrative Law Judge, for the convenience of the parties, to avoid prejudice, or to expedite final resolution of the issues, may order a separate hearing of any claim or issue, or grant a separate hearing to any respondent. | |||||
| 17:17:1.0.1.1.9.5.7.4 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | E | Subpart E—Hearings | § 10.64 Public hearings. | CFTC | All hearings shall be public, except that upon application of a respondent or affected witness the Administrative Law Judge may direct that specific documents or testimony be received and retained non-publicly in order to prevent unwarranted disclosure of trade secrets or sensitive commercial or financial information or an unwarranted invasion of personal privacy. | |||||
| 17:17:1.0.1.1.9.5.7.5 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | E | Subpart E—Hearings | § 10.65 Record of hearing. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995] | (a) Reporting and transcription. Hearings for the purpose of taking evidence shall be recorded and transcribed in written form under the supervision of the Administrative Law Judge by a reporter employed by the Commission for that purpose. The original transcript shall be a part of the record and shall be the sole official transcript. Copies of transcripts, except those portions granted non-public treatment, shall be available from the reporter at rates not to exceed the maximum rates fixed by the contract between the Commission and the reporter. (b) Corrections. Any party may submit a timely request to the Administrative Law Judge to correct the transcript. Corrections may be submitted to the Administrative Law Judge by stipulation of the parties, or by motion by any party, and upon notice to all parties to the proceeding, the Administrative Law Judge may specify corrections of the transcript. A copy of such specification shall be furnished to all parties and made a part of the record. Corrections shall be made by the official reporter, who shall furnish substitute pages of the transcript, under the usual certificate of the reporter, for insertion in the official record. The original uncorrected pages shall be retained in the files of the Proceedings Clerk. | ||||
| 17:17:1.0.1.1.9.5.7.6 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | E | Subpart E—Hearings | § 10.66 Conduct of the hearing. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 63 FR 55793, Oct. 19, 1998; 63 FR 68829, Dec. 14, 1998] | (a) Expedition. Hearings shall proceed expeditiously and insofar as practicable hearings shall be held at one place and shall continue, without suspension, until concluded. (b) Rights of parties. Every party shall be entitled to due notice of hearings, the right to be represented by counsel, and the right to cross-examine witnesses, present oral and documentary evidence, submit rebuttal evidence, raise objections, make arguments and move for appropriate relief. Nothing in this paragraph limits the authority of the Commission or the Administrative Law Judge to exercise authority under other provisions of the Commission's rules, to enforce the requirement that evidence presented be relevant to the proceeding or to limit cross-examination to the subject matter of the direct examination and matters affecting the credibility of the witness. (c) Examination of witnesses. All witnesses at a hearing for the purpose of taking evidence shall testify under oath or affirmation, which shall be administered by the Administrative Law Judge. A witness may be cross-examined by each adverse party and, in the discretion of the Administrative Law Judge, may be cross-examined, without regard to the scope of direct examination, as to any matter which is relevant to the issues in the proceeding. (d) Expert witnesses. The Administrative Law Judge, at his discretion, may order that direct testimony of expert witnesses be made by verified written statement rather than presented orally at the hearing. Any expert witness whose testimony is presented in this manner shall be available for oral cross-examination, and may be examined orally upon re-direct following cross-examination. (e) Exhibits. The original of each exhibit introduced in evidence or marked for identification shall be filed and retained in the docket of the proceeding, unless the Administrative Law Judge permits the substitution of copies for the original documents. A copy of each exhibit introduced by a party or marked for identification at his request shall be … | ||||
| 17:17:1.0.1.1.9.5.7.7 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | E | Subpart E—Hearings | § 10.67 Evidence. | CFTC | (a) Admissibility. Relevant, material and reliable evidence shall be admitted. Irrelevant, immaterial, unreliable and unduly repetitious evidence shall be excluded. (b) Official notice. (1) Official notice may be taken of (i) Any material fact which might be judicially noticed by a district court of the United States; or (ii) Any matter in the public official records of the Commission. (2) If official notice is requested or taken of a material fact, any party, upon timely request, shall be afforded an opportunity to establish the contrary. (c) Objections. A party shall timely and briefly state the grounds relied upon for any objection made to the introduction of evidence. If a party has had no opportunity to object to a ruling at the time it is made, he shall not thereafter be prejudiced by the absence of an objection. (d) Exceptions. Formal exception to an adverse ruling is not required. It shall be sufficient that a party, at the time the ruling is sought or entered, makes known to the Administrative Law Judge the action he wishes the Administrative Law Judge to take or his objection to the action being taken and his grounds therefor. (e) Excluded evidence. When an objection to a question propounded to a witness is sustained, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness, or the Administrative Law Judge may, in his discretion, receive the evidence in full. Rejected exhibits, adequately marked for identification, shall be retained in the record so as to be available for consideration by any reviewing authority. (f) Affidavits. Affidavits may be admitted by the Administrative Law Judge only if the evidence is otherwise admissible and the parties agree that affidavits may be used. (g) Official government records. An official government record or any entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record or by his depu… | |||||
| 17:17:1.0.1.1.9.5.7.8 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | E | Subpart E—Hearings | § 10.68 Subpoenas. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995; 63 FR 55794, Oct. 19, 1998; 63 FR 68829, Dec. 14, 1998; 64 FR 30903, June 9, 1999] | (a) Application for and issuance of subpoenas —(1) Application for and issuance of subpoena ad testificandum. Any party may apply to the Administrative Law Judge for the issuance of a subpoena requiring a person to appear and testify (subpoena ad testificandum) at the hearing. All requests for the issuance of a subpoena ad testificandum shall be submitted in duplicate and in writing and shall be served upon all other parties to the proceeding, unless the request is made on the record at the hearing or the requesting party can demonstrate why, in the interest of fairness or justice, the requirement of a written submission or service on one or more of the other parties is not appropriate. A subpoena ad testificandum shall be issued upon a showing by the requesting party of the general relevance of the testimony being sought and the tender of an original and two copies of the subpoena being requested, except in those situations described in paragraph (b) of this section, where additional requirements are set forth. (2) Application for subpoena duces tecum. An application for a subpoena requiring a person to produce specified documentary or tangible evidence (subpoena duces tecum) at any designated time or place may be made by any party to the Administrative Law Judge. All requests for the issuance of a subpoena duces tecum shall be submitted in duplicate and in writing and shall be served upon all other parties to the proceeding, unless the request is made on the record at the hearing or the requesting party can demonstrate why, in the interest of fairness or justice, the requirement of a written submission or service on one or more of the other parties is not appropriate. Except in those situations described in paragraph (b) of this section, where additional requirements are set forth, each application for the issuance of a subpoena duces tecum shall contain a statement or showing of general relevance and reasonable scope of the evidence being sought and be accompanied by an original and two copies of the sub… | ||||
| 17:17:1.0.1.1.9.5.7.9 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | E | Subpart E—Hearings | § 10.69 Reopening hearings. | CFTC | Any party may petition the Administrative Law Judge to reopen a hearing to adduce additional evidence at any time prior to issuance of the initial decision. The petition shall show that the evidence sought to be adduced is relevant and material and that there were reasonable grounds for failure to adduce such evidence at the time of the original hearing. | |||||
| 17:17:1.0.1.1.9.6.7.1 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | F | Subpart F—Post Hearing Procedures; Initial Decisions | § 10.81 Filing the transcript of evidence. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995] | As soon as practicable after the close of the hearing, the reporter shall transmit to the Proceedings 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. | ||||
| 17:17:1.0.1.1.9.6.7.2 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | F | Subpart F—Post Hearing Procedures; Initial Decisions | § 10.82 Proposed findings and conclusions; briefs. | CFTC | In any proceeding involving a hearing or an opportunity for hearing, the parties may file written proposed findings of fact and conclusions of law. Briefs may be filed in support of proposed findings and conclusions 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 Division of Enforcement and intervenors on the side of the Division of Enforcement within 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 and intervenors on the side of the respondents within 30 days after service of the initial findings, conclusions and briefs upon the respondents; (3) Reply. A reply brief may be filed by the Division of Enforcement and intervenors on the side of the Division of Enforcement within 15 days after filing of the answering submission; (4) Submissions by limited participants. Submissions by a person admitted as a limited participant pursuant to § 10.34 of these rules, are permitted under such terms as determined by the Administrative Law Judge. (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 paragraph (a) of this section for purposes 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 to be resolved; and (iii) The argument, presenting clearly … | |||||
| 17:17:1.0.1.1.9.6.7.3 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | F | Subpart F—Post Hearing Procedures; Initial Decisions | § 10.83 Oral arguments. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995] | In his discretion the Administrative Law Judge may hear oral arguments by the parties any time before he files his initial decision with the Proceedings Clerk. The argument shall be recorded and transcribed in written form. | ||||
| 17:17:1.0.1.1.9.6.7.4 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | F | Subpart F—Post Hearing Procedures; Initial Decisions | § 10.84 Initial decision. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995; 61 FR 21954, May 13, 1996; 63 FR 55794, Oct. 19, 1998] | (a) When initial decision is required. The Administrative Law Judge shall make an initial decision in any proceeding in which a hearing is required to be conducted in conformity with the requirements of the Administrative Procedure Act, as codified, 5 U.S.C. 557. He shall make an initial decision in other proceedings in which the Commission directs him to make such a decision. (b) Filing of initial decision. After the parties have been afforded an opportunity to file their proposed findings of fact, proposed conclusions of law and supporting briefs pursuant to § 10.82, the Administrative Law Judge shall prepare upon the basis of the record in the proceeding and shall file with the Proceedings Clerk his or her decision, a copy of which shall be served by the Proceedings Clerk upon each of the parties. (c) Effect of initial decision. The initial decision shall become the decision of the Commission 30 days after service thereof, except: (1) The decision shall not become final as to any party who shall have filed a notice of appeal pursuant to § 10.102 of these rules; and (2) The decision shall not become final as to any party to the proceeding if, within 30 days after the initial decision and order, the Commission itself shall have placed the case on its own docket for review or stayed the effective date of the 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 Proceedings Clerk. The notice shall state that the time for filing a notice of appeal 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. | ||||
| 17:17:1.0.1.1.9.7.7.1 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | G | Subpart G—Disposition Without Full Hearing | § 10.91 Summary disposition. | CFTC | (a) Filing of motions, answers. Any party who believes that there is no genuine issue of material fact to be determined and that he is entitled to a decision as a matter of law may move for a summary disposition in his favor of all or any part of the proceeding. Such motion shall be filed at or before the first prehearing conference or at such later time as may be allowed by the Administrative Law Judge. Any adverse party within 20 days after service of the motion, may serve opposing papers or may countermove for summary disposition. (b) Supporting papers. A motion for summary judgment shall include a statement of material facts as to which the moving party contends there is no genuine issue, supported by the pleadings, and by affidavits, other verified statements, including investigative transcripts, admissions, stipulations, and depositions. The motion may also be supported by briefs containing points and authorities in support of the contention of the party making the motion. When a motion is made and supported as provided in this section, an adverse party may not rest upon the mere allegations, but shall serve and file in response a statement setting forth those material facts as to which he contends a genuine issue exists, supported by affidavits or otherwise. He may also submit a brief of points and authorities. (c) Form of affidavits. Supporting and opposing affidavits shall be made upon personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify on the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. (d) Oral argument. Oral argument may be granted at the discretion of the Administrative Law Judge. (e) Ruling on motion. The Administrative Law Judge shall grant a motion for summary disposition if the undisputed pleaded facts, affidavits, other verified statements, admissions, stipulations, and dep… | |||||
| 17:17:1.0.1.1.9.7.7.2 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | G | Subpart G—Disposition Without Full Hearing | § 10.92 Shortened procedure. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995; 64 FR 30903, June 9, 1999] | (a) How initiated. With the consent of the parties, in lieu of a full oral hearing, the Administrative Law Judge may order a shortened procedure as to the submission of direct evidence may be ordered in a proceeding. An order for shortened procedure shall list the names and addresses of all persons who are parties to the proceeding and shall direct compliance with the procedures established in this section. The order shall be served by the Proceedings Clerk upon all parties. (b) Filing of statements —(1) Opening statement. Within 20 days after receipt of notice that the shortened procedure will be used, the Division of Enforcement shall serve upon all other parties and file with the Proceedings Clerk, in triplicate, an opening statement, in support of the complaint; (2) Answering statement. Within 20 days after receipt of the opening statement of the Division, each respondent may serve upon all other parties and file with the Proceedings Clerk, in triplicate, in support of his answer, an answering statement. (3) Statement in reply. Within ten days after receipt of all answering statements, or within ten days after the expiration of the period within which answering statements may be served, the Division of Enforcement may serve upon all other parties and file with the Proceedings Clerk, in triplicate, a statement in reply, which shall be confined strictly to replying to the facts and arguments set forth in the answering statements. (c) Joint statements. Parties having a common interest may serve and file joint statements. (d) Failure to file statement. Any party who, without the express permission of the Administrative Law Judge, should fail to file a statement within the time prescribed by this section after service upon him of an order for shortened procedures shall be in default and shall be deemed to have waived any further hearing. (e) Content of statements. As used in this section, the term “statement” includes (1) Statements of fact signed and sworn to by persons having knowledge of t… | ||||
| 17:17:1.0.1.1.9.7.7.3 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | G | Subpart G—Disposition Without Full Hearing | § 10.93 Obtaining default order. | CFTC | When a respondent has failed to (a) file an answer as provided in § 10.23 of these rules or (b) failed to appear or file a notice of appearance as provided in § 10.62 of these rules or (c) failed to file a statement under the shortened procedures as provided in § 10.92 of these rules, the Division of Enforcement may move the Administrative Law Judge to enter findings and conclusions and a default order against that respondent based upon the matters set forth in the complaint, which shall be deemed to be true for purposes of this determination. | |||||
| 17:17:1.0.1.1.9.7.7.4 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | G | Subpart G—Disposition Without Full Hearing | § 10.94 Setting aside of default. | CFTC | In order to prevent injustice and on such conditions as may be appropriate, (a) the Commission may at any time set aside a default order obtained under § 10.93; and (b) the Administrative Law Judge may set aside a default order obtained under § 10.93 at any time prior to filing of his initial decision in a proceeding in which there are remaining respondents. Any motion to set aside a default shall be made within a reasonable time, and shall state the reasons for the failure to file or appear and specify the nature of the proposed defense in the proceeding. | |||||
| 17:17:1.0.1.1.9.8.7.1 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | H | Subpart H—Appeals to the Commission; Settlements | § 10.101 Interlocutory appeals. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 63 FR 55794, Oct. 19, 1998; 64 FR 30903, June 9, 1999] | Interlocutory review by the Commission of a ruling on a motion by an Administrative Law Judge may be sought in accordance with the following procedures: (a) Scope of review. The Commission will not review a ruling of the Administrative Law Judge prior to the Commission's consideration of the entire proceeding in the absence of extraordinary circumstances. An interlocutory appeal may be permitted, in the discretion of the Commission, under the following circumstances: (1) Appeal from an adverse ruling pursuant to § 10.8(b) on a motion to disqualify an Administrative Law Judge; (2) Appeal from a ruling pursuant to § 10.11(b) suspending an attorney from participation in a particular proceeding. (3) Appeal from a ruling pursuant to §§ 10.33 and 10.34 denying intervention or limited participation; (4) Appeal from a ruling pursuant to § 10.68(b) requiring the appearance of an officer or employee of the Commission or another government agency or the production of Commission records; (5) 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. (b) Procedure to obtain interlocutory review —(1) In general. An application for interlocutory review may be filed within five days after notice of the Administrative Law Judge's ruling on a matter described in paragraphs (a)(1), (a)(2), (a)(3) or (a)(4) of this section, except if a request for certification under paragraph (a)(5) of this section has been filed with the Administrative Law Judge within five days after notice of the Administrative Law Judge's ruling on the matter. If a request for certification has been filed, an Application for interlocutory review under paragraphs (a)(1) through (a)(5) of this sectio… | ||||
| 17:17:1.0.1.1.9.8.7.2 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | H | Subpart H—Appeals to the Commission; Settlements | § 10.102 Review of initial decisions. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 41 FR 18071, Apr. 30, 1976; 41 FR 19932, May 14, 1976; 47 FR 5999, Feb. 10, 1982; 60 FR 54802, Oct. 26, 1995; 61 FR 21954, May 13, 1996; 63 FR 55794, Oct. 19, 1998; 63 FR 68829, Dec. 14, 1998; 64 FR 30903, June 9, 1999; 78 FR 12935, Feb. 26, 2013] | (a) Notice of appeal —(1) In general. Any party to a proceeding may appeal to the Commission an initial decision or a dismissal or other final disposition of the proceeding by the Administrative Law Judge as to any party. The appeal shall be initiated by serving and filing with the Proceedings Clerk a notice of appeal within 15 days after service of the initial decision or other order terminating the proceeding; where service of the initial decision or other order terminating the proceeding is effected by mail or commercial carrier, the time within which the party served may file a notice of appeal shall be increased by 3 days. (2) Cross appeals. If a timely notice of appeal is filed by one party, any other party may file a notice of appeal within 15 days after service of the first notice or within 15 days after service of the initial decision or other order terminating the proceeding, whichever is later. (3) Confirmation of filing. The Proceedings Clerk shall confirm the filing of a notice of appeal by mailing a copy thereof to each other party. (b) Briefs: Time for filing. The appeal shall be perfected through the filing of an appeal brief. (1) Appeal brief. The appeal brief shall be filed within 30 days after filing of the notice of appeal. (2) Answering brief. Within 30 days after service of the appeal brief upon any other party that party may file an answering brief. (3) Reply brief. Within 14 days after service of an answering brief, the party that filed the first brief may file a reply brief. (4) No further briefs shall be permitted, unless so ordered by the Commission on its own motion. (5) Cross appeals. In the event that any party files a notice of cross appeal pursuant to paragraph (a)(2) of this section, the Commission shall, to the extent practicable, adjust the briefing schedule and any page limitations otherwise applicable under this section so as to accommodate consolidated briefing by the parties. If the appeal brief is not filed within the time specified the opposing pa… | ||||
| 17:17:1.0.1.1.9.8.7.3 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | H | Subpart H—Appeals to the Commission; Settlements | § 10.103 Oral argument before the Commission. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995] | (a) Request. Any party may file with the Proceedings Clerk a request in writing for the opportunity to present oral argument before the Commission, which the Commission may in its discretion grant or deny. A request for oral argument must be made within the time provided for filing the initial briefs. (b) Time allowed. Unless otherwise directed by the Commission, not more than one-half hour will be allowed for oral argument by any participant. Where the same or similar interests are represented by more than one participant, an aggregate of not more than one-half hour will be allowed the interests so represented irrespective of the number of participants, the time to be divided equally among such participants or as they may agree among themselves. In appropriate cases the Commission may, in its discretion, extend, shorten or reallocate the time prescribed herein. (c) Reporting and transcription. Oral arguments before the Commission shall be reported and transcribed in written form unless the Commission shall direct otherwise. (d) Commissioners not present at oral argument. A member of the Commission who was not present at the oral argument may participate in the decision of the proceeding. Any Commissioner participating in the decision who was not present at the argument will review the transcript of argument. | ||||
| 17:17:1.0.1.1.9.8.7.4 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | H | Subpart H—Appeals to the Commission; Settlements | § 10.104 Scope of review; Commission decision. | CFTC | (a) Scope of review. The Commission will ordinarily consider the whole record on review, and base its determination thereon. However, it may limit the issues to those presented in the statement of issues in the brief. (b) Decision on review. On review, the Commission may affirm, reverse, modify, set aside or remand for further proceedings, in whole or in part, the initial decision by the Administrative Law Judge and make any findings or conclusions which in its judgment are proper based on the record in the proceeding. 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 initial decision will be affirmed, without opinion. (c) Contents of record. The record of the proceeding before the Commission for final decision shall include: (1) The complaint, notice of hearing, answers and any amendments thereto; (2) Any application, motion or objection made during the course of the proceeding, briefs in support thereof, rulings thereon and exceptions thereto; (3) Any admission or stipulations between the parties, and documents or papers filed in connection with prehearing conferences; and the record of prehearing conferences, if recorded; (4) The transcript of testimony taken at the hearing, together with exhibits received at the hearing; (5) Any statements filed under the shortened procedure; (6) Portions of the official public records of the Commission specified in any of the above; (7) Any proposed findings of fact, conclusions of law and briefs in support thereof, which were filed in connection with the hearing; (8) Any written communication accepted by the Administrative Law Judge pursuant to §§ 10.34 and 10.35 relating to limited participation; (9) The initial decision and the petition for review; (10) Any other documents which appear on the docket of the proceeding. | |||||
| 17:17:1.0.1.1.9.8.7.5 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | H | Subpart H—Appeals to the Commission; Settlements | § 10.105 Review by Commission on its own initiative. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995] | The Commission may on its own initiative, within 30 days after the initial decision has been served on all parties, direct review of any initial decision of an Administrative Law Judge. The Commission shall determine the scope of the review and the issues which will be considered and make provisions for the filing of briefs and oral argument, if deemed appropriate by the Commission. Notice that the Commission has directed review on its own initiative shall be served on all parties by the Proceedings Clerk. | ||||
| 17:17:1.0.1.1.9.8.7.6 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | H | Subpart H—Appeals to the Commission; Settlements | § 10.106 Reconsideration; stay pending judicial review. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 63 FR 55795, Oct. 19, 1998; 63 FR 68829, Dec. 14, 1998; 64 FR 30903, June 9, 1999; 89 FR 71807, Sept. 4, 2024] | (a) Reconsideration. Within 15 days after service of a Commission opinion and order any party may file with the Commission a petition for reconsideration of the opinion and order, setting forth the relief desired and the grounds in support thereof. Any petition filed under this section must be confined to new questions raised by the opinion or order and concerning which the petitioner had no opportunity to argue before the Commission. The filing of a petition for reconsideration shall not operate to stay the effective date of the Commission's order. (b) Stay pending judicial appeal— (1) Application for stay. Within 15 days after service of a Commission opinion and order imposing upon any party any of the sanctions listed in §§ 10.1(a) through 10.1(e), that party may file an application with the Commission requesting that the effective date of the order be stayed pending judicial review. The application shall state the reasons why a stay is warranted and the facts relied upon in support of the stay. Any averments contained in the application must be supported by affidavits or other sworn statements or verified statements made under penalty of perjury in accordance with the provisions of 28 U.S.C. 1746. (2) Standards for issuance of stay. The Commission may grant an application for a stay pending judicial appeal upon a showing that: (i) The applicant is likely to succeed on the merits of his appeal; (ii) Denial of the stay would cause irreparable harm to the applicant; and (iii) Neither the public interest nor the interest of any other party will be adversely affected if the stay is granted. (3) Civil monetary penalties and restitution. Notwithstanding the requirements set forth in paragraph (b)(2) of this section, the Commission shall grant any application to stay the imposition of a civil monetary penalty or an order to pay a specific sum as restitution if the applicant has filed with the Proceedings Clerk a surety bond guaranteeing full payment of the penalty or restitution plus interest in the ev… | ||||
| 17:17:1.0.1.1.9.8.7.7 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | H | Subpart H—Appeals to the Commission; Settlements | § 10.107 Leave to adduce additional evidence. | CFTC | Any time prior to issuance of the final decision the Commission may, upon its own motion or upon application in writing by any party, after notice to the parties and an opportunity for them to be heard, reopen the hearing for the reception of 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 hear the additional evidence or may refer the proceeding to the Administrative Law Judge for the taking of the additional evidence. | |||||
| 17:17:1.0.1.1.9.8.7.8 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | H | Subpart H—Appeals to the Commission; Settlements | § 10.108 Settlements. | CFTC | [41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995; 90 FR 55645, Dec. 3, 2025] | (a) When offers may be made. Parties may at any time during the course of the proceeding propose offers of settlement. All offers of settlement shall be in writing. (b) Content of offer of settlement. Each offer of settlement made by a respondent shall: (1) Acknowledge service of the Complaint; (2) Admit the jurisdiction of the Commission with respect to the matters set forth in the Complaint; (3) Include a waiver of: (i) A hearing, (ii) All post-hearing procedures, (iii) Judicial review, and (iv) Any objection to the staff's participation in the Commission's consideration of the offer; (4) Stipulate the record basis on which an order may be entered, which may consist solely of the complaint and the findings contained in the offer of settlement; and (5) Consent to the entry of an order reflecting the terms of settlement agreed upon, including, where appropriate: (i) Findings by the Commission that the respondent has violated specified provisions of the Act, and (ii) The imposition of sanctions. (c) Submission of offer of settlement. Offers of settlement made by a respondent shall be submitted in writing to the Division of Enforcement, which shall present them to the Commission with the Division's recommendation. The respondent will be informed if the recommendation will be unfavorable, in which event the offer shall not be presented to the Commission unless the respondent so requests. Any offer of settlement not presented to the Commission shall be null and void with respect to any acknowledgement, admission, waiver, stipulation or consent contained in the offer and shall not be used in any manner in the proceeding by any party thereto. (d) Acceptance of offer by the Commission. The Commission will accept an offer of settlement only by issuing its opinion and order based on the offer. Upon issuance of the opinion and order, the proceeding shall be terminated as to the respondent involved and so noted on the docket by the Proceedings Clerk. In lieu of the procedure to institute adjudicatory p… | ||||
| 17:17:1.0.1.1.9.8.7.9 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | H | Subpart H—Appeals to the Commission; Settlements | § 10.109 Delegation of authority to Chief of the Opinions Section. | CFTC | [50 FR 33515, Aug. 20, 1985, as amended at 60 FR 54802, Oct. 26, 1995; 64 FR 43071, Aug. 9, 1999] | The Commodity Futures Trading Commission hereby delegates, until such time as it orders otherwise, the following function to the General Counsel, to be performed by him or by such person or persons under his direction as he may designate from time to time: (a) With respect to proceedings conducted pursuant to the Commodity Exchange Act, as amended, 7 U.S.C. 1 et seq., and subject to the Commission's Rules of Practice as set forth in part 10 of this chapter, to: (1) Consider and decide miscellaneous motions for procedural orders that may be directed to the Commission pursuant to part 10 of these rules after the initial decision or other order disposing of the entire proceeding has been filed; such motions may be acted upon at anytime, without awaiting a response; (2) Remand, with or without specific instructions, initial decisions or other orders disposing of the entire proceeding to the appropriate officer in the following situations: (i) Where a default order has been made pursuant to § 10.93 of these rules and a motion to vacate the default or equivalent request has been directed to the Commission under § 10.94 without the benefit of a prior ruling by the Administrative Law Judge; (ii) Where, in his judgment, clarification or supplementation of the initial decision or other order disposing of the entire proceeding prior to Commission review is appropriate; however, the General Counsel or his designee may not direct that the record be reopened; (iii) Where, in his judgment, a ministerial act necessary to the proper conduct of the proceeding has not been performed; (3) Deny applications for interlocutory Commission review of a ruling of the Administrative Law Judge in cases in which the Administrative Law Judge has not certified the ruling to the Commission in the manner prescribed by § 10.101(a) of the rules; and the ruling does not concern the disqualification of, or a motion to disqualify, an Administrative Law Judge; and the ruling does not concern the suspension of, or failure to suspend, an attorne… | ||||
| 17:17:1.0.1.1.9.9.7.1 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | I | Subpart I—Restitution Orders | § 10.110 Basis for issuance of restitution orders. | CFTC | (a) Appropriateness of restitution as a remedy. In any proceeding in which an order requiring restitution may be entered, the Administrative Law Judge shall, as part of his or her initial decision, determine whether restitution is appropriate. In deciding whether restitution is appropriate, the Administrative Law Judge, in his or her discretion, may consider the degree of complexity likely to be involved in establishing claims, the likelihood that claimants can obtain compensation through their own efforts, the ability of the respondent to pay claimants damages that his or her violations have caused, the availability of resources to administer restitution and any other matters that justice may require. (b) Restitution order. If the Administrative Law Judge determines that restitution is an appropriate remedy in a proceeding, he or she shall issue an order specifying the following: (1) All violations that form the basis for restitution; (2) The particular persons, or class or classes of persons, who suffered damages proximately caused by each such violation; (3) The method of calculating the amount of damages to be paid as restitution; and (4) If then determinable, the amount of restitution the respondent shall be required to pay. | |||||
| 17:17:1.0.1.1.9.9.7.2 | 17 | Commodity and Securities Exchanges | I | 10 | PART 10—RULES OF PRACTICE | I | Subpart I—Restitution Orders | § 10.111 Recommendation of procedure for implementing restitution. | CFTC | Except as provided by § 10.114, after such time as any order requiring restitution becomes effective ( i.e., becomes final and is not stayed), the Division of Enforcement shall petition the Commission for an order directing the Division to recommend to the Commission or, in the Commission's discretion, the Administrative Law Judge a procedure for implementing restitution. Each party that has been ordered to pay restitution shall be afforded an opportunity to review the Division of Enforcement's recommendations and be heard. |
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section_id TEXT PRIMARY KEY,
title_number INTEGER,
title_name TEXT,
chapter TEXT,
subchapter TEXT,
part_number TEXT,
part_name TEXT,
subpart TEXT,
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section_number TEXT,
section_heading TEXT,
agency TEXT,
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source_citation TEXT,
amendment_citations TEXT,
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CREATE INDEX idx_cfr_agency ON cfr_sections(agency);