cfr_sections
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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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| 14:14:4.0.1.1.2.1.1.1 | 14 | Aeronautics and Space | II | A | 201 | PART 201—AIR CARRIER AUTHORITY UNDER SUBTITLE VII OF TITLE 49 OF THE UNITED STATES CODE | A | Subpart A—Application Procedures | § 201.1 Formal requirements. | FAA | [Doc. No. 47582, 57 FR 38765, Aug. 27, 1992, as amended at 60 FR 43523, Aug. 22, 1995; 64 FR 3212, Jan. 21, 1999; 70 FR 25767, May 16, 2005; Doc. No. DOT-OST-2014-0140, 84 FR 15924, Apr. 16, 2019] | (a) Applications for certificates of public convenience and necessity under section 41102 of 49 U.S.C. Subtitle VII and for interstate all-cargo air transportation certificates under section 41103 of 49 U.S.C. Subtitle VII shall meet the requirements set forth in part 302 of this chapter as to general requirements, execution, number of copies, service, and formal specifications of papers. (b) Any person desiring to provide air transportation as a commuter air carrier must comply with the provisions of part 298 of this chapter and submit data to support a fitness determination in accordance with part 204 of this chapter. An executed original plus two (2) true copies of the fitness data shall be filed with Docket Operations Office, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Requests for confidential treatment of documents should be filed in accordance with the requirements of part 302 of this chapter. | |||
| 14:14:4.0.1.1.2.1.1.2 | 14 | Aeronautics and Space | II | A | 201 | PART 201—AIR CARRIER AUTHORITY UNDER SUBTITLE VII OF TITLE 49 OF THE UNITED STATES CODE | A | Subpart A—Application Procedures | § 201.2 Amendments. | FAA | If, after receipt of any application, the Department asks the applicant to supply additional information, such information shall be furnished in the form of a supplement to the original application. | ||||
| 14:14:4.0.1.1.2.1.1.3 | 14 | Aeronautics and Space | II | A | 201 | PART 201—AIR CARRIER AUTHORITY UNDER SUBTITLE VII OF TITLE 49 OF THE UNITED STATES CODE | A | Subpart A—Application Procedures | § 201.3 Incorporation by reference. | FAA | Incorporation by reference shall be avoided. However, where two or more applications are filed by a single carrier, lengthy exhibits or other documents attached to one may be incorporated in the others by reference if that procedure will substantially reduce the cost to the applicant. | ||||
| 14:14:4.0.1.1.2.1.1.4 | 14 | Aeronautics and Space | II | A | 201 | PART 201—AIR CARRIER AUTHORITY UNDER SUBTITLE VII OF TITLE 49 OF THE UNITED STATES CODE | A | Subpart A—Application Procedures | § 201.4 General provisions concerning contents. | FAA | [Doc. No. 47582, 57 FR 38765, Aug. 27, 1992, as amended at 60 FR 43523, Aug. 22, 1995; Doc. No. DOT-OST-2014-0140, 84 FR 15924, Apr. 16, 2019] | (a) All pages of an application shall be consecutively numbered, and the application shall clearly describe and identify each exhibit by a separate number or symbol. All exhibits shall be deemed to constitute a part of the application to which they are attached. (b) All amendments to applications shall be consecutively numbered and shall comply with the requirements of this part. (c) Requests for authority to engage in interstate air transportation shall not be included in the same application with requests for authority to engage in foreign air transportation. Similarly, requests for authority to engage in scheduled air transportation under section 41102 of 49 U.S.C. Subtitle VII shall not be included in the same application with requests for authority to engage in charter air transportation under section 41102 of 49 U.S.C. Subtitle VII or with requests for authority to engage in interstate all-cargo air transportation under section 41103 of 49 U.S.C. Subtitle VII. (d) Each application shall specify the type or types of service (passengers, property or mail) to be rendered and whether such services are to be rendered on scheduled or charter operations. (e) Each application for foreign scheduled air transportation shall include an adequate identification of each route for which a certificate is desired, including the terminal and intermediate points to be included in the certificate for which application is made. (f) Each application shall give full and adequate information with respect to each of the relevant filing requirements set forth in part 204 of this chapter. In addition, the application may contain such other information and data as the applicant shall deem necessary or appropriate in order to acquaint the Department fully with the particular circumstances of its case; however, the statements contained in an application shall be restricted to significant and relevant facts. | |||
| 14:14:4.0.1.1.2.1.1.5 | 14 | Aeronautics and Space | II | A | 201 | PART 201—AIR CARRIER AUTHORITY UNDER SUBTITLE VII OF TITLE 49 OF THE UNITED STATES CODE | A | Subpart A—Application Procedures | § 201.5 Advertising and sales by applicants. | FAA | (a) An applicant for new or amended certificate or commuter air carrier authority shall not: (1) Advertise, list schedules, or accept reservations for the air transportation covered by its application until the application has been approved by the Department; or (2) Accept payment or issue tickets for the air transportation covered by its application until the authority or amended authority has become effective or the Department issues a notice authorizing sales. (b) An applicant for new or amended certificate or commuter air carrier authority may not advertise or publish schedule listings for the air transportation covered by its application after the application has been approved by the Department (but before all authority issued by DOT, including the FAA, becomes effective) unless such advertising or schedule listings prominently state: “This service is subject to receipt of government operating authority.” | ||||
| 14:14:4.0.1.1.2.2.1.1 | 14 | Aeronautics and Space | II | A | 201 | PART 201—AIR CARRIER AUTHORITY UNDER SUBTITLE VII OF TITLE 49 OF THE UNITED STATES CODE | B | Subpart B—Certificate Terms, Conditions, and Limitations | § 201.6 Applicability. | FAA | [Doc. No. 47582, 57 FR 38765, Aug. 27, 1992, as amended at 60 FR 43523, Aug. 22, 1995; Doc. No. DOT-OST-2014-0140, 84 FR 15924, Apr. 16, 2019] | Unless the certificate or the order authorizing its issuance shall otherwise provide, such terms, conditions and limitations as are set forth in this part, and as may from time to time be prescribed by the Department, shall apply to the exercise of the privileges granted by each certificate issued under section 41102 or section 41103 of 49 U.S.C. Subtitle VII. | |||
| 14:14:4.0.1.1.2.2.1.2 | 14 | Aeronautics and Space | II | A | 201 | PART 201—AIR CARRIER AUTHORITY UNDER SUBTITLE VII OF TITLE 49 OF THE UNITED STATES CODE | B | Subpart B—Certificate Terms, Conditions, and Limitations | § 201.7 General certificate conditions. | FAA | [Doc. No. 47582, 57 FR 38765, Aug. 27, 1992, as amended at 60 FR 43523, Aug. 22, 1995; Doc. No. DOT-OST-2014-0140, 84 FR 15924, Apr. 16, 2019] | (a) It shall be a condition upon the holding of a certificate that any intentional failure by the holder to comply with any provision of Statute or any order, rule, or regulation issued thereunder or any term, condition, or limitation of such certificate shall be a failure to comply with the terms, conditions, and limitations of the certificate within the meaning of section 41110 of 49 U.S.C. Subtitle VII even though the failure to comply occurred outside the territorial limits of the United States, except to the extent that such failure shall be necessitated by an obligation, duty, or liability imposed by a foreign country. (b) Failure to file the reports required by part 241, 291, or 298 of this chapter shall be sufficient grounds to revoke a certificate. (c) The authority to transport U.S. mail under a certificate is permissive, unless the Department, by order or rule, directs a carrier or class of carriers to transport mail on demand of the U.S. Postal Service; such certificate confers no right to receive subsidy, for the carriage of mail or otherwise. (d) An all-cargo air transportation certificate shall confer no right to carry passengers, other than cargo attendants accompanying a shipment, or to engage in any air transportation outside the geographical scope of interstate cargo transportation. Such certificate shall not, however, restrict the right of the holder to provide scheduled, charter, contract, or other transportation of cargo, by air, within that geographical scope. (e) It shall be a condition upon the holding of a certificate that the holder have and maintain in effect and on file with the Department a signed counterpart of Agreement 18900 (OST Form 4523), and a tariff (for those carriers otherwise generally required to file tariffs) that includes its terms, and that the holder comply with all other requirements of part 203. OST Form 4523 may be obtained from the Office of International Aviation, Special Authorities Division. | |||
| 17:17:3.0.1.1.2.2.10.1 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.31 Purpose of these rules. | SEC | [54 FR 53051, Dec. 27, 1989] | The Equal Access to Justice Act, 5 U.S.C. 504 (called the Act in this subpart B), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (called adversary adjudications ) before the Commission. An eligible party may receive an award when it prevails over the Commission, unless the Commission's position was substantially justified or special circumstances make an award unjust. The rules in this subpart describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the Commission will use in ruling on those applications. | ||||
| 17:17:3.0.1.1.2.2.10.10 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.43 Documentation of fees and expenses. | SEC | The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The applicant may be required to provide vouchers, receipts, or other substantiation for any fees or expenses claimed. | |||||
| 17:17:3.0.1.1.2.2.10.11 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.44 When an application may be filed. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53052, Dec. 27, 1989] | (a) An application may be filed whenever the applicant has prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding, but in no case later than 30 days after the Commission's final disposition of the proceeding. (b) For purposes of this rule, final disposition means the date on which a decision or order disposing of the merits of the proceeding or any other complete resolution of the proceeding, such as a settlement or voluntary dismissal, becomes final and unappealable, both within the Commission and to the courts. (c) If review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy. | ||||
| 17:17:3.0.1.1.2.2.10.12 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.51 Filing and service of documents. | SEC | Any application for an award or other document related to an application shall be filed and served in the same manner as other papers in proceedings under the Commission's Rules of Practice. In addition, a copy of each application for fees and expenses shall be served on the General Counsel of the Commission. | |||||
| 17:17:3.0.1.1.2.2.10.13 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.52 Answer to application. | SEC | (a) Within 30 days after service of an application, counsel representing the Office or Division of the Commission may file an answer to the application. Unless the Office or Division of the Commission counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30-day period may be treated as a consent to the award requested. (b) If counsel for the Office or Division of the Commission and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted upon request by agency counsel and the applicant. (c) The answer shall explain any objections to the award requested and identify the facts relied on in support of that position. If the answer is based on any alleged facts not already in the record of the proceeding, it shall include supporting affidavits or a request for further proceedings under § 201.55. | |||||
| 17:17:3.0.1.1.2.2.10.14 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.53 Reply. | SEC | Within 15 days after service of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 201.55. | |||||
| 17:17:3.0.1.1.2.2.10.15 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.54 Settlement. | SEC | [54 FR 53052, Dec. 27, 1989, as amended at 60 FR 32795, June 23, 1995] | The applicant and counsel for the Office or Division of the Commission may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding or after the underlying proceeding has been concluded, in accordance with the Commission's standard settlement procedure. See 17 CFR 201.240. If a prevailing party and counsel for the Office or Division of the Commission agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement. If a proposed settlement provides that each side shall bear its own expenses, and the settlement is accepted, no application may be filed. | ||||
| 17:17:3.0.1.1.2.2.10.16 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.55 Further proceedings. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53052, Dec. 27, 1989; 70 FR 72569, Dec. 5, 2005] | (a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or counsel for the Office or Division of the Commission, or on his or her own initiative, the administrative law judge may order further proceedings, such as an informal conference, oral argument, additional written submissions or, as to issues other than substantial justification (such as the applicant's eligibility or substantiation of fees and expenses) an evidentiary hearing. The administrative law judge may order all proceedings that are otherwise available under § 201.221 and § 201.222(a). Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible. Whether or not the Commission's position was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought. (b) A request for further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues. | ||||
| 17:17:3.0.1.1.2.2.10.17 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.56 Decision. | SEC | The administrative law judge shall issue an initial decision on the application promptly after completion of proceedings on the application. The decision shall include written findings and conclusions on the applicant's eligibility and status as a prevailing party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the Commission's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. | |||||
| 17:17:3.0.1.1.2.2.10.18 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.57 Commission review. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 60 FR 32795, June 23, 1995] | In accordance with the procedures set forth in 17 CFR 201.410 and 201.411, either the applicant or counsel for the Office or Division of the Commission may seek review of the initial decision on the fee application, or the Commission may decide to review the decision on its own initiative. If neither the applicant nor counsel for the Division or Office of the Commission seeks review and the Commission does not take review on its own initiative, the initial decision on the application shall become a final decision of the Commission 30 days after it is issued. Whether to review a decision is a matter within the discretion of the Commission. If review is taken, the Commission will issue a final decision on the application or remand the application to the administrative law judge for further proceedings. | ||||
| 17:17:3.0.1.1.2.2.10.19 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.58 Judicial review. | SEC | Judicial review of final Commission decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2). | |||||
| 17:17:3.0.1.1.2.2.10.2 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.32 When the Act applies. | SEC | [54 FR 53051, Dec. 27, 1989] | The Act applies to adversary adjudications described in § 201.33 pending or commenced before the Commission on or after August 5, 1985. It also applies to any adversary adjudication commenced on or after October 1, 1984, and finally disposed of before August 5, 1985, provided that an application for fees and expenses, as described in these rules, has been filed with the Commission within 30 days after August 5, 1985. Proceedings which have been substantially concluded are not deemed pending under these rules although officially pending for purposes such as concluding remedial actions found in Commission orders or private undertakings. | ||||
| 17:17:3.0.1.1.2.2.10.20 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.59 Payment of award. | SEC | [54 FR 53052, Dec. 27, 1989, as amended at 76 FR 60372, Sept. 29, 2011] | An applicant seeking payment of an award shall submit to the Chief Financial Officer of the Commission a copy of the Commission's final decision granting the award, accompanied by a sworn statement that the applicant will not seek review of the decision in the United States courts. The Commission will pay the amount awarded to the applicant as authorized by law, unless judicial review of the award has been sought by the applicant. | ||||
| 17:17:3.0.1.1.2.2.10.21 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.60 [Reserved] | SEC | ||||||
| 17:17:3.0.1.1.2.2.10.3 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.33 Proceedings covered. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989] | (a) The Act applies to adversary adjudications conducted by the Commission. These are on the record adjudications under 5 U.S.C. 554 in which the position of an Office or Division of the Commission as a party, not including amicus participation, is presented by an attorney or other representative who enters an appearance and participates in the proceeding. See appendix, 17 CFR 201.60. (b) The fact that the Commission has not identified a type of proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the Act; whether the proceeding is covered will then be an issue for resolution in proceedings on the application. (c) If a proceeding includes both matters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues. | ||||
| 17:17:3.0.1.1.2.2.10.4 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.34 Eligibility of applicants. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989] | (a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks it seeks an award. The term party is defined in 5 U.S.C. 551(3). The applicant must show that it meets all conditions of eligibility set out in this subpart. (b) The types of eligible applicants are as follows: (1) An individual with a net worth of not more than $2 million; (2) The sole owner of an unincorporated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees; (3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees; (4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with more than 500 employees; and (5) Any other partnership, corporation, association, unit of local government, or public or private organization with a new worth of not more than $7 million and not more than 500 employees. (c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated. (d) An applicant who owns an unincorporated business will be considered as an individual rather than a sole owner of an unincorporated business if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests. (e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis. (f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation or other entity that directly or indirectly controls or owns a majority of the voting shares or othe… | ||||
| 17:17:3.0.1.1.2.2.10.5 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.35 Standards for awards. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989] | (a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding or in a significant and discrete substantive portion of the proceeding, unless the position of the Office or Division over which the applicant has prevailed was substantially justified. The position of the Office or Division includes, in addition to the position taken by the Office or Division in the adversary adjudication, the action or failure to act by the Office or Division upon which the adversary adjudication is based. The burden of proof that an award should not be made to an eligible prevailing applicant is on counsel for an Office or Division of the Commission, which must show that its position was reasonable in law and fact. (b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust. | ||||
| 17:17:3.0.1.1.2.2.10.6 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.36 Allowable fees and expenses. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989] | (a) Subject to the limitation of paragraph (b), awards will be based on rates customarily charged, in the locale of the hearing, by persons engaged in the business of acting as attorneys, agents and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant. (b) No award of the fee of an attorney or agent under these rules may exceed $75.00 per hour. No award to compensate an expert witness may exceed the reasonable rate at which the Commission pays witnesses with similar expertise. However, an award may also include the reasonable expenses of the attorney, agent or witness as a separate item, if the attorney, agent or witness ordinarily charges clients separately for such expenses. (c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the administrative law judge shall consider the following: (1) If the attorney, agent or witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant the fully allocated cost of the services; (2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services; (3) The time actually spent in the representation of the applicant; (4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and (5) Such other factors as may bear on the value of the services provided. (d) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case. | ||||
| 17:17:3.0.1.1.2.2.10.7 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.37 Delegations of authority. | SEC | [54 FR 53051, Dec. 27, 1989] | (a) The Commission may by order delegate authority to take final action on matters pertaining to the Equal Access to Justice Act in particular cases. (b) Unless the Commission shall order otherwise, applications for awards of fees and expenses made pursuant to this subject shall be assigned by the Chief Administrative Law Judge to an administrative law judge for determination. | ||||
| 17:17:3.0.1.1.2.2.10.8 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.41 Contents of application. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989] | (a) An application for an award of fees and expenses under the Act shall identify the applicant, the proceeding for which an award is sought and contain the information required in this subpart. The application shall show that the applicant has prevailed and specify the position(s) of the opposing Office or Division in the proceeding that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business. (b) The application shall also include a statement that the applicant's net worth does not exceed $2 million (if an individual) or $7 million (for all other applicants, including their affiliates). However, an applicant may omit this statement if: (1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under such section; or (2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)). (c) The application shall state the amount of fees and expenses for which an award is sought. (d) The application may also include any other matters that the applicant wishes the Commission to consider in determining whether and in what amount an award should be made. (e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true and correct. | ||||
| 17:17:3.0.1.1.2.2.10.9 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | B | Subpart B—Regulations Pertaining to the Equal Access to Justice Act | § 201.42 Net worth exhibit. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 60 FR 32795, June 23, 1995] | (a) Each applicant, except a qualified tax-exempt organization or cooperative association, must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in § 201.34(f) of this part) when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant's and its affiliates' assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this subpart. The administrative law judge or the Commission may require an applicant to file additional information to determine its eligibility for an award. (b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that exhibit in accordance with 17 CFR 201.190. | ||||
| 17:17:3.0.1.1.2.4.10.1 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.100 Scope of the rules of practice. | SEC | [60 FR 32796, June 23, 1995; 60 FR 46499, Sept. 7, 1995, as amended at 69 FR 13175, Mar. 19, 2004; 76 FR 4070, Jan. 24, 2011] | (a) Unless provided otherwise, these Rules of Practice govern proceedings before the Commission under the statutes that it administers. (b) These rules do not apply to: (1) Investigations, except where made specifically applicable by the Rules Relating to Investigations, part 203 of this chapter; or (2) Actions taken by the duty officer pursuant to delegated authority under 17 CFR 200.43. (3) Initiation of proceedings for SRO proposed rule changes under 17 CFR 201.700-701, except where made specifically applicable therein. (c) The Commission, upon its determination that to do so would serve the interests of justice and not result in prejudice to the parties to the proceeding, may by order direct, in a particular proceeding, that an alternative procedure shall apply or that compliance with an otherwise applicable rule is unnecessary. | ||||
| 17:17:3.0.1.1.2.4.10.10 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.121 Separation of functions. | SEC | Any Commission officer, employee or agent engaged in the performance of investigative or prosecutorial functions for the Commission in a proceeding as defined in § 201.101(a) may not, in that proceeding or one that is factually related, participate or advise in the decision, or in Commission review of the decision pursuant to Section 557 of the Administrative Procedure Act, 5 U.S.C. 557, except as a witness or counsel in the proceeding. | |||||
| 17:17:3.0.1.1.2.4.10.11 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.140 Commission orders and decisions: Signature and availability. | SEC | [60 FR 32796, June 23, 1995, as amended at 85 FR 86478, Dec. 30, 2020] | (a) Signature required. All orders and decisions of the Commission shall be signed by the Secretary or any other person duly authorized by the Commission. The signature may be an electronic signature that consists of an “/s/” notation or any other digital signature. (b) Availability for inspection. Each order and decision shall be available for inspection by the public from the date of entry, unless the order or decision is nonpublic. A nonpublic order or decision shall be available for inspection by any person entitled to inspect it from the date of entry. (c) Date of entry of orders. The date of entry of a Commission order shall be the date the order is signed. Such date shall be reflected in the caption of the order, or if there is no caption, in the order itself. | ||||
| 17:17:3.0.1.1.2.4.10.12 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.141 Orders and decisions: Service of orders instituting proceedings and other orders and decisions. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005; 81 FR 50233, July 29, 2016; 85 FR 86478, Dec. 30, 2020] | (a) Service of an order instituting proceedings —(1) By whom made. The Secretary, or another duly authorized officer of the Commission, shall serve a copy of an order instituting proceedings on each person named in the order as a party. The Secretary may direct an interested division to assist in making service. (2) How made —(i) To individuals. Notice of a proceeding shall be made to an individual by delivering a copy of the order instituting proceedings to the individual or to an agent authorized by appointment or by law to receive such notice. Delivery means—handing a copy of the order to the individual; or leaving a copy at the individual's office with a clerk or other person in charge thereof; or leaving a copy at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; or sending a copy of the order addressed to the individual by U.S. Postal Service certified, registered or express mail and obtaining a confirmation of receipt; or giving confirmed telegraphic notice. (ii) To corporations or entities. Notice of a proceeding shall be made to a person other than a natural person by delivering a copy of the order instituting proceedings to an officer, managing or general agent, or any other agent authorized by appointment or law to receive such notice, by any method specified in paragraph (a)(2)(i) of this section, or, in the case of an issuer of a class of securities registered with the Commission, by sending a copy of the order addressed to the most recent address shown on the entity's most recent filing with the Commission by U.S. Postal Service certified, registered, or express mail and obtaining a confirmation of attempted delivery. (iii) Upon persons registered with the Commission. In addition to any other method of service specified in paragraph (a)(2) of this section, notice may be made to a person currently registered with the Commission as a broker, dealer, municipal securities dealer, government securities broker, gov… | ||||
| 17:17:3.0.1.1.2.4.10.13 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.150 Service of papers by parties. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004; 85 FR 86478, Dec. 30, 2020] | (a) When required. In every proceeding as defined in § 201.101(a), each paper, including each notice of appearance, written motion, brief, or other written communication, shall be served upon each party in the proceeding in accordance with the provisions of this section; provided, however, that absent an order to the contrary, no service shall be required for motions which may be heard ex parte. (b) Upon a person represented by counsel. Whenever service is required to be made upon a person represented by counsel who has filed a notice of appearance pursuant to § 201.102, service shall be made pursuant to paragraph (c) of this section upon counsel, unless service upon the person represented is ordered by the Commission or the hearing officer. (c) How made. Service shall be made electronically in the form and manner to be specified by the Office of the Secretary in the materials posted on the Commission's website. Persons serving each other shall have provided the Commission and the parties with notice of an email address. (1) Certification of inability to serve electronically. If a person reasonably cannot serve electronically (due, for example, to a failure to have a functional email address or a lack of access to electronic transmission devices due to incarceration or otherwise), the person promptly shall file a certification under this paragraph that explains why the person reasonably cannot comply using any additional method of service listed in § 201.150(d). The filing also must indicate the expected duration of the person's reasonable inability to comply, such as whether the certification is intended to apply to a solitary instance of service or all instances of service made during the proceeding. The certification is immediately effective. Upon filing the certification, it will be part of the record of the proceeding, and the person may serve paper documents by any additional method listed in § 201.150(d). (2) [Reserved] (d) Additional methods of service. If a person reasonably cannot serve … | ||||
| 17:17:3.0.1.1.2.4.10.14 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.151 Filing of papers with the Commission: Procedure. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004; 85 FR 86478, Dec. 30, 2020] | (a) When to file. All papers required to be served upon any person shall also be filed contemporaneously with the Commission electronically pursuant to the requirements of § 201.152(a). The person making such filing is responsible for ensuring that the Commission receives a complete and legible filing within the time limit set for such filing. Documents that are attached to filings shall be filed in accordance with this section. (b) Where to file. Filing of papers with the Commission shall be made by filing them with the Secretary. When a proceeding is assigned to a hearing officer, a person making a filing with the Secretary shall promptly provide to the hearing officer a copy of any such filing, provided, however, that the hearing officer may direct or permit filings to be made with him or her, in which event the hearing officer shall note thereon the filing date and promptly provide the Secretary with either the original or a copy of any such filings. (c) To whom to direct the filing. Unless otherwise provided, where the Commission has assigned a case to a hearing officer, all motions, objections, applications or other filings made during a proceeding prior to the filing of an initial decision therein, or, if no initial decision is to be filed, prior to the time fixed for the filing of briefs with the Commission, shall be directed to and decided by the hearing officer. (d) Certificate of service. Papers filed with the Commission or a hearing officer shall be accompanied by a certificate stating the name of the person or persons served, the date of service, the method of service, and the mailing address or email address to which service was made, if not made in person. (e) Sensitive personal information. Sensitive personal information is defined as a Social Security number, taxpayer identification number, financial account number, credit card or debit card number, passport number, driver's license number, state-issued identification number, home address (other than city and state), telephone numbe… | ||||
| 17:17:3.0.1.1.2.4.10.15 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.152 Filing of papers: Form. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005; 85 FR 86479, Dec. 30, 2020] | (a) Electronic filing. Papers filed in connection with any proceeding as defined in § 201.101(a) shall be filed electronically in the form and manner to be specified by the Office of the Secretary in the materials posted on the Commission's website. Papers filed electronically must be received by the Commission by midnight Eastern Time on the date the filing is due. (1) Certification of Inability to File Electronically. If a person reasonably cannot comply with the requirements of this section, due to a lack of access to electronic transmission devices (due to incarceration or otherwise), the person promptly shall file a certification under this paragraph that explains why the person reasonably cannot comply using any additional method of filing listed in § 201.152(a)(2). The filing also must indicate the expected duration of the person's reasonable inability to comply, such as whether the certification is intended to apply to a solitary filing or all filings made during the proceeding. The certification is immediately effective. Upon filing the certification, it will be part of the record of the proceeding, and the person may file paper documents by any additional method listed in § 201.152(a)(2). (2) Additional methods of filing. If a person reasonably cannot file electronically, filing may be made by hand delivering the filing by 5:30 p.m. Eastern Time through a commercial courier service or express delivery service; mailing the filing through the U.S. Postal Service by first class, certified, registered, or express mail delivery so that it is received by the Commission by 5:30 p.m. Eastern Time; or transmitting the filing by facsimile transmission so that it is received by the Commission by midnight Eastern Time. (b) Form. Papers filed in connection with any proceeding as defined in § 201.101(a) shall: (1) Reflect a page, electronically or otherwise, that measures 8 1/2 x 11 inches when printed, except that, to the extent that the reduction of larger documents would render them illegible when pr… | ||||
| 17:17:3.0.1.1.2.4.10.16 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.153 Filing of papers: Signature requirement and effect. | SEC | (a) General requirements. Following the issuance of an order instituting proceedings, every filing of a party represented by counsel shall be signed by at least one counsel of record in his or her name and shall state that counsel's business address and telephone number. A party who acts as his or her own counsel shall sign his or her individual name and state his or her address and telephone number on every filing. (b) Effect of signature. (1) The signature of a counsel or party shall constitute a certification that: (i) the person signing the filing has read the filing; (ii) to the best of his or her knowledge, information, and belief, formed after reasonable inquiry, the filing is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (iii) the filing is not made for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of adjudication. (2) If a filing is not signed, the hearing officer or the Commission shall strike the filing, unless it is signed promptly after the omission is called to the attention of the person making the filing. | |||||
| 17:17:3.0.1.1.2.4.10.17 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.154 Motions. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005; 81 FR 50234, July 29, 2016] | The requirements in this section apply to motions and related filings except where another rule expressly governs. (a) Generally. Unless made during a hearing or conference, a motion shall be in writing, shall state with particularity the grounds therefor, shall set forth the relief or order sought, and shall be accompanied by a written brief of the points and authorities relied upon. All written motions shall be served in accordance with § 201.150, be filed in accordance with § 201.151, meet the requirements of § 201.152, and be signed in accordance with § 201.153. The Commission or the hearing officer may order that an oral motion be submitted in writing. Unless otherwise ordered by the Commission or the hearing officer, if a motion is properly made to the Commission concerning a proceeding to which a hearing officer is assigned, the proceeding before the hearing officer shall continue pending the determination of the motion by the Commission. No oral argument shall be heard on any motion unless the Commission or the hearing officer otherwise directs. (b) Opposing and reply briefs. Briefs in opposition to a motion shall be filed within five days after service of the motion. Reply briefs shall be filed within three days after service of the opposition. (c) Length limitation. No motion (together with the brief in support of the motion), brief in opposition to the motion, or reply brief shall exceed 7,000 words, exclusive of any table of contents or table of authorities. The word limit shall not apply to any addendum that consists solely of copies of applicable cases, pertinent legislative provisions or rules, or relevant exhibits. Requests for leave to file motions and briefs in excess of 7,000 words are disfavored. A motion or brief, together with any accompanying brief, that does not exceed 15 pages in length, exclusive of pages containing the table of contents, table of authorities, and any addendum that consists solely of copies of applicable cases, pertinent legislative provisions, or rules and exhi… | ||||
| 17:17:3.0.1.1.2.4.10.18 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.155 Default; motion to set aside default. | SEC | (a) A party to a proceeding may be deemed to be in default and the Commission or the hearing officer may determine the proceeding against that party upon consideration of the record, including the order instituting proceedings, the allegations of which may be deemed to be true, if that party fails: (1) To appear, in person or through a representative, at a hearing or conference of which that party has been notified; (2) To answer, to respond to a dispositive motion within the time provided, or otherwise to defend the proceeding; or (3) To cure a deficient filing within the time specified by the commission or the hearing officer pursuant to § 201.180(b). (b) A motion to set aside a default shall be made within a reasonable time, state the reasons for the failure to appear or defend, and specify the nature of the proposed defense in the proceeding. In order to prevent injustice and on such conditions as may be appropriate, the hearing officer, at any time prior to the filing of the initial decision, or the Commission, at any time, may for good cause shown set aside a default. | |||||
| 17:17:3.0.1.1.2.4.10.19 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.160 Time computation. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004] | (a) Computation. In computing any period of time prescribed in or allowed by these Rules of Practice or by order of the Commission, 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 shall be included unless it is a Saturday, Sunday, or Federal legal holiday (as defined in § 201.104), in which event the period runs until the end of the next day that is not a Saturday, Sunday, or Federal legal holiday. Intermediate Saturdays, Sundays, and Federal legal holidays shall be excluded from the computation when the period of time prescribed or allowed is seven days or less, not including any additional time allowed for service by mail in paragraph (b) of this section. If on the day a filing is to be made, weather or other conditions have caused the Secretary's office or other designated filing location to close, the filing deadline shall be extended to the end of the next day that is neither a Saturday, a Sunday, nor a Federal legal holiday. (b) Additional time for service by mail. If service is made by mail, three days shall be added to the prescribed period for response unless an order of the Commission or the hearing officer specifies a date certain for filing. In the event that an order of the Commission or the hearing officer specifies a date certain for filing, no time shall be added for service by mail. | ||||
| 17:17:3.0.1.1.2.4.10.2 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.101 Definitions. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13175, Mar. 19, 2004; 70 FR 37617, June 29, 2005; 88 FR 87282, Dec. 15, 2023] | (a) For purposes of these Rules of Practice, unless explicitly stated to the contrary: (1) Commission means the United States Securities and Exchange Commission, or a panel of Commissioners constituting a quorum of the Commission, or a single Commissioner acting as duty officer pursuant to 17 CFR 200.43; (2) Counsel means any attorney representing a party or any other person representing a party pursuant to § 201.102(b); (3) Disciplinary proceeding means an action pursuant to § 201.102(e); (4) Enforcement proceeding means an action, initiated by an order instituting proceedings, held for the purpose of determining whether or not a person is about to violate, has violated, has caused a violation of, or has aided or abetted a violation of any statute or rule administered by the Commission, or whether to impose a sanction as defined in Section 551(10) of the Administrative Procedure Act, 5 U.S.C. 551(10); (5) Hearing officer means an administrative law judge, a panel of Commissioners constituting less than a quorum of the Commission, an individual Commissioner, or any other person duly authorized to preside at a hearing; (6) Interested division means a division or an office assigned primary responsibility by the Commission to participate in a particular proceeding; (7) Order instituting proceedings means an order issued by the Commission commencing a proceeding or an order issued by the Commission to hold a hearing; (8) Party means the interested division, any person named as a respondent in an order instituting proceedings, any applicant named in the caption of any order, persons entitled to notice in a stop order proceeding as set forth in § 201.200(a)(2) or any person seeking Commission review of a decision; (9) Proceeding means any agency process initiated: (i) By an order instituting proceedings; or (ii) By the filing, pursuant to § 201.410, of a petition for review of an initial decision by a hearing officer; or (iii) By the filing, pursuant to § 201.420, of an application for rev… | ||||
| 17:17:3.0.1.1.2.4.10.20 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.161 Extensions of time, postponements and adjournments. | SEC | [60 FR 32796, June 23, 1995, as amended at 68 FR 35788, June 17, 2003; 81 FR 50234, July 29, 2016] | (a) Availability. Except as otherwise provided by law, the Commission, at any time, or the hearing officer, at any time prior to the filing of his or her initial decision or, if no initial decision is to be filed, at any time prior to the closing of the record, may, for good cause shown, extend or shorten any time limits prescribed by these Rules of Practice for the filing of any papers and may, consistent with paragraphs (b) and (c) of this section, postpone or adjourn any hearing. (b) Considerations in determining whether to extend time limits or grant postponements, adjournments and extensions. (1) In considering all motions or requests pursuant to paragraph (a) or (b) of this section, the Commission or the hearing officer should adhere to a policy of strongly disfavoring such requests, except in circumstances where the requesting party makes a strong showing that the denial of the request or motion would substantially prejudice their case. In determining whether to grant any requests, the Commission or hearing officer shall consider, in addition to any other relevant factors: (i) The length of the proceeding to date; (ii) The number of postponements, adjournments or extensions already granted; (iii) The stage of the proceedings at the time of the request; (iv) The impact of the request on the hearing officer's ability to complete the proceeding in the time specified by the Commission; and (v) Any other such matters as justice may require. (2) To the extent that the Commission has chosen a timeline under which the hearing would occur beyond the statutory 60-day deadline, this policy of strongly disfavoring requests for postponement will not apply to a request by a respondent to postpone commencement of a cease and desist proceeding hearing beyond the statutory 60-day period. (c)(1) Time limit. Postponements, adjournments or extensions of time for filing papers shall not exceed 21 days unless the Commission or the hearing officer states on the record or sets forth in a written order the reasons wh… | ||||
| 17:17:3.0.1.1.2.4.10.21 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.180 Sanctions. | SEC | [60 FR 32796, June 23, 1995, as amended at 81 FR 50234, July 29, 2016] | (a) Contemptuous conduct —(1) Subject to exclusion or suspension. Contemptuous conduct by any person before the Commission or a hearing officer during any proceeding, including at or in connection with any conference, deposition or hearing, shall be grounds for the Commission or the hearing officer to: (i) Exclude that person from such deposition, hearing or conference, or any portion thereof; and/or (ii) Summarily suspend that person from representing others in the proceeding in which such conduct occurred for the duration, or any portion, of the proceeding. (2) Review procedure. A person excluded from a deposition, hearing or conference, or a counsel summarily suspended from practice for the duration or any portion of a proceeding, may seek review of the exclusion or suspension by filing with the Commission, within three days of the exclusion or suspension order, a motion to vacate the order. The Commission shall consider such motion on an expedited basis as provided in § 201.500. (3) Adjournment. Upon motion by a party represented by counsel subject to an order of exclusion or suspension, an adjournment shall be granted to allow the retention of new counsel. In determining the length of an adjournment, the Commission or hearing officer shall consider, in addition to the factors set forth in § 201.161, the availability of co-counsel for the party or of other members of a suspended counsel's firm. (b) Deficient filings; leave to cure deficiencies. The Commission or the hearing officer may reject, in whole or in part, any filing that fails to comply with any requirements of these Rules of Practice or of any order issued in the proceeding in which the filing was made. Any such filings shall not be part of the record. The Commission or the hearing officer may direct a party to cure any deficiencies and to resubmit the filing within a fixed time period. (c) Failure to make required filing or to cure deficient filing. The Commission or the hearing officer may enter a default pursuant to § 201.155, di… | ||||
| 17:17:3.0.1.1.2.4.10.22 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.190 Confidential treatment of information in certain filings. | SEC | [60 FR 32796, June 23, 1995, as amended at 76 FR 71875, Nov. 21, 2011] | (a) Application. An application for confidential treatment pursuant to the provisions of Clause 30 of Schedule A of the Securities Act of 1933, 15 U.S.C. 77aa(30), and Rule 406 thereunder, 17 CFR 230.406; Section 24(b)(2) of the Securities Exchange Act of 1934, 15 U.S.C. 78x(b)(2), and Rule 24b-2 thereunder, 17 CFR 240.24b-2; Section 45(a) of the Investment Company Act of 1940, 15 U.S.C. 80a-44(a), and Rule 45a-1 thereunder, 17 CFR 270.45a-1; or Section 210(a) of the Investment Advisers Act of 1940, 15 U.S.C. 80b-10(a), shall be filed with the Secretary. The application shall be accompanied by a sealed copy of the materials as to which confidential treatment is sought. (b) Procedure for supplying additional information. The applicant may be required to furnish in writing additional information with respect to the grounds for objection to public disclosure. Failure to supply the information so requested within 14 days from the date of receipt by the applicant of a notice of the information required shall be deemed a waiver of the objection to public disclosure of that portion of the information to which the additional information relates, unless the Commission or the hearing officer shall otherwise order for good cause shown at or before the expiration of such 14-day period. (c) Confidentiality of materials pending final decision. Pending the determination of the application for confidential treatment, transcripts, non-final orders including an initial decision, if any, and other materials in connection with the application shall be placed under seal; shall be for the confidential use only of the hearing officer, the Commission, the applicant, and any other parties and counsel; and shall be made available to the public only in accordance with orders of the Commission. (d) Public availability of orders. Any final order of the Commission denying or sustaining an application for confidential treatment shall be made public. Any prior findings or opinions relating to an application for confidential treatment… | ||||
| 17:17:3.0.1.1.2.4.10.23 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.191 Adjudications not required to be determined on the record after notice and opportunity for hearing. | SEC | (a) Scope of the rule. This rule applies to every case of adjudication, as defined in 5 U.S.C. 551, pursuant to any statute which the Commission administers, where adjudication is not required to be determined on the record after notice and opportunity for hearing and which the Commission has not chosen to determine on the record after notice and opportunity for hearing. (b) Procedure. In every case of adjudication under paragraph (a) of this section, the Commission shall give prompt notice of any adverse action or final disposition to any person who has requested the Commission to make (or not to make) any such adjudication, and furnish to any such person a written statement of reasons therefor. Additional procedures may be specified in rules relating to specific types of such adjudications. Where any such rule provides for the publication of a Commission order, notice of the action or disposition shall be deemed to be given by such publication. (c) Contents of the record. If the Commission provides notice and opportunity for the submission of written comments by parties to the adjudication or, as the case may be, by other interested persons, written comments received on or before the closing date for comments, unless accorded confidential treatment pursuant to statute or rule of the Commission, become a part of the record of the adjudication. The Commission, in its discretion, may accept and include in the record written comments filed with the Commission after the closing date. | |||||
| 17:17:3.0.1.1.2.4.10.24 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.192 Rulemaking: Issuance, amendment and repeal of rules of general application. | SEC | (a) By petition. Any person desiring the issuance, amendment or repeal of a rule of general application may file a petition therefor with the Secretary. Such petition shall include a statement setting forth the text or the substance of any proposed rule or amendment desired or specifying the rule the repeal of which is desired, and stating the nature of his or her interest and his or her reasons for seeking the issuance, amendment or repeal of the rule. The Secretary shall acknowledge, in writing, receipt of the petition and refer it to the appropriate division or office for consideration and recommendation. Such recommendations shall be transmitted with the petition to the Commission for such action as the Commission deems appropriate. The Secretary shall notify the petitioner of the action taken by the Commission. (b) Notice of proposed issuance, amendment or repeal of rules. Except where the Commission finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, whenever the Commission proposes to issue, amend, or repeal any rule or regulation of general application other than an interpretive rule; general statement of policy; or rule of agency organization, procedure, or practice; or any matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts, there shall first be published in the Federal Register a notice of the proposed action. Such notice shall include: (1) A statement of the time, place, and nature of the rulemaking proceeding, with particular reference to the manner in which interested persons shall be afforded the opportunity to participate in such proceeding; (2) Reference to the authority under which the rule is proposed; and (3) The terms or substance of the proposed rule or a description of the subjects and issues involved. | |||||
| 17:17:3.0.1.1.2.4.10.25 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.193 Applications by barred individuals for consent to associate. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 85 FR 86478, Dec. 30, 2020] | (a) Preliminary note. This section governs applications to the Commission by certain persons, barred by Commission order from association with brokers, dealers, municipal securities dealers, government securities brokers, government securities dealers, investment advisers, investment companies or transfer agents, for consent to become so associated. Applications made pursuant to this section must show that the proposed association would be consistent with the public interest. In addition to the information specifically required by the section, applications should be supplemented, where appropriate, by written statements of individuals (other than the applicant) who are competent to attest to the applicant's character, employment performance, and other relevant information. Intentional misstatements or omissions of fact may constitute criminal violations of 18 U.S.C. 1001 et seq. and other provisions of law. (1) The nature of the supervision that an applicant will receive or exercise as an associated person with a registered entity is an important matter bearing upon the public interest. In meeting the burden of showing that the proposed association is consistent with the public interest, the application and supporting documentation must demonstrate that the proposed supervision, procedures, or terms and conditions of employment are reasonably designed to prevent a recurrence of the conduct that led to imposition of the bar. As an associated person, the applicant will be limited to association in a specified capacity with a particular registered entity and may also be subject to specific terms and conditions. (2) Normally, the applicant's burden of demonstrating that the proposed association is consistent with the public interest will be difficult to meet where the applicant is to be supervised by, or is to supervise, another barred individual. In addition, where an applicant wishes to become the sole proprietor of a registered entity and thus is seeking Commission consent notwithstanding an absence of super… | ||||
| 17:17:3.0.1.1.2.4.10.26 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.194 Applications by security-based swap dealers or major security-based swap participants for statutorily disqualified associated persons to effect or be involved in effecting security-based swaps. | SEC | [84 FR 4944, Feb. 19, 2019, as amended at 85 FR 6349, Feb. 4, 2020] | A security-based swap dealer or major security-based swap participant making an application under this section should refer to paragraph (i) of this section. (a) Scope of rule. Applications by a security-based swap dealer or major security-based swap participant for the Commission to permit an associated person (as provided in 15 U.S.C. 78c(a)(70)) to effect or be involved in effecting security-based swaps on behalf of a registered security-based swap dealer or major security-based swap participant, or to change the terms and conditions thereof, may be made pursuant to this section where the associated person is subject to a statutory disqualification and thereby prohibited from effecting or being involved in effecting security-based swaps on behalf of a security-based swap dealer or major security-based swap participant under Exchange Act Section 15F(b)(6) (15 U.S.C. 78o-10(b)(6)). (b) Required showing. The applicant shall make a showing that it would be consistent with the public interest to permit the person associated with the security-based swap dealer or major security-based swap participant who is subject to a statutory disqualification to effect or be involved in effecting security-based swaps on behalf of the security-based swap dealer or major security-based swap participant. (c) Exclusions. (1) Exclusion for other persons. The security-based swap dealer or major security-based swap participant shall be excluded from the prohibition in Section 15F(b)(6) of the Securities Exchange Act of 1934 (15 U.S.C. 78o-10(b)(6)) with respect to an associated person that is not a natural person who is subject to a statutory disqualification. (2) Exclusion for certain associated natural persons. A security-based swap dealer or major security-based swap participant shall be excluded from the prohibition in section 15F(b)(6) of the Exchange Act (15 U.S.C. 78o-10(b)(6)) with respect to an associated person who is a natural person who (i) is not a U.S. person (as defined in 17 CFR 240.3a71-3(a)(4)(i)(A)) and… | ||||
| 17:17:3.0.1.1.2.4.10.3 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.102 Appearance and practice before the Commission. | SEC | [60 FR 32796, June 23, 1995, as amended at 63 FR 57122, Oct. 26, 1998; 69 FR 13176, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005; 85 FR 86477, Dec. 30, 2020] | A person shall not be represented before the Commission or a hearing officer except as stated in paragraphs (a) and (b) of this section or as otherwise permitted by the Commission or a hearing officer. (a) Representing oneself. In any proceeding, an individual may appear on his or her own behalf. (b) Representing others. In any proceeding, a person may be represented by an attorney at law admitted to practice before the Supreme Court of the United States or the highest court of any State (as defined in Section 3(a)(16) of the Exchange Act, 15 U.S.C. 78c(a)(16)); 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; and 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. (c) Former Commission employees. Former employees of the Commission must comply with the restrictions on practice contained in the Commission's Conduct Regulation, Subpart M, 17 CFR 200.735. (d) Designation of address for service; notice of appearance; power of attorney; withdrawal — (1) Representing oneself. When an individual first makes any filing or otherwise appears on his or her own behalf before the Commission or a hearing officer in a proceeding as defined in § 201.101(a), he or she shall file with the Commission, or otherwise state on the record, and keep current, a mailing address and email address at which any notice or other written communication required to be served upon him or her or furnished to him or her may be sent and a telephone number where he or she may be reached during business hours. Within ten days of April 12, 2021, any individual appearing on his or her own behalf before the Commission or hearing officer in a proceeding as defined in § 201.101(a) that is ongoing on that date shall electronically file a notice that complies with this paragraph. Notices requ… | ||||
| 17:17:3.0.1.1.2.4.10.4 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.103 Construction of rules. | SEC | (a) The Rules of Practice shall be construed and administered to secure the just, speedy, and inexpensive determination of every proceeding. (b) In any particular proceeding, to the extent that there is a conflict between these rules and a procedural requirement contained in any statute, or any rule or form adopted thereunder, the latter shall control. (c) For purposes of these rules: (1) Any term in the singular includes the plural, and any term in the plural includes the singular, if such use would be appropriate; (2) Any use of a masculine, feminine, or neuter gender encompasses such other genders as would be appropriate; and (3) Unless the context requires otherwise, counsel for a party may take any action required or permitted to be taken by such party. | |||||
| 17:17:3.0.1.1.2.4.10.5 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.104 Business hours. | SEC | [60 FR 32796, June 23, 1995, as amended at 70 FR 72569, Dec. 5, 2005] | The Headquarters office of the Commission, at 100 F Street, NE., Washington, DC 20549, is open each day, except Saturdays, Sundays, and Federal legal holidays, from 9 a.m. to 5:30 p.m., Eastern Standard Time or Eastern Daylight Saving Time, whichever is currently in effect in Washington, D.C. Federal legal holidays consist of New Year's Day; Birthday of Martin Luther King, Jr.; Presidents Day; Memorial Day; Independence Day; Labor Day; Columbus Day; Veterans Day; Thanksgiving Day; Christmas Day; and any other day appointed as a holiday in Washington, D.C. by the President or the Congress of the United States. | ||||
| 17:17:3.0.1.1.2.4.10.6 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.110 Presiding officer. | SEC | All proceedings shall be presided over by the Commission or, if the Commission so orders, by a hearing officer. When the Commission designates that the hearing officer shall be an administrative law judge, the Chief Administrative Law Judge shall select, pursuant to 17 CFR 200.30-10, the administrative law judge to preside. | |||||
| 17:17:3.0.1.1.2.4.10.7 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.111 Hearing officer: Authority. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005] | The hearing officer shall have the authority to do all things necessary and appropriate to discharge his or her duties. No provision of these Rules of Practice shall be construed to limit the powers of the hearing officer provided by the Administrative Procedure Act, 5 U.S.C. 556, 557. The powers of the hearing officer include, but are not limited to, the following: (a) Administering oaths and affirmations; (b) Issuing subpoenas authorized by law and revoking, quashing, or modifying any such subpoena; (c) Receiving relevant evidence and ruling upon the admission of evidence and offers of proof; (d) Regulating the course of a proceeding and the conduct of the parties and their counsel; (e) Holding prehearing and other conferences as set forth in § 201.221 and requiring the attendance at any such conference of at least one representative of each party who has authority to negotiate concerning the resolution of issues in controversy; (f) Recusing himself or herself upon motion made by a party or upon his or her own motion; (g) Ordering, in his or her discretion, in a proceeding involving more than one respondent, that the interested division indicate, on the record, at least one day prior to the presentation of any evidence, each respondent against whom that evidence will be offered; (h) Subject to any limitations set forth elsewhere in these Rules of Practice, considering and ruling upon all procedural and other motions, including a motion to correct a manifest error of fact in the initial decision. A motion to correct is properly filed under this Rule only if the basis for the motion is a patent misstatement of fact in the initial decision. Any motion to correct must be filed within ten days of the initial decision. A brief in opposition may be filed within five days of a motion to correct. The hearing officer shall have 20 days from the date of filing of any brief in opposition filed to rule on a motion to correct; (i) Preparing an initial decision as provided in § 201.360; (j) Upon notice to all partie… | ||||
| 17:17:3.0.1.1.2.4.10.8 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.112 Hearing officer: Disqualification and withdrawal. | SEC | (a) Notice of disqualification. At any time a hearing officer believes himself or herself to be disqualified from considering a matter, the hearing officer shall issue a notice stating that he or she is withdrawing from the matter and setting forth the reasons therefor. (b) Motion for withdrawal. Any party who has a reasonable, good faith basis to believe that a hearing officer has a personal bias, or is otherwise disqualified from hearing a case, may make a motion to the hearing officer that the hearing officer withdraw. The motion shall be accompanied by an affidavit setting forth in detail the facts alleged to constitute grounds for disqualification. If the hearing officer finds himself or herself not disqualified, he or she shall so rule and shall continue to preside over the proceeding. | |||||
| 17:17:3.0.1.1.2.4.10.9 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.120 Ex parte communications. | SEC | (a) Except to the extent required for the disposition of ex parte matters as authorized by law, the person presiding over an evidentiary hearing may not: (1) Consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or (2) Be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for the Commission. (b) The Commission's code of behavior regarding ex parte communications between persons outside the Commission and decisional employees, 17 CFR 200.110 through 200.114, governs other prohibited communications during a proceeding conducted under the Rules of Practice. | |||||
| 17:17:3.0.1.1.2.4.11.27 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.200 Initiation of proceedings. | SEC | (a) Order instituting proceedings: Notice and opportunity for hearing —(1) Generally. Whenever an order instituting proceedings is issued by the Commission, appropriate notice thereof shall be given to each party to the proceeding by the Secretary or another duly designated officer of the Commission. Each party shall be given notice of any hearing within a time reasonable in light of the circumstances, in advance of the hearing; provided, however, no prior notice need be given to a respondent if the Commission has authorized the Division of Enforcement to seek a temporary sanction ex parte. (2) Stop order proceedings: Additional persons entitled to notice. Any notice of a proceeding relating to the issuance of a stop order suspending the effectiveness of a registration statement pursuant to Section 8(d) of the Securities Act of 1933, 15 U.S.C. 77h(d), shall be sent to or served on the issuer; or, in the case of a foreign government or political subdivision thereof, sent to or served on the underwriter; or, in the case of a foreign or territorial person, sent to or served on its duly authorized representative in the United States named in the registration statement, properly directed in the case of telegraphic notice to the address given in such statement. In addition, if such proceeding is commenced within 90 days after the registration statement has become effective, notice of the proceeding shall be given to the agent for service named on the facing sheet of the registration statement and to each other person designated on the facing sheet of the registration statement as a person to whom copies of communications to such agent are to be sent. (b) Content of order. The order instituting proceedings shall: (1) State the nature of any hearing; (2) State the legal authority and jurisdiction under which the hearing is to be held; (3) Contain a short and plain statement of the matters of fact and law to be considered and determined, unless the order directs an answer pursuant to § 201.220 in which case t… | |||||
| 17:17:3.0.1.1.2.4.11.28 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.201 Consolidation and severance of proceedings. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005] | (a) Consolidation. By order of the Commission or a hearing officer, proceedings involving a common question of law or fact may be consolidated for hearing of any or all the matters at issue in such proceedings. The Commission or the hearing officer may make such orders concerning the conduct of such proceedings as it deems appropriate to avoid unnecessary cost or delay. Consolidation shall not prejudice any rights under these Rules of Practice and shall not affect the right of any party to raise issues that could have been raised if consolidation had not occurred. For purposes of this section, no distinction is made between joinder and consolidation of proceedings. (b) Severance. By order of the Commission, any proceeding may be severed with respect to one or more parties. Any motion to sever must be made solely to the Commission and must include a representation that a settlement offer is pending before the Commission or otherwise show good cause. | ||||
| 17:17:3.0.1.1.2.4.11.29 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.202 Specification of procedures by parties in certain proceedings. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004; 88 FR 87282, Dec. 15, 2023] | (a) Motion to specify procedures. In any proceeding other than an enforcement or disciplinary proceeding, a proceeding to review a determination by a self-regulatory organization pursuant to §§ 201.420 and 201.421, a proceeding to review a determination of the Board pursuant to §§ 201.440 and 201.441, or a proceeding to review a determination by a security-based swap execution facility pursuant to §§ 201.442 and 201.443, a party may, at any time up to 20 days prior to the start of a hearing, make a motion to specify the procedures necessary or appropriate for the proceeding with particular reference to: (1) Whether there should be an initial decision by a hearing officer; (2) Whether any interested division of the Commission may assist in the preparation of the Commission's decision; and (3) Whether there should be a 30-day waiting period between the issuance of the Commission's order and the date it is to become effective. (b) Objections; effect of failure to object. Any other party may object to the procedures so specified, and such party may specify such additional procedures as it considers necessary or appropriate. In the absence of such objection or such specification of additional procedures, such other party may be deemed to have waived objection to the specified procedures. (c) Approval required. Any proposal pursuant to paragraph (a) of this section, even if not objected to by any party, shall be subject to the written approval of the hearing officer. (d) Procedure upon agreement to waive an initial decision. If an initial decision is waived pursuant to paragraph (a) of this section, the hearing officer shall notify the Secretary and, unless the Commission directs otherwise within 14 days, no initial decision shall be issued. | ||||
| 17:17:3.0.1.1.2.4.11.30 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.210 Parties, limited participants and amici curiae. | SEC | [60 FR 32796, June 23, 1995, as amended at 63 FR 63405, Nov. 13, 1998; 69 FR 13177, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005; 76 FR 71875, Nov. 21, 2011; 88 FR 87282, Dec. 15, 2023] | (a) Parties in an enforcement or disciplinary proceeding, a proceeding to review a self- regulatory organization determination, a proceeding to review a Board determination, or a proceeding to review a determination by a security-based swap execution facility —(1) Generally. No person shall be granted leave to become a party or a non-party participant on a limited basis in an enforcement or disciplinary proceeding, a proceeding to review a determination by a self- regulatory organization pursuant to §§ 201.420 and 201.421, a proceeding to review a determination by the Board pursuant to §§ 201.440 and 201.441, or a proceeding to review a determination by a security-based swap execution facility pursuant to §§ 201.442 and 201.443, except as authorized by paragraph (c) of this section. (2) Disgorgement proceedings. In an enforcement proceeding, a person may state his or her views with respect to a proposed plan of disgorgement or file a proof of claim pursuant to § 201.1103. (b) Intervention as party —(1) Generally. In any proceeding, other than an enforcement proceeding, a disciplinary proceeding, a proceeding to review a self-regulatory determination, a proceeding to review a Board determination, or a proceeding to review a security-based swap execution facility determination, any person may seek leave to intervene as a party by filing a motion setting forth the person's interest in the proceeding. No person, however, shall be admitted as a party to a proceeding by intervention unless it is determined that leave to participate pursuant to paragraph (c) of this section would be inadequate for the protection of the person's interests. In a proceeding under the Investment Company Act of 1940, any representative of interested security holders, or any other person whose participation in the proceeding may be in the public interest or for the protection of investors, may be admitted as a party upon the filing of a written motion setting forth the person's interest in the proceeding. (2) Intervention as of ri… | ||||
| 17:17:3.0.1.1.2.4.11.31 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.220 Answer to allegations. | SEC | [81 FR 50234, July 29, 2016] | (a) When required. In its order instituting proceedings, the Commission may require any respondent to file an answer to each of the allegations contained therein. Even if not so ordered, any respondent in any proceeding may elect to file an answer. Any other person granted leave by the Commission or the hearing officer to participate on a limited basis in such proceedings pursuant to § 201.210(c) may be required to file an answer. (b) When to file. Except where a different period is provided by rule or by order, a respondent required to file an answer as provided in paragraph (a) of this section shall do so within 20 days after service upon the respondent of the order instituting proceedings. Persons granted leave to participate on a limited basis in the proceeding pursuant to § 201.210(c) may file an answer within a reasonable time, as determined by the Commission or the hearing officer. If the order instituting proceedings is amended, the Commission or the hearing officer may require that an amended answer be filed and, if such an answer is required, shall specify a date for the filing thereof. (c) Contents; effect of failure to deny. Unless otherwise directed by the hearing officer or the Commission, an answer shall specifically admit, deny, or state that the party does not have, and is unable to obtain, sufficient information to admit or deny each allegation in the order instituting proceedings. When a party intends in good faith to deny only a part of an allegation, the party shall specify so much of it as is true and shall deny only the remainder. A statement of a lack of information shall have the effect of a denial. Any allegation not denied shall be deemed admitted. A respondent must affirmatively state in the answer any avoidance or affirmative defense, including but not limited to res judicata and statute of limitations. In this regard, a respondent must state in the answer whether the respondent relied on the advice of counsel, accountants, auditors, or other professionals in connection with a… | ||||
| 17:17:3.0.1.1.2.4.11.32 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.221 Prehearing conference. | SEC | [60 FR 32796, June 23, 1995, as amended at 63 FR 63405, Nov. 13, 1998; 81 FR 50234, July 29, 2016] | (a) Purposes of conference. The purposes of a prehearing conference include, but are not limited to: (1) Expediting the disposition of the proceeding; (2) Establishing early and continuing control of the proceeding by the hearing officer; and (3) Improving the quality of the hearing through more thorough preparation. (b) Procedure. On his or her own motion or at the request of a party, the hearing officer may, in his or her discretion, direct counsel or any party to meet for an initial, final or other prehearing conference. Such conferences may be held with or without the hearing officer present as the hearing officer deems appropriate. Where such a conference is held outside the presence of the hearing officer, the hearing officer shall be advised promptly by the parties of any agreements reached. Such conferences also may be held with one or more persons participating by telephone or other remote means. (c) Subjects to be discussed. At a prehearing conference consideration may be given and action taken with respect to any and all of the following: (1) Simplification and clarification of the issues; (2) Exchange of witness and exhibit lists and copies of exhibits; (3) Timing of expert witness disclosures and reports, if any; (4) Stipulations, admissions of fact, and stipulations concerning the contents, authenticity, or admissibility into evidence of documents; (5) Matters of which official notice may be taken; (6) The schedule for exchanging prehearing motions or briefs, if any; (7) The method of service for papers other than Commission orders; (8) The filing of any motion pursuant to § 201.250; (9) Settlement of any or all issues; (10) Determination of hearing dates; (11) Amendments to the order instituting proceedings or answers thereto; (12) Production, and timing for completion of the production, of documents as set forth in § 201.230, and prehearing production of documents in response to subpoenas duces tecum as set forth in § 201.232; (13) Specification of procedures as set forth i… | ||||
| 17:17:3.0.1.1.2.4.11.33 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.222 Prehearing submissions and disclosures. | SEC | [60 FR 32796, June 23, 1995, as amended at 81 FR 50235, July 29, 2016] | (a) Submissions generally. The hearing officer, on his or her own motion, or at the request of a party or other participant, may order any party, including the interested division, to furnish such information as deemed appropriate, including any or all of the following: (1) An outline or narrative summary of its case or defense; (2) The legal theories upon which it will rely; (3) Copies and a list of documents that it intends to introduce at the hearing; and (4) A list of witnesses who will testify on its behalf, including the witnesses' names, occupations, addresses and a brief summary of their expected testimony. (b) Expert witnesses —(1) Information to be supplied; reports. Each party who intends to call an expert witness shall submit, in addition to the information required by paragraph (a)(4) of this section, a statement of the expert's qualifications, a listing of other proceedings in which the expert has given expert testimony during the previous four years, and a list of publications authored or co-authored by the expert in the previous ten years. Additionally, if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony, then the party must include in the disclosure a written report—prepared and signed by the witness. The report must contain: (i) A complete statement of all opinions the witness will express and the basis and reasons for them; (ii) The facts or data considered by the witness in forming them; (iii) Any exhibits that will be used to summarize or support them; and (iv) A statement of the compensation to be paid for the study and testimony in the case. (2) Drafts and communications protected. (i) Drafts of any report or other disclosure required under this section need not be furnished regardless of the form in which the draft is recorded. (ii) Communications between a party's attorney and the party's expert witness who is required to provide a report under t… | ||||
| 17:17:3.0.1.1.2.4.11.34 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.230 Enforcement and disciplinary proceedings: Availability of documents for inspection and copying. | SEC | [60 FR 32796, June 23, 1995; 60 FR 46499, Sept. 7, 1995, as amended at 68 FR 35789, June 17, 2003; 69 FR 13177, Mar. 19, 2004; 81 FR 50235, July 29, 2016; 84 FR 50738, Sept. 26, 2019] | For purposes of this section, the term documents shall include writings, drawings, graphs, charts, photographs, recordings and other data compilations, including data stored by computer, from which information can be obtained. (a) Documents to be available for inspection and copying. (1) Unless otherwise provided by this section, or by order of the Commission or the hearing officer, the Division of Enforcement shall make available for inspection and copying by any party documents obtained by the Division prior to the institution of proceedings, in connection with the investigation leading to the Division's recommendation to institute proceedings. Such documents shall include: (i) Each subpoena issued; (ii) Every other written request to persons not employed by the Commission to provide documents or to be interviewed; (iii) The documents turned over in response to any such subpoenas or other written requests; (iv) All transcripts and transcript exhibits; (v) Any other documents obtained from persons not employed by the Commission; and (vi) Any final examination or inspection reports prepared by the Office of Compliance Inspections and Examinations, the Division of Trading and Markets, or the Division of Investment Management, if the Division of Enforcement intends either to introduce any such report into evidence or to use any such report to refresh the recollection of any witness. (2) Nothing in this paragraph (a) shall limit the right of the Division to make available any other document, or shall limit the right of a respondent to seek access to or production pursuant to subpoena of any other document, or shall limit the authority of the hearing officer to order the production of any document pursuant to subpoena. (b) Documents that may be withheld or redacted. (1) The Division of Enforcement may withhold a document if: (i) The document is privileged; (ii) The document is an internal memorandum, note or writing prepared by a Commission employee, other than an examination or inspection report as … | ||||
| 17:17:3.0.1.1.2.4.11.35 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.231 Enforcement and disciplinary proceedings: Production of witness statements. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004] | (a) Availability. Any respondent in an enforcement or disciplinary proceeding may move that the Division of Enforcement produce for inspection and copying any statement of any person called or to be called as a witness by the Division of Enforcement that pertains, or is expected to pertain, to his or her direct testimony and that would be required to be produced pursuant to the Jencks Act, 18 U.S.C. 3500. For purposes of this section, statement shall have the meaning set forth in 18 U.S.C. 3500(e). Such production shall be made at a time and place fixed by the hearing officer and shall be made available to any party, provided, however, that the production shall be made under conditions intended to preserve the items to be inspected or copied. (b) Failure to produce—harmless error. In the event that a statement required to be made available for inspection and copying by a respondent is not turned over by the Division of Enforcement, no rehearing or redecision of a proceeding already heard or decided shall be required unless the respondent establishes that the failure to turn over the statement was not harmless error. | ||||
| 17:17:3.0.1.1.2.4.11.36 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.232 Subpoenas. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004; 81 FR 50235, July 29, 2016] | (a) Availability; procedure. In connection with any hearing ordered by the Commission or any deposition permitted under § 201.233, a party may request the issuance of subpoenas requiring the attendance and testimony of witnesses at such depositions or at the designated time and place of hearing, and subpoenas requiring the production of documentary or other tangible evidence returnable at any designated time or place. Unless made on the record at a hearing, requests for issuance of a subpoena shall be made in writing and served on each party pursuant to § 201.150. A person whose request for a subpoena has been denied or modified may not request that any other person issue the subpoena. (1) Unavailability of hearing officer. In the event that the hearing officer assigned to a proceeding is unavailable, the party seeking issuance of the subpoena may seek its issuance from the first available of the following persons: The Chief Administrative Law Judge, the law judge most senior in service as a law judge, the duty officer, any other member of the Commission, or any other person designated by the Commission to issue subpoenas. Requests for issuance of a subpoena made to the Commission, or any member thereof, must be submitted to the Secretary, not to an individual Commissioner. (2) Signing may be delegated. A hearing officer may authorize issuance of a subpoena, and may delegate the manual signing of the subpoena to any other person authorized to issue subpoenas. (b) Standards for issuance. Where it appears to the person asked to issue the subpoena that the subpoena sought may be unreasonable, oppressive, excessive in scope, or unduly burdensome, he or she may, in his or her discretion, as a condition precedent to the issuance of the subpoena, require the person seeking the subpoena to show the general relevance and reasonable scope of the testimony or other evidence sought. If after consideration of all the circumstances, the person requested to issue the subpoena determines that the subpoena or any of it… | ||||
| 17:17:3.0.1.1.2.4.11.37 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.233 Depositions upon oral examination. | SEC | [81 FR 50236, July 29, 2016] | (a) Depositions upon written notice. In any proceeding under the 120-day timeframe designated pursuant to § 201.360(a)(2), depositions upon written notice may be taken as set forth in this paragraph. No other depositions shall be permitted except as provided in paragraph (b) of this section. (1) If the proceeding involves a single respondent, the respondent may file written notices to depose no more than three persons, and the Division of Enforcement may file written notices to depose no more than three persons. (2) If the proceeding involves multiple respondents, the respondents collectively may file joint written notices to depose no more than five persons, and the Division of Enforcement may file written notices to depose no more than five persons. The depositions taken under this paragraph (a)(2) shall not exceed a total of five depositions for the Division of Enforcement, and five depositions for all respondents collectively. (3) Additional depositions upon motion. Any side may file a motion with the hearing officer seeking leave to notice up to two additional depositions beyond those permitted pursuant to paragraphs (a)(1) and (2) of this section. (i) Procedure. (A) A motion for additional depositions must be filed no later than 90 days prior to the hearing date. Any party opposing the motion may submit an opposition within five days after service of the motion. No reply shall be permitted. The motion and any oppositions each shall not exceed seven pages in length. These limitations exclusively govern motions under this section; notwithstanding § 201.154(a), any points and authorities shall be included in the motion or opposition, with no separate statement of points and authorities permitted, and none of the requirements in § 201.154(b) or (c) shall apply. (B) Upon consideration of the motion and any opposing papers, the hearing officer will issue an order either granting or denying the motion. The hearing officer shall consider the motion on an expedited basis. (C) The proceeding shall not aut… | ||||
| 17:17:3.0.1.1.2.4.11.38 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.234 Depositions upon written questions. | SEC | [60 FR 32796, June 23, 1995, as amended at 81 FR 50238, July 29, 2016] | (a) Availability. Any deposition permitted under § 201.233 may be taken and submitted on written questions upon motion of any party, for good cause shown, or as stipulated by the parties. (b) Procedure. Written questions shall be filed with the motion. Within 10 days after service of the motion and written questions, any party may file objections to such written questions and any party may file cross-questions. When a deposition is taken pursuant to this section no persons other than the witness, counsel to the witness, the deposition officer, and, if the deposition officer does not act as reporter, a reporter, shall be present at the examination of the witness. No party shall be present or represented unless otherwise permitted by order. The deposition officer shall propound the questions and cross-questions to the witness in the order submitted. (c) Additional requirements. The order for deposition, filing of the deposition, form of the deposition and use of the deposition in the record shall be governed by paragraphs (c) through (l) of § 201.233, except that no cross-examination shall be made. | ||||
| 17:17:3.0.1.1.2.4.11.39 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.235 Introducing prior sworn statements or declarations. | SEC | [60 FR 32796, June 23, 1995, as amended at 81 FR 50238, July 29, 2016] | (a) At a hearing, any person wishing to introduce a prior, sworn deposition taken pursuant to § 201.233 or § 201.234, investigative testimony, or other sworn statement or a declaration pursuant to 28 U.S.C. 1746, of a witness, not a party, otherwise admissible in the proceeding, may make a motion setting forth the reasons therefor. If only part of a statement or declaration is offered in evidence, the hearing officer may require that all relevant portions of the statement or declaration be introduced. If all of a statement or declaration is offered in evidence, the hearing officer may require that portions not relevant to the proceeding be excluded. A motion to introduce a prior sworn statement or declaration may be granted if: (1) The witness is dead; (2) The witness is out of the United States, unless it appears that the absence of the witness was procured by the party offering the prior sworn statement or declaration; (3) The witness is unable to attend or testify because of age, sickness, infirmity, imprisonment or other disability; (4) The party offering the prior sworn statement or declaration has been unable to procure the attendance of the witness by subpoena; or (5) In the discretion of the Commission or the hearing officer, it would be desirable, in the interests of justice, to allow the prior sworn statement or declaration to be used. In making this determination, due regard shall be given to the presumption that witnesses will testify orally in an open hearing. If the parties have stipulated to accept a prior sworn statement or declaration in lieu of live testimony, consideration shall also be given to the convenience of the parties in avoiding unnecessary expense. (b) Sworn statement or declaration of party or agent. An adverse party may use for any purpose a deposition taken pursuant to § 201.233 or § 201.234, investigative testimony, or other sworn statement or a declaration pursuant to 28 U.S.C. 1746, of a party or anyone who, when giving the sworn statement or declaration, was the party's… | ||||
| 17:17:3.0.1.1.2.4.11.40 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.240 Settlement. | SEC | (a) Availability. Any person who is notified that a proceeding may or will be instituted against him or her, or any party to a proceeding already instituted, may, at any time, propose in writing an offer of settlement. (b) Procedure. An offer of settlement shall state that it is made pursuant to this section; shall recite or incorporate as a part of the offer the provisions of paragraphs (c) (4) and (5) of this section; shall be signed by the person making the offer, not by counsel; and shall be submitted to the interested division. (c) Consideration of offers of settlement. (1) Offers of settlement shall be considered by the interested division when time, the nature of the proceedings, and the public interest permit. (2) Where a hearing officer is assigned to a proceeding, the interested division and the party submitting the offer may request that the hearing officer express his or her views regarding the appropriateness of the offer of settlement. A request for the hearing officer to express his or her views on an offer of settlement or otherwise to participate in a settlement conference constitutes a waiver by the persons making the request of any right to claim bias or prejudgment by the hearing officer based on the views expressed. (3) The interested division shall present the offer of settlement to the Commission with its recommendation, except that, if the division's recommendation is unfavorable, the offer shall not be presented to the Commission unless the person making the offer so requests. (4) By submitting an offer of settlement, the person making the offer waives, subject to acceptance of the offer: (i) All hearings pursuant to the statutory provisions under which the proceeding is to be or has been instituted; (ii) The filing of proposed findings of fact and conclusions of law; (iii) Proceedings before, and an initial decision by, a hearing officer; (iv) All post-hearing procedures; and (v) Judicial review by any court. (5) By submitting an offer of settlement the person further wa… | |||||
| 17:17:3.0.1.1.2.4.11.41 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.250 Dispositive motions. | SEC | [81 FR 50239, July 29, 2016] | (a) Motion for a ruling on the pleadings. No later than 14 days after a respondent's answer has been filed, any party may move for a ruling on the pleadings on one or more claims or defenses, asserting that, even accepting all of the non-movant's factual allegations as true and drawing all reasonable inferences in the non-movant's favor, the movant is entitled to a ruling as a matter of law. The hearing officer shall promptly grant or deny the motion. (b) Motion for summary disposition in 30- and 75-day proceedings. In any proceeding under the 30- or 75-day timeframe designated pursuant to § 201.360(a)(2), after a respondent's answer has been filed and documents have been made available to that respondent for inspection and copying pursuant to § 201.230, any party may make a motion for summary disposition on one or more claims or defenses, asserting that the undisputed pleaded facts, declarations, affidavits, documentary evidence or facts officially noted pursuant to § 201.323 show that there is no genuine issue with regard to any material fact and that the movant is entitled to summary disposition as a matter of law. The hearing officer shall promptly grant or deny the motion for summary disposition or shall defer decision on the motion. If it appears that a party, for good cause shown, cannot present prior to the hearing facts essential to justify opposition to the motion, the hearing officer shall deny or defer the motion. (c) Motion for summary disposition in 120-day proceedings. In any proceeding under the 120-day timeframe designated pursuant to § 201.360(a)(2), after a respondent's answer has been filed and documents have been made available to that respondent for inspection and copying pursuant to § 201.230, a party may make a motion for summary disposition on one or more claims or defenses, asserting that the undisputed pleaded facts, declarations, affidavits, deposition transcripts, documentary evidence or facts officially noted pursuant to § 201.323 show that there is no genuine issue with rega… | ||||
| 17:17:3.0.1.1.2.4.12.42 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.300 Hearings. | SEC | Hearings for the purpose of taking evidence shall be held only upon order of the Commission. All hearings shall be conducted in a fair, impartial, expeditious and orderly manner. | |||||
| 17:17:3.0.1.1.2.4.12.43 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.301 Hearings to be public. | SEC | All hearings, except hearings on applications for confidential treatment filed pursuant to § 201.190, hearings held to consider a motion for a protective order pursuant to § 201.322, and hearings on ex parte application for a temporary cease-and-desist order, shall be public unless otherwise ordered by the Commission on its own motion or the motion of a party. No hearing shall be nonpublic where all respondents request that the hearing be made public. | |||||
| 17:17:3.0.1.1.2.4.12.44 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.302 Record of hearings. | SEC | (a) Recordation. Unless ordered otherwise by the hearing officer or the Commission, all hearings shall be recorded and a written transcript thereof shall be prepared. (b) Availability of a transcript. Transcripts of public hearings shall be available for purchase at prescribed rates. Transcripts of nonpublic proceedings, and transcripts subject to a protective order pursuant to § 201.322, shall be available for purchase only by parties; provided, however, that any person compelled to submit data or evidence in a hearing may purchase a copy of his or her own testimony. (c) Transcript correction. Prior to the filing of post-hearing briefs or proposed findings and conclusions, or within such earlier time as directed by the Commission or the hearing officer, a party or witness may make a motion to correct the transcript. Proposed corrections of the transcript may be submitted to the hearing officer by stipulation pursuant to § 201.324, or by motion. Upon notice to all parties to the proceeding, the hearing officer may, by order, specify corrections to the transcript. | |||||
| 17:17:3.0.1.1.2.4.12.45 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.310 Failure to appear at hearings: Default. | SEC | Any person named in an order instituting proceedings as a person against whom findings may be made or sanctions imposed who fails to appear at a hearing of which he or she has been duly notified may be deemed to be in default pursuant to § 201.155(a). A party may make a motion to set aside a default pursuant to § 201.155(b). | |||||
| 17:17:3.0.1.1.2.4.12.46 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.320 Evidence: Admissibility. | SEC | [81 FR 50239, July 29, 2016] | (a) Except as otherwise provided in this section, the Commission or the hearing officer may receive relevant evidence and shall exclude all evidence that is irrelevant, immaterial, unduly repetitious, or unreliable. (b) Subject to § 201.235, evidence that constitutes hearsay may be admitted if it is relevant, material, and bears satisfactory indicia of reliability so that its use is fair. | ||||
| 17:17:3.0.1.1.2.4.12.47 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.321 Evidence: Objections and offers of proof. | SEC | (a) Objections. Objections to the admission or exclusion of evidence must be made on the record and shall be in short form, stating the grounds relied upon. Exceptions to any ruling thereon by the hearing officer need not be noted at the time of the ruling. Such exceptions will be deemed waived on appeal to the Commission, however, unless raised: (1) Pursuant to interlocutory review in accordance with § 201.400; (2) In a proposed finding or conclusion filed pursuant to § 201.340; or (3) In a petition for Commission review of an initial decision filed in accordance with § 201.410. (b) Offers of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record. Excluded material shall be retained pursuant to § 201.350(b). | |||||
| 17:17:3.0.1.1.2.4.12.48 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.322 Evidence: Confidential information, protective orders. | SEC | [47 FR 610, Jan. 6, 1982, as amended at 85 FR 86480, Dec. 30, 2020] | (a) Procedure. In any proceeding as defined in § 201.101(a), a party, any person who is the owner, subject or creator of a document subject to subpoena or which may be introduced as evidence, or any witness who testifies at a hearing may file a motion requesting a protective order to limit from disclosure to other parties or to the public documents or testimony that contain confidential information. The motion should include a general summary or extract of the documents without revealing confidential details. (b) Submission of confidential information. If review of the documents that are the subject of a request for a protective order is necessary to a ruling on the motion and the information as to which a protective order is sought is available to the movant, the motion shall be accompanied by: (1) A complete, sealed copy of the materials containing the information as to which a protective order is sought, with the allegedly confidential information marked as such, and with the first page of the document labeled “Under Seal.” If the movant seeks a protective order against disclosure to other parties as well as the public, copies of the documents shall not be served on other parties; and (2) A redacted copy of the materials containing the information as to which a protective order is sought, with the allegedly confidential information redacted. The redacted version shall indicate any omissions with brackets or ellipses, and its pagination and depiction of text on each page shall be identical to that of the sealed version. A redacted copy need not accompany a motion requesting a protective order if the materials would be redacted in their entirety. (c) Basis for issuance. Documents and testimony introduced in a public hearing are presumed to be public. A motion for a protective order shall be granted only upon a finding that the harm resulting from disclosure would outweigh the benefits of disclosure. (d) Requests for additional information supporting confidentiality. A movant under paragraph (a) of t… | ||||
| 17:17:3.0.1.1.2.4.12.49 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.323 Evidence: Official notice. | SEC | Official notice may be taken of any material fact which might be judicially noticed by a district court of the United States, any matter in the public official records of the Commission, or any matter which is peculiarly within the knowledge of the Commission as an expert body. If official notice is requested or taken of a material fact not appearing in the evidence in the record, the parties, upon timely request, shall be afforded an opportunity to establish the contrary. | |||||
| 17:17:3.0.1.1.2.4.12.50 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.324 Evidence: Stipulations. | SEC | The parties may, by stipulation, at any stage of the proceeding agree upon any pertinent facts in the proceeding. A stipulation may be received in evidence and, when received, shall be binding on the parties to the stipulation. | |||||
| 17:17:3.0.1.1.2.4.12.51 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.325 Evidence: Presentation under oath or affirmation. | SEC | A witness at a hearing for the purpose of taking evidence shall testify under oath or affirmation. | |||||
| 17:17:3.0.1.1.2.4.12.52 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.326 Evidence: Presentation, rebuttal and cross-examination. | SEC | In any proceeding in which a hearing is required to be conducted on the record after opportunity for hearing in accord with 5 U.S.C. 556(a), a party is entitled to present its case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as, in the discretion of the Commission or the hearing officer, may be required for a full and true disclosure of the facts. The scope and form of evidence, rebuttal evidence, if any, and cross-examination, if any, in any other proceeding shall be determined by the Commission or the hearing officer in each proceeding. | |||||
| 17:17:3.0.1.1.2.4.12.53 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.340 Proposed findings, conclusions and supporting briefs. | SEC | (a) Opportunity to file. Before an initial decision is issued, each party shall have an opportunity, reasonable in light of all the circumstances, to file in writing proposed findings and conclusions together with, or as a part of, its brief. (b) Procedure. Proposed findings of fact must be supported by citations to specific portions of the record. If successive filings are directed, the proposed findings and conclusions of the party assigned to file first shall be set forth in serially numbered paragraphs, and any counter statement of proposed findings and conclusions must, in addition to any other matter, indicate those paragraphs of the proposals already filed as to which there is no dispute. A reply brief may be filed by the party assigned to file first, or, where simultaneous filings are directed, reply briefs may be filed by each party, within the period prescribed therefor by the hearing officer. No further briefs may be filed except with leave of the hearing officer. (c) Time for filing. In any proceeding in which an initial decision is to be issued: (1) At the end of each hearing, the hearing officer shall, by order, after consultation with the parties, prescribe the period within which proposed findings and conclusions and supporting briefs are to be filed. The party or parties directed to file first shall make its or their initial filing within 30 days of the end of the hearing unless the hearing officer, for good cause shown, permits a different period and sets forth in the order the reasons why the different period is necessary. (2) The total period within which all such proposed findings and conclusions and supporting briefs and any counter statements of proposed findings and conclusions and reply briefs are to be filed shall be no longer than 90 days after the close of the hearing unless the hearing officer, for good cause shown, permits a different period and sets forth in an order the reasons why the different period is necessary. | |||||
| 17:17:3.0.1.1.2.4.12.54 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.350 Record in proceedings before hearing officer; retention of documents; copies. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13178, Mar. 19, 2004] | (a) Contents of the record. The record shall consist of: (1) The order instituting proceedings, each notice of hearing and any amendments; (2) Each application, motion, submission or other paper, and any amendments, motions, objections, and exceptions to or regarding them; (3) Each stipulation, transcript of testimony and document or other item admitted into evidence; (4) Each written communication accepted by the hearing officer pursuant to § 201.210; (5) With respect to a request to disqualify a hearing officer or to allow the hearing officer's withdrawal under § 201.112, each affidavit or transcript of testimony taken and the decision made in connection with the request; (6) All motions, briefs and other papers filed on interlocutory appeal; (7) All proposed findings and conclusions; (8) Each written order issued by the hearing officer or Commission; and (9) Any other document or item accepted into the record by the hearing officer. (b) Retention of documents not admitted. Any document offered into evidence but excluded shall not be considered a part of the record. The Secretary shall retain any such document until the later of the date upon which a Commission order ending the proceeding becomes final, or the conclusion of any judicial review of the Commission's order. (c) Substitution of copies. A true copy of a document may be substituted for any document in the record or any document retained pursuant to paragraph (b) of this section. | ||||
| 17:17:3.0.1.1.2.4.12.55 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.351 Transmittal of documents to Secretary; record index; electronic copy of exhibits; certification. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13178, Mar. 19, 2004; 85 FR 86480, Dec. 30, 2020] | (a) Transmittal from hearing officer to Secretary of partial record index. The hearing officer may, at any time, transmit to the Secretary motions, exhibits or any other original documents filed with or accepted into evidence by the hearing officer, together with a list of such documents. (b) Preparation, certification of record index. Promptly after the close of the hearing, the hearing officer shall transmit to the Secretary an index of the originals of any motions, exhibits or any other documents filed with or accepted into evidence by the hearing officer that have not been previously transmitted to the Secretary, and the Secretary shall prepare a record index. Prior to issuance of an initial decision, or if no initial decision is to be prepared, within 30 days of the close of the hearing, the Secretary shall transmit the record index to the hearing officer and serve a copy of the record index on each party. Any person may file proposed corrections to the record index with the hearing officer within three days of service of the record index. Any opposition to the proposed corrections shall be filed within three days of service of the proposed corrections. The hearing officer shall, by order, direct whether any corrections to the record index shall be made. The Secretary shall make such corrections, if any, and issue a revised record index. If an initial decision is to be issued, the initial decision shall include a certification that the record consists of the items set forth in the record index or revised record index issued by the Secretary. (c) Electronic exhibits. No later than five days after the Secretary serves a final record index, the parties shall submit electronically to the Secretary a copy of all exhibits that were admitted, or offered and not admitted, during the hearing, and any other exhibits that were admitted after the hearing. The parties shall submit such evidence in the form and manner to be specified by the Office of the Secretary in the materials posted on the Commission's websit… | ||||
| 17:17:3.0.1.1.2.4.12.56 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.360 Initial decision of hearing officer and timing of hearing. | SEC | [60 FR 32796, June 23, 1995, as amended at 68 FR 35789, June 17, 2003; 69 FR 13178, Mar. 19, 2004; 81 FR 50239, July 29, 2016; 83 FR 25366, June 1, 2018] | (a)(1) When required. Unless the Commission directs otherwise, the hearing officer shall prepare an initial decision in any proceeding in which the Commission directs a hearing officer to preside at a hearing, provided, however, that an initial decision may be waived by the parties with the consent of the hearing officer pursuant to § 201.202. (2) Time period for filing initial decision and for hearing —(i) Initial decision. In the order instituting proceedings, the Commission will specify a time period in which the hearing officer's initial decision must be filed with the Secretary. In the Commission's discretion, after consideration of the nature, complexity, and urgency of the subject matter, and with due regard for the public interest and the protection of investors, this time period will be either 30, 75, or 120 days. The time period will run from the occurrence of the following events: (A) The completion of post-hearing briefing in a proceeding where the hearing has been completed; or (B) The completion of briefing on a § 201.250 motion in the event the hearing officer has determined that no hearing is necessary; or (C) The determination by the hearing officer that, pursuant to § 201.155, a party is deemed to be in default and no hearing is necessary. (ii) Hearing. Under the 120-day timeline, the hearing officer shall issue an order scheduling the hearing to begin approximately four months (but no more than ten months) from the date of service of the order instituting the proceeding. Under the 75-day timeline, the hearing officer shall issue an order scheduling the hearing to begin approximately 2 1/2 months (but no more than six months) from the date of service of the order instituting the proceeding. Under the 30-day timeline, the hearing officer shall issue an order scheduling the hearing to begin approximately one month (but no more than four months) from the date of service of the order instituting the proceeding. These deadlines confer no substantive rights on respondents. If a stay is g… | ||||
| 17:17:3.0.1.1.2.4.13.57 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.400 Interlocutory review. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13178, Mar. 19, 2004] | (a) Availability. The Commission may, at any time, on its own motion, direct that any matter be submitted to it for review. Petitions by parties for interlocutory review are disfavored, and the Commission ordinarily will grant a petition to review a hearing officer ruling prior to its consideration of an initial decision only in extraordinary circumstances. The Commission may decline to consider a ruling certified by a hearing officer pursuant to paragraph (c) of this section or the petition of a party who has been denied certification if it determines that interlocutory review is not warranted or appropriate under the circumstances. This section is the exclusive remedy for review of a hearing officer's ruling prior to Commission consideration of the entire proceeding and is the sole mechanism for appeal of actions delegated pursuant to §§ 200.30-9 and 200.30-10 of this chapter. (b) Expedited consideration. Interlocutory review of a hearing officer's ruling shall be expedited in every way, consistent with the Commission's other responsibilities. (c) Certification process. A ruling submitted to the Commission for interlocutory review must be certified in writing by the hearing officer and shall specify the material relevant to the ruling involved. The hearing officer shall not certify a ruling unless: (1) His or her ruling would compel testimony of Commission members, officers or employees or the production of documentary evidence in their custody; or (2) Upon application by a party, within five days of the hearing officer's ruling, the hearing officer is of the opinion that: (i) The ruling involves a controlling question of law as to which there is substantial ground for difference of opinion; and (ii) An immediate review of the order may materially advance the completion of the proceeding. (d) Proceedings not stayed. The filing of an application for review or the grant of review shall not stay proceedings before the hearing officer unless he or she, or the Commission, shall so order. The Commissio… | ||||
| 17:17:3.0.1.1.2.4.13.58 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.401 Consideration of stays. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13178, Mar. 19, 2004; 88 FR 87282, Dec. 15, 2023] | (a) Procedure. A request for a stay shall be made by written motion, filed pursuant to § 201.154, and served on all parties pursuant to § 201.150. The motion shall state the reasons for the relief requested and the facts relied upon, and, if the facts are subject to dispute, the motion shall be supported by affidavits or other sworn statements or copies thereof. Portions of the record relevant to the relief sought, if available to the movant, shall be filed with the motion. The Commission may issue a stay based on such motion or on its own motion. (b) Scope of relief. The Commission may grant a stay in whole or in part, and may condition relief under this section upon such terms, or upon the implementation of such procedures, as it deems appropriate. (c) Stay of a Commission order. A motion for a stay of a Commission order may be made by any person aggrieved thereby who would be entitled to review in a federal court of appeals. A motion seeking to stay the effectiveness of a Commission order pending judicial review may be made to the Commission at any time during which the Commission retains jurisdiction over the proceeding. (d) Stay of an action by a self-regulatory organization —(1) Availability. A motion for a stay of an action by a self-regulatory organization for which the Commission is the appropriate regulatory agency, for which action review may be sought pursuant to § 201.420, may be made by any person aggrieved thereby at the time an application for review is filed in accordance with § 201.420 or thereafter. (2) Summary entry. A stay may be entered summarily, without notice and opportunity for hearing. (3) Expedited consideration. Where the action complained of has already taken effect and the motion for stay is filed within 10 days of the effectiveness of the action, or where the action complained of, will, by its terms, take effect within five days of the filing of the motion for stay, the consideration of and decision on the motion for a stay shall be expedited in every way, consist… | ||||
| 17:17:3.0.1.1.2.4.13.59 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.410 Appeal of initial decisions by hearing officers. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13179, Mar. 19, 2004; 81 FR 50240, July 29, 2016] | (a) Petition for review; when available. In any proceeding in which an initial decision is made by a hearing officer, any party, and any other person who would have been entitled to judicial review of the decision entered therein if the Commission itself had made the decision, may file a petition for review of the decision with the Commission. (b) Procedure. The petition for review of an initial decision shall be filed with the Commission within such time after service of the initial decision as prescribed by the hearing officer pursuant to § 201.360(b) unless a party has filed a motion to correct an initial decision with the hearing officer. If such correction has been sought, a party shall have 21 days from the date of the hearing officer's order resolving the motion to correct to file a petition for review. The petition shall set forth a statement of the issues presented for review under § 201.411(b). In the event a petition for review is filed, any other party to the proceeding may file a cross-petition for review within the original time allowed for seeking review or within ten days from the date that the petition for review was filed, whichever is later. (c) Length limitation. Except with leave of the Commission, the petition for review shall not exceed three pages in length. Incorporation of pleadings or filings by reference into the petition is not permitted. Motions to file petitions in excess of those limitations are disfavored. (d) Financial disclosure statement requirement. Any person who files a petition for review of an initial decision that asserts that person's inability to pay either disgorgement, interest or a penalty shall file with the opening brief a sworn financial disclosure statement containing the information specified in § 201.630(b). (e) Prerequisite to judicial review. Pursuant to Section 704 of the Administrative Procedure Act, 5 U.S.C. 704, a petition to the Commission for review of an initial decision is a prerequisite to the seeking of judicial review of a final order… | ||||
| 17:17:3.0.1.1.2.4.13.60 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.411 Commission consideration of initial decisions by hearing officers. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13179, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005; 81 FR 50240, July 29, 2016] | (a) Scope of review. The Commission may affirm, reverse, modify, set aside or remand for further proceedings, in whole or in part, an initial decision by a hearing officer and may make any findings or conclusions that in its judgment are proper and on the basis of the record. (b) Standards for granting review pursuant to a petition for review —(1) Mandatory review. After a petition for review has been filed, the Commission shall review any initial decision that: (i) Denies any request for action pursuant to Section 8(a) or Section 8(c) of the Securities Act of 1933, 15 U.S.C. 77h(a), (c), or the first sentence of Section 12(d) of the Exchange Act, 15 U.S.C. 78 l (d); (ii) Suspends trading in a security pursuant to Section 12(k) of the Exchange Act, 15 U.S.C. 78l(k); or (iii) Is in a case of adjudication (as defined in 5 U.S.C. 551) not required to be determined on the record after notice and opportunity for hearing (except to the extent there is involved a matter described in 5 U.S.C. 554(a) (1) through (6)). (2) Discretionary review. The Commission may decline to review any other decision. In determining whether to grant review, the Commission shall consider whether the petition for review makes a reasonable showing that: (i) A prejudicial error was committed in the conduct of the proceeding; or (ii) The decision embodies: (A) A finding or conclusion of material fact that is clearly erroneous; or (B) A conclusion of law that is erroneous; or (C) An exercise of discretion or decision of law or policy that is important and that the Commission should review. (c) Commission review other than pursuant to a petition for review. The Commission may, on its own initiative, order review of any initial decision, or any portion of any initial decision, within 21 days after the end of the period established for filing a petition for review pursuant to § 201.410(b). A party who does not intend to file a petition for review, and who desires the Commission's determination whether to order review on its own i… | ||||
| 17:17:3.0.1.1.2.4.13.61 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.420 Appeal of determinations by self-regulatory organizations. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13179, Mar. 19, 2004; 81 FR 50240, July 29, 2016; 85 FR 86480, Dec. 30, 2020] | (a) Application for review; when available. An application for review by the Commission may be filed by any person who is aggrieved by a determination of a self-regulatory organization with respect to any: (1) Final disciplinary sanction; (2) Denial or conditioning of membership or participation; (3) Prohibition or limitation in respect to access to services offered by that self-regulatory organization or a member thereof; or (4) Bar from association as to which a notice is required to be filed with the Commission pursuant to Section 19(d)(1) of the Exchange Act, 15 U.S.C. 78s(d)(1). (b) Procedure. As required by section 19(d)(1) of the Securities Exchange Act of 1934, 15 U.S.C. 78s(d)(1), an applicant must file an application for review with the Commission within 30 days after the notice of the determination is filed with the Commission and received by the aggrieved person applying for review. The Commission will not extend this 30-day period, absent a showing of extraordinary circumstances. This section is the exclusive remedy for seeking an extension of the 30-day period. (c) Application. The application shall be filed with the Commission pursuant to § 201.151. The applicant shall serve the application on the self-regulatory organization. The application shall identify the determination complained of and set forth in summary form a brief statement of the alleged errors in the determination and supporting reasons therefor. The application shall state an address where the applicant can be served. The application should not exceed two pages in length. If the applicant will be represented by a representative, the application shall be accompanied by the notice of appearance required by § 201.102(d). Any exception to a determination not supported in an opening brief that complies with § 201.450(b) may, at the discretion of the Commission, be deemed to have been waived by the applicant. (d) Determination not stayed. Filing an application for review with the Commission pursuant to paragraph (b) of this … | ||||
| 17:17:3.0.1.1.2.4.13.62 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.421 Commission consideration of determinations by self-regulatory organizations. | SEC | (a) Commission review other than pursuant to a petition for review. The Commission may, on its own initiative, order review of any determination by a self-regulatory organization that could be subject to an application for review pursuant to § 201.420(a) within 40 days after notice thereof was filed with the Commission pursuant to Section 19(d)(1) of the Exchange Act, 15 U.S.C. 78s(d)(1). (b) Supplemental briefing. The Commission may at any time prior to issuance of its decision raise or consider any matter that it deems material, whether or not raised by the parties. Notice to the parties and an opportunity for supplemental briefing with respect to issues not briefed by the parties shall be given where the Commission believes that such briefing would significantly aid the decisional process. | |||||
| 17:17:3.0.1.1.2.4.13.63 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.430 Appeal of actions made pursuant to delegated authority. | SEC | [60 FR 32796, June 23, 1995; 60 FR 46500, Sept. 7, 1995, as amended at 69 FR 13179, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005; 75 FR 47449, Aug. 6, 2010] | (a) Scope of rule. Any person aggrieved by an action made by authority delegated in §§ 200.30-1 through 200.30-8 or §§ 200.30-11 through 200.30-18 of this chapter may seek review of the action pursuant to paragraph (b) of this section. (b) Procedure —(1) Notice of intention to petition for review. A party to an action made pursuant to delegated authority, or a person aggrieved by such action, may seek Commission review of the action by filing a written notice of intention to petition for review within five days after actual notice of the action to that party or aggrieved person, or 15 days after publication of the notice of action in the Federal Register, or five days after service of notice of the action on that party or aggrieved person pursuant to § 201.141(b), whichever is the earliest. (2) Petition for review. Within five days after the filing of a notice of intention to petition for review pursuant to paragraph (b)(1) of this section, the person seeking review shall file a petition for review containing a clear and concise statement of the issues to be reviewed and the reasons why review is appropriate. The petition shall include exceptions to any findings of fact or conclusions of law made, together with supporting reasons for such exceptions based on appropriate citations to such record as may exist. These reasons may be stated in summary form. (c) Prerequisite to judicial review. Pursuant to Section 704 of the Administrative Procedure Act, 5 U.S.C. 704, a petition to the Commission for review of an action made by authority delegated in §§ 200.30-1 through 200.30-18 of this chapter is a prerequisite to the seeking of judicial review of a final order entered pursuant to such an action. Pursuant to 15 U.S.C. 7214(h)(2), any decision by the Commission pursuant to 200.30-11 shall not be reviewable under 15 U.S.C. 78y and shall not be deemed 'final agency action' for purposes of 5 U.S.C. 704. | ||||
| 17:17:3.0.1.1.2.4.13.64 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.431 Commission consideration of actions made pursuant to delegated authority. | SEC | [60 FR 32796, June 23, 1995; 60 FR 46500, Sept. 7, 1995; 90 FR 45125, Sept. 19, 2025] | (a) Scope of review. The Commission may affirm, reverse, modify, set aside or remand for further proceedings, in whole or in part, any action made pursuant to authority delegated in §§ 200.30-1 through 200.30-18 of this chapter. (b) Standards for granting review pursuant to a petition for review —(1) Mandatory review. After a petition for review has been filed, the Commission shall review any action that it would be required to review pursuant to § 201.411(b)(1) if the action was made as the initial decision of a hearing officer. (2) Discretionary review. The Commission may decline to review any other action. In determining whether to grant review, the Commission shall consider the factors set forth in § 201.411(b)(2). (c) Commission review other than pursuant to a petition for review. The Commission may, on its own initiative, order review of any action made pursuant to delegated authority at any time, provided, however, that where there are one or more parties to the matter, such review shall not be ordered more than ten days after the action. The vote of one member of the Commission, conveyed to the Secretary, shall be sufficient to bring a matter before the Commission for review. (d) Required items in an order for review. In an order granting a petition for review or directing review on the Commission's own initiative, the Commission shall set forth the time within which any party or other person may file a statement in support of or in opposition to the action made by delegated authority and shall state whether a stay shall be granted, if none is in effect, or shall be continued, if in effect pursuant to paragraph (e) of this section. (e) Automatic stay of delegated action. An action made pursuant to delegated authority shall have immediate effect and be deemed the action of the Commission. Upon filing with the Commission of a notice of intention to petition for review, or upon notice to the Secretary of the vote of a Commissioner that a matter be reviewed, an action made pursuant to delega… | ||||
| 17:17:3.0.1.1.2.4.13.65 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.440 Appeal of determinations by the Public Company Accounting Oversight Board. | SEC | [69 FR 13179, Mar. 19, 2004, as amended at 81 FR 50241, July 29, 2016; 85 FR 86481, Dec. 30, 2020] | (a) Application for review; when available. Any person who is aggrieved by a determination of the Board with respect to any final disciplinary sanction, including disapproval of a completed application for registration of a public accounting firm, may file an application for review. (b) Procedure. An aggrieved person may file an application for review with the Commission pursuant to § 201.151 within 30 days after the notice filed by the Board of its determination with the Commission pursuant to 17 CFR 240.19d-4 is received by the aggrieved person applying for review. The applicant shall serve the application on the Board at the same time. The application shall identify the determination complained of, set forth in summary form a brief statement of alleged errors in the determination and supporting reasons therefor, and state an address where the applicant can be served. The application should not exceed two pages in length. The notice of appearance required by § 201.102(d) shall accompany the application. Any exception to a determination not supported in an opening brief that complies with § 201.450(b) may, at the discretion of the Commission, be deemed to have been waived by the applicant. (c) Stay of determination. Filing an application for review with the Commission pursuant to paragraph (b) of this section operates as a stay of the Board's determination unless the Commission otherwise orders either pursuant to a motion filed in accordance with § 201.401(e) or upon its own motion. (d) Certification of the record; service of the index. Within fourteen days after receipt of an application for review, the Board shall certify and file electronically in the form and manner to be specified by the Office of the Secretary in the materials posted on the Commission's website one unredacted copy of the record upon which it took the complained-of action. (1) The Board shall file electronically with the Commission one copy of an index of such record, and shall serve one copy of the index on each party. If such … | ||||
| 17:17:3.0.1.1.2.4.13.66 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.441 Commission consideration of Board determinations. | SEC | [69 FR 13179, Mar. 19, 2004] | (a) Commission review other than pursuant to an application for review. The Commission may, on its own initiative, order review of any final disciplinary sanction, including disapproval of a completed application for registration of a public accounting firm, imposed by the Board that could be subject to an application for review pursuant to § 201.440(a) within 40 days after the Board filed notice thereof pursuant to § 240.19d-4 of this chapter. (b) Supplemental briefing. The Commission may at any time prior to the issuance of its decision raise or consider any matter that it deems material, whether or not raised by the parties. The Commission will give notice to the parties and an opportunity for supplemental briefing with respect to issues not briefed by the parties where the Commission believes that such briefing could significantly aid the decisional process. | ||||
| 17:17:3.0.1.1.2.4.13.67 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.442 Appeal of determination by security-based swap execution facility. | SEC | [88 FR 87282, Dec. 15, 2023] | (a) Application for review; when available. An application for review by the Commission may be filed by any person who is aggrieved by a determination of a security-based swap execution facility with respect to any: (1) Final disciplinary action, as defined in § 240.835(b)(1) of this chapter; (2) Final action with respect to a denial or conditioning of membership, as defined in § 240.835(b)(2) of this chapter; or (3) Final action with respect to a denial or limitation of access to any service offered by the security-based swap execution facility, as defined in § 240.835(b)(2) of this chapter. (b) Procedure. An aggrieved person may file an application for review with the Commission pursuant to § 201.151 within 30 days after the notice filed with the Commission pursuant to § 242.835 of this chapter by the security-based swap execution facility of the determination is received by the aggrieved person. The Commission will not extend this 30-day period, absent a showing of extraordinary circumstances. This section is the exclusive remedy for seeking an extension of the 30-day period. The aggrieved person shall serve the application on the security-based swap execution facility at the same time. The application shall identify the determination complained of, set forth in summary form a statement of alleged errors in the action and supporting reasons therefor, and state an address where the applicant can be served. The application should not exceed two pages in length. If the applicant will be represented by a representative, the application shall be accompanied by the notice of appearance required by § 201.102(d). Any exception to an action not supported in an opening brief that complies with § 201.450(b) may, at the discretion of the Commission, be deemed to have been waived by the applicant. (c) Stay of determination. Filing an application for review with the Commission pursuant to paragraph (b) of this section operates as a stay of the security-based swap execution facility's determination, unless the Com… | ||||
| 17:17:3.0.1.1.2.4.13.68 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.443 Commission consideration of security-based swap execution facility determinations. | SEC | [88 FR 87283, Dec. 15, 2023] | (a) Commission review other than pursuant to an application for review. The Commission may, on its own initiative, order review of any determination by a security-based swap execution facility that could be subject to an application for review pursuant to § 201.442(a) within 40 days after the security-based swap execution facility provided notice to the Commission thereof. (b) Supplemental briefing. The Commission may at any time before issuing its decision raise or consider any matter that it deems material, whether or not raised by the parties. The Commission will give notice to the parties and an opportunity for supplemental briefing with respect to issues not briefed by the parties where the Commission believes that such briefing could significantly aid the decisional process. | ||||
| 17:17:3.0.1.1.2.4.13.69 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.450 Briefs filed with the Commission. | SEC | [60 FR 32796, June 23, 1995, as amended at 68 FR 35789, June 17, 2003; 69 FR 13180, Mar. 19, 2004; 81 FR 50241, July 29, 2016; 88 FR 87283, Dec. 15, 2023] | (a) Briefing schedule order. Other than review ordered pursuant to § 201.431, if review of a determination is mandated by statute, rule, or judicial order or the Commission determines to grant review as a matter of discretion, the Commission shall issue a briefing schedule order directing the party or parties to file opening briefs and specifying particular issues, if any, as to which briefing should be limited or directed. Unless otherwise provided, opening briefs shall be filed within 30 days of the date of the briefing schedule order. Opposition briefs shall be filed within 30 days after the date opening briefs are due. Reply briefs shall be filed within 14 days after the date opposition briefs are due. No briefs in addition to those specified in the briefing schedule order may be filed except with leave of the Commission. The briefing schedule order shall be issued: (1) At the time the Commission orders review on its own initiative pursuant to §§ 201.411 or 201.421, or orders interlocutory review on its own motion pursuant to § 201.400(a); or (2) Within 21 days, or such longer time as provided by the Commission, after: (i) The last day permitted for filing a petition for review pursuant to § 201.410(b) or a brief in opposition to a petition for review pursuant to § 201.410(d); (ii) Receipt by the Commission of an index to the record of a determination of a self-regulatory organization filed pursuant to § 201.420(d); (iii) Receipt by the Commission of an index to the record of a determination by the Board filed pursuant to § 201.440(d); (iv) Receipt by the Commission of an index to the record of a determination by a security-based swap execution facility filed pursuant to § 201.442(d). (v) Receipt by the Commission of the mandate of a court of appeals with respect to a judicial remand; or (vi) Certification of a ruling for interlocutory review pursuant to § 201.400(c). (b) Contents of briefs. Briefs shall be confined to the particular matters at issue. Each exception to the findings or conclusions… | ||||
| 17:17:3.0.1.1.2.4.13.70 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.451 Oral argument before the Commission. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13180, Mar. 19, 2004] | (a) Availability. The Commission, on its own motion or the motion of a party or any other aggrieved person entitled to Commission review, may order oral argument with respect to any matter. Motions for oral argument with respect to whether to affirm all or part of an initial decision by a hearing officer shall be granted unless exceptional circumstances make oral argument impractical or inadvisable. The Commission will consider appeals, motions and other matters properly before it on the basis of the papers filed by the parties without oral argument unless the Commission determines that the presentation of facts and legal arguments in the briefs and record and the decisional process would be significantly aided by oral argument. (b) Procedure. Requests for oral argument shall be made by separate motion accompanying the initial brief on the merits. The Commission shall issue an order as to whether oral argument is to be heard, and if so, the time and place therefor. If oral argument is granted, the time fixed for oral argument shall be changed only by written order of the Commission, for good cause shown. The order shall state at whose request the change is made and the reasons for any such changes. No visual aids may be used at oral argument unless copies have been provided to the Commission and all parties at least five business days before the argument is to be held. (c) Time allowed. Unless the Commission orders otherwise, not more than one half-hour per side will be allowed for oral argument. The Commission may, in its discretion, determine that several persons have a common interest, and that the interests represented will be considered a single side for purposes of allotting time for oral argument. Time will be divided equally among persons on a single side, provided, however, that by mutual agreement they may reallocate their time among themselves. A request for additional time must be made by motion filed reasonably in advance of the date fixed for argument. (d) Participation of Commissioners. … | ||||
| 17:17:3.0.1.1.2.4.13.71 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.452 Additional evidence. | SEC | Upon its own motion or the motion of a party, the Commission may allow the submission of additional evidence. A party may file a motion for leave to adduce additional evidence at any time prior to issuance of a decision by the Commission. Such motion shall show with particularity that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence previously. The Commission may accept or hear additional evidence, may remand the proceeding to a self-regulatory organization, or may remand or refer the proceeding to a hearing officer for the taking of additional evidence, as appropriate. | |||||
| 17:17:3.0.1.1.2.4.13.72 | 17 | Commodity and Securities Exchanges | II | 201 | PART 201—RULES OF PRACTICE | D | Subpart D—Rules of Practice | § 201.460 Record before the Commission. | SEC | [60 FR 32796, June 23, 1995, as amended at 69 FR 13180, Mar. 19, 2004; 88 FR 87232, Dec. 15, 2023] | The Commission shall determine each matter on the basis of the record. (a) Contents of the record. (1) In proceedings for final decision before the Commission other than those reviewing a determination by a self-regulatory organization, the record shall consist of: (i) All items part of the record below in accordance with § 201.350; (ii) Any petitions for review, cross-petitions or oppositions; and (iii) All briefs, motions, submissions and other papers filed on appeal or review. (2) In a proceeding for final decision before the Commission reviewing a determination by a self-regulatory organization, the record shall consist of: (i) The record certified pursuant to § 201.420(d) by the self-regulatory organization; (ii) Any application for review; and (iii) Any submissions, moving papers, and briefs filed on appeal or review. (3) In a proceeding for final decision before the Commission reviewing a determination of the Board, the record shall consist of: (i) The record certified pursuant to § 201.440(d) by the Board; (ii) Any application for review; and (iii) Any submissions, moving papers, and briefs filed on appeal or review. (4) In a proceeding for final decision before the Commission reviewing a determination of a security-based swap execution facility, the record shall consist of: (i) The record certified pursuant to § 201.442(d) by the security-based swap execution facility; (ii) Any application for review; and (iii) Any submissions, moving papers, and briefs filed on appeal or review. (b) Transmittal of record to Commission. Within 14 days after the last date set for filing briefs or such later date as the Commission directs, the Secretary shall transmit the record to the Commission. (c) Review of documents not admitted. Any document offered in evidence but excluded by the hearing officer or the Commission and any document marked for identification but not offered as an exhibit shall not be considered a part of the record before the Commission on appeal but shall be transmitted to the … |
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CREATE TABLE cfr_sections (
section_id TEXT PRIMARY KEY,
title_number INTEGER,
title_name TEXT,
chapter TEXT,
subchapter TEXT,
part_number TEXT,
part_name TEXT,
subpart TEXT,
subpart_name TEXT,
section_number TEXT,
section_heading TEXT,
agency TEXT,
authority TEXT,
source_citation TEXT,
amendment_citations TEXT,
full_text TEXT
);
CREATE INDEX idx_cfr_title ON cfr_sections(title_number);
CREATE INDEX idx_cfr_part ON cfr_sections(part_number);
CREATE INDEX idx_cfr_agency ON cfr_sections(agency);