[Federal Register: November 20, 2008 (Volume 73, Number 225)]
[Rules and Regulations]               
[Page 70274-70276]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20no08-12]                         

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 12

RIN 3038-AC59

 
Rules Relating to Reparation Proceedings

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or 
``CFTC'') is amending its regulations to clarify that post-judgment 
interest shall run on reparation awards in voluntary decisional 
proceedings and to provide that in all reparation proceedings resulting 
in a judgment for complainant post-judgment interest shall run whether 
or not expressly awarded.

DATES: December 22, 2008.

FOR FURTHER INFORMATION CONTACT: Laura Richards, Office of General 
Counsel, U.S. Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street, NW., Washington, DC 20581. Telephone: (202) 
418-5126. E-mail: lrichards@cftc.gov.

SUPPLEMENTARY INFORMATION: 

I. Background Information

    Currently, 17 CFR part 12 provides the following guidance regarding 
the award of interest to the prevailing party in reparation 
proceedings. Prejudgment interest ``may'' be awarded in summary 
decisional proceedings as part of a reparation order under Rule 
12.210(c), and in formal decisional proceedings under Rule 12.314(c), 
``if warranted as a matter of law under the circumstances of a 
particular case.'' \1\ Judgment Officers and Administrative Law Judges 
routinely have awarded prejudgment interest. Prejudgment interest is 
prohibited, however, in voluntary decisional proceedings under Rule 
12.106(c).
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    \1\ See Ruddy v. FCCB, 1981 WL 21010 at *5 n.18 (CFTC Mar. 31, 
1981) (``regarding the award of prejudgment interest[,] [w]here such 
awards are clearly compensatory and * * * involve the breach of a 
fiduciary duty, prejudgment interest, while a matter of discretion, 
should hereafter been the rule, rather than the exception'').
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    Rule 12.407(d), which governs post-judgment interest, applies to 
all forms of reparation proceedings. It provides that interest shall 
run on an unpaid reparation award ``at the prevailing rate computed in 
accordance with 28 U.S.C. 1961 from the date directed in the final 
order to the date of payment, compounded annually.'' See Section 14(f) 
of the Commodity Exchange Act, 7 U.S.C. 18(f) (statutory authority for 
Rule 12.407(d)).
    To clarify existing authority, and to further just and equitable 
decision proceedings, the Commission hereby amends Rule 12.106(c) to 
state that post-judgment interest shall run on awards in voluntary 
proceedings. The Commission believes such a clarifying rule is 
appropriate to make clear that the Act intends to compensate a 
prevailing party for the loss of use of the party's money when a 
reparation judgment is not satisfied within the mandated deadline (for 
voluntary proceedings, within 45 days after service of the final 
decision, see Rule 12.106(e)).
    Amended Rule 12.407(d) provides that if an initial decision 
inadvertently omits an award of post-judgment interest such interest 
shall run at the applicable rate from the date that satisfaction of the 
reparation judgment is due.
    In furtherance of the Commission's efforts to fully inform parties 
and the public of practices regarding interest on reparation judgments, 
the Commission also is amending Form 30 (which is not included in the 
Code of Federal Regulations) to include details of which types of 
interest may be awarded in voluntary, summary and formal decisional 
proceedings.

II. Related Matters

A. No Notice Required Under 5 U.S.C. 553

    The Commission has determined that these amendments are exempt from 
the provisions of the Administrative Procedure Act, 5 U.S.C. 553, which 
generally requires notice of proposed rulemaking and provides other 
opportunities for public participation. According to the exemptive 
language of 5 U.S.C. 553, these amendments pertain to ``rules of agency 
organization, procedure or practice,'' as to which there exists agency 
discretion not to provide notice. In addition, notice and public 
comment are unnecessary in this case because the amendments are self-
explanatory. If made effective immediately, they will promote

[[Page 70275]]

efficiency and facilitate the Commission's core mission without 
imposing a new burden. For the above reasons, the notice requirements 
under 5 U.S.C. 553 are inapplicable.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601 et seq., 
requires agencies with rulemaking authority to consider the impact 
those rules will have on small businesses. With respect to persons 
involved in reparation proceedings, the amendments impose no additional 
burden and in fact provide greater certainty and increased 
predictability concerning awards of post-judgment interest. Thus, the 
Acting Chairman, on behalf of the Commission, hereby certifies, 
pursuant to 5 U.S.C. 605(b), that the amendments will not have a 
significant economic impact on a substantial number of small 
businesses.

C. Paperwork Reduction Act

    The amendments to Part 12 do not impose a burden within the meaning 
and intent of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et 
seq.

D. Cost-Benefit Analysis

    Section 15(a) of the Act, 7 U.S.C. 19(a), requires the Commission 
to consider the costs and benefits of its action before issuing a new 
regulation. The Commission understands that, by its terms, Section 
15(a) does not require the Commission to quantify the costs and 
benefits of a new regulation or to determine whether the benefits of 
the regulation outweigh its costs. Nor does it require that each rule 
be analyzed in isolation when that rule is a component of a larger 
package of rules or rule revisions. Rather, Section 15(a) simply 
requires the Commission to ``consider the costs and benefits'' of its 
action.
    Section 15(a) further specifies that costs and benefits shall be 
evaluated in light of five broad areas of market and public concern: 
(1) Protection of market participants and the public; (2) efficiency, 
competitiveness and financial integrity of futures markets; (3) price 
discovery; (4) sound risk management practices; and (5) other public 
interest considerations. Accordingly, the Commission can, in its 
discretion, give greater weight to any one of the five enumerated areas 
of concern and can, in its discretion, determine that notwithstanding 
its costs, a particular rule is necessary or appropriate to protect the 
public interest or to effectuate any of the provisions, or accomplish 
any of the purposes, of the Commodity Exchange Act.
    The amendments to Parts 12 will not create any significant change 
in the Commission's reparation proceedings. The amendments will enhance 
the protection of market participants and the public by taking 
uncertainty out of the awarding of post-judgment interest in certain 
instances and helping to ensure that reparation awards are satisfied in 
a timely manner. The cost-benefit factors are not influenced by the 
amendments, which simply articulate and clarify applicable law and 
precedent in reparation proceedings.

List of Subjects in 17 CFR Part 12

    Administrative practice and procedure, Commodity exchange, 
Commodity futures, Reparations.

0
After considering these factors, the Commission has determined to amend 
Part 12 as set forth below:

PART 12--RULES PERTAINING TO REPARATION PROCEEDINGS

0
1. The authority citation for part 12 continues read as follows:

    Authority: 7 U.S.C. 2a(12), 12a(5) and 18.


0
2. In Sec.  12.106, revise paragraph (c) to read as follows:


Sec.  12.106  Final decision and order.

* * * * *
    (c) No assessment of prejudgment interest or costs; assessment of 
post-judgment interest. A party found liable for damages in a voluntary 
decisional proceeding shall not be assessed prejudgment interest, 
attorney's fees, or costs (other than the filing fee and costs assessed 
as a sanction for abuse of discovery). Post-judgment interest shall be 
awarded at a rate determined in accordance with 28 U.S.C. 1961(a).
* * * * *

0
3. In Sec.  12.407, revise paragraph (d) to read as follows:


Sec.  12.407  Satisfaction of reparation award; enforcement; sanctions.

* * * * *
    (d) Reinstatement. The sanctions imposed in accordance with 
paragraph (c) of this section shall remain in effect until the person 
required to pay the reparation award demonstrates to the satisfaction 
of the Commission that he has paid the amount required in full 
including prejudgment interest if awarded and post-judgment interest at 
the prevailing rate computed in accordance with 28 U.S.C. 1961 from the 
date directed in the final order to the date of payment, compounded 
annually. In the event an award of post-judgment interest is 
inadvertently omitted, such interest nevertheless shall run as 
calculated in accordance with 28 U.S.C. 1961 and the Part 12 Rules.
* * * * *

    Note: The following text will not appear in the Code of Federal 
Regulations.

Reparations Complaint Form (Form 30)

    Portions of the Commission's Reparations Complaint Form, available 
on the Commission's Web site at http://www.cftc.gov, are revised to 
read as follows:
* * * * *
    ----$50 Voluntary Decisional Procedure. This procedure enables you, 
if the respondents agree, to present your case in written form before a 
CFTC judgment officer. A final decision will be issued without 
explanation of the reasons. By electing the voluntary procedure, you 
will waive your right to appeal as well as prejudgment interest and 
costs. You do not waive your right to post-judgment interest in the 
event that reparation awards, if any, are not satisfied within the 
timeframe provided in the final decision. In the event an award of 
post-judgment interest is inadvertently omitted, such interest 
nevertheless shall run according to the term of 28 U.S.C. 1961 and the 
Part 12 Rules.
    ----$125 Summary Decisional Procedure. If your claim is $30,000 or 
less, it can be heard by a CFTC Judgment Officer. You may present your 
case in written form, and if deemed necessary by the judgment officer, 
orally, in Washington, or by telephone under this procedure. The 
judgment officer will issue brief statements of factual findings and 
conclusions based on law, and may order a reparation award including 
prejudgment interest pursuant to Rule 12.210(c) and post-judgment 
interest. The judgment officer's decision is appealable first to the 
Commission and from there to a U.S. Court of appeals. In the event an 
award of post-judgment interest is inadvertently omitted, such interest 
nevertheless shall run according to the terms of 28 U.S.C. 1961 and the 
Part 12 Rules.
    ----$250 Formal Decisional Procedure. If your claim is over 
$30,000, it can be assigned to an Administrative Law Judge (ALJ) for a 
formal hearing. You may present your case in written form. If oral 
testimony is deemed necessary by the ALJ, you may be required to travel 
up to 300 miles to attend the hearing. The ALJ will issue findings of 
fact and conclusions of law, and may order a reparation award including 
prejudgment interest pursuant to Rule 12.314(c) and post-judgment 
interest. The Administrative Law

[[Page 70276]]

Judge's decision is appealable first to the Commission and from there 
to a U.S. Court of appeals. In the event an award of post-judgment 
interest is inadvertently omitted, such interest nevertheless shall run 
according to the terms of 28 U.S.C. 1961 and the Part 12 Rules.
* * * * *

    Issued in Washington, DC, on October 20, 2008 by the Commission.
David A. Stawick,
Secretary of the Commission.
[FR Doc. E8-27177 Filed 11-19-08; 8:45 am]

BILLING CODE 6351-01-P