Imágenes de páginas
PDF
EPUB

(b) A request for withdrawal from registration under this section must be made by the sole proprietor if the registrant is a sole proprietorship, by a general partner if the registrant is a partnership, or by the president or chief executive officer if the registrant is a corporation, and must specify:

(1) The name of the registrant for which withdrawal is being requested;

(2) The registration capacities for which withdrawal is being requested;

(3) The name and relationship to the registrant of the individual making the request and, in the case of a corporation, a certified copy of a resolution of the board of directors authorizing such individual to make the withdrawal request;

(4) The name, address, and telephone number of the person who will have custody of the books and records of the registrant; the address where such books and records will be located; and a statement that such person is authorized to make them available in accordance with the requirements of $ 1.31 of this chapter;

(5) The applicable basis under paragraph (a) of this section for requesting withdrawal for each capacity for which withdrawal is requested.

(6) If withdrawal is requested under paragraph (a)(2) or (a)(3) of this section, then, with respect to each capacity for which withdrawal is requested, the section of the Act, regulations, or other authority permitting the exemption or exclusion, and the circumstances which entitle the registrant to claim such exemption or exclusion.

(7) If a basis for withdrawal from registration under paragraph (a)(1) of this section is that the registrant has ceased engaging in activities requiring registration, then, with respect to each capacity for which the registrant has ceased such activities:

(i) That all customer or option customer agreements, if any, have been terminated;

(ii) That all customer or option customer positions, if any, have been transferred on behalf of customers or option customers or closed;

(iii) That all customer or option customer cash balances, securities, or other property, if any, have been transferred on behalf of customers or

option customers or returned, and that there are no obligations to customers or option customers outstanding;

(iv) In the case of a commodity pool operator, that all interests in, and assets of, any commodity pool have been redeemed, distributed, or transferred, on behalf of the participants therein, and that there are no obligations to such participants outstanding;

(v) In the case of a leverage transaction merchant: (A) Either that all leverage customer agreements, if any, and all leverage contracts have been terminated, and that all leverage customer cash balances, securities or other property, if any, have been returned, or (B) alternatively, that pursuant to Commission approval, the leverage contract obligations of the leverage transaction merchant have been assumed by another leverage transaction merchant and all leverage customer cash balances, securities or other property, if any, have been transferred to such leverage transaction merchant on behalf of leverage customers or returned, and that there are no obligations to leverage customers outstanding;

(vi) The nature and extent of any pending customer, option customer, leverage customer, or commodity pool participant claims against the registrant, and, to the best of the registrant's knowledge and belief, the nature and extent of any anticipated or threatened customer, option customer, leverage customer, or commodity pool participant claims against the registrant; and

(vii) In the case of a futures commission merchant which is a party to a guarantee agreement, that all such agreements have been or will be terminated in accordance with the provisions of $ 1.10(j) of this chapter not more than thirty days after the filing of the request for withdrawal from registration.

(c)(1) Where a futures commission merchant or an introducing broker which is not operating pursuant to a guarantee agreement is requestintg withdrawal from registration in that capacity and the basis for withdrawal under paragraph (a)(1) of this section is that it has ceased engaging in activities requiring registration, the request for withdrawal must be accompanied by a form 1-FR which contains the information specified in § 1.10(d)(1) of this chapter as of a date not more than 30 days prior to the date of the withdrawal request: Provided, however, That if such registrant is also registered with the Securities and Exchange Commission as a securities broker or dealer, it may file a copy of its Financial and Operational Combined Uniform Single Report under the Securities Exchange Act of 1934, Part II or Part IIA (in accordance with § 1.10(h) of this chapter), in lieu of form 1-FR: And, provided further, That if such introducing broker is also a country elevator, it may file a copy of a financial report prepared by a grain commission firm (in accordance with $ 1.10(i) of this Chapter), in lieu of form 1-FR. Any financial report submitted pursuant to this paragraph (c)(1) must contain the information specified in § 1.10(d)(1) of this chapter as of a date not more than 30 days prior to the date of the withdrawal request.

(2) Where a leverage transaction merchant is requesting withdrawal from registration in that capacity and the basis for withdrawal under paragraph (a)(1) of this section is that it has ceased engaging in activities requiring registration, the request for withdrawal must be accompanied by a form 2-FR which contains the information specified in § 31.13(f) of this chapter as of a date not more than 30 days prior to the date of the withdrawal request.

(d) A request for withdrawal from registration must be in writing and must contain a signed oath or affirma-tion that, to the best of the knowledge and belief of the signatory, the information contained in the request is accurate and complete.

(e) A request for withdrawal from registration must be sent to the Commodity Futures Trading Commission at its Washington, D.C. Office (Registration Unit, Division of Trading and Markets, 2033 K Street, NW., Washington, D.C. 20581). If the registrant requesting withdrawal from registration is a futures commission merchant, introducing broker, commodity trad

ing advisor or commodity pool operator, a copy of the request for withdrawal should be filed simultaneously with the National Futures Association

(f) A request for withdrawal from registration will become effective or the thirtieth day after receipt at the address specified in paragraph (e) of this section unless:

(1) The request for withdrawal is re ceived subsequent to the issuance by the Commission of an order instituting a proceeding to suspend or revoke such registration; or

(2) Prior to the effective date:

(i) The Commission institutes a proceeding to suspend or revoke such reg. istration;

(ii) The Commission imposes, or gives notice by mail, which notice shall be complete upon mailing, that it intends to impose, terms or conditions upon such withdrawal from registration;

(iii) The registrant is given notice by mail, which notice shall be complete upon mailing, or is otherwise notified that it is currently the subject of an investigation to determine, among other things, whether such registrant has violated, is violating, or is about to violate the Act, rules, regulations or orders adopted thereunder;

(iv) The Commission requests from the registrant further information pertaining to its request for withdraw. al from registration; or

(v) The Commission determines that it would be contrary to the requirements of the Act, or of any rule, regulation or order thereunder, or to the public interest to permit such with drawal from registration.

(g) Withdrawal from registration in one capacity does not constitute with drawal from registration in any other capacity.

(h) Withdrawal from registration does not constitute a release from liability for any violation of the Act or of any rule, regulation, or order there. under.

(Approved by the Office of Management and Budget under control number 30380008) (Secs. 2(a)(1), 4c(a)-(d), 40, 41, 4g, 4k, 4m, 4n, 8a, 15 and 17, Commodity Exchange Act (7 U.S.C. 2, 4, 6c(a)-(d), 6f, 6g, 6k, 6m, 6n, 12a, 19 and 21; 5 U.S.C. 552 and 552b); secs.

8a(5) and 19 of the Commodity Exchange Act, as amended, 7 U.S.C. 12a(5) and 23 (1982); 5 U.S.C. 552 and 552b; secs. 2(a)(1), 4c, 40, 4e, 48, 4k, 4m, 4n, 4p, 8, 8a and 19 of the Commodity Exchange Act (7 U.S.C. 2 and 4, 60, 60, 6e, 6f, 6k, 6m, 6n, 6p, 12, 12a and 23 (1982)); 5 U.S.C. 552 and 552b) (46 FR 48917, Oct. 5, 1981, as amended at 46 FR 63035, Dec. 30, 1981. Redesignated at 46 FR 48918, Oct. 5, 1981, and amended at 47 FR 27551, June 25, 1982; 47 FR 57010, Dec. 22, 1982; 48 FR 35298, Aug. 3, 1983; 49 FR 5526, Feb. 13, 1984; 49 FR 39534, Oct. 9, 1984)

8 3.41 Restrictions upon activities.

(a) Subject to the provisions of $ 3.42 and all of the obligations imposed on such registrants under the Act (in particular, section 14 thereof) and the rules, regulations and orders thereunder, an applicant for registration as an associated person who has received written notification that a temporary license has been granted may act in the capacity of an associated person.

(b) Until registration has been granted, an applicant for registration as an associated person who has received a temporary license may not be sponsored by any registrant other than the registrant which has filed the certification described in $ 3.40(c).

Subpart B-Temporary Licenses

AUTHORITY: Secs. 2(a)(1), 4, 4b, 4c, 4d, 4e, 48, 4g, 4h, 4i, 4k, 4m, 4n, 40, 4p, 6, 8, 8a, 14, 15, 17 and 19 of the Commodity Exchange Act (7 U.S.C. 2 and 4, 6, 6b, 60, 60, 6e, 68, 6g, 6h, 6i, 6k, 6m, 6n, 60, 6p, 8, 9, 9a and 13b, 12, 12a, 18, 19, 21 and 23 (1982)); 5 U.S.C. 552 and 552b.)

SOURCE: 49 FR 8219, Mar. 5, 1984, unless otherwise noted.

§ 3.42 Termination.

(a) A temporary license shall terminate:

(1) Five days after service upon the applicant of a notice by the Commission pursuant to $ 3.52 or $ 3.60 that the applicant for registration may be found subject to a statutory disqualification from registration; or

(2) Immediately upon termination of the association of the applicant with the registrant which filed the sponsorship certification described in $3.40(c).

(b) Upon termination, the applicant may not engage in any activity which requires registration with the Commission as an associated person.

8 3.40 Temporary licensing of applicants

for associated person registration. Notwithstanding any other provision of these regulations and pursuant to the terms and conditions of this subpart, the Commission or the National Futures Association, as appropriate, may grant a temporary license to any applicant for registration as an associated person upon the contemporaneous filing with the Commission or the National Futures Association, as appropriate, of:

(a) A Form 8-R, properly completed in accordance with the instructions thereto, the Disciplinary History portion of which contains no “Yes” answers indicating that the applicant may be subject to a statutory disqualification under sections 8a(2) through 8a(4) of the Act;

(b) The fingerprints of the applicant on a fingerprint card provided by the Commission or the National Futures Association, as appropriate, for that purpose; and

(c) The sponsor's certification required by $ 3.12(c), $ 3.16(c), $ 3.18(c) as appropriate. (49 FR 8219, Mar. 5, 1984, as amended at 49 FR 39534, Oct. 9, 1984)

8 3.43 Relationship to registration.

(a) A temporary license shall not be deemed to be a registration or to confer any right to such registration.

(b) Unless a temporary license has terminated pursuant to $ 3.42, a temporary license shall become a registration with the Commission upon the earlier of:

(1) A determination by the Commission or the National Futures Association, as appropriate, that the applicant is qualified for registration as an associated person; or

(2) The expiration of six months from the date of its issuance. (49 FR 8219, Mar. 5, 1984, as amended at 49 FR 39534, Oct. 9, 1984)

or

Subpart C-Denial, Suspension or

Revocation of Registration

AUTHORITY: Secs. 2(a)(1), 4, 46, 40, 4d, 4e, 4f, 4g, 4h, 41, 4k, 4m, 4n, 40, 4p, 6, 8, 8a, 14, 15, 17 and 19 of the Commodity Exchange Act, 7 U.S.C. 2 and 4, 6, 6b, 60, 60, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 60, 6p, 8, 9, 9a and 13b, 12, 12a, 18, 19, 21 and 23 (1982); 5 U.S.C. 552 and 552b.

SOURCE: 49 FR 8220, Mar. 5, 1984, unless otherwise noted.

$ 3.50 Service.

(a) For purposes of this subpart, service upon an applicant or registrant will be sufficient if mailed by registered mail or certified mail return receipt requested properly addressed to the applicant or registrant at the address shown on his application or any amendment thereto, and will be complete upon mailing.

(b) A copy of any notice served in accordance with paragraph (a) of this section shall also be served upon:

(1) Any registrant sponsoring the applicant or registrant pursuant to the provisions of g 3.12, § 3.16, or $ 3.18 if the applicant or registrant is an individual registered as or applying for registration as an associated person; or

(2) Any futures commission merchant which has entered into a guarantee agreement in accordance with $ 1.10(j) of this chapter, if the applicant or registrant is registered as or applying for registration as an introducing broker.

(c) Documents served upon the Division of Trading and Markets or upon the Division of Enforcement or filed with the Commission under this subpart shall be considered served or filed only upon actual receipt at the Commission's Washington, D.C. office, 2033 K Street NW., Washington, D.C. 20581.

(d) Except for the documents which may be served under $ 3.51, any documents served upon an applicant or registrant or upon the Division of Trading and Markets or the Division of Enforcement or filed with the Commission under this subpart shall be concurrently filed with the Hearing Clerk, together with proof of service, in accordance with the provisions of $ 10.12 (d) and (e) of this chapter.

§ 3.51 Withdrawal of application for regis

tration. (a) Notice. Whenever information comes to the attention of the Commission that an applicant for initial registration in any capacity under the Act may be found subject to a statutory disqualification under sections 8a(2) or 8a(3) of the Act, the Director of the Division of Trading and Markets or the Director's designee may serve written notice upon the applicant, which notice shall specify the statutory disqualifications to which the applicant may be subject and advise the applicant that:

(1) The information, if true, is a basis upon which the applicant's registration may be denied;

(2) Unless the applicant voluntarily withdraws the application, it may be necessary to institute the denial procedures described in this subpart; and

(3) If the applicant does not confirm in writing that the applicant wishes to have the application given further consideration, the application of the applicant will be deemed to have been withdrawn.

(b) The applicant must serve the written confirmation referred to in paragraph (a)(3) of this section upon the Director of the Division of Trading and Markets or the Director's designee on or before twenty days after the date the notice described in paragraph (a) of this section is served.

8 3.52 Notice of intent to deny registration

pursuant to section 8a(2) of the Act. On the basis of information obtained by the Commission, the Director of the Division of Trading and Markets or the Director's designee, with the concurrence of the Director of the Division of Enforcement and the General Counsel or their designees, may at any time serve a notice upon any applicant for registration in any capacity under the Act that:

(a) The Commission alleges and is prepared to prove that the applicant is subject to one or more of the statutory disqualifications set forth in section 8a(2) of the Act;

(b) The allegations set forth in the notice, if true, constitute a basis upon which registration can be denied;

(c) The applicant is entitled to have a presiding officer make a determination, based upon written evidence submitted in accordance with the procedure set forth in § 3.53, as to whether the applicant is subject to such statutory disqualification; and

(d) If the applicant does not timely submit such evidence in accordance with the procedure set forth in § 3.53, registration will be denied as provided in $ 3.54.

8 3.53 Determination by presiding officer.

(a) If the applicant wishes to have a presiding officer make a determination as to whether the applicant is subject to a statutory disqualification under section 8a(2) of the Act, the applicant may submit evidence in writing limited to challenging the accuracy of the allegations set forth in the notice, including evidence as to (1) the applicant's identity, (2) the existence of a clerical error in any record documenting the statutory disqualification, (3) the nature or date of the statutory disqualification, (4) the post-conviction modification of any record of conviction or (5) the favorable disposition of any appeal. Such written submission must be served upon the Division of Trading and Markets and the Division of Enforcement and filed with the Hearing Clerk within twenty days after the date of service upon the applicant of the notice under $ 3.52.

(b) Within ten days after receipt of any written submission filed by the applicant, the Division of Trading and Markets and the Division of Enforcement may serve upon the applicant and file with the Hearing Clerk a reply. Thereafter, a presiding officer will determine whether the applicant is subject to a statutory disqualification under section 8a(2) of the Act. Such determination must be based upon the application, the evidence of the statutory disqualification, the notice with proof of service, the written submission filed by the applicant in response thereto, any written reply submitted by the Division of Trading and Markets or the Division of Enforcement and such other papers as the presiding officer may require or permit.

(c) Within thirty days after receipt of the applicant's written submission, and any reply thereto, the presiding officer must issue an order, pursuant to section 8a(2) of the Act, granting or denying registration, which shall be deemed a final order of the Commission fifteen days after the date it is served upon the applicant in accordance with the provisions of $ 3.50(a), unless a timely application for review under paragraph (d) of this section is filed. A copy of such order shall be served upon the Division of Trading and Markets and the Division of Enforcement.

(d) Appeal to the Commission. (1) Within fifteen days of service of the presiding officer's order under paragraph (c) of this section, the applicant or the Division of Enforcement may file with the Commission an application for review thereof, together with supporting argument and proof of service on the other party.

(2) Within ten days after service of the application, the other party may file a response opposing the application

(3) Based upon the application and any response thereto, the Commission may in its discretion grant review of the presiding officer's order. Should the Commission grant review, the Commission shall thereafter issue an order establishing a schedule for the filing of any additional briefs.

(4) Should the Commission refuse to grant review, the presiding officer's order shall be deemed a final order of the Commission five days after service upon the registrant of notice of such refusal in accordance with the provisions of $ 3.50(a).

8 3.54 Default.

(a) Failure to timely file a submission. If the applicant fails to file a timely written submission in accordance with $ 3.53:

(1) The applicant will be deemed to have waived the right to submit evidence in writing on all issues and the facts stated in the notice shall be deemed to be true for the purpose of finding that the applicant is subject to a statutory disqualification under section 8a(2) of the Act; and ·

« AnteriorContinuar »