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that except for good cause shown no hearing shall be permitted on a penalty imposed pursuant to subparagraph (a)(1) of this section.
(c) The rules of an exchange may provide that if a respondent fails to request a hearing within the period of time stated in the notice he shall be deemed to have accepted the penalty. (Approved by the Office of Management and Budget under control number 30380022) (43 FR 41950, Sept. 19, 1978, as amended at 46 FR 63036, Dec. 30, 1981)
(d) The respondent may wis his offer of settlement at a' before final acceptance by the nary committee. If an offer drawn after submission, or .. by the disciplinary commit: spondent shall not be deen: made any admissions by re offer of settlement and otherwise prejudiced by mitted the offer of settlen
(Approved by the Office and Budget under controi 0022) (43 FR 41950, Sept. 19, 1975 46 FR 63036, Dec. 30, 1981)
$ 8.15 Denial of charges and right to hear
ing. In every instance where the respondent has requested a hearing on charge which is denied, or on a penalty set by the disciplinary committee under $ 8.14(a)(2), he shall be given an opportunity for a hearing in accordance with the requirements of $ 8.17. The exchange rules may provide that, except for good cause, the hearing shall be concerned only with those charges denied and/or penalties set by the disciplinary committee under $ 8.14(a)(2) for which a hearing has been requested.
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8 8.16 Settlement offers.
(a) The rules of an exchange may permit a respondent to submit a written offer of settlement to the disciplinary committee at any time after the investigation report is completed. The disciplinary committee may accept the offer of settlement, but may not alter its terms unless the respondent agrees.
(b) The rules of an exchange may provide that the disciplinary committee, in its discretion, may permit the respondent to accept a penalty without either admitting or denying the rule violations upon which the penalty is based.
(c) If an offer of setlement is accepted by the disciplinary committee, it shall issue a written decision specifying the rule violations it has reason to believe were committed and any penalty to be imposed. Where applicable, the decision shall also include a statement that the respondent has accepted the penalties imposed without either admitting or denying the rule violations.
8 8.17 Hearing.
(a) The following mi ments shall apply to quired by this subpart
(1) The hearing sh shall be conducted b the disciplinary com ing may be conducte members of the dis tee or a panel there”. of the disciplinary serve on the commit or any person or fir affiliated has a fin other direct inter under consideratio
(2) The respond in advance of the all books, docum evidence in the the control of t} to be relied upo staff in present tained in the which are releva
(3) The heari convened after the respondent.
(4) The forni need not apply cedures for the informal as to de
(5) The enforoparty to the hec its case on those which are the ci
(6) The respo to appear perso
(7) The respo to cross-examii ing as witness
n in f
(8) The respondent shall
call witnesses and to vidence as may be release larges. (9) The exchange shal ins within its juriscia lled as witnesses to earing and to produ: all make reasonat cure the presence ins called as witnesz y would be relevani
. (10) If the responde
hearing, a substant cord of the heartsen ad shall become a f the proceeding. Te ne that is capable cas anscribed; hower 3 anscribed unless tem uested by Commiss pondent, the deat nder $8.19, OF
ommission pursuit he Act or Part Idfie ther instances a earing is permitted
(i) The rules of me rovide that the cast he record of the orne by a respons he transcript
, ursuant to OLion for Commiku iplinary actime nder Part 9 ther instance ng the recomme xchange.
(b) The milie rovide the harily rithin its mpede the Approved nd Bude 022) 43 FR DE 6 FR 6305
1.**r?is the review by the
csuant to section 8c of i Exchange Act, as : any suspension, expulsary or access denial ler adverse action by an
upon application of a 01 an exchange who is suspoxpelled, or otherwise disciof any person who is denied an exchange or who is other. -ersely affected by any other of an exchange. Under Subpart Commission may also institute
of an exchange disciplinary
"Disciplinary action" means the
lange rules of decorum, attire
under this part
e which has been tage:
(e) "Hearing CE A
such in the Commons
Promu. ucted İscipit
solely on the record before the disciplinary committee, the written exceptions filed by the parties, and the oral or written arguments of the parties.
(c) Promptly following the appeal or review proceeding, the board of appeals shall issue a written decision and shall provide a copy to the respondent. The decision shall include a statement of findings and conclusions with respect to each charge or penalty reviewed, including the specific rules which the respondent was found to have violated by the disciplinary committee, and a declaration of any penalty imposed and the effective date of such penalty. (Approved by the Office of Management and 'Budget under control number 30380022) (43 FR 41950, Sept. 19, 1978, as amended at 46 FR 63036, Dec. 30, 1981)
8 8.20 Final decision.
Each exchange shall establish rules setting forth when a decision rendered pursuant to this Subpart B shall become the final decision of such exchange.
(3) State the effective time and date and the duration of the action.
(b) The respondent shall have the right to be represented by legal counsel or any other representative of his choosing in all proceedings subsequent to the summary action taken pursuant to $ 8.25.
(c) The respondent shall promptly be given opportunity for a subsequent hearing. The hearing shall be fair and shall be held before one or more persons authorized by the exchange to conduct hearings pursuant to this section. The hearing shall be conducted in accordance with the requirements set forth in $ $ 8.17(a)(4)-(9) and (b).
(d) mptly following the hearing provided for in paragraph (c) of this section, the exchange shall render a written decision based
upon the weight of the evidence contained in the record of the proceeding and shall provide a copy to the respondent. The decision shall include:
(1) A description of the summary action taken,
(2) The reasons for the summary action,
(3) A brief summary of the evidence produced at the hearing,
(4) Findings and conclusions,
(5) A determination that the summary action should be affirmed, modified or reversed, and
(6) A declaration of any action to be taken pursuant to the determination specified in paragraph (d)(5) of this section and the effective date and duration of such action.
(e) The rules of an exchange may permit the respondent to appeal promptly an adverse decision. Such rules shall be established in accordance with the requirements set forth in s 8.19. (Approved by the Office of Management and Budget under control number 30380022) [43 FR 41950, Sept. 19, 1978, as amended at 46 FR 63036, Dec. 30, 1981)
Subpart C-Summary Actions
8 8.25 Member responsibility actions.
An exchange may suspend at any time, or take other summary action against, a person subject to its jurisdiction upon a reasonable belief that such immediate action is necessary to protect the best interest of the marketplace.
8 8.26 Procedure for member responsibil.
ity actions. An action pursuant to § 8.25 shall be taken in accordance with an exchange procedure which provides for the following:
(a) The respondent shall, whenever practicable, be served with a notice before the action is taken. If prior notice is not practicable, the respondent shall be served with a notice at the earliest possible opportunity. The notice shall:
(1) State the action,
(2) Briefly state the reasons for the action, and
$ 8.27 Violations of rules regarding deco
rum, submission of records or other
similar activities. An exchange may adopt rules which permit the enforcement staff or a designated committee of officials to sumSOURCE: 43 FR 59350, Dec. 20, 1978, unless otherwise noted.
marily impose minor penalties against persons within its jurisdiction for violating rules regarding decorum, attire, the timely submission of accurate records required for clearing or verifying each day's transactions or other similar activities.
Subpart A-General Provisions
88.28 Final decision.
Each exchange shall establish rules setting forth when a decision rendered pursuant to this Subpart C shall become the final decision of such exchange.
8 9.1 Scope of rules.
This part governs the review by the Commission, pursuant to section 8c of the Commodity Exchange Act, as amended, of any suspension, expulsion, disciplinary
access denial action, or other adverse action by an exchange, upon application of member of an exchange who is suspended, expelled, or otherwise disciplined or of any person who is denied access to an exchange or who is otherwise adversely affected by any other action of an exchange. Under Subpart E the Commission may also institute review of an exchange disciplinary action on its own motion.
PART 9-RULES RELATING TO REVIEW OF EXCHANGE DISCIPLINARY OR OTHER ADVERSE ACTION
Subpart A-General Provisions
Sec. 9.1 Scope of rules. 9.2 Definitions. 9.3 Provisions incorporated by reference. 9.4 Default by the parties. 9.5 Settlement. 9.6 Waiver of rules.
Subpart B-Notice of Disciplinary Action 9.11 Form and content of notice. 9.12 Publication of disciplinary actions and
rule violations. 9.13 Effective date of disciplinary actions.
Subpart C— Initial Procedure With Respect to
Applications for Review 9.21 Application. 9.22 Stay pending review. 9.23 Answer.
Subpart D-Commission Review of Disciplinary or Other Adverse Action Initiated by Application 9.30 Determination to review exchange
action. 9.31 Institution of review. 9.32 Docketing of the proceeding. 9.33 Consolidation. 9.34 Record. 9.35 Briefs. 9.36 Oral argument. 9.37 Decision by the Commission.
$ 9.2 Definitions.
For purposes of this part:
(a) “Disciplinary action" means the suspension, expulsion or other penalty imposed on a member of an exchange by that exchange or any action by an exchange which denies access to that exchange to any person; but does not include the imposition of a minor sanction against a person for violation of exchange rules of decorum, attire or similar rule.
(b) "Disciplinary proceeding” means any formal or informal proceeding by an exchange which results in a disciplinary action.
(c) “Division of Trading and Markets” means that division within the Commission which, among other things, reviews notices of disciplinary action under this part.
(d) “Exchange” means any board of trade which has been designated as a contract market for one or more commodities pursuant to section 5 of the Act or to trade commodity options pursuant to Part 33 of this chapter.
(e) “Hearing Clerk” means the employee of the Commission designated as such in the Commission's Office of Hearings and Appeals.
(f) “Member of an exchange” means any person who is admitted to membership or has been granted membership privileges on an exchange, any
! Subpart E-Commission Review of Disciplinary
Action on Its Own Motion 9.50 Institution of review.
AUTHORITY: 7 U.S.C. 4a, 6c, 12a and 12c, unless otherwise noted.
shall be performed by the Commission.
8 9.4 Default by the parties.
In the event that either party fails to file any document or make any appearance which is required under this part, the Commission, in its discretion, may dismiss the proceeding before it, or, based on the record before it, may affirm, modify, or set aside the exchange decision or remand the matter for further proceedings before the ex. change, as it deems appropriate.
employee, officer, partner, director or affiliate of such member or person with membership privileges including any agent or associated person, and any other person under the supervision or control of such member or person with membership privileges.
(g) “Party” means both the person who has been the subject of a disciplinary action or other adverse action by an exchange and that exchange.
(h) “Record of the exchange disciplinary proceeding or other adverse action” means all testimony, exhibits, papers and records produced at or filed in an exchange disciplinary proceeding or served on a party to that proceeding; all documents, minutes or other exchange records serving as a basis for or reflecting the deliberations concerning other adverse action taken by an exchange; and a transcript or recording of any oral argument made before any body of the exchange in connection with the disciplinary proceeding or other adverse action.
(i) “Rules of an exchange” means any constitutional provision, article of incorporation, bylaw, rule, regulation, resolution, interpretation, or stated policy of an exchange or instrument corresponding thereto.
(j) “Rules of Practice" mean the Commission's Rules of Practice contained in Part 10 of this chapter. (43 FR 59350, Dec. 20, 1978, as amended at 46 FR 54525, Nov. 3, 1981)
8 9.5 Settlement.
At any time before there has been a final determination by the Commission of any review proceeding sought or initiated under this part, the parties may propose offers of settlement. All offers of settlement shall be in writing and shall be filed with the Commission. All offers of settlement shall:
(a) Acknowledge service of the order instituting review,
(b) Admit the jurisdiction of the Commission with respect to the matters stated in the order,
(c) Include a waiver of (1) all subsequent procedures in the proceeding, (2) judicial review, and (3) any objection to staff participation in the Commission's consideration of the offer,
(d) Stipulate the record basis on which an order may be entered, and
(e) Consent to the entry of an order reflecting the terms of the settlement agreed upon. The Commission will issue an order based on the settlement which will terminate the proceeding before the Commission as to all parties. Notwithstanding the entry of such an order, the Commission may undertake review of the exchange action on its own motion. (Approved by the Office of Management and Budget under control number 30380022) (43 FR 59350, Dec. 20, 1978, as amended at 46 FR 63036, Dec. 30, 1981) 8 9.6 Waiver of rules.
(a) To prevent undue hardship on any party or for other good cause the Commission may waive any rule in
8 9.3 Provisions incorporated by refer
ence. The following provisions of the rules of practice apply to this part: $ 10.4 (Business Address; Hours), § 10.5 (Computation of Time),
$ 10.6 (Changes in Time Permitted for Filing), $ 10.7 (Date of Entry of Orders), $ 10.10 (Ex Parte Communications), § 10.11 (Appearance in Adjudicatory Proceedings), $ 10.12 (a), (b), (c), (d), (e)(1)-(e)(4), (e)(6), (f) and (g) (Service and Filing of Documents; Form and Execution) and such other sections of the rules of practice as the Commission shall declare to be applicable during a proceeding under this part. For purposes of this part, functions assigned by the rules of practice to an “Admininstrative Law Judge”