PART 9—RULES RELATING TO REVIEW OF EXCHANGE DISCIPLINARY, ACCESS DENIAL OR OTHER ADVERSE ACTIONS Authority: 7 U.S.C. 1a, 2, 6b-1, 6c, 7, 7a-2, 7b-3, 8, 9, 9a, 12, 12a, 12c, 13b, 16a, 18, 19, and 21. Source: 52 FR 25366, July 7, 1987, unless otherwise noted. Subpart A—General Provisions § 9.1 Scope of rules. (a) Matters included. (b) Matters excluded. (1) Any arbitration proceeding, regardless of whether the proceeding involved a controversy between members of an exchange; (2) Except as provided in §§ 9.11(a), (b)(3)(i) through (v), and (c), and 9.12(a) and 9.13 (concerning the notice, effective date and publication of a disciplinary or access denial action), any summary action permitted under the provisions of part 37, appendix B, Core Principle 2, paragraph (a)(13) of this chapter or part 38, appendix B, Core Principle 13, paragraph (a)(6) of this chapter imposing a minor penalty for the violation of exchange rules relating to decorum or attire, or relating to the timely submission of accurate records required for clearing or verifying each day's transactions or other similar activities; and (3) Any exchange action arising from a claim, grievance, or dispute involving cash market transactions which are not a part of, or directly connected with, any transaction for the purchase, sale, delivery or exercise of a commodity for future delivery, a commodity option, or a swap. (4) The Commission will, upon its own motion or upon motion filed pursuant to § 9.21(b), promptly notify the appellant and the exchange that it will not accept the notice of appeal or petition for stay of matters specified in this paragraph. The determination to decline to accept a notice of appeal will be without prejudice to the appellant's right to seek alternate forms of relief that may be available in any other forum. (c) Applicability of these part 9 rules. [52 FR 25366, July 7, 1987, as amended at 59 FR 5701, Feb. 8, 1994; 83 FR 1546, Jan. 12, 2018] § 9.2 Definitions. For purposes of this part: (a) Access denial action (b) Disciplinary action (c) Exchange (d) Exchange proceeding (e) Mail (f) Member of an exchange (1) Any person who is admitted to membership or has been granted membership privileges on an exchange; any employee, officer, partner, director or affiliate of such member or person with membership privileges including any associated person; and any other person under the supervision or control of such member or person with membership privileges; or (2) Any person who has trading privileges on an exchange. (g) Other adverse action adverse action (h) Party (i) Record of the exchange proceeding (j) Rules of the exchange (k) Summary action [52 FR 25366, July 7, 1987; 52 FR 27286, July 20, 1987, as amended at 67 FR 62352, Oct. 7, 2002; 78 FR 22419, Apr. 16, 2013; 83 FR 1546, Jan. 12, 2018; 89 FR 71807, Sept. 4, 2024] § 9.3 Provisions referenced. Except as otherwise provided in this part, the following provisions of the Commission's rules relating to reparations contained in part 12 of this chapter apply to this part: § 12.3 (Business address; hours); § 12.5 (Computation of time); § 12.6 (Extensions of time; adjournments; postponements); § 12.7 (Ex parte communications in reparation proceedings); and § 12.12 (Signature). [83 FR 1546, Jan. 12, 2018] § 9.4 Filing and service; official docket. (a) Filing with the Proceedings Clerk; proof of filing; proof of service. (b) Formalities of filing Number of copies. (2) Title page. (3) Paper, spacing, type. 1/2 1/2 1/2 (4) Signature. (c) Service General requirements. (2) Manner of service. (3) Designation of person to receive service. (d) Official docket. [52 FR 25366, July 7, 1987, as amended at 60 FR 49334, Sept. 25, 1995; 83 FR 1546, Mar. 13, 2018; 89 FR 71807, Sept. 4, 2024] § 9.5 Motions. (a) In general. (b) Answer to motions. (c) Motions for procedural orders. (d) Dilatory motions. § 9.6 Sanctions for noncompliance. In the event that any party fails to file any document or make any appearance which is required under this part, the Commission may, in its discretion, and upon its own motion or upon the motion of any party to the proceeding, dismiss the proceeding before it, or, based on the record before it, affirm, modify, set aside, or remand for further proceedings, in whole or in part, the decision of the exchange. § 9.7 Settlement. At any time before there has been a final determination by the Commission with respect to any notice of appeal filed in accordance with § 9.20, the parties may file a stipulation for dismissal based on a settlement agreement. Thereupon, the Commission may issue an order terminating the proceeding before the Commission as to the parties to the settlement agreement. The entry of such an order does not affect the Commission's authority under the Act. § 9.8 Practice before the Commission. (a) Practice By non-attorneys. (2) By attorneys. (b) Debarment of counsel or representative during the course of a proceeding. Provided, (c) Withdrawal of representation. pro se, [52 FR 25366, July 7, 1987, as amended at 83 FR 1547, Jan. 12, 2018] § 9.9 Waiver of rules; delegation of authority. (a) Standards for waiver; notice to parties. (b) Delegation of authority. (i) To waive or modify any of the requirements of §§ 9.20-9.25 and to waive or modify the requirements of the Commission's rules relating to reparations incorporated by § 9.3 insofar as such requirements pertain to changes in time permitted for filing, and to the form, execution, service and filing of documents; (ii) To enter orders under §§ 9.5, 9.6 and 9.7; (iii) To decline to accept any notice of appeal, or petition for stay pending review, of matters excluded from this part by §§ 9.1(b), 9.2(a) and 9.2(b), and to so notify the appellant and the exchange; (iv) To stay the effective date of a disciplinary action for a period of time, not to exceed four days, to enable the Commission to rule on a petition for stay filed under § 9.24; (v) To decline to accept any document which has not been timely filed or perfected, as specified in these rules; (vi) To order the filing of the record of the exchange proceeding notwithstanding the submission of a motion under § 9.21(b) that the Commission not accept a notice of appeal; and (vii) To enter any order which will facilitate or expedite Commission review. (2) Within seven days after service of a ruling issued pursuant to paragraph (b)(1) of this section, a party may file with the Proceedings Clerk a petition for Commission reconsideration of the ruling. Unless the Commission orders otherwise, the filing of a petition for reconsideration will not operate to stay the effective date of such ruling. (3) The General Counsel, or his or her designee, may submit to the Commission for its consideration any matter which has been delegated pursuant to paragraph (b)(1) of this section. (4) Nothing in this section will be deemed to prohibit the Commission, at its election, from exercising the authority delegated to the General Counsel, or his or her designee, under this section. [52 FR 25366, July 7, 1987, as amended at 60 FR 54801, Oct. 26, 1995; 64 FR 46270, Aug. 25, 1999; 78 FR 1145, Jan. 8, 2013; 83 FR 1547, Jan. 12, 2018] Subpart B—Notice and Effective Date of Disciplinary Action or Access Denial Action § 9.10 [Reserved] § 9.11 Form, contents and delivery of notice of disciplinary or access denial action. (a) When required. Provided, (b) Contents of notice. (1) The written notice of a disciplinary action or access denial action provided to the person against whom the action was taken by a designated contract market must be a copy of a written decision which accords with: (i) Part 38, appendix B, Core Principle 13, paragraph (a)(3) of this chapter in the case of settlement offers; (ii) Section 38.708 of this chapter in the case of decisions; or (iii) Part 38, appendix B, Core Principle 13, paragraph (a)(5)(iv) of this chapter in the case of appeal decisions (including copies of any materials incorporated by reference) or other written notice which must include items listed in paragraphs (b)(3)(i)—(vi) of this section. (2) The written notice of a disciplinary action or access denial action provided to the person against whom the action was taken by a swap execution facility must be a copy of a written decision which accords with: (i) Part 37, appendix B, Core Principle 2, paragraph (a)(9) of this chapter in the case of settlement offers; (ii) Section 37.206(d) of this chapter in the case of decisions; or (iii) Part 37, appendix B, Core Principle 2, paragraph (a)(11)(iv) of this chapter in the case of appeal decisions (including copies of any materials incorporated by reference) or other written notice which must include items listed in paragraphs (b)(3)(i) through (vi) of this section. (3) The notice of a disciplinary action or access denial action provided to the NFA must include only the items listed in the following paragraphs (b)(3)(i) through (v): (i) The name of the person against whom the disciplinary action or access denial action was taken; (ii) A statement of the reasons for the disciplinary action or access denial action, detailing the exchange product which was involved, as applicable, and whether the violation that resulted in the action also resulted in financial harm to any customers together with a listing of any rules which the person who was the subject of the disciplinary action or access denial action was charged with having violated or which otherwise serve as the basis of the exchange action; (iii) A statement of the conclusions and findings made by the exchange with regard to each rule violation charged or, in the event of settlement, a statement specifying those rule violations which the exchange has reason to believe were committed; (iv) The terms of the disciplinary action or access denial action; (v) The date on which the action was taken and the date the exchange intends to make the disciplinary or access denial action effective; and (vi) Except as otherwise provided in § 9.1(b), a statement informing the party subject to the disciplinary action or access denial action of the availability of Commission review of the exchange action pursuant to section 8c of the Act and this part. (c) Delivery and filing of the notice. (d) Effect of delivery by mail or email. (e) Certification. [83 FR 1547, Jan. 12, 2018] § 9.12 Effective date of disciplinary or access denial action. (a) Effective date. Provided, however, (1) As permitted by part 37, appendix B, Core Principle 2, paragraph (a)(14) of this chapter or part 38, appendix B, Core Principle 13, paragraph (a)(7) of this chapter (emergency disciplinary actions), the exchange reasonably believes, and so states in its written decision, that immediate action is necessary to protect the best interests of the marketplace; or (2) As permitted by part 37, appendix B, Core Principle 2, paragraph (a)(10)(vi) of this chapter or part 38, appendix B, Core Principle 13, paragraph (a)(4) of this chapter (hearings), the exchange determines, and so states in its written decision, that the actions of a person who is within the exchange's jurisdiction has impeded the progress of a disciplinary hearing; or (3) As permitted by part 37, appendix B, Core Principle 2, paragraph (a)(13) of this chapter (summary fines for violations of rules regarding timely submission of records) or part 38, appendix B, Core Principle 13, paragraph (a)(6) of this chapter (summary fines for violations of rules regarding timely submission of records, decorum, or other similar activities), the exchange determines that a person has violated exchange rules relating to decorum or attire, or timely submission of accurate records required for clearing or verifying each day's transactions or other similar activities; or (4) The person against whom the action is taken has consented to the penalty to be imposed and to the timing of its effectiveness. (b) Notice of early effective date. [email protected]. [83 FR 1547, Jan. 12, 2018] § 9.13 Publication of notice. Whenever an exchange suspends, expels or otherwise disciplines, or denies any person access to the exchange, it must make public its findings by disclosing at least the information contained in the notice required by § 9.11(b). An exchange must make such findings public as soon as the disciplinary action or access denial action becomes effective in accordance with the provisions of § 9.12 by posting a notice on its website to which its members and the public regularly have access. Such notice must be maintained and readily available on the exchange's website. [83 FR 1548, Jan. 12, 2018] §§ 9.14-9.19 [Reserved] Subpart C—Initial Procedure With Respect to Appeals § 9.20 Notice of appeal. (a) Time to file. (b) Contents. (1) The name and address of the appellant, and any duly authorized agent or officer of the appellant; (2) The name and docket number of the exchange proceeding; (3) The date on which the disciplinary, access denial or other adverse action was imposed by the exchange or the date on which the final exchange decision was rendered, and the dates upon which the exchange action has or will become final and effective; (4) A copy of the notice provided to the appellant by the exchange in accordance with the provisions of § 9.11, in the case of a disciplinary or access denial action, or otherwise, in the case of any other adverse exchange action; (5) The relief sought from the action of the exchange; (6) The appellant's request for a copy of the record of the exchange proceeding, or portions of the record not in the appellant's possession, and a representation that the appellant agrees to pay the exchange reasonable fees, as provided in the rules of the exchange, for printing that copy; and (7) A nonrefundable filing fee of $100 remitted by check, bank draft or money order, payable to the Commodity Futures Trading Commission. [52 FR 25366, July 7, 1987; 52 FR 27286, July 20, 1987] § 9.21 Record of exchange proceeding. (a) Filing of record. (b) Motion that the Commission not accept notice of appeal. § 9.22 Appeal brief. (a) Time to file. (b) Contents. (1) A statement of the issues presented for review; (2) A statement of the case. (3) An argument. (4) A conclusion stating the precise relief sought. (c) Length of appeal brief. § 9.23 Answering brief. (a) Time for filing answering brief. (b) Contents of answering brief. (c) Length of answering brief. § 9.24 Petition for stay pending review. (a) Time to file. (2) Within ten days after a notice of summary action has been delivered in accordance with § 9.12(b) to a person who is the subject of a summary action permitted by part 37, appendix B, Core Principle 2, paragraph (a)(14) of this chapter or part 38, appendix B, Core Principle 13, paragraph (a)(7) of this chapter (emergency disciplinary actions), that person may petition the Commission to stay the effectiveness of the summary action pending completion of the exchange proceeding. (3) The Commission may deny any petition for stay which is not timely filed or which is not otherwise in accord with these rules. (b) Contents of petition for stay. (c) Response to petition. (d) Standards for granting petition for stay. (1) Petitioner's likelihood of success on the merits; and (2) That denial of the stay would cause irreparable harm to the petitioner; and (3) That granting the stay would not endanger orderly trading or otherwise cause substantial harm to the exchange or market participants; and (4) That granting the stay would not be contrary to the Act, and the rules, regulations and orders of the Commission thereunder or otherwise contrary to the public interest. (e) Ex parte stays. (1) Expressly requests an ex parte (2) Files a proof of service; and (3) Clearly establishes by affidavit that immediate and irreparable injury, loss or damage will result to the petitioner before the exchange can be heard in opposition. Any order granting a stay prior to the filing of the exchange's reply will expire by its terms within such time after service of the Commission's ruling on the petition, not to exceed ten days, as the Commission fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the exchange consents that it may be extended for a longer period. In any case, the exchange may move for dissolution or modification of the stay, and the Commission will proceed to determine such motion as expeditiously as the ends of justice require. [52 FR 25366, July 7, 1987, as amended at 52 FR 27286, July 20, 1987; 83 FR 1548, Jan. 12, 2018] § 9.25 Limited participation of interested persons. On its own motion or upon motion of any person asserting a direct and substantial interest in the outcome of a proceeding conducted under this part, the Commission, in its discretion, may permit the limited participation by such interested person in the proceeding. A motion for leave to participate in the proceeding must identify the interest of that person and must state the reasons why participation in the proceeding by that person is desirable, and must state whether that person requests a copy of the record of the exchange proceeding to the extent permitted by section 8c(a)(2) of the Act and that such person agrees to pay the exchange reasonable fees, as provided in the rules of the exchange, for printing the copy. [52 FR 25366, July 7, 1987, as amended at 59 FR 5701, Feb. 8, 1994] § 9.26 Participation of Commission staff. Within twenty days after receipt of the answering brief, the Division of Market Oversight, Market Participants Division, and the Division of Clearing and Risk may file with the Proceedings Clerk a notice of intention to participate in the proceedings as amicus curiae. amicus curiae. [52 FR 25366, July 7, 1987, as amended at 67 FR 62352, Oct. 7, 2002; 78 FR 22419, Apr. 16, 2013; 89 FR 71807, Sept. 4, 2024] §§ 9.27-9.29 [Reserved] Subpart D—Commission Review of Disciplinary, Access Denial or Other Adverse Action § 9.30 Scope of review. On review, the Commission may, in its discretion, consider sua sponte sua sponte § 9.31 Commission review of disciplinary or access denial action on its own motion. (a) Request for additional information. (b) Review on motion of the Commission. [83 FR 1548, Jan. 12, 2018, as amended at 89 FR 71807, Sept. 4, 2024] § 9.32 Oral argument. (a) On motion of Commission. (b) On request of party. (c) Reporting and transcription. § 9.33 Final decision by the Commission. (a) Opinion and order. (b) Order of summary affirmance. (c) Standards of review. (1) The exchange disciplinary, access denial or other adverse action was taken in accordance with the rules of the exchange; (2) Fundamental fairness was observed in the conduct of the proceeding resulting in the disciplinary, access denial or other adverse action; (3)(i) In the case of a disciplinary action, the record contains substantial evidence of a violation of the rules of the exchange, or (ii) in the case of an access denial or other adverse action, the record contains substantial evidence supporting the exchange action; and (4) The disciplinary, access denial or other adverse action otherwise accords with the Act and the rules, regulations and orders of the Commission thereunder.