Rule2026-11466
Rescission of Policy Relating to the Acceptance of Settlements in Administrative and Civil Proceedings
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 8, 2026
Effective
June 8, 2026
Issuing agencies
Commodity Futures Trading Commission
Abstract
The Commodity Futures Trading Commission ("CFTC" or "Commission") is rescinding a policy contained in an appendix to its regulations concerning acceptance of settlements in administrative and civil proceedings. This policy is commonly understood to limit a respondent's or defendant's ability to deny allegations following settlement.
Full Text
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<title>Federal Register, Volume 91 Issue 109 (Monday, June 8, 2026)</title>
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[Federal Register Volume 91, Number 109 (Monday, June 8, 2026)]
[Rules and Regulations]
[Pages 34570-34573]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-11466]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 10
Rescission of Policy Relating to the Acceptance of Settlements in
Administrative and Civil Proceedings
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule.
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SUMMARY: The Commodity Futures Trading Commission (``CFTC'' or
``Commission'') is rescinding a policy contained in an appendix to its
regulations concerning acceptance of settlements in administrative and
civil proceedings. This policy is commonly understood to limit a
respondent's or defendant's ability to deny allegations following
settlement.
DATES: This rule is effective June 8, 2026.
FOR FURTHER INFORMATION CONTACT: Stephen Andrews, Deputy General
Counsel for Regulation, <a href="/cdn-cgi/l/email-protection#90e3f4f1fef4e2f5e7e3d0f3f6e4f3bef7ffe6"><span class="__cf_email__" data-cfemail="9be8fffaf5ffe9feece8dbf8fdeff8b5fcf4ed">[email protected]</span></a>, 202-308-7563, Commodity
Futures Trading Commission, Three Lafayette Centre, 1155 21st Street
NW, Washington, DC 20581.
SUPPLEMENTARY INFORMATION: Since 1998,\1\ the Commission has maintained
a policy, codified in appendix A to part 10 of its rules of practice
for adjudicatory proceedings, 17 CFR part 10, that the Commission will
not accept settlement \2\ offers where the respondent or defendant
continues to deny the allegations, or the findings of fact and
conclusions of law. For the reasons explained below, the Commission now
rescinds this policy and repeals appendix A of part 10.
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\1\ Rules of Practice, 63 FR 55784, 55796 (Oct. 19, 1998);
Technical Correction, 64 FR 30902, 30903-30904 (June 9, 1999).
\2\ We use the term ``settlement'' to refer to the resolution of
enforcement actions by consent in which the Commission and a party
against whom it has brought an action agree to terms to end that
action, including agreed-upon sanctions. Settlements can include
entry into consent judgments in federal district court and the
acceptance of settlement offers in an order issued in an
administrative adjudication.
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I. Background
When the Commission exercises its authority to investigate and
bring enforcement actions,\3\ it does not litigate every action to
judgment. Like all parties to litigation, the Commission and litigant
against whom it brings a federal district court action or agency
adjudication may agree to settle.\4\ The Commission's decision to
settle depends on a range of factors, including the Commission's
judgment that obtaining an immediate result by settlement better serves
the public interest than expending the resources and accepting the risk
that comes with fully litigating the matter. Similarly, a defendant's
decision to settle may turn on numerous factors.
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\3\ 7 U.S.C. 9, 15.
\4\ CFTC v. Schor, 478 U.S. 833 (1986) (establishing that the
CFTC has authority to adjudicate cases, which includes the implied
authority to reach settlements in both administrative proceedings
and enforcement actions).
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In a typical Commission settlement, a defendant in federal district
court signs a consent \5\ that describes the terms on which the parties
have agreed to settle, or, in an administrative action, a respondent
submits an offer of settlement that contains those terms. These
documents reflect the defendant's (or respondent's) agreement and
representation that the defendant (or respondent) is entering into the
settlement knowingly and voluntarily. For actions in federal district
court, the Commission (sometimes jointly with the defendant) will then
ask the court to enter a consent judgment (or consent order) that
incorporates the terms of the consent and to retain continuing
jurisdiction.\6\ For administrative adjudications, the Commission
accepts an offer of settlement by issuing an opinion and order, which
makes findings, imposes remedial sanctions, and incorporates the terms
of the offer.
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\5\ The consent is typically incorporated into a proposed
consent order signed by the defendant and presented to the
Commission for its consideration. If approved by the Commission, it
is signed by a Commission Division of Enforcement attorney and
presented to the federal district court for its consideration.
\6\ Consent judgments are ``compromises in which the parties
give up something they might have won in litigation and waive their
rights to litigation.'' United States v. ITT Cont'l Baking Co., 420
U.S. 223, 235 (1975). They ``embod[y] an agreement of the parties
and thus in some respects [are] contractual in nature,'' but they
are also ``enforceable as . . . judicial decree[s].'' Texas v. New
Mexico, 602 U.S. 943, 953 (2024).
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In 1998, the Commission adopted appendix A to part 10.\7\ Appendix
A set forth a policy not to accept any offer of settlement in an
administrative or civil proceeding if the respondent or defendant
wished to continue to deny the allegations of the Commission's
complaint.\8\ The Commission reasoned that ``[i]n accepting a
settlement and entering an order finding violations . . . the
Commission makes uncontested finding of fact and conclusions of law.
The Commission does not believe it would be appropriate for the agency
to be making such uncontested findings of violations if the party
against whom the uncontested findings are to be entered is continuing
to deny the alleged misconduct.'' \9\ By limiting the circumstances
under which the Commission will accept a settlement offer, this policy
binds the staff of the Commission's Division of Enforcement in
settlement negotiations.
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\7\ Rules of Practice, 63 FR 55784, 55790 (Oct. 19, 1998).
\8\ Id.
\9\ Id.
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[[Page 34571]]
The Commission's ``neither-admit-nor-deny'' settlements typically
take the form of a formal Consent Order or Order Instituting
Proceedings issued by the Commission. In these orders, the defendant or
respondent agrees to penalties without acknowledging that they
committed the alleged violations.\10\ More specifically, defendants and
respondents agree, among other things, not to make ``any public
statement denying, directly or indirectly any findings or conclusions''
in the Order or ``creating . . . the impression that this Order is
without a factual basis.'' \11\ The neither-admit-nor-deny provisions,
do not, however, apply to defendants' and respondents' testimonial
obligations, and the provisions do not affect their ability to take
legal or factual positions in litigation and other legal proceedings to
which the Commission is not a party, including parallel civil
actions.\12\
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\10\ See, e.g., In re Options Clearing Corp., CFTC No. 23-06
(Feb. 16, 2023); In re Citigroup Global Markets, Inc., CFTC No. 25-
02 (Sept. 4, 2025); In re Barclays Bank PLC, CFTC No. 24-39 (Sept.
30, 2024).
\11\ Id.
\12\ Language to this effect is used in settlement orders
related to the Commission. See, e.g., In re Deutsche Bank AG, et
al., CFTC. No. 18-06 (Jan. 29 2018); CFTC v. First Bristol Grp.,
Inc., No. 02-80696-CIV (S.D. Fla. July 2, 2003).
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When the Commission agrees to settlements that contain neither-
admit-nor-deny provisions, the Commission has only a limited judicial
remedy in the event a defendant breaches the settlement agreement by
publicly denying allegations. In the event of a public denial, the
Commission could, among other options, allege a breach of contract and
initiate contempt proceedings or ask a court to vacate the settlement,
returning the case to active litigation and permitting the Commission
to prove its claims.\13\ And, as with all parties to a contract who are
faced with a breach, the Commission may forgo this remedy, opting not
to dedicate resources to reviving a previously settled case. Moreover,
federal district courts have discretion to deny the Commission's
request to return a case to the active docket in the event the
Commission does seek relief in the wake of a breach. The Commission is
not aware of any instance where the Commission has sought to reopen a
federal district court action or administrative adjudication following
a violation of a neither-admit-nor-deny provision, and there are no
reported opinions where a court has ruled upon such a motion.
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\13\ There is a parallel procedure in administrative
adjudications. In that context, when the Commission has accepted
offers to settle, it has done so pursuant to 17 CFR 10.108.
Respondents have agreed not to publicly deny the allegations in the
order instituting proceedings, and they further agreed that if they
breached that agreement, Division of Enforcement staff could ask the
Commission to reopen the action against them.
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Additionally, the Commission has received a petition to repeal its
neither-admit-nor-deny requirement.\14\ Although no party has
challenged the Commission's policy, there have been several challenges
to the Securities and Exchange Commission's (``SEC'') neither-admit-
nor-deny settlements.\15\
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\14\ New Civil Liberties Alliance, Petition for Rulemaking to
Amend the Rule Restricting Speech Set Forth in 17 CFR part 10,
Appendix A (July 18, 2019), <a href="https://nclalegal.org/wp-content/uploads/2019/07/2019-07-18-Petition-for-Repeal-of-Gag-Rule-CFTC-FINAL-As-Filed.pdf">https://nclalegal.org/wp-content/uploads/2019/07/2019-07-18-Petition-for-Repeal-of-Gag-Rule-CFTC-FINAL-As-Filed.pdf</a>.
\15\ SEC v. Romeril, 15 F.4th 166 (2d Cir. 2021); SEC v.
Novinger, 40 F.4th 297 (5th Cir. 2022); SEC v. Novinger, 96 F.4th
774 (5th Cir. 2024); Powell v. SEC, 149 F.4th 1029 (9th Cir. 2025);
Cato v. SEC, 4 F.4th 91 (D.C. Cir. 2021).
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II. Discussion
A. The Commission Is Rescinding Appendix A to Part 10
After further consideration of the existing policy, the Commission
rescinds appendix A to part 10. The Commission initiates enforcement
actions only after determining that information obtained in an
investigation indicates that a violation of its rules and/or
regulations occurred or is about to occur.\16\ The commencement of such
an enforcement action in federal district court (or institution of an
administrative proceeding) reflects the Commission's intention to prove
the facts of the case as alleged based on the results of that
investigation.\17\ When the Commission chooses settlement to serve the
public interest by obtaining a more-certain and faster result with less
expenditure of resources and less risk, it forecloses its ability to
obtain a fully adjudicated decision after a contested proceeding.
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\16\ 7 U.S.C. 9, 15.
\17\ In an administrative proceeding, the Commission serves in
an adjudicatory capacity.
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When the Commission adopted appendix A to part 10, it stated: ``In
accepting a settlement and entering an order finding violations . . .
the Commission makes uncontested findings of fact and conclusions of
law. The Commission does not believe it would be appropriate for the
agency to be making such uncontested findings of violations if the
party against whom the uncontested findings are to be entered is
continuing to deny the alleged misconduct.'' \18\ Yet experience has
taught that the negative effect on the public interest from such
denials may be minimal. Members of the public, regulated entities, and
market participants typically understand that settlements are often
reached for pragmatic reasons, including avoiding the expense,
uncertainty, and delay associated with litigation. The Commission also
recognizes that the policy itself may create the incorrect impression
that it is trying to protect itself from criticism.\19\ Even if that is
not the Commission's intent, such a perception could undermine public
confidence in the agency's commitment to transparency, openness, and
fair process.
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\18\ Rules of Practice, 63 FR 55784, 55790 (Oct. 19, 1998).
\19\ In SEC v. Powell, the Ninth Circuit held that the SEC's
``neither-admit-nor-deny'' policy, 17 CFR 202.5(e), does not violate
the First Amendment by limiting a defendant's speech, even if
denying allegations undermines agency confidence. The court
clarified the policy's purpose is administrative, requiring the SEC
to prove allegations in court if a defendant refuses to settle
without admitting wrongdoing. Powell, 149 F.4th at 1044.
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Four additional reasons support the Commission's rescission of
appendix A to part 10.
First, when the Commission agrees to settlements that contain
neither-admit-nor-deny provisions, the Commission has only a limited
judicial remedy in the event a defendant breaches the settlement
agreement by publicly denying allegations. In the event of a public
denial, the Commission could allege a breach of contract and initiate
contempt proceedings, or ask a court to vacate the settlement,
returning the case to active litigation and permitting the Commission
to prove its claims.\20\ In practice, however, the benefits of these
remedies have proven limited. The Commission is not aware of any
instance in which it invoked these measures, nor any case in which a
court has granted such relief following a public denial.
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\20\ See also supra note 14.
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Moreover, there is a built-in temporal disincentive to invoking
these remedies. As the time between the settlement and a denial grows,
the Commission is less likely to dedicate resources to reopen the case,
because the passage of time and concomitant fading of memories and loss
of evidence renders the allegations harder to prove. Similarly, as more
time elapses from the entry of a consent judgment containing a no-deny
provision, a court may be less likely to grant the Commission's request
to reopen an older case because of comparable procedural and
evidentiary concerns. Given that the Commission has not sought to use
this remedy, its theoretical benefits do not justify its retention.
Second, technological changes in communication, particularly the
use of social media, have made the policy
[[Page 34572]]
more challenging to implement. Appendix A to part 10 covers public
denials of allegations. But the line between public and private
statements is not always clear. For example, social media interactions
are often intended for a private, self-selected community but are still
visible to dozens of individuals.\21\ Rather than devote resources to
determining whether such statements would constitute a violation of a
neither-admit-nor-deny provision, the Commission chooses to repeal
appendix A to part 10.
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\21\ Moreover, with regards to the SEC neither-admit-nor-deny
provision, the Ninth Circuit noted in upholding the provision
against a facial constitutional challenge that the language of some
consents ``could be read to sweep more broadly'' than the provision
by covering public statements that are ``indirectly'' denying
allegations or ``creating the impression'' that the allegations are
without a factual basis. Powell, 149 F.4th at 1044.
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Third, eliminating appendix A to part 10 aligns the Commission with
the majority of federal agencies.\22\ Most federal agencies--including
the Department of Justice--have not adopted a comparable neither-admit-
nor-deny policy. The absence of these policies has proven immaterial to
those agencies' ability to settle enforcement actions without negative
consequence. Moreover, the SEC recently rescinded its ``neither-admit-
nor-deny'' policy citing many of the rationales that the Commission is
relying upon here.\23\ All of these examples fortify the Commission's
conclusion that rescinding appendix A to part 10 will not harm the
public interest.
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\22\ See Verity Winship & Jennifer K. Robbennolt, Admissions of
Guilt in Civil Enforcement, 102 Minn. L. Rev. 1077 (2018)
(discussing differences in settlement practices between federal
regulators).
\23\ Rescission of Policy Regarding Denials in Settlements of
Enforcement Actions, 91 FR 29892 (May 21, 2026).
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Fourth, rescinding appendix A to part 10 gives the Commission more
flexibility in settling enforcement actions. This flexibility empowers
the Commission to conserve resources and provide certainty. It may also
speed the return of money to victims.\24\ The current policy precludes
the Commission from accepting settlements that lack a neither-admit-
nor-deny provision. This restriction bars settlements with defendants
who do not wish to sign a provision that prevents them from ever
denying liability. The rescission will allow the Commission to better
structure settlements, resulting in collectible sanctions that can be
returned to victims more efficiently.\25\
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\24\ United States v. Armour & Co, 402 U.S. 673, 681 (1971)
(parties settle ``after careful negotiation'' and reach an
``agreement on [a consent's] precise terms,'' saving ``themselves
the time, expense, and inevitable risk of litigation,'' but also
giving ``up something they might have won had they proceeded with
the litigation''); SEC v. Citigroup Glob. Mkts., 752 F.3d 285, 295
(2d Cir. 2014) (settlement provides ``parties with a means to manage
risk'').
\25\ The Commission's rescission of appendix A to part 10 does
not affect its discretion to settle with defendants who decline to
admit facts or liability, or its discretion to negotiate for
admissions as part of a settlement. Moreover, there is a subset of
cases where the Commission settles (or plans to settle) with a
defendant or respondent that is the subject of a parallel criminal
proceeding arising from the same or similar conduct, and where the
defendant or respondent has pleaded, or is expected to plead,
guilty, or been convicted. In those instances, there have been
admissions or a finding of criminal liability. For these types of
cases, the Commission may continue to address admissions and denials
in settlement agreements to ensure consistency between the
Commission settlement and the resolution of the parallel matter.
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B. The Commission Will Not Seek To Enforce Existing Neither-Admit-Nor-
Deny Provisions
In light of the rescission of appendix A to part 10, and for the
same reasons, the Commission will not enforce existing neither-admit-
nor-deny provisions in settlements that have already been entered. If a
settling defendant or respondent has previously agreed to a neither-
admit-nor-deny provision, and the defendant or respondent then breaches
the terms of that neither-admit-nor-deny provision, the Commission will
not allege breach of contract or attempt to reopen an otherwise settled
case. Rather, in the event of breach, the Commission will take no
action to ask a federal district court to vacate the settlement (or to
reopen an administrative adjudicatory proceeding) or to hold the
defendant or respondent in contempt in connection with the settlement
agreement and the limited relief the Commission has pursuant to its
terms.
II. Related Matters
A. Notice and Effective Date
The Administrative Procedure Act (``APA'') \26\ requires federal
agencies to publish a notice of proposed rulemaking and provide an
opportunity for public comment before issuing a new rule. Rules are
exempt from notice and comment if they are interpretive rules, general
statements of policy, or rules of agency organization, procedure, or
practice.\27\ The Commission has determined that this exception
applies. These amendments represent a general statement of Commission
policy and relate solely to agency organization, procedure, and
practice.\28\ Therefore, the provisions of the APA, which generally
require notice or proposed rulemaking and provide other opportunities
for public participation, are inapplicable. In addition, the APA
generally requires that an agency publish a substantive rule in the
Federal Register 30 days before it becomes effective,\29\ but this
requirement does not apply to ``interpretive rules and statements of
policy,'' \30\ such as this one. Therefore, this final rule is
effective upon publication in the Federal Register. Moreover, the
Commission finds that delaying the effective date of this rescission
could create incentives for parties to delay settlement until the
rescission takes effect. As a result, the Commission believes that
delaying the effectiveness of this rule is contrary to the public
interest and finds ``good cause'' to make the rescission effective upon
publication in the Federal Register under 5 U.S.C. 553(d).\31\
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\26\ 5 U.S.C. 553 et seq.
\27\ 5 U.S.C. 553(b)(3)(A).
\28\ The Commission made a similar finding in 1998 when it
adopted appendix A to part 10 without notice and comment. See 63 FR
55791 (Oct. 19, 1998).
\29\ 5 U.S.C. 553(d).
\30\ 5 U.S.C. 553(d)(2).
\31\ 5 U.S.C. 553(d)(3).
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B. Regulatory Flexibility Act
The Regulatory Flexibility Act requires federal agencies to
consider whether the rules they propose will have a significant
economic impact on a substantial number of small entities and, if so,
to provide a regulatory flexibility analysis regarding the economic
impact on those entities.\32\ The Commission is obligated to conduct a
regulatory flexibility analysis for any rule for which the agency
publishes a general notice of proposed rulemaking pursuant to section
553(b) of the APA or any other law.\33\ This rulemaking is excepted
from the public rulemaking provisions of the APA.\34\ Accordingly, the
Commission is not required to conduct a regulatory flexibility analysis
for this rulemaking.
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\32\ 5 U.S.C. 601 et seq.
\33\ 5 U.S.C. 603(a).
\34\ 5 U.S.C. 553(b)(3)(B).
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C. Paperwork Reduction Act
The Paperwork Reduction Act (``PRA'') imposes certain requirements
on federal agencies in connection with their conducting or sponsoring
any collection of information.\35\ This rule does not contain a
``collection of information,'' as defined in the PRA. Accordingly, the
requirements imposed by the PRA are not applicable to this rule.
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\35\ 5 U.S.C. 3501 et seq.
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D. Cost-Benefit Considerations
Section 15(a) of the Commodity Exchange Act (``CEA'') provides
that, before promulgating a regulation under
[[Page 34573]]
the CEA or issuing an order, the Commission shall consider the costs
and benefits of the action of the Commission's contemplated action.\36\
Section 15(a) further specifies that the 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 the futures markets; (3)
price discovery; (4) sound risk management practices; and (5) other
public interest considerations.\37\ The proposed revisions relate
solely to agency organization, procedure, and practice. Therefore, the
Commission finds that the considerations enumerated in section 15(a)(2)
of the CEA are not applicable here.
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\36\ 7 U.S.C. 19(a).
\37\ 7 U.S.C. 19(a)(2).
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E. Antitrust Considerations
Section 15(b) of the CEA requires the Commission to take into
consideration the public interest to be protected by the antitrust laws
and endeavor to take the least anticompetitive means of achieving the
CEA's objectives in issuing any order or adopting any Commission rule
or regulation.\38\ The Commission does not anticipate that appendix A
to part 10's rescission will have anticompetitive effects. Instead, the
Commission anticipates that the policy's rescission will allow the
Commission more flexibility to settle enforcement actions, thereby
increasing the agency's ability to collect sanctions and return monies
to victims while also conserving resources.
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\38\ 7 U.S.C. 19(b).
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F. Executive Orders
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select those regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety, and other advantages; and distributive
impacts). Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as any regulatory action that is likely to result
in a rule that may: (1) have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, or the President's priorities.
The Office of Management and Budget has determined that this action
is not a significant regulatory action as defined in Executive Order
12866, as amended, and therefore it was not subject to Executive Order
12866 review.
Pursuant to the Congressional Review Act,\39\ the Office of
Information and Regulatory Affairs has designated these amendments as
not a ``major rule,'' as defined by 5 U.S.C. 804(2).
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\39\ 5 U.S.C. 801-808.
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List of Subjects in 17 CFR Part 10
Administrative practice and procedure, Authority delegations
(Government agencies), Swaps.
For the reasons stated in the preamble, the Commodity Futures
Trading Commission amends 17 CFR part 10 as follows:
PART 10-RULES OF PRACTICE
0
1. The authority citation for part 10 continues to read as follows:
Authority: Pub. L. 93-463, sec. 101(a)(11), 88 Stat. 1391; 7
U.S.C. 2(a)(12).
Appendix A to Part 10 [Removed]
0
2. Remove Appendix A to Part 10--Commission Policy Relating to the
Acceptance of Settlements in Administrative and Civil Proceedings.
Issued in Washington, DC, on June 4, 2026, by the Commission.
Christopher Kirkpatrick,
Secretary of the Commission.
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix to Rescission of Policy Relating to the Acceptance of
Settlements in Administrative and Civil Proceedings--Commission Voting
Summary
On this matter, Chairman Selig voted in the affirmative. No
Commissioner voted in the negative.
[FR Doc. 2026-11466 Filed 6-5-26; 8:45 am]
BILLING CODE 6351-01-P
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