[Federal Register: April 28, 2005 (Volume 70, Number 81)]
[Proposed Rules]
[Page 22223-22228]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ap05-21]
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Part III
Securities and Exchange Commission
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17 CFR Part 201
Proposed Amendments to the Rules of Practice and Related Provisions;
Proposed Rule
[[Page 22224]]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Part 201
[Release No. 34-51595; File No. S7-05-05]
Proposed Amendments to the Rules of Practice and Related
Provisions
AGENCY: Securities and Exchange Commission.
ACTION: Proposed rule.
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SUMMARY: The Securities and Exchange Commission (``Commission'') is
proposing for public comment amendments to its Rules of Practice and
related provisions. The Commission is proposing the amendments as a
result of its experience with these rules and to correct typographical
errors and change certain citations. The proposed amendments are
intended to enhance the transparency and facilitate parties'
understanding of the rules and to make practice under the rules easier
and more efficient.
DATES: Comments should be received on or before May 31, 2005.
ADDRESSES: Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml.
); or Send an e-mail to rule-comments@sec.gov. Please include
File Number S7-05-05 on the subject line; or
Use the Federal eRulemaking Portal (http://www.regulations.gov
). Follow the instructions for submitting comments.
Paper Comments
Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW.,
Washington, DC 20549-0609.
All submissions should refer to File Number S7-05-05. This file
number should be included on the subject line if e-mail is used. To
help us process and review your comments more efficiently, please use
only one method. The Commission will post all comments on the
Commission's Internet Web site (http://www.sec.gov/rules/proposed.shtml
). Comments are also available for public inspection and
copying in the Commission's Public Reference Room, 450 Fifth Street,
NW., Washington, DC 20549. All comments received will be posted without
change; we do not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly.
FOR FURTHER INFORMATION CONTACT: Diane V. White, Office of the General
Counsel, (202) 942-0950, Securities and Exchange Commission, 450 5th
Street, NW., Washington, DC 20549-0208.
SUPPLEMENTARY INFORMATION: The Commission proposes to amend its Rules
of Practice and related provisions as a result of the Commission's
experience with its existing rules and in order to correct references
and change certain citations.\1\ The majority of these proposals are
technical and not substantive.
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\1\ The Commission may determine to delegate certain of its
authority under these proposed rules if it subsequently adopts them.
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I. Discussion
A. Rule 141(a)(2)(ii) now generally authorizes service on other
corporations or entities by delivering a copy of the order instituting
proceedings (``OIP'') to an officer, managing or general agent, or
authorized agent by personal service or by mail.\2\ The Commission has
observed that, in proceedings instituted under Section 12(j) of the
Securities Exchange Act of 1934, 15 U.S.C. 78l(j), to revoke or suspend
the registration of a class of securities for failure to make timely
periodic filings, it sometimes has been difficult to serve the issuer
of the class of securities. An issuer that is delinquent in its filings
often does not keep current with the Commission the name of a valid
representative. In certain instances, the Commission's staff has sought
to accomplish service on such an issuer by serving multiple copies of
the OIP on various persons, such as the issuer's officers or
directors.\3\ The Commission proposes to amend Rule 141(a)(2)(ii) to
authorize service on an issuer at the most recent address set forth in
its most recent filing with the Commission, together with obtaining
confirmation of attempted delivery.
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\2\ Rule 141(a)(2)(ii) states that notice to a corporation or
other entity of a proceeding ``shall be made'' by ``delivering a
copy of the order instituting proceedings to an officer, managing or
general agent, or any other agent authorized by appointment or by
law to receive such notice, by any method specified in paragraph
(a)(2)(i) of this rule.''
Rule 141(a)(2)(i) authorizes delivery by ``handing a copy of the
order to the individual; or leaving a copy at the individual's
office with a clerk or other person in charge thereof; or leaving a
copy at the individual's dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein; or
sending a copy of the order addressed to the individual by U.S.
Postal Service certified, registered or Express Mail and obtaining
confirmation of receipt; or giving confirmed telegraphic notice.''
\3\ See, e.g., Alcohol Sensors Int'l, Ltd., Exchange Act Rel.
No. 50150 (Aug. 5, 2004), 83 SEC Docket 1748, 1749 n.1 (stating that
more than 430 copies of the OIP were served in order to accomplish
service on seventeen respondents in a Section 12(j) proceeding).
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The Commission also proposes to add Rule 141(a)(2)(vi) to authorize
service on persons registered with self-regulatory organizations at the
most recent address shown in the Central Registration Depository,
together with obtaining confirmation of attempted delivery. We request
comment as to whether this method will provide adequate notice of a
proceeding. We recognize that the Central Registration Depository
requires only that addresses be kept current for two years after a
person ceases to be associated with a member of a self-regulatory
organization, and we request comment as to whether the rule should
refer explicitly to such a two-year period.
B. Currently, Rule 430(a) provides that any person aggrieved by an
action made by authority delegated in Sections 200.30-1 through 200.30-
8 or Sections 200.30-11 through 200.30-18 may seek review of the action
pursuant to Rule 430(b). Rule 430(b) provides that Commission review is
to be sought by filing a written notice of intention to petition for
review within five days ``after actual notice to the party of the
action or service of notice pursuant to Sec. 201.141(b), whichever is
earlier.'' While the current rule permits appeals by any aggrieved
person, an aggrieved person who is not a party may not receive actual
notice or learn of service of notice promptly after the action.
Nonetheless, it is important that a deadline for the filing of a notice
of intention to petition for review be established, so that people may
know when an action is beyond challenge. The proposed amendment would
therefore provide that both parties and aggrieved persons may seek
Commission review of the action by filing a notice of intention to
petition for review within five days after actual notice of the action
to the party or person, or 15 days after publication of the notice of
action in the Federal Register, or five days after service of notice of
the action pursuant to Sec. 201.141(b), whichever is the earliest. The
Commission requests comment on whether this form of publication would
provide adequate notice, or whether another form of publication should
be used to supplement the Federal Register. The Commission further
seeks comment on whether posting of a notice of action pursuant to
delegated authority on the Commission's Web site would aid in giving
notice to persons who might be aggrieved by such action. The Commission
also seeks comment as to whether 15 days after publication
[[Page 22225]]
allows parties and aggrieved persons sufficient time to file a
notice.\4\
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\4\ See 44 U.S.C. 1508 (stating that time between publication of
notice in Federal Register and date fixed in notice for hearing or
termination of opportunity to be heard should generally be not less
than fifteen days unless otherwise specifically prescribed by Act of
Congress).
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C. Currently, Rule 55, which governs the conduct of Equal Access to
Justice Act (``EAJA'') proceedings before an administrative law judge,
authorizes the law judge considering an application for an award of
fees and expenses under the Equal Access to Justice Act, 5 U.S.C. Sec.
504, to order all proceedings that are otherwise available under Rule
8(d) of the Rules of Practice. Former Rule 8(d) authorized the conduct
of prehearing conferences and briefings. When the Commission
comprehensively revised and renumbered its Rules of Practice in 1995,
former Rule 8(d) was incorporated into Rules 221 and 222(a).\5\
However, the reference to Rule 8(d) contained in EAJA Rule 55 was not
changed at that time. The proposed amendment would replace the
reference to Rule 8(d) with a reference to Rules 221 and 222(a).
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\5\ See Exchange Act Rel. No. 35833 (June 23, 1995), 59 SEC
Docket 1546, 1631 tbl. III.
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D. Current Rule 102(e)(3)(iii) provides that Commission review of a
hearing officer's initial decision on a petition to lift a temporary
suspension of a person from appearing and practicing before the
Commission will be governed by the time limits set forth in Sec.
201.531. The proposed amendment would correct the reference, by
referring to Sec. 201.540, which governs the appeal and Commission
review of certain initial decisions.
E. Currently, Rule 111(h) provides no time limit within which a law
judge is required to rule upon a motion to correct a manifest error of
fact in an initial decision. The proposed amendment would make clear
that such a ruling must be made within 20 days of the filing of any
brief in opposition. Any brief in opposition must be filed within five
days after service of the motion.
F. Current Rule 152(d) provides that an original and three copies
of all papers shall be filed. The proposed amendment would make clear
that if filing is made by facsimile pursuant to Rule 151, the filer
must transmit only one non-facsimile original with a manual signature
and does not need to transmit additional non-facsimile copies.
G. Currently, Rule 154(c) and Rule 250(c) provide page limitations
for, respectively, motions in general and motions for summary
disposition. Rule 450(c), however, now sets word-count limitations,
instead of page limitations, for briefs filed with the Commission. The
proposed amendment to Rule 154(c) would substitute a limitation for
motions of 7,000 words, exclusive of any table of contents, table of
authority, or addendum of applicable cases, legislative provisions, or
exhibits. Rule 470(b), which currently requires motions for
reconsideration to comply with the page length limitation in Rule
154(c), would be amended to refer to proposed Rule 154(c)'s word
limitation.
The proposed amendment to Rule 250(c) would set a limitation of
9,800 words for a motion for summary disposition, supporting memorandum
of points and authorities, but not including any declarations,
affidavits or attachments. Motions for summary dispositions are often
made in cases where a respondent has been criminally convicted or an
injunction has been entered and the conviction or injunction provides
the basis for an administrative order against the respondent. In such
cases, documents establishing the conviction or injunction must be
included as exhibits to the motion; these documents alone can total
more than the entire word limitation allotted to the motion. The
proposed amendment would exclude such attachments from the word-count
restriction.
H. Current Rule 201(b) provides that by order of the Commission,
any proceeding may be severed with respect to some or all parties. The
proposed amendment would allow severance with respect to ``one or
more'' parties, making clear that severance is available as to a single
party, under appropriate circumstances.
I. Current Rule 210(a)(2) contains a reference to Sec. 201.612.
Section 612 was renumbered as Sec. 201.1103, effective April 19, 2004.
The proposed amendment would change the reference accordingly.\6\
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\6\ Language was inadvertently deleted from Rule 210(b) in an
earlier revision of the Rules of Practice. This language is now
being reinstated.
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J. Current Rule 411(c) refers to ``any brief in opposition to a
petition for review permitted pursuant to Sec. 201.410(d).'' The Rules
of Practice no longer provide for briefs in opposition to a petition
for review, and Section 410(d) was removed and reserved effective April
19, 2004. The proposed amendment would delete the reference.
K. Currently, Rule 601(a) provides that funds due pursuant to an
order by a hearing officer shall be paid on the first day after the
order becomes final pursuant to Rule 360. Under Rule 360(d)(2) as
revised, effective April 19, 2004, an initial decision no longer
becomes final automatically. That rule now provides that the Commission
will issue an order stating that a decision has become final. Rule
360(d)(2) further provides for the order of finality to state the date
on which sanctions, if any, take effect. Proposed Rule 601would clarify
that funds due pursuant to an order by a hearing officer are to be paid
in accordance with the order of finality.
L. Current Rule 900(b) requires the Chief Administrative Law Judge
to apprise the Commission specifically if a proceeding assigned to an
administrative law judge has not been concluded ``within 30 days of the
guidelines established in paragraph (a) of this section.'' Paragraph
(a) no longer contains guidelines relevant to the timely conclusion of
proceedings before law judges; these guidelines are now found in Sec.
201.360(a)(2). Rule 360(a)(3) requires the Chief Administrative Law
Judge to submit a motion for an extension to the Commission if it is
determined that an initial decision cannot be issued within the period
specified in the guidelines. The submission of such motions renders the
specific apprisal by the Chief Administrative Law Judge under Rule
900(b) unnecessary. The proposed amendment would eliminate that
requirement.
M. In proceedings where an order issued by the Commission requires
a respondent to pay disgorgement and assesses a civil penalty against
that respondent, current Rule 1100 allows the Commission to create a
Fair Fund for the benefit of investors who were harmed by the violation
found. The proposed amendment would make clear that in such cases,
hearing officers also have the authority to create Fair Funds.
N. Tables I, II, and III have been superseded by subsequent
amendments to the federal securities laws and these rules, and are of
little utility to the public. The proposed amendment would delete these
tables.
II. Request for Public Comments
We request and encourage any interested person to submit comments
regarding: (1) The proposed changes that are the subject of this
release, (2) additional or different changes, or (3) other matters that
may have an effect on the proposals contained in this release.
III. Administrative Procedure Act, Regulatory Flexibility Act, and
Paperwork Reduction Act
The Commission finds, in accordance with Section 533(b)(3)(A) of
the
[[Page 22226]]
Administrative Procedure Act,\7\ that this revision relates solely to
agency organization, procedure, or practice. It is therefore not
subject to the provisions of the Administrative Procedure Act requiring
notice, opportunity for public comment, and publication. The Regulatory
Flexibility Act \8\ therefore does not apply. Similarly, because these
rules relate to ``agency organization, procedure or practice that does
not substantially affect the rights or obligations of non-agency
parties,'' the Commission is not soliciting comment for purposes of the
Small Business Regulatory Enforcement Fairness Act.\9\ Nonetheless, the
Commission has determined that it would be useful to publish these
proposed rules for notice and comment before adoption.\10\ These rules
do not contain any collection of information requirements as defined by
the Paperwork Reduction Act of 1995, as amended.\11\
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\7\ 5 U.S.C. 553(b)(3)(A).
\8\ 5 U.S.C. 601 et seq.
\9\ 5 U.S.C. 804(3)(C).
\10\ See 5 U.S.C. 603.
\11\ 44 U.S.C. 3501 et seq.
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IV. Costs and Benefits of the Proposed Amendments
Taken as a whole, the Commission's Rules of Practice create
governmental review and remedial processes. That is, they are
procedural and administrative in nature. The benefits to the parties
are the familiar benefits of due process: notice, opportunity to be
heard, efficiency, and fairness. The costs of these processes fall
largely on the Commission.
The proposals set forth in this release variously clarify existing
practice, relate to internal agency management, increase the efficiency
of proceedings, or promote due process. The Commission requests data to
quantify the costs and the value of the benefits identified. The
Commission also seeks estimates and views regarding these costs and
benefits for particular types of market participants, as well as any
other costs or benefits that may result from the adoption of the
proposed rules.
V. Effect on Efficiency, Competition and Capital Formation
Section 2(b) of the Securities Act of 1933,\12\ Section 3(f) of the
Exchange Act,\13\ Section 2(c) of the Investment Company Act of
1940,\14\ and Section 202(c) of the Investment Advisers Act of 1940
\15\ require us, when engaging in rulemaking that requires us to
consider or determine whether an act is necessary or appropriate in the
public interest, to consider whether the action will promote
efficiency, competition, and capital formation. Section 23(a)(2) of the
Exchange Act \16\ prohibits us from adopting any rule that would impose
a burden on competition not necessary or appropriate in furtherance of
the purposes of the Exchange Act. The proposed rules and amendments are
intended to enhance the transparency and facilitate parties'
understanding of the Rules. The proposed amendments are also intended
to clarify existing practice and increase the efficiency of Commission
enforcement and self-regulatory organization disciplinary review
proceedings. The proposed rules and amendments would apply to all
persons involved in administrative proceedings before the Commission
and therefore the Commission does not expect the proposed rules and
amendments to have an anti-competitive effect. To the extent the
proposed rules and amendments would foster making whole victims of
securities laws violations and would increase the transparency and
efficiency of the Commission's administrative proceedings, there might
be an increase in investor confidence in market fairness and
efficiency. However, the magnitude of the effect of the proposed
amendments in this regard is difficult to quantify. We request comment
on the possible effects of our rule proposals on efficiency,
competition, and capital formation. Commenters are requested to provide
empirical data and other factual support for their views if possible.
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\12\ 15 U.S.C. 77b(b).
\13\ 15 U.S.C. 78c(f).
\14\ 15 U.S.C. 80a-2(c).
\15\ 15 U.S.C. 80b-2(c).
\16\ 15 U.S.C. 78w(a)(2).
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VI. Statutory Basis and Text of Proposed Amendments
These amendments to the Rules of Practice and related provisions
are being adopted pursuant to statutory authority granted to the
Commission, including section 3 of the Sarbanes-Oxley Act of 2002, 15
U.S.C. 7202; section 19 of the Securities Act, 15 U.S.C. 77s; sections
4A, 19, and 23 of the Exchange Act, 15 U.S.C. 78d-1, 78s, and 78w;
section 20 of the Public Utility Holding Company Act of 1935, 15 U.S.C.
79t; section 319 of the Trust Indenture Act of 1939, 15 U.S.C. 77sss;
sections 38 and 40 of the Investment Company Act, 15 U.S.C. 80a-37 and
80a-39; and section 211 of the Investment Advisers Act, 15 U.S.C. 80b-
11.
List of Subjects in 17 CFR Part 201
Administrative practice and procedure.
Text of the Amendment
For the reasons set out in the preamble, Title 17, Chapter II of
the Code of Federal Regulations is proposed to be amended as follows:
PART 201--RULES OF PRACTICE
1. The authority citation for part 201 continues to read as
follows:
Authority: 15 U.S.C. 77s, 78w, 78x, 79t, 77sss, 80a-37 and 80b-
11; 5 U.S.C. 504(c)(1).
2. Section 201.55 is amended by revising the third sentence in
paragraph (a) to read as follows:
Sec. 201.55 Further proceedings.
(a) * * * The administrative law judge may order all proceedings
that are otherwise available under Rules 221 and 222(a) of the
Commission's Rules of Practice, Sec. Sec. 201.211 and 201.222(a). * *
*
* * * * *
3. The authority citation for Part 201, subpart D, continues to
read as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77h-1, 77j, 77s, 77u,
78c(b), 78d-1, 78d-2, 78l, 78m, 78n, 78o(d), 78o-3, 78s, 78u-2, 78u-
3, 78v, 78w, 79c, 79s, 79t, 79z-5a, 77sss, 77ttt, 80a-8, 80a-9, 80a-
37, 80a-38, 80a-39, 80a-40, 80a-41, 80a-44, 80b-3, 80b-9, 80b-11,
80b-12, 7202, 7215, and 7217.
Sec. 201.102 [Amended]
4. Section 201.102 is amended by revising the cite ``Sec.
201.531'' to read ``Sec. 201.540'' in the last sentence of paragraph
(e)(3)(iii).
5. Section 201.111 is amended by revising paragraph (h) to read as
follows:
Sec. 201.111 Hearing officer: Authority.
* * * * *
(h) Subject to any limitations set forth elsewhere in these Rules
of Practice, considering and ruling upon all procedural and other
motions, including a motion to correct a manifest error of fact in the
initial decision. Any motion to correct must be filed within ten days
of the initial decision. A brief in opposition may be filed within five
days of a motion to correct. The hearing officer shall have 20 days
from the date of filing of any brief in opposition filed to rule on a
motion to correct;
* * * * *
6. Section 201.141 is amended by:
a. Revising paragraph (a)(2)(ii); and
b. Adding paragraph (a)(2)(vi).
The revision and addition read as follows.
Sec. 201.141 Orders and decisions: Service of orders instituting
proceeding and other orders and decisions.
(a) * * *
[[Page 22227]]
(2) * * *
(ii) To corporations or entities. Notice of a proceeding shall be
made to a person other than a natural person by delivering a copy of
the order instituting proceedings to an officer, managing or general
agent, or any other agent authorized by appointment or law to receive
such notice, by any method specified in paragraph (a)(2)(i) of this
section, or, in the case of an issuer of a class of securities
registered with the Commission, by sending a copy of the order
addressed to the most recent address shown on the entity's most recent
filing with the Commission by U.S. Postal Service certified, registered
or Express Mail and obtaining a confirmation of attempted delivery.
* * * * *
(vi) To persons registered with self-regulatory organizations.
Notice of a proceeding shall be made to a person registered with a
self-regulatory organization by any method specified in paragraph
(a)(2)(i) of this section, or by sending a copy of the order addressed
to the most recent address for the person shown in the Central
Registration Depository by U.S. Postal Service certified, registered or
Express Mail and obtaining a confirmation of attempted delivery.
* * * * *
7. Section 201.152 is amended by revising paragraph (d) to read as
follows:
Sec. 201.152 Filing of papers: Form.
* * * * *
(d) Number of copies. An original and three copies of all papers
shall be filed, unless filing is made by facsimile in accordance with
Sec. 201.151. If filing is made by facsimile, the filer shall also
transmit to the Office of the Secretary one non-facsimile original with
a manual signature, contemporaneously with the facsimile transmission.
* * * * *
8. Section 201.154 is amended by revising paragraph (c) to read as
follows:
Sec. 201.154 Motions.
* * * * *
(c) Length limitation. A motion (together with the brief in support
of the motion, the brief in opposition to the motion, or any reply
brief) shall not exceed 7,000 words, exclusive of any table of contents
or table of authorities. The word limit shall not apply to any addendum
that consists solely of copies of applicable cases, pertinent
legislative provisions or rules, or relevant exhibits. Requests for
leave to file motions and briefs in excess of 7,000 words are
disfavored. A motion that does not, together with any accompanying
brief, exceed 15 pages in length, exclusive of pages containing the
table of contents, table of authorities, and any addendum that consists
solely of copies of applicable cases, pertinent legislative provisions,
or rules and exhibits, but inclusive of pleadings incorporated by
reference, is presumptively considered to contain no more than 7,000
words. Any motion that exceeds these page limits must include a
certificate by the attorney, or an unrepresented party, stating that
the brief complies with the length limitation set forth in this
paragraph and stating the number of words in the motion. The person
preparing the certificate may rely on the word count of a word-
processing program to prepare the motion.
9. Section 201.201 is amended by revising the first sentence of
paragraph (b) to read as follows:
Sec. 201.201 Consolidation and severance of proceedings.
* * * * *
(b) * * * By order of the Commission, any proceeding may be severed
with respect to one or more parties. * * *
10. Section 201.210 is amended by:
a. Revising the cite ``Sec. 201.612'' to read ``Sec. 201.1103''
in paragraph (a)(2);
b. Removing the colon at the end of the introductory text of
paragraph (b)(1) and adding a period in its place; and
c. Adding a sentence at the end of the introductory text of
paragraph (b)(1).
The revision and addition read as follows.
Sec. 201.210 Parties, limited participants and amici curiae.
* * * * *
(b) * * * (1) * * * No person, however, shall be admitted as a
party to a proceeding by intervention unless it is determined that
leave to participate pursuant to paragraph (c) of this section would be
inadequate for the protection of the person's interests.
* * * * *
11. Section 201.250 is amended by revising paragraph (c) to read as
follows:
Sec. 201.250 Motion for summary disposition.
* * * * *
(c) The motion for summary disposition, supporting memorandum of
points and authorities (exclusive of any declarations, affidavits or
attachments) shall not exceed 9,800 words. Requests for leave to file
motions and accompanying documents in excess of 9,800 words are
disfavored. A motion that does not, together with any accompanying
memorandum of points and authorities, exceed 35 pages in length,
inclusive of pleadings incorporated by reference (but excluding any
declarations, affidavits or attachments) is presumptively considered to
contain no more than 9,800 words. Any motion that exceeds these page
limits must include a certificate by the attorney, or an unrepresented
party, stating that the brief complies with the length limitation set
forth in this paragraph and stating the number of words in the motion.
The person preparing the certificate may rely on the word count of a
word-processing program to prepare the motion.
12. Section 201.411 is amended by revising the first sentence in
paragraph (c) to read as follows:
Sec. 201.411 Commission consideration of initial decisions by hearing
officers.
* * * * *
(c) * * * The Commission may, on its own initiative, order review
of any initial decision, or any portion of any initial decision, within
21 days after the end of the period established for filing a petition
for review pursuant to Sec. 210.410(b). * * *
* * * * *
13. Section 201.430 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 201.430 Appeal of actions made pursuant to delegated authority.
* * * * *
(b) * * * (1) Notice of intention to petition for review. A party
to an action made pursuant to delegated authority, or a person
aggrieved by such action, may seek Commission review of the action by
filing a notice of intention to petition for review within five days
after actual notice of the action to the party or person, or 15 days
after publication of the notice of action in the Federal Register, or
five days after service of notice of the action on the party or person
pursuant to Sec. 201.141(b), whichever is the earliest.
* * * * *
14. Section 201.470 is amended by revising the third sentence of
paragraph (b) to read as follows:
Sec. 201.470 Reconsideration.
* * * * *
(b) * * * A motion for reconsideration shall conform to the
requirements, including the limitation on the numbers of words,
provided in Sec. 201.154. * * *
15. Section 201.601 is amended by revising paragraph (a) to read as
follows:
Sec. 201.601 Prompt payment of disgorgement, interest and penalties.
(a) Timing of payments. Unless otherwise provided, funds due
pursuant
[[Page 22228]]
to an order by the Commission requiring the payment of disgorgement,
interest or penalties shall be paid no later than 21 days after service
of the order, and funds due pursuant to an order by a hearing officer
shall be paid in accordance with the order of finality issued pursuant
to Sec. 201.360(d)(2).
* * * * *
16. Section 201.900 is amended by revising the last sentence in
paragraph (b) to read as follows:
Sec. 201.900 Informal procedures and supplementary information
concerning adjudicatory proceedings.
* * * * *
(b) * * * In connection with these reports, if a proceeding pending
before the Commission has not been concluded within 30 days of the
guidelines established in paragraph (a) of this section, the General
Counsel shall specifically apprise the Commission of that fact, and
shall describe the procedural posture of the case, project an estimated
date for conclusion of the proceeding, and provide such other
information as is necessary to enable the Commission to determine
whether additional steps are necessary to reach a fair and timely
resolution of the matter.
* * * * *
17. Part 201, subpart D, is amended by removing Tables I, II, and
III at the end of the subpart.
Subpart F--Fair Fund and Disgorgement Plans
18. The authority citation for subpart F continues to read as
follows.
Authority: 15 U.S.C. 77h-1, 77s, 77u, 78c(b), 78d-1, 78d-2, 78u-
2, 78u-3, 78v, 78w, 80a-9, 80a-37, 80a-39, 80a-40, 80b-3, 80b-11,
80b-12, and 7246.
19. Section 201.1100 is revised to read as follows:
Sec. 201.1100 Creation of fair fund.
In any agency process initiated by an order instituting proceedings
in which the Commission or the hearing officer issues an order
requiring the payment of disgorgement by a respondent and also
assessing a civil money penalty against that respondent, the Commission
or the hearing officer may order that the amount of disgorgement and of
the civil penalty, together with any funds received pursuant to 15
U.S.C. 7246(b), be used to create a fund for the benefit of investors
who were harmed by the violation.
Dated: April 21, 2005.
By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 05-8484 Filed 4-27-05; 8:45 am]
BILLING CODE 8010-01-P