72566 Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 

1Proposed Amendments to the Rules of Practice 

and Related Provisions, Exchange Act Rel. No. 

51595, 70 FR 22224 (Apr. 28, 2005). 

2Rule 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.’’ 

3See, 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). 

4There are certain circumstances in which notice 

of an action taken by delegated authority will not 

be posted on the Commission’s Web site or 

published in the Federal Register. For example, the 

Commission does not publish a delegated decision 

to grant or deny confidential treatment where the 

requestor has asked for confidential treatment for 

the request itself. 

5See 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). 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Parts 200 and 201 

[Release No. 34–52846; File No. S7–05–05] 

Adoption of Amendments to the Rules 

of Practice and Related Provisions and 

Delegations of Authority of the 

Commission 

AGENCY: Securities and Exchange 

Commission. 

ACTION: Final rule. 

SUMMARY: The Securities and Exchange 

Commission (‘‘Commission’’) is 

amending its Rules of Practice, certain 

related provisions, and its delegations of 

authority to the staff as a result of its 

experience with these rules and to 

correct typographical errors and change 

certain citations. The 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: Effective January 4, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Diane V. White, Office of the General 

Counsel, (202) 551–5150, Securities and 

Exchange Commission, 100 F Street, 

NE., Washington, DC 20549–9010. 

SUPPLEMENTARY INFORMATION: On April 

21, 2005, the Commission proposed 

amendments to the Rules of Practice.1

The Commission proposed amendments 

to 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. 

Additional amendments were proposed 

to correct typographical errors and 

change certain citations to conform to 

the amended rules. The majority of 

these proposals were technical and 

procedural. 

I. Discussion 

The Commission requested comment 

on the proposed amendments from 

interested persons. The Commission 

received no comments in response to its 

requests. The Commission is adopting 

the amendments to the Rules of Practice 

and related provisions, essentially as 

proposed. 

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 Particularly, 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 securities. An issuer 

that is delinquent in its filings often 

does not keep current with the 

Commission the name of a valid agent 

to receive notice of the proceeding. 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 is 

amending 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, with 

confirmation of attempted delivery. 

The Commission also is adopting 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, with confirmation of 

attempted delivery. We requested 

comment as to whether this method 

would provide adequate notice of a 

proceeding. We recognize that the 

Central Registration Depository requires 

that addresses be kept current for only 

two years after a person ceases to be 

associated with a member of a selfregulatory organization. We further 

requested comment as to whether the 

rule should refer explicitly to such a 

two-year period. However, we received 

no comment in response to either 

request. We have determined to adopt 

the amendments to the rule as proposed. 

B. Currently, Rule 430(a) provides 

that any person aggrieved by an action 

made by authority delegated in 

§§ 200.30–1 through 200.30–8 or 

§§ 200.30–11 through 200.30–18 may 

seek review of the action pursuant to 

Rule 430(b). Rule 430(b) now 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 

§ 201.141(b), whichever is earlier.’’ 

Although the current rule permits 

appeals by any aggrieved person of 

action taken by delegated authority, 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 it is possible to know 

when an action is beyond challenge. 

The amendment therefore provides that 

both parties and aggrieved persons may 

seek Commission review of the action 

by filing a written notice of intention to 

petition for review within five days after 

actual notice of the action to that party 

or aggrieved 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 § 201.141(b), whichever is the 

earliest. The Commission requested 

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 also sought 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. Although we 

received no comment in response to this 

request, the Commission intends to 

post, as appropriate, delegated actions 

on its Web site.4 The Commission also 

requested comment as to whether 15 

days after publication would allow 

parties and aggrieved persons sufficient 

time to file a notice.5 Again, we received 

no comment. We have determined to 

adopt the rule as proposed. 

C. Currently, Rule 55, which governs 

the conduct of Equal Access to Justice 

Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 72567 

6See Exchange Act Rel. No. 35833 (June 23, 

1995), 59 SEC Docket 1546, 1631 tbl. III. 

7Language was inadvertently deleted from Rule 

210(b) in an earlier revision of the Rules of Practice. 

This language is now being reinstated. 

Act (‘‘EAJA’’) proceedings before an 

administrative law judge, authorizes the 

law judge considering an application for 

an award of fees and expenses under the 

EAJA, 5 U.S.C. 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).6 However, 

the reference to Rule 8(d) contained in 

EAJA Rule 55 was not changed at that 

time. The amendment replaces the 

reference to Rule 8(d) with a reference 

to Rules 221 and 222(a). 

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 § 201.531. The 

amendment corrects the reference to 

§ 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 amendment 

provides that such a ruling must be 

made within 20 days of the filing of any 

brief in opposition. The amendment 

further states that any brief in 

opposition must be filed within five 

days after service of the motion. 

The Commission has received 

motions purportedly filed pursuant to 

Rule 111(h) that challenge the merits of 

an initial decision. However, Rule 

111(h) has a much more limited 

purpose. Rule 111(h) is therefore 

amended to make clear that motions to 

correct manifest error are properly filed 

under this Rule only if they contest a 

patent misstatement of fact in the initial 

decision. Motions purporting to contest 

the substantive merits of the initial 

decision will be treated as a petition for 

review under Rule 410. 

F. Current Rule 152(d) provides that 

an original and three copies of all 

papers shall be filed. The Commission 

is adopting the rule substantially as 

proposed. The amendment makes 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 nonfacsimile copies. The rule as adopted 

provides that the non-facsimile original 

must be accompanied by a statement of 

the date on which, and the facsimile 

number to which, the party made 

transmission of the facsimile filing. 

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 amendment to Rule 154(c) 

substitutes 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), is amended to refer to the word 

limitation in amended Rule 154(c). 

The amendment to Rule 250(c) sets a 

limitation of 9,800 words for a motion 

for summary disposition and any 

supporting memorandum of points and 

authorities. The limitation excludes 

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 amendment excludes 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 amendment 

allows 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 § 201.612. Section 612 was 

renumbered as § 201.1103, effective 

April 19, 2004. The amendment changes 

the reference accordingly.7

J. Current Rule 411(c) refers to ‘‘any 

brief in opposition to a petition for 

review permitted pursuant to 

§ 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 

amendment deletes 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. Amended Rule 601(a) clarifies 

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 § 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 amendment 

eliminates 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 

amendment makes clear that in such 

cases, hearing officers also have the 

authority to create Fair Funds. 

N. Tables I, II, and III of Subpart D of 

the Commission Rules of Practice have 

been superseded by subsequent 

amendments to the federal securities 

laws and these rules, and are of little 

utility to the public. The amendment 

deletes these tables. 

O. Although not previously proposed 

for comment, Rule 104, which sets the 

business hours of the Commission, is 

amended to reflect the new address of 

the Commission Headquarters office, 

which relocated to 100 F Street, NE., 

Washington, DC 20549 after the above 

amendments were proposed. 

72568 Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 

8 5 U.S.C. 553(b)(3)(A). 

9Nonetheless, the Commission had previously 

determined that it would be useful to publish most 

of these proposed rules for notice and comment 

before adoption. See 5 U.S.C. 603. The Commission 

received no comments in response to its request. 

10 5 U.S.C. 601 et seq. 

11 5 U.S.C. 804(3)(C). 

12 44 U.S.C. 3501 et seq. 

13 15 U.S.C. 77b(b). 

14 15 U.S.C. 78c(f). 

15 15 U.S.C. 80a–2(c). 

16 15 U.S.C. 80b–2(c). 

17 15 U.S.C. 78w(a)(2). 

P. The Commission is also correcting 

existing delegations and making new 

delegations of authority to the staff. 

Title 17 CFR 200.30–7 (Delegation of 

authority to the Secretary of the 

Commission) currently delegates to the 

Commission’s Secretary the authority, 

among other things, to extend the time 

within which to make filings and to 

enlarge the length limitation on those 

filings. The Commission is amending 

§ 200.30–7(a)(4), which currently 

authorizes the Secretary to grant or deny 

extensions of time to make filings in 

administrative proceedings, to clarify 

that the Secretary is authorized to grant 

extensions to parties making filings 

related to the establishment and 

administration of Fair Funds and 

disgorgement plans under part 201, 

subpart F of the Commission’s Rules of 

Practice, § 201.1100 et seq. 

The Commission also is amending 

§ 200.30–7(a)(5) and § 200.30–10(a)(5), 

which currently permit the Secretary or 

the Chief Administrative Law Judge, 

respectively, to authorize the filing of 

briefs exceeding 50 pages ‘‘in 

accordance with Rule 450(c).’’ Because 

Rule 450(c) now sets word-count 

limitations, instead of page limitations, 

for briefs filed with the Commission, the 

delegations are corrected to provide that 

the Secretary or the Chief 

Administrative Law Judge may 

authorize a party to file briefs exceeding 

14,000 words. The Commission also 

amends § 200.30–7(a)(5) to delegate to 

the Secretary the authority to permit the 

filing of motions exceeding 7,000 words 

in length, pursuant to amended Rule 

154(c) of the Commission’s Rules of 

Practice. 

The Commission amends § 200.30–

14(g)(1)(xii), which delegates to the 

General Counsel the authority to 

determine requests for leave to file an 

opposition to a petition for review. This 

delegation is no longer necessary, as the 

Rules of Practice no longer provide for 

briefs in opposition to a petition for 

review. The Commission has enacted a 

new delegation to permit the General 

Counsel to set the effective date of 

sanctions imposed on a party that 

previously were stayed pending appeal 

to the federal courts, once the mandate 

affirming the imposition of sanctions 

has been issued by the court. 

II. Administrative Procedure Act, 

Regulatory Flexibility Act, and 

Paperwork Reduction Act 

The Commission finds, in accordance 

with Section 533(b)(3)(A) of the 

Administrative Procedure Act,8 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.9 The 

Regulatory Flexibility Act10 therefore 

does not apply. Because these rules 

relate to ‘‘agency organization, 

procedure or practice that does not 

substantially affect the rights or 

obligations of non-agency parties,’’ they 

are not subject to the Small Business 

Regulatory Enforcement Fairness Act.11

These rules do not contain any 

collection of information requirements 

as defined by the Paperwork Reduction 

Act of 1995, as amended.12

III. 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 amendments 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 requested data to 

quantify the costs and the value of the 

benefits identified. We received no 

comments in response to this request. 

IV. Effect on Efficiency, Competition, 

and Capital Formation 

Section 2(b) of the Securities Act of 

1933,13 Section 3(f) of the Exchange 

Act,14 Section 2(c) of the Investment 

Company Act of 1940,15 and Section 

202(c) of the Investment Advisers Act of 

1940 16 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 17 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. These 

rules and amendments are intended to 

enhance the transparency and facilitate 

parties’ understanding of the Rules. The 

amendments are also intended to clarify 

existing practice and increase the 

efficiency of Commission enforcement 

and self-regulatory organization 

disciplinary review proceedings. The 

rules and amendments apply to all 

persons involved in administrative 

proceedings before the Commission, and 

therefore the Commission does not 

expect the rules and amendments to 

have an anti-competitive effect. To the 

extent the 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 

amendments in this regard is difficult to 

quantify. We requested comment on the 

possible effects of our rule proposals on 

efficiency, competition, and capital 

formation. We received no comments in 

response to this request. 

V. 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 

17 CFR Part 200 

Administrative practice and 

procedure, Authority delegations 

(Government Agencies). 

17 CFR Part 201 

Administrative practice and 

procedure. 

Text of the Adopted Rules 

■ For the reasons set out in the 

preamble, Title 17, Chapter II of the 

Code of Federal Regulations is amended 

as follows: 

Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 72569 

PART 200—ORGANIZATION; 

CONDUCT AND ETHICS; AND 

INFORMATION AND REQUESTS 

■ 1. The authority citation for part 200, 

subpart A continues to read in part as 

follows: 

Authority: 15 U.S.C. 77s, 77o, 77sss, 78d, 

78d–1, 78d–2, 78w, 78ll(d), 78mm, 79t, 80a–

37, 80b–11, and 7202, unless otherwise 

noted. 

* * * * * 

■ 2. Section 200.30–7 is amended by 

revising paragraphs (a)(4) and (a)(5) to 

read as follows: 

§ 200.30–7 Delegation of authority to 

Secretary of the Commission. 

* * * * * 

(a) * * * 

(4) To grant or deny extensions of 

time within which to file papers with 

the Commission under Rule 161 of the 

Commission’s Rules of Practice, 

§ 201.161 of this chapter, or under part 

201, subpart F of the Commission’s 

Rules pertaining to Fair Fund and 

Disgorgement Plans, §§ 201.1100–

201.1106; 

(5) To permit the filing of briefs with 

the Commission exceeding 14,000 

words in length, pursuant to Rule 450(c) 

of the Commission’s Rule of Practice, 

§ 201.450(c) of this chapter, and to 

permit the filing of motions with the 

Commission in excess of 7,000 words 

pursuant to Rule 154(c) of the 

Commission’s Rules of Practice, 

§ 201.154(c) of this chapter; 

* * * * * 

§ 200.30–10 [Amended] 

■ 3. In § 200.30–10, paragraph (a)(5), 

remove the words ‘‘50 pages’’ and, in 

their place, add the words ‘‘14,000 

words’’. 

■ 4. Section 200.30–14 is amended by 

revising paragraph (g)(1)(xii) to read as 

follows: 

§ 200.30–14 Delegation of authority to the 

General Counsel. 

* * * * * 

(g)(1) * * * 

(xii) To issue an order setting the 

effective date of sanctions that were 

stayed pending appeal to the federal 

courts, upon issuance of the mandate 

affirming the Commission’s order 

imposing those sanctions. 

* * * * * 

PART 201—RULES OF PRACTICE 

■ 5. 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). 

Subpart B—Regulations Pertaining to 

the Equal Access to Justice Act 

§ 201.55 [Amended] 

■ 6. In § 201.55(a), in the third sentence, 

remove the words ‘‘Rule 8(d) of the 

Commission’s Rules of Practice’’ and, in 

their place, add the words ‘‘§ 201.221 

and § 201.222(a)’’. 

■ 7. 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. 

§ 201.102 [Amended] 

■ 8. In § 201.102(e)(3)(iii), in the last 

sentence, remove the cite ‘‘§ 201.531’’

and, in its place, add the cite 

‘‘§ 201.540’’. 

§ 201.104 [Amended] 

■ 9. In § 201.104, remove the words 

‘‘450 Fifth Street, NW., Washington, DC 

20549’’ and, in their place, add the 

words ‘‘100 F Street, NE., Washington, 

DC 20549’’. 

■ 10. Section 201.111 is amended by 

revising paragraph (h) to read as 

follows: 

§ 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. A motion to 

correct is properly filed under this Rule 

only if the basis for the motion is a 

patent misstatement 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; 

* * * * * 

■ 11. 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. 

§ 201.141 Orders and decisions: Service of 

orders instituting proceedings and other 

orders and decisions. 

(a) * * * 

(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 selfregulatory 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. 

* * * * * 

■ 12. Section 201.152 is amended by 

revising paragraph (d) to read as 

follows: 

§ 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 § 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. The 

non-facsimile original must be 

accompanied by a statement of the date 

on which, and the facsimile number to 

which, the party made transmission of 

the facsimile filing. 

* * * * * 

■ 13. Section 201.154 is amended by 

revising paragraph (c) to read as follows: 

§ 201.154 Motions. 

* * * * * 

(c) Length limitation. No motion 

(together with the brief in support of the 

motion), brief in opposition to the 

motion, or reply brief shall 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 

72570 Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 

or brief, together with any 

accompanying brief, that does not 

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 or brief that exceeds these 

page limits must include a certificate by 

the attorney, or an unrepresented party, 

stating that the document complies with 

the length limitation set forth in this 

paragraph and stating the number of 

words in the document. The person 

preparing the certificate may rely on the 

word count of a word-processing 

program to prepare the document. 

■ 14. Section 201.201 is amended by 

revising the first sentence of paragraph 

(b) to read as follows: 

§ 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. * * * 

■ 15. Section 201.210 is amended by: 

■ a. In paragraph (a)(2), removing the 

cite ‘‘§ 201.612’’ and, in its place, 

adding the cite ‘‘§ 201.1103’’; 

■ b. At the end of the introductory text 

of paragraph (b)(1), removing the colon 

and in its place adding a period; and 

■ c. Adding a sentence at the end of the 

introductory text of paragraph (b)(1). 

The addition reads as follows: 

§ 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. 

* * * * * 

■ 16. Section 201.250 is amended by 

revising paragraph (c) to read as follows: 

§ 201.250 Motion for summary disposition. 

* * * * * 

(c) The motion for summary 

disposition, together with any 

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 document. 

■ 17. Section 201.411 is amended by 

revising the first sentence in paragraph 

(c) to read as follows: 

§ 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 

§ 210.410(b). * * * 

* * * * * 

■ 18. Section 201.430 is amended by 

revising paragraph (b)(1) to read as 

follows: 

§ 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 written notice of 

intention to petition for review within 

five days after actual notice of the action 

to that party or aggrieved 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 that party or aggrieved person 

pursuant to § 201.141(b), whichever is 

the earliest. 

* * * * * 

■ 19. Section 201.470 is amended by 

revising the third sentence of paragraph 

(b) to read as follows: 

§ 201.470 Reconsideration. 

* * * * * 

(b) * * * A motion for 

reconsideration shall conform to the 

requirements, including the limitation 

on the numbers of words, provided in 

§ 201.154. * * * 

■ 20. Section 201.601 is amended by 

revising paragraph (a) to read as follows: 

§ 201.601 Prompt payment of 

disgorgement, interest and penalties. 

(a) Timing of payments. Unless 

otherwise provided, funds due pursuant 

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 § 201.360(d)(2). 

* * * * * 

■ 21. Section 201.900 is amended by 

revising the last sentence in paragraph 

(b) to read as follows: 

§ 201.900 Informal Procedures and 

Supplementary Information Concerning 

Adjudicatory Proceedings. 

* * * * * 

(b) * * * In connection with these 

periodic 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. 

* * * * * 

Subpart D [Amended] 

■ 22. 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 

■ 23. 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. 

■ 24. Section 201.1100 is revised to read 

as follows: 

§ 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), 

Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 72571 

be used to create a fund for the benefit 

of investors who were harmed by the 

violation. 

Dated: November 29, 2005. By the Commission. 

Jonathan G. Katz, 

Secretary. 

[FR Doc. 05–23613 Filed 12–2–05; 8:45 am] 

BILLING CODE 8010–01–P