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Rules of Practice
April 2004
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Table of Contents
General Rules
Rule 100. Scope of the Rules of Practice
Rule 101. Definitions
Rule 102. Appearance and Practice Before the Commission
Rule 103. Construction of Rules
Rule 104. Business Hours
Rule 110. Presiding Officer
Rule 111. Hearing Officer: Authority
Rule 112. Hearing Officer: Disqualification and Withdrawal
Rule 120. Ex Parte Communications
Rule 121. Separation of Functions
Rule 140. Commission Orders and Decisions: Signature and Availability
Rule 141. Orders and Decisions: Service of Orders Instituting Proceedings and Other Orders and Decisions
Rule 150. Service of Papers by Parties
Rule 151. Filing of Papers With the Commission: Procedure
Rule 152. Filing of Papers: Form
Rule 153. Filing of Papers: Signature Requirement and Effect
Rule 154. Motions
Rule 155. Default; Motion to Set Aside Default
Rule 160. Time Computation
Rule 161. Extensions of Time, Postponements and Adjournments
Rule 180. Sanctions
Rule 190. Confidential Treatment of Information in Certain Filings
Rule 191. Adjudications Not Required to Be Determined on the Record After Notice and Opportunity for Hearing
Rule 192. Rulemaking: Issuance, Amendment and Repeal of Rules of General Application
Rule 193. Applications by Barred Individuals For Consent to Associate
Initiation of Proceedings and Prehearing Rules
Rule 200. Initiation of Proceedings
Rule 201. Consolidation and Severance of Proceedings
Rule 202. Specification of Procedures by Parties in Certain Proceedings
Rule 210. Parties, Limited Participants and Amici Curiae
Rule 220. Answer to Allegations
Rule 221. Prehearing Conference
Rule 222. Prehearing Submissions
Rule 230. Enforcement and Disciplinary Proceedings: Availability of Documents for Inspection and Copying
Rule 231. Enforcement and Disciplinary Proceedings: Production of Witness Statements
Rule 232. Subpoenas
Rule 233. Depositions Upon Oral Examination
Rule 234. Depositions Upon Written Questions
Rule 235. Introducing Prior Sworn Statements of Witnesses into the Record
Rule 240. Settlement
Rule 250. Motion for Summary Disposition
Rules Regarding Hearings
Rule 300. Hearings
Rule 301. Hearings to Be Public. 51
Rule 302. Record of Hearings
Rule 310. Failure to Appear at Hearings: Default
Rule 320. Evidence: Admissibility
Rule 321. Evidence: Objections and Offers of Proof
Rule 322. Evidence: Confidential Information, Protective Orders
Rule 323. Evidence: Official Notice
Rule 324. Evidence: Stipulations
Rule 325. Evidence: Presentation Under Oath or Affirmation
Rule 326. Evidence: Presentation, Rebuttal and Cross-examination
Rule 340. Proposed Findings, Conclusions and Supporting Briefs
Rule 350. Record in Proceedings Before Hearing Officer; Retention of Documents; Copies
Rule 351. Transmittal of Documents to Secretary; Record Index; Certification
Rule 360. Initial Decision of Hearing Officer
Appeal to the Commission and Commission Review
Rule 400. Interlocutory Review
Rule 401. Consideration of Stays
Rule 410. Appeal of Initial Decisions by Hearing Officers
Rule 411. Commission Consideration of Initial Decisions by Hearing Officers63
Rule 420. Appeal of Determinations by Self-Regulatory Organizations
Rule 421. Commission Consideration of Determinations by Self-Regulatory Organizations
Rule 430. Appeal of Actions Made Pursuant to Delegated Authority
Rule 431. Commission Consideration of Actions Made Pursuant to Delegated Authority
Rule 440. Appeal of Determinations by the Public Company Accounting Oversight Board. 70
Rule 451. Oral Argument Before the Commission
Rule 452. Additional Evidence
Rule 460. Record Before the Commission
Rule 470. Reconsideration
Rule 490. Receipt of Petitions for Judicial Review Pursuant to 28 U.S.C. 2112(a)(1)
Rules Relating to Temporary Orders and Suspensions
Rule 500. Expedited Consideration of Proceedings
Rule 510. Temporary Cease-and-Desist Orders: Application Process
Rule 511. Temporary Cease-and-Desist Orders: Notice; Procedures for Hearing
Rule 512. Temporary Cease-and-Desist Orders: Issuance After Notice and Opportunity for Hearing
Rule 513. Temporary Cease-and-Desist Orders: Issuance Without Prior Notice and Opportunity For Hearing
Rule 514. Temporary Cease-and-Desist Orders: Judicial Review; Duration
Rule 520. Suspension of Registration of Brokers, Dealers, or other Exchange Act-Registered Entities: Application
Rule 521. Suspension of Registration of Brokers, Dealers, or other Exchange Act-Registered Entities: Notice and Opportunity for Hearing on Application
Rule 522. Suspension of Registration of Brokers, Dealers, or other Exchange Act-Registered Entities: Issuance and Review of Order
Rule 524. Suspension of Registrations: Duration
Rule 530. Initial Decision on Permanent Order: Timing for Submitting Proposed Findings and Preparation of Decision
Rule 531. Initial Decision on Permanent Order: Effect on Temporary Order
Rule 540. Appeal and Commission Review of Initial Decision Making a Temporary Order Permanent
Rule 550. Summary Suspensions Pursuant to Exchange Act Section 12(k)(1)(A)
Rules Regarding Disgorgement and Penalty Payments
Rule 600. Interest on Sums Disgorged
Rule 601. Prompt Payment of Disgorgement, Interest and Penalties
Rule 630. Inability to Pay Disgorgement, Interest or Penalties
Text of Form D-A
Rule 900. Informal Procedures and Supplementary Information Concerning Adjudicatory Proceedings
General Rules
Rule 100. Scope of the Rules of Practice.
(a) Unless provided otherwise, these Rules of Practice govern proceedings before the Commission under the statutes that it administers.
(b) These rules do not apply to:
(1) investigations, except where made specifically applicable by the Rules Relating to Investigations, part 203 of this rule; or
(2) actions taken by the duty officer pursuant to delegated authority under 17燙FR?00.43.
(c) The Commission, upon its determination that to do so would serve the interests of justice and not result in prejudice to the parties to the proceeding, may by order direct, in a particular proceeding, that an alternative procedure shall apply or that compliance with an otherwise applicable rule is unnecessary.
Rule 101. Definitions.
(a) For purposes of these Rules of Practice, unless explicitly stated to the contrary:
(1) Commission means the United States Securities and Exchange Commission, or a panel of Commissioners constituting a quorum of the Commission, or a single Commissioner acting as duty officer pursuant to 17 CFR 200.43;
(2) counsel means any attorney representing a party or any other person representing a party pursuant to Rule 102(b);
(3) disciplinary proceeding means an action pursuant to Rule 102(e);
(4) enforcement proceeding means an action, initiated by an order instituting proceedings, held for the purpose of determining whether or not a person is about to violate, has violated, has caused a violation of, or has aided or abetted a violation of any statute or rule administered by the Commission, or whether to impose a sanction as defined in Section 551(10) of the Administrative Procedure Act, 5 U.S.C. 551(10);
(5) hearing officer means an administrative law judge, a panel of Commissioners constituting less than a quorum of the Commission, an individual Commissioner, or any other person duly authorized to preside at a hearing;
(6) interested division means a division or an office assigned primary responsibility by the Commission to participate in a particular proceeding;
(7) order instituting proceedings means an order issued by the Commission commencing a proceeding or an order issued by the Commission to hold a hearing;
(8) party means the interested division, any person named as a respondent in an order instituting proceedings, any applicant named in the caption of any order, persons entitled to notice in a stop order proceeding as set forth in Rule 200(a)(2) or any person seeking Commission review of a decision;
(9) proceeding means any agency process initiated:
(i) by an order instituting proceedings; or
(ii) by the filing, pursuant to Rule 410, of a petition for review of an initial decision by a hearing officer; or
(iii) by the filing, pursuant to Rule 420, of an application for review of a self-regulatory organization determination; or
(iv) by the filing, pursuant to Rule 430, of a notice of intention to file a petition for review of a determination made pursuant to delegated authority; or
(v) by the filing, pursuant to Rule 440, of an application for review of a determination by the Public Company Accounting Oversight Board; or
(vi) by the filing, pursuant to 17 CFR 240.11Aa3-1(f), of an application for review of an action or failure to act in connection with the implementation or operation of any effective transaction reporting plan; or
(vii) by the filing, pursuant to 17 CFR 240.11Aa3-2(e), of an application for review of an action taken or failure to act in connection with the implementation or operation of any effective national market system plan; or
(viii) by the filing, pursuant to Section 11A(b)(5) of the Securities Exchange Act of 1934, of an application for review of a determination of a registered securities information processor;
(10) Secretary means the Secretary of the Commission;
(11) temporary sanction means a temporary cease-and-desist order or a temporary suspension of the registration of a broker, dealer, municipal securities dealer, government securities broker, government securities dealer, or transfer agent pending final determination whether the registration shall be revoked; and
(12) Board means the Public Company Accounting Oversight Board.
(b) [Reserved]
Rule 102. Appearance and Practice Before the Commission.
A person shall not be represented before the Commission or a hearing officer except as stated in paragraphs (a) and (b) of this rule or as otherwise permitted by the Commission or a hearing officer.
(a) Representing Oneself. In any proceeding, an individual may appear on his or her own behalf.
(b) Representing Others. In any proceeding, a person may be represented by an attorney at law admitted to practice before the Supreme Court of the United States or the highest court of any State (as defined in Section 3(a)(16) of the Exchange Act, 15 U.S.C. 78c(a)(16)); a member of a partnership may represent the partnership; a bona fide officer of a corporation, trust or association may represent the corporation, trust or association; and an officer or employee of a state commission or of a department or political subdivision of a state may represent the state commission or the department or political subdivision of the state.
(c) Former Commission Employees. Former employees of the Commission must comply with the restrictions on practice contained in the Commission's Conduct Regulation, Subpart M, 17 CFR 200.735.
(d) Designation of Address for Service; Notice of Appearance; Power of Attorney; Withdrawal.
(1) Representing Oneself. When an individual first makes any filing or otherwise appears on his or her own behalf before the Commission or a hearing officer in a proceeding as defined in Rule 101(a), he or she shall file with the Commission, or otherwise state on the record, and keep current, an address at which any notice or other written communication required to be served upon him or her or furnished to him or her may be sent and a telephone number where he or she may be reached during business hours.
(2) Representing Others. When a person first makes any filing or otherwise appears in a representative capacity before the Commission or a hearing officer in a proceeding as defined in Rule 101(a), that person shall file with the Commission, and keep current, a written notice stating the name of the proceeding; the representative's name, business address and telephone number; and the name and address of the person or persons represented.
(3) Power of Attorney. Any individual appearing or practicing before the Commission in a representative capacity may be required to file a power of attorney with the Commission showing his or her authority to act in such capacity.
(4) Withdrawal. Any person seeking to withdraw his or her appearance in a representative capacity shall file a notice of withdrawal with the Commission or the hearing officer. The notice shall state the name, address, and telephone number of the withdrawing representative; the name, address, and telephone number of the person for whom the appearance was made; and the effective date of the withdrawal. If the person seeking to withdraw knows the name, address, and telephone number of the new representative, or knows that the person for whom the appearance was made intends to represent him- or herself, that information shall be included in the notice. The notice must be served on the parties in accordance with Rule150. The notice shall be filed at least five days before the proposed effective date of the withdrawal.
(e) Suspension and Disbarment.
(1) Generally. The Commission may censure a person or deny, temporarily or permanently, the privilege of appearing or practicing before it in any way to any person who is found by the Commission after notice and opportunity for hearing in the matter:
(i) not to possess the requisite qualifications to represent others; or
(ii) to be lacking in character or integrity or to have engaged in unethical or improper professional conduct; or
(iii) to have willfully violated, or willfully aided and abetted the violation of any provision of the Federal securities laws or the rules and regulations thereunder.
(iv) with respect to persons licensed to practice as accountants, "improper professional conduct" under Rule 102(e)(1)(ii) means:
(A) intentional or knowing conduct, including reckless conduct, that results in a violation of applicable professional standards; or
(B) either of the following two types of negligent conduct:
(1) a single instance of highly unreasonable conduct that results in a violation of applicable professional standards in circumstances in which an accountant knows, or should know, that heightened scrutiny is warranted.
(2) repeated instances of unreasonable conduct, each resulting in a violation of applicable professional standards, that indicate a lack of competence to practice before the Commission.
(2) Certain Professionals and Convicted Persons. Any attorney who has been suspended or disbarred by a court of the United States or of any State; or any person whose license to practice as an accountant, engineer, or other professional or expert has been revoked or suspended in any State; or any person who has been convicted of a felony or a misdemeanor involving moral turpitude shall be forthwith suspended from appearing or practicing before the Commission. A disbarment, suspension, revocation or conviction within the meaning of this rule shall be deemed to have occurred when the disbarring, suspending, revoking or convicting agency or tribunal enters its judgment or order, including a judgment or order on a plea of nolo contendere, regardless of whether an appeal of such judgment or order is pending or could be taken.
(3) Temporary Suspensions. An order of temporary suspension shall become effective upon service on the respondent. No order of temporary suspension shall be entered by the Commission pursuant to paragraph (e)(3)(i) of this rule more than 90 days after the date on which the final judgment or order entered in a judicial or administrative proceeding described in paragraph (e)(3)(i)(A) or (e)(3)(i)(B) has become effective, whether upon completion of review or appeal procedures or because further review or appeal procedures are no longer available.
(i) The Commission, with due regard to the public interest and without preliminary hearing, may, by order, temporarily suspend from appearing or practicing before it any attorney, accountant, engineer, or other professional or expert who has been by name:
(A) permanently enjoined by any court of competent jurisdiction, by reason of his or her misconduct in an action brought by the Commission, from violating or aiding and abetting the violation of any provision of the Federal securities laws or of the rules and regulations thereunder; or
(B) found by any court of competent jurisdiction in an action brought by the Commission to which he or she is a party or found by the Commission in any administrative proceeding to which he or she is a party to have violated (unless the violation was found not to have been willful) or aided andabetted the violation爋f any provision of the Federal securities laws or of the rules and regulations thereunder.
(ii) Any person temporarily suspended from appearing and practicing before the Commission in accordance with paragraph (e)(3)(i) of this rule may, within 30 days after service upon him or her of the order of temporary suspension, petition the Commission to lift the temporary suspension. If no petition has been received by the Commission within 30 days after service of the order, the suspension shall become permanent.
(iii) Within 30 days after the filing of a petition in accordance with paragraph (e)(3)(ii) of this rule, the Commission shall either lift the temporary suspension, or set the matter down for hearing at a time and place designated by the Commission, or both, and, after opportunity for hearing, may censure the petitioner or disqualify the petitioner from appearing or practicing before the Commission for a period of time or permanently. In every case in which the temporary suspension has not been lifted, every hearing held and other action taken pursuant to this paragraph (e)(3) shall be expedited in accordance with Rule 500. If the hearing is held before a hearing officer, the time limits set forth in Rule 531 will govern review of the hearing officer's initial decision.
(iv) In any hearing held on a petition filed in accordance with paragraph (e)(3)(ii) of this rule, the staff of the Commission shall show either that the petitioner has been enjoined as described in paragraph (e)(3)(i)(A) of this rule or that the petitioner has been found to have committed or aided and abetted violations as described in paragraph (e)(3)(i)(B) of this rule and that showing, without more, may be the basis for censure or disqualification. Once that showing has been made, the burden shall be upon the petitioner to show cause why he or she should not be censured or temporarily or permanently disqualified from appearing and practicing before the Commission. In any such hearing, the petitioner may not contest any finding made against him or her or fact admitted by him or her in the judicial oradministrative proceeding upon which the proceeding under this paragraph (e)(3) is predicated. A person who has consented to the entry of a permanent injunction as described in paragraph (e)(3)(i)(A) of this rule without admitting the facts set forth in the complaint shal |
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