[Federal Register Volume 68, Number 221 (Monday, November 17, 2003)]
[Notices]
[Pages 64922-64939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28597]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-48765; File No. PCAOB-2003-06]


Public Company Accounting Oversight Board; Notice of Filing and 
Order Granting Accelerated Approval of Proposed Temporary Hearing Rules 
Relating to Disapproved Registration Applications

November 10, 2003.
    Pursuant to section 107(b) of the Sarbanes-Oxley Act of 2002 (the 
``Act''), notice is hereby given that on October 1, 2003, the Public 
Company Accounting Oversight Board (the ``Board'' or the ``PCAOB'') 
filed with the Securities and Exchange Commission (the ``SEC'' or 
``Commission'') the proposed rules described in Items I and II below, 
which items have been prepared by the Board.

I. Board's Statement of the Terms of Substance of the Proposed Rules

    On September 29, 2003, the Board adopted rules on investigations 
and adjudications (the ``Enforcement Rules''). The current proposal is 
limited to a subset of the Enforcement Rules. The subset consists of 
certain rules that would govern hearings that the Board may hold 
concerning possible disapproval of applications for registration. As to 
the subset (the ``Temporary Hearing Rules''), the Board requests that 
the Commission grant accelerated effectiveness, pursuant to section 
19(b)(2) of the Securities Exchange Act of 1934 (``Exchange Act''). The 
Board seeks accelerated effectiveness of the Temporary Hearing Rules to 
facilitate any registration disapproval hearings that may be necessary 
before the Enforcement Rules are approved. The Board requests that 
effectiveness only on a temporary basis. The Temporary Hearing Rules 
would be superseded by any Enforcement Rules approved by the 
Commission, upon final Commission approval of those rules. The 
Temporary Hearing Rules include 41 rules and nine definitions, all of 
which are designated as temporary by appending a ``T'' to the rule 
number. The text of the Temporary Hearing Rules is set forth below.

Rules of the Board

Section 1. General Provisions

Rule 1001. Definitions of Terms Employed in Rules
    When used in the Rules, unless the context otherwise requires--
    (a)(ix)T Accounting Board Demand. The term ``accounting board 
demand'' means a command to produce documents and/or to appear at a 
certain time and place to give testimony.
    (a)(x)T Accounting Board Request. The term ``accounting board 
request'' means a request to produce documents and/or to appear at a 
certain time and place to give testimony.
    (c)(ii)T Counsel. The term ``counsel'' means an attorney at law 
admitted to practice, and in good standing, before the Supreme Court of 
the United States or the highest court of any state.
    (h)(i)T Hearing Officer. The term ``hearing officer'' means a 
person, other than a Board member or staff of the interested division, 
duly authorized by the Board to preside at a hearing.
    (i)(iv)T Interested Division. The term ``interested division'' 
means a division or office of the Board assigned primary responsibility 
by the Board to participate in a particular proceeding.
    (o)(ii)T Order Instituting Proceedings. The term ``order 
instituting proceedings'' means an order issued by the Board commencing 
a disciplinary proceeding.
    (p)(iii)T Party. The term ``party'' means the interested division, 
any person named as a respondent in an order instituting proceedings or 
notice of a hearing, any applicant named in the caption of any order, 
or any person seeking Board review of a decision.
    (p)(iv)T Person. The term ``person'' means any natural person or 
any business, legal or governmental entity or association.
    (s)(iii)T Secretary. The term ``Secretary'' means the Secretary of 
the Board.
Rule 1002T. Time Computation
    In computing any period of time prescribed in or allowed by these 
Rules or by order of the Board, the day of the act, event, or default 
from which the designated period of time begins to run shall not be 
included. The last day of the period so computed shall be included 
unless it is a Saturday, Sunday, or federal legal holiday, in which 
event the period runs until the end of the next day that is not a 
Saturday, Sunday, or federal legal holiday. Intermediate Saturdays, 
Sundays, and federal legal holidays shall be excluded from the 
computation when the period of time prescribed or allowed is seven days 
or less, not including any additional time allowed by rule or order for 
service by mail. If on the day a filing is to be made, weather or other 
conditions have caused the Secretary's office or other designated 
filing location to close, the filing deadline shall be extended to the 
end of the next day that is neither a Saturday, a Sunday, nor a federal 
legal holiday.

    Note: The Secretary will maintain a list of federal legal 
holidays.


[[Page 64923]]



Section 5. Investigations and Adjudications

Rule 5000. [Reserved]
Part 1--[Reserved]
Part 2--Disciplinary Proceedings
Rule 5200T. Commencement of Disciplinary Proceedings
(a) [Reserved]
(b) Appointment of a Hearing Officer
    As soon as practicable after the Board has issued an order 
instituting proceedings, or after a registration applicant has 
requested a hearing pursuant to Rule 5500(b), the Secretary shall 
assign a hearing officer to preside over the proceeding and shall serve 
the parties with notice of the hearing officer's assignment. Subject to 
Rules 5402 and 5403, the hearing officer shall have the authority to do 
all things necessary and appropriate to discharge his or her duties. 
The powers of the hearing officer include, but are not limited to, the 
following--
    (1) Obtaining a court reporter to administer oaths and 
affirmations;
    (2) Issuing accounting board demands pursuant to Rule 5424;
    (3) Receiving relevant evidence and ruling upon the admission of 
evidence and offers of proof;
    (4) Regulating the course of a proceeding and the conduct of the 
parties and their counsel;
    (5) Holding prehearing and other conferences and requiring the 
attendance at any such conference of at least one representative of 
each party who has authority to negotiate concerning the resolution of 
issues in controversy;
    (6) Recusing himself or herself upon motion made by a party or upon 
his or her own motion;
    (7) Ordering, in his or her discretion, in a proceeding involving 
more than one respondent, that the interested division indicate, on the 
record, at least one day prior to the presentation of any evidence, 
each respondent against whom that evidence will be offered;
    (8) Subject to any limitations set forth elsewhere in these Rules, 
considering and ruling upon all procedural and other motions;
    (9) Preparing an initial decision as provided in Rule 5204;
    (10) Upon notice to all parties, reopening any hearing prior to the 
filing of an initial decision therein, or, if no initial decision is to 
be filed, prior to the time fixed for the filing of final briefs with 
the Board;
    (11) Informing the parties as to the availability of one or more 
alternative means of dispute resolution, and encouraging the use of 
such methods; and
    (12) Scheduling hearing dates, except that a hearing officer may 
not, absent the approval of the Board, change a hearing date set by 
Board order.
(c) Separation of Functions
    The staff of the Division of Enforcement and Investigations may not 
participate or advise in the decision, or in Board review of the 
decision, in any proceeding in which the Division of Enforcement and 
Investigations is the interested division, except as a witness or 
counsel in the proceeding. Any other employee or agent of the Board 
engaged in the performance of investigative or prosecutorial functions 
for the Board in a proceeding may not, in that proceeding or one that 
is factually related, participate or advise in the decision, or in 
Board review of the decision, except as a witness or counsel in the 
proceeding. A hearing officer may not be responsible to or subject to 
the supervision or direction of an employee or agent engaged in the 
performance of investigative or prosecuting functions for the Board.
(d) Consolidation of Proceedings
    By order of the Board or a hearing officer, proceedings involving a 
common question of law or fact may be consolidated for hearing of any 
or all the matters at issue in such proceedings. The Board or the 
hearing officer may make such orders concerning the conduct of such 
proceedings as it deems appropriate to avoid unnecessary cost or delay. 
Consolidation shall not prejudice any rights under these Rules and 
shall not affect the right of any party to raise issues that could have 
been raised if consolidation had not occurred. For purposes of this 
Rule, no distinction is made between joinder and consolidation of 
proceedings.
Rule 5201T. Notification of Commencement of Disciplinary Proceedings
(a) [Reserved]
(b) [Reserved]
(c) Notice of a Hearing on a Registration Application
    In the case of a proceeding pursuant to Rule 5500, the notice of a 
hearing shall state proposed grounds for disapproving the registration 
application.
(d) [Reserved]
Rule 5202T. Record of Disciplinary Proceedings
(a) Contents of the Record
(1) Record of a Disciplinary Proceeding
    A hearing record shall consist of--
    (i) The order instituting proceedings, each notice of hearing and 
any amendments;
    (ii) Each application, supplemental application, motion, submission 
or other paper, and any amendments, motions, objections, and exceptions 
to or regarding them;
    (iii) Each stipulation, transcript of testimony and document or 
other information admitted into evidence;
    (iv) Each written communication accepted by the hearing officer 
pursuant to Rule 5420;
    (v) With respect to a request to disqualify a hearing officer or to 
allow the hearing officer's withdrawal pursuant to Rule 5402, each 
affidavit or transcript of testimony taken and the decision made in 
connection with the request;
    (vi) All motions, briefs and other papers filed on interlocutory 
appeal;
    (vii) Any proposed findings and conclusions;
    (viii) Each written order or notice issued by the hearing officer 
or the Board; and
    (ix) Any other document or item accepted into the record by the 
Board or the hearing officer.
(2) Record on Disapproval of Application for Registration
    The record on a disapproval of an application with respect to which 
the applicant has elected to waive its opportunity for a hearing 
pursuant to Rule 5500 shall consist of--
    (i) The application for registration, and any supplemented 
application;
    (ii) Any additional information provided by the applicant;
    (iii) Any other information obtained by the Board in connection 
with the application;
    (iv) The notice of a hearing and any written order issued by the 
Board; and
    (v) Any other document or item accepted into the record by the 
Board.
(b) Documents Not Admitted
    Any document offered in evidence but excluded, and any document 
marked for identification but not offered as an exhibit, shall not be 
considered a part of the record. The Secretary shall retain any 
documents offered in evidence but excluded until all opportunities for 
Commission and judicial review have been exhausted or waived.

[[Page 64924]]

(c) Substitution of Copies
    A true copy of a document may be substituted for any document in 
the record or any document retained pursuant to paragraph (b) of this 
Rule.
(d) Preparation of Record and Certification of Record Index
    Promptly after the close of a hearing, the hearing officer shall 
transmit to the Secretary an index of any motions, exhibits or any 
other documents submitted to, or accepted into evidence by, the hearing 
officer that have not been previously transmitted to the Secretary, and 
the Secretary shall prepare a record index. Prior to issuance of an 
initial decision, the Secretary shall transmit the record index to the 
hearing officer and serve a copy of the record index on each party. Any 
party may file proposed corrections to the record index with the 
hearing officer within 15 days of service of the record index. The 
hearing officer shall, by order, direct whether any corrections to the 
record index shall be made. The Secretary shall make such corrections, 
if any, and issue a revised record index. The initial decision shall 
include a certification that the record consists of the items set forth 
in the record index or revised record index issued by the Secretary.
(e) Final Transmittal of Record Items to the Secretary
    After the close of a hearing, the hearing officer shall transmit to 
the Secretary originals of exhibits or any other documents submitted 
to, or accepted into evidence by, the hearing officer, and any other 
portions of the record that have not already been transmitted to the 
Secretary. Prior to service of the initial decision by the Secretary, 
the Secretary shall inform the hearing officer if any portions of the 
record are not in the Secretary's custody.
Rule 5203T. Public and Private Hearings
    No hearing shall be public unless ordered by the Board. In any 
proceeding commenced pursuant to Rule 5200(a), the Board shall not 
order that a hearing be public except for good cause shown and with 
consent of the parties.
Rule 5204T. Determinations in Disciplinary Proceedings
(a) [Reserved]
(b) Initial Decision of a Hearing Officer
    Unless the Board directs otherwise, a hearing officer shall prepare 
an initial decision in any proceeding in which the Board directs a 
hearing officer to preside at a hearing. An initial decision shall 
include findings and conclusions, including sanctions, if appropriate, 
and the reasons or basis therefor, as to all the material issues of 
fact, law or discretion presented on the record and such other 
information as the Board may require.

    Note: Unless the Board has directed otherwise, the Board expects 
hearing officers in proceedings pursuant to Rule 5500 to prepare 
initial decisions within 45 days after the deadline for filing post-
hearing briefs or other submissions.

(c) Filing, Service and Publication
    The hearing officer shall file the initial decision with the 
Secretary. The Secretary shall promptly serve the initial decision upon 
the parties. In a public proceeding, the Secretary shall as soon as 
practicable thereafter publish the initial decision, unless the Board 
otherwise directs.
(d) When Final
    (1) An initial decision as to a party shall become the final 
decision of the Board as to that party upon issuance of a notice of 
finality by the Secretary.
    (2) Subject to subparagraph (3) of this paragraph, the Secretary 
shall issue a notice of finality no later than 20 days after the 
lapsing of the time period for filing a petition for review of the 
initial decision.
    (3) The Secretary shall not issue a notice of finality as to any 
party
    (i) Who has filed a timely petition for review; or
    (ii) with respect to whom the Board has ordered review of the 
initial decision pursuant to Rule 5460(b).
Rule 5205T. Settlement of Disciplinary Proceedings Without a 
Determination After Hearing
(a) Availability
    Any firm or person who is notified that a proceeding may or will be 
instituted against him or her, or any firm or person that is a party to 
a proceeding already instituted, may, at any time, propose in writing 
an offer of settlement.
(b) Procedure
    An offer of settlement shall state that it is made pursuant to this 
Rule; shall recite or incorporate as a part of the offer the provisions 
of paragraphs (c)(2) and (3) of this Rule; shall be signed by the 
person making the offer, not by counsel; and shall be submitted to the 
Director of Enforcement and Investigations.
(c) Consideration of Offers of Settlement
    (1) The Director of Enforcement and Investigations shall present an 
offer of settlement to the Board with his or her recommendation, except 
that, if the recommendation is unfavorable, the offer shall not be 
presented to the Board unless the person making the offer so requests.
    (2) By submitting an offer of settlement, the person making the 
offer waives, subject to acceptance of the offer--
    (i) All hearings pursuant to the statutory provisions under which 
the proceeding is to be or has been instituted;
    (ii) the filing of post-hearing briefs or other submissions, 
proposed findings of fact and conclusions of law;
    (iii) proceedings before, and an initial decision by, a hearing 
officer;
    (iv) all post-hearing procedures; and
    (v) judicial review by any court.
    (3) By submitting an offer of settlement the person further 
waives--
    (i) such provisions of the Rules of Board Procedure or other 
requirements of law as may be construed to prevent any member of the 
Board's staff from participating in the preparation of, or advising the 
Board as to, any order, opinion, finding of fact, or conclusion of law 
to be entered pursuant to the offer; and
    (ii) any right to claim bias or prejudgment by the Board based on 
the consideration of or discussions concerning settlement of all or any 
part of the proceeding.
    (4) If the Board rejects the offer of settlement, the person making 
the offer shall be notified of the Board's action and the offer of 
settlement shall be deemed withdrawn. The rejected offer shall not 
constitute a part of the record in any proceeding against the person 
making the offer. Rejection of an offer of settlement does not affect 
the continued validity of waivers pursuant to paragraph (c)(3) of this 
Rule with respect to any discussions concerning the rejected offer of 
settlement.
    (5) Final acceptance of any offer of settlement will occur only 
upon the issuance of findings and an order by the Board.

    Note: In a hearing on disapproval of registration, an offer of 
settlement will be considered and handled by the Director of 
Registration and Inspections in accordance with Rule 5206 as if the 
Director of Registration and Inspections were the Director of 
Enforcement and Investigations.

Rule 5206. [Reserved]
Part 3--[Reserved]
Part 4--Rules of Board Procedure
General
Rule 5400T. Hearings
    Hearings for the purpose of taking evidence shall be held only upon 
order

[[Page 64925]]

of the Board. All hearings shall be conducted in a fair, impartial, 
expeditious and orderly manner.
Rule 5401T. Appearance and Practice Before the Board
    A person shall not be represented before the Board or a hearing 
officer except as stated in paragraphs (a) or (b) of this Rule or as 
otherwise permitted by the Board 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 counsel; 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.
(c) 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 Board or a hearing officer, he or she 
shall file with the Secretary both an electronic and a mailing 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, 
and the individual shall promptly advise the Secretary of changes to 
that information during the course of the proceeding.
(2) Representing Others
    When a person first makes any filing or otherwise appears in a 
representative capacity before the Board or a hearing officer, that 
person shall file with the Secretary, and keep current, a written 
notice stating the name of the proceeding; the representative's name, 
mailing address, electronic address and telephone number; and the name 
and electronic and mailing addresses of the person or persons 
represented; and, if the person is an attorney, a declaration that the 
attorney is 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.
(3) Power of Attorney
    Any individual appearing or practicing before the Board in a 
representative capacity may be required to file a power of attorney 
with the Board showing his or her authority to act in such capacity.
(4) Withdrawal
    Withdrawal by any individual appearing in a representative capacity 
shall be permitted only by order of the Board or the hearing officer. A 
motion seeking leave to withdraw shall state with specificity the 
reasons for such withdrawal. Leave to withdraw shall not be withheld 
absent good cause.
Rule 5402T. Hearing Officer Disqualification and Withdrawal
(a) Motion for Withdrawal
    A party who has a reasonable, good faith basis to believe that a 
hearing officer has a conflict of interest or personal bias, or 
circumstances otherwise exist such that the hearing officer's fairness 
may reasonably be questioned, may make a motion to the hearing officer 
that the hearing officer withdraw, which shall be filed with the 
Secretary. The motion shall be accompanied by an affidavit setting 
forth in detail the facts alleged to constitute grounds for 
disqualification. If the hearing officer finds himself or herself not 
disqualified, he or she shall so rule and shall continue to preside 
over the proceeding. A motion for withdrawal shall be filed within 15 
days after the later of--
    (1) When the party learned of the facts believed to constitute the 
basis for the disqualification; or
    (2) when the party was notified of the assignment of the hearing 
officer.
(b) Appointment of a Replacement Hearing Officer
    Upon withdrawal of a hearing officer, or in the event that a 
hearing officer is incapacitated or is otherwise unable to continue to 
serve after being appointed, the Secretary will appoint a replacement 
hearing officer. To ensure fairness to the parties and expedite 
completion of the proceeding when a replacement hearing officer is 
appointed after a hearing has commenced, the replacement hearing 
officer may recall any witness or may certify familiarity with any part 
or all of the record.
Rule 5403T. Ex Parte Communications
    Except to the extent permitted for the disposition of ex parte 
matters as authorized by law or the Board's Rules--
    (a) The person presiding over an evidentiary hearing may not 
consult a person or party on a fact in issue, unless on notice and with 
opportunity for all parties to participate; and
    (b) neither a party, nor any Board staff that substantially assists 
the interested division on the particular matter, whether before or 
during the hearing, may--
    (1) Communicate with the person presiding over an evidentiary 
hearing on a fact in issue, unless on notice and opportunity for all 
parties to participate; or
    (2) communicate with the Board or any member of the Board on a fact 
in issue, unless on notice and opportunity for all parties to 
participate or under circumstances in which a party excluded from the 
communication has waived the rights described in Rule 5205(c)(3) with 
respect to the matters that are the subject of the communication.
Rule 5404T. Service of Papers by Parties
    In every proceeding, each paper, including each notice of 
appearance, written motion, brief, or other written communication, 
shall be served upon each party in a manner calculated to bring the 
paper to the attention of the party to be served.
Rule 5405T. Filing of Papers With the Board: Procedure
(a) When To File
    All papers required to be served by a party upon any person shall 
be filed with the Board at the time of service or promptly thereafter. 
Papers required to be filed with the Board must be received within the 
time limit, if any, for such filing.
(b) Where To File
    Unless otherwise permitted by the Secretary, filing of papers with 
the Board shall be made by electronically filing them with the 
Secretary.

    Note: When a document has been filed electronically, the 
official record is the electronic recording of the document as 
stored by the Secretary, and the filing party is bound by the 
document as filed. A document filed electronically is deemed filed 
at the date received electronically by the Secretary. Upon request, 
the Secretary may permit regulators granted permission to 
participate on a limited basis (to request a stay), amici curiae, 
nonparties and others to file in paper form. Where practicable, the 
Secretary will scan such a filing into the docket file.

Rule 5406T. Filing of Papers: Form
(a) Specifications
    Papers filed in connection with any proceeding shall--
    (1) Be formatted in a Portable Document Format on pages measuring 
8\1/2\ x 11 inches, except that, upon consent of the Secretary for good 
cause, a document may be filed in paper form;



[[Page 64926]]


    Note: To the extent that the reduction of larger documents would 
render them illegible, the Secretary may consent to the filing of 
such documents on larger paper, in electronic or paper form.


    (2) include at the head of the paper, or on a title page, the name 
of the Board, the title of the proceeding, the names of the parties, 
the subject of the particular paper or pleading, and the file number 
assigned to the proceeding;
    (3) be paginated with margins at least 1 inch wide; and
    (4) be double-spaced in a 12-point font, with single-spaced 
footnotes and single-spaced indented quotations.
(b) Form of Briefs
    All briefs containing more than 10 pages shall include a table of 
contents, an alphabetized table of cases, a table of statutes, and a 
table of other authorities cited, with references to the pages of the 
brief wherein they are cited.
Rule 5407T. Filing of Papers: Signature Requirement and Effect
    Following the issuance of an order instituting proceedings, every 
filing of a party who represents himself or herself shall sign his or 
her individual name and state the date and his or her address and 
telephone number on every filing. A party represented by counsel shall 
be signed by at least one counsel of record in his or her name and 
shall state that counsel's business address and telephone number.

    Note: If practicable, a party's or an attorney's signature 
should be scanned into an electronic document. In any event, 
however, the use of an attorney's electronic mail address, or 
password for the Board's electronic filing system, shall constitute 
the signature of that attorney.

Rule 5408T. Motions
(a) Generally
    Unless made during a hearing or conference, a motion shall be in 
writing, shall state with particularity the grounds therefor, shall set 
forth the relief or order sought, and shall be accompanied by a written 
brief of the points and authorities relied upon. Unless otherwise 
ordered by the Board or the hearing officer, if a motion is properly 
made to the Board concerning a proceeding to which a hearing officer is 
assigned, the proceeding before the hearing officer shall continue 
pending the determination of the motion by the Board. No oral argument 
shall be heard on any motion unless the Board or the hearing officer 
otherwise directs.
(b) Opposing and Reply Briefs
    Except as provided in Rule 5427, and unless otherwise ordered by 
the Board or a hearing officer, a brief in opposition to a motion shall 
be filed within five days after service of the motion. Reply briefs are 
only permitted with leave of the hearing officer.
(c) Length Limitation
    Except as provided in Rule 5427, a brief in support of or 
opposition to a motion shall not exceed 10 pages, exclusive of pages 
containing any table of contents, table of authorities, and/or 
addendum. The hearing officer may grant requests for leave to file 
briefs in excess of 10 pages, upon a showing of good cause.
Rule 5409T. Default and Motions To Set Aside Default
(a) Default
    A party to a proceeding may be deemed to be in default and the 
Board or the hearing officer may determine the proceeding against that 
party upon consideration of the record, including the order instituting 
proceedings or notice of a hearing, the allegations of which may be 
deemed to be true, if that party fails--
    (1) To appear, in person or through a representative, at a hearing 
or conference of which that party has been notified;
    (2) to answer when required to do so by a Board order, to respond 
to a dispositive motion within the time provided, or otherwise to 
defend the proceeding; or
    (3) to cure a deficient filing within the time specified by the 
Board or the hearing officer.
(b) Motion To Set Aside Default
    A motion to set aside a default shall be made within a reasonable 
time, state the reasons for the failure to appear or defend, and 
specify the nature of the proposed defense in the proceeding. In order 
to prevent injustice and on such conditions as may be appropriate, the 
hearing officer, at any time prior to the filing of the initial 
decision, or the Board at any time, may for good cause shown set aside 
a default.
Rule 5410T. Additional Time for Service by Mail
    If service is made by mail, three days shall be added to the 
prescribed period for response.
Rule 5411T. Modifications of Time, Postponements and Adjournments
    Except as otherwise provided by law, the Board, at any time, or the 
hearing officer, at any time prior to the filing of his or her initial 
decision, may, for good cause shown, extend or shorten any time limits 
prescribed by these Rules for the filing of any papers and may, 
consistent with paragraph (b) of this Rule, postpone or adjourn any 
hearing.
Rules 5412.-5419. [Reserved]
Prehearing Rules
Rule 5420T. Stay Requests
(a) Leave To Participate To Request a Stay
    The Board or the hearing officer may grant leave to participate on 
a limited basis only to an authorized representative of the Commission, 
an authorized representative of the United States Department of 
Justice, an authorized representative of a United States Attorney, an 
appropriate state regulatory authority, or an authorized representative 
of any criminal prosecutorial authority of any State or any other 
political subdivision of a State for the purpose of requesting a stay 
during the pendency of a Commission investigation or proceeding, a 
criminal investigation or prosecution, or a state regulatory 
proceeding, arising out of the same or similar facts that are at issue 
in the pending Board or disciplinary proceeding. Motions for leave to 
participate shall be in writing, shall set forth the nature and extent 
of the movant's interest in the proceeding, and, except where good 
cause for late filing is shown, shall be filed not later than 20 days 
prior to the date fixed for the commencement of the hearing. A stay 
granted pursuant to this Rule may be granted for such a period and upon 
such conditions as the Board or the hearing officer deems appropriate.
(b) Stay To Protect Ongoing Commission Investigation
    Upon a showing that a stay requested pursuant to this Rule is 
necessary to protect an ongoing Commission investigation, the motion 
for the stay shall be granted.
(c) Other Stays
    Upon a showing that such a stay is in the public interest or for 
the protection of investors, the motion for the stay shall be favored.
Rule 5421T. Answer to Allegations
(a) When Required
    In its order instituting proceedings, the Board may require any 
party to file an answer to each of the allegations contained therein. 
Even if not so ordered, any party in any proceeding may elect to file 
an answer.
(b) When To File
    Unless additional time is granted by the hearing officer or the 
Board, a party filing an answer as provided in

[[Page 64927]]

paragraph (a) of this Rule shall do so within 20 days after service 
upon the party of an order instituting proceedings pursuant to Rule 
5500. If the order instituting proceedings is amended, the Board or the 
hearing officer may require that an amended answer be filed and, if 
such an answer is required, shall specify a date for the filing 
thereof.
(c) Contents of Answer and Effect of Failure To Deny
    Unless otherwise directed by the hearing officer or the Board, an 
answer shall specifically admit, deny, or state that the party does not 
have, and is unable to obtain, sufficient information to admit or deny 
each allegation in the order instituting proceedings. When a party 
intends in good faith to deny only a part of an allegation, the party 
shall specify so much of it as is true and shall deny only the 
remainder. A statement of a lack of information shall have the effect 
of a denial. A defense of res judicata, statute of limitations or any 
other matter constituting an affirmative defense shall be asserted in 
the answer. Any allegation not denied shall be deemed admitted.
Rule 5422T. Availability of Documents for Inspection and Copying
(a) Documents To Be Available for Inspection and Copying
(1) [Reserved]
(2) [Reserved]
(3) Proceedings Commenced Pursuant to Rule 5500
    Unless otherwise provided by this Rule, or by order of the Board or 
the hearing officer, in proceedings pursuant to Rule 5500, the Division 
of Registration and Inspections shall make available for inspection and 
copying by the applicant documents obtained by that division in 
connection with the registration application prior to the notice of 
hearing, except that the Division need not produce any documents 
described in subparagraph (b) that it does not intend to introduce as 
evidence.
(b) Documents That May Be Withheld
    (1) The interested division may decline to make available for 
inspection and copying--
    (i) Any document prepared by a member of the Board or of the 
Board's staff that has not been disclosed to any person other than 
Board members, Board staff, or persons retained by the Board or Board 
staff to provide services in connection with the investigation, 
disciplinary proceeding, or hearing on disapproval of registration;
    (ii) any other document that is privileged, including any other 
document protected by the attorney work product doctrine;
    (iii) any document that would disclose the identity of a 
confidential source; and
    (iv) any other document that the staff identifies for the hearing 
officer's consideration as to whether the document may be withheld as 
not relevant to the subject matter of the proceeding or otherwise for 
good cause shown.
    (2) Nothing in this paragraph (b), or in paragraph (a)(2) above, 
authorizes the interested division in connection with a disciplinary 
proceeding or hearing on disapproval of registration to withhold 
documents that contain material exculpatory evidence.
(c) Procedures Concerning Withheld Documents
    (1) The interested division shall, at the time it makes documents 
available to a respondent under this rule, provide the respondent with 
a log of documents withheld pursuant to paragraph (b)(1)(ii) of this 
Rule. The log shall provide the same information that a person would be 
required to supply to the Board under Rule 5106 in connection with a 
privilege assertion. On a motion by any respondent, a hearing officer 
may, in his or her discretion, require the interested division to 
submit any document listed on the log for inspection by the hearing 
officer in camera. A hearing officer may order that any such document 
be made available to a respondent for inspection and copying only if 
the hearing officer determines that the document is not a document 
described in paragraph (b)(1)(ii).
    (2) The interested division shall, at the time it makes documents 
available to a respondent under this rule, provide the hearing officer 
and each respondent with a list of documents withheld pursuant to 
paragraph (b)(1)(iii) or (b)(1)(iv) of this Rule and a brief 
description of the reason for withholding each document. The list 
provided to the respondent may be redacted as necessary to protect 
interests related to the interested division's reason for withholding 
the document. The hearing officer may require the interested division 
to submit any such document for inspection by the hearing officer in 
camera. The hearing officer may order that any such document be made 
available to the respondent for inspection and copying only if the 
hearing officer determines that--
    (i) With respect to any document withheld pursuant to paragraph 
(b)(1)(iii)--
    (A) producing the document would not have the effect of identifying 
a confidential source; or
    (B) the document contains material, exculpatory evidence, provided, 
however, that to the extent such evidence can be disclosed without 
disclosing the identity of a confidential source, such identity shall 
not be disclosed.
    (ii) with respect to any document withheld pursuant to paragraph 
(b)(1)(iv)--
    (A) the document is relevant to the subject matter of the 
proceeding and no good cause exists for withholding it; or
    (B) the document contains material, exculpatory evidence.
(d) Timing of Inspection and Copying
    Unless otherwise ordered by the Board or the hearing officer, the 
interested division shall make documents available for inspection and 
copying to any respondent who is not in default under Rule 5409 no 
later than 14 days after the institution of proceedings pursuant to 
Rule 5500.
(e) Place of Inspection and Copying
    Documents subject to inspection and copying pursuant to this Rule 
shall be made available to a party for inspection and copying at the 
Board office where they are ordinarily maintained, or at such other 
place as the parties, in writing, may agree. A party shall not be given 
custody of the documents or leave to remove the documents from the 
Board's offices pursuant to the requirements of this Rule other than by 
written agreement of the interested division. Such agreement shall 
specify the documents subject to the agreement, the date they shall be 
returned and such other terms or conditions as are appropriate to 
provide for the safekeeping of the documents.
(f) Copying Costs and Procedures
    A party may obtain a photocopy of any documents made available for 
inspection. The party shall be responsible for the cost of 
photocopying. The respondent shall be given access to the documents at 
the Board's offices or such other place as the parties may agree during 
normal business hours for copying of documents at the respondent's 
expense.
(g) Failure To Make Documents Available--Harmless Error
    In the event that a document required to be made available to a 
party pursuant to this Rule is not made available by the

[[Page 64928]]

interested division, no rehearing or redecision of a proceeding already 
heard or decided shall be required, unless the party shall establish 
that the failure to make the document available was not harmless error.

    Note: The interested division's obligation under this Rule 
relates to documents obtained by that division. Documents located 
only in the files of other divisions or offices are beyond the scope 
of the Rule, except that documents located in the files of other 
divisions and that the interested division intends to introduce as 
evidence shall, for purposes of this Rule, be treated as if they 
have been obtained by the interested division and must therefore be 
made available under this Rule.

Rule 5423T. Production of Witness Statements
(a) Availability
    Upon motion by any respondent in a disciplinary proceeding, the 
hearing officer may order that the interested division produce for 
inspection and copying any statement of any person called or to be 
called as a witness by the division that pertains, or is expected to 
pertain, to his or her direct testimony and that would be required to 
be produced pursuant to the Jencks Act, 18 U.S.C. 3500, if the Board 
were a governmental entity. Such production shall be made at a time and 
place fixed by the hearing officer and shall be made available to any 
party, provided, however, that the production shall be made under 
conditions intended to preserve the items to be inspected or copied.
(b) Failure To Produce--Harmless Error
    In the event that a statement required to be made available for 
inspection and copying by a respondent is not turned over by the 
interested division, no rehearing or redecision of a proceeding already 
heard or decided shall be required unless the respondent establishes 
that the failure to turn over the statement was not harmless error.
(c) Definition of Statement
    For purposes of this Rule, the term ``statement'' shall have the 
meaning set forth in 18 U.S.C. 3500(e).
Rule 5424T. Accounting Board Demands and Commission Subpoenas
(a) Accounting Board Demands and Requests
    In connection with any hearing ordered by the Board, a party may 
request the issuance of an accounting board demand of a registered 
public accounting firm or an associated person of such a firm, or an 
accounting board request of any other person. Such a demand or request 
may call for the attendance and testimony of a witness at the 
designated time and place of the hearing or for the production of 
documentary or other tangible evidence returnable at any designated 
time or place. Unless made on the record at a hearing, an application 
for issuance of such a demand or request shall be made in writing and 
served on each party. A party whose application for such a demand or 
request has been denied or modified may not submit any other 
application seeking substantially the same testimony or other evidence 
specified in the denied application or excluded from an otherwise 
granted application.
(1) Unavailability of Hearing Officer
    In the event that the hearing officer assigned to a proceeding is 
unavailable, any member of the Board, or other person designated by the 
Board for this purpose, may grant an application for the issuance of an 
accounting board demand or request. A party seeking such issuance may 
submit the application to the Secretary, who shall direct it to a 
person authorized to grant the request, deny the request, or grant the 
request with modifications.
(2) Signing May Be Delegated
    A hearing officer may authorize issuance of an accounting board 
demand, or an accounting board request, and may delegate the manual 
signing of the demand or request to any other person.
(3) Standards for Issuance
    Where it appears that an application for an accounting board demand 
or request is reasonable in scope and is reasonably calculated to 
encompass, or lead to the discovery of, admissible evidence, the 
application shall be granted. If it appears that the accounting board 
demand or request sought may be unreasonable, oppressive, excessive in 
scope, unduly burdensome, designed to seek irrelevant information, or 
sought for the purpose of harassment or delay, the application shall be 
denied. The hearing officer or other person ruling on the application 
may, in his or her discretion, as a condition precedent to the issuance 
of the demand or request, require the party seeking the demand or 
request to show the general relevance and reasonable scope of the 
testimony or other evidence sought. After consideration of all the 
circumstances, the hearing officer or other person ruling on the 
application may grant the application upon such conditions or with such 
modifications as fairness requires. In making the determination, the 
hearing officer or other person ruling on the application may inquire 
of the parties whether they will stipulate to the facts sought to be 
proved.

    Note: Whenever possible, the parties should explore the extent 
to which stipulations of fact may obviate the need for issuance of 
accounting board demands and requests to non-parties, and the 
hearing officer or other person ruling on an application for 
issuance of an accounting board demand or request should encourage 
the parties to reach such stipulations when possible.

(4) Witness Fees
    A witness, other than a party, who is summoned to a Board 
proceeding pursuant to an accounting board demand, or an accounting 
board request, or who is deposed pursuant to Rule 5425, shall be paid 
his or her reasonable expenses by the party at whose instance the 
witness appears.
Rule 5425T. Depositions To Preserve Testimony for Hearing
(a) Procedure
    Any party desiring to take the testimony of a witness by deposition 
shall make a written motion setting forth the reasons why such 
deposition should be taken including the specific reasons why the party 
believes the witness will be unable to attend or testify at the 
hearing; the name and address of the prospective witness; the matters 
concerning which the prospective witness is expected to be questioned; 
and the proposed time and place for the taking of the deposition.

    Note: Depositions under the Rules of Board Procedure are used 
only to preserve testimony of a witness who would be unlikely to be 
able to attend the hearing. They are not permitted for purposes of 
discovery.

(b) Required Finding When Ordering a Deposition
    In the discretion of the Board or the hearing officer, an order for 
deposition may be issued upon a finding that the prospective witness 
will likely give testimony material to the proceeding, that it is 
likely the prospective witness will be unable to attend or testify at 
the hearing because of age, sickness, infirmity, imprisonment or other 
disability, or otherwise unavailable, and that the taking of a 
deposition will serve the interests of justice.
(c) Procedure at Depositions
    A witness whose testimony is taken by deposition shall be sworn or 
shall affirm before any questions are put to him or her. Examination 
and cross-examination of deponents may proceed

[[Page 64929]]

as permitted at a hearing. The witness being deposed may have counsel 
present during the deposition.
(d) Objections to Questions or Evidence
    Objections to questions or evidence shall be in short form, stating 
the grounds of objection relied upon. Objections to questions or 
evidence shall be noted in the transcript, but no person other than the 
hearing officer shall have the power to decide on the competency, 
materiality or relevance of evidence. Failure to object to questions or 
evidence during the deposition shall not be deemed a waiver unless the 
ground of the objection is one that might have been obviated or removed 
if presented at that time.
(e) Filing of Depositions
    The questions propounded and all answers or objections shall be 
recorded or transcribed verbatim, and a transcript prepared by the 
deposition officer, or under his or her direction. The transcript shall 
be subscribed by the witness and certified by the deposition officer. 
The original deposition and exhibits shall be filed with the Secretary. 
A copy of the deposition shall be available to the deponent and each 
party for purchase at prescribed rates.
Rule 5426T. Prior Sworn Statements of Witnesses in Lieu of Live 
Testimony
    At a hearing, any person wishing to introduce a prior, sworn 
statement of a nonparty witness otherwise admissible in the proceeding, 
in lieu of live testimony may make a motion setting forth the reasons 
therefor. If only part of a statement is offered in evidence, the 
hearing officer may require that all relevant portions of the statement 
be introduced. If all of a statement is offered in evidence, the 
hearing officer may require that portions not relevant to the 
proceeding be excluded. A motion to introduce a prior sworn statement 
in lieu of live testimony may be granted if--
    (a) The witness is dead;
    (b) the witness is out of the United States, unless it appears that 
the absence of the witness was procured by the party offering the prior 
sworn statement;
    (c) the witness is unable to attend or testify because of age, 
sickness, infirmity, imprisonment or other disability;
    (d) the party offering the prior sworn statement has been unable to 
procure the attendance of the witness by accounting board demand; or,
    (e) in the discretion of the Board or the hearing officer, it would 
be desirable, in the interests of justice, to allow the prior sworn 
statement to be used. In making this determination, due regard shall be 
given to the presumption that witnesses will testify orally in an open 
hearing. If the parties have stipulated to accept a prior sworn 
statement in lieu of live testimony, consideration shall also be given 
to the convenience of the parties in avoiding unnecessary expense.
Rules 5427.-5439. [Reserved]
Conduct of Hearings
Rule 5440T. Record of Hearings
(a) Recordation
    All hearings shall be recorded and a written transcript thereof 
shall be prepared.
(b) Availability of a Transcript
    Transcripts of public hearings shall be available for purchase at 
prescribed rates. Transcripts of nonpublic proceedings shall be 
available for purchase only by parties, provided, however, that any 
person compelled to testify at a hearing may purchase a copy of that 
person's own testimony.
(c) Transcript Correction
    Prior to the filing of post-hearing briefs or other submissions, or 
within such earlier time as directed by the Board or the hearing 
officer, a party or witness may make a motion to correct the 
transcript. Proposed corrections of the transcript may be submitted to 
the hearing officer by stipulation or by motion. Upon notice to all 
parties to the proceeding, the hearing officer may, by order, specify 
corrections to the transcript.
Rule 5441T. Evidence: Admissibility
    The Board or the hearing officer may receive relevant evidence and 
shall exclude all evidence that is irrelevant, immaterial or unduly 
repetitious.
Rule 5442T. Evidence: Objections and Offers of Proof
(a) Objections
    Objections to the admission or exclusion of evidence must be made 
on the record and shall be in short form, stating the grounds relied 
upon. Exceptions to any ruling thereon by the hearing officer need not 
be noted at the time of the ruling. Such exceptions will be deemed 
waived on appeal to the Board, however, unless raised--
    (1) pursuant to interlocutory review in accordance with Rule 5461;
    (2) in a proposed finding or conclusion filed pursuant to Rule 
5445; or
    (3) in a petition for Board review of an initial decision filed in 
accordance with Rule 5460.
(b) Offers of Proof
    Whenever evidence is excluded from the record, the party offering 
such evidence may make an offer of proof, which shall be included in 
the record. Excluded material shall be retained pursuant to Rule 
5202(b).
Rule 5443T. Evidence: Presentation Under Oath or Affirmation
    A witness at a hearing for the purpose of taking evidence shall 
testify under oath or affirmation.
Rule 5444T. Evidence: Presentation, Rebuttal and Cross-examination
    In any proceeding, a party may present its case or defense by oral 
or documentary evidence, submit rebuttal evidence, and conduct such 
cross-examination as, in the discretion of the Board or the hearing 
officer, may be required for a full and true disclosure of the facts. 
The scope and form of evidence, rebuttal evidence, if any, and cross-
examination, if any, shall be determined by the Board or the hearing 
officer in each proceeding.
Rule 5445T. Post-Hearing Briefs and Other Submissions
    (a) At the end of the hearing in any proceeding instituted pursuant 
to Rule 5200(a)(1), Rule 5200(a)(2), or Rule 5500 in which an initial 
decision is to be issued, the hearing officer shall, by order, after 
consultation with the parties, prescribe the period within which post-
hearing briefs or other submissions are to be filed. Unless the hearing 
officer, for good cause shown, permits a different period and sets 
forth in the order the reasons why the different period is necessary--
    (i) the party or parties directed to file first shall make its or 
their initial filing within 30 days of the end of the hearing; and
    (ii) the total period within which all such filings and any 
opposition and reply submissions are to be filed shall be no longer 
than 90 days after the end of the hearing.
Rules 5446.-5459. [Reserved]
Appeals to the Board
Rule 5460T. Board Review of Determinations of Hearing Officers
(a) Petition for Review of Initial Decision by Hearing Officers
    Any party to a hearing may obtain Board review of an initial 
decision by filing a petition for review that--
    (1) sets forth specific findings and conclusions of the initial 
decision as to which exception is taken, together with the supporting 
reasons for each exception; and

[[Page 64930]]

    (2) is filed, in a proceeding instituted pursuant to Rule 5500, 
within 30 days after service of the initial decision on the petitioner 
or within 10 days after the filing of a petition for review by another 
party, whichever is later.
(b) Review on Board's Initiative
    The Board may, on its own initiative, order review of any initial 
decision, or a portion of any initial decision, at any time before the 
initial decision becomes final pursuant to Rule 5204(d).
(c) De Novo Review
    Based on a petition for review, or on its own initiative, the Board 
may affirm, reverse, modify, set aside or remand for further 
proceedings, in whole or in part, an initial decision by a hearing 
officer and may make any findings or conclusions that in its judgment 
are proper based on the record.
(d) Limitations on Matters Reviewed
    Review by the Board of an initial decision shall be limited to the 
issues specified in the petition for review or the issues, if any, 
specified in the briefing schedule order issued pursuant to Rule 
5462(a). On notice to all parties, however, the Board may, at any time 
prior to issuance of its decision, raise and determine any other 
matters that it deems material, with opportunity for oral or written 
argument thereon by the parties.
(e) Summary Affirmance
    The Board may summarily affirm an initial decision based upon the 
petition for review and any response thereto, without further briefing, 
if it finds that no issue raised in the petition for review warrants 
further consideration by the Board.
Rule 5461T. Interlocutory Review
(a) Availability
    The Board will not review a hearing officer's ruling prior to its 
consideration of the entire proceeding in the absence of extraordinary 
circumstances. The Board may decline to consider a ruling certified by 
a hearing officer pursuant to paragraph (c) of this Rule if it 
determines that interlocutory review is not warranted or appropriate 
under the circumstances. The Board may, at any time, on its own motion, 
direct that any matter be submitted to it for review.
(b) Certification Process
    A ruling submitted to the Board for interlocutory review shall be 
certified in writing by the hearing officer as appropriate for 
interlocutory review and shall specify the basis for certification. The 
hearing officer shall certify a ruling only if--
    (1) The ruling would compel testimony of Board members, officers or 
employees or the production of documentary evidence in their custody; 
or
    (2) upon application by a party, within five days of the hearing 
officer's ruling, the hearing officer is of the opinion that--
    (i) the ruling involves a controlling question of law as to which 
there is substantial ground for difference of opinion; and
    (ii) an immediate review of the order may materially advance the 
completion of the proceeding.
(c) Proceedings Not Stayed
    The filing of an application for interlocutory review or the grant 
of interlocutory review shall not stay proceedings before the hearing 
officer unless he or she, or the Board, shall so order. The Board will 
not consider the motion for a stay unless the motion has first been 
made to the hearing officer.
Rule 5462T. Briefs Filed With the Board
(a) Briefing Schedule Order
    Upon a timely and valid petition for review, or upon its own timely 
motion to review an initial decision, other than review ordered 
pursuant to Rule 5469, the Board shall issue a briefing schedule order 
directing the parties to file opening briefs and specifying particular 
issues, if any, as to which briefing should be limited or directed. 
Unless otherwise provided, opening briefs shall be filed within 40 days 
of the date of the briefing schedule order. Opposition briefs shall be 
filed within 30 days after the date opening briefs are due. Reply 
briefs may be filed within 14 days after the date opposition briefs are 
due. No briefs in addition to those specified in the briefing schedule 
order may be filed except with leave of the Board. The briefing 
schedule order shall be issued--
    (1) At the time the Board orders review on its own initiative 
pursuant to Rule 5460(b), or orders interlocutory review on its own 
motion pursuant to Rule 5460; or
    (2) within 21 days, or such longer time as provided by the Board, 
after--
    (i) the last day permitted for filing a petition for review 
pursuant to Rule 5204(d);
    (ii) certification of a ruling for interlocutory review pursuant to 
Rule 5461(c).
(b) Contents of Briefs
    Briefs shall be confined to the particular matters at issue. Each 
exception to the findings or conclusions being reviewed shall be stated 
succinctly. Exceptions shall be supported by citation to the relevant 
portions of the record, including references to the specific pages 
relied upon, and by concise argument including citation of such 
statutes, decisions and other authorities as may be relevant. If the 
exception relates to the admission or exclusion of evidence, the 
substance of the evidence admitted or excluded shall be set forth in 
the brief, in an appendix thereto, or by citation to the record. Reply 
briefs shall be confined to matters in opposition briefs of other 
parties.
(c) Length Limitation
    Opening and opposition briefs shall not exceed 30 pages and reply 
briefs shall not exceed 15 pages, exclusive of pages containing the 
table of contents, table of authorities, and any addendum, except with 
leave of the Board.
Rule 5463T. Oral Argument Before the Board
(a) Availability
    The Board, on its own motion or the motion of a party, may order 
oral argument with respect to any matter. Motions for oral argument 
with respect to whether to affirm all or part of an initial decision by 
a hearing officer shall be granted unless exceptional circumstances 
make oral argument impractical or inadvisable. The Board will consider 
appeals, motions and other matters properly before it on the basis of 
the papers filed by the parties without oral argument unless the Board 
determines that the presentation of facts and legal arguments in the 
briefs and record and the decisional process would be significantly 
aided by oral argument.
(b) Procedure
    Requests for oral argument shall be made by separate motion 
accompanying the initial brief on the merits. The Board shall issue an 
order as to whether oral argument is to be heard, and if so, the time 
and place therefor. The grant or denial of a motion for oral argument 
shall be made promptly after the filing of the last brief called for by 
the briefing schedule. If oral argument is granted, the time fixed for 
oral argument shall be changed only by written order of the Board, for 
good cause shown. The order shall state at whose request the change is 
made and the reasons for any such change.
(c) Time Allowed
    Unless the Board orders otherwise, not more than one half-hour per 
side will be allowed for oral argument. The

[[Page 64931]]

Board may, in its discretion, determine that several persons have a 
common interest, and that the interests represented will be considered 
a single side for purposes of allotting time for oral argument. Time 
will be divided equally among persons on a single side, provided, 
however, that by mutual agreement they may reallocate their time among 
themselves. A request for additional time must be made by motion filed 
reasonably in advance of the date fixed for argument.

    Note: The term ``side'' is used in this Rule to indicate that 
the time allowed is afforded to opposing interests rather than to 
individual parties. If multiple parties have a common interest, they 
may constitute only a single side.

(d) Participation of Board Members
    A member of the Board who was not present at the oral argument may 
participate in the decision of the proceeding, provided that the member 
has reviewed the transcript of such argument prior to such 
participation. The decision shall state whether the required review was 
made.
Rule 5464T. Additional Evidence
    Upon its own motion or the motion of a party, the Board may allow 
the submission of additional evidence. A party may file a motion for 
leave to adduce additional evidence at any time prior to issuance of a 
decision by the Board. Such motion shall show with particularity that 
such additional evidence is material and that there were reasonable 
grounds for failure to adduce such evidence previously. Any other party 
may file a response to the motion within 5 days after the motion is 
filed, or such longer time as the Board may allow. The Board may accept 
or hear additional evidence, or it may remand or refer the proceeding 
to a hearing officer for the taking of additional evidence, as 
appropriate.
Rule 5465T. Record Before the Board
    The Board shall determine each matter on the basis of the record.
(a) Contents of the Record
    In proceedings for final decision before the Board, the record 
shall consist of--
    (1) All items part of the hearing record below in accordance with 
Rule 5202(a);
    (2) any petitions for review, cross-petitions or oppositions; and
    (3) all briefs, motions, submissions and other papers filed on 
appeal or review.
(b) Transmittal of Record to Board
    Within 14 days after the last date set for filing briefs or such 
later date as the Board directs, the Secretary shall transmit the 
record to the Board.
(c) Review of Documents Not Admitted
    Any document offered in evidence but excluded by the hearing 
officer or the Board and any document marked for identification but not 
offered as an exhibit shall not be considered a part of the record 
before the Board on appeal but shall be transmitted to the Board by the 
Secretary if so requested by the Board. In the event that the Board 
does not request the document, the Secretary shall retain the document 
not admitted into the record until the later of--
    (1) The date upon which the Board's order becomes final, or
    (2) the conclusion of any Commission and judicial review of that 
order.
Rule 5466T. Reconsideration
(a) Scope of Rule
    A party may file a motion for reconsideration of a final order 
issued by the Board.
(b) Procedure
    A motion for reconsideration shall be filed within 10 days after 
service of the order complained of on each party, or within such time 
as the Board may prescribe upon motion of the person seeking 
reconsideration, if made within the foregoing 10-day period. The motion 
for reconsideration shall briefly and specifically state the matters of 
record alleged to have been erroneously decided, the grounds relied 
upon, and the relief sought. Except with permission of the Board, a 
motion for reconsideration shall not exceed 15 pages. No responses to a 
motion for reconsideration shall be filed unless requested by the 
Board.
Rule 5467.-5499. [Reserved]
Part 5--Hearings on Disapproval of Registration Applications
Rule 5500T. Commencement of Hearing on Disapproval of a Registration 
Application
    The Board may commence a proceeding to determine whether to approve 
or disapprove a public accounting firm's application for registration 
when, based on review of an application for registration as a 
registered public accounting firm--
    (a) The Board determines, pursuant to Rule 2106(b)(2)(ii), to 
provide the applicant with written notice of a hearing to determine 
whether to approve or disapprove the application; and
    (b) within such period, as the Board permits, after the date of 
service of a notice of a hearing whether to approve or disapprove an 
application for registration pursuant to Rule 2106(b)(2)(ii), the 
public accounting firm served with such notice files with the Secretary 
a written request for a hearing date and a notice of appearance 
pursuant to Rule 5401(c), and includes with the request--
    (1) A statement that the public accounting firm has elected not to 
treat the notice as a written notice of disapproval for purposes of 
Section 102(c) of the Act; and
    (2) a statement describing with specificity why the public 
accounting firm believes that the Board should not issue a written 
notice of disapproval.
Rule 5501T. Procedures for a Hearing on Disapproval of a Registration 
Application
    Proceedings instituted pursuant to Rule 5500 shall be subject to 
procedures as described in Parts 2 and 4 of Section 5 of the Board's 
Rules.

II. Board's Statement of the Purpose of, and Statutory Basis for, the 
Proposed Rules

    In its filing with the Commission, the Board included statements 
concerning the purpose of, and basis for, the proposed rules and 
discussed any comments it received on the proposed rules. The text of 
these statements may be examined in the Commission's Public Reference 
Room and at the principal office of the PCAOB. The Board has prepared 
summaries, set forth in sections A, B and C below, of the most 
significant aspects of such statements as they relate to the proposed 
Temporary Hearing Rules.

A. Board's Statement of the Purpose of, and Statutory Basis for, the 
Proposed Rules

(a) Purpose
    Section 102 of the Act prohibits accounting firms that are not 
registered with the Board from preparing or issuing, or playing a 
substantial role in the preparation or furnishing of, an audit report 
with respect to any issuer. Under Board rules previously approved by 
the Commission, the Board will not disapprove an application for 
registration without first giving the applicant an opportunity for a 
hearing. The purpose of the proposed temporary rules is to supply fair 
procedures and rules to govern the conduct of any such hearing. The 
proposed temporary rules consist of 41 rules and nine definitions. Each 
of the rules and definitions is discussed below.

[[Page 64932]]

Rule 1001--Definitions
    Rule 1001(a)(ix)T defines ``accounting board demand'' as a command 
to produce documents and/or to appear at a certain time and place to 
give testimony. The rules use this term only to identify demands made 
upon registered public accounting firms and associated persons of such 
firms. Under the Act, the Board has authority to require those firms 
and persons to provide any testimony or documents sought by the Board 
in furtherance of its responsibilities under the Act, and including in 
particular any testimony or documents that the Board considers relevant 
to an investigation.
    Rule 1001(a)(x)T defines ``accounting board request'' as a request 
to produce documents and/or to appear at a certain time and place to 
give testimony. The rules use this term to distinguish the Board's 
efforts to obtain documents and testimony from persons other than 
registered public accounting firms and their associated persons.
    Rule 1001(c)(ii)T defines ``counsel'' as an attorney at law 
admitted to practice, and in good standing, before the Supreme Court of 
the United States or the highest court of any state.
    Rule 1001(h)(i)T defines ``hearing officer'' to mean any person, 
other than a Board member or staff of the interested division, duly 
authorized by the Board to preside at a hearing.
    Rule 1001(i)(iv)T defines ``interested division'' as a division or 
office of the Board assigned primary responsibility by the Board to 
participate in a particular proceeding. As a general matter, the 
interested division in a disciplinary proceeding will be the Division 
of Enforcement and Investigations, and the interested division in a 
hearing on disapproval of a registration application will be the 
Division of Registration and Inspections. The definition is adapted 
from Rule 101(a)(6) of the Commission's Rules of Practice.
    Rule 1001(o)(ii)T defines ``order instituting proceedings'' as an 
order issued by the Board commencing a disciplinary proceeding.
    Rule 1001(p)(iii)T defines ``party'' as the interested division, 
any person named as a respondent in an order instituting proceedings or 
notice of a hearing, any applicant named in the caption of any order, 
or any person seeking Board review of a decision.
    Rule 1001(p)(iv)T defines ``person'' as any natural person or any 
business, legal or governmental entity or association.
    Rule 1001(s)(iii)T defines ``Secretary'' as the Secretary of the 
Board.
Rule 1002T--Time Computation
    Rule 1002T describes the method by which the Board shall compute 
time for purposes of complying with deadlines in the Board's rules.
Rule 5200T--Commencement of Disciplinary Proceedings
    Rule 5200T(b) provides for an appointment of a hearing officer by 
the Board as soon as practicable after issuance of the order 
instituting proceedings or after a registration applicant has requested 
a hearing pursuant to Rule 5500T(b). The rule is adapted from NASD Rule 
9213(a).
    Under Rule 5200T(b), the Board shall notify the parties of the 
hearing officer's assignment. The hearing officer shall have authority 
to do all things necessary and appropriate to discharge his or her 
duties, including, but not limited to, the matters specified in Rule 
5200T(b). The rule expressly subjects the hearing officer's authority 
to the limitations described in Rule 5402T (concerning hearing officer 
disqualification) and Rule 5403T (concerning ex parte communications).
    Rule 5200T(c) provides that the Board will observe certain 
separation of functions principles. The rule provides that neither the 
staff of the Division of Enforcement and Investigations, nor any other 
staff who engaged in investigative or prosecutorial functions on a 
matter, may participate or advise in the decision, or the review of the 
decision, except as a witness or counsel. In addition, the rule 
provides that a hearing officer may not be responsible to or subject to 
the supervision or direction of an employee or agent engaged in the 
performance of investigative or prosecuting functions for the Board.
    With respect to proceedings that involve a common question of law 
or fact, Rule 5200T(d) provides that the Board or a hearing officer 
may, by order, consolidate the proceedings for hearing of any or all 
matters at issue in the proceedings. The rule is adapted from Rule 201 
of the Commission's Rules of Practice. The rule provides that 
consolidation shall not prejudice any rights that any party may have 
under the Board's Rules and shall not affect the right of any party to 
raise issues that could have been raised in the absence of 
consolidation.
Rule 5201T--Notification of Commencement of Disciplinary Proceedings
    Rule 5201T(c) provides that, in the case of a hearing on a 
registration application commenced under Rule 5500T, the notice of 
hearing shall state proposed grounds for disapproving the registration 
application.
Rule 5202T--Record of Disciplinary Proceedings
    Rule 5202T(a) describes the material that shall make up the 
contents of the record in a disciplinary proceeding (Rule 5202T(a)(1)) 
and the contents of the record on disapproval of an application for 
registration (Rule 5202T(a)(2)). Under Rule 5202T(b), any document 
offered as evidence but excluded, and any document marked for 
identification but not offered as an exhibit, shall not be considered 
part of the record but shall be maintained by the Secretary until all 
opportunities for Commission and judicial review have been exhausted or 
waived. Paragraphs (c)-(e) of Rule 5202T address the substitution of 
true copies for documents in the record, the preparation of the record 
and the certification of the record index, and the final transmittal of 
record items to the Secretary. The rule is adapted from Rules 350 and 
351 of the Commission's Rules of Practice.
Rule 5203T--Public and Private Hearings
    Under Rule 5203T, a hearing on disapproval of a registration 
application shall be nonpublic unless the Board orders otherwise. The 
rule essentially creates a presumption that a hearing on disapproval of 
a registration application will be non-public. A disapproval hearing 
will, by its nature, involve a firm that is not yet a registered firm 
and may well involve a record that includes confidential information 
submitted as part of the registration application. The rule reserves to 
the Board the flexibility to make the hearing public if warranted by 
unusual circumstances. In any event, if the Board decides, after a 
hearing, to disapprove the application, that decision, along with the 
reasons for the decision, will be made public according to the 
provisions of Section 105(d) of the Act.
Rule 5204T--Determinations in Disciplinary Proceedings
    Rule 5204T(b) provides that, unless the Board orders otherwise, the 
hearing officer shall prepare an initial decision following a hearing. 
The rule provides that the initial decision shall include findings and 
conclusions, including sanctions, if appropriate, and the reasons or 
basis therefore, as to all the material issues of fact, law, or 
discretion presented on the record and such other information as the 
Board may require.

[[Page 64933]]

The rule is adapted from Rule 360 of the Commission's Rules of 
Practice.
    The note to Rule 5204T(b) sets out the Board's general expectations 
about the time frame within which a hearing officer should complete an 
initial decision in various types of cases. These time frames are 
nothing more than the Board's general expectations and do not create 
any right in any person to have an initial decision prepared within any 
particular period of time.
    Rule 5204T(c) governs the hearing officer's filing of the initial 
decision with the Secretary and the Secretary's service of the initial 
decision on the parties.
    Rule 5204T(d) provides the circumstances in which an initial 
decision of a hearing officer becomes the final decision of the Board 
as to a party. The rule is adapted from Rule 360(d) of the Commission's 
Rules of Practice. Rule 5204T(d)(1) provides that the initial decision 
becomes the Board's final decision as to a party upon issuance by the 
Secretary of a notice of finality. Rule 5204T(d)(2) provides that the 
Secretary shall issue the notice of finality no later than twenty days 
after the lapsing of the time period for filing a petition for Board 
review (as described in Rule 5460T), unless one of the two conditions 
described in Rule 5204T(d)(3) has occurred. Rule 5204T(d)(3) provides 
that the Secretary shall not issue a notice of finality as to any party 
who has filed a timely petition for Board review or with respect to 
whom the Board, on its own motion, has ordered review of the initial 
decision pursuant to Rule 5460T(b).
Rule 5205T--Settlement of Disciplinary Proceedings Without a 
Determination After Hearing
    Rule 5205T governs certain matters related to possible settlement 
of disciplinary proceedings. The rule is adapted from Rule 240 of the 
Commission's Rules of Practice.
    Rule 5205T provides that any person who is or is to be a party to a 
disciplinary proceeding may at any time propose in writing an offer of 
settlement. The rule imposes requirements for the content of the offer, 
and requires that it be signed by the person making the offer, not by 
counsel.
    Rule 5205T(c)(1) requires that the Division Director the offer to 
the Board along with a recommendation concerning the offer, except 
that, if the recommendation is unfavorable, the Director shall not 
present the offer to the Board unless the person making the offer so 
requests.
    Rules 5205T(c)(2)-(3) set out various matters that the person 
making the offer must waive before the Board will consider the offer, 
including waiver of rights to hearings, rights to proposed findings of 
fact and conclusions of law, rights to proceedings before and an 
initial decision by a hearing officer, rights to post-hearing 
procedures, rights to judicial review, rights to have Board and Board 
staff observe separation of functions principles, and rights to claim 
bias or prejudgment by the Board based on consideration of or 
discussions concerning the settlement offer.
    Rule 5205T(c)(4) provides that if the Board rejects the offer, the 
offer will be deemed withdrawn and will not constitute a part of the 
record. Rule 5205T(c)(4) further provides that rejection of the offer 
will not affect the continued validity of waivers of rights to claim 
bias or prejudgment on the basis of discussions concerning the 
settlement offer.
    Rule 5205T(c)(5) provides that Board acceptance of an offer will 
occur only upon the issuance of findings and an order by the Board.
    A note to Rule 5205T points out that in hearings on disapproval of 
registration, settlement offers will be handled by the Director of 
Registration and Inspections.
Rule 5400T--Hearings
    Rule 5400T provides for hearings to be held only upon order of the 
Board and to be conducted in a fair, impartial, expeditious and orderly 
manner. The rule is adapted from Rule 200 of the Commission's Rules of 
Practice.
Rule 5401T--Appearance and Practice Before the Board
    Rule 5401T provides that a person may appear on his own behalf 
before the Board or may be represented by counsel. Rule 5401T further 
provides that a member of a partnership may represent the partnership 
and a bona fide officer of a corporation, trust, or association may 
represent the corporation, trust, or association. Rule 5401T(c) imposes 
certain procedural requirements related to representation and 
withdrawal.
Rule 5402T--Hearing Officer Disqualification and Withdrawal
    Rule 5402T allows a party to make a motion for withdrawal of a 
hearing officer and governs the circumstances under which such a motion 
may be made and the time within which it must be made. Rule 5402T also 
provides for appointment of a replacement hearing officer in the event 
of withdrawal or disqualification. The rule is based on Rule 112 of the 
Commission's Rules of Practice and NASD Rule 9233.
Rule 5403T--Ex Parte Communications
    Rule 5403T prohibits a hearing officer from having ex parte 
communications with a person or party, except to the extent permitted 
by law or by the Board's rules for the disposition of ex parte matters. 
The rule also prohibits a party from having ex parte communication with 
the Board or any Board member on a fact in issue, except as permitted 
by law or by the Board's rules. Rule 5403T(b) extends that restriction 
on ex parte communications not only to a party (including the 
interested division) but also to any Board staff that substantially 
assists the interested division on the particular matter, whether 
before or during the hearing,
Rule 5404T--Service of Papers by Parties
    Rule 5404T requires service of papers on each party in a manner 
calculated to bring the paper to the attention of the party served.
Rule 5405T--Filing of Papers With the Board: Procedure
    Rule 5405T governs procedures for filing papers with the Board.
Rule 5406T--Filing of Papers: Form
    Rule 5406T governs the form of papers to be filed with the Board.
Rule 5407T--Filing of Papers: Signature Requirement and Effect
    Rule 5407T requires every paper filed to be signed either by the 
party, if the party represents himself or herself, or by counsel if the 
party is represented by counsel. Because the Board expects most papers 
to be filed electronically, a note to the rule states that the 
signature should be scanned into an electronic document where 
practicable, but that otherwise certain indicia of electronic signature 
will suffice.
Rule 5408T--Motions
    Rule 5408T describes procedures and length limitations related to 
motions and supporting briefs.
Rule 5409T--Default and Motions To Set Aside Default
    Rule 5409T describes the circumstances that shall constitute a 
default and the procedure for seeking to set aside a default. The rule 
is adapted from Rule 155 of the Commission's Rules of Practice.
Rule 5410T--Extra Time for Service by Mail
    Rule 5410T allows an additional three days, with respect to any 
computation of time, for service made by mail.

[[Page 64934]]

Rule 5411T--Modifications of Time, Postponements and Adjournments
    Rule 5411T provides that the Board maintains discretion, except as 
otherwise provided by law, to adjust the time limits prescribed by the 
rules or to postpone or adjourn any hearing.
Rule 5420T--Leave to Participate To Request a Stay
    Rule 5420T provides a procedure by which certain entities may seek 
a stay of a hearing. The entities that may seek such a stay would have 
been the Commission, the United States Department of Justice or any 
United States Attorney's Office, any criminal prosecutorial authority 
of a state or political subdivision of a state, and an appropriate 
state regulatory authority may seek a stay.
    Under Rule 5420T, an authorized representative of any such entity 
may seek leave to participate on a limited basis to request a stay. 
Rule 5420T provides that a stay shall be granted upon a showing that a 
stay is necessary to protect an ongoing Commission investigation, and 
that a stay shall otherwise be favored upon a showing that it is in the 
public interest or for the protection of investors.
Rule 5421T--Answer to Allegations
    Rule 5421T governs the filing of answers to orders instituting 
proceedings. A party may file an answer in any matter, but is not 
required to file an answer unless ordered to do so in the order 
instituting proceedings.
Rule 5422T--Availability of Documents for Inspection and Copying
    Rule 5422T governs the obligations of Board staff to make documents 
available to a party for inspection and copying. Paragraphs (a) through 
(c) of Rule 5422T are the core provisions for determining what 
documents the staff must make available. Paragraph (a) describes 
generally the documents that the staff must make available to a 
respondent. Paragraph (b) limits paragraph (a) by describing categories 
of documents that the staff may withhold, subject to an overriding 
obligation not to withhold material exculpatory evidence. Paragraph (c) 
prescribes procedures the staff must follow when withholding certain 
categories of documents, and procedures for a hearing officer to 
determine whether withholding is appropriate.
    Rule 5422T(a)(3) applies to registration disapproval proceedings 
commenced pursuant to Rule 5500T. Rule 5422T(a)(3) requires the 
Division of Registration and Inspections to make available all 
documents obtained by the Division in connection with the registration 
application prior to the notice of hearing.
    Rule 5422T(a) includes specific exceptions for, and must be read in 
conjunction with, Rule 5422T(b), which describes four categories of 
documents that the Division may withhold from a respondent even if Rule 
5422T(a) would otherwise require the Division to make the document 
available. Moreover, withholding documents may trigger the procedural 
requirements of Rule 5422T(c). We therefore individually address each 
of the four categories of documents that may be withheld under Rule 
5422T(b), and any Rule 5422T(c) procedures related to withholding those 
documents.
    Under Rule 5422T(b)(1)(i), the Division need not make available any 
document prepared by a member of the Board or the Board's staff that 
has not been disclosed to any person other than Board members, Board 
staff, or persons retained by the Board or Board staff to provide 
services in connection with the investigation, disciplinary proceeding, 
or hearing on disapproval of registration. Withholding such documents 
does not trigger any procedural requirements under Rule 5422T(c).
    Under Rule 5422T(b)(1)(ii), the Division need not make available 
any other document that, while not encompassed within the first 
category, is nevertheless protected by a privilege or by the attorney 
work product doctrine. This category would include, for example, 
documents that were privileged in the hands of the person who supplied 
them to the Board, but who supplied them pursuant to an understanding 
that doing so would not otherwise waive the privilege. As to this 
category of withheld documents, Rule 5422T(c)(1) requires the Division 
to supply to the hearing officer and each respondent a log providing 
all of the same information that Rule 5106 requires a person to submit 
when asserting a privilege against production to the Board.\1\
---------------------------------------------------------------------------

    \1\ Rule 5106, adopted by the Board on September 29, 2003, is 
currently pending before the Commission for approval and will not 
take effect unless the Commission approves it. If Rule 5422T(c)(1) 
takes effect on a temporary basis before Rule 5106 takes effect, the 
portions of Rule 5106 that are incorporated by reference in Rule 
5422T(c)(1) shall be given effect as part of Rule 5422T(c)(1) as 
fully as if they were expressly restated therein. The Commission 
notes that Board staff has confirmed that the specific language of 
Rule 5106 that is intended to be given effect as part of Rule 
5422T(c)(1) is the language in Rule 5106(a) that requires that,
    (1) the person asserting the privilege, or his or her attorney, 
shall identify the nature of the privilege (including attorney work 
product) that is being claimed and indicate the relevant 
jurisdiction's privilege rule being invoked; and
    (2) the following information shall be provided in the 
objection, unless divulgence of such information would cause 
disclosure of the allegedly privileged information--
    (i) for documents: (A) the type of document, (e.g., letter or 
memorandum); (B) the general subject matter of the document; (C) the 
date of the document; and (D) such other information as is 
sufficient to identify the document for a Commission subpoena duces 
tecum, including, where appropriate, the author of the document, the 
addressees of the document, and any other recipients shown in the 
document, and, where not apparent, the relationship of the author, 
addressees, and recipients to each other; and
    (ii) for oral communications: (A) the name of the person making 
the communication and the names of persons present while the 
communication was made and, where not apparent, the relationship of 
the persons present to the person making the communication; (B) the 
date and place of communication; and (C) the general subject matter 
of the communication. (Telephone conversation between Gordon 
Seymour, Acting General Counsel, PCAOB, and staff of the 
Commission's Office of the Chief Accountant, on November 4, 2003.)
---------------------------------------------------------------------------

    Under Rule 5422T(b)(1)(iii), the Division need not make available 
any document that would disclose the identity of a confidential source. 
The rule provides, however, that the staff may not withhold a document 
on this basis if doing so results in withholding material exculpatory 
evidence. Rule 5422T(c)(2) requires the Division to provide the hearing 
officer with a list of any documents withheld to protect the identity 
of a confidential informant. The rule requires the Division to provide 
the same list to each respondent, although the staff may redact as much 
information as necessary from that list (including, in appropriate 
circumstances, all information) to protect the interests related to the 
Division's reason for withholding the document. The hearing officer, in 
his or her discretion, may review any such document in camera to assess 
the grounds for withholding it and to assess whether it includes 
material exculpatory evidence.
    Under Rule 5422T(b)(1)(iv), the Division need not make available 
any other document that the staff identifies for the hearing officer's 
consideration as to whether the document may be withheld as not 
relevant to the subject matter of the proceeding or otherwise for good 
cause shown. For example, the staff might have documents supplied by a 
foreign regulator under a confidentiality agreement. If the staff does 
not intend to use them, the ``good cause'' exception allows the staff 
to withhold them to honor the confidentiality agreement. Again, 
however, the good cause exception does not allow the staff to withhold 
a document that contains material exculpatory evidence. Rule 5422T(c)'s

[[Page 64935]]

procedures, described above with respect to confidential informant 
documents, apply in the same fashion to documents withheld as 
irrelevant or otherwise for good cause.
    In addition to the procedural protections described above, Rule 
5422T(b)(2) provides an over-arching restriction on what the Division 
may withhold. It provides that nothing in paragraph (b) authorizes the 
interested division to withhold non-privileged documents that contain 
material exculpatory evidence.
    Rule 5422T(d) governs the time period in which the staff must make 
the documents available. Under the rule, the staff must make the 
documents available within 14 days of the institution of proceedings 
under Rule 5500.
    Rule 5422T(e) provides that the staff shall make the documents 
available at the Board's office where the documents are normally 
maintained, or at such other place as the parties agree upon in 
writing. Rule 5422T(d) further provides that, except as subject to any 
specific contrary agreement with the staff, a party shall not have 
custody of the documents and shall not remove the documents from the 
Board's offices, though the party may make and retain copies of the 
documents. Rule 5422T(f) provides that a party wishing to make copies 
of the documents must bear the cost of copying.
    Rule 5422T(g) addresses any failure by the interested division to 
make available any document that these rules required it to make 
available. The rule provides that, in that event, no person shall be 
entitled to a rehearing or redetermination in a matter already heard or 
decided unless that person first establishes that the failure to make 
the document available did not constitute harmless error.
    A note following Rule 5422T points out that the obligations of the 
interested division under this rule extend only to documents obtained 
by that division, and that this Rule does not require the interested 
division to make available documents located only in the files of other 
divisions or offices. The proviso, however, is not intended to relieve 
the interested division of the obligation to make available any such 
document that the division knows of and intends to introduce as 
evidence. Any such document should be treated, for purposes of Rule 
5422T, just as if it were physically located in the division's files.
Rule 5423T--Production of Witness Statements
    Rule 5423T(a) provides that a respondent may move that the 
interested division produce any statement of a person, called or to be 
called as a witness by the division, that pertains or is expected to 
pertain to his or her direct testimony and that would be required to be 
produced pursuant to the Jencks Act, 18 U.S.C. 3500, if the Board were 
a governmental entity. The hearing officer shall have authority to 
grant such a motion and require production of any such statement. Rule 
5423T(b) provides, however, that the interested division's failure to 
produce any such statement shall not be grounds for rehearing or 
redecision of a matter already heard or decided unless the respondent 
first establishes that the failure to produce the statement was not 
harmless error. The rule is based on Rule 231 of the Commission's Rules 
of Practice.
Rule 5424T--Accounting Board Demands
    Rule 5424T provides for mechanisms by which any party may seek to 
secure testimony or evidence relevant to a proceeding. Rule 5424T(a) 
describes procedures by which any party may seek to have an accounting 
board demand served on any registered public accounting firm or 
associated person of such a firm, or seek to have an accounting board 
request served on any other person. Under the rule, the party must make 
a request to the hearing officer for issuance of the accounting board 
demand or accounting board request. In the event of the hearing 
officer's unavailability, the party may present its request, through 
the Secretary, to any member of the Board, or any other person 
designated by the Board to issue such demands and requests.
    The application for an accounting board demand or accounting board 
request may be denied, or may be granted with modifications, if it is 
unreasonable, oppressive, excessive in scope, or unduly burdensome. The 
rule provides that a person whose application for an accounting board 
demand or accounting board request has been denied or modified may not 
make the same application to another person and may not apply to the 
Board for a Commission subpoena covering the same testimony, documents, 
or information as the denied application covered or as was excluded by 
modification in granting an application. Rule 5424T(a) also provides 
that a party who applies for an accounting board demand or accounting 
board request to summon a witness shall pay the witness's reasonable 
expenses.
Rule 5425T--Depositions To Preserve Testimony for Hearing
    Rule 5425T provides procedures by which a party may seek a 
deposition for the purpose of preserving for a hearing the testimony of 
a person who may be unavailable to appear at the hearing. Rule 5425T 
does not provide for depositions taken for the purpose of discovery. 
The rule is adapted from Rule 233 of the Commission's Rules of 
Practice.
    Under Rule 5425T(a), a party seeking to take a deposition to 
preserve testimony must make a written motion setting out the reasons 
why the deposition is necessary and specifically including the reasons 
that the party believes the witness will be unable to testify at the 
hearing. The motion must also identify the witness, the matters on 
which the party intends to question the witness, and the proposed time 
and place of the deposition. Under Rule 5425T(b), the hearing officer 
may grant the motion if the hearing officer finds that the witness will 
likely give testimony material to the proceeding, that it is likely the 
witness will be unable to appear at the hearing because of age, 
sickness, infirmity, imprisonment or other disability, or will 
otherwise be unavailable, and that the taking of the deposition will 
serve the interests of justice. Rules 5425T(c)-(e) describe certain 
procedures governing any such deposition allowed by the hearing 
officer.
Rule 5426T--Prior Sworn Statements of Witnesses in Lieu of Live 
Testimony
    Rule 5426T provides procedures by which a party may introduce into 
evidence a witness's prior sworn statement in lieu of live testimony by 
the witness. Rule 5426T is not a limitation on any party's ability to 
introduce a prior sworn statement with respect to a witness who appears 
in person and testifies (for purposes of impeachment, for example). But 
Rule 5426T does limit the circumstances in which a party may introduce 
a prior sworn statement in lieu of live testimony by the witness.
    Rule 5426T identifies five circumstances in which the hearing 
officer may grant a motion to introduce a prior sworn statement in lieu 
of live testimony: (1) If the witness is dead, (2) if the witness is 
outside of the United States, unless it appears that the witness's 
absence from the country was procured by the party offering the prior 
sworn statement, (3) if the witness is

[[Page 64936]]

unable to attend because of age, sickness, infirmity, imprisonment or 
other disability, (4) if the party offering the prior sworn statement 
has been unable to procure the attendance of the witness by accounting 
board demand, or (5) if, in the discretion of the Board or the hearing 
officer, it would be desirable, in the interests of justice, to allow 
the prior sworn statement to be used. In granting a motion to introduce 
a prior sworn statement, a hearing officer has the discretion, under 
Rule 5426T, to require that all relevant portions of the statement be 
included or to exclude portions of the statement not relevant to the 
proceeding.
Rule 5440T--Record of Hearings
    Rule 5440T describes procedures related to the creation, 
correction, and availability of hearing transcripts.
Rule 5441T--Evidence: Admissibility
    Rule 5441T provides that a hearing officer may receive relevant 
evidence and shall exclude all evidence that is irrelevant, immaterial 
or unduly repetitious. The standard in Rule 5441T is based on the 
Administrative Procedures Act.\2\ In addition, the same standard is 
used in the SEC's Rules of Practice.\3\ By using this phrase in Rule 
5441T, the Board intends for evidentiary issues in PCAOB hearings to be 
addressed in a generally similar manner to SEC administrative hearings, 
and the administrative hearings of most other administrative agencies. 
Rule 5441T is not intended to limit a hearing officer's authority to 
exclude or allow evidence based on reasonable principles of 
admissibility, but is intended to allow a hearing officer reasonable 
flexibility.\4\ In particular, the three bases in the rule--
irrelevance, immateriality, and undue repetition--are not the only 
permissible bases on which a hearing officer may exclude evidence under 
administrative practice. Nor does the standard in Rule 5441T preclude a 
hearing officer from referring to principles from the Federal Rules of 
Evidence or other authoritative sources in exercising his or her 
discretion to resolve evidentiary issues.\5\
---------------------------------------------------------------------------

    \2\ 5 U.S.C. 556(c)(3) and (d).
    \3\ See SEC Rule of Practice 320, 17 C.F.R. Sec.  201.320 (``The 
Commission or the hearing officer may receive relevant evidence and 
shall exclude all evidence that is irrelevant, immaterial or unduly 
repetitious.'').
    \4\ See, e.g., Commission Opinion: Wheat, First Securities, 
Inc.; Rel. No. 34-48378, (August 20, 2003) (holding that hearsay is 
admissible in an SEC administrative hearing, but noting that the 
``record shows the probative and reliable nature of this 
evidence'').
    \5\ See id. (explaining that same result would have been reached 
had the administrative law judge applied the Federal Rules of 
Evidence).
---------------------------------------------------------------------------

Rule 5442T--Evidence: Objections and Offers of Proof
    Rule 5442T(a) provides that any objections must be made on the 
record and must be in short form, stating the grounds relied upon. 
Under Rule 5442T(a) any exception to a hearing officer's ruling on an 
objection need not be noted at the time of the ruling but will be 
deemed waived on appeal to the Board unless the exception was raised 
(1) on interlocutory review under Rule 5461T, (2) in a proposed finding 
or conclusion filed under Rule 5445T, or (3) in a petition for Board 
review of an initial decision filed under Rule 5460T. Rule 5442T(b) 
provides that when evidence is excluded from the record, the party 
offering the evidence may make an offer of proof which shall be 
included in the record. The excluded material itself would be retained 
under Rule 5202T(b).
Rule 5443T--Evidence: Presentation Under Oath or Affirmation
    Rule 5443T provides that witnesses at a hearing shall testify under 
oath or affirmation.
Rule 5444T--Evidence: Rebuttal and Cross-Examination
    Rule 5444T provides that a party may present its case or defense by 
oral or documentary evidence, submit rebuttal evidence, and conduct 
such cross-examination as, in the discretion of the Board or the 
hearing officer, may be required for a full and true disclosure of the 
facts. The rule provides that the Board or hearing officer shall 
determine the scope and form of evidence, rebuttal evidence, and cross-
examination in any proceeding. The rule is adapted from Rule 326 of the 
Commission's Rules of Practice.
Rule 5445T--Post-Hearing Briefs and Other Submissions
    Rule 5445T provides procedures relating to the submission of post-
hearing briefs and other submissions.
Rule 5460T--Board Review of Determinations of Hearing Officers
    Rule 5460T concerns Board review of initial decisions. Under Rule 
5460T, a party may obtain Board review of an initial decision by filing 
a timely petition setting forth specific findings and conclusions of 
the initial decision to which the party takes exception and setting 
forth the supporting reasons for each exception. To be timely, a 
petition must be filed within 30 days of an initial decision in 
proceedings on disapproval of a registration application. The rule is 
based in part on Rule 410 of the Commission's Rules of Practice.
    Also under Rule 5460T(a), if one party submits a timely petition 
for review, any other party then has an additional ten days to submit 
its own petition for review, even if its petition raises different 
issues than those raised by the first party to submit a petition. The 
purpose of this rule is to avoid the unnecessary expenditure of Board 
resources in cases where no party would appeal if it knew that the 
other party would not appeal, but in which one or more parties 
nevertheless appeal because of a concern that failing to appeal will 
deprive it of the opportunity to raise its issues in any appeal lodged 
by another party. Under Rule 5460T(a), no party need guess about the 
other party's intentions, and no party sacrifices anything by waiting 
to see whether another party files a timely petition for review.
    Rule 5460T(b) provides that the Board may, on its own initiative, 
order review of all or any portion of an initial decision even if no 
party seeks review. The Board may order such review, however, only if 
it does so before the initial decision would otherwise become the final 
decision of the Board pursuant to the operation of Rule 5204T(c). In 
effect, this allows the Board to order review on its own initiative for 
a period of 20 days beyond the deadline for a party to petition for 
review. The rule is based in part on Rule 411 of the Commission's Rules 
of Practice. Rules 5460T(c)-(e) set out procedural matters related to 
Board review.
Rule 5461T--Interlocutory Review
    Rule 5461T concerns Board interlocutory review of hearing officer 
rulings. Under Rule 5461T(a), the Board will not grant interlocutory 
review absent extraordinary circumstances, but also may direct at any 
time that any matter or ruling be submitted to the Board for review. 
Rule 5461T(b) provides that a hearing officer shall certify a ruling 
for interlocutory review only if (1) the ruling would compel testimony 
of Board members, officers or employees or the production of 
documentary evidence in their custody, or (2) the ruling involves a 
controlling question of law as to which there is substantial ground for 
difference of opinion and immediate review of the order may materially 
advance completion of the proceeding. Rule 5461T(c) provides that 
neither an application for, nor the granting of, interlocutory review 
shall stay the proceeding unless otherwise ordered by the hearing 
officer or the Board. The rule is adapted from Rule 400 of the 
Commission's Rules of Practice and 28 U.S.C. 1292(b).

[[Page 64937]]

Rule 5462T--Briefs Filed With the Board
    Rule 5462T describes procedural requirements related to briefs and 
the filing of briefs. The rule is adapted from Rule 450 of the 
Commission's Rules of Practice.
Rule 5463T--Oral Argument Before the Board
    Rule 5463T concerns oral argument before the Board. Under Rule 
5463T(a), the Board may order oral argument, with or without the motion 
of a party, on any matter. The rule provides that, in general, motions 
for oral argument will be granted unless exceptional circumstances make 
oral argument impractical or inadvisable. Rules 5463T(b)-(c) provide 
for procedures relating to oral argument. Rule 5463T(d) provides that a 
member of the Board who is not present for oral argument may 
nevertheless participate in the Board's decision as long as the Board 
member reviews a transcript of the argument before participating in the 
decision.
Rule 5464T--Additional Evidence
    Rule 5464T provides that the Board may, upon its own motion or the 
motion of a party, allow the submission of additional evidence in 
connection with the Board's review of an initial decision. The rule is 
adapted from Rule 452 of the Commission's Rules of Practice.
Rule 5465T--Record Before the Board
    Rule 5465T provides that the Board shall determine each matter on 
the basis of the record and provides certain requirements concerning 
the record. The rule is adapted from Rule 460 of the Commission's Rules 
of Practice.
Rule 5466T--Reconsideration
    Rule 5466T provides procedures by which a party may seek 
reconsideration of a Board decision. The rule is adapted from Rule 470 
of the Commission's Rules of Practice.
Rule 5469T--Board Consideration of Actions Made Pursuant to Delegated 
Authority
    Rule 5469T provides procedures relating to Board consideration of 
petitions for review of actions made pursuant to authority delegated by 
the Board. Rule 5469T(a) provides that the Board may act summarily on 
the basis of the petition, or on the basis of the petition and any 
staff response, or may require additional statements in support of or 
opposition to the petition. Rule 5469T(b) provides that the effect of 
any staff action would not be stayed pending any petition for review of 
that action.
Rule 5500T--Commencement of Hearing on Disapproval of a Registration 
Application
    Rule 5500T describes the procedure relating to the commencement of 
a Board adjudication proceeding to consider an application for 
registration. Under the Board's registration rules, if the Board is 
unable to make the determination necessary to approve a registration 
application, the Board will provide the applicant with notice of a 
hearing. Rule 5500T provides the procedures through which such a 
proceeding would be commenced.
    Specifically, Rule 5500T provides that a proceeding would commence 
after the Board provides a notice of hearing under Rule 2106(b)(2)(ii) 
and the applicant timely files a request for a hearing date and notice 
of appearance, rather than opting to treat the Board's notice of 
hearing as a denial of the application. Under Rule 5500T(b), a request 
for hearing must include a statement that the applicant has elected not 
to treat the notice of hearing as a disapproval of its application and 
a statement describing with specificity why the applicant believes that 
the Board should not disapprove the application.
Rule 5501T--Procedures for a Hearing on Disapproval of a Registration 
Application
    Rule 5501T provides that proceedings commenced pursuant to Rule 
5500T are subject to the procedures set out in Parts 2 and 4 of Section 
5 of the Board's rules.
(b) Statutory Basis
    The statutory basis for the proposed rules is Title I of the Act.

B. Board's Statement on Burden on Competition

    The Board does not believe that the proposed rules will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. The proposed temporary rules 
supply procedures for the conduct of fair hearings. Moreover, the 
proposed temporary rules would apply only in the context of a hearing 
that an applicant for registration elects, at its option, to have.

C. Board's Statement on Comments on the Proposed Rules Received From 
Members, Participants or Others

    The Board published the Enforcement Rules, including the rules that 
constitute the Temporary Hearing Rules, for public comment in PCAOB 
Release No. 2003-012 (July 28, 2003). A copy of PCAOB Release No. 2003-
012 and the comment letters received in response to the PCAOB's request 
for comment are available on the PCAOB's Web site at http://www.pcaobus.org. The Board received 17 written comments. The Board has 
clarified and modified certain aspects of the rules that constitute the 
Temporary Hearing Rules in response to comments it received, as 
discussed below.
    The Board proposed to define the term ``hearing officer'' to 
include a panel of Board members constituting less than a quorum of the 
Board, an individual Board member, or any other person duly authorized 
by the Board to preside at a hearing. Several commenters expressed the 
view that neither Board members nor staff of the interested division 
should ever serve as hearing officers. We never intended to permit 
staff of the interested division to serve as hearing officers, and we 
have revised the rule to exclude that possibility. Nor did we intend to 
provide for a Board member to serve as a hearing officer except in an 
extraordinary situation, and we are now persuaded that the rule should 
exclude that possibility as well. In general, we intend to rely on a 
corps of qualified persons whose service to the Board is strictly 
limited to the role of hearing officer. We may rely on consultants for 
this purpose, or we may employ a staff of hearing officers, or we may 
rely on a combination of the two.
    Rule 5200T(c) provides that the Board will observe certain 
separation of functions principles. The proposed rule provided that any 
Board employee or agent engaged in investigative or prosecutorial 
functions for the Board in a proceeding could not, in that same 
proceeding or a factually related proceeding, participate or advise in 
the decision, or in Board review of the decision, except as a witness 
or counsel in the proceeding. One commenter suggested that this rule 
should clearly exclude all enforcement personnel from participating in 
the adjudication of a disciplinary proceeding, whether or not they had 
an investigative or prosecutorial role in the matter. We are persuaded 
that this represents a good policy choice and we have revised the rule 
accordingly. The final rule provides that neither the staff of the 
Division of Enforcement and Investigations, nor any other staff who 
engaged in investigative or prosecutorial functions on a matter, may 
participate or advise in the decision, or the review of the decision, 
except as a witness or counsel.
    Rule 5401T provides that a person may appear on his own behalf 
before the Board or may be represented by counsel and imposes certain 
procedural requirements related to representation

[[Page 64938]]

and withdrawal. The proposed rule provided that an individual's 
withdrawal from representation of a party would be permitted only with 
the approval of the Board or the hearing officer. One commenter 
suggested that it would be helpful if the rules would enumerate grounds 
that would be adequate for withdrawal. Other commenters suggested that 
the rules should provide that permission to withdraw would not be 
unreasonably withheld. One commenter suggested that a party's request 
to replace counsel (as distinct from counsel's request to withdraw) 
should not require approval.
    We are sensitive to the importance of counsel being free to 
withdraw in appropriate circumstances, and the importance of a party 
being free to change counsel in appropriate circumstances. We are also 
mindful of the ways in which an ostensible desire to withdraw or to 
change counsel can be used to delay or disrupt proceedings. To provide 
some assurance of the limited scope within which we intend for the 
Board or hearing officer to withhold permission to withdraw, we have 
adopted the suggestion of those commenters who urged that the rule 
provide that permission to withdraw would not be unreasonably withheld.
    Rule 5402T allows a party to make a motion for withdrawal of a 
hearing officer and governs the circumstances under which such a motion 
may be made and the time within which it must be made. Rule 5402T also 
provides for appointment of a replacement hearing officer in the event 
of withdrawal or disqualification. The rule is based on Rule 112 of the 
Commission's Rules of Practice and NASD Rule 9233. Commenters suggested 
that the rule should provide for a right of immediate interlocutory 
appeal to the Board from a hearing officer's denial of a recusal 
motion. One commenter stated that this was of particular importance 
given the possibility that Board staff, including enforcement staff, 
might be assigned to serve as hearing officers.
    As discussed earlier, we have revised the definition of ``hearing 
officer'' to provide that neither a Board member nor any staff of the 
interested division will serve as a hearing officer. We decline to 
create a special right of interlocutory Board review in every case of a 
denied recusal motion. The interlocutory appeal process, governed by 
Rule 5461T, allows a party to request that the hearing officer certify 
his or her recusal ruling for interlocutory review. The rule requires 
that the hearing officer should certify the ruling if immediate review 
of the order may materially advance the completion of the proceeding. 
Given that a reversible denial of a recusal motion could substantially 
delay completion of the proceeding by eventually requiring a complete 
re-hearing before a different hearing officer, we expect hearing 
officers to give careful attention to whether that standard for 
certification has been met with respect to any ruling denying a recusal 
motion.
    One commenter suggested that the rule should provide that, if a 
hearing officer is replaced, the parties should have a right to move 
that certain testimony be reheard so that the new hearing officer may 
judge credibility. We believe that the rules as proposed and adopted 
are flexible enough to accommodate such a motion and to leave the 
decision within the discretion of the new hearing officer.
    Rule 5403T prohibits a hearing officer from having ex parte 
communications with a person or party, except to the extent permitted 
by law or by the Board's rules for the disposition of ex parte matters. 
The proposed rule also prohibited a party from having ex parte 
communication with the Board or any Board member on a fact in issue, 
except as permitted by law or by the Board's rules. Commenters 
suggested that the restriction should extend beyond the interested 
division to any Board staff that has had substantial involvement in a 
matter. We have revised Rule 5403T(b) to impose the restriction not 
only on a party (including the interested division) but also on any 
Board staff that substantially assists the interested division on the 
particular matter, whether before or during the hearing,
    Rule 5422T(a)(3) applies to registration disapproval proceedings 
commenced pursuant to Rule 5500T. Rule 5422T(a)(3) requires the 
Division of Registration and Inspections to make available all 
documents obtained by the Division in connection with the registration 
application prior to the notice of hearing, and specifies the 
categories of documents that the Division may withhold from production. 
In response to comments, we have revised the proposed rule to provide 
more clearly that nonprivileged documents that include material, 
exculpatory evidence may not be withheld even if they otherwise fall 
into one of the categories of documents that may be withheld. In 
response to other comments, we have revised the rule to require the 
Division to supply a log of certain privileged documents and lists of 
other withheld documents.

III. Commission's Findings and Order Granting Accelerated Approval of 
Proposed Rules

    The Board has asked the Commission to approve the proposed 
temporary rules prior to the thirtieth day after the date of 
publication of notice of the filing to ensure the efficient 
implementation of the registration process under section 102 of the 
Act.
    Under section 102 of the Act, Congress required accounting firms to 
register with the Board by October 22, 2003, the 180th day from the 
Commission's section 101(d) determination that the Board is organized 
and has the capacity to carry out the requirements of, and enforce 
compliance with, the Act. The Board began accepting registration forms 
on August 7, 2003. Under section 102(c)(i) of the Act, the Board is 
required to issue a notice of disapproval or seek additional 
information within 45 days of receiving a registration form. 
Furthermore, section 105(c) of the Act requires that the Board, among 
other things, establish fair disciplinary procedures. Under rules 
previously adopted by the Board and approved by the Commission, the 
Board may not disapprove an application without first giving the 
applicant an opportunity for a hearing. On July 28, 2003, the Board 
proposed procedural rules for disapproving a registration application, 
as part of its Rules on Investigations and Adjudications. The Board 
sought and received comments on the proposals. After considering the 
comments, the Board adopted temporary rules relating to registration 
disapproval procedures on September 29, 2003.
    Pursuant to section 107(b) of the Act, the Commission shall approve 
proposed rules upon a finding that such rules are consistent with the 
Act and with the securities laws or are necessary or appropriate in the 
public interest or for the protection of investors. Although the 
Commission will later consider permanent rules, the proposed temporary 
rules will facilitate the process of making determinations on new and 
pending registration applications. On the basis of the foregoing, the 
Commission finds that the temporary rules are consistent with the 
requirements of sections 102, 105(c) and 107(b) of the Act and the 
securities laws \6\ and are necessary and appropriate in the public 
interest and for the protection of investors.
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    \6\ The Commission has considered whether the action will 
promote efficiency, competition and capital formation.
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    Because accounting firms already have begun submitting registration

[[Page 64939]]

forms to the Board, both the Board and accounting firms would benefit 
from the operation of procedures to resolve issues relating to 
registration before the approval of permanent rules. In connection with 
these temporary rules, accounting firms and other members of the public 
have been given an opportunity to participate in the Board's rulemaking 
process. A further opportunity for public comment will be provided when 
the Commission publishes the permanent rules on investigations and 
adjudications for comment. In the meantime, the temporary rules will 
allow the Board to administer the registration disapproval process in 
the event that a hearing is necessary before permanent rules are 
approved by the Commission.
    The Commission believes that the proposed temporary rules will 
enable the Board to properly exercise its authority and perform its 
responsibilities within the time frame specified by the Act. Because of 
the importance of registering accounting firms to the operation of the 
Board and the benefit provided by the Board's inspection, investigation 
and enforcement functions, expedited implementation of the temporary 
rules is consistent with the public interest and protection of 
investors.
    The Commission therefore finds good cause, consistent with sections 
102, 105 and 107 of the Act and section 19(b)(2) of the Exchange Act, 
to approve the proposed temporary rules on an accelerated basis.
    Interested persons are invited to submit written data, views and 
arguments concerning the proposed temporary hearing rules, including 
whether the rules are consistent with the Act and the securities laws 
or are necessary or appropriate in the public interest or for the 
protection of investors. Commenters may prefer to comment on the 
PCAOB's proposed permanent rules for investigations and adjudications 
when the Commission publishes those rules for comment. Persons making 
written submissions with regard to the proposed temporary hearing rules 
should file six copies thereof with the Secretary, Securities and 
Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed temporary hearing rules that 
are filed with the Commission, and all written communications relating 
to the proposed temporary hearing rules between the Commission and any 
person, other than those that may be withheld from the public in 
accordance with the provisions of 5 U.S.C. 552, will be available for 
inspection and copying at the Commission's Public Reference Room. All 
submissions should refer to File No. PCAOB-2003-06 and should be 
submitted by December 17, 2003.

IV. Conclusion

    It is therefore ordered, pursuant to sections 102, 105 and 107 of 
the Sarbanes-Oxley Act and Section 19(b)(2) of the Exchange Act that 
the proposed temporary rules (File No. PCAOB-2003-06) be and hereby are 
approved on an accelerated basis.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-28597 Filed 11-14-03; 8:45 am]
BILLING CODE 8010-01-P