[Title 17 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 17
Commodity and Securities Exchanges
________________________
Parts 200 to 239
Revised as of April 1, 2020
Containing a codification of documents of general
applicability and future effect
As of April 1, 2020
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 17:
Chapter II--Securities and Exchange Commission 3
Finding Aids:
Table of CFR Titles and Chapters........................ 891
Alphabetical List of Agencies Appearing in the CFR...... 911
List of CFR Sections Affected........................... 921
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 17 CFR 200.1 refers
to title 17, part 200,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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EFFECTIVE AND EXPIRATION DATES
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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PAST PROVISIONS OF THE CODE
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``[RESERVED]'' TERMINOLOGY
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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that volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
April 1, 2020
[[Page ix]]
THIS TITLE
Title 17--Commodity and Securities Exchanges is composed of four
volumes. The first two volumes containing parts 1--40, and 41--199
comprise Chapter I--Commodity Futures Trading Commission. The third
volume contains Chapter II--Securities and Exchange Commission, parts
200--239. The fourth volume, comprising part 240 to end, contains the
remaining regulations of the Securities and Exchange Commission, and
Chapter IV--Department of the Treasury. The contents of these volumes
represent all current regulations issued by the Commodity Futures
Trading Commission, the Securities and Exchange Commission, and the
Department of the Treasury as of April 1, 2020.
The OMB control numbers for the Securities and Exchange Commission
appear in Sec. 200.800 of chapter II. For the convenience of the user,
Sec. 200.800 is reprinted in the Finding Aids section of the volume
containing part 240 to end.
For this volume, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 17--COMMODITY AND SECURITIES EXCHANGES
(This book contains parts 200 to 239)
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Part
chapter ii--Securities and Exchange Commission.............. 200
[[Page 3]]
CHAPTER II--SECURITIES AND EXCHANGE COMMISSION
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Part Page
200 Organization; conduct and ethics; and
information and requests................ 5
201 Rules of practice........................... 119
202 Informal and other procedures............... 195
203 Rules relating to investigations............ 213
204 Rules relating to debt collection........... 215
205 Standards of professional conduct for
attorneys appearing and practicing
before the Commission in the
representation of an issuer............. 233
209 Forms prescribed under the Commission's
rules of practice....................... 239
210 Form and content of and requirements for
financial statements, Securities Act of
1933, Securities Exchange Act of 1934,
Investment Company Act of 1940,
Investment Advisers Act of 1940, and
Energy Policy and Conservation Act of
1975.................................... 240
211 Interpretations relating to financial
reporting matters....................... 342
227 Regulation crowdfunding, general rules and
regulations............................. 345
228
[Reserved]
229 Standard instructions for filing forms under
Securities Act of 1933, Securities
Exchange Act of 1934 and Energy Policy
and Conservation Act of 1975--Regulation
S-K..................................... 369
230 General rules and regulations, Securities
Act of 1933............................. 610
231 Interpretative releases relating to the
Securities Act of 1933 and general rules
and regulations thereunder.............. 822
232 Regulation S-T--General rules and
regulations for electronic filings...... 829
239 Forms prescribed under the Securities Act of
1933.................................... 856
[[Page 5]]
PART 200_ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND REQUESTS--
Table of Contents
Subpart A_Organization and Program Management
Sec.
200.1 General statement and statutory authority.
200.2 Statutory functions.
General Organization
200.10 The Commission.
200.11 Headquarters Office--Regional Office relationships.
200.12 Functional responsibilities.
200.13 Chief Operating Officer.
200.13a The Secretary of the Commission.
200.13b Director of the Office of Public Affairs, Policy Evaluation, and
Research.
200.14 Office of Administrative Law Judges.
200.15 Office of International Affairs.
200.16 Executive Assistant to the Chairman.
200.16a Inspector General.
200.17 Chief Management Analyst.
200.18 Director of Division of Corporation Finance.
200.19a Director of the Division of Trading and Markets.
200.19b Director of the Division of Enforcement.
200.19c Director of the Office of Compliance Inspections and
Examinations.
200.19d Director of the Office of Municipal Securities.
200.20b Director of Division of Investment Management.
200.21 The General Counsel.
200.21a The Ethics Counsel.
200.22 The Chief Accountant.
200.23a Office of Economic Analysis.
200.23b [Reserved]
200.24 Office of Financial Management.
200.24a Director of the Office of Consumer Affairs.
200.25-200.26 [Reserved]
200.26a Office of Information Technology.
200.27 The Regional Directors.
200.28 Issuance of instructions.
200.29 Rules.
200.30-1 Delegation of authority to Director of Division of Corporation
Finance.
200.30-3 Delegation of authority to Director of Division of Trading and
Markets.
200.30-3a Delegation of authority to Director of the Office of Municipal
Securities.
200.30-4 Delegation of authority to Director of Division of Enforcement.
200.30-5 Delegation of authority to Director of Division of Investment
Management.
200.30-6 Delegation of authority to Regional Directors.
200.30-7 Delegation of authority to Secretary of the Commission.
200.30-8 [Reserved]
200.30-9 Delegation of authority to hearing officers.
200.30-10 Delegation of authority to Chief Administrative Law Judge.
200.30-11 Delegation of authority to the Chief Accountant.
200.30-12 [Reserved]
200.30-13 Delegation of authority to Chief Financial Officer.
200.30-14 Delegation of authority to the General Counsel.
200.30-15 Delegation of authority to Executive Director.
200.30-16 Delegation of authority to Executive Assistant to the
Chairman.
200.30-17 Delegation of authority to Director of Office of International
Affairs.
200.30-18 Delegation of authority to Director of the Office of
Compliance Inspections and Examinations.
Subpart B_Disposition of Commission Business
200.40 Joint disposition of business by Commission meeting.
200.41 Quorum of the Commission.
200.42 Disposition of business by seriatim Commission consideration.
200.43 Disposition of business by exercise of authority delegated to
individual Commissioner.
Subpart C_Canons of Ethics
200.50 Authority.
200.51 Policy.
200.52 Copies of the Canons.
200.53 Preamble.
200.54 Constitutional obligations.
200.55 Statutory obligations.
200.56 Personal conduct.
200.57 Relationships with other members.
200.58 Maintenance of independence.
200.59 Relationship with persons subject to regulation.
200.60 Qualification to participate in particular matters.
200.61 Impressions of influence.
200.62 Ex parte communications.
200.63 Commission opinions.
200.64 Judicial review.
200.65 Legislative proposals.
200.66 Investigations.
200.67 Power to adopt rules.
200.68 Promptness.
200.69 Conduct toward parties and their counsel.
200.70 Business promotions.
200.71 Fiduciary relationships.
200.72 Supervision of internal organization.
Subpart D_Information and Requests
200.80 Securities and Exchange Commission records and information.
[[Page 6]]
200.81 Publication of interpretative, no-action and certain exemption
letters and other written communications.
200.82 Public availability of materials filed pursuant to Sec. 240.14a-
8(d) and related materials.
200.82a Public availability of materials filed pursuant to Sec.
240.14a-11(g) and related materials.
200.83 Confidential treatment procedures under the Freedom of
Information Act.
Subpart E [Reserved]
Subpart F_Code of Behavior Governing Ex Parte Communications Between
Persons Outside the Commission and Decisional Employees
200.110 Purpose.
200.111 Prohibitions; application; definitions.
200.112 Duties of recipient; notice to participants.
200.113 Opportunity to respond; interception.
200.114 Sanctions.
Subpart G_Plan of Organization and Operation Effective During Emergency
Conditions
200.200 Purpose.
200.201 General provisions.
200.202 Offices, and information and submittals.
200.203 Organization, and delegations of authority.
200.204 Personnel, fiscal, and service functions.
200.205 Effect upon existing Commission organization, delegations, and
rules.
Subpart H_Regulations Pertaining to the Privacy of Individuals and
Systems of Records Maintained by the Commission
200.301 Purpose and scope.
200.302 Definitions.
200.303 Times, places and requirements for requests pertaining to
individual records in a record system and for the
identification of individuals making requests for access to
the records pertaining to them.
200.304 Disclosure of requested records.
200.305 Special procedure: Medical records.
200.306 Requests for amendment or correction of records.
200.307 Review of requests for amendment or correction.
200.308 Appeal of initial adverse agency determination as to access or
as to amendment or correction.
200.309 General provisions.
200.310 Fees.
200.311 Penalties.
200.312 Specific exemptions.
200.313 Inspector General exemptions.
Subpart I_Regulations Pertaining to Public Observation of Commission
Meetings
200.400 Open meetings.
200.401 Definitions.
200.402 Closed meetings.
200.403 Notice of Commission meetings.
200.404 General procedure for determination to close meeting.
200.405 Special procedure for determination to close meeting.
200.406 Certification by the General Counsel.
200.407 Transcripts, minutes, and other documents concerning closed
Commission meetings.
200.408 Public access to transcripts and minutes of closed Commission
meetings; record retention.
200.409 Administrative appeals.
200.410 Miscellaneous.
Subpart J_Classification and Declassification of National Security
Information and Material
200.500 Purpose.
200.501 Applicability.
200.502 Definition.
200.503 Senior agency official.
200.504 Oversight Committee.
200.505 Original classification.
200.506 Derivative classification.
200.507 Declassification dates on derivative documents.
200.508 Requests for mandatory review for declassification.
200.509 Challenge to classification by Commission employees.
200.510 Access by historical researchers.
200.511 Access by former Presidential appointees.
Subpart K_Regulations Pertaining to the Protection of the Environment
200.550 Purpose.
200.551 Applicability.
200.552 NEPA planning.
200.553 Draft, final and supplemental impact statements.
200.554 Public availability of information.
Subpart L_Enforcement of Nondiscrimination on the Basis of Handicap in
Programs or Activities Conducted by the Securities and Exchange
Commission
200.601 Purpose.
200.602 Application.
200.603 Definitions.
200.604-200.609 [Reserved]
200.610 Self-evaluation.
200.611 Notice.
200.612-200.629 [Reserved]
[[Page 7]]
200.630 General prohibitions against discrimination.
200.631-200.639 [Reserved]
200.640 Employment.
200.641-200.648 [Reserved]
200.649 Program accessibility: Discrimination prohibited.
200.650 Program accessibility: Existing facilities.
200.651 Program accessibility: New construction and alterations.
200.652-200.659 [Reserved]
200.660 Communications.
200.661-200.669 [Reserved]
200.670 Compliance procedures.
200.671-200.699 [Reserved]
Subpart M_Regulation Concerning Conduct of Members and Employees and
Former Members and Employees of the Commission
200.735-1 Purpose.
200.735-2 Policy.
200.735-3 General provisions.
200.735-4 Outside employment and activities.
200.735-5 Securities transactions.
200.735-6 Action in case of personal interest.
200.735-7 Negotiation for employment.
200.735-8 Practice by former members and employees of the Commission.
200.735-9 Indebtedness.
200.735-10 Miscellaneous statutory provisions.
200.735-11 Statement of employment and financial interests.
200.735-12 Special Government employees.
200.735-13 Disciplinary and other remedial action.
200.735-14 Employees on leave of absence.
200.735-15 Interpretive and advisory service.
200.735-16 Delegation.
200.735-17 Administration of the conduct regulation.
200.735-18 Requests for waivers.
Subpart N_Commission Information Collection Requirements Under the
Paperwork Reduction Act: OMB Control Numbers
200.800 OMB control numbers assigned pursuant to the Paperwork Reduction
Act
Editorial Note: Nomenclature changes to part 200 appear at 76 FR
60371, Sept. 29, 2011.
Subpart A_Organization and Program Management
Authority: 15 U.S.C. 77c, 77o, 77s, 77z-3, 77sss, 78d, 78d-1, 78d-2,
78o-4, 78w, 78ll(d), 78mm, 80a-37, 80b-11, 7202, and 7211 et seq.,
unless otherwise noted.
Section 200.16a is also issued under Sec. 989B of Pub. L. 111-203
(2010), 124 Stat. 1376; and 5 U.S.C. App. (Inspector General Act of
1978) Sec. 8G.
Sections 200.27 and 200.30-6 are also issued under 15 U.S.C. 77e,
77f, 77g, 77h, 77j, 77q, 77u, 78e, 78g, 78h, 78i, 78k, 78m, 78o, 78o-4,
78q, 78q-1, 78t-1, 78u, 77hhh, 77uuu, 80a-41, 80b-5, and 80b-9.
Section 200.30-1 is also issued under 15 U.S.C. 77f, 77g, 77h, 77j,
78c(b) 78l, 78m, 78n, 78o(d).
Section 200.30-3 is also issued under 15 U.S.C. 78b, 78d, 78f, 78k-
1, 78q, 78s, and 78eee.
Section 200.30-5 is also issued under 15 U.S.C. 77f, 77g, 77h, 77j,
78c(b), 78l, 78m, 78n, 78o(d), 80a-8, 80a-20, 80a-24, 80a-29, 80b-3,
80b-4.
Section 240.15l-1 is also issued under Pub. L. 111-203, sec. 913,
124 Stat. 1376, 1827 (2010).
Source: 27 FR 12712, Dec. 22, 1962, unless otherwise noted.
Sec. 200.1 General statement and statutory authority.
The Securities and Exchange Commission was created in 1934 under the
Securities Exchange Act. That Act transferred to the Commission the
administration of the Securities Act of 1933, formerly administered by
the Federal Trade Commission. Subsequent laws assigned to the Securities
and Exchange Commission for administration are: Trust Indenture Act of
1939, Investment Company Act of 1940, and Investment Advisers Act of
1940. In addition, under the Bankruptcy Code, the Commission is a
statutory party in cases arising under chapters 9 and 11. Considered
together, the laws administered by the Commission provided for the
following.
(a) Public disclosure of pertinent facts concerning public offerings
of securities and securities listed on national securities exchanges and
certain securities traded in the over-the-counter markets.
(b) Enforcement of disclosure requirements in the soliciting of
proxies for meetings of security holders by companies whose securities
are registered pursuant to section 12 of the Securities Exchange Act of
1934, and their subsidiaries and investment companies.
(c) Regulation of the trading in securities on national securities
exchanges and in the over-the-counter markets.
[[Page 8]]
(d) Investigation of securities frauds, manipulations, and other
violations, and the imposition and enforcement of legal sanctions
therefor.
(e) Registration, and the regulation of certain activities, of
brokers, dealers and investment advisers.
(f) Supervision of the activities of mutual funds and other
investment companies.
(g) Administration of statutory standards governing protective and
other provisions of trust indentures under which debt securities are
sold to the public.
(h) Protection of the interests of public investors involved in
bankruptcy reorganization cases and in bankruptcy cases involving the
adjustment of debts of a municipality.
(i) Administrative sanctions, injunctive remedies, civil money
penalties and criminal prosecution. There are also private rights of
action for investors injured by violations of the Acts.
[27 FR 12712, Dec. 22, 1962, as amended at 43 FR 13375, Mar. 30, 1978;
49 FR 12684, Mar. 30, 1984; 60 FR 14623, Mar. 20, 1995; 60 FR 32794,
June 23, 1995; 76 FR 71874, Nov. 21, 2011]
Sec. 200.2 Statutory functions.
Following are brief descriptions of the Commission's functions under
each of the statutes it administers:
(a) Securities Act of 1933. (1) Issuers of securities making public
offerings for sale in interstate commerce or through the mails, directly
or by others on their behalf, are required to file with the Commission
registration statements containing financial and other pertinent data
about the issuer and the offering. A similar requirement is provided
with respect to such public offerings on behalf of a controlling person
of the issuer. Unless a registration statement is in effect with respect
to such securities, it is unlawful to sell the securities in interstate
commerce or through the mails. (There are certain limited exemptions,
such as government securities, non-public offerings, and intrastate
offerings.) The effectiveness of a registration statement may be refused
or suspended after a hearing if the statement contains material
misstatements or omissions, thus barring sale of the securities until it
is appropriately amended. Registration is not a finding by the
Commission as to the accuracy of the facts disclosed; and it is unlawful
so to represent. Moreover, registration of securities does not imply
approval of the issue by the Commission or insure investors against loss
in their purchase, but serves rather to provide information upon which
investors may make an informed and realistic evaluation of the worth of
the securities.
(2) Persons responsible for filing false information with the
Commission subject themselves to the risk of fine or imprisonment or
both; and the issuing company, its directors, officers, and the
underwriters and dealers and others may be liable in damages to
purchasers of registered securities if the disclosures in the
registration statements and prospectus are materially defective. Also
the statute contains antifraud provisions which apply generally to the
sale of securities, whether or not registered.
(b) Securities Exchange Act of 1934. This Act requires the filing of
registration applications and annual and other reports with national
securities exchanges and the Commission, by companies whose securities
are listed on the exchanges. Annual and other reports must be filed also
by certain companies whose securities are traded on the over-the-counter
markets. These must contain financial and other data prescribed by the
Commission for the information of investors. Material misstatements or
omissions are grounds for suspension or withdrawal of the security from
exchange trading. This Act makes unlawful any solicitation of proxies,
authorizations, or consents in contravention of Commission rules. These
rules require disclosure of information about the subject of the
solicitation to security holders. The Act requires disclosure of the
holdings and the transactions by an officer, director, or beneficial
owner of over 10 percent of any class of equity security of certain
companies. It also requires disclosure of the beneficial owners of more
than five percent of any class of equity securities of a registered
company. It provides substantive and procedural protection to security
holders in third-party and issuer tender offers.
[[Page 9]]
The Act also provides for the registration with, and regulation by, the
Commission of national securities exchanges, brokers or dealers engaged
in an over-the-counter securities business, and national associations of
such brokers or dealers. It gives the Commission rulemaking power with
respect to short sales, stabilizing, floor trading activities of
specialists and odd-lot dealers, and such matters as excessive trading
by exchange members. The Act authorizes the Board of Governors of the
Federal Reserve System to prescribe minimum margin requirements for
listed securities.
(c) Trust Indenture Act of 1939. This Act safeguards the interests
of purchasers of publicly-offered debt securities issued under trust
indentures by requiring the inclusion of certain protective provisions
in, and the exclusion of certain types of exculpatory clauses from,
trust indentures. The Act also requires that an independent indenture
trustee represent the debtors by proscribing certain relationships that
could conflict with proper exercise of duties.
(d) Investment Company Act of 1940. This Act establishes a
comprehensive regulatory framework for investment companies and subjects
their activities to regulation under standards prescribed for the
protection of investors. Among other things, the Act provides for the
registration of investment companies with the Commission; requires them
to disclose their financial condition and investment policies to their
shareholders; prohibits them from substantially changing investment
policies without shareholder approval; bars persons guilty of securities
fraud from serving as officers or directors; prevents underwriters,
investment bankers, or brokers from constituting more than a minority of
the directors of an investment company; requires that management
contracts be submitted to shareholders for their approval; prohibits
transactions between investment companies and their directors, officers,
or affiliated companies or persons, except when approved by the
Commission; and prohibits investment companies from issuing senior
securities except under specified terms and conditions. The Act also
regulates advisory fees, sales and repurchases of securities, exchange
offers, and other activities of investment companies. The Act authorizes
the Commission to exempt any person or class of persons or securities
from any provisions of, or rules under, the Act and to conduct any
investigation it deems necessary to determine existing or potential
violations of the Act. It also authorizes the Commission to prepare
reports to security holders on the fairness of plans of reorganization,
merger, or consolidation. The Commission may institute a court action to
enjoin acts or practices of management involving, among other things, a
breach of fiduciary duty and the consummation of plans of
reorganization, merger, or consolidation that are grossly unfair to
security holders.
(e) Investment Advisers Act of 1940. Persons who, for compensation,
engage in the business of advising others with respect to their security
transactions must register with the Commission. Their activities in the
conduct of such business are subject to standards of the act which make
unlawful those practices which constitute fraud or deceit and which
require, among other things, disclosure of any interests they may have
in transactions executed for clients. The Act grants to the Commission
rule-making power with respect to fraudulent and other activities of
investment advisers.
(f) Chapter 11 of the Bankruptcy Code. Chapter 11 of the Bankruptcy
Code (11 U.S.C. 1101 et seq.) provides for Commission participation as a
statutory party in reorganization cases. Under section 1109(a) of the
Bankruptcy Code (11 U.S.C. 1109(a)), which also applies to Chapter 9
cases regarding municipalities, the Commission ``may raise and may
appear and be heard on any issue in the case.''
(11 U.S.C. 901, 1109(a))
[27 FR 12712, Dec. 22, 1962, as amended at 49 FR 12684, Mar. 30, 1984;
60 FR 14624, Mar. 20, 1995; 76 FR 71874, Nov. 21, 2011]
General Organization
Sec. 200.10 The Commission.
The Commission is composed of five members, not more than three of
whom may be members of the same political party. The members are
appointed by
[[Page 10]]
the President, with the advice and consent of the Senate, for 5-year
terms, one term ending each year. The Chairman is designated by the
President pursuant to the provisions of section 3 of Reorganization Plan
No. 10 of 1950 (3 CFR, 1949-1953 Comp., p. 1006). The Commission is
assisted by a staff, which includes lawyers, accountants, engineers,
financial security analysts, investigators and examiners, as well as
administrative and clerical employees.
Sec. 200.11 Headquarters Office--Regional Office relationships.
(a)(1) Division and Office Heads in the Headquarters Office (100 F
Street, NE., Washington, DC 20549) have Commission-wide responsibility
to the Commission for the overall development, policy and technical
guidance, and policy direction of the operating programs under their
jurisdiction.
(2) Each Regional Director is responsible for the direction and
supervision of his or her work force and for the execution of all
programs in his or her office's region as shown in paragraph (b) of this
section, in accordance with established policy, and reports, on
enforcement matters, to the Deputy Director of the Division of
Enforcement who is responsible for Regional Office enforcement matters
and, on examination matters, to the Director of the Office of Compliance
Inspections and Examinations. The Director of Regional Office Operations
interacts with the Regional Directors and their staff on operational and
administrative/management issues and serves as their representative in
the Commission's Washington Headquarters in those areas.
(b) Regional Directors of the Commission.
Atlanta Regional Office: Alabama, Georgia, North Carolina, South
Carolina, and Tennessee--Regional Director, 3475 Lenox Road, NE., Suite
1000, Atlanta, GA 30326-1232.
Boston Regional Office: Connecticut, Maine, Massachusetts, New
Hampshire, Rhode Island, and Vermont--Regional Director, 33 Arch Street,
23rd Floor, Boston, MA 02110-1424.
Chicago Regional Office: Kentucky, Illinois, Indiana, Iowa,
Michigan, Minnesota, Missouri, Ohio, and Wisconsin--Regional Director,
175 West Jackson Boulevard, Suite 900, Chicago, IL 60604-2908.
Denver Regional Office: Colorado, Kansas, Nebraska, New Mexico,
North Dakota, South Dakota, and Wyoming--Regional Director, 1801
California Street, Suite 1500, Denver, CO 80202-2656.
Fort Worth Regional Office: Arkansas, Kansas (for certain purposes),
Oklahoma, and Texas--Regional Director, Burnett Plaza, Suite 1900, 801
Cherry Street, Unit 18, Fort Worth, TX 76102-6882.
Los Angeles Regional Office: Arizona, Southern California (zip codes
93599 and below, except 93200-93299), Guam, Hawaii, and Nevada--Regional
Director, 5670 Wilshire Boulevard, 11th Floor, Los Angeles, CA 90036-
3648.
Miami Regional Office: Florida, Louisiana, Mississippi, Puerto Rico,
and the Virgin Islands--Regional Director, 801 Brickell Avenue, Suite
1800, Miami, FL 33131-4901.
New York Regional Office: New York and New Jersey--Regional
Director, 3 World Financial Center, Suite 400, New York, NY 10281-1022.
Philadelphia Regional Office: Delaware, District of Columbia,
Maryland, Pennsylvania, Virginia, and West Virginia--Regional Director,
701 Market Street, Suite 2000, Philadelphia, PA 19106-1532.
Salt Lake City Regional Office: Utah--Regional Director, 15 W. South
Temple Street, Suite 1800, Salt Lake City, UT 84101-1573.
San Francisco Regional Office: Alaska, Northern California (zip
codes 93600 and up, plus 93200-93299), Idaho, Montana, Oregon, and
Washington--Regional Director, 44 Montgomery Street, Suite 2600, San
Francisco, CA 94104-4716.
(c) The geographic allocation set forth in paragraph (b) of this
section determines where registered brokers, dealers, transfer agents,
clearing agents, registered securities associations, investment
advisers, and others as designated in this chapter must file reports
required to be filed in regional offices.
[73 FR 32223, June 5, 2008]
Sec. 200.12 Functional responsibilities.
This section sets forth the administrative and substantive
responsibilities of the Division Directors, Office Heads, Regional
Directors, and certain other Commission officers. All Commission
officers and other staff members, except administrative law judges and
the Inspector General, shall perform, in addition to the duties herein
set forth, such additional duties as the chairman of the Commission may
assign from time to time. These officers also serve as liaison with
Government and other
[[Page 11]]
agencies concerning matters within their respective functional
responsibilities.
[37 FR 23826, Nov. 9, 1972, as amended at 59 FR 5943, Feb. 9, 1994; 60
FR 14624, Mar. 20, 1995; 73 FR 32223, June 5, 2008]
Sec. 200.13 Chief Operating Officer.
(a) The Chief Operating Officer is responsible for developing and
executing the overall management policies of the Commission for all its
operating divisions and staff offices. The Chief Operating Officer also
provides executive direction to, and exercises administrative control
over, the Office of Human Resources, the Office of Administrative
Services, the Office of Financial Management, the Office of FOIA,
Records Management, and Security, and the Office of Information
Technology. In addition, the Chief Operating Officer implements the
following statutes, regulations, and Executive orders, as well as those
that the Chairman may designate:
(1) Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
(2) Small and Disadvantaged Business Utilization Program (15 U.S.C.
631 et seq.).
(3) Government Printing and Binding Regulations, U.S. Congress Joint
Committee on Printing (1977).
(4) Occupational Safety and Health Programs for Federal Employees
under Executive Order 12196 of February 26, 1980 (29 CFR 1960.1-
1960.90).
(5) Federal Managers' Financial Integrity Act of 1982 (31 U.S.C.
3512).
(6) National Security Information under Executive Order 12356 of
April 6, 1982.
(7) Government Performance and Results Act of 1993 (31 U.S.C. 1101
et seq.).
(8) Recommendations of the Report of the National Performance Review
(September 1993).
(b) The Chief Operating Officer appoints personnel, reviews and
approves policies and procedures, and assures appropriate resources to
implement the programs set forth in paragraph (a) of this section, and
authorizes and transmits reports required by them.
(c) The Chief Operating Officer also designates certifying officers
for agency payments.
(d) The Chief Operating Officer shall be responsible for:
(1) Implementing the goals of the President and the Chairman and the
mission of the Commission;
(2) Providing overall organizational management to improve agency
performance;
(3) Assisting the Chairman in promoting ongoing quality improvement,
developing strategic plans, and measuring results;
(4) Directing ongoing reengineering of the Commission's
administrative processes;
(e) Overseeing Commission-specific application of performance
measures, procurement reforms, personnel reductions, financial
management improvements, telecommunications and information technology
policies, and other government-wide systems reforms adopted as a result
of the recommendations of the National Performance Review; and
(f) Reforming the Commission's management practices by incorporating
the principles of the National Performance Review into day-to-day
management.
[60 FR 14624, Mar. 20, 1995, as amended at 76 FR 60371, Sept. 29, 2011]
Sec. 200.13a The Secretary of the Commission.
(a) The Secretary of the Commission is responsible for the
preparation of the daily and weekly agendas of Commission business; the
orderly and expeditious flow of business at formal Commission meetings;
the maintenance of the Official Minute record of all actions of the
Commission; and the service of all instruments of formal Commission
action. He or she is custodian of the official seal of the Commission,
and also has the responsibility for authenticating documents.
(b) The Secretary has been delegated responsibilities relating to
the Commission's rules of practice, administrative proceedings under the
Commission's statutes, and other responsibilities.
(c) In addition, he or she administers the Commission's Library.
[50 FR 12239, Mar. 28, 1985]
[[Page 12]]
Sec. 200.13b Director of the Office of Public Affairs, Policy Evaluation,
and Research.
The Director of the Office of Public Affairs, Policy Evaluation, and
Research is the chief public information officer for the Commission, and
oversees activities that communicate the Commission's actions to those
interested in or affected by them. His or her responsibilities include
liaison with the news media, dissemination of information to the news
media and to the general public, supervision of internal and some
external publications and of audio-visual presentations.
Responsibilities of the Director, and of his or her staff, include
special projects that may be deemed appropriate to communicate
information on Commission actions.
[50 FR 12239, Mar. 28, 1985, as amended at 60 FR 14625, Mar. 20, 1995]
Sec. 200.14 Office of Administrative Law Judges.
(a) Under the Administrative Procedure Act (5 U.S.C. 551-559) and
the federal securities laws, the Office of Administrative Law Judges
conducts hearings in proceedings instituted by the Commission. The
Administrative Law Judges are responsible for the fair and orderly
conduct of the proceedings and have the authority to:
(1) Administer oaths and affirmations;
(2) Issue subpoenas;
(3) Rule on offers of proof;
(4) Examine witnesses;
(5) Regulate the course of a hearing;
(6) Hold pre-hearing conferences;
(7) Rule upon motions; and
(8) Unless waived by the parties, prepare an initial decision
containing the conclusions as to the factual and legal issues presented,
and issue an appropriate order.
(b) The Chief Administrative Law Judge performs the duties of an
Administrative Law Judge under the Administrative Procedure Act and the
duties delegated to him or her by the Commission that are compatible
with those duties. The Chief Administrative Law Judge is responsible for
the orderly functioning of the Office of Administrative Law Judges apart
from the conduct of administrative proceedings and acts as liaison
between that Office and the Commission.
[60 FR 14625, Mar. 20, 1995]
Sec. 200.15 Office of International Affairs.
(a) The Office of International Affairs (``OIA'') is responsible for
the negotiation and implementation of the Commission's bilateral and
multilateral agreements and understandings with foreign financial
regulatory authorities. OIA coordinates and participates in activities
relating to the Commission's international cooperation programs and
develops initiatives to enhance the Commission's ability to enforce the
federal securities laws in matters with international elements.
(b) OIA assists in and facilitates the efforts of the Commission's
other divisions and offices in responding to international issues and in
developing legislative, rulemaking and other initiatives relating to
international securities markets. OIA facilitates the development of
and, where appropriate, provides advice and presents Commission
positions relating to international initiatives of other U.S. Government
departments and agencies affecting regulation of securities markets. OIA
plans, coordinates and participates in Commission meetings with foreign
financial regulatory authorities.
[58 FR 52418, Oct. 8, 1993]
Sec. 200.16 Executive Assistant to the Chairman.
The Executive Assistant to the Chairman assists the Chairman in
consideration of legal, financial, and economic problems encountered in
the administration of the Commission's statutes. He or she arranges for
and conducts conferences with officials of the Commission, members of
the staff, and/or representatives of the public on matters arising with
regard to general programs or specific matters. Acting for the Chairman,
he or she furnishes the initiative, executive direction, and authority
for staff studies and reports bearing on the Commission's administration
of the laws and its relations with the public, industry, and the
Congress. The Executive Assistant is also responsible for assisting
members of the Commission in the preparation of
[[Page 13]]
the opinions of the Commission, and to the Commission for the
preparation of opinions and decisions on motions and certifications of
questions and rulings by administrative law judges in the course of
administrative proceedings under Rule 102(e) of the Commission's Rules
of Practice (Sec. 201.102(e) of this chapter), and in other cases in
which the Chairman or the General Counsel has determined that separation
of functions requirements or other circumstances would make
inappropriate the exercise of such functions by the General Counsel. In
cases where, pursuant to a waiver by the parties of separation of
function requirements, another Division or Office of the Commission's
staff undertakes to prepare an opinion or decision, such Division or
Office rather than the Executive Assistant will prepare such opinion or
decision, although the Executive Assistant may assist in such
preparation. The Executive Assistant is further responsible for the
exercise of such review functions with respect to adjudicatory matters
as are delegated to him or her by the Commission pursuant to 101 Stat.
1254 (15 U.S.C. 78d-1, 78d-2) or as may be otherwise delegated or
assigned to him or her.
[54 FR 18100, Apr. 27, 1989, as amended at 60 FR 32794, June 23, 1995]
Sec. 200.16a Inspector General.
(a) Under the Inspector General Act of 1978, as amended, (5 U.S.C.
app.) the Inspector General performs independent and objective
investigations and audits relating to the Commission's programs and
operations. An investigation seeks to detect and prevent waste, fraud,
and abuse in the Commission's programs and operations, such as
violations of federal statutes or regulations by contractors and
Commission employees or the Standards Of Ethical Conduct For Employees
of the Executive Branch. An audit seeks to determine whether:
(1) Program goals and results identified in enabling legislation are
achieved.
(2) Resources are efficiently and economically used and managed.
(3) Financial operations are properly conducted.
(4) Financial reports are fairly presented.
(5) Applicable laws and regulations are complied with.
(b) In cooperation with Commission management, the Inspector General
generally promotes economy, efficiency, and the effectiveness of waste
or fraud detection and prevention in the Commission's programs and
operations. The Inspector General also keeps the Congress and the
Commission informed about problems and deficiencies in the Commission's
programs and operations.
(c) The Inspector General reports to the Commission, but is
independent of all other Commission management. In addition, the
Inspector General independently prepares semi-annual reports to the
Congress.
(d) With respect to misconduct of Commission employees and
contractors, the Inspector General, after consultation with the Ethics
Counsel, where appropriate, serves as the Commission's liaison with
other federal audit and investigative agencies, such as the Department
of Justice and the Executive Council on Integrity and Efficiency.
(e) Subpoenas issued in the course of an audit or investigation
conducted by the Office of the Inspector General shall be effected by
any method prescribed by Sec. 201.232(a) and (c) of this chapter.
[60 FR 14625, Mar. 20, 1995, as amended at 77 FR 8095, Feb. 14, 2012]
Sec. 200.17 Chief Management Analyst.
The Chief Management Analyst is responsible to the Chief Operating
Officer for overseeing the performance of management analysis tasks
which pertain, but are not limited, to:
(a) Agency work methods and procedures;
(b) Effective personnel and resource allocation and utilization;
(c) Organizational structures and delegations of authority;
(d) Management information systems and concepts; and
(e) The preparation of recurring special reports and analyses.
[60 FR 14625, Mar. 20, 1995]
[[Page 14]]
Sec. 200.18 Director of Division of Corporation Finance.
The Director of the Division of Corporation Finance is responsible
to the Commission for the administration of all matters (except those
pertaining to investment companies registered under the Investment
Company Act of 1940) relating to establishing and requiring adherence to
standards of business and financial disclosure with respect to
securities being offered for public sale pursuant to the registration
requirements of the Securities Act of 1933 (15 U.S.C. 77a et seq.) or
the exemptions therefrom; establishing and requiring adherence to
standards of reporting and disclosure with respect to securities traded
on national securities exchanges or required to be registered pursuant
to section 12 (g) of the Securities Exchange Act of 1934 (15 U.S.C.
78l(g)) and with respect to securities whose issuers are required to
file reports pursuant to section 15(d) of that Act (15 U.S.C. 78c(d));
establishing and requiring adherence to disclosure and procedural
standards in the solicitation of proxies for the election of directors
and other corporate actions; establishing and requiring adherence to
standards of disclosure with respect to the filing of statements
respecting beneficial ownership and transaction statements pursuant to
sections 13 (d), (e), and (g) (15 U.S.C. 78m(d), 78m(e), and 78m(g)) of
the Securities Exchange Act of 1934; administering the disclosure and
substantive provisions of the Williams Act relating to tender offers;
and ensuring adherence to enforcement of the standards set forth in the
Trust Indenture Act of 1939 (15 U.S.C. 77aaa et seq.) regarding
indenture covering debt securities. Those duties shall include, with the
exception of enforcement and related activities under the jurisdiction
of the Division of Enforcement, the responsibility to the Commission for
the administration of the disclosure requirements and other provisions
of the Securities Act of 1933, the Securities Exchange Act of 1934, and
the Trust Indenture Act of 1939, as listed below:
(a) All matters under the Securities Act of 1933 (15 U.S.C. 77a et
seq.) including the examination and processing of material filed
pursuant to the requirements of that Act (except such material filed by
investment companies registered under the Investment Company Act of
1940), the interpretation of the provisions of the Securities Act of
1933, and the proposing to the Commission of rules under that Act.
(b) All matters, except those pertaining to investment companies
registered under the Investment Company Act of 1940, arising under the
Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) in connection
with:
(1) The registration of securities pursuant to section 12 of the Act
(15 U.S.C. 78l), including the exemptive provisions of section 12(h) (15
U.S.C. 78l(h)).
(2) The examination and processing of periodic reports filed
pursuant to sections 13 and 15(d) of the Act (15 U.S.C. 78m, 78o(d)).
(3) The examination and processing of proxy soliciting material
filed pursuant to section 14(a) and information statements filed
pursuant to section 14(c) of the Act (15 U.S.C. 78n(a), 78n(c)).
(4) The examination and processing of statements respecting
beneficial ownership transaction statements and tender offer statements
filed pursuant to sections 13 (d), (e), and (g) and 14 (d), (e), (f),
and (g) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(d),
78m(e), 78m(g), and 78n(d)), and the administration of the other
protective standards of these provisions.
(5) The interpretation of the foregoing provisions of the Act, as
well as Section 16 thereof (15 U.S.C. 78p), and proposing of rules under
those portions of the Act to the Commission.
(c) All matters, except those pertaining to investment companies
registered under the Investment Company Act of 1940, arising under the
Trust Indenture Act of 1939 (15 U.S.C. 77aaa et seq.).
[41 FR 29374, July 16, 1976, as amended at 50 FR 12239, Mar. 28, 1985;
60 FR 14625, Mar. 20, 1995]
Sec. 200.19a Director of the Division of Trading and Markets.
The Director of the Division of Trading and Markets is responsible
to the Commission for the administration and execution of the
Commission's programs under the Securities Exchange
[[Page 15]]
Act of 1934 relating to the structure and operation of the securities
markets and the prevention of manipulation in the securities markets.
These responsibilities include oversight of the national market system,
the national clearance and settlement system, and self-regulatory
organizations, such as the national securities exchanges, registered
securities associations, clearing agencies, the Municipal Securities
Rulemaking Board, and the Securities Investor Protection Corporation. In
addition, these responsibilities include administering the Commission's
rules related to supervised investment bank holding companies and
ultimate holding companies of brokers or dealers that compute deductions
for market and credit risk pursuant to Sec. 240.15c3-1e of this
chapter. This supervision includes the assessment of internal risk
management controls and mathematical models used to calculate net
capital and allowances for market, credit, and operational risks. Duties
also include the registration and regulation of brokers, dealers,
municipal securities dealers, government securities brokers and dealers,
transfer agents, and securities information processors. The functions
involved in the regulation of such entities include reviewing proposed
rule changes of self-regulatory organizations, recommending the adoption
and amendment of Commission rules, responding to interpretive,
exemptive, and no-action requests, and conducting inspections,
examinations, and market surveillance. In addition, the Director shall
have the duties specified below:
(a) Administration of all matters arising under the Securities
Exchange Act of 1934 (15 U.S.C. 78a et seq.), except:
(1) The examination and processing of applications for registration
of securities on national securities exchanges pursuant to section 12 of
the Act (15 U.S.C. 78l).
(2) The examination and processing of periodic reports filed
pursuant to sections 13 and 15(d) of the Act (15 U.S.C. 78m, 78o(d)).
(3) The examination and processing of proxy soliciting material
pursuant to regulations adopted under section 14 of the Act (15 U.S.C.
78n).
(4) The examination and processing of ownership reports filed under
section 16(a) of the Act (15 U.S.C. 78p(a)).
(5) The denial or suspension of registration of securities
registered on national securities exchanges, pursuant to section
19(a)(2) (15 U.S.C. 78s(a)(2)) by reason of failure to comply with the
reporting requirements of that Act.
(6) The enforcement and related activities under the jurisdiction of
the Division of Enforcement.
[37 FR 16792, Aug. 19, 1972, as amended at 43 FR 13376, Mar. 30, 1978;
60 FR 14625, Mar. 20, 1995; 69 FR 34461, June 21, 2004; 73 FR 40152,
July 11, 2008]
Sec. 200.19b Director of the Division of Enforcement.
The Director of the Division of Enforcement is responsible to the
Commission for supervising and conducting all enforcement activities
under the acts administered by the Commission. The Director recommends
the institution of administrative and injunctive actions arising out of
such enforcement activities and determines the sufficiency of evidence
to support the allegations in any proposed complaint. The Director
supervises the Regional Directors and, in collaboration with the General
Counsel, reviews cases to be recommended to the Department of Justice
for criminal prosecution. The Director grants or denies access to
nonpublic information in the Commission's enforcement files under Sec.
240.24c-1 of this chapter; provided that access under that section shall
be granted only with the concurrence of the head of the division or
office responsible for the information or the files containing it.
[60 FR 14626, Mar. 20, 1995]
Sec. 200.19c Director of the Office of Compliance Inspections
and Examinations.
The Director of the Office of Compliance Inspections and
Examinations (``OCIE'') is responsible for the compliance inspections
and examinations relating to the regulation of exchanges, national
securities associations, clearing agencies, securities information
processors, the Municipal Securities
[[Page 16]]
Rulemaking Board, brokers and dealers, municipal securities dealers,
municipal advisors, transfer agents, investment companies, and
investment advisers, under Sections 15B, 15C(d)(1) and 17(b) of the
Securities Exchange Act of 1934 (15 U.S.C. 78o-4, 78o-5(d)(1) and
78q(b)), Section 31(b) of the Investment Company Act of 1940 (15 U.S.C.
80a-30(b)), and Section 204 of the Investment Advisers Act of 1940 (15
U.S.C. 80b-4).
[78 FR 67632, Nov. 12, 2013]
Sec. 200.19d Director of the Office of Municipal Securities.
The Director of the Office of Municipal Securities is responsible to
the Commission for the administration and execution of the Commission's
programs under the Securities Exchange Act of 1934 relating to the
registration and regulation of municipal advisors. The functions
involved in the regulation of such entities include recommending the
adoption and amendment of Commission rules, and responding to
interpretive and no-action requests.
[78 FR 67632, Nov. 12, 2013]
Sec. 200.20b Director of Division of Investment Management.
The Director of the Division of Investment Management is responsible
to the Commission for the administration of the Commission's
responsibilities under the Investment Company Act of 1940 and the
Investment Advisers Act of 1940, and with respect to matters pertaining
to investment companies registered under the Investment Company Act of
1940 and pooled investment funds or accounts, the administration of all
matters relating to establishing and requiring adherence to standards of
economic and financial reporting and the administration of fair
disclosure and related matters under the Securities Act of 1933 and the
Securities Exchange Act of 1934 and enforcement of the standards set
forth in the Trust Indenture Act of 1939 regarding indentures covering
debt securities, as listed in paragraphs (a) through (e) of this
section. These duties shall include inspections arising in connection
with such administration but shall exclude enforcement and related
activities under the jurisdiction of the Division of Enforcement.
(a) The administration of all matters arising under the Investment
Company Act of 1940 (15 U.S.C. 80a), except those arising under section
30(h) of the Act (15 U.S.C. 80a-29(h)).
(b) All matters arising under the Securities Act of 1933 (15 U.S.C.
77a et seq.) arising from or pertaining to material field pursuant to
the requirements of that Act by investment companies registered under
the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.) and pooled
investment funds or accounts.
(c) All matters arising under the Securities Exchange Act of 1934
(15 U.S.C. 78a et seq.), except the examination and processing of
statements of beneficial ownership of securities and changes in such
ownership filed under section 16(a) (15 U.S.C. 78p(a)) of such Act,
pertaining to investment companies registered under the Investment
Company Act of 1940 and pooled investment funds or accounts in
connection with:
(1) The registration of securities pursuant to section 12 of the Act
(15 U.S.C. 78l), including the exemptive provisions of section 12(h) (15
U.S.C. 78l(h)).
(2) The examination and processing of periodic reports filed
pursuant to sections 13 and 15(d) of the Act (15 U.S.C. 78m, 78o(d)).
(3) The examination and processing of proxy soliciting material
filed pursuant to section 14(a) and information material filed pursuant
to section 14(c) of the Act (15 U.S.C. 78n(a), 78n(c)).
(d) All matters pertaining to investment companies registered under
the Investment Company Act of 1940 and pooled investment funds or
accounts arising under the Trust Indenture Act of 1939 (15 U.S.C. 77aaa
et seq.).
(e) All matters arising under the Investment Advisers Act of 1940
(15 U.S.C. 80b-1 et seq.).
[41 FR 29375, July 16, 1976, as amended at 50 FR 5064, Feb. 5, 1985; 60
FR 14626, Mar. 20, 1995; 67 FR 43535, July 8, 2002; 76 FR 71874, Nov.
21, 2011]
Sec. 200.21 The General Counsel.
(a) The General Counsel is the chief legal officer of the
Commission. He or
[[Page 17]]
she is responsible for the representation of the Commission in judicial
proceedings in which it is involved as a party or as amicus curiae, for
directing and supervising all civil litigation involving the Commission
in the United States District Courts, except for law enforcement actions
filed on behalf of the Commission, for directing and supervising the
Commission's responsibilities under the Bankruptcy Code and all related
litigation, and for representing the Commission in all cases in
appellate courts. The General Counsel is responsible for the review of
cases which the Division of Enforcement recommends be referred to the
Department of Justice with a recommendation for criminal prosecution. In
addition, he or she is responsible for advising the Commission at its
request or at the request of any division director or office head, or on
his or her own motion, with respect to interpretations involving
questions of law; for the conduct of administrative proceedings relating
to the disqualification of lawyers from practice before the Commission;
for conducting preliminary investigations, as described in 17 CFR
202.5(a), into potential violations of 17 CFR 201.102(e) by attorneys;
for the preparation of the Commission comments to the Congress on
pending legislation; and for the drafting, in conjunction with
appropriate divisions and offices, of legislative proposals to be
sponsored by the Commission. The General Counsel is responsible for
providing advice to Commission attorneys on professional responsibility
issues relating to their official duties. The General Counsel is further
responsible for investigating allegations of professional misconduct by
Commission staff and, where appropriate, making referrals to state
professional boards or societies. The General Counsel is also
responsible for the review and clearance of the form and content of
articles, treatises, and prepared speeches and addresses by members of
the staff relating to the Commission or to the statutes and rules
administered by the Commission. The General Counsel also is responsible
for coordinating and reviewing the interpretive positions of the various
divisions and offices. In addition, he or she is responsible for
appropriate disposition of all Freedom of Information Act and Privacy
Act appeals pursuant to the authority delegated in Sec. 200.30-14 of
this chapter, and is the Commission's advisor with respect to legal
problems arising under the Freedom of Information Act, the Privacy Act,
the Federal Reports Act, the Federal Advisory Committee Act, the Civil
Service laws and regulations, the statutes and rules applicable to the
Commission's procurement, contracting, fiscal and related administrative
activities, and other statutes and regulations of a similar nature
applicable to a number of Government agencies.
(b) The General Counsel is also responsible for assisting members of
the Commission in the preparation of the opinions of the Commission, and
to the Commission for the preparation of opinions and decisions on
motions and certifications of questions and rulings by administrative
law judges in the course of administrative law proceedings, except (1)
in cases where, pursuant to a waiver by the parties of separation of
function requirements, another Division or Office of the Commission's
staff undertakes to prepare an opinion or decision, in which cases the
General Counsel may assist in such preparation, and (2) with respect to
administrative proceedings against lawyers under Rule 102(e) of the
Commission's Rules of Practice (Sec. 201.102(e) of this chapter) or
other cases in which the Chairman or the General Counsel has determined
that separation of function requirements or other circumstances would
make inappropriate the exercise of such functions by the General
Counsel. In the cases described in clause (2), the Executive Assistant
to the Chairman exercises such functions. The General Counsel deals with
general problems arising under the Administrative Procedure Act,
including the revision or adoption of rules of practice. The General
Counsel is also responsible for the exercise of such review functions
with respect to adjudicatory matters as are delegated to him or her by
the Commission pursuant to 101 Stat. 1254 (15 U.S.C. 78d-1, 78d-2) or as
may be otherwise delegated or assigned to him or her.
[[Page 18]]
(c) The General Counsel also is responsible to the Commission for
the administration of the Government in the Sunshine Act for publicly
certifying, pursuant to Sec. 200.406, that, in his or her opinion,
particular Commission meetings may properly be closed to the public. In
the absence of the General Counsel, the Solicitor to the Commission
shall be deemed the General Counsel for purposes of Sec. 200.406. In
the absence of the General Counsel and the Solicitor, the most senior
Associate General Counsel available shall be deemed the General Counsel
for purposes of Sec. 200.406. In the absence of the General Counsel,
the Solicitor, and every Associate General Counsel, the most senior
Assistant General Counsel available shall be deemed the General Counsel
for purposes of Sec. 200.406. In the absence of the General Counsel,
the Solicitor, every Associate General Counsel and every Assistant
General Counsel, such attorneys as the General Counsel may designate (in
such order of succession as the General Counsel directs) shall exercise
the responsibilities imposed by Sec. 200.406.
[43 FR 13376, Mar. 30, 1978, as amended at 47 FR 26821, June 22, 1982;
47 FR 37077, Aug. 25, 1982; 49 FR 12685, Mar. 30, 1984; 49 FR 13866,
Apr. 9, 1984; 50 FR 12240, Mar. 28, 1985; 54 FR 18100, Apr. 27, 1989; 54
FR 24331, June 7, 1989; 60 FR 14626, Mar. 20, 1995; 69 FR 13174, Mar.
19, 2004; 71 FR 27385, May 11, 2006; 76 FR 60371, 60372, Sept. 29, 2011;
76 FR 71449, Nov. 18, 2011; 79 FR 1735, Jan. 10, 2014]
Sec. 200.21a The Ethics Counsel.
(a) The Ethics Counsel is responsible for administering the
Commission's Ethics Program and for interpreting subpart M of this part
and 5 CFR part 2635. He or she serves as Counselor to the Commission and
its staff with regard to ethical and conflicts of interest questions and
acts as the Commission's liaison on such matters with the Office of
Human Resources, the Office of Government Ethics, the Office of the
Inspector General and the Department of Justice. When appropriate and
subject to the authority of, and in consultation with, the Inspector
General, the Ethics Counsel shall inquire into alleged violations of
subparts C, F, and M of this part, and 5 CFR part 2635.
(b) The Ethics Counsel shall:
(1) Receive and review allegations of misconduct by a Commission
employee that relate to the Commission's Ethics Program.
(2) Refer matters involving management questions to Division
Directors, Office Heads, or Regional Directors, and matters involving
alleged or apparent employee misconduct to the Office of the Inspector
General, except for matters involving alleged professional misconduct
ultimately referable to state professional boards or societies, which
the Ethics Counsel shall refer to the General Counsel.
(3) Refer complaints that appear to involve a violation of Federal
criminal statutes, and do not appear to be frivolous, to the Inspector
General for referral to the Department of Justice under 28 U.S.C. 535.
(4) Act as liaison with the Office of the Inspector General on
matters that the Ethics Counsel has referred to that Office, and with
state or local authorities on matters that, on occasion, the Ethics
Counsel may refer to them.
(5) Arrange for the review of proposed publications and prepared
speeches under Sec. 200.735-4(e).
(6) Provide advice, counseling, interpretations, and opinions with
respect to subparts C, F, and M of this part, and 5 CFR part 2635.
(7) Draft rules and regulations as necessary to implement the
Commission's Ethics Program.
[60 FR 14626, Mar. 20, 1995, as amended at 73 FR 32224, June 5, 2008; 76
FR 71449, Nov. 18, 2011; 79 FR 1735, Jan. 10, 2014]
Sec. 200.22 The Chief Accountant.
The Chief Accountant of the Commission is the principal adviser to
the Commission on, and is responsible to the Commission for, all
accounting and auditing matters arising in the administration of the
federal securities laws. The Chief Accountant oversees the accounting
profession's standard-setting and self-regulatory organizations,
develops or supervises the development of accounting and auditing rules,
regulations, opinions and policy, and interprets Commission accounting
policy and positions. The Chief Accountant is responsible for
recommending the institution of administrative and disciplinary
proceedings relating to the
[[Page 19]]
disqualification of accountants to practice before the Commission. The
Chief Accountant supervises the procedures to be followed in the
Commission's enforcement activities involving accounting and auditing
issues and helps resolve differences on accounting issues between
registrants and the Commission staff.
[60 FR 14626, Mar. 20, 1995]
Sec. 200.23a Office of Economic Analysis.
The Office of Economic Analysis is responsible for providing an
objective economic perspective to understand and evaluate the economic
dimension of the Commission's regulatory oversight. It performs economic
analyses of proposed rule changes, current or proposed policies, and
capital market developments and offers advice on the basis of these
analyses. The Office also assists the Commission's enforcement effort by
applying economic analysis and statistical tools to issues raised in
enforcement cases. It reviews certifications and initial and final
regulatory flexibility analyses prepared by the operating divisions
under the Regulatory Flexibility Act.
[60 FR 14627, Mar. 20, 1995]
Sec. 200.23b [Reserved]
Sec. 200.24 Office of Financial Management.
This Office, under the direction of the Chief Financial Officer, is
responsible to the Chief Operating Officer, Chairman and Commission for
the internal financial management and programming functions of the
Securities and Exchange Commission. These functions include: budgeting,
accounting, payroll and adminstrative audit. The Chief Financial
Officer, and his or her designees, serve as liaison to the Commission
before the Office of Management and Budget and Congressional
Appropriations Committees on appropriation matters, and the Treasury
Department and the General Accounting Office on financial and progamming
matters.
(11 U.S.C. 901, 1109(a))
[49 FR 12685, Mar. 30, 1984, as amended at 60 FR 14627, Mar. 20, 1995;
76 FR 60372, Sept. 29, 2011]
Sec. 200.24a Director of the Office of Consumer Affairs.
The Director of the Office of Consumer Affairs is responsible to the
Chairman for the Commission's investor education and consumer protection
program. The program includes, but is not limited to:
(a) Presenting seminars and instructional programs to educate
investors about the securities markets and their rights as investors;
preparing and distributing to the public materials describing the
operations of the securities markets, prudent investor behavior, and the
rights of investors in disputes they may have with individuals and
entities regulated by the Commission; and increasing public knowledge of
the functions of the Commission.
(b) Implementing and administering a nationwide system for resolving
investor complaints against individuals and entities regulated by the
Commission by processing complaints received from individual investors
and assuring that regulated individual and entities process and respond
to such complaints.
(c) Providing information to investors who inquire about individuals
and entities regulated by the Commission, the operation of the
securities markets, or the functions of the Commission.
(d) Advising the Commission and its staff about problems frequently
encountered by investors and possible solutions to them.
(e) Transmitting to other offices and divisions of the Commission
information provided by investors which concerns the responsibilities of
these offices and divisions.
(f) Providing for greater consumer input in Commission rulemaking
proceedings.
[60 FR 14627, Mar. 20, 1995]
Sec. Sec. 200.25-200.26 [Reserved]
Sec. 200.26a Office of Information Technology.
The Office of Information Technology is responsible for the
analysis, design programming, operation, and maintenance of all ADP
systems; developing and implementing long-range ADP plans and programs;
coordinating
[[Page 20]]
all ADP and systems analysis activities being considered or carried out
by other divisions and offices, and furnishing such organizations with
appropriate assistance and support; providing technical advice to the
staff in connection with development of Commission rules and regulations
having ADP implications; facilitating the Commission's surveillance of
ADP in the securities industry; evaluating and recommending new
information processing concepts and capabilities for application within
the Commission; and, development of microcomputer and office automation
capabilities and support within the Commission.
(15 U.S.C. 78d-1, 78d-2; 11 U.S.C. 901, 1109(a))
[43 FR 13377, Mar. 30, 1978, as amended at 49 FR 12685, Mar. 30, 1984;
60 FR 14627, Mar. 20, 1995]
Sec. 200.27 The Regional Directors.
Each Regional Director is responsible for executing the Commission's
programs within his or her geographic region as set forth in Sec.
200.11(b), subject to review, on enforcement matters, by the Deputy
Director of the Division of Enforcement who is responsible for Regional
Office enforcement matters and, on examination matters, by the Director
of the Office of Compliance Inspections and Examinations, and subject to
policy direction and review by the other Division Directors, the General
Counsel, and the Chief Accountant. The Regional Directors'
responsibilities include particularly the investigation of transactions
in securities on national securities exchanges, in the over-the-counter
market, and in distribution to the public; the examination of members of
national securities exchanges and registered brokers and dealers,
transfer agents, investment advisers and investment companies, including
the examination of reports filed under Sec. 240.17a-5 of this chapter;
the prosecution of injunctive actions in U.S. District Courts and
administrative proceedings before Administrative Law Judges; the
rendering of assistance to U.S. Attorneys in criminal cases; and the
making of the Commission's facilities more readily available to the
public in that area. In addition, the Regional Director of the New York
Regional Office is responsible for the Commission's participation in
cases under chapters 9 and 11 of the Bankruptcy Code in Connecticut,
Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania,
Rhode Island, and Vermont; the Regional Director of the Atlanta Regional
Office is responsible for such participation in Alabama, Delaware,
District of Columbia, Florida, Georgia, Louisiana, Maryland,
Mississippi, North Carolina, Puerto Rico, South Carolina, Tennessee,
Virgin Islands, Virginia, and West Virginia; the Regional Director of
the Chicago Regional Office is responsible for such participation in
Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan,
Minnesota, Missouri, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma,
South Dakota, Texas, Wisconsin, and Wyoming; and the Regional Director
of the Los Angeles Regional Office is responsible for such participation
in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada,
Oregon, Utah, and Washington.
[73 FR 32224, June 5, 2008]
Sec. 200.28 Issuance of instructions.
(a) Within the spheres of responsibilities heretofore set forth,
Division and Office Heads, and all Regional Directors may issue such
definitive instructions as may be necessary pursuant to this section.
(b) All existing procedures and authorizations not inconsistent with
this section shall continue in effect until and unless modified by
definitive instructions issued pursuant to this paragraph.
[27 FR 12712, Dec. 22, 1962, as amended at 73 FR 32224, June 5, 2008]
Sec. 200.29 Rules.
The individual operating divisions shall have the initial
responsibility for proposing amendments to existing rules or new rules
under the statutory provisions within the jurisdiction of the particular
division. Where any such proposals presents a legal problem or is a
matter of first impression, or involves a matter of enforcement policy
or questions involving statutes other than those administered by the
Commission, or may have an effect on prior
[[Page 21]]
judicial precedent or pending litigation, submission of the proposal
should be made to the Office of the General Counsel for an expression of
opinion prior to presentation of the matter to the Commission.
Sec. 200.30-1 Delegation of authority to Director of Division
of Corporation Finance.
Pursuant to the provisions of Pub. L., No. 87-592, 76 Stat. 394 (15
U.S.C. 78d-1, 78d-2), the Securities and Exchange Commission hereby
delegates, until the Commission orders otherwise, the following
functions to the Director of the Division of Corporation Finance, to be
performed by him or under his direction by such person or persons as may
be designated from time to time by the Chairman of the Commission:
(a) With respect to registration of securities pursuant to the
Securities Act of 1933 (15 U.S.C. 77a et seq.), and Regulation C
thereunder (Sec. 230.400 et seq. of this chapter):
(1) To determine the effective dates of amendments to registration
statements filed pursuant to section 8(c) of the Act (15 U.S.C. 77h(c)).
(2) To consent to the withdrawal of registration statements or
amendments or exhibits thereto, pursuant to Rule 477 (Sec. 230.477 of
this chapter), and to issue orders declaring registration statements
abandoned, pursuant to Rule 479 (Sec. 230.479 of this chapter).
(3) To grant applications for confidential treatment of contract
provisions pursuant to Rule 406 (Sec. 230.406 of this chapter) under
the Act; to issue orders scheduling hearings on such applications and to
deny any such application as to which the applicant waives his right to
a hearing, provided such applicant is advised of his right to have such
denial reviewed by the Commission.
(4) To accelerate the use or publication of any summary prospectus
filed with the Commission pursuant to section 10(b) of the Act (15
U.S.C. 77j(b)) and Rule 431(g) (Sec. 230.431(g) of this chapter)
thereunder.
(5) To take the following action pursuant to section 8(a) of the Act
(15 U.S.C. 77h(a)):
(i) To determine registration statements to be effective within
shorter periods of time than 20 days after the filing thereof;
(ii) To consent to the filing of amendments prior to the effective
dates of registration statements as part thereof, or to determine that
amendments filed prior to the effective dates of registration statements
have been filed pursuant to orders of the Commission, so as to be
treated as parts of the registration statements for the purpose of
section 8(a) of the Act (15 U.S.C. 77h(a));
(iii) To determine to be effective applications for qualification of
trust indentures filed with registration statements.
(6) Pursuant to instructions as to financial statements contained in
forms adopted under the Act:
(i) To permit the omission of one or more financial statements
therein required or the filing in substitution therefor of appropriate
statements of comparable character, or
(ii) To require the filing of other financial statements in addition
to, or in substitution for, the statements therein required.
(7) Acting pursuant to section 4(a)(3) of the Act (15 U.S.C. 77d(3))
or Rule 174 thereunder (Sec. 230.174 of this chapter), to reduce the
40-day period or the 90-day period with respect to transactions referred
to in section 4(a)(3)(B) of the Act (15 U.S.C. 77d(a)(3)(B)).
(8) To act on applications to dispense with any written consents of
an expert pursuant to Rule 437 (Sec. 230.437 of this chapter).
(9) To determine whether to object, pursuant to Rule 401(g)(1)
(Sec. 230.401(g)(1) of this chapter), and to notify issuers, pursuant
to Rule 401(g)(2) (Sec. 230.401(g)(2) of this chapter), of an objection
to the use of an automatic shelf registration as defined in Rule 405
(Sec. 230.405 of this chapter) or any post-effective amendment thereto
that becomes effective immediately pursuant to Rule 462 (Sec. 230.462
of this chapter).
(10) To authorize the granting or denial of applications, upon a
showing of good cause, that it is not necessary under the circumstances
that the issuer be considered an ineligible issuer as defined in Rule
405.
[[Page 22]]
(b) With respect to the Securities Act of 1933 (15 U.S.C. 77a et
seq.) and Regulation A thereunder (Sec. 230.251 et seq. of this
chapter):
(1) to authorize the granting of applications under Rule 262 (Sec.
230.262 of this chapter) upon a showing of good cause that it is not
necessary under the circumstances that an exemption under Regulation A
be denied;
(2) To determine the date and time of qualification for offering
statements and amendments to offering statements pursuant to Rule 252(e)
(Sec. 230.252(e) of this chapter);
(3) To consent to the withdrawal of an offering statement or to
declare an offering statement abandoned pursuant to Rule 259 (Sec.
230.259 of this chapter); and
(4) To deny a Form 1-Z filing pursuant to Rule 257 (Sec. 230.257 of
this chapter).
(c) With respect to the Securities Act of 1933 (15 U.S.C. 77a et
seq.) and Regulation D thereunder (Sec. Sec. 230.500 through 230.508 of
this chapter), to authorize the granting of applications under
Sec. Sec. 230.504(b)(3), 230.506(d)(2)(ii), and 230.507(b) of this
chapter upon the showing of good cause that it is not necessary under
the circumstances that the exemption under Regulation D be denied.
(d) With respect to the Securities Act of 1933 (15 U.S.C. 77a et
seq.) and Sec. Sec. 227.100 through 227.503 of this chapter, to
authorize the granting of applications under Sec. 227.503(b)(2) of this
chapter upon the showing of good cause that it is not necessary under
the circumstances that the exemption under Regulation Crowdfunding be
denied.
(e) With respect to the Trust Indenture Act of 1939 (15 U.S.C. 77aaa
et seq.):
(1) To determine to be effective prior to the 20th day after filing
thereof applications for qualification of indentures filed on Form T-3
(Sec. 269.3 of this chapter) pursuant to section 307 of the Act (15
U.S.C. 77ggg), and Rule 7a-1 thereunder (Sec. 260.7a-1 of this
chapter);
(2) To authorize the issuance of orders exempting certain securities
from the Act under sections 304(c) and (d) thereof (15 U.S.C. 77ddd(c)
and 77ddd(d)) and Sec. Sec. 260.4c-1 and 260.4d-7 of this chapter.
(3) In cases in which opportunity for hearing is waived, to
authorize the issuance of orders determining that a trusteeship under an
indenture to be qualified and another indenture is not so likely to
involve a material conflict of interest as to make it necessary to
disqualify the trustee pursuant to section 310(b)(1)(ii) of the Act (15
U.S.C. 77jjj(b)(1)(ii)) and Rule 10b-2 thereunder (Sec. 260.10b-2 of
this chapter).
(4) To authorize the issuance of orders exempting any person,
registration statement, indenture, security or transaction, or any class
or classes of persons, registration statements, indentures, securities,
or transactions from the requirements of one or more provisions of the
Act pursuant to section 304(d) of the Act (15 U.S.C. 77ddd(d)) and rule
4d-7 thereunder (17 CFR 260.4d-7 of this chapter).
(5) To determine to be effective prior to the 10th day after filing
thereof an application for determining the eligibility under section
310(a) of the Act of a person designated as trustee for delayed
offerings of debt securities under the Securities Act pursuant to
section 305(b)(2) of the Act and rule 5b-1 [17 CFR 260.5b-1 of this
chapter] thereunder.
(6) To authorize the issuance of an order permitting a foreign
person to act as sole trustee under qualified indentures under section
310(a) of the Act (15 U.S.C. 77jjj(a)) and Sec. 260.10a-1 through Sec.
260.10a-5 of this chapter.
(7) To issue notices with respect to applications for, and authorize
the issuance of orders granting, a stay of a trustee's duty to resign
pursuant to section 310(b) of the Act and Rule 10b-4 [17 CFR 260.10b-4
of this chapter] thereunder.
(f) With respect to the Securities Exchange Act of 1934 (15 U.S.C.
78a et seq.):
(1) To determine to be effective applications for registration of
securities on a national securities exchange prior to 30 days after
receipt of a certification pursuant to section 12(d) of the Act (15
U.S.C. 78l(d));
(2) Pursuant to instructions as to financial statements contained in
forms adopted under the Act:
(i) To extend the time for filing or to permit the ommission of one
or more
[[Page 23]]
financial statements therein required or the filing in substitution
therefor of appropriate statements of comparable character.
(ii) To require the filing of other financial statements in addition
to, or in substitution for, the statements therein required;
(3)(i) To grant and deny applications for confidential treatment
filed pursuant to section 24(b) of the Act (15 U.S.C. 78x(b)) and Rule
24b-2 thereunder (Sec. 240.24b-2 of this chapter);
(ii) To revoke a grant of any such application for confidential
treatment.
(4) To authorize the use of forms of proxies, proxy statements, or
other soliciting material within periods of time less than that
prescribed in Sec. Sec. 240.14a-6, 240.14a-8(d), and 240.14a-11 of this
chapter; to authorize the filing of information statements within
periods of time less than that prescribed in Sec. 240.14c-5a of this
chapter; and to authorize the filing of information under Sec. 240.14f-
1 of this chapter within periods of time less than that prescribed
therein.
(5) To grant or deny applications filed pursuant to section 12(g)(1)
of the Act (15 U.S.C. 78l(g)(1)) for extensions of time within which to
file registration statements pursuant to that section, provided the
applicant is advised of his right to have any such denial reviewed by
the Commission.
(6) To accelerate at the request of the issuer the effective date of
registration statements filed pursuant to section 12(g) of the Act (15
U.S.C. 78l(g)).
(7) To issue notices of applications for exemptions and to grant
exemptions under section 12(h) of the Act (15 U.S.C. 78l(h)).
(8) At the request of the issuer to accelerate the termination of
registration of any class of equity securities as provided in section
12(g)(4) of the Act (15 U.S.C. 78l(g)(4)) or as provided in Sec.
240.12g-4(a) of this chapter.
(9) Upon receipt of a notification from the Secretary of the
Treasury designating a security for exemption pursuant to section
3(a)(12), to issue public releases announcing such designation.
(10) To issue public releases listing those foreign issuers which
appear to be current in submitting the information specified in Rule
12g3-2(b) (Sec. 240.12g3-2(b)).
(11) To grant exemptions from Rule 14d-10 (Sec. 240.14d-10 of this
chapter) pursuant to Rule 14d-10(f) (Sec. 240.14d-10(f) of this
chapter).
(12) To grant an exemption from Sec. 240.14b-2(b) or Sec. 240.14b-
2(c), or both, of this chapter.
(13) To determine with respect to a tender or exchange offer
otherwise eligible to be made pursuant to rule 13e-4(g) (Sec. 240.13e-
4(g) of this chapter) or rule 14d-1(b) (Sec. 240.14d-1(b) of this
chapter) whether, in light of any exemptive order granted by a Canadian
federal, provincial or territorial regulatory authority, application of
certain or all of the provisions of section 13(e)(1) and sections
14(d)(1) through 14(d)(7) of the Exchange Act, rule 13e-4, Regulation
14D (Sec. Sec. 240.14d-1--240.14d-103 of this chapter) and Schedules TO
and 14D-9 thereunder (Sec. Sec. 240.14d-100 and 240.14d-101 of this
chapter), and rule 14e-1 of Regulation 14E (Sec. Sec. 240.14e-1--
240.14f-1 of this chapter), to such offer is necessary or appropriate in
the public interest.
(14) To administer the provisions of Sec. 240.24c-1 of this
chapter; provided that access to nonpublic information as defined in
such section shall be provided only with the concurrence of the head of
the Commission division or office responsible for such information or
the files containing such information.
(15) To administer the provisions of Section 24(d) of the Act (15
U.S.C. 78x(d)).
(16) To grant requests for exemptions from:
(i) Tender offer provisions of sections 13(e) and 14(d)(1) through
14(d)(7) of the Act (15 U.S.C. 78m(e) and 78n(d)(1) through 78n(d)(7)),
Rule 13e-3 (Sec. 240.13e-3 of this chapter) and Rule 13e-4 (Sec.
240.13e-4 of this chapter), Regulation 14D (Sec. Sec. 240.14d-1 through
240.14d-11 of this chapter) and Schedules 13E-3, TO, and 14D-9
(Sec. Sec. 240.13e-100, 240.14d-100 and 240.14d-101 of this chapter)
thereunder, pursuant to Sections 14(d)(5), 14(d)(8)(C) and 36(a) of the
Act (15 U.S.C. 78n(d)(5), 78(d)(8)(C), and 78mm(a)); and
(ii) The tender offer provisions of Rules 14e-1, 14e-2 and 14e-5 of
Regulation 14E (Sec. Sec. 240.14e-1, 240.14e-2 and 240.14e-5 of this
chapter) pursuant to
[[Page 24]]
section 36(a) of the Act (15 U.S.C. 78mm(a)).
(17) At the request of a foreign private issuer, pursuant to Rule
12h-6 (Sec. 240.12h-6 of this chapter), to accelerate the termination
of the registration of a class of securities under section 12(g) of the
Act (15 U.S.C. 78l(g)) or the duty to file reports under section 13(a)
of the Act (15 U.S.C. 78m(a)) or section 15(d) of the Act (15 U.S.C.
78o(d)).
(18) To review and, either unconditionally or upon specified terms
and conditions, grant or deny exemptions from the requirements of Rules
14a-3(b) and 14c-3(a) (Sec. Sec. 240.14a-3(b) and 240.14c-3(a) of this
chapter) under the Act pursuant to Section 36 of the Act, in cases where
upon examination, the matter does not appear to the Director to present
significant issues that have not been addressed previously or to raise
questions of fact or policy indicating that the public interest or the
interest of investors warrants that the Commission consider the matter,
where an applicant demonstrates that it:
(i) Is required to hold a meeting of security holders as a result of
an action taken by one or more of the applicant's security holders
pursuant to state law;
(ii) Is unable to comply with the requirements of Rule 14a-3(b) or
Rule 14c-3(a) under the Act for audited financial statements to be
included in the annual report to security holders to be furnished to
security holders in connection with the security holder meeting required
to be held as a result of the security holder demand under state law;
(iii) Has made a good faith effort to furnish the audited financial
statements before holding the security holder meeting;
(iv) Has made a determination that it has disclosed to security
holders all available material information necessary for the security
holders to make an informed voting decision in accordance with
Regulation 14A or Regulation 14C (Sec. Sec. 240.14a-1--240.14b-2 or
Sec. Sec. 240.14c-1--240.14c-101 of this chapter); and
(v) Absent a grant of exemptive relief, it would be forced to
violate either state law or the rules and regulations administered by
the Commission.
(g) Notwithstanding anything in the foregoing:
(1) Matters arising under the Investment Company Act of 1940 (15
U.S.C. 80a-1 et seq.), the Securities Act of 1933 (15 U.S.C. 77a et
seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) and
the Trust Indenture Act of 1939 (15 U.S.C. 77aaa et seq.) pertaining to
investment companies registered under the Investment Company Act of 1940
are not within the scope of the functions delegated to the Director of
the Division of Corporation Finance, except those arising under section
30(f) of the Investment Company Act of 1940 (15 U.S.C. 80a-29(f));
(2) In any case in which the Director of the Division of Corporation
Finance believes it appropriate, he may submit the matter to the
Commission.
(h) With respect to the Securities Act of 1933 (15 U.S.C. 77a et
seq.) and Rule 701 thereunder (Sec. 230.701 of this chapter), to
authorize the granting of applications under Rule 703(b) (Sec.
230.703(b) of this chapter) upon a showing of good cause that it is not
necessary under the circumstances that an exemption under Rule 701 be
denied.
(i) With respect to the Securities Act of 1933 (15 U.S.C. 77a et
seq.) and Rule 144A thereunder (Sec. 230.144A of this chapter), taking
into account then-existing market practices, to designate any securities
or classes of securities to be securities that will not be deemed ``of
the same class as securities listed on a national securities exchange or
quoted in a U.S. automated inter-dealer quotation system'' within the
meaning of Rule 144A(d)(3)(i) (Sec. 230.144A(d)(3)(i) of this chapter).
(j) With respect to the Securities Act of 1933 (15 U.S.C. 77a et
seq.) and Regulation S thereunder (Sec. 230.901 et seq. of this
chapter), and in consultation with the Director of the Division of
Trading and Markets, to designate any foreign securities exchange or
non-exchange market as a ``designated offshore securities market''
within the meaning of Rule 902(a) (Sec. 230.902(a) of this chapter).
(k) With respect to the Securities Act of 1933 (15 U.S.C. 77a et
seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), the
Trust Indenture Act of 1939 (15 U.S.C. 77aaa et seq.), and Regulation
[[Page 25]]
S-T thereunder (part 232 of this chapter), to grant or deny a request
submitted pursuant to Rule 13(b) of Regulation S-T (Sec. 232.13(b) of
this chapter) to adjust the filing date of an electronic filing.
(l) With respect to the Securities Act of 1933 (15 U.S.C. 77a et
seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), the
Trust Indenture Act of 1939 (15 U.S.C. 77aaa et seq.), and Regulation S-
T thereunder (part 232 of this chapter), to set the terms of, and grant
or deny as appropriate, continuing hardship exemptions, pursuant to Rule
202 of Regulation S-T, (Sec. 232.202 of this chapter), from the
electronic submission requirements of Regulation S-T (part 232 of this
chapter).
[41 FR 29375, July 16, 1976]
Editorial Note: For Federal Register citations affecting Sec.
200.30-1, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 200.30-3 Delegation of authority to Director of Division
of Trading and Markets.
Pursuant to the provisions of Pub. L. 87-592, 76 Stat. 394, 15
U.S.C. 78d-1, 78d-2), the Securities and Exchange Commission hereby
delegates, until the Commission orders otherwise, the following
functions to the Director of the Division of Trading and Markets to be
performed by him or under his direction by such person or persons as may
be designated from time to time by the Chairman of the Commission:
(a) With respect to the Securities Exchange Act of 1934 (15 U.S.C.
78a et seq.):
(1) To approve the withdrawal or striking from listing and
registration of securities registered on any national securities
exchange pursuant to section 12(d) of the Act (15 U.S.C. 78l(d)) and
Rules 12d2-1 and 12d2-2 thereunder (Sec. Sec. 240.12d2-1 and 240.12d2-2
of this chapter);
(2) To extend unlisted trading privileges and to deny applications
for unlisted trading privileges by national securities exchanges
pursuant to section 12(f)(2) of the Act, 15 U.S.C. 78l(f)(2), and Rule
12f-1 thereunder, 17 CFR 240.12f-1, provided that any applicant exchange
denied unlisted trading privileges is advised of its right to have such
denial reviewed by the Commission.
(3) Pursuant to section 15(b) of the Act (15 U.S.C. 78o(b)):
(i) To authorize the issuance of orders granting registration of
brokers or dealers within forty-five days of the filing of an
application for registration as a broker or dealer (or within such
longer period as to which the applicant consents);
(ii) To authorize the issuance of orders canceling registrations of
brokers or dealers, or pending applications for registration, if such
brokers or dealers or applicants for registration are no longer in
existence or have ceased to do business as brokers or dealers;
(4) Pursuant to Rule 19h-1 (Sec. 240.19h-1 of this chapter):
(i) To grant applications with respect to membership in, association
with a member of, or participation in, a self-regulatory organization
and for other relief as to persons who are subject to an applicable
disqualification where such relationships or other relief have been
approved or recommended by a self-regulatory organization;
(ii) To extend the time for Commission consideration of notices for
admission to membership or participation in a self-regulatory
organization or association with a member of persons subject to a
statutory disqualification pursuant to paragraph (a)(7) of that rule.
(5) Pursuant to Sec. 240.17a-5(m)(3) of this chapter (Rule 17a-
5(m)(3)), to consider applications by brokers and dealers for exemptions
from, and extension of time within which to file, reports required by
Sec. 240.17a-5 of this chapter (Rule 17a-5) and to grant, and to
authorize the issuance of orders denying, such applications, provided
such applicant is advised of his right to have such denial reviewed by
the Commission.
(6) Pursuant to Rules 14e-4(c), 14e-5(d), and 15c2-11(h) (Sec. Sec.
240.14e-4(c), 240.14e-5(d), and 240.15c2-11(h) of this chapter), and
Rules 101(d), 102(e), 104(j), and 105(c) of Regulation M (Sec. Sec.
242.101(d), 242.102(e), 242.104(j), and 242.105(c) of this chapter), to
grant requests for exemptions from Rules 14e-4, 14e-5, and 15c2-11
(Sec. Sec. 240.14e-4, 240.14e-5, and 240.15c2-11 of this chapter), and
Rules
[[Page 26]]
101, 102, 104, and 105 of Regulation M (Sec. Sec. 242.101, 242.102,
242.104, and 242.105 of this chapter).
(7) Pursuant to Rule 15c3-1 (Sec. 240.15c3-1 of this chapter) and
Rule 18a-1 (Sec. 240.18a-1 of this chapter):
(i) To approve lesser equity requirements in specialist or market
maker accounts pursuant to Rule 15c3-1(a)(6)(iii)(B) (Sec. 240.15c3-
1(a)(6)(iii)(B) of this chapter);
(ii) To grant exemptions from Rule 15c3-1 (Sec. 240.15c3-1 of this
chapter) pursuant to Rule 15c3-1(b)(3) (Sec. 240.15c3-1(b)(3) of this
chapter);
(iii) To grant temporary exemptions upon specified terms and
conditions from the debt equity requirements of Rule 15c3-1(d)(Sec.
240.15c3-1(d) of this chapter);
(iv) To approve a change in election of the alternative capital
requirement pursuant to Rule 15c3-1(a)(1)(ii) (Sec. 240.15c3-
1(a)(1)(ii) of this chapter);
(v) To review applications of OTC derivatives dealers filed pursuant
to Appendix F of Sec. 240.15c3-1f of this chapter, and to grant or deny
such applications in full or in part; and
(vi)(A) To review amendments to applications of brokers or dealers
and security-based swap dealers filed pursuant to Sec. Sec. 240.15c3-
1e, 240.15c3-1g, and 240.18a-1(d) of this chapter and to approve such
amendments, unconditionally or subject to specified terms and
conditions;
(B) To grant extensions and exemptions from the notification
requirements of Sec. 240.15c3-1g(e) of this chapter, unconditionally or
subject to specified terms and conditions;
(C) To impose additional conditions, pursuant to Sec. Sec.
240.15c3-1e(e) and 240.18a-1(d)(9)(iii) of this chapter, on a broker or
dealer that computes certain of its net capital deductions pursuant to
Sec. 240.15c3-1e of this chapter, or on an ultimate holding company of
the broker or dealer that is not an ultimate holding company that has a
principal regulator, as defined in Sec. 240.15c3-1(c)(13)(ii) of this
chapter, or on a security-based swap dealer that computes certain of its
net capital deductions pursuant to Sec. 240.18a-1(d) of this chapter;
(D) To require that a broker or dealer, or the ultimate holding
company of the broker or dealer, or a security-based swap dealer provide
information to the Commission pursuant to Sec. Sec. 240.15c3-
1e(a)(1)(viii)(G), 240.15c3-1e(a)(1)(ix)(C) and (a)(4), 240.18a-1(d)(2),
and 240.15c3-1g(b)(1)(i)(H), and (b)(2)(i)(C) of this chapter;
(E) To determine, pursuant to Sec. Sec. 240.15c3-1e(a)(10)(ii) and
240.18a-1(d)(7)(ii), that the notice that a broker or dealer and
security-based swap dealer must provide to the Commission pursuant to
Sec. Sec. 240.15c3-1e(a)(10)(i) and 240.18a-1(d)(7)(i) of this chapter
will become effective for a shorter or longer period of time; and
(F) To approve, pursuant to Sec. Sec. 240.15c3-1e(a)(7)(ii) and
240.18a-1(d)(5)(ii) of this chapter, the temporary use of a provisional
model, in whole or in part, unconditionally or subject to any conditions
or limitations;
(vii)(A) To approve the prepayments of a subordinated loan agreement
of a security-based swap dealer pursuant to Sec. 240.18a-1d(b)(6) of
this chapter;
(B) To approve a prepayment of a revolving subordinated loan
agreement of a security-based swap dealer pursuant to Sec. 240.18a-
1d(c)(4) of this chapter; and
(C) To examine a proposed subordinated loan agreement filed by a
security-based swap dealer and to find it acceptable pursuant to Sec.
240.18a-1d(c)(5) of this chapter.
(8) Pursuant to Rule 17a-10(d) (Sec. 240.17a-10(d) of this
chapter), to consider applications by broker-dealers for extensions of
time in which to file reports required by Rule 17a-10(Sec. 240.17a-10
of this chapter), and to grant, and to authorize the issuance of orders
denying, such applications provided such applicant is advised of his
right to have such denial reviewed by the Commission. Any extension
granted shall not be for more than 150 days after the close of the
calendar year for which the report on Form X-17A-10 (Sec. 249.618 of
this chapter) is made.
(9) Pursuant to Rule 10b-17(b)(2) (Sec. 240.10b-17(b)(2) of this
chapter), to review applications of various issuers for exemption from
the notice requirements of Rule 10b-17 (Sec. 240.10b-17 of this
[[Page 27]]
chapter) and to grant or deny such applications, with authority to issue
orders granting and denying same, provided each applicant is advised of
his right to have a denial reviewed by the Commission.
(10)(i) Pursuant to Rule 15c3-3 (Sec. 240.15c3-3 of this chapter)
and Rule 18a-4 (Sec. 240.18a-4 of this chapter) to find and designate
as control locations for purposes of Rule 15c3-3(c)(7) (Sec. 240.15c3-
3(c)(7) of this chapter), Rule 15c3-3(p)(2)(ii)(E) (Sec. 240.15c3-
3(p)(2)(ii)(E) of this chapter), and Rule 18a-4(b)(2)(v) (Sec. 240.18a-
4(b)(2)(v) of this chapter), certain broker-dealer and security-based
swap accounts which are adequate for the protection of customer
securities.
(ii) Pursuant to section 36(a) of the Act (15 U.S.C. 78mm(a)) to
review and, either unconditionally or on specified terms and conditions,
grant or deny exemptions from the collateral requirements of paragraph
(b)(3) of Rule 15c3-3 of the Act (Sec. 240.15c3-3 of this chapter) for
a type of collateral after concluding that the characteristics of such
collateral are substantially comparable to the characteristics of a type
of collateral previously exempted by the Commission.
(iii) Pursuant to section 36(a) of the Act (15 U.S.C. 78mm(a)), to
review and grant written applications for an exemption, unconditionally
or subject to specified terms and conditions, for a broker or dealer to
utilize a clearing agency registered with the Commission under section
17A of the Act (15 U.S.C. 78q-1) or a derivatives clearing organization
registered with the Commodity Futures Trading Commission under section
5b of the Commodity Exchange Act (7 U.S.C. 7a-1) that does not meet the
requirements of 17 CFR 240.15c3-3a, Note G.(b)(1)(i) through (iii).
(11) Upon written application or upon its own motion, either
unconditionally or on specified terms and conditions, to grant or deny
by order an exemption from the requirements of Regulation SHO (Sec.
242.200 of this chapter) under the Act pursuant to Section 36 of the Act
(15 U.S.C. 78mm).
(12) Pursuant to section 19(b) of the Act, 15 U.S.C. 78s(b), and
Rule 19b-4 (Sec. 240.19b-4) of this chapter, to publish notices of
proposed rule changes filed by self-regulatory organizations and to
approve such proposed rule changes, and to find good cause to approve a
proposed rule change earlier than 30 days after the date of publication
of such proposed rule change and to publish the reasons for such
finding. Pursuant to section 19(b) of the Act, 15 U.S.C. 78s(b), and
Rule 19b-4 (Sec. 240.19b-4) of this chapter, to disapprove a proposed
rule change, provided that, with respect to a particular proposed rule
change, if two (2) or more Commissioners object in writing to the
Director within five (5) business days of being notified by the Director
that the Division intends to exercise its authority to disapprove that
particular proposed rule change, then the delegation of authority to
approve or disapprove that proposal is withdrawn, and the Director shall
either present a recommendation to the Commission or institute pursuant
to delegated authority proceedings to determine whether the proposed
rule change should be disapproved. In addition, pursuant to section
19(b)(10) of the Act, 15 U.S.C. 78s(b)(10), to notify a self-regulatory
organization that a proposed rule change does not comply with the rules
of the Commission relating to the required form of a proposed rule
change, and to determine that a proposed rule change is unusually
lengthy and complex or raises novel regulatory issues and to inform the
self-regulatory organization of such determination.
(13) Pursuant to section 15B(a) of the Act [15 U.S.C. 78o-4(a)], to
authorize the issuance of orders granting registration of municipal
securities dealers within forty-five days of the filing of an
application for registration as a municipal securities dealer (or within
such longer period as to which the applicant consents).
(14) Pursuant to section 17A(c)(2) of the Act (15 U.S.C. 78q-
1(c)(2)), to authorize the issuance of orders accelerating registration
of transfer agents for which the Commission is the appropriate
regulatory agency before the expiration of thirty days following the
dates on which applications for registration as a transfer agent are
filed.
(15) Pursuant to Rule 10a-1(f) [Sec. 240.10a-1(f)] to grant
requests for exemptions from Rule 10a-1;
[[Page 28]]
(16) Pursuant to sections 17A(b)(1), 17A(b)(2) and 19(a) of the Act
(15 U.S.C. 78q-1(b)(1), 78q-1(b)(2) and 78s(a)), to publish notice of
the filing of applications for registration and for exemption from
registration as a clearing agency.
(17) Pursuant to Rule 17f-2 (Sec. 240.17f-2 of this chapter).
(i) To disapprove a ``Notice Pursuant to Rule 17f-2'' pursuant to
Rule 17f-2(e) (Sec. 240.17f-2(e) of this chapter).
(ii) To grant exemptions upon specified terms, conditions, and
periods, for classes of persons subject to Rule 17f-2 pursuant to Rule
17f-2(a)(2) (Sec. 240.17f-2(a)(2) of this chapter).
(iii) To approve amendments to plan of a registered national
securities exchange or a national securities association submitted
pursuant to Rule 17f-2(c) (Sec. 240.17f-2(c) of this chapter).
(18) Pursuant to Rule 17d-1 (Sec. 240.17d-1 of this chapter) to
designate one self-regulatory organization responsible for the
examination of brokers and dealers which are members of more than one
such organization to insure compliance with applicable financial
responsibility rules.
(19)(i) To grant and deny applications for confidential treatment
filed pursuant to section 24(b) of the Act (15 U.S.C. 78x(b)) and Rule
24b-2 thereunder (240.24b-2 of this chapter);
(ii) To revoke a grant of confidential treatment for any such
application.
(20) Pursuant to sections 8(c) and 15(c)(2) of the Act (15 U.S.C.
78h(c) and 78o(2)) and paragraphs (g) of Rules 8c-1 and 15c2-1
thereunder, to make findings that the agreements, safeguards, and
provisions of registered clearing agencies are adequate for the
protection of investors.
(21) Under section 17A(c)(4)(B) of the Act (15 U.S.C. 78q-
1(c)(4)(B)), to set terms and conditions upon which transfer agents
registered with the Commission may withdraw from registration as a
transfer agent by filing a written notice of withdrawal.
(22) Under section 17A(c)(4)(B) of the Act (15 U.S.C. 78q-
1(c)(4)(B)), to authorize the issuance of orders canceling registrations
of transfer agents registered with the Commission or denying
applications for registration as a transfer agent with the Commission,
if such transfer agents are no longer in existence or are not engaged in
business as transfer agents.
(23) Pursuant to section 17(b) of the Act (15 U.S.C. 78q(b)), prior
to any examination of a registered clearing agency, registered transfer
agent, or registered municipal securities dealer whose appropriate
regulatory agency is not the Commission, to notify and consult with the
appropriate regulatory agency for such clearing agency, transfer agent,
or municipal securities dealer.
(24) Pursuant to section 17(c)(3) of the Act, 15 U.S.C. 78q(c)(3),
in regard to clearing agencies, transfer agents and municipal securities
dealers for which the Commission is not the appropriate regulatory
agency, (i) to notify the appropriate regulatory agency of any
examination conducted by the Commission of any such clearing agency,
transfer agent, or municipal securities dealer; (ii) to request from the
appropriate regulatory agency a copy of the report of any examination of
any such clearing agency, transfer agent, or municipal securities dealer
conducted by such appropriate regulatory agency and any data supplied to
it in connection with such examination; and (iii) to furnish to the
appropriate regulatory agency on request a copy of the report of any
examination of any such clearing agency, transfer agent, or municipal
securities dealer conducted by the Commission and any data supplied to
it in connection with such examination.
(25) Pursuant to Rule 17f-1 (Sec. 240.17f-1 of this chapter), to
designate persons not subject to Sec. 240.17f-1 as reporting
institutions upon specified terms, conditions, and time periods.
(26) [Reserved]
(27) To approve amendments to the joint industry plan governing
consolidated transaction reporting declared effective by the Commission
pursuant to Rule 601 (17 CFR 242.601) or its predecessors, Rule 11Aa3-1
and Rule 17a-15, and to grant exemptions from Rule 601 pursuant to Rule
601(f) (17 CFR 242.601(f)) to exchanges trading listed securities that
are designated as national market system securities until such times as
a Joint Reporting Plan for such securities is filed and approved by the
Commission.
[[Page 29]]
(28) To grant exemptions from Rule 602 (17 CFR 242.602), pursuant to
Rule 602(d) (17 CFR 242.602(d)).
(29) To issue supplemental orders modifying the terms upon which
self-regulatory organizations are authorized to act jointly in planning,
developing, operating or regulating facilities of a national market
system in accordance with the terms of amendments to plans which plans
have been previously approved by the Commission under section
11A(a)(3)(B) of the Securities Exchange Act of 1934.
(30) Pursuant to section 17(a) of the Act, 15 U.S.C. 78q, to approve
amendments to the plans which are consistent with the reporting
structure of Sec. Sec. 240.17a-5(a)(2) and 240.17a-10(b) of this
chapter (Rules 17a-5(a)(2) and 17a-10(b)) filed by self-regulatory
organizations pursuant to Sec. Sec. 240.17a-5(a)(3) and 240.17a-10(b)
of this chapter (Rules 17a-5(a)(3) and 17a-10(b)).
(31) Pursuant to section 19(b)(2)(A) of the Act, 15 U.S.C.
78s(b)(2)(A), to extend for a period not exceeding 90 days from the date
of publication of notice of the filing of a proposed rule change
pursuant to section 19(b)(1) of the Act, 15 U.S.C. 78s(b)(1), the period
during which the Commission must by order approve or disapprove the
proposed rule change or institute proceedings to determine whether the
proposed rule change should be disapproved and to determine whether such
longer period is appropriate and publish the reasons for such
determination.
(32) Under Sec. 240.10b-10(f) of this chapter, to grant exemptions
from Sec. 240.10b-10 of this chapter.
(33) Pursuant to Rule 17a-6 (Sec. 240.17a-6 of this chapter) to
approve record destruction plans and amendments thereto filed by a
national securities exchange or a national securities association.
(34) Pursuant to Rule 17d-2 (Sec. 240.17d-2 of this chapter) to
publish notice of plans and plan amendments filed pursuant to Rule 17d-2
and to approve such plans and plan amendments.
(35) [Reserved]
(36) To grant exemptions from Rule 603 (17 CFR 242.603), pursuant to
Rule 603(d) (17 CFR 242.603(d)).
(37) Pursuant to Rule 600 (17 CFR 242.600), to publish notice of the
filing of a designation plan with respect to national market system
securities, or any proposed amendment thereto, and to approve such plan
or amendment.
(38) To disclose:
(i) To the Comptroller of the Currency, the Board of Governors of
the Federal Reserve System, the Federal Deposit Insurance Corporation,
and the state banking authorities, information and documents deemed
confidential regarding registered clearing agencies and registered
transfer agents; and
(ii) To the Department of Treasury, information and documents deemed
confidential regarding possible laundering of money through or by
brokers or dealers, including compliance by brokers or dealers with the
Currency and Foreign Transactions Reporting Act of 1970, as amended.
(39) Under Sec. 240.9b-1 of this chapter:
(i) To enable distribution of an options disclosure document or
amendment to an options disclosure document to the public prior to the
time required in the Rule or to lengthen the period before distribution
can be made;
(ii) To require refiling of an amendment to an options disclosure
document pursuant to the procedure set forth in Sec. 240.9b-1(b)(2)(i)
of this chapter.
(40) Pursuant to section 15B(b)(2)(B) of the Act, 15 U.S.C., 78o-
4(b), to review and, where appropriate, approve the selection by the
Municipal Securities Rulemaking Board (``Board'') of public
representatives to serve on the Board.
(41) Pursuant to Rule 6a-2(c) (Sec. 240.6a-2 of this chapter) to
exempt registered national securities exchanges from the filing
requirements imposed by Rule 6a-2 with respect to certain affiliates and
subsidiaries of the exchange.
(42) Under 17 CFR 242.608(e), to grant or deny exemptions from 17
CFR 242.608, and pursuant to 17 CFR 242.608(b) to extend for a period
not exceeding 180 days from the date of publication of notice of filing
of a national market system plan or an amendment to an effective
national market system plan the time for Commission consideration of the
national market system plan or the amendment to an effective national
market system plan and to determine whether such longer period is
[[Page 30]]
appropriate and publish the reasons for such determination.
(43) To grant or deny exemptions from Rule 17Ad-14 (Sec. 240.17Ad-
14 of this chapter), pursuant to Rule 17Ad-14(d) (Sec. 240.17Ad-14(d)
of this chapter). (Pub. L. 87-592, 76 Stat. 394, 15 U.S.C 78d-1, 78d-2).
(44) To review, publish notice of, and where appropriate, approve
plans, and amendments to plans, submitted by self-regulatory
organizations pursuant to Rule 19d-1(c) under the Act (Sec. 240.19d-
1(c)).
(45) To grant exemptions from Rule 3b-9 under the Act. (Sec.
240.3b-9(c) of this chapter).
(46) Pursuant to section 15(b)(9) of the Act, 15 U.S.C. 78o(b)(9) to
review and, where appropriate, grant exemptions from the requirement of
section 15(b)(8) of the Act, 15 U.S.C. 78o(b)(8).
(47) Pursuant to section 15(a)(2) of the Act, 15 U.S.C. 78o(a)(2),
to review and, either unconditionally or on specified terms and
conditions, grant exemptions from the broker-dealer registration
requirements of section 15(a)(1) of the Act, 15 U.S.C. 78o(a)(1), to
government securities brokers or government securities dealers that have
registered with the Commission under section 15(a)(2) of the Act, 15
U.S.C. 78o-5(a)(2), solely with respect to effecting any transactions
in, or inducing or attempting to induce the purchase or sale of, any
security principally backed by a guaranty of the United States.
(48) Pursuant to paragraph (d) of Rule 15c2-12 (17 CFR 15c2-12), to
grant or deny exemptions, either unconditionally or on specified terms
and conditions, from Rule 15c2-12.
(49) Pursuant to section 11A(b) of the Act (15 U.S.C. 78k-1(b)) and
Rule 609 thereunder (17 CFR 242.609), to publish notice of and, by
order, grant under section 11A(b) of the Act and Rule 609 thereunder:
Applications for registration as a securities information processor; and
exemptions from that section and any rules or regulations promulgated
thereunder, either conditionally or unconditionally.
(50) Pursuant to sections 17A(b) and 19(a) of the Act (15 U.S.C.
78q-1(b) and 78s(a)):
(i) To authorize the issuance of orders granting an extension to a
temporary clearing agency registration, for up to two years or such
longer period as the clearing agency consents.
(ii) To authorize the issuance of orders granting the withdrawal of
an application to become a registered clearing agency, at any time prior
to final determination of such application by the Commission, upon
submission of a request for such withdrawal by applicant.
(51) Pursuant to paragraph (a)(4) of Sec. 240.9b-1 of this chapter,
to authorize the issuance of orders designating securities as
``standardized options.''
(52) Pursuant to Rules 17h-1T and 17h-2T of the Act (Sec. Sec.
240.17h-1T and 240.17h-2T of this chapter):
(i) To designate certain broker-dealers as Reporting Brokers or
Dealers; or and
(ii) To grant or deny an exemption, conditionally or
unconditionally, to a broker or dealer pursuant to section 17(h) of the
Act.
(53) To administer the provisions of Sec. 240.24c-1 of this
chapter; provided that access to nonpublic information as defined in
such section shall be provided only with the concurrence of the head of
the Commission division or office responsible for such information or
the files containing such information.
(54) To administer the provisions of Section 24(d) of the Act (15
U.S.C. 78x(d)).
(55) Pursuant to Sec. 240.15c6-1 of this chapter, taking into
account then existing market practices, to exempt contracts for the
purchase or sale of any securities from the requirements of Sec.
240.15c6-1(a) of this chapter.
(56) Pursuant to Sec. 270.17Ad-16 of this chapter, to designate by
order the appropriate qualified registered securities depository.
(57) Pursuant to section 19(b)(2) of the Act, 15 U.S.C. 78s(b)(2),
and section 19(b)(3) of the Act, 15 U.S.C. 78s(b)(3), to institute
proceedings to determine whether a proposed rule change of a self-
regulatory organization should be disapproved and to provide to the
self-regulatory organization notice of the grounds for disapproval under
consideration. If the Commission has not taken action on a proposed rule
change for
[[Page 31]]
which delegated authority has been withdrawn under paragraph (a)(12) of
this section prior to the expiration of the applicable time period
specified in section 19(b)(2) of the Act, 15 U.S.C. 78s(b)(2), then the
Director shall institute pursuant to delegated authority proceedings to
determine whether the proposed rule change should be disapproved. In
addition, pursuant to section 19(b)(2)(B) of the Act, 15 U.S.C.
78s(b)(2)(B), to extend for a period not exceeding 240 days from the
date of publication of notice of the filing of a proposed rule change
pursuant to Section 19(b)(1) of the Act, 15 U.S.C. 78s(b)(1), the period
during which the Commission must issue an order approving or
disapproving the proposed rule change and to determine whether such
longer period is appropriate and publish the reasons for such
determination.
(58) Pursuant to section 19(b)(3)(C) of the Act, 15 U.S.C.
78s(b)(3)(C), to temporarily suspend a change in the rules of a self-
regulatory organization.
(59) Pursuant to paragraph (f)(6)(iii) of Rule 19b-4 (Sec. 240.19b-
4 of this chapter), to reduce the period before which a proposed rule
change can become operative, and to reduce the period between an SRO
submission of a filing and a pre-filing notification.
(60) To grant exemptions from Rule 17a-23 (Sec. 240.17a-23 of this
chapter), pursuant to Rule 17a-23(i) (Sec. 240.17a-23(i) of this
chapter).
(61) To grant exemptions from Rule 604 (17 CFR 242.604), pursuant to
Rule 604(c) (17 CFR 242.604(c)).
(62) Pursuant to section 36 of the Act (15 U.S.C. 78mm) to review
and, either unconditionally or on specified terms and conditions, grant
or deny exemptions from section 11(d)(1) of the Act (15 U.S.C.
78k(d)(1)).
(63) Pursuant to Sec. 240.15a-1(b)(1) of this chapter, to issue
orders identifying other permissible securities activities in which an
OTC derivatives dealer may engage.
(64) Pursuant to Sec. 240.15a-1(b)(2) of this chapter, to issue
orders determining that a class of fungible instruments that are
standardized as to their material economic terms is within the scope of
eligible OTC derivative instrument.
(65) Pursuant to Sec. 240.17a-12 of this chapter:
(i) To authorize the issuance of orders requiring over-the-counter
(OTC) derivatives dealers to file, pursuant to Sec. 240.17a-
12(a)(1)(ii) of this chapter, monthly, or at least at such times as
shall be specified, Part II of Form X-17A-5 (Sec. 249.617 of this
chapter) and such other financial and operational information as shall
be specified.
(ii) Pursuant to Sec. 240.17a-12(n) of this chapter, to consider
applications by OTC derivatives dealers for exemptions from, and
extensions of time within which to file, reports required by Sec.
240.17a-12 of this chapter, and to grant or deny such applications.
(66) To issue orders under Rules 15b3-1(c)(4), 15b6-1(e), 15Ba2-
2(e)(4), 15Bc3-1(e), 15Ca2-1(c)(4), and 15Cc1-1(d) (17 CFR 240.15b3-
1(c)(4), 240.15b6-1(e), 240.15Ba2-2(e)(4), 240.15Bc3-1(e), 240.15Ca2-
1(c)(4), and 240.15Cc1-1(d)).
(67) Pursuant to Section 36(a) of the Act, 15 U.S.C. 78mm(a), to
grant requests for exemptions from the tender offer provisions of Rule
14e-1 of Regulation 14E (Sec. 240.14e-1 of this chapter).
(68) Pursuant to Rule 605(b) (17 CFR 242.605(b)), to grant or deny
exemptions, conditionally or unconditionally, from any provision or
provisions of Rule 605 (17 CFR 242.605).
(69) Pursuant to Rule 606(c) (17 CFR 242.606(c)), to grant or deny
exemptions, conditionally or unconditionally, from any provision or
provisions of Rule 606 (17 CFR 242.606).
(70) Pursuant to Sections 15(a)(2) and 36 of the Act (15 U.S.C.
78o(a)(2) and 78mm), to review and, either unconditionally or on
specified terms and conditions, to grant or deny exemptions to any bank,
savings association, or savings bank from the broker-dealer registration
requirements of Section 15(a)(1) of the Act (15 U.S.C. 78o(a)(1)) or any
applicable provision of this Act (15 U.S.C. 78c et seq.) and the rules
and regulations thereunder based solely on such bank's, savings
association's, or savings bank's status as a broker or dealer.
(71) Pursuant to section 6(a) of the Act, 15 U.S.C. 78f(a), and Rule
6a-1 thereunder, 17 CFR 240.6a-1:
[[Page 32]]
(i) To publish a notice of filing of an application for registration
as a national securities exchange, or for exemption from registration
based on limited volume;
(ii) To publish amendments to an application for registration as a
national securities exchange, or for exemption from registration based
on limited volume; and
(iii) To extend deadlines for submission of comments to an
application for registration as a national securities exchange, or for
exemption from registration based on limited volume; and amendments to
an application for registration as a national securities exchange, or
for exemption from registration based on limited volume.
(72) Pursuant to section 36 of the Act (15 U.S.C. 78mm) to review
and, either unconditionally or on specified terms and conditions, grant,
or deny exemptions from rule 17a-25 of the Act (Sec. 240.17a-25 of this
chapter).
(73) Pursuant to Section 19(b)(7)(A) of the Act, 15 U.S.C.
78s(b)(7)(A), to publish notices of proposed rule changes filed by self-
regulatory organizations relating to security futures products.
(74) Pursuant to Section 19(b)(7)(C) of the Act, 15 U.S.C.
78s(b)(7)(C), to abrogate a change in the rules of a self-regulatory
organization relating to security futures products and require that it
be refiled in accordance with Section 19(b)(1) of the Act, 15 U.S.C.
78s(b)(1).
(75) Pursuant to Section 6(g)(3) of the Act, 15 U.S.C. 78f(g)(3), to
publish acknowledgement of receipt of a notice of registration as a
national securities exchange for the sole purpose of trading security
futures products under Section 6(g) of the Act and Rule 6a-4 of the Act
(17 CFR 240.6a-4).
(76) Pursuant to section 36 of the Act (15 U.S.C. 78mm) to review
and grant or deny exemptions from the rule filing requirements of
section 19(b) (15 U.S.C. 78s(b)) of the Act, in a case where a self-
regulatory organization elects to incorporate by reference one or more
rules of another self-regulatory organization, provided that the
following specified terms and conditions are met:
(i) A self-regulatory organization electing to incorporate rules of
another self-regulatory organization has requested to incorporate rules
other than trading rules (e.g., the self-regulatory organization has
requested to incorporate rules such as margin, suitability,
arbitration);
(ii) A self-regulatory organization electing to incorporate rules of
another self-regulatory organization has requested to incorporate by
reference categories of rules (rather than to incorporate individual
rules within a category); and
(iii) The incorporating self-regulatory organization has reasonable
procedures in place to provide written notice to its members each time a
change is proposed to the incorporated rules of another self-regulatory
organization.
(77)-(79) [Reserved]
(80) To calculate the amount of fees and assessments due from
covered SROs based on the trade data that the covered SROs submit on
Form R31 (17 CFR 249.11) and to issue Section 31 bills to covered SROs,
in consultation with the Chief Operating Officer and the Chief
Economist, pursuant to Rules 31 and 31T of this chapter (17 CFR 240.31
and 240.31T).
(81) To grant or deny exemptions from Rule 610 (17 CFR 242.610),
pursuant to Rule 610(e) (17 CFR 242.610(e)).
(82) To grant or deny exemptions from Rule 611 (17 CFR 242.611),
pursuant to Rule 611(d) (17 CFR 242.611(d)).
(83) To grant or deny exemptions from Rule 612 (17 CFR 242.612),
pursuant to Rule 612(c) (17 CFR 242.612(c)).
(84) To issue notices pursuant to 17 CFR 242.610T(b)(1)(i) and (c)
(Rule 610T(b)(1)(i) and (c)).
(b) To designate officers empowered to administer oaths and
affirmations, subpoena witnesses, compel their attendance, take
evidence, and require the production of any books, papers,
correspondence, memoranda, contracts, agreements, or other records in
the course of investigations instituted by the Commission pursuant to
section 21(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)).
(c) In nonpublic investigatory proceedings within the responsibility
of the Director or Deputy Director, to grant requests of persons to
procure copies of the transcript of their testimony given pursuant to
Rule 6 of the
[[Page 33]]
Commission's rules relating to investigations as in effect subsequent to
November 16, 1972 (17 CFR 203.6).
(d) To notify the Securities Investor Protection Corporation
(``SIPC'') of facts concerning the activities and the operational and
financial condition of any registered broker or dealer which is or
appears to be a member of SIPC and which is in or approaching financial
difficulty within the meaning of section 5 of the Securities Investor
Protection Act of 1970, as amended, 15 U.S.C. 78aaa et seq.
(e) To determine whether, and issue orders regarding, proposals for
designation of a contract market for futures trading on an index or
group of securities meet the eligibility criteria set forth under
section 2(a)(1)(B)(ii) of the Commodity Exchange Act, 7 U.S.C. 2(a).
(f) With respect to the Securities Investor Protection Act of 1970,
as amended, 15 U.S.C. 78aaa et seq. (``SIPA''):
(1) Pursuant to Section 3(a)(2)(B) of SIPA, to:
(i) Extend for a period not exceeding 90 days from the date of the
filing of the determination by the Securities Investor Protection
Corporation (``SIPC'') that a registered broker-dealer is not a SIPC
member because it conducts its principal business outside the United
States and its territories and possessions, the period during which the
Commission must affirm, reverse or amend any determination by SIPC; and
(ii) Affirm such determination filed by SIPC.
(2) Pursuant to Section (3)(e)(1) of SIPA, to:
(i) Determine whether proposed bylaw changes filed by SIPC should
not be disapproved or whether the proposed bylaw change is a matter of
such significant public interest that public comment should be obtained,
in which case the Division will notify SIPC of such finding and publish
notice of the proposed bylaw change in accordance with Section 3(e)(2)
of SIPA; and
(ii) Accelerate the effective date of proposed bylaw changes filed
by SIPC.
(3) Pursuant to Section (3)(e)(2) of SIPA, to publish notice of
proposed rule changes filed by SIPC.
(g) To consult on behalf of the Commission pursuant to section
18(t)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1828(t)(1))
with respect to matters described in Sec. 200.19a.
(h) To consult on behalf of the Commission pursuant to sections
5318A(a)(4), 5318A(e)(2) and 5318(h)(2) of the Bank Secrecy Act (31
U.S.C. 5318A(a)(4), 5318A(e)(2) and 5318(h)(2)) with respect to matters
described in Sec. 200.19a.
(i) To consult on behalf of the Commission pursuant to the Uniting
and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), as
amended (Pub. L. 107-56 (2001), 115 Stat. 272) with respect to matters
described in Sec. 200.19a.
(j) With respect to the Securities Act of 1933 (15 U.S.C. 77a et
seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), the
Trust Indenture Act of 1939 (15 U.S.C. 77aaa et seq.), and Regulation S-
T thereunder (part 232 of this chapter), to grant or deny a request
submitted pursuant to Rule 13(b) of Regulation S-T (Sec. 232.13(b) of
this chapter) to adjust the filing date of an electronic filing.
(k) With respect to the Securities Act of 1933 (15 U.S.C. 77a et
seq.), the Securities Exchange Act of 1934 (15 U.S.C.) 78a et seq.), the
Trust Indenture Act of 1939 (15 U.S.C. 77aaa et seq.), and Regulation S-
T thereunder (part 232 of this chapter) to set the terms of, and grant
or deny as appropriate, continuing hardship exemptions, pursuant to Rule
202 of Regulation S-T (Sec. 232.202 of this chapter), from the
electronic submission requirements of Regulation S-T (part 232 of this
chapter).
(l) Notwithstanding anything in the foregoing, in any case in which
the Director of the Division of Market Regulation believes it
appropriate, he may submit the matter to the Commission.
[37 FR 16795, Aug. 19, 1972]
Editorial Note: For Federal Register citations affecting Sec.
200.30-3, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Effective Date Note: At 84 FR 5298, Feb. 20, 2019, Sec. 200.30-3
was amended by adding
[[Page 34]]
paragraph (a)(84), effective Apr. 22, 2019 through Dec. 29, 2023.
Sec. 200.30-3a Delegation of authority to Director of the Office
of Municipal Securities.
Pursuant to the provisions of Pub. L. 100-181, 101 Stat. 1254, 1255
(15 U.S.C. 78d-1, 78d-2), the Securities and Exchange Commission hereby
delegates, until the Commission orders otherwise, the following
functions to the Director of the Office of Municipal Securities to be
performed by him or under his direction by such person or persons as may
be designated from time to time by the Chairman of the Commission:
(a) With respect to the Securities Exchange Act of 1934 (15 U.S.C.
78a et seq.):
(1) Pursuant to section 15B of the Act (15 U.S.C. 78o-4):
(i) To authorize the issuance of orders granting registration of
municipal advisors within 45 days of the filing of an application for
registration as a municipal advisor (or within such longer period as to
which the applicant consents); and
(ii) To authorize the issuance of orders canceling the registration
of a municipal advisor, if such municipal advisor is no longer in
existence or has ceased to do business as a municipal advisor.
(b) Notwithstanding anything in the foregoing, in any case in which
the Director of the Office of Municipal Securities believes it
appropriate, he may submit the matter to the Commission.
[78 FR 67632, Nov. 12, 2013]
Sec. 200.30-4 Delegation of authority to Director of Division of Enforcement.
Pursuant to the provisions of Pub. L. No. 100-181, 101 Stat. 1254,
1255 (15 U.S.C. 78d-1, 78d-2), the Securities and Exchange Commission
hereby delegates, until the Commission orders otherwise, the following
functions to the Director of the Division of Enforcement to be performed
by him or under his direction by such other person or persons as may be
designated from time to time by the Chairman of the Commission.
(a)(1) To designate officers empowered to administer oaths and
affirmations, subpoena witnesses, compel their attendance, take
evidence, and require the production of any books, papers,
correspondence, memoranda, contracts, agreements, or other records in
the course of investigations instituted by the Commission pursuant to
section 19(c) of the Securities Act of 1933 (15 U.S.C. 77s(c)), section
21(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)), section
42(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-41(b)) and
section 209(b) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-
9(b)).
(2) In nonpublic investigative proceedings, to grant requests of
persons to procure copies of the transcript of their testimony under
Sec. 203.6 of this chapter.
(3) To terminate and close all investigations authorized by the
Commission pursuant to section 20 of the Securities Act of 1933 (15
U.S.C. 77t), section 21 of the Securities Exchange Act of 1934 (15
U.S.C. 78u), section 42 of the Investment Company Act of 1940 (15 U.S.C.
80a-41) and section 209 of the Investment Advisers Act of 1940 (15
U.S.C. 80b-9).
(4) To terminate the authority to administer oaths and affirmations,
subpoena witnesses, compel their attendance, take evidence, and require
the production of any books, papers, correspondence, memoranda,
contracts, agreements, or other records in the course of investigations
instituted by the Commission pursuant to section 19(c) of the Securities
Act of 1933 (15 U.S.C. 77s(c)), section 21(b) of the Securities Exchange
Act of 1934 (15 U.S.C. 78u(b)), section 42(b) of the Investment Company
Act of 1940 (15 U.S.C. 80a-41(b)) and section 209(b) of the Investment
Advisers Act of 1940 (15 U.S.C. 80b-9(b)).
(5) To grant or deny applications made pursuant to Rule 193 of the
Commission's Rules of Practice, Sec. 201.193 of this chapter, provided,
that, in the event of a denial, the applicant shall be notified that
such a denial may be appealed to the Commisson for review.
(6) To notify the Securities Investor Protection Corporation
(``SIPC'') of facts concerning the activities and the operational and
financial condition of any registered broker or dealer which
[[Page 35]]
is or appears to be a member of SIPC and which is in or approaching
financial difficulty within the meaning of section 5 of the Securities
Investor Protection Act of 1970, as amended, 15 U.S.C. 78aaa et seq.
(7) To administer the provisions of Sec. 240.24c-1 of this chapter;
provided that access to nonpublic information as defined in such section
shall be provided only with the concurrence of the head of the
Commission division or office responsible for such information or the
files containing such information.
(8) Pursuant to Rule 204-2(j)(3)(ii) (Sec. 275.204-2(j)(3)(ii) of
this chapter) under the Investment Advisers Act of 1940 (15 U.S.C. 80b-1
et seq.), to make written demands upon non-resident investment advisers
subject to the provisions of such rule to furnish to the Commission
true, correct, complete and current copies of any or all books and
records which such non-resident investment advisers are required to
make, keep current or preserve pursuant to any provision of any rule or
regulation of the Commission adopted under the Investment Advisers Act
of 1940, or any part of such books and records which may be specified in
any such demand.
(9) To administer the provisions of Section 24(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78x(d)).
(10) To institute subpoena enforcement proceedings in federal court
to seek an order compelling the production of documents or an
individual's appearance for testimony pursuant to subpoenas issued
pursuant to paragraph (a)(1) of this section in connection with
investigations pursuant to section 19(c) of the Securities Act of 1933
(15 U.S.C. 77s(c)), section 21(b) of the Securities Exchange Act of 1934
(15 U.S.C. 78u(b)), section 42(b) of the Investment Company Act of 1940
(15 U.S.C. 80a-41(b)) and section 209(b) of the Investment Advisers Act
of 1940 (15 U.S.C. 80b-9(b)).
(11) To authorize staff to appear in federal bankruptcy court to
preserve Commission claims in connection with investigations pursuant to
section 19(c) of the Securities Act of 1933 (15 U.S.C. 77s(c)), section
21(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)), section
42(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-41(b)) and
section 209(b) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-
9(b)).
(12) Pursuant to Section 36 of the Securities Exchange Act of 1934
(15 U.S.C. 78mm) to review and, either unconditionally or on specified
terms and conditions, grant, or deny exemptions from rule 17a-25 of the
Act (Sec. 240.17a-25 of this chapter), provided that the Division of
Trading and Markets is notified of any such granting or denial of an
exemption.
(13) To order the making of private investigations pursuant to
section 19(c) of the Securities Act of 1933 (15 U.S.C. 77s(c)), section
21(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)), section
42(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-41(b) and
section 209(b) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-
9(b)).
(14) To submit witness immunity requests to the U.S. Attorney
General pursuant to 18 U.S.C. 6002-6004, and, upon approval by the U.S.
Attorney General, to seek or, for the period from June 17, 2011 through
December 19, 2012, to issue orders compelling an individual to give
testimony or provide other information pursuant to subpoenas that may be
necessary to the public interest in connection with investigations and
related enforcement actions pursuant to section 22(b) of the Securities
Act of 1933 (15 U.S.C. 77v(b)), section 21(c) of the Securities Exchange
Act of 1934 (15 U.S.C. 78u(c)), section 42(c) of the Investment Company
Act of 1940 (15 U.S.C. 80a-41(c)) and section 209(c) of the Investment
Advisers Act of 1940 (15 U.S.C. 80b-9(c)).
(15) With respect to debts arising from actions to enforce the
federal securities laws, to terminate collection activity or discharge
debts, to accept offers to compromise debts when the principal amount of
the debt is $5 million or less, to reject offers to compromise debts,
and to accept or reject offers to enter into payment plans.
(16) To disclose information, in accordance with Section 21F(h)(2)
of the Securities Exchange Act of 1934 (15 U.S.C. 78u-6(h)(2)), that
would reveal, or could reasonably be expected to reveal, the identity of
a whistleblower.
[[Page 36]]
(17) With respect to disgorgement and Fair Fund plans established in
administrative proceedings instituted by the Commission pursuant to the
federal securities laws, to appoint a person as a plan administrator, if
that person is included in the Commission's approved pool of
administrators, and, for an administrator appointed pursuant to this
delegation, to set the amount of or waive for good cause shown, the
administrator's bond required by Sec. 201.1105(c) of this chapter.
(b) Notwithstanding anything in the foregoing, in any case in which
the Director of the Division of Enforcement believes it appropriate, he
may submit the matter to the Commission.
[37 FR 16796, Aug. 19, 1972]
Editorial Note: For Federal Register citations affecting Sec.
200.30-4, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 200.30-5 Delegation of authority to Director of Division
of Investment Management.
Pursuant to the provisions of Pub. L. 87-592, 76 Stat. 394 (15
U.S.C. 78d-1, 78d-2), the Securities and Exchange Commission hereby
delegates, until the Commission orders otherwise, the following
functions to the Director of the Division of Investment Management, to
be performed by him or under his direction by such person or persons as
may be designated from time to time by the Chairman of the Commission:
(a) With respect to the Investment Company Act of 1940 (15 U.S.C.
80a-1 et seq.):
(1) Except as otherwise provided in this section, to issue notices,
under Sec. 270.0-5 of this chapter, with respect to applications for
orders under the Act and the rules and regulations thereunder and, with
respect to section 8(f) of the Act (15 U.S.C. 80a-8(f)), in cases where
no application has been filed, where, upon examination, the matter does
not appear to the Director to present significant issues that have not
been previously settled by the Commission or to raise questions of fact
or policy indicating that the public interest or the interest of
investors warrants that the Commission consider the matter.
(2) Except as otherwise provided in this section, to authorize the
issuance of orders where a notice, under Sec. 270.0-5 of this chapter,
has been issued and no request for a hearing has been received from any
interested person within the period specified in the notice and the
Director believes that the matter presents no significant issues that
have not been previously settled by the Commission and it does not
appear to the Director to be necessary in the public interest or the
interest of investors that the Commission consider the matter.
(3) To permit the withdrawal of applications pursuant to the Act (15
U.S.C. 80a-1 et seq.)
(4) In connection with the mailing of reports to stockholders and
the filing with the Commission of registration statements and of
reports:
(i) To grant reasonable extensions of time, upon a showing of good
cause and that it would not be contrary to the public interest or
inconsistent with the protection of investors; and
(ii) To deny requests for extensions of time, provided the applicant
is advised that he can request Commission review of any such denial.
(5) [Reserved]
(6) To authorize the issuance of orders granting confidential
treatment pursuant to section 45(a) of the Act (15 U.S.C. 80a-44(a))
where applications for confidential treatment are made regarding matters
of disclosure in registration statements filed pursuant to section 8 of
the Act (15 U.S.C. 80a-8), or in reports filed pursuant to section 30 of
the Act (15 U.S.C. 80a-29), but only when the Commission has previously
by order granted confidential treatment to the same information.
(7) To issue notices, pursuant to Rule 0-5(a) (Sec. 270.0-5(a) of
this chapter) with respect to applications for temporary and permanent
orders under section 9(c) of the Investment Company Act of 1940 (15
U.S.C. 80a-9(c)), and to conditionally or unconditionally exempt
persons, for a temporary period not exceeding 60 days, from section 9(a)
of the Investment Company Act of 1940 (15 U.S.C. 80a-9(a)), if, on the
basis of the facts then set forth in the application, it appears that:
[[Page 37]]
(i)(A) The prohibitions of section 9(a), as applied to the
applicant, may be unduly or disproportionately severe, or (B) the
applicant's conduct has been such as not to make it against the public
interest or the protection of investors to grant the temporary
exemption; and
(ii) Granting the temporary exemption would protect the interests of
the investment companies being served by the applicant by allowing time
for the orderly consideration of the application for permanent relief or
the orderly transition of the applicant's responsibilities to a
successor, or both.
(8) To issue--
(i) Notices, pursuant to Rule 0-5(a) (Sec. 270.0-5(a) of this
chapter), with respect to applications for permanent orders under
section 9(c) of the Act [15 U.S.C. 80a-9(c)], and, orders, pursuant to
paragraph (a)(2) of this section, that exempt conditionally or
unconditionally persons from section 9(a) of the Act [15 U.S.C. 80a-
9(a)], if, on the basis of the facts then set forth in the application,
it appears that:
(A) The prohibitions of section 9(a) of the Act, as applied to the
applicant, may be unduly or disproportionately severe, or the
applicant's conduct has been such as not to make it against the public
interest or the protection of investors to grant the exemption;
(B) The prohibitions arise under section 9(a)(3) of the Act solely
because the applicant employs, or will employ, a person who is
disqualified under section 9(a) (1) or (2) of the Act; and,
(C) The employee does not and will not serve in any capacity
directly related to providing investment advice to, or acting as
depositor for, any registered investment company, or acting as principal
underwriter for any registered open-end company, registered unit
investment trust or registered face amount certificate company.
(ii) Temporary orders under section 9(c) of the Act [15 U.S.C. 80a-
9(c)], exempting conditionally or unconditionally persons from section
9(a) of the Act [15 U.S.C. 80a-9(a)], if, on the basis of the
application, it appears that:
(A) The prohibitions arise under section 9(a)(3) of the Act solely
because the applicant employs a person who is disqualified under section
9(a) (1) or (2) of the Act; and
(B) Applicant meets the requirements of paragraphs (a)(8)(i) (A) and
(C) of this section.
(b) With respect to matters pertaining to investment companies
registered under the Investment Company Act of 1940 (15 U.S.C. 80a et
seq.), pooled investment funds or accounts, and the general assets or
separate accounts of insurance companies, all arising under the
Securities Act of 1933 (15 U.S.C. 77a et seq.), the Securities Exchange
Act of 1934 (15 U.S.C. 78a et seq.), and the Trust Indenture Act of 1939
(15 U.S.C. 77aaa et seq.), the same functions as are delegated to the
Director of the Division of Corporation Finance in regard to companies
other than such investment companies in paragraphs (a), (e), and (f) of
Sec. 200.30-1.
(b-1) With respect to the Securities Act of 1933. (1) To issue
notices with respect to applications for orders under section 3(a)(2)
exempting from section 5 interests or participations issued in
connection with stock bonus, pension, profit-sharing, or annuity plans
covering employees some or all of whom are employees within the meaning
of section 401(c)(1) of the Internal Revenue Code of 1954 where, upon
examination, the matter does not appear to him to present issues not
previously settled by the Commission or to raise questions of fact or
policy indicating that the public interest or the interest of investors
requires that a hearing be held.
(2) To authorize the issuance of orders where a notice has been
issued and no request for a hearing has been received from any
interested person within the period specified in the notice and the
matter involved presents no issue that he believes has not been settled
previously by the Commission and it does not appear to him to be
necessary in the public interest or the interest of investors that a
hearing be held.
(b-2) With respect to post-effective amendments filed pursuant to
Sec. 230.485(a) or Sec. 230.486(a) of this chapter:
(1) To suspend the operation of paragraph (a) of such sections and
to issue written notices to registrants of such suspensions;
[[Page 38]]
(2) To determine such amendments to be effective within shorter
periods of time than the sixtieth day after the filing thereof.
(b-3) With respect to post-effective amendments filed pursuant to
Sec. 230.485(b) or Sec. 230.486(b) of this chapter:
(1) To approve additional purposes for post-effective amendments
which shall be eligible for immediate effectiveness pursuant to
paragraph (b) of such sections.
(2) To suspend the operation of paragraph (b) of such sections and
to issue written notices to registrants of such suspensions.
(b-4) With respect to registration statements filed pursuant to
paragraph (a) of Rule 487 under the Act (17 CFR 230.487(a)):
(1) To suspend the operation of said paragraph (a) and to issue
written notices to registrants of such suspensions.
(b-5) With respect to registration statements filed pursuant to
paragraph (a) of rule 488 under the Act (17 CFR 230.488(a)):
(1) To suspend the operation of said paragraphs and to issue written
notices to registrants of such suspensions;
(2) To determine such amendments to be effective within shorter
periods of time than the thirtieth day after the filing thereof.
(c) With respect to the Securities Act of 1933 and Regulation E
thereunder (Sec. 230.601 et seq. of this chapter):
(1) To authorize the offering of securities:
(i) Less than ten days subsequent to the filing with the Commission
of a notification on Form 1-E (Sec. 239.200 of this chapter) pursuant
to Rule 604(a) (Sec. 230.604(a) of this chapter);
(ii) Less than ten days subsequent to the filing of an amendment to
a notification on Form 1-E (Sec. 239.200 of this chapter) pursuant to
Rule 604(c) (Sec. 230.604(c) of this chapter).
(2) To authorize the use of a revised or amended offering circular
less than ten days subsequent to the filing thereof pursuant to Rule
605(e) (Sec. 230.605(e) of this chapter).
(3) To authorize the use of communications specified in paragraphs
(a), (b) and (c) of Rule 607 (Sec. 230.607 of this chapter), less than
five days subsequent to the filing thereof.
(4) To permit the withdrawal of any notification, or any exhibit or
other documents filed as a part thereof, pursuant to Rule 604(d) (Sec.
230.604(d) of this chapter).
(c-1) With respect to the Securities Exchange Act of 1934: (1) To
grant and deny applications filed pursuant to section 24(b) of the
Securities Exchange Act of 1934 (15 U.S.C. 78x(b)) and Rule 24b-2
thereunder (Sec. 240.24b-2 of this chapter) for confidential treatment
of information filed pursuant to section 13(f) of that Act (15 U.S.C.
78m(f)) and Rule 13f-1 thereunder (Sec. 240.13f-1 of this chapter).
(2) To revoke a grant of confidential treatment for any such
application.
(3) To administer the provisions of Sec. 240.24c-1 of this chapter;
provided that access to nonpublic information as defined in such section
shall be provided only with the concurrence of the head of the
Commission division or office responsible for such information or the
files containing such information.
(4) To administer the provisions of section 24(d) of the Act (15
U.S.C. 78x(d)).
(d) To issue certifications to investment companies that are
principally engaged in the furnishing of capital to corporations that
are principally engaged in the development or exploitation of
inventions, technological improvements, new processes, or products not
previously generally available, under Section 851(e) of the Internal
Revenue Code of 1986 (26 U.S.C. 851(e)), where applications from the
investment companies do not present issues that have not been previously
settled by the Commission and do not require a hearing.
(e) With respect to the Investment Advisers Act of 1940 (15 U.S.C.
80b-1 to 80b-22):
(1) Pursuant to section 203(c) of the Act (15 U.S.C. 80b-3(c)): To
authorize the issuance of orders granting registration of investment
advisers within 45 days of the filing of an application for registration
as an investment adviser (or within such longer period as to which the
applicant consents).
(2) Pursuant to section 203(h) of the Act (15 U.S.C. 80b-3(h)), to
authorize
[[Page 39]]
the issuance of orders canceling registration of investment advisers, or
applications for registration, if such investment advisers or applicants
for registration are no longer in existence, not engaged in business as
investment advisers, or are prohibited from registering as investment
advisers under Section 203A of the Act (15 U.S.C. 80b-3a).
(3) To issue notices, under Sec. 275.0-5 of this chapter, with
respect to applications for orders under the Act and the rules and
regulations thereunder where, upon examination, the matter does not
appear to the Director to present significant issues that have not been
previously settled by the Commission or to raise questions of fact or
policy indicating that the public interest or the interest of investors
warrants that the Commission consider the matter.
(4) To authorize the issuance of orders where a notice, pursuant to
Sec. 275.0-5 of this chapter, has been issued, no request for a hearing
has been received from any interested person within the period specified
in the notice, and the Director believes that the matter presents no
significant issues that have not been previously settled by the
Commission and it does not appear to the Director to be necessary in the
public interest or the interest of investors that the Commission
consider the matter.
(5) To permit the withdrawal of applications pursuant to the Act (15
U.S.C. 80b-1 et seq.).
(6) Pursuant to Rule 204-2(j)(3)(ii) (Sec. 275.204-2(j)(3)(ii) of
this chapter), to make written demands upon non-resident investment
advisers subject to the provisions of such rule to furnish to the
Commission true, correct, complete and current copies of any or all
books and records which such non-resident investment advisers are
required to make, keep current or preserve pursuant to any provision of
any rule or regulation of the Commission adopted under the Act, or any
part of such books and records which may be specified in any such
demand.
(7) Pursuant to section 203A(d) of the Act (15 U.S.C. 80b-3a(d)), to
set the terms of, and grant or deny as appropriate, continuing hardship
exemptions under Sec. 275.203-3 of this chapter.
(f) To consult on behalf of the Commission pursuant to sections
5318A(a)(4), 5318A(e)(2) and 5318(h)(2) of the Bank Secrecy Act (31
U.S.C. 5318A(a)(4), 5318A(e)(2) and 5318(h)(2)) with respect to matters
described in Sec. 200.20b.
(g) To consult on behalf of the Commission pursuant to the Uniting
and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), as
amended (Pub. L. 107-56 (2001), 115 Stat. 272) with respect to matters
described in Sec. 200.20b.
(h) Notwithstanding anything in the foregoing:
(1) The Director of the Division of Investment Management shall have
the same authority with respect to the Securities Act of 1933 (15 U.S.C.
77a et seq.), Sec. Sec. 230.251-230.263, and Sec. Sec. 230.651-
230.703(T) of this chapter as that delegated to each Regional Director
in Sec. 200.30-6 (b) and (c).
(2) In any case in which the Director of the Division of Investment
Management believes it appropriate, he may submit the matter to the
Commission.
(i) With respect to the Investment Company Act of 1940 (15 U.S.C.
80a et seq.), the Securities Act of 1933 (15 U.S.C. 77a et seq.), the
Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), the Trust
Indenture Act of 1939 (15 U.S.C. 77aaa et seq.), and Regulation S-T
thereunder (part 232 of this chapter), to grant or deny a request
submitted under Regulation S-T to adjust the filing date of an
electronic filing.
(j) With respect to the Investment Company Act of 1940 (15 U.S.C.
80a et seq.) and rule 8b-25 thereunder (Sec. 270.8b-25), the Securities
Act of 1933 (15 U.S.C. 77a et seq.), the Securities Exchange Act of 1934
(15 U.S.C. 78a et seq.), the Trust Indenture Act of 1939 (15 U.S.C.
77aaa et seq.), and Regulation S-T thereunder (part 232 of this
chapter), to set the terms of, and grant or deny as appropriate,
continuing hardship exemptions under rule 202 of Regulation S-T (Sec.
232.202 of this chapter) from the electronic submission requirements of
Regulation S-T (part 232 of this chapter).
[[Page 40]]
(k) With respect to Regulation S-T (part 232 of this chapter), to
grant or deny a request to adjust the filing date of a filing submitted
under Regulation S-T.
(l) With respect to Regulation S-T (part 232 of this chapter), to
set the terms of, and grant or deny as appropriate, continuing hardship
exemptions pursuant to rule 202 of Regulation S-T (Sec. Sec. 232.202 of
this chapter) from the electronic submission requirements of Regulation
S-T (part 232 of this chapter).
[41 FR 29376, July 16, 1976]
Editorial Note: For Federal Register citations affecting Sec.
200.30-5, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 200.30-6 Delegation of authority to Regional Directors.
Pursuant to the provisions of Pub. L. 87-592, 76 Stat. 394, the
Securities and Exchange Commission hereby delegates, until the
Commission orders otherwise, the following functions to each Regional
Director, to be performed by him or under his direction by such person
or persons as may be designated from time to time by the Chairman of the
Commission:
(a) With respect to the Securities Exchange Act of 1934, 15 U.S.C.
78 et seq.:
(1) Pursuant to section 15(b)(2)(C) of the Act (15 U.S.C.
78o(b)(2)(C)):
(i) To delay until the second six month period from registration
with the Commission, the inspection of newly registered broker-dealers
that have not commenced actual operations within six months of their
registration with the Commission; and
(ii) To delay until the second six month period from registration
with the Commission, the inspection of newly registered broker-dealers
to determine whether they are in compliance with applicable provisions
of the Act and rules thereunder, other than financial responsibility
rules.
(2) Pursuant to Rule 0-4 (Sec. 240.0-4 of this chapter), to
disclose to the Comptroller of the Currency, the Board of Governors of
the Federal Reserve System and the Federal Deposit Insurance Corporation
and to the state banking authorities, information and documents deemed
confidential regarding registered clearing agencies and registered
transfer agents; Provided That, in matters in which the Commission has
entered a formal order of investigation, such disclosure shall be made
only with the concurrence of the Director of the Division of Enforcement
or his or her delegate, and the General Counsel or his or her delegate.
(b) With respect to the Investment Advisers Act of 1940, 15 U.S.C.
80b-1 et seq.: Pursuant to Rule 204-2(j)(3)(ii) (Sec. 275.204-
2(j)(3)(ii) of this chapter), to make written demands upon non-resident
investment advisers subject to the provisions of such rule to furnish to
the Commission true, correct, complete and current copies of any or all
books and records which such non-resident investment advisers are
required to make, keep current or preserve pursuant to any provision of
any rule or regulation of the Commission adopted under the Investment
Advisers Act of 1940, or any part of such books and records which may be
specified in any such demand.
(c) In nonpublic investigatory proceedings within the responsibility
of the Regional Director, to grant requests of persons to procure copies
of the transcript of their testimony given pursuant to Rule 6 of the
Commission's rules relating to investigations as in effect subsequent to
November 16, 1972 (17 CFR 203.6).
(d) To notify the Securities Investor Protection Corporation
(``SIPC'') of facts concerning the activities and the operational and
financial condition of any registered broker or dealer which is or
appears to be a member of SIPC and which is in or approaching financial
difficulty within the meaning of section 5 of the Securities Investor
Protection Act of 1970, as amended, 15 U.S.C. 78aaa et seq.
(e) Notwithstanding anything in the foregoing, in any case in which
the Regional Director believes it appropriate, he may submit the matter
to the Commission.
[28 FR 2856, Mar. 22, 1963, as amended at 36 FR 7659, Apr. 23, 1971.
Redesignated at 37 FR 16792, Aug. 19, 1972]
Editorial Note: For Federal Register citations affecting Sec.
200.30-6, see the List of CFR Sections Affected, which appears in the
[[Page 41]]
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 200.30-7 Delegation of authority to Secretary of the Commission.
Pursuant to the provisions of Pub. L. 87-592, 76 Stat. 394 (15
U.S.C. 78d-1), the Securities and Exchange Commission hereby delegates,
until the Commission orders otherwise, the following functions to the
Secretary of the Commission to be performed by him or under his
direction by such person or persons as may be designated from time to
time by the Chairman of the Commission:
(a) With respect to proceedings conducted pursuant to the Securities
Act of 1933, 15 U.S.C. 77a et seq., the Securities Exchange Act of 1934,
15 U.S.C. 78a et seq., the Trust Indenture Act of 1939, 15 U.S.C. 77aaa
et seq., the Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq.,
the Investment Advisers Act of 1940, 15 U.S.C. 80b-1 et seq., the
Securities Investor Protection Act of 1970, 15 U.S.C. 78aaa et seq., the
provisions of Rule 102(e) of the Commission's Rules of Practice, Section
201.102(e) of this chapter, and Title I of the Sarbanes-Oxley Act of
2002, 15 U.S.C. 7211-7219;
(1) To fix the time and place for hearings and oral arguments before
the Commission pursuant to Rule 451 of the Commission's Rules of
Practice, Sec. 201.451 of this chapter;
(2) In appropriate cases to extend and reallocate the time
prescribed in Rule 451(c) of the Commission's Rules of Practice, Sec.
201.451(c) of this chapter;
(3) To postpone or adjourn hearings or otherwise adjust the date for
commencement of hearings before the Commission pursuant to Rule 161 of
the Commission's Rules of Practice, Sec. 201.161 of this chapter, and
to advance such hearings;
(4) To grant or deny extensions of time within which to file papers
with the Commission under Rule 161 of the Commission's Rules of
Practice, Sec. 201.161 of this chapter, or under part 201, subpart F of
the Commission's Rules pertaining to Fair Fund and Disgorgement Plans,
Sec. Sec. 201.1100-201.1106;
(5) To permit the filing of briefs with the Commission exceeding
14,000 words in length, pursuant to Rule 450(c) of the Commission's Rule
of Practice, Sec. 201.450(c) of this chapter, and to permit the filing
of motions with the Commission in excess of 7,000 words pursuant to Rule
154(c) of the Commission's Rules of Practice, Sec. 201.154(c) of this
chapter;
(6) To certify records of proceedings upon which are entered orders
the subject of review in courts of appeals pursuant to section 9 of the
Securities Act of 1933, 15 U.S.C. 77i, section 25 of the Securities
Exchange Act of 1934, 15 U.S.C. 78y, section 322(a) of the Trust
Indenture Act of 1939, 15 U.S.C. 77vvv(a), section 43 of the Investment
Company Act of 1940, 15 U.S.C. 80a-42, section 213 of the Investment
Advisers Act of 1940, 15 U.S.C. 80b-13, and Title I of the Sarbanes-
Oxley Act of 2002, 15 U.S.C. 7211-7219;
(7) Except where the Commission otherwise directs, to issue findings
and orders pursuant to offers of settlement which the Commission has
determined should be accepted;
(8) To issue findings and orders taking the remedial action
described in the order for proceedings where a respondent expressly
consents to such action, fails to appear, or defaults in the filing of
an answer required to be filed and to grant a request, based upon a
showing of good cause, to vacate an order or default, so as to permit
presentation of a defense;
(9) To designate officers of the Commission to serve notices of and
orders for proceedings and decisions and orders in such proceedings, the
service of which is required by Rules 141 and 150 of the Commission's
Rules of Practice, Sec. Sec. 201.141 and 201.150 of this chapter;
(10) To set the date for sanctions to take effect if an initial
decision is not appealed and becomes final pursuant to Rule 360(d) or if
an initial decision is affirmed pursuant to Rule 411;
(11) To publish pursuant to Rule 1103 of the Commission's Rules of
Practice (Sec. 201.1103 of this chapter) notice for fair fund and
disgorgement plans, and if no negative comments are received, to issue
orders approving proposed fair fund plans and disgorgement plans
pursuant to Rule 1104 of the Commission's Rules of Practice (Sec.
201.1104 of this chapter). As part of this plan approval, the
requirement set forth in Rule 1105(c) (Sec. 201.1105(c) of this
chapter) may
[[Page 42]]
be waived if the fair or disgorgement funds are held at the U.S.
Department of the Treasury and will be disbursed by Treasury. Upon the
motion of the staff for good cause shown, to approve the publication of
proposed fair fund plans and disgorgement plans that omit plan elements
required by Rule 1101 of the Commission's Rules of Practice (Sec.
201.1101 of this chapter).
(12) To issue orders instituting previously authorized
administrative proceedings pursuant to sections 15(b)(4) or (6), 15B,
15C, or 17A of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b)(4)
or (6), 78o-4, 78o-5, or 78q-1), and section 203(e) or (f) of the
Investment Advisers Act of 1940 (15 U.S.C. 80b-3(e) or (f)), based on
the entry of an injunction or a criminal conviction, and to issue
findings and orders in such cases where a respondent consents to a bar
from association.
(b) To order the making of private investigations pursuant to
section 21(a) of the Securities Exchange Act of 1934, on request of the
Division of Corporation Finance or the Division of Enforcement, with
respect to proxy contests subject to section 14 of that Act and
regulation 14A thereunder, and tender offers filed pursuant to section
14(d) of the Act.
(c) To authenticate all Commission documents produced for
administrative or judicial proceedings.
(d) The functions otherwise delegated to the General Counsel under
Sec. 200.30-14(i), with respect to any proceeding in which the Chairman
or the General Counsel has determined, pursuant to Sec. 200.30-14(j),
that separation of functions requirements or other circumstances would
make inappropriate the General Counsel's exercise of such delegated
functions.
(e) Notwithstanding anything in the foregoing, in any case in which
the Secretary of the Commission believes it appropriate he or she may
submit the matter to the Commission.
[35 FR 17989, Nov. 24, 1970. Redesignated at 37 FR 16792, Aug. 19, 1972]
Editorial Note: For Federal Register citations affecting Sec.
200.30-7, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 200.30-8 [Reserved]
Sec. 200.30-9 Delegation of authority to hearing officers.
Pursuant to the provisions of Section 4A of the Securities Exchange
Act of 1934 (15 U.S.C. 78d-1), the Securities and Exchange Commission
hereby delegates, until the Commission orders otherwise, to each
Administrative Law Judge (``Judge'') the authority:
(a) To make an initial decision in any proceeding at which the Judge
presides in which a hearing is required to be conducted in conformity
with the Administrative Procedure Act (5 U.S.C. 557) unless such initial
decision is waived by all parties who appear at the hearing and the
Commission does not subsequently order that an initial decision
nevertheless be made by the Judge, and in any other proceeding in which
the Commission directs the Judge to make such a decision; and
(b) To issue, upon entry pursuant to Rule 531 of the Commission's
Rules of Practice, Sec. 201.531 of this chapter, of an initial decision
on a permanent order, a separate order setting aside, limiting or
suspending any temporary sanction, as that term is defined in Rule
101(a)(11) of the Commission's Rules of Practice, Sec. 201.101(a) of
this chapter, then in effect in accordance with the terms of the initial
decision.
[60 FR 32794, June 23, 1995]
Sec. 200.30-10 Delegation of authority to Chief Administrative Law Judge.
Pursuant to the provisions of Pub. L. 87-592, 76 Stat. 394 (15
U.S.C. 78d-1), the Securities and Exchange Commission hereby delegates,
until the Commission orders otherwise, the following functions to the
Chief Administrative Law Judge or to such administrative law judge or
administrative law judges as may be designated by the Chief
Administrative Law Judge in his absence, or as otherwise designated by
the Chairman of the Commission in the absence of the Chief
Administrative Law Judge:
(a) With respect to proceedings conducted before an administrative
law judge, pursuant to the Securities Act of 1933, 15 U.S.C. 77a et
seq., the Securities Exchange Act of 1934, 15 U.S.C. 78a et seq., the
Trust Indenture Act of 1939, 15 U.S.C. 77aaa et seq., the Investment
[[Page 43]]
Company Act of 1940, 15 U.S.C. 80a-1 et seq., the Investment Advisers
Act of 1940, 15 U.S.C. 80b-1 et seq., the Securities Investor Protection
Act of 1970, 15 U.S.C. 78aaa et seq., and the provisions of Rule 102(e)
of the Commission's Rules of Practice, Sec. 201.102(e) of this chapter:
(1) After a proceeding has been authorized, to fix the time and
place for hearing pursuant to Rule 200 of the Commission's Rules of
Practice, Sec. 201.200 of this chapter;
(2) To designate administrative law judges pursuant to Rule 110 of
the Commission's Rules of Practice, Sec. 201.110 of this chapter;
(3) To postpone or adjourn hearings or otherwise adjust the date for
commencement of hearings pursuant to Rule 161 of the Commission's Rules
of Practice, Sec. 201.161 of this chapter, or to advance or cancel such
hearings, if necessary;
(4) To grant extensions of time within which to file papers pursuant
to Rule 161 of the Commission's Rules of Practice, Sec. 201.161 of this
chapter;
(5) To permit the filing of briefs exceeding 14,000 words in length,
pursuant to Rule 450(c) of the Commission's Rules of Practice, Sec.
201.450(c) of this chapter;
(6) In the event the designated presiding administrative law judge
is unavailable to issue subpenas requiring the attendance and testimony
of witnesses and subpenas requiring the production of documentary or
other tangible evidence at any designated place of hearing upon request
therefor by any party, pursuant to Rule 232 of the Commission's Rules of
Practice, 201.232 of this chapter;
(7) Pursuant to sections 15(b)(1)(B), 15B(a)(2)(B), and 19(a)(1)(B)
of the Securities Exchange Act of 1934 and section 203(c)(2)(B) of the
Investment Advisers Act of 1940 to grant extensions of time for
conclusion of proceedings instituted to determine whether applications
for registration as a broker or dealer, municipal securities dealer,
national securities exchange, registered securities association, or
registered clearing agency, or as an investment adviser should be
denied;
(8) To grant motions of staff counsel to discontinue administrative
proceedings as to a particular respondent who has died or cannot be
found, or because of a mistake in the identity of a respondent named in
the order for proceedings.
(b) With respect to proceedings under the Equal Access to Justice
Act, 5 U.S.C. 504, to make assignments as provided in Sec. 201.37(b) of
this chapter, respecting applications made pursuant to that Act.
(c) Notwithstanding anything in the foregoing, in any case in which
the Chief Administrative Law Judge believes it appropriate he or she may
submit the matter to the Commission.
[37 FR 23827, Nov. 9, 1972, as amended at 41 FR 21183, May 24, 1976; 43
FR 13378, Mar. 30, 1978; 54 FR 53051, Dec. 27, 1989; 60 FR 32794, June
23, 1995; 69 FR 13174, Apr. 19, 2004; 70 FR 72569, Dec. 5, 2005; 71 FR
71037, Dec. 8, 2006]
Sec. 200.30-11 Delegation of authority to the Chief Accountant.
Pursuant to the provisions of Pub. L. 101-181, 101 Stat. 1254, 1255
(15 U.S.C. 78d-1, 78d-2), the Securities and Exchange Commission hereby
delegates, until the Commission orders otherwise, the following
functions to the Chief Accountant of the Commission, to be performed by
him or her or under his or her direction by such person or persons as
may be designated from time to time by the Chairman of the Commission:
(a) In connection with Commission review of inspection reports of
the Public Company Accounting Oversight Board (``PCAOB'') under 15
U.S.C. 7214(h) and Sec. 202.140:
(1) To grant or deny review requests and notify the firm and the
PCAOB as to whether the Commission will grant the review request under
Sec. 202.140(d);
(2) To extend the time periods set forth in Sec. 202.140(e) within
which the PCAOB, registered public accounting firm or an associated
person may submit responsive information and documents in connection
with a request for Commission review.
(3) To request additional information pursuant to Sec. 202.140(e)
relating to the PCAOB's assessments or determination under review from
the PCAOB, the registered public accounting firm, or any associated
person of the firm during the course of an interim review of an
[[Page 44]]
inspection report, and to grant the PCAOB, the firm or any associated
person a period of up to seven calendar days to respond to any
information obtained.
(4) To consider requests for review of inspection reports and, based
on such review, to not object to all or part of the assessments or
determination of the PCAOB and terminate the stay of publication, or to
remand to the PCAOB with instructions that the stay of publication is
permanent or that the PCAOB take such other actions as he or she deems
necessary or appropriate with respect to publication, including, but not
limited to, revising the final inspection report or determinations
before publication, and to provide the written notice communicating the
same to the PCAOB and the registered public accounting firm, consistent
with Sec. 202.140.
(5) To determine that a timely review request by a firm will not
operate as a stay of publication of those portions of the final
inspection report or determinations described in Sec. 202.140(b) that
are the subject of the firm's review request pursuant to Sec.
202.140(c)(5), as well as to determine that publication of the remainder
of the final inspection report or criticisms or defects in the quality
control systems would not be necessary or appropriate pursuant to Sec.
202.140(c)(5).
(6) To, in the event the Commission does grant a review request
pursuant to Sec. 202.140, determine that the stay of publication shall
not continue pursuant to Sec. 202.140(d).
(7) To, in the event that the review pursuant to Sec. 202.140(e)
has not been completed and a written notice has not been sent 75
calendar days after notification to the firm and the PCAOB that it is
granting the request for an interim review, grant an extension of time
under the authority set forth in Sec. 202.140(e).
(b)(1) Pursuant to section 107 of the Sarbanes-Oxley Act of 2002, 15
U.S.C. 7217, and section 19(b) of the Act, 15 U.S.C. 78s(b), and
applicable rules of the Commission, to publish notices of proposed rule
changes filed by the Public Company Accounting Oversight Board.
(2) Pursuant to section 107 of the Sarbanes-Oxley Act of 2002, 15
U.S.C. 7217, and section 19(b) of the Act, 15 U.S.C. 78s(b), and
applicable rules of the Commission, to approve or disapprove a proposed
rule change, and to find good cause to approve a proposed rule change
earlier than 30 days after the date of publication of such proposed rule
change and to publish the reasons for such finding. The Office of the
Chief Accountant shall notify the Commission no less than five (5)
business days before the Chief Accountant intends to exercise his or her
authority to approve or disapprove a particular proposed rule change.
(3) Pursuant to section 107 of the Sarbanes-Oxley Act of 2002, 15
U.S.C. 7217, and section 19(b)(2)(A) of the Act, 15 U.S.C. 78s(b)(2)(A),
to extend for a period not exceeding 90 days from the date of
publication of notice of the filing of a proposed rule change pursuant
to section 19(b)(1) of the Act, 15 U.S.C. 78s(b)(1), the period during
which the Commission must by order approve or disapprove the proposed
rule change or institute proceedings to determine whether the proposed
rule change should be disapproved and to determine whether such longer
period is appropriate and publish the reasons for such determination.
(4) Pursuant to section 107 of the Sarbanes-Oxley Act of 2002, 15
U.S.C. 7217, section 19(b)(2) of the Act, 15 U.S.C. 78s(b)(2), and
section 19(b)(3) of the Act, 15 U.S.C. 78s(b)(3), to institute
proceedings to determine whether a proposed rule change of the Public
Company Accounting Oversight Board should be disapproved and to provide
to the Public Company Accounting Oversight Board notice of the grounds
for disapproval under consideration. In addition, pursuant to section
107 of the Sarbanes-Oxley Act of 2002, 15 U.S.C. 7217, and section
19(b)(2)(B) of the Act, 15 U.S.C. 78s(b)(2)(B), to extend for a period
not exceeding 240 days from the date of publication of notice of the
filing of a proposed rule change pursuant to section 19(b)(1) of the
Act, 15 U.S.C. 78s(b)(1), the period during which the Commission must
issue an order approving or disapproving the proposed rule change and to
determine whether such longer period is appropriate and
[[Page 45]]
publish the reasons for such determination.
(5) Pursuant to section 107 of the Sarbanes-Oxley Act of 2002, 15
U.S.C. 7217, and section 19(b)(3)(C) of the Act, 15 U.S.C. 78s(b)(3)(C),
to temporarily suspend a rule of the Public Company Accounting Oversight
Board.
(c) Notwithstanding anything in the foregoing, in any case in which
the Chief Accountant believes it appropriate, he or she may submit the
matter to the Commission.
[75 FR 47449, Aug. 6, 2010, as amended at 76 FR 2806, Jan. 18, 2011]
Sec. 200.30-12 [Reserved]
Sec. 200.30-13 Delegation of authority to Chief Financial Officer.
Pursuant to the provisions of 15 U.S.C. 78d-1 and 78d-2, the
Securities and Exchange Commission hereby delegates, until the
Commission orders otherwise, the following functions to the Chief
Financial Officer, to be performed by him or her, or under his or her
direction by such person or persons as may be designated from time to
time by the Chairman of the Commission:
(a) The compromise and collection of federal claims as required by
the Federal Claims Collection Act of 1966, as amended and recodified at
31 U.S.C. 3701-3720, in conformance with standards and procedures
jointly promulgated by the Secretary of the Treasury and the Attorney
General of the United States in 31 CFR Parts 900-904.
(b) The administration of filing fee account procedures and policies
established in Sec. 202.3a of this chapter.
(c) Pursuant to section 21F(g)(4) of the Securities and Exchange Act
of 1934 (15 U.S.C. 78u-6(g)(4)), the making of requests to the Secretary
of the Treasury to invest the portion of the Securities and Exchange
Commission Investor Protection Fund that is not, in his or her
discretion, required to meet the current needs of the fund, and the
determination of the maturities for those investments suitable to the
needs of the fund.
[68 FR 50954, Aug. 22, 2003, as amended at 76 FR 60372, Sept. 29, 2011;
79 FR 59105, Oct. 1, 2014]
Sec. 200.30-14 Delegation of authority to the General Counsel.
Pursuant to the provisions of Pub. L. 101-181, 101 Stat. 1254, 101
Stat. 1255, 15 U.S.C. 78d-1, 15 U.S.C. 78d-2, and 5 U.S.C.
552a(d)(2)(B)(ii), the Securities and Exchange Commission hereby
delegates, until the Commission orders otherwise, the following
functions to the General Counsel of the Commission, to be performed by
him or her or under his or her direction by such person or persons as
may be designated from time to time by the Chairman of the Commission:
(a) Grant waivers of imputed disqualification requested pursuant to
17 CFR 200.735-8(d).
(b) Determine whether the Commission will submit, after consultation
with any Division or Office of the Commission designated by the
Commission, and amicus curiae brief in private litigation on issues
previously considered and designated by the Commission as appropriate
for the exercise of delegated authority. A list of the issues designated
by the Commission as subject to this delegated authority and, where
determined by the Commission, the position to be taken on each such
issue, may be obtained on request addressed to Securities and Exchange
Commission, Washington, DC 20549.
(c) Determine the appropriate disposition of all Freedom of
Information Act and confidential treatment appeals in accordance with
Sec. Sec. 200.80(f) and (g)(12) and 200.83(e), (f), and (h).
(d) Determine the appropriate disposition of all Privacy Act appeals
and related matters in accordance with Sec. Sec. 200.304 (a) and (c);
200.307 (a) and (b); 200.308(a) (4)-(10); 200.308(b) (1)-(4); and
200.309(e) (1) and (2).
(e) File notices of appearance in bankruptcy reorganization cases
under section 1109(a) of the Bankruptcy Code involving debtors, the
securities of which are registered or required to be registered under
section 12 of the Securities Exchange Act.
(f) In bankruptcy cases, to take the following actions with respect
to plan or settlement provisions that have the effect of releasing,
exculpating, discharging, or permanently enjoining actions against non-
debtor third parties
[[Page 46]]
in contravention of Section 524(e) of the Bankruptcy Code or applicable
law:
(1) Object to approval of disclosure statements, including on the
basis that the disclosure statement lacks adequate information under
Section 1125(b) to support such release provisions;
(2) Object to confirmation of bankruptcy plans; or
(3) Object to approval of settlements.
(g) Approve non-expert, non-privileged, factual testimony by present
or former staff members, and the production of non-privileged documents,
when validly subpoenaed; and assert governmental privileges on behalf of
the Commission in litigation where the Commission appears as a party or
in response to third party subpoenas.
(h)(1) With respect to proceedings conducted pursuant to the
Securities Act of 1933, 15 U.S.C. 77a et seq., the Securities Exchange
Act of 1934, 15 U.S.C. 78a et seq., the Trust Indenture Act of 1939, 15
U.S.C. 77aaa et seq., the Investment Company Act of 1940, 15 U.S.C. 80a-
1 et seq., the Investment Advisers Act of 1940, 15 U.S.C. 80b-1 et seq.,
the Securities Investor Protection Act of 1970, 15 U.S.C. 78aaa et seq.,
the provisions of Rule 102(e) of the Commission Rules of Practice, Sec.
201.102(e) of this chapter, and Title I of the Sarbanes-Oxley Act of
2002, 15 U.S.C. 7211-7219:
(i) To consider an application for review of an interlocutory ruling
which an administrative law judge has refused to certify, and to deny
such application upon determining that the administrative law judge did
not err in refusing to certify the matter.
(ii) To consider an interlocutory ruling which an administrative
judge has certified, and to affirm such ruling upon determining that
such action is appropriate.
(iii) To issue any order pursuant to an initial decision as to any
person who has not filed a petition for review within the time provided,
or has withdrawn his appeal, where the Commission has not on its own
motion ordered that the initial decision be reviewed.
(iv) Except where the Commission otherwise directs, to issue
findings and orders pursuant to offers of settlement which the
Commission has determined should be accepted.
(v) To grant petitions for review of initial decisions by a hearing
officer.
(vi) To grant motions of staff counsel to discontinue administrative
proceedings as to a particular respondent who has died or cannot be
found, or because of a mistake in the identity of a respondent named in
the order for proceedings.
(vii) To request additional briefs or grant requests for the
submission of late or additional briefs, or the acceptance of affidavits
or other material for inclusion in the record or in support of motions
or petitions addressed to the Commission.
(viii) To issue an order dismissing an application for review upon
the request of the applicant that the application be withdrawn.
(ix) To issue an order dismissing an exemptive application upon the
request of the applicant that the application be withdrawn.
(x) To determine motions to consolidate proceedings pending before
the Commission.
(xi) To determine whether to permit or require that a record of
proceedings be supplemented with additional evidence.
(xii) To issue an order setting the effective date of sanctions that
were stayed pending appeal to the federal courts, upon issuance of the
mandate affirming the Commission's order imposing those sanctions.
(xiii) To issue a briefing schedule order pursuant to Rule 450 of
the Commission's Rules of Practice, Sec. 201.450 of this chapter.
(xiv) To determine motions for expedited briefing schedules.
(xv) To issue an order raising, pursuant to the provisions of Rule
411(d) of the Commission's Rules of Practice, Sec. 201.411(d) of this
chapter, any matter relating to whether any sanction, and if so what
sanction, is in the public interest.
(2) With respect to proceedings conducted pursuant to the Securities
Act of 1933 (15 U.S.C. 77a et seq.), the Securities Exchange Act of 1934
(15 U.S.C. 78a et seq.), the Investment Company Act of 1940 (15 U.S.C.
80a-1 et seq.), the Investment Advisers Act of 1940 (15 U.S.C. 80b-1 et
seq.), the Securities Investor Protection Act of 1970 (15 U.S.C.
[[Page 47]]
78aaa et seq.) and the provisions of Rule 102(e) of the Commission's
Rules of Practice (Sec. 201.102(e) of this chapter), to issue findings
and orders taking the remedial action described in the order for
proceedings where the respondents expressly consent to such action, fail
to appear or default in the filing of answers required to be filed; or
to grant a request, based upon a showing of good cause, to vacate an
order of default, so as to permit presentation of a defense.
(3) With respect to proceedings conducted pursuant to the Securities
Exchange Act of 1934 (15 U.S.C. 78a et seq.), to issue an order
dismissing an application for review of a denial by a self-regulatory
organization of an application by a person subject to statutory
disqualification to become associated with a member firm upon receipt of
notice from the self-regulatory organization that the firm is no longer
a member of the self-regulatory organization.
(4) With respect to proceedings conducted under sections 19(d), (e),
and (f) of the Securities Exchange Act of 1934, 15 U.S.C. 78s(d), (e),
and (f), and Title I of the Sarbanes-Oxley Act of 2002, 15 U.S.C. 7211-
7219, to determine that an application for review under any of those
sections has been abandoned, under the provisions of Rule 420 or 440 of
the Commission's Rules of Practice, Sec. 201.420 or 201.440 of this
chapter, or otherwise, and accordingly to issue an order dismissing the
application.
(5) With respect to proceedings conducted pursuant to the Securities
Exchange Act of 1934, 15 U.S.C. 78a et seq., the Investment Company Act
of 1940, 15 U.S.C. 80a-1 et seq., the Investment Advisers Act of 1940,
15 U.S.C. 80b-1 et seq., the provisions of Rule 102(e) of the
Commission's Rules of Practice, Sec. 201.102(e) of this chapter, and
Title I of the Sarbanes-Oxley Act of 2002, 15 U.S.C. 7211-7219, to
determine applications to stay Commission orders pending appeal of those
orders to the federal courts and to determine application to vacate such
stays.
(6) With respect to review proceedings pursuant to Sections 19 (d),
(e), and (f) of the Securities Exchange Act of 1934 (15 U.S.C. 78s (d),
(e), and (f)), to determine applications for a stay of action taken by a
self-regulatory organization pending Commission review of that action
and to determine applications to vacate such stays.
(7) In connection with Commission review of actions taken by self-
regulatory organizations pursuant to sections 19(d), (e), and (f) of the
Securities Exchange Act of 1934, 15 U.S.C. 78s(d), (e), and (f), or by
the Public Company Accounting Oversight Board pursuant to Title I of the
Sarbanes-Oxley Act of 2002, 15 U.S.C. 7211-7219, to grant or deny
requests for oral argument in accordance with the provisions of Rule 451
of the Commission's Rules of Practice, Sec. 201.451 of this chapter.
(8) In connection with Commission review of actions taken by the
Public Company Accounting Oversight Board pursuant to Title I of the
Sarbanes-Oxley Act of 2002, 15 U.S.C. 7211-7219, to determine whether to
lift the automatic stay of a disciplinary sanction.
(i) Notwithstanding anything in paragraph (g) of this section, the
functions described in paragraph (g) of this section are not delegated
to the General Counsel with respect to proceedings in which the Chairman
or the General Counsel determines that separation of functions
requirements or other circumstances would make inappropriate the General
Counsel's exercise of such delegated functions. With respect to such
proceedings, such functions are delegated to the Executive Assistant to
the Chairman pursuant to Sec. 200.30-16 of this chapter.
(j)(1) With respect to a proceeding conducted pursuant to the
Securities Act of 1933, 15 U.S.C. 77a et seq., the Securities Exchange
Act of 1934, 15 U.S.C. 78a et seq.; the Investment Company Act of 1940,
15 U.S.C. 80a-1 et seq.; the Investment Advisers Act of 1940, 15 U.S.C.
80b-1 et seq.; and the provisions of Rule 102(e) of the Commission's
Rules of Practice, 17 CFR 201.102(e), that has been set for hearing
before the Commission pursuant to Rule 110 of the Commission's Rules of
Practice, 17 CFR 201.110:
(i) To determine procedural requests or similar prehearing matters;
and
(ii) To rule upon non-dispositive, prehearing motions.
(2) Provided, however, that the General Counsel may not issue
subpoenas, authorize depositions, rule upon the
[[Page 48]]
admissibility of evidence or upon motions to quash or to compel, preside
over a hearing or the taking of testimony, sanction a party, act upon a
dispositive motion, declare a default, dispose of a claim or defense, or
otherwise resolve or terminate the proceeding on the merits.
(k) Notwithstanding anything in paragraph (i) of this section, the
functions described in paragraph (i) of this section are not delegated
to the General Counsel with respect to proceedings in which the Chairman
or the General Counsel determines that separation of functions
requirements or other circumstances would make inappropriate the General
Counsel's exercise of such delegated functions. With respect to such
proceedings, such functions are delegated to the Secretary of the
Commission pursuant to Sec. 200.30-7.
(l) Notwithstanding anything in paragraphs (g) or (i) of this
section, in any case described in paragraphs (g) or (i) of this section
in which the General Counsel believes it appropriate, he or she may
submit the matter to the Commission.
(m) With respect to the Securities Exchange Act of 1934 (15 U.S.C.
78a et seq.):
(1) To administer the provisions of Sec. 240.24c-1 of this chapter;
provided that access to nonpublic information as defined in such section
shall be provided only with the concurrence of the head of the
Commission division or office responsible for such information or the
files containing such information.
(2) To administer the provisions of section 24(d) of the Act (15
U.S.C. 78x(d)).
(n) To refer matters and information concerning possible
professional misconduct to state bar associations and other state
professional boards or societies.
(o) File applications in district court under Section 21(e)(1) of
the Securities Exchange Act of 1934 (15 U.S.C. 78u(e)(1)) to obtain
orders commanding persons to comply with Commission orders.
(p)(1) To designate officers empowered to administer oaths and
affirmations, subpoena witnesses, compel their attendance, take
evidence, and require the production of any books, papers,
correspondence, memoranda, contracts, agreements, or other records in
the course of investigations instituted by the Commission pursuant to
Section 21 of the Securities Exchange Act of 1934 (15 U.S.C. 78u)
including for possible violations by attorneys of Rule 102(e) of the
Commission Rules of Practice (17 CFR 201.102(e)).
(2) To terminate the authority of officers to administer oaths and
affirmations, subpoena witnesses, compel their attendance, take
evidence, and require the production of any books, papers,
correspondence, memoranda, contracts, agreements, or other records in
the course of investigations instituted by the Commission pursuant to
Section 21 of the Securities Exchange Act of 1934 (15 U.S.C. 78u)
including for possible violations by attorneys of Rule 102(e) of the
Commission Rules of Practice (17 CFR 201.102(e)).
[47 FR 20288, May 12, 1982]
Editorial Note: For Federal Register citations affecting Sec.
200.30-14, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 200.30-15 Delegation of authority to Chief Operating Officer.
Under Pub. L. 100-181, 101 Stat. 1254 (15 U.S.C. 78d-1, 78d-2), the
Securities and Exchange Commission hereby delegates, until the
Commission orders otherwise, the following functions to the Chief
Operating Officer to be performed by him or her or under his or her
direction by persons designated by the Chairman of the Commission: To
identify and implement additional changes within the Commission that
will promote the principles and standards of the National Performance
Review and the strategic and quality management approaches described by
the Federal Quality Institute's ``Presidential Award for Quality'' or
its successor awards.
[60 FR 14630, Mar. 20, 1995]
Sec. 200.30-16 Delegation of authority to Executive Assistant
to the Chairman.
Pursuant to the provisions of Pub. L. 101-181, 101 Stat. 1254, 101
Stat. 1255, 15 U.S.C. 78d-1, and 15 U.S.C. 78d-2, the Securities and
Exchange Commission
[[Page 49]]
hereby delegates, until the Commission orders otherwise, the following
functions to the Executive Assistant to the Chairman (or to such other
person or persons designated pursuant to paragraph (c) of this section),
to be performed by such Executive Assistant or under the Executive
Assistant's direction by such person or persons as may be designated
from time to time by the Chairman of the Commission (or by such other
person or persons designated pursuant to paragraph (c) of this section):
(a) The functions otherwise delegated to the General Counsel under
Sec. 200.30-14(g) of this chapter, with respect to any proceeding in
which the Chairman or the General Counsel has determined, pursuant to
Sec. 200.30-14(h) of this chapter, that separation of functions
requirements or other circumstances would make inappropriate the General
Counsel's exercise of such delegated functions.
(b) Notwithstanding anything in paragraph (a) of this section, in
any proceeding described in paragraph (a) of this section in which the
Executive Assistant believes it appropriate, the Executive Assistant may
submit the matter to the Commission.
(c) Notwithstanding anything in this section, the functions
otherwise delegated to the Executive Assistant respecting any proceeding
in which the Chairman or the Executive Assistant determines that the
Executive Assistant's exercise of such delegated functions would be
inappropriate, are hereby delegated to such person or persons, not under
the Executive Assistant's supervision, as may be designated by the
Chairman.
[54 FR 18102, Apr. 27, 1989, as amended at 59 FR 39681, Aug. 4, 1994]
Sec. 200.30-17 Delegation of authority to Director of Office
of International Affairs.
Pursuant to the provisions of Pub. L. 100-181, 101 Stat. 1254, 1255
(15 U.S.C. 78d-1, 78d-2), the Securities and Exchange Commission hereby
delegates, until the Commission orders otherwise, the following
functions to the Director of the Office of International Affairs to be
performed by the Director or under the Director's direction by such
other person or persons as may be designated from time to time by the
Chairman of the Commission:
(a) To administer the provisions of Sec. 240.24c-1 of this chapter;
provided that access to nonpublic information as defined in such section
shall be provided only with the concurrence of the head of the
Commission division or office responsible for such information or the
files containing such information.
(b) To administer the provisions of section 24(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78x(d)).
[58 FR 52419, Oct. 8, 1993]
Sec. 200.30-18 Delegation of authority to Director of the Office
of Compliance Inspections and Examinations.
Pursuant to the provisions of Pub. L. 100-181, 101 Stat. 1254, 1255
(15 U.S.C. 78d-1, 78d-2), the Securities and Exchange Commission hereby
delegates, until the Commission orders otherwise, the following
authority to the Director of the Office of Compliance Inspections and
Examinations (``OCIE'') to be performed by the Director or by such other
person or persons as may be designated from time to time by the Chairman
of the Commission:
(a) To administer the provisions of Sec. 240.24c-1 of this chapter;
provided that access to nonpublic information as defined in such Section
shall be provided only with the concurrence of the head of the
Commission division or office responsible for such information or the
files containing such information.
(b) Pursuant to the Securities Exchange Act of 1934 (``the Exchange
Act'') (15 U.S.C. 78a et seq.):
(1) To grant and deny applications for confidential treatment filed
pursuant to Section 24(b) of the Exchange Act (15 U.S.C. 78x(b)) and
Rule 24b-2 thereunder (Sec. 240.24b-2 of this chapter); and
(2) To revoke a grant of confidential treatment for any such
application.
(c)(1) Pursuant to Section 17(b) of the Exchange Act (15 U.S.C.
78q(b)), prior to any examination of a registered clearing agency,
registered transfer agent, or registered municipal securities dealer
whose appropriate regulatory agency is not the Commission, to notify and
consult with the appropriate regulatory agency for such
[[Page 50]]
clearing agency, transfer agent, or municipal securities dealer.
(2) Pursuant to section 17(b)(1)(B) of the Exchange Act (15 U.S.C.
78q(b)(1)(B)), prior to any examination of a broker or dealer registered
pursuant to section 6(g) of the Exchange Act (15 U.S.C. 78f(g)) or a
national securities association registered pursuant to section 15A(k) of
the Exchange Act (15 U.S.C. 78o-3(k)), to notify and consult with the
Commodity Futures Trading Commission regarding the feasibility and
desirability of coordinating such examination with examinations
conducted by the Commodity Futures Trading Commission in order to avoid
unnecessary regulatory duplication or undue regulatory burdens.
(d) Pursuant to Section 17(c)(3) of the Exchange Act (15 U.S.C.
78q(c)(3)), in regard to clearing agencies, transfer agents and
municipal securities dealers for which the Commission is not the
appropriate regulatory agency:
(1) To notify the appropriate regulatory agency of any examination
conducted by the Commission of any such clearing agency, transfer agent,
or municipal securities dealer;
(2) To request from the appropriate regulatory agency a copy of the
report of any examination of any such clearing agency, transfer agent,
or municipal securities dealer conducted by such appropriate regulatory
agency and any data supplied to it in connection with such examination;
and
(3) To furnish to the appropriate regulatory agency on request a
copy of the report of any examination of any such clearing agency,
transfer agent, or municipal securities dealer conducted by the
Commission and any data supplied to it in connection with such
examination.
(e) To administer the provisions of Section 24(d) of the Exchange
Act (15 U.S.C. 78x(d)).
(f) To notify the Securities Investor Protection Corporation
(``SIPC'') of facts concerning the activities and the operational and
financial condition of any registered broker or dealer which is or
appears to be a member of SIPC and which is in or approaching financial
difficulty within the meaning of Section 5 of the Securities Investor
Protection Act of 1970, as amended, 15 U.S.C. 78aa et seq.
(g) Pursuant to Section 15(b)(2)(C) of the Exchange Act (15 U.S.C.
78o(b)(2)(C)):
(1) To delay until the second six month period from registration
with the Commission the inspection of newly registered broker-dealers
that have not commenced actual operations within six months of their
registration with the Commission; and
(2) To delay until the second six month period from registration
with the Commission the inspection of newly registered broker-dealers to
determine whether they are in compliance with applicable provisions of
the Exchange Act and rules thereunder, other than financial
responsibility rules.
(h) Pursuant to Section 36 of the Exchange Act (15 U.S.C. 78mm) to
review and, either unconditionally or on specified terms and conditions,
grant, or deny exemptions from rule 17a-25 of the Act (Sec. 240.17a-25
of this chapter), provided that the Division of Trading and Markets is
notified of any such granting or denial of an exemption.
(i) With respect to the Investment Advisers Act of 1940 (``Advisers
Act'') (15 U.S.C. 80b-1 et seq.):
(1) Pursuant to Section 203(h) of the Advisers Act (15 U.S.C.80b-
3(h)), to authorize the issuance of orders cancelling registration of
investment advisers, or applications for registration, if such
investment advisers or applicants for registration are no longer in
existence or are not engaged in business as investment advisers; and
(2) Pursuant to Rule 204-2(j)(3)(ii) (Sec. 275.204-2(j)(3)(ii) of
this chapter), to make written demands upon non-resident investment
advisers subject to the provisions of such rule to furnish to the
Commission true, correct, complete, and current copies of any or all
books and records which such non-resident investment advisers are
required to make, keep current, or preserve pursuant to any provision of
any rule or regulation of the Commission adopted under the Advisers Act,
or any part of such books and records which may be specified in any such
demand.
[[Page 51]]
(j) With respect to the Securities Exchange Act of 1934 (15 U.S.C.
78a et seq.):
(1) Under section 15(b) of the Act (15 U.S.C. 78o(b)):
(i) To authorize the issuance of orders granting registration of
brokers or dealers within 45 days of the acceptance of an application
for registration as a broker or dealer (or within such longer period as
to which the applicant consents);
(ii) To grant registration of brokers or dealers sooner than 45 days
after acceptance of an application for registration;
(iii) To authorize the issuance of orders canceling registrations of
brokers or dealers, or pending applications for registration, if such
brokers or dealers or applicants for registration are no longer in
existence or are not engaged in business as brokers or dealers; and
(iv) To determine whether notices of withdrawal from registration on
Form BDW shall become effective sooner than the normal 60-day waiting
period.
(2) Under section 15B(a) of the Act (15 U.S.C. 78o-4(a)):
(i) To authorize the issuance of orders granting registration of
municipal securities dealers within 45 days of the filing of acceptable
applications for registration as a municipal securities dealer (or
within such longer period as to which the applicant consents); and
(ii) To grant registration of municipal securities dealers sooner
than 45 days after receipt by the Commission of acceptable applications
for registration.
(3) Under section 15B(c) of the Act (15 U.S.C. 78o-4(c)):
(i) To authorize the issuance of orders canceling registrations of
municipal securities dealers, or pending applications for registration,
if such municipal securities dealers or applicants for registration are
no longer in existence or are not engaged in business as municipal
securities dealers; and
(ii) To determine whether notices of withdrawal from registration on
Form MSDW shall become effective sooner than the normal 60-day waiting
period.
(4) Under section 15C(a) of the Act (15 U.S.C. 78o-5(a)):
(i) To authorize the issuance of orders granting registration of
government securities brokers or government securities dealers for which
the Commission is the appropriate regulatory agency within 45 days of
the acceptance of an application for registration as a government
securities broker or government securities dealer (or within such longer
period as to which the applicant consents); and
(ii) To grant registration of government securities brokers or
government securities dealers for which the Commission is the
appropriate regulatory agency sooner than 45 days after acceptance of an
application for registration.
(5) Under section 15C(c) of the Act (15 U.S.C. 78o-5(c)):
(i) To authorize the issuance of orders canceling registrations of
government securities brokers or government securities dealers
registered with the Commission, or pending applications for
registration, if such government securities brokers or government
securities dealers or applicants for registration are no longer in
existence or are not engaged in business as government securities
brokers or government securities dealers; and
(ii) To determine whether notices of withdrawal from registration on
Form BDW shall become effective sooner than the normal 60-day waiting
period.
(6) Under section 17A(c) of the Act (15 U.S.C. 78q-1(c)):
(i) To authorize the issuance of orders granting registration of
transfer agents within 45 days of the filing of acceptable applications
for registration as a transfer agent (or within such longer period as to
which the applicant consents);
(ii) To grant registration of transfer agents sooner than 45 days
after receipt by the Commission of acceptable applications for
registration;
(iii) To authorize the issuance of orders canceling registrations of
transfer agents, or pending applications for registration, if such
transfer agents or applicants for registration are no longer in
existence or are not engaged in business as transfer agents; and
(iv) To determine whether notices of withdrawal from registration on
Form TA-W shall become effective sooner than the normal 60-day waiting
period.
[[Page 52]]
(7) Under section 15B(a) of the Act (15 U.S.C. 78o-4(a)):
(i) To authorize the issuance of orders granting registration of
municipal advisors within 45 days of the filing of an application for
registration as a municipal advisor (or within such longer period as to
which the applicant consents); and
(ii) To grant registration of municipal advisors sooner than 45 days
after the filing of an application for registration.
(8) Under section 15B(c) of the Act (15 U.S.C. 78o-4(c));
(i) To authorize the issuance of orders canceling the registration
of a municipal advisor, if such municipal advisor is no longer in
existence or has ceased to do business as a municipal advisor; and
(ii) To determine whether notices of withdrawal from registration on
Form MA-W shall become effective sooner than the 60-day waiting period.
(k) With respect to the Investment Advisers Act of 1940 (15 U.S.C.
80b-1 et seq.):
(1) Under section 203(c) of the Act (15 U.S.C. 80b-3(c)):
(i) To authorize the issuance of orders granting registration of
investment advisers within 45 days of the filing of acceptable
applications for registration as an investment adviser (or within such
longer period as to which the applicant consents); and
(ii) To grant registration of investment advisers sooner than 45
days after receipt by the Commission of acceptable applications for
registration.
(2) Under section 203(h) of the Act (15 U.S.C. 80b-3(h)), to
authorize the issuance of orders canceling registrations of investment
advisers, or pending applications for registration, if such investment
advisers or applicants for registration are no longer in existence or
are not engaged in business as investment advisers.
(l) With respect to the Securities Investor Protection Act of 1970
(15 U.S.C. 78aaa et seq.):
(1) To cause a written notice to be sent by registered or certified
mail, upon receipt of a copy of a notice sent by or on behalf of the
Securities Investor Protection Corporation that a broker or dealer has
failed to timely file any report or information or to pay when due all
or any part of an assessment as required under section 10(a) of this
Act, to such delinquent member advising such member that it is unlawful
for him or her under the provisions of such section of the Act to engage
in business as a broker-dealer while in violation of such requirements
of the Act and requesting an explanation in writing within ten days
stating what he or she intends to do in order to cure such delinquency;
(2) To authorize formerly delinquent brokers or dealers, upon
receipt of written confirmation from or on behalf of the Securities
Investor Protection Corporation that the delinquencies referred to in
paragraph (c)(1) of this section have been cured, and upon having been
advised by the appropriate regional office of this Commission and the
Division of Enforcement and Division of Trading and Markets that there
is no objection to such member being authorized to resume business, and
upon there appearing to be no unusual or novel circumstances which would
warrant direct consideration of the matter by this Commission, to resume
business as registered broker-dealers as provided in section 10(a) of
this Act.
(m) Notwithstanding anything in the foregoing, in any case in which
the Director of the OCIE believes it appropriate, the Director may
submit the matter to the Commission.
[60 FR 39644, Aug. 3, 1995, as amended at 66 FR 35842, July 9, 2001; 69
FR 41938, July 13, 2004; 73 FR 40152, July 11, 2008; 73 FR 69532, Nov.
19, 2008; 78 FR 67632, Nov. 12, 2013]
Subpart B_Disposition of Commission Business
Authority: 5 U.S.C. 552b; 15 U.S.C. 78d-1 and 78w.
Source: 42 FR 14692, Mar. 16, 1977, unless otherwise noted.
Sec. 200.40 Joint disposition of business by Commission meeting.
Any meeting of the Commission that is subject to the provisions of
the Government in the Sunshine Act, 5 U.S.C. 552b, shall be held in
accordance with subpart I of this part. The Commission's Secretary shall
prepare and
[[Page 53]]
maintain a Minute Record reflecting the official action taken at such
meetings.
[60 FR 17202, Apr. 5, 1995]
Sec. 200.41 Quorum of the Commission.
A quorum of the Commission shall consist of three members; provided,
however, that if the number of Commissioners in office is less than
three, a quorum shall consist of the number of members in office; and
provided further that on any matter of business as to which the number
of members in office, minus the number of members who either have
disqualified themselves from consideration of such matter pursuant to
Sec. 200.60 or are otherwise disqualified from such consideration, is
two, two members shall constitute a quorum for purposes of such matter.
[60 FR 17202, Apr. 5, 1995]
Sec. 200.42 Disposition of business by seriatim Commission consideration.
(a) Whenever the Commission's Chairman, or the Commission member
designated as duty officer pursuant to Sec. 200.43, is of the opinion
that joint deliberation among the members of the Commission upon any
matter is unnecessary in light of the nature of the matter,
impracticable, or contrary to the requirements of agency business, but
is of the view that such matter should be the subject of a vote of the
Commission, such matter may be disposed of by circulation of any
relevant materials concerning the matter among all Commission members.
Each participating Commission member shall report his or her vote to the
Secretary, who shall record it in the Minute Record of the Commission.
Any matter circulated for disposition pursuant to this subsection shall
not be considered final until each Commission member has reported his or
her vote to the Secretary or has reported to the Secretary that the
Commissioner does not intend to participate in the matter.
(b) Whenever any member of the Commission so requests, any matter
circulated for disposition pursuant to Sec. 200.42(a) shall be
withdrawn from circulation and scheduled instead for joint Commission
deliberation.
[42 FR 14692, Mar. 16, 1977, as amended at 59 FR 53936, Oct. 27, 1994.
Redesignated and amended at 60 FR 17202, Apr. 5, 1995]
Sec. 200.43 Disposition of business by exercise of authority delegated
to individual Commissioner.
(a) Delegation to duty officer. (1) Pursuant to the provisions of
Pub. L. No. 87-592, 76 Stat. 394, as amended by section 25 of Pub. L.
94-29, 89 Stat. 163, the Commission hereby delegates to an individual
Commissioner, to be designated as the Commission's ``duty officer'' by
the Chairman of the Commission (or by the Chairman's designee) from time
to time, all of the functions of the Commission; Provided, however, That
no such delegation shall authorize the duty officer (i) to exercise the
function of rulemaking, as defined in the Administrative Procedure Act
of 1946, as codified, 5 U.S.C. 551 et seq., with reference to general
rules as distinguished from rules of particular applicability; (ii) to
make any rule, pursuant to section 19(c) of the Securities Exchange Act
of 1934; or (iii) to preside at the taking of evidence as described in
section 7(a) of the Administrative Procedure Act, 5 U.S.C. 556(b),
except that the duty officer may preside at the taking of evidence with
respect to the issuance of a temporary cease-and-desist order as
provided by Rule 511(c) of the Commission's Rules of Practice, Sec.
201.511(c) of this chapter.
(2) To the extent feasible, the designation of a duty officer shall
rotate, under the administration of the Secretary, on a regular weekly
basis among the members of the Commission other than the Chairman.
(b) Exercise of duty officer authority. (1) The authority delegated
by this rule shall be exercised when, in the opinion of the duty
officer, action is required to be taken which, by reason of its urgency,
cannot practicably be scheduled for consideration at a Commission
meeting. After consideration of a staff recommendation involving such a
matter, the duty officer shall forthwith report his or her action
thereon to the Secretary.
(2) The duty officer may, when in his or her opinion it would be
proper and
[[Page 54]]
timely, exercise the authority delegated in this section to initiate by
order a nonpublic formal investigative proceeding pursuant to section
19(b) of the Securities Act of 1933 (15 U.S.C. 77s(b)), section 21(b) of
the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)), section 42(b) of
the Investment Company Act of 1940 (15 U.S.C. 80a-41(b)), section 209(b)
of the Investment Advisers Act of 1940 (15 U.S.C. 80b-9(b)), and part
203 (Rules Relating to Investigations) of this title (17 CFR part 203).
After consideration of a staff recommendation for initiation by order of
a nonpublic formal investigative proceeding, the duty officer shall
forthwith report his or her action thereon to the Secretary.
(3) In any consideration of Commission business by a duty officer,
the provisions of subpart I herein, Sec. 200.400 et seq., shall not
apply, whether or not the duty officer, in exercising his or her
authority, consults with, or seeks the advice of, other members of the
Commission individually.
(c) Commission affirmation of duty officer action. (1) Any action
authorized by a duty officer pursuant to Sec. 200.43(a) shall be either
(i) circulated to the members of the Commission for affirmation pursuant
to Sec. 200.42; or (ii) scheduled for affirmation at a Commission
meeting at the earliest practicable date consistent with the procedures
in subpart I.
(2)(i) The Commission may, in its discretion, at any time review any
unaffirmed action taken by a duty officer, either upon its own
initiative or upon the petition of any person affected thereby. The vote
of any one member of the Commission, including the duty officer, shall
be sufficient to bring any such unaffirmed action taken by a duty
officer before the Commission for review.
(ii) A person or party adversely affected by any unaffirmed action
taken by a duty officer shall be entitled to seek review by the
Commission of the duty officer's unaffirmed actions, but only in the
event that the unaffirmed action by the duty officer (A) denies any
request for action pursuant to sections 8(a) or 8(c) of the Securities
Act of 1933, or the first sentence of section 12(d) of the Securities
Exchange Act of 1934; (B) suspends trading in a security pursuant to
section 12(k) of the Securities Exchange Act of 1934; or (C) is pursuant
to any provision of the Securities Exchange Act of 1934 in a case of
adjudication, as defined in section 551 of Title 5, U.S. Code, not
required by that Act to be determined on the record after notice and
opportunity for hearing (except to the extent there is involved a matter
described in section 554(a) (1) through (6) of Title 5, United States
Code).
(3) Affirmed or unaffirmed action taken by the duty officer shall be
deemed to be, for all purposes, the action of the Commission unless and
until the Commission directs otherwise. Rules 430 and 431 of the
Commission's Rules of Practice, Sec. Sec. 201.430 and 201.431 of this
chapter, shall not apply to duty officer action.
[42 FR 14692, Mar. 16, 1977, as amended at 59 FR 53936, Oct. 27, 1994.
Redesignated and amended at 60 FR 17202, Apr. 5, 1995; 60 FR 32795, June
23, 1995; 69 FR 13175, Mar. 19, 2004; 76 FR 71874, Nov. 21, 2011]
Subpart C_Canons of Ethics
Authority: Secs. 19, 28, 48 Stat. 85, 901, as amended, sec. 319, 53
Stat. 1173; secs. 38, 211, 54 Stat. 841, 855; 15 U.S.C. 77s, 77sss, 78w,
80a-37, and 80b-11.
Source: 25 FR 6725, July 15, 1960, unless otherwise noted.
Sec. 200.50 Authority.
The Canons of Ethics for Members of the Securities and Exchange
Commission were approved by the Commission on July 22, 1958.
Sec. 200.51 Policy.
It is characteristic of the administrative process that the Members
of the Commission and their place in public opinion are affected by the
advice and conduct of the staff, particularly the professional and
executive employees. It shall be the policy of the Commission to require
that employees bear in mind the principles specified in the Canons.
[[Page 55]]
Sec. 200.52 Copies of the Canons.
The Canons have been distributed to employees of the Commission. In
addition, executive and professional employees are issued copies of the
Canons upon entrance on duty.
Sec. 200.53 Preamble.
(a) Members of the Securities and Exchange Commission are entrusted
by various enactments of the Congress with powers and duties of great
social and economic significance to the American people. It is their
task to regulate varied aspects of the American economy, within the
limits prescribed by Congress, to insure that our private enterprise
system serves the welfare of all citizens. Their success in this
endeavor is a bulwark against possible abuses and injustice which, if
left unchecked, might jeopardize the strength of our economic
institutions.
(b) It is imperative that the members of this Commission continue to
conduct themselves in their official and personal relationships in a
manner which commands the respect and confidence of their fellow
citizens. Members of this Commission shall continue to be mindful of,
and strictly abide by, the standards of personal conduct set forth in
its regulation regarding Conduct of Members and Employees and Former
Members and Employees of the Commission, which is set forth in subpart M
of this part 200, most of which has been in effect for many years, and
which was originally codified in 1953.
(c) However, in addition to the continued observance of those
principles of personal conduct, it is fitting and proper for the members
of the Commission to restate and resubscribe to the standards of conduct
applicable to its executive, legislative and judicial responsibilities.
[25 FR 6725, July 15, 1960, as amended at 31 FR 13533, Oct. 20, 1966]
Sec. 200.54 Constitutional obligations.
The members of this Commission have undertaken in their oaths of
office to support the Federal Constitution. Insofar as the enactments of
the Congress impose executive duties upon the members, they must
faithfully execute the laws which they are charged with administering.
Members shall also carefully guard against any infringement of the
constitutional rights, privileges, or immunities of those who are
subject to regulation by this Commission.
Sec. 200.55 Statutory obligations.
In administering the law, members of this Commission should
vigorously enforce compliance with the law by all persons affected
thereby. In the exercise of the rulemaking powers delegated this
Commission by the Congress, members should always be concerned that the
rulemaking power be confined to the proper limits of the law and be
consistent with the statutory purposes expressed by the Congress. In the
exercise of their judicial functions, members shall honestly, fairly and
impartially determine the rights of all persons under the law.
Sec. 200.56 Personal conduct.
Appointment to the office of member of this Commission is a high
honor and requires that the conduct of a member, not only in the
performance of the duties of his office but also in his everyday life,
should be beyond reproach.
Sec. 200.57 Relationships with other members.
Each member should recognize that his conscience and those of other
members are distinct entities and that differing shades of opinion
should be anticipated. The free expression of opinion is a safeguard
against the domination of this Commission by less than a majority, and
is a keystone of the commission type of administration. However, a
member should never permit his personal opinion so to conflict with the
opinion of another member as to develop animosity or unfriendliness in
the Commission, and every effort should be made to promote solidarity of
conclusion.
Sec. 200.58 Maintenance of independence.
This Commission has been established to administer laws enacted by
the Congress. Its members are appointed by the President by and with the
advice and consent of the Senate to
[[Page 56]]
serve terms as provided by law. However, under the law, this is an
independent Agency, and in performing their duties, members should
exhibit a spirit of firm independence and reject any effort by
representatives of the executive or legislative branches of the
government to affect their independent determination of any matter being
considered by this Commission. A member should not be swayed by partisan
demands, public clamor or considerations of personal popularity or
notoriety; so also he should be above fear of unjust criticism by
anyone.
Sec. 200.59 Relationship with persons subject to regulation.
In all matters before him, a member should administer the law
without regard to any personality involved, and with regard only to the
issues. Members should not become indebted in any way to persons who are
or may become subject to their jurisdiction. No member should accept
loans, presents or favors of undue value from persons who are regulated
or who represent those who are regulated. In performing their judicial
functions, members should avoid discussion of a matter with any person
outside this Commission and its staff while that matter is pending. In
the performance of his rule-making and administrative functions, a
member has a duty to solicit the views of interested persons. Care must
be taken by a member in his relationship with persons within or outside
of the Commission to separate the judicial and the rule-making functions
and to observe the liberties of discussion respectively appropriate.
Insofar as it is consistent with the dignity of his official position,
he should maintain contact with the persons outside the agency who may
be affected by his rule-making functions, but he should not accept
unreasonable or lavish hospitality in so doing.
Sec. 200.60 Qualification to participate in particular matters.
The question in a particular matter rests with that individual
member. Each member should weigh carefully the question of his
qualification with respect to any matter wherein he or any relatives or
former business associates or clients are involved. He should disqualify
himself in the event he obtained knowledge prior to becoming a member of
the facts at issue before him in a quasi-judicial proceeding, or in
other types of proceeding in any matter involving parties in whom he has
any interest or relationship directly or indirectly. If an interested
person suggests that a member should disqualify himself in a particular
matter because of bias or prejudice, the member shall be the judge of
his own qualification.
Sec. 200.61 Impressions of influence.
A member should not, by his conduct, permit the impression to
prevail that any person can improperly influence him, that any person
unduly enjoys his favor or that he is affected in any way by the rank,
position, prestige, or affluence of any person.
Sec. 200.62 Ex parte communications.
All proceedings required to be determined by the Commission on the
record shall be determined by the members solely upon the record and the
arguments of the parties or their counsel properly made in the regular
course of such proceeding. A member shall at all times comply with the
Commission's Code of Behavior governing ex parte communications between
persons outside the Commission and decisional employees, Sec. 200.110
et seq.
[28 FR 4446, May 3, 1963]
Sec. 200.63 Commission opinions.
The opinions of the Commission should state the reasons for the
action taken and contain a clear showing that no serious argument of
counsel has been disregarded or overlooked. In such manner, a member
shows a full understanding of the matter before him, avoids the
suspicion of arbitrary conclusion, promotes confidence in his
intellectual integrity and may contribute some useful precedent to the
growth of the law. A member should be guided in his decisions by a deep
regard for the integrity of the system of law which he administers. He
should recall that he is not a repository of arbitrary power, but is
acting on behalf of the public under the sanction of the law.
[[Page 57]]
Sec. 200.64 Judicial review.
The Congress has provided for review by the courts of the decisions
and orders by this Commission. Members should recognize that their
obligation to preserve the sanctity of the laws administered by them
requires that they pursue and prosecute, vigorously and diligently but
at the same time fairly and impartially and with dignity, all matters
which they or others take to the courts for judicial review.
Sec. 200.65 Legislative proposals.
Members must recognize that the changing conditions in a volatile
economy may require that they bring to the attention of the Congress
proposals to amend, modify or repeal the laws administered by them. They
should urge the Congress, whenever necessary, to effect such amendment,
modification or repeal of particular parts of the statutes which they
administer. In any action a member's motivation should be the common
weal and not the particular interests of any particular group.
Sec. 200.66 Investigations.
The power to investigate carries with it the power to defame and
destroy. In determining to exercise their investigatory power, members
should concern themselves only with the facts known to them and the
reasonable inferences from those facts. A member should never suggest,
vote for, or participate in an investigation aimed at a particular
individual for reasons of animus, prejudice or vindictiveness. The
requirements of the particular case alone should induce the exercise of
the investigatory power, and no public pronouncement of the pendency of
such an investigation should be made in the absence of reasonable
evidence that the law has been violated and that the public welfare
demand it.
Sec. 200.67 Power to adopt rules.
In exercising its rule-making power, this Commission performs a
legislative function. The delegation of this power by the Congress
imposes the obligation upon the members to adopt rules necessary to
effectuate the stated policies of the statute in the interest of all of
the people. Care should be taken to avoid the adoption of rules which
seek to extend the power of the Commission beyond proper statutory
limits. Its rules should never tend to stifle or discourage legitimate
business enterprises or activities, nor should they be interpreted so as
unduly and unnecessarily to burden those regulated with onerous
obligations. On the other hand, the very statutory enactments evidence
the need for regulation, and the necessary rules should be adopted or
modifications made or rules should be repealed as changing requirements
demand without fear or favor.
Sec. 200.68 Promptness.
Each member should promptly perform the duties with which he is
charged by the statutes. The Commission should evaluate continuously its
practices and procedures to assure that it promptly disposes of all
matters affecting the rights of those regulated. This is particularly
desirable in quasi-judicial proceedings. While avoiding arbitrary action
in unreasonably or unjustly forcing matters to trial, members should
endeavor to hold counsel to a proper appreciation of their duties to the
public, their clients and others who are interested. Requests for
continuances of matters should be determined in a manner consistent with
this policy.
Sec. 200.69 Conduct toward parties and their counsel.
Members should be temperate, attentive, patient and impartial when
hearing the arguments of parties or their counsel. Members should not
condone unprofessional conduct by attorneys in their representation of
parties. The Commission should continuously assure that its staff
follows the same principles in their relationships with parties and
counsel.
Sec. 200.70 Business promotions.
A member must not engage in any other business, employment or
vocation while in office, nor may he ever use the power of his office or
the influence of his name to promote the business interests of others.
[[Page 58]]
Sec. 200.71 Fiduciary relationships.
A member should avoid service as a fiduciary if it would interfere
or seem to interfere with the proper performance of his duties, or if
the interests of those represented require investments in enterprises
which are involved in questions to be determined by him. Such
relationships would include trustees, executors, corporate directors,
and the like.
Sec. 200.72 Supervision of internal organization.
Members and particularly the Chairman of the Commission should
scrutinize continuously its internal organization in order to assure
that such organization handles all matters before it efficiently and
expeditiously, while recognizing that changing times bring changing
emphasis in the administration of the laws.
Subpart D_Information and Requests
Authority: 5 U.S.C. 552, as amended, 15 U.S.C. 77f(d), 77s,
77ggg(a), 77sss, 78m(F)(3), 78w, 80a-37, 80a-44(a), 80a-44(b), 80b-
10(a), and 80b-11, unless otherwise noted.
Section 200.80 also issued under Public Law 114-185 sec. 3(a), 130
Stat. 538; 5 U.S.C. 552; 15 U.S.C. 77f(d), 77s, 77ggg(a), 78d-1, 78w(a),
80a-37(a), 80a-44(b), 80b-10(a), and 80b-11(a), unless otherwise noted.
Section 200.82 also issued under 15 U.S.C. 78n.
Section 200.83 also issued under E.O. 12600, 3 CFR, 1987 Comp., p.
235.
Sec. 200.80 Securities and Exchange Commission records and information.
(a) General provisions. (1) This section contains the rules that the
U.S. Securities and Exchange Commission follows in processing requests
for records under the Freedom of Information Act (``FOIA''), 5 U.S.C.
552, as amended. These rules should be read in conjunction with the text
of the FOIA and the Uniform Freedom of Information Fee Schedule and
Guidelines published by the Office of Management and Budget (``OMB
Guidelines''). Requests made by individuals for records about themselves
under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in
accordance with the Commission's Privacy Act regulations at subpart H,
as well as this section.
(2)(i) Records that the FOIA requires to be made available for
public inspection in an electronic format (pursuant to 5 U.S.C.
552(a)(2)) are accessible through the Commission's website, http://
www.sec.gov. Each division and office of the Commission is responsible
for determining which of its records are required to be made publicly
available in an electronic format, as well as identifying additional
records of interest to the public that are appropriate for public
disclosure, and for posting and indexing such records. Each division and
office shall ensure that its posted records and indexes are reviewed and
updated on an ongoing basis.
(ii) Persons who do not have access to the internet may obtain these
records by contacting the Commission's Office of FOIA Services by
telephone at 202-551-7900, by email at [email protected], or by visiting
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549-2736, on official working days between the hours of 10:00 a.m. and
3:00 p.m.
(b) Requirements for making requests for records--(1) How made and
addressed. The Commission has a centralized system for responding to
FOIA requests, with all requests processed by the Office of FOIA
Services. Requests for agency records must be in writing and include the
requester's full name and a legible return address. Requesters may also
include other contact information, such as an email address and a
telephone number. Requests may be submitted by U.S. mail or delivery
service and addressed to the Freedom of Information Act Officer, SEC,
100 F Street NE, Washington, DC 20549. Requests may also be made by
facsimile (202-772-9337), email ([email protected]), or online at the
Commission's website (http://www.sec.gov). The request (and envelope, if
the request is mailed or hand-delivered) should be marked ``Freedom of
Information Act Request.''
(2) Requests for records about oneself or another individual. (i) A
requester who is making a request for records about himself or herself
must comply with the verification of identity provisions set forth in
subpart H of this part to
[[Page 59]]
obtain any documents that would not be available to the public under the
FOIA.
(ii) For requests for records about another individual, a requester
may receive greater access by submitting either a notarized
authorization signed by the individual permitting disclosure of his or
her records or proof that the individual is deceased (e.g., a copy of a
death certificate or an obituary). The Office of FOIA Services can
require a requester to supply additional information if necessary to
verify that a particular individual has consented to disclosure.
(3) Description of records sought. A FOIA request must reasonably
describe the agency records sought with sufficient specificity with
respect to names, dates, and subject matter to enable personnel within
the divisions and offices of the Commission to locate them with a
reasonable effort. Before submitting a request, a requester may contact
the Office of FOIA Services' FOIA Public Liaisons to discuss the records
they are seeking and to receive assistance in describing the records
(contact information for these individuals is on the Commission's
website, http://www.sec.gov). If the Office of FOIA Services determines
that a request does not reasonably describe the records sought, it shall
inform the requester what additional information is needed or how the
request is insufficient. A requester who is attempting to reformulate or
modify such a request may discuss the request with the Office of FOIA
Services' designated FOIA contact, its FOIA Public Liaisons, or a
representative of the Office of FOIA Services, each of whom is available
to assist the requester in reasonably describing the records sought.
When a requester fails to provide sufficient information within 30
calendar days after having been asked to reasonably describe the records
sought, the Office of FOIA Services shall notify the requester in
writing that the request has not been properly made, that no further
action will be taken, and that the FOIA request is closed. Such a notice
constitutes an adverse determination under paragraph (e)(2) of this
section for which the Office of FOIA Services shall follow the
procedures for a denial letter under paragraph (e)(2) of this section.
In cases where a requester has modified his or her request so that it
reasonably describes the requested records, the date of receipt for
purposes of the 20-day time limit of paragraph (d) of this section shall
be the date of receipt of the modified request.
(c) Processing requests--(1) In general. (i) A request for records
may be denied to the extent the exemptions in 5 U.S.C. 552(b) apply to
the requested records and:
(A) Commission staff reasonably foresees that disclosure would harm
an interest protected by the applicable exemption; or
(B) The disclosure of the requested records is prohibited by law or
is exempt from disclosure under 5 U.S.C. 552(b)(3).
(ii) In determining which records are responsive to a request, the
Office of FOIA Services ordinarily will include only records in the
agency's possession as of the date that it begins its search.
(2) Re-routing of misdirected requests. Any division or office
within the Commission that receives a written request for records should
promptly forward the request to the Office of FOIA Services for
processing.
(3) Consultation, referral, and coordination. When reviewing records
located in response to a request, the Office of FOIA Services will
determine whether another Federal agency is better able to determine if
the record is exempt from disclosure under the FOIA. As to any such
record, the Office of FOIA Services will proceed in one of the following
ways:
(i) Consultation. In instances where a record is requested that
originated within a division or office within the Commission and another
Federal agency has a significant interest in the record (or a portion
thereof), the Office of FOIA Services will consult with that Federal
agency before responding to a requester. When the Office of FOIA
Services receives a request for a record (or a portion thereof) in its
possession that originated with another entity within the Federal
Government that is not subject to the FOIA, the Office of FOIA Services
will typically consult with that entity prior to making a release
determination.
[[Page 60]]
(ii) Referral. When the Office of FOIA Services receives a request
for a record (or a portion thereof) in its possession that originated
with another Federal agency subject to the FOIA, the Office of FOIA
Services will typically refer the record to that agency for direct
response to the requester. Ordinarily, the agency that originated the
record will be presumed to be best able to make the disclosure
determination. However, if the Office of FOIA Services and the
originating agency jointly agree that the Office of FOIA Services is in
the best position to make a disclosure determination regarding the
record, then the record may be handled as a consultation and processed
by the Office of FOIA Services. Whenever the Office of FOIA Services
refers a record to another Federal agency for direct response to the
requester, the Office of FOIA Services shall notify the requester in
writing of the referral and inform the requester of the name of the
agency to which the record was referred.
(iii) Coordination. If disclosure of the identity of the agency to
which the referral would be made could harm an interest protected by an
exemption, the Office of FOIA Services generally will coordinate with
the originating agency to seek its views as to disclosure of the record
and then advise the requester of the release determination for the
record that is the subject of the coordination.
(iv) Classified information. On receipt of any request involving
classified information, the Commission staff in possession of the
information shall determine whether the information is currently and
properly classified and take appropriate action to ensure compliance
with subpart J of this part. Whenever a request involves a record
containing information that has been classified or may be appropriate
for classification by another Federal agency under an executive order
concerning the classification of records, the Office of FOIA Services
shall refer the responsibility for responding to the request regarding
that information to the agency that classified the information, or that
should consider the information for classification. Whenever agency
records contain information that has been classified by another Federal
agency, the Office of FOIA Services shall refer the responsibility for
responding to that portion of the request to the agency that classified
the underlying information except in circumstances that come within
paragraph (c)(3)(iii) of this section.
(d) Time limits and expeditedprocessing--(1) In general. The Office
of FOIA Services will seek to respond to requests according to their
order of receipt within each track of the Office of FOIA Services'
multitrack processing system as described in paragraph (d)(4) of this
section.
(2) Initial response. A determination whether to comply with a FOIA
request shall be made within 20 days (excepting Saturdays, Sundays, and
legal public holidays) from the date the Office of FOIA Services
receives a request for a record under this part, except when the
circumstances described in paragraph (d)(3), (5), or (7) of this section
are applicable. In instances where a FOIA requester has misdirected a
request that is re-routed pursuant to paragraph (c)(2) of this section,
the response time shall commence on the date that the request is first
received by the Office of FOIA Services, but in any event not later than
10 working days after the request is first received by any division or
office of the Commission.
(3) Clarification of request. The Office of FOIA Services may seek
clarification of a request (or a portion of a request) for records. The
request for clarification generally should be in writing. The first time
the Office of FOIA Services seeks clarification, the time for responding
to the entire request (set forth in paragraph (d)(2) of this section) is
tolled until the requester responds to the clarification request. The
tolled period will end when the Office of FOIA Services receives a
response from the requester that reasonably describes the requested
records. If the Office of FOIA Services asks for clarification and does
not receive a written response from the requester within 30 calendar
days from the date of the clarification request, the Office of FOIA
Services will presume that the requester is no longer interested in the
[[Page 61]]
record(s) sought and notify the requester that any portion of the
request as to which clarification was sought has been closed.
(4) Multitrack processing. The Office of FOIA Services shall use a
multitrack system for processing FOIA requests. The Office of FOIA
Services shall designate one track for requests that are granted
expedited processing, in accordance with the standards set forth in
paragraph (d)(7) of this section. The Office of FOIA Services shall use
two or more additional processing tracks that distinguish between simple
and more complex requests based on the estimated amount of work and/or
time needed to process the request. Among the factors the Office of FOIA
Services may consider are the time to perform a search, the number of
pages that must be reviewed in processing the request, and the need for
consultations or referrals. The Office of FOIA Services shall advise
requesters of the track into which their request falls and, when
appropriate, shall offer the requesters an opportunity to narrow the
scope of their request so that it can be placed in a different
processing track.
(5) Unusual circumstances. The Office of FOIA Services may extend
the time period for processing a FOIA request in ``unusual
circumstances.'' To extend the time, the Office of FOIA Services shall
notify the requester in writing of the unusual circumstances involved
and of the date by which processing of the request is expected to be
completed. If the extension exceeds 10 working days, the Office of FOIA
Services shall provide the requester, in writing, with an opportunity to
modify the request or arrange an alternative time frame for processing
the request or a modified request. The Office of FOIA Services shall
also make available its FOIA Public Liaisons to assist in the resolution
of any disputes and notify the requester of the right to seek dispute
resolution services from the Office of Government Information Services.
For purposes of this section, ``unusual circumstances'' include:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request.
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are the subject
of a single request.
(iii) The need to consult with another Federal agency having a
substantial interest in the determination of the FOIA request or among
two or more divisions or offices within the Commission having
substantial subject-matter interest therein.
(6) Aggregating requests. The Office of FOIA Services may aggregate
requests in cases where it reasonably believes that multiple requests,
submitted either by a requester or by a group of requesters acting in
concert, together constitute a single request that would involve unusual
circumstances, as defined in paragraph (d)(5) of this section. Multiple
requests involving unrelated matters shall not be aggregated. The Office
of FOIA Services shall advise requesters, in writing, when it determines
to aggregate multiple requests and comply with paragraph (d)(5) of this
section. Aggregation of requests for this purpose will be conducted
independent of aggregation requests for fee purposes under paragraph
(g)(8) of this section.
(7) Expedited processing. The Office of FOIA Services shall grant a
request for expedited processing if the requester demonstrates a
``compelling need'' for the records. ``Compelling need'' means that a
failure to obtain the requested records on an expedited basis could
reasonably be expected to pose an imminent threat to an individual's
life or physical safety or, if the requester is primarily engaged in
disseminating information, an urgency to inform the public about an
actual or alleged Federal Government activity.
(i) A request for expedited processing may be made at the time of
the initial request for records or at any later time.
(ii) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that person's
knowledge and belief, explaining why there is a ``compelling need'' for
the records.
(iii) The Office of FOIA Services shall determine whether to grant
or deny a request for expedited processing and
[[Page 62]]
provide notice of that determination within 10 calendar days of receipt
of the request by the Office of FOIA Services. A request for records
that has been granted expedited processing shall be processed as soon as
practicable. If a request for expedited processing is denied, any appeal
of that determination shall be decided expeditiously.
(8) Appeals. An administrative appeal shall be decided within 20
days (excepting Saturdays, Sundays, and legal public holidays) from the
date the Office of FOIA Services receives such appeal except in the
unusual circumstances specified in paragraph (d)(5) of this section. In
those unusual circumstances, the 20-day time limit may be extended by
written notice to the person making the appeal setting forth the unusual
circumstances for such extension and the date on which a determination
is expected to be dispatched. No such notice shall specify a date that
would result in an extension of more than 10 working days.
(e) Responses to requests forrecords--(1) Acknowledgment of
requests. Upon receipt of a request for records, the Office of FOIA
Services ordinarily will send the requester an acknowledgment letter
that provides an assigned request number for further reference and, if
necessary, confirms whether the requester is willing to pay fees.
(2) Responses to requests. (i) Any letter determining whether to
comply with a request will inform the requester of the right to seek
assistance from the Office of FOIA Services' FOIA Public Liaisons.
(ii) If the Office of FOIA Services makes a determination to grant a
request in whole or in part, it shall notify the requester in writing of
such determination, disclose records to the requester, and collect any
applicable fees.
(iii) If the Office of FOIA Services makes an adverse determination
regarding a request, it shall notify the requester of that determination
in writing. Adverse determinations, or denials of requests, include
decisions that: the requested record is exempt, in whole or in part; the
request does not reasonably describe the records sought; the requested
record does not exist (or is not subject to the FOIA), cannot be
located, or has previously been destroyed; or the requested record is
not readily producible in the form or format sought by the requester.
Adverse determinations also include designations of requesters' fee
category, denials of fee waiver requests, or denials of requests for
expedited processing.
(iv) An adverse determination letter shall be signed and include:
(A) The names and titles or positions of each person responsible for
the adverse determination;
(B) A brief statement of the reasons for the adverse determination,
including any FOIA exemption applied by the official denying the
request;
(C) For records disclosed in part, markings or annotations to show
the applicable FOIA exemption(s) and the amount of information deleted,
unless doing so would harm an interest protected by an applicable
exemption. The location of the information deleted shall also be
indicated on the record, if feasible;
(D) An estimate of the volume of any records or information withheld
by providing the number of pages withheld in their entirety or some
other reasonable form of estimation. This estimate is not required if
the volume is otherwise indicated by deletions marked on the records
that are disclosed in part or if providing an estimate would harm an
interest protected by an applicable FOIA exemption;
(E) A statement that the adverse determination may be appealed under
paragraph (f) of this section, and a description of the requirements for
filing an administrative appeal set forth in that paragraph; and
(F) A statement of the right of the requester to seek dispute
resolution services from the Office of FOIA Services' FOIA Public
Liaisons or the Office of Government Information Services (``OGIS'').
(3) Mediation services. OGIS offers mediation services to resolve
disputes between requesters and the Office of FOIA Services as a non-
exclusive alternative to litigation. Requesters with concerns about the
handling of their requests may contact OGIS.
(f) Administrative appeals--(1) Administrative review. If a
requester receives an adverse determination as described in
[[Page 63]]
paragraph (e)(2)(iii) of this section, or the request has not been
timely determined within the time period prescribed in paragraph (d)(2)
of this section or within an extended period permitted under paragraph
(d)(5) of this section, the requester may file an appeal to the Office
of the General Counsel consistent with the procedures described in
paragraphs (f)(2) through (4) of this section. A requester must
generally submit a timely administrative appeal before seeking review by
a court of an adverse determination.
(2) Time limits. Appeals can be submitted in writing or
electronically, as described in paragraph (f)(3) of this section. The
appeal must be received within 90 calendar days of the date of the
written denial of the adverse determination and must be received no
later than 11:59 p.m., Eastern Time, on the 90th day. If the Office of
FOIA Services has not issued a determination on a request, an appeal may
be submitted any time after the statutory time period for responding to
a request ends.
(3) Contents of appeal. Appeals should be clearly and prominently
identified at the top of the first page as ``Freedom of Information Act
Appeal'' and should provide the assigned FOIA request number. The appeal
should include a copy of the original request and adverse determination.
Appeals should include a statement of the requester's arguments as to
why the records requested should be made available and the reason(s) the
FOIA requester contends the adverse determination was in error. If only
a portion of the adverse determination is appealed, the requester must
specify which part is being appealed.
(4) How to file and address an appeal. If submitted by U.S. mail or
delivery service, the appeal must be sent to the Office of FOIA Services
at 100 F Street NE, Washington, DC 20549. Appeals may also be made by
facsimile at 202-772-9337, email ([email protected]), or online at the
Commission's website (http://www.sec.gov). A legible return address must
be included with the FOIA appeal. The requester may also include other
contact information, such as a telephone number and/or email address.
(5) Adjudication of appeals. The Office of the General Counsel has
the authority to grant or deny all appeals, in whole or in part. In
appropriate cases the Office of the General Counsel may refer appeals to
the Commission for determination. No opportunity for personal
appearance, oral argument, or hearing on appeal is provided. Upon
receipt of an appeal, the Office of FOIA Services ordinarily will send
the requester an acknowledgment letter that confirms receipt of the
requester's appeal.
(6) Determinations on appeals. A determination on an appeal must be
made in writing. A determination that denies an appeal, in whole or in
part, shall include a brief explanation of the basis for the denial,
identify the applicable FOIA exemptions asserted, and describe why the
exemptions apply. As applicable, the determination will provide the
requester with notification of the statutory right to file a lawsuit in
accordance with 5 U.S.C. 552(a)(4), and will inform the requester of the
mediation services offered by the Office of Government Information
Services as a non-exclusive alternative to litigation. If the Office of
FOIA Services' determination is remanded or modified on appeal, the
Office of the General Counsel will notify the requester of that
determination in writing.
(g) Fees--(1) In general. The Office of FOIA Services shall charge
fees for processing requests under the FOIA in accordance with the
provisions of this section and with the OMB Guidelines, except where
fees are limited under paragraph (g)(4) of this section or when a waiver
or reduction is granted under paragraph (g)(12) of this section. To
resolve any fee issues that arise under this section, the Office of FOIA
Services may contact a requester for additional information. The Office
of FOIA Services shall ensure that searches, review, and duplication are
conducted in an efficient manner. The Office of FOIA Services ordinarily
will collect all applicable fees before sending copies of records to a
requester. Requesters must pay fees by check, certified check, or money
order, or where possible, by electronic payment.
(2) Definitions. For purposes of this section:
(i) Commercial use request is a request from or on behalf of a
person who seeks
[[Page 64]]
information for a use or purpose that furthers his or her commercial,
trade, or profit interests, which can include furthering those interests
through litigation. The Office of FOIA Services will determine whether
to place a requester in the commercial use category on a case-by-case
basis based on the requester's intended use of the information.
(ii) Direct costs are those expenses the Office of FOIA Services and
any staff within the divisions and offices of the Commission incur in
searching for and duplicating (and, in the case of commercial use
requests, reviewing) records to respond to a FOIA request. Direct costs
include the salary of the employee(s) performing the work (i.e., the
basic rate of pay for the employee(s), plus 16% of that rate to cover
benefits), the cost of materials, and the cost of operating computers
and other electronic equipment, such as photocopiers and scanners.
Direct costs do not include overhead expenses such as the costs of space
and of heating or lighting a facility in which the service is performed.
(iii) Duplication is reproducing a record, or the information
contained in it, to respond to a FOIA request. Copies can take the form
of paper, audiovisual materials, or electronic records, among others.
The Office of FOIA Services shall honor a requester's specified
preference of form or format of disclosure if the record is readily
reproducible with reasonable efforts in the requested form or format.
(iv) Educational institution is any school that operates a program
of scholarly research. A requester in this fee category must show that
the request is made in connection with the requester's role at the
educational institution and that the records are not sought for
commercial or personal use.
(v) Noncommercial scientific institution is an institution that is
not operated to further a commercial, trade, or profit interest and that
is operated solely for the purpose of conducting scientific research,
the results of which are not intended to promote any particular product
or industry. A requester in this category must show that the request is
authorized by and is made under the auspices of a qualifying institution
and that the records are sought to further scientific research and are
not for a commercial use.
(vi) Representative of the news media or news media requester is any
person or entity that gathers information of potential interest to a
segment of the public, uses its editorial skills to turn the raw
materials into a distinct work, and distributes that work to an
audience. The term ``news'' means information that is about current
events or that would be of current interest to the public.
(vii) Review is the examination of a record located in response to a
request to determine whether any portion of it is exempt from
disclosure. Review time includes doing all that is necessary to prepare
the record for disclosure, such as redacting the record and marking any
applicable exemptions. Review time also includes time spent obtaining
and considering formal objections to disclosure made by a submitter
under Sec. 200.83, but it does not include time spent resolving legal
or policy issues regarding the application of exemptions.
(viii) Search is the review, manually or by automated means, of
agency records for the purpose of locating those records that are
responsive to a request. Search time includes page-by-page or line-by-
line identification of information within records and the reasonable
efforts expended to locate and retrieve information from electronic
records.
(3) Charging fees. In responding to FOIA requests, the Office of
FOIA Services shall charge fees for the services summarized in chart
form in paragraph (g)(3)(i) of this section and explained in paragraphs
(g)(3)(ii) through (v) of this section, unless fees are limited under
paragraph (g)(4) of this section or a waiver or reduction of fees has
been granted under paragraph (g)(12) of this section.
(i) The four categories of requesters and the chargeable fees for
each are:
----------------------------------------------------------------------------------------------------------------
Requester category Search fees Review fees Duplication fees
----------------------------------------------------------------------------------------------------------------
(A) Commercial use requesters...... Yes................... Yes................... Yes.
[[Page 65]]
(B) Educational and noncommercial No.................... No.................... Yes (first 100 pages, or
scientific institutions. equivalent volume, free).
(C) Representatives of the news No.................... No.................... Yes (first 100 pages, or
media. equivalent volume, free).
(D) All other requesters........... Yes (first 2 hours No.................... Yes (first 100 pages, or
free). equivalent volume, free).
----------------------------------------------------------------------------------------------------------------
(ii) Search fees. (A) Search fees shall be charged for all
requests--other than requests made by educational institutions,
noncommercial scientific institutions, or representatives of the news
media--subject to the limitations of paragraph (g)(4) of this section.
The Office of FOIA Services may charge for time spent searching even if
no responsive records are located or it is determined that the records
are entirely exempt from disclosure. Search fees shall be the direct
costs of conducting the search by agency employees.
(B) Requesters shall be charged the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate or identify responsive records. Requesters shall be
notified of the costs associated with creating and implementing such a
program and must agree to pay the associated costs before the costs may
be incurred.
(C) For requests that require the retrieval of agency records stored
at a Federal records center operated by the National Archives and
Records Administration (``NARA''), additional costs shall be charged in
accordance with the Transactional Billing Rate Schedule established by
NARA.
(iii) Review fees. Review fees shall be charged to requesters who
make commercial use requests. Review fees shall be assessed in
connection with the initial review of the record, i.e., the review
agency employees conduct to determine whether an exemption applies to a
particular record or portion of a record. Also, if an exemption asserted
to withhold a record (or a portion thereof) is deemed to no longer
apply, any costs associated with the re-review of the records to
consider the use of other exemptions may be assessed as review fees.
Review fees shall be the direct costs of conducting the review by the
involved employees. Review fees can be charged even if the records
reviewed ultimately are not disclosed.
(iv) Search and review services (review applies to commercial-use
requesters only). (A) The Office of FOIA Services will establish and
charge average rates for the groups of employees' salary grades
typically involved in the search and review of records. Those groups
will consist of employees at:
(1) Grades SK-8 or below;
(2) Grades SK-9 to SK-13; and
(3) Grades SK-14 or above.
(B) The average rates will be based on the hourly salary (i.e.,
basic salary plus locality payment), plus 16 percent for benefits, of
employees who routinely perform search and review services. The average
hourly rates are listed on the FOIA web page of the Commission's website
at http://www.sec.gov and will be updated as salaries change. Fees will
be charged in quarter-hour increments. No search fee or review fee will
be charged for a quarter-hour period unless more than half of that
period is required for search or review.
(v) Duplication fees. Duplication fees shall be charged to all
requesters, subject to the limitations of paragraph (g)(4) of this
section. Fees for either a photocopy or printout of a record (no more
than one copy of which need be supplied) are identified on the FOIA web
page of the Commission's website at www.sec.gov. For copies of records
produced on tapes, disks, or other media, the Office of FOIA Services
shall charge the direct costs of producing the copy, including operator
time. Where paper documents must be scanned to comply with a requester's
preference to receive the records in an electronic format, the requester
shall pay the direct costs associated with scanning those materials. For
all other forms of duplication, the Office of FOIA Services shall also
charge the direct costs.
[[Page 66]]
(4) Limitations on charging fees. (i) No search or review fees will
be charged for requests by educational institutions (unless the requests
are sought for a commercial use), noncommercial scientific institutions,
or representatives of the news media.
(ii) Except for requesters seeking records for a commercial use, the
Office of FOIA Services shall provide without charge the first 100 pages
of duplication (or the cost equivalent for other media) and the first
two hours of search.
(iii) Fees will not be charged where the costs of collecting and
processing the fee are likely to equal or exceed the amount of the fee.
(iv) The Office of FOIA Services will not assess search fees (or, in
the case of requests from representatives of the news media or
educational or noncommercial scientific institutions, duplication fees)
when 5 U.S.C. 552(a)(4)(A)(viii) prohibits the assessment of those fees.
(5) Notice of anticipated fees. (i) When the Office of FOIA Services
determines or estimates that the fees to be assessed in accordance with
this section will exceed the amount it would cost the Office of FOIA
Services to collect and process the fees, the Office of FOIA Services
shall notify the requester of the actual or estimated amount of fees,
unless the requester has indicated a willingness to pay fees as high as
the estimated fees. If only a portion of the fee can be estimated
readily, the Office of FOIA Services shall advise the requester
accordingly. If the requester is not a commercial use requester, the
notice shall specify that the requester is entitled to the statutory
entitlements of 100 pages of duplication at no charge and, if the
requester is charged search fees, two hours of search time at no charge.
(ii) In cases in which a requester has been notified that the actual
or estimated fees will amount to more than it would cost the Office of
FOIA Services to collect and process the fees, or amount to more than
the amount the requester indicated a willingness to pay, the Office of
FOIA Services will do no further work on the request until the requester
commits in writing to pay the actual or estimated total fee, or
designates some amount of fees the requester is willing to pay, or in
the case of a requester who is not a commercial use requester,
designates that the requester seeks only that which can be provided by
the statutory entitlements. The Office of FOIA Services will toll the
response period while it notifies the requester of the actual or
estimated amount of fees and this time will be excluded from the 20
working day time limit (as specified in paragraph (d)(2) of this
section). The requester's agreement to pay fees must be made in writing,
must designate an exact dollar amount the requester is willing to pay,
and must be received within 30 calendar days from the date of the
notification of the fee estimate. If the requester fails to submit an
agreement to pay the anticipated fees within 30 calendar days from the
date of the Office of FOIA Services' fee notice, the Office of FOIA
Services will presume that the requester is no longer interested in the
records and notify the requester that the request has been closed.
(iii) The Office of FOIA Services shall make available their FOIA
Public Liaisons or other FOIA professionals to assist any requester in
reformulating a request to meet the requester's needs at a lower cost.
(6) Charges for other services. Although not required to provide
special services, if the Office of FOIA Services chooses to do so as a
matter of administrative discretion, the direct costs of providing the
service shall be charged. Examples of such special services include
certifying that records are true copies, providing multiple copies of
the same document, or sending records by means other than first class
mail. The cost for the attestation of records with the Commission seal
(i.e., certifying records as true copies) is $4.00 per record, which may
be waived for records certified electronically. Requests for certified
copies of records or documents shall ordinarily be serviced within 20
working days. Requests will be processed in the order in which they are
received.
(7) Charging interest. The Office of FOIA Services may begin to
charge interest on any unpaid bill starting on the 31st calendar day
following the
[[Page 67]]
date of billing the requester. Interest charges shall be assessed at the
rate provided in 31 U.S.C. 3717 and accrue from the date of the billing
until the payment is received. The Office of FOIA Services shall take
all steps authorized by the Debt Collection Act of 1982, as amended, and
the Commission's Rules Relating to Debt Collection to effect payment,
including offset, disclosure to consumer reporting agencies, and use of
collection agencies.
(8) Aggregating requests. If the Office of FOIA Services reasonably
believes that a requester or a group of requesters acting in concert is
attempting to divide a request into a series of requests for the purpose
of avoiding fees, the Office of FOIA Services may aggregate those
requests and charge accordingly. Among the factors the Office of FOIA
Services shall consider in deciding whether to aggregate are whether the
requests were submitted close in time and whether the requests seek
documents about related matters. The Office of FOIA Services may presume
that multiple requests that involve related matters made by the same
requester or a group of requesters within a 30 calendar day period have
been made to avoid fees. For requests separated by a longer period, the
Office of FOIA Services will aggregate them only where it determines
that aggregation is warranted in view of all the circumstances involved.
(9) Advance payments. (i) For requests other than those described in
paragraphs (g)(9)(ii) and (iii) of this section, the Office of FOIA
Services shall not require a requester to make advance payment (i.e.,
payment made before the Office of FOIA Services begins to process or
continues to work on a request). Payment owed for work already completed
(i.e., payment before copies are sent to a requester) is not an advance
payment.
(ii) When the Office of FOIA Services determines or estimates that a
total fee to be charged under this section will exceed $250.00, it shall
notify the requester of the actual or estimated fee and may require the
requester to make an advance payment of the entire anticipated fee
before beginning to process the request. A notice under this paragraph
shall offer the requester an opportunity to discuss the matter with the
Office of FOIA Services' FOIA Public Liaisons or other FOIA
professionals to modify the request in an effort to meet the requester's
needs at a lower cost.
(iii) When a requester has previously failed to pay a properly
charged FOIA fee to the Office of FOIA Services or other Federal agency
within 30 calendar days of the date of billing, the Office of FOIA
Services shall notify the requester that he or she is required to pay
the full amount due, plus any applicable interest, and to make an
advance payment of the full amount of any anticipated fee, before the
Office of FOIA Services begins to process a new request or continues
processing a pending request from that requester. Where the Office of
FOIA Services has a reasonable basis to believe that a requester has
misrepresented the requester's identity to avoid paying outstanding
fees, it may require that the requester provide proof of identity and
pay in advance.
(iv) When the Office of FOIA Services requires advance payment or
payment due under paragraphs (g)(9)(ii) and (iii) of this section, the
Office of FOIA Services will not further process the request until the
required payment is made. The Office of FOIA Services will toll the
processing of the request while it notifies the requester of the
advanced payment due and this time will be excluded from the 20 working
day time limit (as specified in paragraph (d)(2) of this section). If
the requester does not pay the advance payment within 30 calendar days
from the date of the Office of FOIA Services' fee notice, the Office of
FOIA Services will presume that the requester is no longer interested in
the records and notify the requester that the request has been closed.
(10) Tolling. When necessary for the Office of FOIA Services to
clarify issues regarding fee assessment with the requester, the time
limit for responding to a FOIA request is tolled until the Office of
FOIA Services resolves such issues with the requester.
(11) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute (except the FOIA)
[[Page 68]]
that specifically requires an agency to set and collect fees for
particular types of records. In instances where records responsive to a
request are subject to a statutorily-based fee schedule program, the
Office of FOIA Services shall inform the requester how to obtain records
from that program. Provision of such records is not handled under the
FOIA.
(12) Requirements for waiver or reduction of fees. (i) Records
responsive to a request will be furnished without charge, or at a charge
reduced below that established under paragraph (g)(3) of this section,
if the requester asks for such a waiver in writing and the Office of
FOIA Services determines, after consideration of information provided by
the requester, that the requester has demonstrated that:
(A) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government; and
(B) Disclosure of the information is not primarily in the commercial
interest of the requester.
(ii) In deciding whether disclosure of the requested information is
likely to contribute significantly to public understanding of the
operations or activities of the government, the Office of FOIA Services
shall consider each of the following four factors:
(A) The subject of the request: whether the subject of the requested
records concerns the operations or activities of the government. The
subject of the requested records must concern identifiable operations or
activities of the Federal Government, with a connection that is direct
and clear, not remote or attenuated.
(B) The informative value of the information to be disclosed:
whether the disclosure is likely to contribute to an understanding of
government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about government
operations or activities to be likely to contribute to an increased
public understanding of those operations or activities. The disclosure
of information that already is in the public domain, in either a
duplicative or a substantially identical form, would not be likely to
contribute to such understanding.
(C) The contribution to an understanding of the subject by the
public likely to result from disclosure: whether disclosure of the
requested information will contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area and ability and intention to effectively
convey information to the public shall be considered. It shall be
presumed that a representative of the news media satisfies this
consideration.
(D) The significance of the contribution to public understanding:
whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities. The public's
understanding of the subject in question prior to the disclosure must be
significantly enhanced by the disclosure.
(iii) In deciding whether disclosure of the requested information is
primarily in the commercial interest of the requester, the Office of
FOIA Services shall consider the following factors:
(A) The existence and magnitude of a commercial interest: whether
the requester has a commercial interest that would be furthered by the
requested disclosure. The Office of FOIA Services shall consider any
commercial interest of the requester (with reference to the definition
of ``commercial use requester'' in paragraph (g)(2)(i) of this section),
or of any person on whose behalf the requester may be acting, that would
be furthered by the requested disclosure. Requesters shall be given an
opportunity to provide explanatory information regarding this
consideration.
(B) The primary interest in disclosure: whether the public interest
is greater than any identified commercial interest in disclosure. The
Office of FOIA Services ordinarily shall presume that where a news media
requester has satisfied the public interest standard, the public
interest will be the interest primarily served by disclosure to that
requester. Disclosure to data brokers or others who merely compile and
market
[[Page 69]]
government information for direct economic return shall not be presumed
to primarily serve the public interest.
(iv) If only a portion of the requested records satisfies both the
requirements for a waiver or reduction of fees, a waiver or reduction of
fees will be granted for only that portion.
(v) Requests for a waiver or reduction of fees should address all
the factors identified in paragraphs (g)(12)(ii) and (iii) of this
section.
(vi) Denials of requests for a waiver or reduction of fees are
adverse determinations (as defined in paragraph (e)(2)(iii) of this
section) and may be appealed to the General Counsel in accordance with
the procedures set forth in paragraph (f) of this section.
83 FR 30327, June 27, 2018]
Sec. 200.81 Publication of interpretative, no-action and certain
exemption letters and other written communications.
(a) Except as provided in paragraphs (b) and (c) of this section,
every letter or other written communication requesting the staff of the
Commission to provide interpretative legal advice with respect to any
statute administered by the Commission or any rule or regulation adopted
thereunder; or requesting a statement that, on the basis of the facts
stated in such letter or other communication, the staff would not
recommend that the Commission take any enforcement action; or requesting
an exemption, on the basis of the facts stated in such letter, from the
provisions of the Securities Exchange Act of 1934 (15 U.S.C. 78a et
seq.) or any rule or regulation thereunder, where the issuance of an
order granting such exemption does not require public notice and an
opportunity for hearing; together with any written response thereto,
shall be made available for inspection and copying by any person as soon
as practicable after the response has been sent or given to the person
requesting it.
(b) Any person submitting such letter or other written communication
may also submit therewith a request that it be accorded confidential
treatment for a specified period of time, not exceeding 120 days from
the date the response, together with a statement setting forth the
considerations upon which the request for such treatment is based. If
the staff determines that the request is reasonable and appropriate it
will be granted and the letter or other communication will not be made
available for public inspection or copying until the expiration of the
specified period. If it appears to the staff that the request for
confidential treatment should be denied, the staff shall so advise the
person making the request and such person may withdraw the letter or
other communication within 30 days thereafter. In such case, no response
will be sent or given and the letter or other communication shall remain
in the Commission's files but will not be made public. If such letter or
other communication is not so withdrawn, it shall be deemed to be
available for public inspection and copying together with any written
response thereto.
Note: All letters or other written communications requesting
interpretative advice, a no-action position, or an exemption shall
indicate prominently, in a separate caption at the beginning of the
request, each section of the Act and each rule to which the request
relates. If more than one section or rule is involved, a separate copy
of the request shall be submitted for each section or rule involved and
an additional copy for the use of the staff of the Commission.
(c) This section shall not apply, however, to letters of comment or
other communications relating to the accuracy or adequacy of any
registration statement, report, proxy, or information statement or other
document filed with the Commission, or relating to the extent to which
such statement, report, or document complies with any applicable
requirement. Further, this section shall not apply to applications or
other written communications filed pursuant to Sec. 240.24b-2 that
relate to objections to public disclosure of information filed with the
Commission or any exchange.
[35 FR 17779, Nov. 19, 1970, as amended at 53 FR 12413, Apr. 14, 1988;
53 FR 32605, Aug. 26, 1988]
[[Page 70]]
Sec. 200.82 Public availability of materials filed pursuant to
Sec. 240.14a-8(d) and related materials.
Materials filed with the Commission pursuant to Rule 14a-8(d) under
the Securities Exchange Act of 1934 (17 CFR 240.14a-8(d)), written
communications related thereto received from any person, and each
related no-action letter or other written communication issued by the
staff of the Commission, shall be made available to any person upon
request for inspection or copying.
[37 FR 20558, Sept. 30, 1972]
Sec. 200.82a Public availability of materials filed pursuant to
Sec. 240.14a-11(g) and related materials.
Materials filed with the Commission pursuant to Rule 14a-11(g) under
the Securities Exchange Act of 1934 (17 CFR 240.14a-11(g)), written
communications related thereto received from interested persons, and
each related no-action letter or other written communication issued by
the staff of the Commission, shall be made available to any person upon
request for inspection or copying.
[75 FR 56780, Sept. 16, 2010]
Sec. 200.83 Confidential treatment procedures under
the Freedom of Information Act.
(a) Purpose. This section provides a procedure by which persons
submitting information in any form to the Commission can request that
the information not be disclosed pursuant to a request under the Freedom
of Information Act, 5 U.S.C. 552. This section does not affect the
Commission's right, authority, or obligation to disclose information in
any other context. This section is procedural only and does not provide
rights to any person or alter the rights of any person under the Freedom
of Information Act or any other applicable statute or regulation.
(b) Scope. The provisions of this section shall apply only where no
other statute or Commission rule provides procedures for requesting
confidential treatment respecting particular categories of information
(see, e.g., 17 CFR 240.24b-2) or where the Commission has not specified
that an alternative procedure be utilized in connection with a
particular study, report, investigation, or other matter. The provisions
of this section shall not apply to any record which is contained in or
is part of a personnel, medical or similar file relating to a Commission
member or employee which would normally be exempt from disclosure
pursuant to section 552(b)(6) of title 5, U.S. Code.
(c) Written request for confidential treatment to be submitted with
information. (1) Any person who, either voluntarily or pursuant to any
requirement of law, submits any information or causes or permits any
information to be submitted to the Commission, which information is
entitled to confidential treatment and for which no other specific
procedure exists for according confidential treatment, may request that
the Commission afford confidential treatment under the Freedom of
Information Act to such information for reasons of personal privacy or
business confidentiality, or for any other reason permitted by Federal
law, and should take all steps reasonably necessary to ensure, as nearly
as practicable, that at the time the information is first received by
the Commission (i) it is supplied segregated from information for which
confidential treatment is not being requested, (ii) it is appropriately
marked as confidential, and (iii) it is accompanied by a written request
for confidential treatment which specifies the information as to which
confidential treatment is requested.
(2) A person who submits a record to the Commission for which he or
she seeks confidential treatment must clearly mark each page or
segregable portion of each page with the words ``Confidential Treatment
Requested by [name]'' and an identifying number and code, such as a
Bates-stamped number. In his or her written confidential treatment
request, the person must refer to the record by identifying number and
code.
(3) In addition to giving a copy of any written request for
confidential treatment to the Commission employee receiving the record
in question, the person requesting confidential treatment must send a
copy of the request (but not the record) by mail to the Office of
Freedom of Information and Privacy
[[Page 71]]
Act Operations, SEC, 100 F Street, NE., Washington, DC 20549. The legend
``FOIA Confidential Treatment Request'' must clearly and prominently
appear on the top of the first page of the written request, and the
written request must contain the name, address, and telephone number of
the person requesting confidential treatment. The person requesting
confidential treatment is responsible for informing the Office of
Freedom of Information and Privacy Act Operations promptly of any
changes in address, telephone number, or representation.
(4) In some circumstances, such as when a person is testifying in
the course of a Commission investigation or providing a record requested
in the course of a Commission examination or inspection, it may be
impracticable to submit a written request for confidential treatment at
the time the record is first given to the Commission. In no
circumstances can the need to comply with the requirements of this
section justify or excuse any delay in submitting any record to the
Commission. The person testifying or otherwise submitting the record
must inform the Commission employee receiving it, at the time the record
is submitted or as soon thereafter as possible, that he or she is
requesting confidential treatment. The person must then submit a written
confidential treatment request within 30 days from the date of the
testimony or the submission of the record. Any confidential treatment
request submitted under this paragraph must also comply with paragraph
(c)(3) of this section.
(5) Where confidential treatment is requested by the submitter on
behalf of another person, the request must identify that person and
provide the telephone number and address of that person or the person's
responsible representative if the submitter would be unable to provide
prompt substantiation of the request at the appropriate time.
(6) No determination on a request for confidential treatment will be
made until the Office of Freedom of Information and Privacy Act
Operations receives a request for disclosure of the record.
(7) A confidential treatment request will expire ten years from the
date the Office of Freedom of Information and Privacy Act Operations
receives it, unless that Office receives a renewal request before the
confidential treatment request expires. The renewal request must be sent
by mail to the Office of Freedom of Information and Privacy Act
Operations, SEC, 100 F Street, NE., Washington, DC 20549, and must
clearly identify the record for which confidential treatment is sought.
A renewal request will likewise expire ten years from the date that
Office receives it, unless that Office receives another timely renewal
request which complies with the requirements of this paragraph.
(8) A confidential treatment request shall be nonpublic. If an
action is filed in a Federal court, however, by either the Freedom of
Information Act requester (under 5 U.S.C. 552(a)(4) and Sec. 200.80(f))
or by the confidential treatment requester (under paragraph (e)(5) of
this section), the confidential treatment request may become part of the
court record.
(d) Substantiation of request for confidential treatment. (1) If it
is determined that records which are the subject of a request for access
under the Freedom of Information Act are also the subject of a request
for confidential treatment under this rule and no other grounds appear
to exist which would justify the withholding of the records [e.g.,
Freedom of Information Act Exemption 7(A), 5 U.S.C. 552(b)(7)(A)], the
Commission's Freedom of Information Act Officer promptly shall so inform
the person requesting confidential treatment or, in the case of a
request made on behalf of a person other than the submitter, the person
identified as able to provide substantiation, by telephone, facsimile or
certified mail and require that substantiation of the request for
confidential treatment be submitted in ten calendar days. Failure to
submit a written substantiation within ten calendar days from the time
of notification, or any extension thereof, may be deemed a waiver of the
confidential treatment request and the confidential treatment
requester's right to appeal an initial decision denying confidential
treatment to the
[[Page 72]]
Commission's General Counsel as permitted by paragraph (e) of this
section.
(2) Substantiation of a request for confidential treatment shall
consist of a statement setting forth, to the extent appropriate or
necessary for the determination of the request for confidential
treatment, the following information regarding the request:
(i) The reasons, concisely stated and referring to specific
exemptive provisions of the Freedom of Information Act, why the
information should be withheld from access under the Freedom of
Information Act;
(ii) The applicability of any specific statutory or regulatory
provisions which govern or may govern the treatment of the information;
(iii) The existence and applicability of any prior determinations by
the Commission, other Federal agencies, or a court, concerning
confidential treatment of the information;
(iv) The adverse consequences to a business enterprise, financial or
otherwise, that would result from disclosure of confidential commercial
or financial information, including any adverse effect on the business'
competitive position;
(v) The measures taken by the business to protect the
confidentiality of the commercial or financial information in question
and of similar information, prior to, and after, its submission to the
Commission;
(vi) The ease or difficulty of a competitor's obtaining or compiling
the commercial or financial information;
(vii) Whether the commercial or financial information was
voluntarily submitted to the Commission and, if so, whether and how
disclosure of the information would tend to impede the availability of
similar information to the Commission;
(viii) The extent, if any, to which portions of the substantiation
of the request for confidential treatment should be afforded
confidential treatment; and
(ix) Such additional facts and such legal and other authorities as
the requesting person may consider appropriate.
(e) Appeal from initial determination that confidential treatment is
not warranted. (1) In a preliminary decision, which shall be sent by
mail or facsimile, or both, the Office of Freedom of Information and
Privacy Act Operations will inform the confidential treatment requester
whether it intends to grant confidentiality in whole or in part and give
the requester ten calendar days from the date of the preliminary
decision to submit supplemental arguments if the requester disagrees
with the preliminary decision. A final decision, which shall also be
sent by mail or facsimile, or both, no sooner than ten calendar days
from the date of the preliminary decision, shall inform the Freedom of
Information Act requester and the confidential treatment requester of
his or her right to appeal an adverse decision to the Commission's
General Counsel within ten calendar days from the date of the final
decision. Records, which the Freedom of Information and Privacy Act
Officer determines to be releasable, may be released to the Freedom of
Information Act requester ten calendar days after the date of the final
decision. However, if within those ten calendar days, the Freedom of
Information and Privacy Act Officer receives an appeal from the
confidential treatment requester, he or she shall inform the Freedom of
Information Act requester that an appeal is pending and that the records
will not be released until the appeal is resolved.
(2) Any appeal of a denial of a request for confidential treatment
shall be in writing, and shall be clearly and prominently identified on
the envelope or other cover and at the top of the first page by the
legend ``FOIA Confidential Treatment Appeal.'' The appeal must be sent
by mail to the Office of Freedom of Information and Privacy Act
Operations, SEC, 100 F Street, NE., Washington, DC 20549, or by
facsimile (202-772-9337). A copy of the appeal must be mailed to the
General Counsel, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549. The person requesting confidential treatment may
supply additional substantiation of the request for confidential
treatment in connection with the appeal to the General Counsel.
(3) The General Counsel shall have the authority to consider all
appeals
[[Page 73]]
from decisions of the Freedom of Information Act Officer with respect to
confidential treatment. All appeals taken under this section will be
considered by the General Counsel as expeditiously as circumstances
permit. Although other procedures may be employed, to the extent
possible, the General Counsel will decide the matter on the basis of the
affidavits and other documentary evidence submitted by the interested
persons and such other information as is brought to the attention of the
General Counsel. The General Counsel shall also have the authority to
enter and vacate stays under the circumstances set forth in paragraph
(e)(5) of this section. In appropriate cases the General Counsel may, in
his or her sole and unfettered discretion, refer appeals and questions
concerning stays under paragraph (e)(5) of this section to the
Commission for decision.
(4) If it is determined that confidential treatment is not warranted
with respect to all or any part of the information in question, the
person requesting confidential treatment will be so informed by
telephone, if possible, with a facsimile or certified mail letter
directed to the person's last known address. Disclosure of the
information under the Freedom of Information Act will occur ten calendar
days after notice to the person requesting confidential treatment,
subject to any stay entered pursuant to paragraph (e) (5) of this
section.
(5) If within that ten calendar day period the General Counsel has
been notified that the person requesting confidential treatment has
commenced an action in a Federal court concerning the determination to
make such information publicly available, the General Counsel will stay
making the public disclosure of the information pending final judicial
resolution of the matter. The General Counsel may vacate a stay under
this section either on his or her own motion or at the request of a
person seeking access to the information under the Freedom of
Information Act. If the stay is vacated, the information will be
released under the Freedom of Information Act ten calendar days after
the person requesting confidential treatment is notified of this action
by telephone, if possible, with a facsimile or certified mail letter
sent to the person's last known address, unless the court orders
otherwise.
(f) Initial determination that confidential treatment is warranted.
If it is determined by the Commission's Freedom of Information Act
Officer that confidential treatment is warranted, the person submitting
the information and the person requesting access to the information
under the Freedom of Information Act will be so informed by mail. The
person requesting access, pursuant to the Freedom of Information Act,
will also be informed of the right to appeal the determination to the
General Counsel. Any such appeal must be taken in accordance with the
provisions of the Freedom of Information Act and Commission rules
thereunder. See 17 CFR 200.80(f).
(g) Confidential treatment request and substantiation as nonpublic.
Any confidential treatment request and substantiation of it shall be
nonpublic. If an action is filed in a Federal court, however, by the
Freedom of Information Act requester (under 5 U.S.C. 552(a)(4) and Sec.
200.80(f)) or by the confidential treatment requester (under paragraph
(e)(5) of this section), both the request and substantiation may become
part of the public court record.
(h) Effect of no prior request for confidentiality. (1) If access is
requested under the Freedom of Information Act to information which is
submitted to the Commission on or after October 20, 1980 with respect to
which no request for confidential treatment has been made pursuant to
either paragraph (c)(1) or (c)(5) of this section, it will be presumed
that the submitter of the information has waived any interest in
asserting an exemption from disclosure under the Freedom of Information
Act for reasons of personal privacy or business confidentiality, or for
other reasons.
(2) Notwithstanding paragraph (h)(1) of this section, in appropriate
circumstances, any person who would be affected by the public disclosure
of information under the Freedom of Information Act may be contacted by
Commission personnel to determine whether the person desires to make a
request for confidential treatment. Any request for confidential
treatment that is
[[Page 74]]
asserted in response to such inquiry shall be made in accordance with
provisions of this section.
(i) Extensions of time limits. Any time limit under this section may
be extended in the discretion of the Commission, the Commission's
General Counsel, or the Commission's Freedom of Information Act Officer
for good cause shown.
(j) Electronic filings. Confidential treatment requests shall be
submitted in paper format only, whether or not the person making the
request is an electronic filer.
(k) In their discretion, the Commission, the Commission's General
Counsel, and the Freedom of Information Act Officer may use alternative
procedures for considering requests for confidential treatment.
[45 FR 62421, Sept. 19, 1980, as amended at 47 FR 20289, May 12, 1982;
58 FR 14659, Mar. 18, 1993; 65 FR 55184, 55185, Sept. 13, 2000; 73 FR
32225, June 5, 2008; 84 FR 50738, Sept. 26, 2019]
Subpart E [Reserved]
Subpart F_Code of Behavior Governing Ex Parte Communications Between
Persons Outside the Commission and Decisional Employees
Authority: 15 U.S.C. 77s, 77sss, 78w, 80a-37, 80b-11, and 7202; and
5 U.S.C. 557.
Sec. 200.110 Purpose.
This code is adopted in conformity with section 4 of the Government
in the Sunshine Act, Pub. L. 94-409, and is designed to insulate the
administrative process from improper influence.
[42 FR 14690, Mar. 16, 1977]
Sec. 200.111 Prohibitions; application; definitions.
(a) Prohibited communications. In any agency proceeding which is
subject to this subpart, except to the extent required for the
disposition of ex parte matters as authorized by law:
(1) No interested person outside the agency shall make or knowingly
cause to be made to any member of the Commission or decisional employee
an ex parte communication relevant to the merits of the proceeding; and
(2) No member of the Commission or decisional employee shall make or
knowingly cause to be made to any interested person outside the agency
an ex parte communication relevant to the merits of the proceeding.
(b) Proceedings to which prohibitions apply. This subpart shall
apply to all proceedings subject to 5 U.S.C. 557(a), including
suspension proceedings instituted pursuant to the provisions of
Regulations A, B, E, and F of the Securities Act of 1933 (Sec. 230.251
et seq. of this chapter), all review proceedings instituted pursuant to
section 19(g) of the Securities Exchange Act of 1934, and all other
proceedings where an evidentiary hearing has been ordered pursuant to a
statutory provision or rule of the Commission and where the action of
the Commission must be taken on the basis of an evidentiary record. In
addition, this subpart shall apply to any other proceeding in which the
Commission so orders.
(c) Period during which prohibitions apply. (1) The prohibitions in
Sec. 200.111 (a) shall begin to apply when the Commission issues an
order for hearing; Provided,
(i) That in suspension proceedings pursuant to Regulations A, B, E
and F of the Securities Act of 1933 (Sec. 230.251 et seq. of this
chapter), these prohibitions shall commence when the Commission enters
an order temporarily suspending the exemption; and
(ii) That in proceedings under section 19(d) of the Securities
Exchange Act of 1934, 15 U.S.C. 78s(d), these prohibitions shall
commence at the time that a copy of an application for review has been
filed with the Commission and served on the self-regulatory
organization.
(iii) That in proceedings under Title I of the Sarbanes-Oxley Act of
2002, 15 U.S.C. 7211-7219, these prohibitions shall commence at the time
that a copy of an application for review has been filed with the
Commission and served on the Public Company Accounting Oversight Board;
and
(iv) In no case shall the prohibitions in Sec. 200.111(a) begin to
apply later than the time at which a proceeding is noticed for hearing
unless the person responsible for the communication has knowledge that
it will be noticed, in
[[Page 75]]
which case the prohibitions shall apply beginning at the time of his or
her acquisition of such knowledge.
(2) The prohibitions in Sec. 200.111(a) shall continue until the
time to file a petition for rehearing from the final order of the
Commission has expired. In the event a petition for rehearing is filed,
these prohibitions shall cease if and when the petition for rehearing is
denied.
(3) The Commission may, by specific order entered in a particular
proceeding, determine that these prohibitions shall commence from some
date earlier than the time specified in this paragraph (c) or shall
continue until a date subsequent to the time specified herein.
(d) Definitions. As used in this subpart:
(1) Ex parte communication means an oral or written communication
not on the public record with respect to which reasonable prior notice
to all participants to the proceeding is not given, but it shall not
include requests for status reports on any matter or proceeding. In
addition, an ex parte communication shall not include:
(i) Any written communication of which copies are served by the
communicator contemporaneously with the transmittal of the communication
in accordance with requirements of Rule 150 of the Commission's Rules of
Practice, Sec. 201.150 of this chapter, upon all participants to the
proceeding (including the interested Division or Office of the
Commission); or
(ii) Any oral communication where 48 hours advance written notice is
given to all participants to the proceeding (including the interested
division of the Commission).
(2) Participants to the proceeding means all parties to the
proceeding (including the interested Division or Office of the
Commission) and any other persons who have been granted limited
participation pursuant to the provisions of Rule 210(c) of the
Commission's Rules of Practice, Sec. 201.210(c) of this chapter.
(3) Decisional employee means: (i) The administrative law judge
assigned to the proceeding in question; and
(ii) All members of the staff of the Office of Opinions and Review;
and
(iii) The legal and executive assistants to members of the
Commission; and
(iv) Any employee of the Commission who has been specifically named
by order of the administrative law judge or the Commission in the
proceeding to assist thereafter in making or recommending a particular
decision; and
(v) Any other employee of the Commission who is, or may reasonably
be expected to be, involved in the decisional process of the proceeding.
[42 FR 14690, Mar. 16, 1977, as amended at 60 FR 32795, June 23, 1995;
69 FR 13175, Mar. 19, 2004]
Sec. 200.112 Duties of recipient; notice to participants.
(a) Duties of recipient. A member of the Commission or decisional
employee who receives, or who make or knowingly causes to be made, a
communication prohibited by this section, or who receives or makes a
communication which he or she concludes should, in fairness, be brought
to the attention of all participants to the proceeding, shall transmit
to the Commission's Secretary, who shall place on the public record of
the proceeding:
(1) All such written communications; and
(2) Memoranda stating the substance of all such oral communications;
and
(3) All written responses, and memoranda stating the substance of
all oral responses, to the materials described in paragraphs (a) (1) and
(2) of this section.
(b) Notice to participants. The Secretary shall send copies of the
communication to all participants to the proceeding with respect to
which it was made, and shall notify the communicator of the provisions
of this code prohibiting ex parte communications. If the communications
are from persons other than participants to the proceedings or their
agents, and the Secretary determines that it would be too burdensome to
send copies of the communications to all participants because: (1) The
communications are so voluminous, or (2) the communications are of such
borderline relevance to the issues of the proceedings, or (3) the
participants to the proceeding are so numerous, the Secretary may,
instead,
[[Page 76]]
notify the participants that the communications have been received,
placed in the file, and are available for examination.
(c) Post decisional communications. Any Commission member or
decisional employee who receives a communication which would be
prohibited by this Code, but for the fact that it was received
subsequent to the date when the prohibitions imposed hereby have ceased
to apply, shall comply with the provisions of Sec. 200.112(a) with
respect to such communication in the event that he or she is to act in a
decisional capacity in the same proceeding pursuant to remand where he
or she concludes, in fairness, that such communication should be brought
to the attention of all participants to the proceeding.
[42 FR 14691 Mar. 16, 1977]
Sec. 200.113 Opportunity to respond; interception.
(a) Opportunity to respond. All participants to a proceeding may
respond to any allegations or contentions contained in a prohibited ex
parte communication placed in the public record in accordance with Sec.
200.112. Such responses shall be included in the public record.
(b) Interception of communications. All written communications
addressed to the Commission respecting a proceeding will be deemed to be
communications to the staff of the interested division and will be
directed to that division by the Commission's mail room. A Commission
member or decisional employee may instruct any of his assistants who are
nondecisional employees to intercept any communication directed to him
which might appear to violate this Code and authorize them either to
transmit any such written communication to the staff of the interested
division of the Commission, if it appears from the contents of the
communication that the intent of the sender is consistent with such
action, or to return the communication to the sender.
[28 FR 4447, May 3, 1963, as amended at 42 FR 14691, Mar. 16, 1977]
Sec. 200.114 Sanctions.
(a) Discipline of persons practicing before the Commission. The
Commission may, to the extent not prohibited by law, censure, suspend,
or revoke the privilege to practice before it of any person who makes,
or solicits the making of, an unauthorized ex parte communication.
(b) Adverse action on claim. Upon receipt of a communication
knowingly made or knowingly caused to be made by a party in violation of
this subpart, the Commission, administrative law judge, or other
employee presiding at the hearing may, to the extent consistent with the
interests of justice and the policy of the underlying statutes, require
the party to show cause why his claim or interest in the proceeding
should not be dismissed, denied, disregarded, or otherwise adversely
affected on account of such violation.
(c) Discipline of Commission employees. The Commission may censure,
suspend, or dismiss any Commission employee who violates the
prohibitions or requirements of this Code.
[28 FR 4447, May 3, 1963, as amended at 42 FR 14691, Mar. 16, 1977]
Subpart G_Plan of Organization and Operation Effective During Emergency
Conditions
Authority: 15 U.S.C. 77s, 78d, 78d-1, 78w, 77sss, 80a-37, 80b-11;
Reorganization Plan No. 10 of 1950 (15 U.S.C. 78d nt).
Source: 28 FR 6970, July 9, 1963, unless otherwise noted.
Sec. 200.200 Purpose.
This subpart describes the plan of organization and operation which
will be observed by the Securities and Exchange Commission in
discharging its duties and responsibilities in the event of emergency
conditions as defined in the following section.
[28 FR 6970, July 9, 1963, as amended at 71 FR 33386, June 9, 2006; 71
FR 35730, June 21, 2006]
Sec. 200.201 General provisions.
(a) For purpose of this subpart, a person shall be considered
unavailable or incapacitated in any situation and
[[Page 77]]
from any cause that prevents the person from assuming or performing on a
timely basis his or her authorized duties, roles, or responsibilities of
office, whether from a primary or alternate facility, or any other
location.
(b) For purpose of this subpart, emergency conditions shall be
deemed to commence upon the occurrence, or the imminent threat of the
occurrence, of a natural or man-made disturbance, including, but not
limited to, an armed attack against the United States, its territories
or possessions, terrorist attack, civil disturbance, fire, pandemic,
hurricane, or flood, that results in, or threatens imminently to result
in, a substantial disruption of the organization or operations of the
Commission. Such conditions shall be deemed to continue until the
Commission shall, by notice or older, resume its normal organization and
operations, whether at its headquarters in Washington, DC or elsewhere.
[71 FR 33386, June 9, 2006]
Sec. 200.202 Offices, and information and submittals.
(a) During emergency conditions, the location or headquarters of the
Commission shall be as designated by the Chairman or his successor. The
location of each Regional Office of the Commission, if different from
the normal location, shall be as designated by the Chairman of the
Commission or his successor, or in the absence of communications with
him, by the Regional Director for the area or his acting successor.
(b) During emergency conditions, all formal or informal requests,
filings, reports, or other submittals shall be submitted to the
Commission as permitted in non-emergency conditions, unless the Chairman
or his or her successor acting pursuant to Sec. 200.203(c)(1) of this
subpart specifies another means or location for submission of such
requests, filings, reports, or other submittals, by a notice that is
disseminated through a method (or combination of methods) that is
reasonably designed to provide broad distribution of the information to
the public.
[28 FR 6970, July 9, 1963, as amended at 59 FR 5944, Feb. 9, 1994; 71 FR
33387, June 9, 2006; 73 FR 32225, June 5, 2008]
Sec. 200.203 Organization, and delegations of authority.
(a) During emergency conditions, the respective functions and
responsibilities of the Commissioners, the Chairman of the Commission,
and the staff members shall be, to the extent possible, as set forth in
Subpart A of this part (Sec. 200.1 et seq.).
(b) Action for and in the name of the Commission taken pursuant to
this subpart by one or more Commissioners or by a successor as
designated in this section shall mean and include the delegated
authority to act for the unavailable or incapacitated Commissioners.
(c) Pursuant to the statutes governing the Commission, to
Reorganization Plan No. 10 of 1950, and to Pub. L. 100-181, section
308(b), 101 Stat. 1249 (1987), the following automatic delegation of
authority is made to provide continuity in the event of an emergency:
(1) In the event of the unavailability or incapacity of the Chairman
of the Commission during emergency conditions, the authority of the
Chairman to govern the affairs of the Commission and to act for the
Commission, as provided for by law and by delegation from the
Commission, will pass to the available person highest on the following
list, until such time as the Chairman is no longer unavailable or
incapacitated, or a successor Chairman has assumed office pursuant to
Section 4 of the Securities Exchange Act of 1934 (15 U.S.C. 78d) and
Reorganization Plan No. 10 of 1950 (15 FR 3175, 64 Stat. 1265):
(i) The Commissioners in order of seniority.
(ii) The General Counsel.
(iii) The Division Directors in the order designated by the Chairman
in the most recent designation prior to the commencement of emergency
conditions, or if no such designation has occurred, in order of
seniority.
(iv) The Regional Directors in the order designated by the Chairman
in the most recent designation prior to the commencement of emergency
conditions, or if no such designation has occurred, in order of
seniority.
(2) If and when a commissioner previously incapacitated or otherwise
unavailable, again becomes available, he shall thereupon have all the
powers
[[Page 78]]
and functions he would have had if he had not been incapacitated or
otherwise unavailable.
(d) Actions taken for and in the name of the Commission as described
above shall be effective immediately or as specified by the successor
acting, but shall be subject to reconsideration by the Commissioners
when the Commission has been reconstituted and is functioning.
(e) Except as may be determined otherwise by the Chairman or his
successor, the duties of each head of a division or office of the
Commission shall be discharged, in the event of the unavailability or
incapacity of such person during emergency conditions, by the available
staff member next in line of succession. The head of each division or
office shall designate the line of succession within his division or
office. If no such designation has been made or the designatee is
unavailable, such duties shall be assumed by the available subordinate
officer or employee in the particular division or office who is highest
in grade and in the event that there is more than one such person, in
length of service with the Commission. A person who discharges or
assumes the duties of the head of a division or office pursuant to this
subsection is hereby delegated, throughout the period of the
unavailability or incapacity of the head of the division or office
during the emergency conditions, all of the functions that the
Commission has delegated to the head of the division or office.
[28 FR 6970, July 9, 1963, as amended at 28 FR 7672, July 27, 1963; 28
FR 14493, Dec. 31, 1963; 54 FR 40862, Oct. 4, 1989; 59 FR 5945, Feb. 9,
1994; 71 FR 33387, June 9, 2006; 73 FR 32225, June 5, 2008]
Sec. 200.204 Personnel, fiscal, and service functions.
In the event of the unavailability or incapacity of the appropriate
staff officer or his or her successor during emergency conditions,
authority to effect temporary appointments of such additional officers
and employees, to classify and allocate positions to their proper
grades, to issue travel orders, and to effect emergency purchases of
supplies, equipment and services shall be exercised by the respective
Regional Directors, their deputies, or staff in line of succession, as
may be required for the discharge of the lawful duties of the respective
offices.
[28 FR 6970, July 9, 1963, as amended at 59 FR 5945, Feb. 9, 1994; 71 FR
33387, June 9, 2006; 73 FR 32225, June 5, 2008]
Sec. 200.205 Effect upon existing Commission organization,
delegations, and rules.
Except as otherwise provided herein, all outstanding Commission
organizational statements, delegations of authority, orders, rules and
regulations shall remain in force and effect during emergency
conditions, subject to all lawful requirements and such changes as may
be authorized by or in the name of the Chairman or the Commission.
[28 FR 6970, July 9, 1963, as amended at 71 FR 33387, June 9, 2006]
Subpart H_Regulations Pertaining to the Privacy of Individuals and
Systems of Records Maintained by the Commission
Authority: 5 U.S.C. 552a(f), unless otherwise noted.
Section 200.312 is also issued under Pub. L. 93-579, sec. k, 5
U.S.C. 552a(k).
Section 200.313 is also issued under Pub. L. 93-579, sec. j, 5
U.S.C. 552a(j) and sec. k, 5 U.S.C. 552a(k).
Source: 40 FR 44068, Sept. 24, 1975, unless otherwise noted.
Sec. 200.301 Purpose and scope.
(a) The Privacy Act of 1974, Pub. L. 93-579, 88 Stat. 1896, is
based, in part, on the finding by Congress that ``in order to protect
the privacy of individuals identified in information systems maintained
by Federal agencies, it is necessary and proper for the Congress to
regulate the collection, maintenance, use, and dissemination of
information by such agencies.'' To achieve this objective the Act, among
other things, provides, with some exceptions, that Federal agencies
shall advise an individual upon request whether records maintained by
the agency in a system of records pertain to the individual and shall
grant the individual access to such records. The Act further provides
that individuals may request
[[Page 79]]
amendments or corrections to records pertaining to them that are
maintained by the agency, and that the agency shall either grant the
requested amendments or set forth fully its reasons for refusing to do
so.
(b) The Securities and Exchange Commission, pursuant to subsection
(f) of the Privacy Act, adopts the following rules and procedures to
implement the provisions of the Act summarized above, and other
provisions of the Act. These rules and procedures are applicable to all
requests for information, access or amendment to records pertaining to
an individual that are contained in any system of records that is
maintained by the Commission.
Sec. 200.302 Definitions.
The following definitions shall apply for purposes of this subpart:
(a) The terms individual, maintain, record, system of records, and
routine use are defined for purposes of these rules as they are defined
in 5 U.S.C. 552a(a)(2), (a)(3), (a)(4), (a)(5), and (a)(6).
(b) Commission means the Securities and Exchange Commission.
Sec. 200.303 Times, places and requirements for requests pertaining to
individual records in a record system and for the identification
of individuals making requests for access to the records pertaining to them.
(a) Place to make request. Any request by an individual to be
advised whether any system of records maintained by the Commission and
named by the individual contains a record pertaining to him or her, or
any request by an individual for access to a record pertaining to him or
her that is contained in a system of records maintained by the
Commission, shall be submitted by mail to the Office of Freedom of
Information and Privacy Act Operations, SEC, 100 F Street, NE.,
Washington, DC 20549, or by facsimile (202-772-9337). All requests will
be required to be put in writing and signed by the individual making the
request. In the case of requests for access that are made by mail, the
envelope should be clearly marked ``Privacy Act Request.''
(1) Information to be included in requests. Each request by an
individual concerning whether the Commission maintains in a system of
records a record that pertains to him, or for access to any record
pertaining to the individual that is maintained by the Commission in a
system of records, shall include such information as will assist the
Commission in identifying those records as to which the individual is
seeking information or access. Where practicable, the individual should
identify the system of records that is the subject of his request by
reference to the Commission's notices of systems of records, which are
published in the Federal Register, as required by section (e)(4) of the
Privacy Act, 5 U.S.C. 552a(e)(4). Where a system of records is compiled
on the basis of a specific identification scheme, the individual should
include in his request the identification number or other identifier
assigned to him. In the event the individual does not know the specific
identifier assigned to him, he shall provide other information,
including his full name, address, date of birth and subject matter of
the record, to aid in processing his request. If additional information
is required before a request can be processed, the individual shall be
so advised.
(2) Verification of identity. When the fact of the existence of a
record is not required to be disclosed under the Freedom of Information
Act, 5 U.S.C. 552, as amended, or when a record as to which access has
been requested is not required to be disclosed under that Act, the
individual seeking the information or requesting access to the record
shall be required to verify his or her identity before access will be
granted or information given. For this purpose, individuals shall appear
at the Office of Freedom of Information and Privacy Act Operations, SEC,
100 F Street, NE., Washington, DC 20549, during normal business hours of
9 a.m. to 5:30 p.m. E.S.T., Monday through Friday, or at one of the
Commission's Regional Offices. The addresses and business hours of those
offices are listed below:
Atlanta Regional Office--3475 Lenox Road, NE., Suite 1000, Atlanta,
GA 30326-1232. Office hours--9 a.m. to 5:30 p.m. E.T.
Boston Regional Office--33 Arch Street, 23rd Floor, Boston, MA
02110-1424. Office hours--9 a.m. to 5:30 p.m. E.T.
Chicago Regional Office--175 West Jackson Boulevard, Suite 900,
Chicago, IL 60604-2908. Office hours--8:45 a.m. to 5:15 p.m. C.T.
[[Page 80]]
Denver Regional Office--1801 California Street, Suite 1500, Denver,
CO 80202-2656. Office hours--8 a.m. to 4:30 p.m. M.T.
Fort Worth Regional Office--Burnett Plaza, Suite 1900, 801 Cherry
Street, Unit 18, Fort Worth, TX 76102-6882. Office hours--8:30 a.m. to
5 p.m. C.T.
Los Angeles Regional Office--5670 Wilshire Boulevard, 11th Floor,
Los Angeles, CA 90036-3648. Office hours--8:30 a.m. to 5 p.m. P.T.
Miami Regional Office--801 Brickell Avenue, Suite 1800, Miami, FL
33131-4901. Office hours--9 a.m. to 5:30 p.m. E.T.
New York Regional Office--3 World Financial Center, Suite 400, New
York, NY 10281-1022. Office hours--9 a.m. to 5:30 p.m. E.T.
Philadelphia Regional Office--701 Market Street, Suite 2000,
Philadelphia, PA 19106-1532. Office hours--9 a.m. to 5:30 p.m. E.T.
Salt Lake City Regional Office--15 W. South Temple Street, Suite
1800, Salt Lake City, UT 84101-1573. Office hours--8 a.m. to 4:30 p.m.
M.T.
San Francisco Regional Office--44 Montgomery Street, Suite 2600, San
Francisco, CA 94104-4716. Office hours--8:30 a.m. to 5 p.m. P.T.
None of the Commission's offices is open on Saturday, Sunday or the
following legal holidays: New Year's Day, Martin Luther King, Jr.'s
Birthday, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Veterans' Day, Columbus Day, Thanksgiving Day, and Christmas Day.
(3) Methods for verifying identity--appearance in person. An
individual seeking information as to records pertaining to him or access
to those records shall furnish documentation that may reasonably be
relied on to establish the individual's identity. Such documentation
might include a valid birth certificate, driver's license, employee or
military identification card, or medicare card.
(4) Method for verifying identity by mail. Where an individual
cannot appear at one of the Commission's Offices to verify his or her
identity, he or she must submit, along with the request for information
or access, a statement attesting to his or her identity. Where access is
being sought, the statement shall include a representation that the
requested records pertain to the individual and a statement that the
individual is aware that knowingly and willfully requesting or obtaining
records pertaining to an individual from the Commission under false
pretenses is a criminal offense. This statement shall be a sworn
statement, or in lieu of a sworn statement, an individual may submit an
unsworn statement to the same effect if it is signed by him or her as
true under penalty of perjury, dated, and in substantially the following
form:
(i) If executed outside the United States: ``I declare (or certify,
verify, or state) under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct.''
Executed on (date)____
(Signature)
(ii) If executed within the United States, its territories,
possessions, or commonwealths: ``I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and
correct.''
Executed on (date)____
(Signature)
(5) Additional procedures for verifying identity. When it appears
appropriate, there may be made such other arrangements for the
verification of identity as are reasonable under the circumstances and
appear to be effective to prevent unauthorized disclosure of, or access
to, individual records.
(b) Acknowledgement of requests for information pertaining to
individual records in a record system or for access to individual
records. (1) Except where an immediate acknowledgement is given for
requests made in person, the receipt of a request for information
pertaining to individual records in a record system will be acknowledged
within 10 days after the receipt of such request. Requests will be
processed as promptly as possible and a response to such requests will
be given within 30 days (excluding Saturdays, Sundays, and legal
holidays) unless, within the 30 day period and for cause shown, the
individual making the request is notified in writing that a longer
period is necessary.
(2) When an individual appears in person at the Office of Freedom of
Information and Privacy Act Operations, SEC, 100 F Street, NE.,
Washington, DC 20549, or at one of its Regional Offices to request
access to records pertaining to him, and such individual provides the
required information and verification of identity, the Commission's
staff, if practicable, will indicate at that time whether it is likely
that
[[Page 81]]
the individual will be given access to the records and, if so, when and
under what circumstances such access will be given. In the case of
requests received by mail, whenever practicable, acknowledgement of the
receipt of the request will be given within 10 days after receipt
(excluding Saturdays, Sundays, and legal holidays). The acknowledgement
will indicate, if practicable, whether or not access likely will be
granted and, if so, when and under what circumstances.
[40 FR 44068, Sept. 24, 1975, as amended at 41 FR 44698, Oct. 12, 1976;
47 FR 26819, June 22, 1982; 52 FR 2677, Jan. 26, 1987; 54 FR 40862, Oct.
4, 1989; 54 FR 50307, Dec. 5, 1989; 59 FR 5945, Feb. 9, 1994; 59 FR
12543, Mar. 17, 1994; 65 FR 55185, 55186, Sept. 13, 2000; 73 FR 32225,
June 5, 2008]
Sec. 200.304 Disclosure of requested records.
(a) Initial review. Requests by individuals for access to records
pertaining to them will be referred to the Commission's Privacy Act
Officer who initially will determine whether access will be granted,
Provided, however, That a Director of a staff Division of the Commission
or Office head, other than the General Counsel, whose zone of
responsibility relates to the record requested (see 17 CFR 200.13 et
seq.), may make a determination that access is not lawfully required to
be granted and should not be granted, in which case he, and not the
Privacy Act Officer, shall make the required notification to the
individual making the request.
(b) Grant of request for access. (1) If it is determined that a
request for access to records pertaining to an individual will be
granted, the individual will be advised by mail that access will be
given at the designated Office of the Commission or a copy of the
requested record will be provided by mail if the individual shall so
indicate. Where the individual requests that copies of the record be
mailed to him or requests copies of a record upon reviewing it at a
Commission Office, the individual shall pay the cost of making the
requested copies, as set forth in Sec. 200.310 of this subpart.
(2) In granting access to an individual to a record pertaining to
him, such steps shall be taken by the Commission's staff as are
necessary to prevent the unauthorized disclosure at the same time of
information pertaining to individuals other than the person making the
request or of other information that does not pertain to the individual.
(c) Denial of request for access. If it is determined that access
will not be granted, the individual making the request will be notified
of that fact and given the reasons why access is being denied. The
individual also will be advised (1) of his right to seek review by the
General Counsel of the intital decision to deny access, in accordance
with the procedures set forth in Sec. 200.308 of this subpart; and (2)
of his right ultimately to obtain judicial review pursuant to 5 U.S.C.
552a(g)(1)(A) of a final denial of access by the General Counsel.
(d) Time for acting on requests for access. Access to a record
pertaining to an individual normally will be granted or denied within 30
days (excluding Saturdays, Sundays and legal holidays) after the receipt
of the request for access unless the individual making the request is
notified in writing within the 30 day period that, for good cause shown,
a longer time is required. In such cases, the individual making the
request shall be informed in writing of the difficulties encountered and
an indication shall be given as to when it is anticipated that access
may be granted or denied.
(e) Authorization to allow designated person to review and discuss
records pertaining to another individual. An individual who is granted
access to records pertaining to him, and who appears at a Commission
Office to review the records, may be accompanied by another person of
his choosing. Where the records as to which access has been granted are
not required to be disclosed under provisions of the Freedom of
Information Act 5 U.S.C. 552, as amended, the individual requesting the
records, before being granted access, shall execute a written statement,
signed by him and the person accompanying him, which specifically
authorizes the latter individual to review and discuss the records. If
such authorization has not been given as described, the person who
[[Page 82]]
has accompanied the individual making the request will be excluded from
any review or discussion of the records.
(f) Exclusion for certain records. Nothing contained in these rules
shall allow an individual access to any information compiled in
reasonable anticipation of a civil action or proceeding.
[40 FR 44068, Sept. 24, 1975, as amended at 49 FR 13866, Apr. 9, 1984;
76 FR 71874, Nov. 21, 2011]
Sec. 200.305 Special procedure: Medical records.
(a) Statement of physician or mental health professional. When an
individual requests access to records pertaining to him that include
medical and/or psychological information, the Commission, if it deems it
necessary under the particular circumstances, may require the individual
to submit with the request a signed statement by his physician or a
mental health professional indicating that, in their opinion, disclosure
of the requested records or information directly to the individual will
not have an adverse effect on the individual.
(b) Designation of physician or mental health professional to
receive records. If the Commission believes, in good faith, that
disclosure of medical and/or psychological information directly to an
individual could have an adverse effect on that individual, the
individual may be asked to designate in writing a physician or mental
health professional to whom he would like the records to be disclosed,
and disclosure that otherwise would be made to the individual will
instead be made to the designated physician or mental health
professional.
Sec. 200.306 Requests for amendment or correction of records.
(a) Place to make requests. A written request by an individual to
amend or correct records pertaining to him or her may be hand delivered
during normal business hours to the SEC, Operations Center, Room 1418,
6432 General Green Way, Alexandria, VA 22312-2414, or be sent by mail to
the Office of Information and Privacy Act Operations, SEC, Operations
Center, 6432 General Green Way, Alexandria, VA 22312-2413, or by
facsimile (703-914-1149).
(1) Information to be included in requests. Each request to amend or
correct a Commission record shall reasonably describe the record sought
to be amended or corrected. Such description should include, for
example, relevant names, dates and subject matter to permit the record
to be located among the records maintained by the Commission. An
individual who has requested that a record pertaining to him be amended
or corrected will be advised promptly if the record cannot be located on
the basis of the description given and that further identifying
information is necessary before his request can be processed. An initial
evaluation of a request presented in person will be made immediately to
ensure that the request is complete and to indicate what, if any,
additional information will be required. Verification of the
individual's identity as set forth in Sec. 200.303(a) (2), (3), (4) and
(5) may also be required.
(2) Basis for amendment or correction. An individual requesting an
amendment or correction to a record pertaining to him shall specify the
substance of the amendment or correction and set forth facts and provide
such materials that would support his contention that the record
pertaining to him as maintained by the Commission is not accurate,
timely or complete, or that the record is not necessary and relevant to
accomplish a statutory purpose of the Commission as authorized by law or
by Executive Order of the President.
(b) Acknowledgement of requests for amendment or correction. Receipt
of a request to amend or correct a record pertaining to an individual
normally will be acknowledged in writing within 10 days after such
request has been received. When a request to amend or correct is made in
person, the individual making the request will be given a written
acknowledgement when the request is presented. The acknowledgement will
describe the request received and indicate when it is anticipated that
action will be taken on the request. No acknowledgement will be sent
when the request for amendment or correction will be reviewed, and an
[[Page 83]]
initial decision made, within 10 days from the date the request is
received.
[40 FR 44068, Sept. 24, 1975, as amended at 47 FR 26819, June 22, 1982;
65 FR 55186, Sept. 13, 2000]
Sec. 200.307 Review of requests for amendment or correction.
(a) Initial review. As in the case of requests for access, requests
by individuals for amendment or correction to records pertaining to them
will be referred to the Commission's Privacy Act Officer for an initial
determination, except that such requests may be considered by a Division
Director or Office Head (other than the General Counsel) as set forth in
Sec. 200.304(a) of this subpart.
(b) Standards to be applied in reviewing requests. In reviewing
requests to amend or correct records, the Privacy Act Officer, or
Division or Office head, will be guided by the criteria set forth in 5
U.S.C. 552a(e)(1), i.e., that records maintained by the Commission shall
contain only such information as is necessary and relevant to accomplish
a statutory purpose of the Commission as required by statute or
Executive Order of the President and that such information also be
accurate, timely, and complete. These criteria will be applied whether
the request is to add material to a record or to delete information from
a record.
(c) Time for acting on requests. Initial review of a request by an
individual to amend or correct a record pertaining to him shall be
completed as promptly as is reasonably possible and normally within 30
days (excluding Saturdays, Sundays and legal holidays) from the date the
request was received, unless unusual circumstances preclude completion
of review within that time. If the anticipated completion date indicated
in the acknowledgement cannot be met, the individual requesting the
amendment will be advised in writing of the delay and the reasons
therefor, and also advised when action is expected to be completed.
(d) Grant of requests to amend or correct records. If a request to
amend or correct a record is granted in whole or in part, the Privacy
Act Officer will: (1) Advise the individual making the request in
writing of the extent to which it has been granted; (2) amend or correct
the record accordingly; and (3) where an accounting of disclosures of
the record has been kept pursuant to 5 U.S.C. 552a(c), advise all
previous recipients of the record of the fact that the record has been
amended or corrected and the substance of the amendment or correction.
(e) Denial of requests to amend or correct records. If an
individual's request to amend or correct a record pertaining to him is
denied in whole or in part, the Privacy Act Officer will:
(1) Promptly advise the individual making the request in writing of
the extent to which the request has been denied;
(2) State the reasons for the denial of the request;
(3) Describe the procedures established by the Commission to obtain
further review within the Commission of the request to amend or correct,
including the name and address of the person to whom the appeal is to be
addressed; and
(4) Inform the individual that the Privacy Act Officer will provide
information and assistance to the individual in perfecting an appeal of
the initial decision.
[40 FR 44068, Sept. 24, 1975, as amended at 49 FR 13866, Apr. 9, 1984;
76 FR 71874, Nov. 21, 2011]
Sec. 200.308 Appeal of initial adverse agency determination as to access
or as to amendment or correction.
(a) Administrative review. Any person who has been notified pursuant
to Sec. 200.304(c) that his request for access to records pertaining to
him has been denied, or pursuant to Section 307(e) of this subpart that
his request for amendment or correction has been denied in whole or in
part, or who has received no response to a request for access or to
amend within 30 days (excluding Saturdays, Sundays and legal holidays)
after his request was received by the Office of Information and Privacy
Act Operations (or within such extended period as may be permitted in
accordance with Sec. Sec. 200.304(d) and 200.307(c) of this subpart),
may appeal the adverse determination or failure to respond to the
General Counsel.
[[Page 84]]
(1) The appeal shall be in writing and shall describe the record in
issue and set forth the proposed amendment or correction and the reasons
therefor.
(2) The appeal shall be delivered or sent by mail to the Office of
Information and Privacy Act Operations, SEC, Operations Center, 6432
General Green Way, Alexandria, VA 22312-2413, or by facsimile (703-914-
1149).
(3) The applicant, if he wishes, may state such facts and cite such
legal or other authorities as he may consider appropriate in support of
his application.
(4) The General Counsel will make a determination with respect to
any appeal within 30 days after the receipt of such appeal (excluding
Saturdays, Sundays and legal holidays), unless for good cause shown, the
General Counsel shall extend that period. If such an extension is made,
the individual who is appealing shall be advised in writing of the
extension, the reasons therefor, and the anticipated date when the
appeal will be decided.
(5) In considering an appeal from a denial of a request to amend or
correct a record, the General Counsel shall apply the same standards as
set forth in Sec. 200.307(b).
(6) If the General Counsel shall conclude that access should be
granted, he or she shall issue an order granting access and instructing
the Privacy Act Officer to comply with Sec. 200.304(b).
(7) If the General Counsel shall conclude that the request to amend
or correct the record should be granted in whole or in part, he or she
shall issue an order granting the requested amendment or correction in
whole or in part and instructing the Privacy Act Officer to comply with
the requirements of Sec. 200.307(d) of this subpart, to the extent
applicable.
(8) If the General Counsel affirms the initial decision denying
access, he or she shall issue an order denying access and advising the
individual seeking access of (i) The order; (ii) the reasons for denying
access; and (iii) the individual's right to obtain judicial review of
the decision pursuant to 5 U.S.C. 552a(g)(1)(B).
(9) If the General Counsel determines that the decision of the
Privacy Act Officer denying a request to amend or correct a record
should be upheld, he or she shall issue an order denying the request and
the individual shall be advised of
(i) The order refusing to amend or correct the record and the
reasons therefor;
(ii) His or her right to file a concise statement setting forth his
or her disagreement with the General Counsel's decision not to amend or
correct the record;
(iii) The procedures for filing such a statement of disagreement
with the General Counsel;
(iv) The fact that any such statement of disagreement will be made
available to anyone to whom the record is disclosed, together with, if
the General Counsel deems it appropriate, a brief statement setting
forth the General Counsel's reasons for refusing to amend or correct;
(v) The fact that prior recipients of the record in issue will be
provided with the statement of disagreement and the General Counsel's
statement, if any, to the extent that an accounting of such disclosures
has been maintained pursuant to 5 U.S.C. 552a(c); and
(vi) The individual's right to seek judicial review of the General
Counsel's refusal to amend or correct, pursuant to 5 U.S.C.
552a(g)(1)(A).
(10) In appropriate cases the General Counsel may, in his or her
sole and unfettered discretion, refer matters requiring administrative
review of initial decisions to the Commission for determination and the
issuance, where indicated, of orders.
(b) Statement of disagreement. As noted in paragraph (a)(9)(ii) of
this section, an individual may file with the General Counsel a
statement setting forth his disagreement with the General Counsel's
denial of his request to amend or correct a record.
(1) Such statement of disagreement shall be delivered or sent by
mail to the Office of Freedom of Information and Privacy Act Operations,
SEC, Operations Center, 6432 General Green Way, Alexandria, VA 22312-
2413, or by facsimile (703-914-1149), within 30 days after receipt by
the individual of the General Counsel's order denying the amendment or
correction. For good
[[Page 85]]
cause shown this period can be extended for a reasonable time.
(2) Such statement of disagreement shall concisely state the basis
for the individual's agreement. Generally a statement should be no more
than two pages in length, except an individual may submit a slightly
longer statement if it is necessary to set forth his disagreement
effectively. Unduly lengthy or irrelevant materials will be returned to
the individual by the General Counsel for appropriate revisions before
they become a permanent part of the individual's record.
(3) The record about which a statement of disagreement has been
filed will clearly note which part of the record is disputed and the
General Counsel will provide copies of the statement of disagreement
and, if the General Counsel deems it appropriate, provide a concise
statement of his or her reasons for refusing to amend or correct the
record, to persons or other agencies to whom the record has been or will
be disclosed.
(4) In appropriate cases, the General Counsel may, in his or her
sole and unfettered discretion, refer matters concerning statements of
disagreement to the Commission for disposition.
[40 FR 44068, Sept. 24, 1975, as amended at 42 FR 40190, Aug. 9, 1977;
47 FR 26819, June 22, 1982; 49 FR 13866, Apr. 9, 1984; 65 FR 55186,
Sept. 13, 2000; 76 FR 71874, Nov. 21, 2011]
Sec. 200.309 General provisions.
(a) Extensions of time. Pursuant to Sec. Sec. 200.303(b),
200.304(d), 200.307(c) and 200.308(a)(4) of this subpart, the time
within which a request for information, access or amendment by an
individual with respect to records maintained by the Commission that
pertain to him normally would be processed may be extended for good
cause shown or because of unusual circumstances. As used in these rules,
good cause and unusual circumstances shall include, but only to the
extent reasonably necessary to the proper processing of a particular
request:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
Office processing the request. Many records of the Commission are stored
in Federal Records Centers in accordance with law--including many of the
documents which have been on file with the Commission for more than 2
years--and cannot be made available promptly. Other records may
temporarily be located at a Regional Office of the Commission. Any
person who has requested for personal examination a record stored at the
Federal Records Center or temporarily located in a Regional Office of
the Commission will be notified when the record will be made available
to him.
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which may be demanded
in a single request. While every reasonable effort will be made fully to
comply with each request as promptly as possible on a first-come, first-
served basis, work done to search for, collect and appropriately examine
records in response to a request for a large number of records will be
contingent upon the availability of processing personnel in accordance
with an equitable allocation of time to all members of the public who
have requested or wish to request records.
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request, or among two or more components within
the Commission having substantial subject-matter interest therein.
(b) Effective date of action. Whenever it is provided in this
Subpart that an acknowledgement or response to a request will be given
by specific times, deposit in the mails of such acknowledgement or
response by that time, addressed to the person making the request, will
be deemed full compliance.
(c) Records in use by a member of the Commission or its staff.
Although every effort will be made to make a record in use by a member
of the Commission or its staff available when requested, it may
occasionally be necessary to delay making such a record available when
doing so at the time the request is made would seriously interfere with
the work of the Commission or its staff.
(d) Missing or lost records. Any person who has requested a record
or a copy of
[[Page 86]]
a record pertaining to him will be notified if the record sought cannot
be found. If he so requests, he will be notified if the record
subsequently is found.
(e) Oral requests; misdirected written requests--(1) Telephone and
other oral requests. Before responding to any request by an individual
for information concerning whether records maintained by the Commission
in a system of records pertain to him or to any request for access to
records by an individual, such request must be in writing and signed by
the individual making the request. The General Counsel will not
entertain any appeal from an alleged denial or failure to comply with an
oral request. Any person who has orally requested information or access
to records pertaining to him that he believes to have been improperly
denied to him should resubmit his request in appropriate written form in
order to obtain proper consideration and, if need be, administrative
review.
(2) Misdirected written requests. The Commission cannot assure that
a timely or satisfactory response will be given to written requests for
information, access or amendment by an individual with respect to
records pertaining to him that are directed to the Commission other than
in a manner prescribed in Sec. Sec. 200.303(a), 200.306(a),
200.308(a)(2), and 200.310 of this subpart. Any staff member who
receives a written request for information, access or amendment should
promptly forward the request to the Privacy Act Officer. Misdirected
requests for records will be considered to have been received by the
Commission only when they have been actually received by the Privacy Act
Officer in cases under Sec. 200.308(a)(2). The General Counsel will not
entertain any appeal from an alleged denial or failure to comply with a
misdirected request, unless it is clearly shown that the request was in
fact received by the Privacy Act Officer.
[40 FR 44068, Sept. 24, 1975, as amended at 49 FR 13867, Apr. 9, 1984;
59 FR 5945, Feb. 9, 1994; 73 FR 32226, June 5, 2008]
Sec. 200.310 Fees.
(a) A request by an individual for copies of a record pertaining to
him or her that is maintained by the Commission may be sent by mail to
the Office of Freedom of Information and Privacy Act Operations, SEC,
Operations Center, 6432 General Green Way, Alexandria, VA 22312-2413, or
by facsimile (703-914-1149). There will be no charge assessed to the
individual for the Commission's expense involved in searching for or
reviewing the record. Copies of the Commission's records will be
provided by a commercial copier or by the Commission at rates
established by a contract between the copier and the Commission.
(b) Waiver or reduction of fees. Whenever the Privacy Act Officer
determines that good cause exists to grant a request for reduction or
waiver of fees for copying documents, he or she may reduce or waive any
such fees.
(Pub. L. 87-592, 76 Stat. 394, 15 U.S.C. 78d-1, 78d-2; Pub. L. 93-502;
11 U.S.C. 901, 1109(a))
[42 FR 56727, Oct. 28, 1977, as amended at 47 FR 26819, June 22, 1982;
49 FR 12686, Mar. 30, 1984; 50 FR 50287, Dec. 10, 1985; 65 FR 55186,
Sept. 13, 2000]
Sec. 200.311 Penalties.
Title 18 U.S.C. 1001 makes it a criminal offense, subject to a
maximum fine of $10,000, or imprisonment for not more than 5 years or
both, to knowingly and willingly make or cause to be made any false or
fradulent statements or representations in any matter within the
jurisdiction of any agency of the United States. 5 U.S.C. 552a(i) makes
it a misdemeanor punishable by a fine of not more than $5,000 for any
person knowingly and willfully to request or obtain any record
concerning an individual from the Commission under false pretenses. 5
U.S.C. 552a(i) (1) and (2) provide criminal penalties for certain
violations of the Privacy Act by officers and employees of the
Commission.
Sec. 200.312 Specific exemptions.
Pursuant to section (k) of the Privacy Act of 1974, the Chairman of
the Securities and Exchange Commission, with the concurrence of the
Commission, has deemed it necessary to promulgate the following
exemptions to specified provisions of the Privacy Act:
(a) Pursuant to, and limited by 5 U.S.C. 552a(k)(2), the following
systems of records maintained by the Commission shall be exempted from 5
U.S.C.
[[Page 87]]
552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) and 17 CFR
200.303, 200.304, and 200.306, insofar as they contain investigatory
materials compiled for law enforcement purposes:
(1) Enforcement Files;
(2) Office of General Counsel Working Files;
(3) Office of the Chief Accountant Working Files;
(4) Name-Relationship Index System;
(5) Rule 102(e) of the Commission's Rules of Practice--Appearing or
Practicing Before the Commission;
(6) Agency Correspondence Tracking System;
(7) Tips, Complaints, and Referrals (TCR) Records;
(8) SEC Security in the Workplace Incident Records; and
(9) Investor Response Information System (IRIS).
(b) Pursuant to 5 U.S.C. 552a(k)(5), the system of records
containing the Commission's Disciplinary and Adverse Actions, Employee
Conduct, and Labor Relations Files shall be exempt from sections (c)(3),
(d), (e)(1), (e)(4)(G), (H), and (I), and (f) of the Privacy Act, 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (e)(4)(I), and
(f), and 17 CFR 200.303, 200.304, and 200.306 insofar as they contain
investigatory material compiled to determine an individual's
suitability, eligibility, and qualifications for Federal civilian
employment or access to classified information, but only to the extent
that the disclosure of such material would reveal the identity of a
source who furnished information to the Government under an express
promise that the identity of the source would be held in confidence, or,
prior to September 27, 1975, under an implied promise that the identity
of the source would be held in confidence.
[40 FR 44073, Sept. 24, 1975, as amended at 52 FR 2677, Jan. 26, 1987;
54 FR 24332, June 7, 1989; 54 FR 46373, Nov. 3, 1989; 60 FR 32795, June
23, 1995; 65 FR 55186, Sept. 13, 2000; 76 FR 57637, Sept. 16, 2011]
Sec. 200.313 Inspector General exemptions.
(a) Pursuant to section (j) of the Privacy Act of 1974, the Chairman
of the Securities and Exchange Commission, with the concurrence of the
Commission, has deemed it necessary to promulgate the following
exemptions to specified provisions of the Privacy Act:
(1) Pursuant to, and limited by 5 U.S.C. 552a(j)(2), the system of
records maintained by the Office of Inspector General of the Commission
that contains the Investigative Files shall be exempted from the
provisions of 5 U.S.C. 552a, except subsections (b), (c) (1) and (2),
(e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i), and
17 CFR 200.303, 200.304, 200.306, 200.307, 200.308, 200.309 and 200.310,
insofar as the system contains information pertaining to criminal law
enforcement investigations.
(2) [Reserved]
(b) Pursuant to section (k) of the Privacy Act of 1974, the Chairman
of the Securities and Exchange Commission, with the concurrence of the
Commission, has deemed it necessary to promulgate the following
exemptions to specified provisions of the Privacy Act:
(1) Pursuant to, and limited by 5 U.S.C. 552a(k)(2), the system of
records maintained by the Office of Inspector General of the Commission
that contains the Investigative Files shall be exempted from 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) and 17 CFR
200.303, 200.304, and 200.306, insofar as it contains investigatory
materials compiled for law enforcement purposes.
(2) [Reserved]
[55 FR 19872, May 14, 1990]
Subpart I_Regulations Pertaining to Public Observation of Commission
Meetings
Authority: 5 U.S.C. 552b, unless otherwise noted. Section 200.410
also is issued under 29 U.S.C. 794.
Source: 42 FR 14693, Mar. 16, 1977, unless otherwise noted.
Sec. 200.400 Open meetings.
Except as otherwise provided in this subpart, meetings of the
Commission shall be open to public observation.
Sec. 200.401 Definitions.
As used in this subpart:
(a) Meeting means the joint deliberations of at least the number of
individual members of the Securities and
[[Page 88]]
Exchange Commission required to take action on behalf of the Commission
where such deliberations determine or result in the joint conduct or
disposition of official Commission business, but does not include
deliberations required or permitted by Sec. 200.42 or Sec. 200.43
(respecting seriatim and duty officer disposition of Commission
business, respectively), or by Sec. Sec. 200.403, 200.404, or 200.405
(respecting whether particular Commission deliberations shall be open or
closed and related matters).
(b) Portion of a meeting means the consideration during a meeting of
a particular topic or item separately identified in the notice of
Commission meetings described in Sec. 200.403.
(c) Open, when used in the context of a Commission meeting or a
portion thereof, means that the public may attend and observe the
deliberations of the Commission during such meeting or portion of a
meeting, consistent with the provisions of Sec. 200.410 (respecting
decorum at meetings and other related matters).
(d) Closed, when used in the context of a Commission meeting or a
portion thereof, means that the public may not attend or observe the
deliberations of the Commission during such meeting or portion of a
meeting.
(e) Announce, and make publicly available, when used in the context
of the dissemination of information, mean, in addition to any specific
method of publication described in this subpart, that a document
containing the information in question will be posted for public
inspection in, or adjacent to, the lobby of the Commission's
headquarters offices, and will be available to the public through the
Commission's Public Reference Section and the Commission's Office of
Public Affairs, all in Washington, DC
(f) The term likely to, as used in Sec. 200.402, illustrating the
circumstances under which Commission meetings may be closed, and the
circumstances in which information may be deleted from the notice of
Commission meetings, means that it is more probable than not that the
discussion of Commission business, or publication of information,
reasonably could encompass matters which the Commission is authorized,
by the Government in the Sunshine Act, Pub. L. 94-409, as implemented by
this subpart, to consider or discuss at a closed meeting (or a closed
portion of a meeting).
(g) The term financial institution, as used in Sec. 200.402(a),
authorizing the closure of certain Commission meetings, includes, but is
not limited to, banks, savings and loan associations, credit unions,
brokers and dealers in securities or commodities, exchanges dealing in
securities or commodities, national securities associations, investment
companies, investment advisers, securities industry self-regulatory
organizations subject to 15 U.S.C. 78s, and institutional managers as
defined in 15 U.S.C. 78m(f).
(h) The term person includes, but is not limited to, any
corporation, partnership, company, association, joint stock corporation,
business trust, unincorporated organization, government, political
subdivision, agency, or instrumentality of a government.
[42 FR 14693, Mar. 16, 1977, as amended at 60 FR 17202, Apr. 5, 1995]
Sec. 200.402 Closed meetings.
(a) Nonpublic matters. Pursuant to the general or special procedures
for closing Commission meetings, as set forth in Sec. 200.404 or Sec.
200.405, respectively, a meeting, or any portion thereof, shall be
closed to public observation where the Commission determines that such
meeting, or a portion thereof, is likely to:
(1) Disclose matters specifically authorized under criteria
established by an executive order to be kept secret in the interests of
national defense or foreign policy, and in fact properly classified
pursuant to such executive order.
(2) Relate solely to the internal personnel rules and practices of
the Commission or any other agency, including, but not limited to,
discussion concerning:
(i) Operation rules, guidelines, and manuals of procedure for
investigators, attorneys, accountants, and other employees, other than
those rules, guidelines, and manuals which establish legal requirements
to which members of the public are expected to conform; or
(ii) Hiring, termination, promotion, discipline, compensation, or
reward of
[[Page 89]]
any Commission employee or member, the existence, investigation, or
disposition of a complaint against any Commission employee or member,
the physical or mental condition of any Commission employee or member,
the handling of strictly internal matters, which would tend to infringe
on the privacy of the staff or members of the Commission, or similar
subjects.
(3) Disclose matters specifically exempted from disclosure by
statute (other than 5 U.S.C. 552): Provided, That such statute requires
that the matters be withheld from the public in such a manner as to
leave no discretion on the issue, or establishes particular criteria for
withholding or refers to particular types of matters to be withheld.
(4) Disclose trade secrets and commercial or financial information
obtained from a person and privileged or confidential, including, but
not limited to:
(i) Information contained in letters of comment in connection with
registration statements, applications for registration or other material
filed with the Commission, replies thereto, and related material which
is deemed to have been submitted to the Commission in confidence or to
be confidential at the instance of the registrant or person who has
filed such material unless the contrary clearly appears; and
(ii) Information contained in any document submitted to or required
to be filed with the Commission where the Commission has undertaken
formally or informally to receive such submission or filing for its use
or the use of specified persons only, such as preliminary proxy material
filed pursuant to Rule 14a-6 under the Securities Exchange Act (17 CFR
240.14a-6), reports filed pursuant to Rule 316(a) under the Securities
Act (17 CFR 230.316(a)), agreements filed pursuant to Rule 15c3-1 under
the Securities Exchange Act, 17 CFR 240.15c3-1, schedules filed pursuant
to Part I of Form X-17A-5 (17 CFR 249.617) in accordance with Rule 17a-
5(b)(3) under the Securities Exchange Act (17 CFR 240.17a-5(b)(3)),
statements filed pursuant to Rule 17a-5(k)(1) under the Securities
Exchange Act (17 CFR 240.17a-5(k)(1)), confidential reports filed
pursuant to Rules 17a-9, 17a-10, 17a-12 and 17a-16 under the Securities
Exchange Act (17 CFR 240.17a-9, 240.17a-10, 240.17a-12, and 240.17a-16),
and any information filed with the Commission and confidential pursuant
to section 45 of the Investment Company Act of 1940, 15 U.S.C. 80a-44,
or Rule 45a-1 thereunder (17 CFR 270.45a-1); and
(iii) Information contained in reports, summaries, analyses,
letters, of memoranda arising out of, in anticipation of, or in
connection with, an examination or inspection of the books and records
of any person or any other investigation.
(5) Involve accusing any person of a crime, or formally censuring
any person, including, but not limited to, consideration of whether to:
(i) Institute, continue, or conclude administrative proceedings or
any formal or informal investigation or inquiry, whether public or
nonpublic, against or involving any person, alleging a violation of any
provision of the federal securities laws, or the rules and regulations
thereunder, or any other statute or rule a violation of which is
punishable as a crime; or
(ii) Commence, participate in, or terminate judicial proceedings
alleging a violation of any provision of the federal securities laws, or
the rules and regulations thereunder, or any other statute or rule a
violation of which is punishable as a crime; or
(iii) Issue a report or statement discussing the conduct of any
person and the relationship of that conduct to possible violations of
any provision of the federal securities laws, or the rules and
regulations thereunder, or any other statute or rule a violation of
which is punishable as a crime; or
(iv) Transmit, or disclose, with or without recommendation, any
Commission memorandum, file, document, or record to the Department of
Justice, a United States Attorney, any federal, state, local, or foreign
governmental authority or foreign securities authority, any professional
association, or any securities industry self-regulatory organization, in
order that the recipient may consider the institution of proceedings
against any person or the taking of any action that might involve
accusing any person of a crime or formally censuring any person; or
[[Page 90]]
(v) Seek from, act upon, or act jointly with respect to, any
information, file, document, or record where such action could lead to
accusing any person of a crime or formally censuring any person by any
entity described in paragraph (a)(5)(iv) of this section.
(6) Disclose information of a personal nature, where disclosure
would constitute a clearly unwarranted invasion of personal privacy.
(7)(i) Disclose investigatory records compiled for law enforcement
purposes, or information which, if written, would be contained in such
records, to the extent that the production of such records would:
(A) Interfere with enforcement activities undertaken, or likely to
be undertaken, by the Commission or the Department of Justice, or any
United States Attorney, or any Federal, State, local, or foreign
governmental authority or foreign securities authority, any professional
association, or any securities industry self-regulatory organization;
(B) Deprive a person of a right to a fair trial or an impartial
adjudication;
(C) Constitute an unwarranted invasion of personal privacy;
(D) Disclose the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source;
(E) Disclose investigative techniques and procedures; or
(F) Endanger the life or physical safety of law enforcement
personnel.
(ii) The term investigatory records includes, but is not limited to,
all documents, records, transcripts, evidentiary materials of any
nature, correspondence, related memoranda, or work product concerning
any examination, any investigation (whether formal or informal), or any
related litigation, which pertains to, or may disclose, the possible
violation by any person of any provision of any statute, rule, or
regulation administered by the Commission, by any other Federal, State,
local, or foreign governmental authority or foreign securities
authority, by any professional association, or by any securities
industry self-regulatory organization. The term investigatory records
also includes all written communications from, or to, any person
complaining or otherwise furnishing information respecting such possible
violations, as well as all correspondence or memoranda in connection
with such complaints or information.
(8) Disclose information contained in, or related to, any
examination, operating, or condition report prepared by, on behalf of,
or for the use of, the Commission, any other federal, state, local, or
foreign governmental authority or foreign securities authority, or any
securities industry self-regulatory organization, responsible for the
regulation or supervision of financial institutions.
(9) Disclose information the premature disclosure of which would be
likely to
(i)(A) Lead to significant financial speculation in currencies,
securities, or commodities, including, but not limited to, discussions
concerning the proposed or continued suspension of trading in any
security, or the possible investigation of, or institution of activity
concerning, any person with respect to conduct involving or affecting
publicly-traded securities, or
(B) Significantly endanger the stability of any financial
institution; or
(ii) Significantly frustrate the implementation, or the proposed
implementation, of any action by the Commission, any other federal,
state, local or foreign governmental authority, any foreign securities
authority, or any securities industry self-regulatory organization:
Provided, however, That this paragraph (a)(9)(ii) shall not apply in any
instance where the Commission has already disclosed to the public the
precise content or nature of its proposed action, or where the
Commission is expressly required by law to make such disclosure on its
own initiative prior to taking final agency action on such proposal.
(10) Specifically concern the Commission's consideration of, or its
actual: Issuance of a subpoena (whether by the Commission directly or by
any Commission employee or member); participation in a civil action or
proceeding,
[[Page 91]]
an action in a foreign court or international tribunal, or an
arbitration; or initiation, conduct, or disposition of a particular case
of formal adjudication pursuant to the procedures in 5 U.S.C. 554, or
otherwise involving a determination on the record after opportunity for
a hearing; including, but not limited to, matters involving
(i) The institution, prosecution, adjudication, dismissal,
settlement, or amendment of any administrative proceeding, whether
public or nonpublic; or
(ii) The commencement, settlement, defense, or prosecution of any
judicial proceeding to which the Commission, or any one or more of its
members or employees, is or may become a party; or
(iii) The commencement, conduct, termination, status, or disposition
of any inquiry, investigation, or proceedings to which the power to
issue subpoenas is, or may become, attendant; or
(iv) The discharge of the Commission's responsibilities involving
litigation under any statute concerning the subject of bankruptcy; or
(v) The participation by the Commission (or any employee or member
thereof) in, or involvement with, any civil judicial proceeding or any
administrative proceeding, whether as a party, as amicus curiae, or
otherwise; or
(vi) The disposition of any application for a Commission order of
any nature where the issuance of such an order would involve a
determination on the record after opportunity for a hearing.
(b) Interpretation of exemptions. The examples set forth Sec.
200.402(a)(1) through (10) of particular matters which may be the
subject of closed Commission deliberations are to be construed as
illustrative, but not as exhaustive, of the scope of those exemptions.
(c) Public interest determination. Notwithstanding the provisions of
Sec. 200.402(a) (concerning the closing of Commission meetings), but
subject to the provisions of Sec. 200.409(a) (respecting the right of
certain persons to petition for the closing of a Commission meeting),
the Commission may conduct any meeting or portion of a meeting in public
where the Commission determines, in its discretion, that the public
interest renders it appropriate to open such a meeting.
(d) Nonpublic matter in announcements. The Commission may delete
from the notice of Commission meetings described in Sec. 200.403, from
the announcements concerning closed meetings described in Sec. Sec.
200.404(b) and 200.405(c), and from the General Counsel's certification
described in Sec. 200.406, any information or description the
publication of which would be likely to disclose matters of the nature
described in Sec. 200.402(a) (concerning the closing of Commission
meetings).
(Pub. L. 94-409, 90 Stat. 1241)
[42 FR 14693, Mar. 16, 1977; 47 FR 37077, Aug. 25, 1982, as amended at
54 FR 24332, June 7, 1989]
Sec. 200.403 Notice of Commission meetings.
(a) Content of notice. (1) In the case of open meetings, or meetings
closed pursuant to the procedures specified in Sec. 200.404, the
Commission shall announce the items to be considered. For each such
item, the announcement shall include:
(i) A brief description of the generic or precise subject matter to
be discussed;
(ii) The date, place, and approximate time at which the Commission
will consider the matter;
(iii) Whether the meeting, or the various portions thereof, shall be
open or closed; and
(iv) The name and telephone number of the Commission official
designated to respond to requests for information concerning the meeting
at which the matter is to be considered.
(2) Every announcement of a Commission meeting described in this
subsection, or any amended announcement described in paragraph (c),
shall be transmitted to the Federal Register for publication.
(b) Time of notice. The announcement of Commission meetings referred
to in paragraph (a) shall be made publicly available (and submitted
immediately thereafter to the Federal Register for publication) at least
one week prior to the consideration of any item listed
[[Page 92]]
therein, except where a majority of the members of the Commission
determine, by a recorded vote, that Commission business requires earlier
consideration of the matter. In the event of such a determination, the
announcement shall be made publicly available (and submitted to the
Federal Register) at the earliest practicable time.
(c) Amendments to notice. (1)(i) The time or place of a meeting may
be changed following any public announcement that may be required by
paragraph (a). In the event of such action, the Commission shall
announce the change at the earliest practicable time.
(ii) The subject matter of a meeting, or the determination of the
Commission to open or close a meeting (or a portion of a meeting), may
be changed following any public announcement that may be required by
paragraph (a), if (A) a majority of the entire membership of the
Commission determines, by a recorded vote, that Commission business so
requires and that no earlier announcement of the change was possible;
and (B) the Commission publicly announces such change and the vote of
each member upon such change at the earliest practicable time.
(2) Notwithstanding the provisions of this paragraph (c), matters
which have been announced for Commission consideration may be deleted,
or continued in whole or in part to the next scheduled Commission
meeting, without notice.
(d) Notice of meetings closed pursuant to special procedure. In the
case of meetings closed pursuant to the special procedures set forth in
Sec. 200.405, the Commission shall make publicly available, in whole or
in summary form,
(1) A brief description of the general subject matter considered or
to be considered, and
(2) The date, place, and approximate time at which the Commission
will, or did, consider the matter. The announcement described in this
subsection shall be made publicly available at the earliest practicable
time, and may be combined, in whole or in part, with the announcement
described in paragraph (a).
Note: The Commission intends, to the extent convenient, to adhere to
the following schedule in organizing its weekly agenda: Closed meetings
to consider matters concerning the enforcement of the federal securities
laws and the conduct of related investigations will generally be held on
Tuesdays and on Thursday afternoons. An open meeting will generally be
held each Thursday morning to consider matters of any appropriate
nature. On Wednesdays, either open or closed meetings, or both, will
generally be held according to the requirements of the Commission's
agenda for the week in question. Normally, no meetings will be scheduled
on Mondays, Fridays, Saturdays, Sundays, or legal holidays.
The foregoing tentative general schedule is set forth for the
guidance of the public, but is not, in any event, binding upon the
Commission. In every case, the scheduling of Commission meetings shall
be determined by the demands of Commission business, consistent with the
requirements of this subpart I. When feasible, the Commission will
endeavor to announce the subject matter of all then-contemplated open
meetings during a particular month at least one week prior to the
commencement of that month.
When and if convenient after the conclusion of a closed Commission
meeting, the Commission will endeavor to make publicly available a
notice describing (subject to the provision in Sec. 200.402(d)
regarding nonpublic matter in announcements) the items considered at
that meeting and any action taken thereon.
Sec. 200.404 General procedure for determination to close meeting.
(a) Action to close meeting. Action to close a meeting pursuant to
Sec. 200.402(a) or (c) shall be taken only upon a vote of a majority of
the entire membership of the Commission. A separate vote of the
Commission members shall be taken with respect to each Commission
meeting a portion or portions of which are proposed to be closed to the
public pursuant to Sec. 200.402(a), or with respect to any information
which is proposed to be withheld under Sec. 200.402(d); Provided,
however, That a single vote may be taken with respect to a series of
meetings, a portion or portions of which are proposed to be closed, or
with respect to any information concerning such series of meetings, so
long as each meeting in such series relates to the same matters and is
scheduled to be held no more than thirty days after the initial meeting
in such series. The vote of each Commission member participating in such
vote shall be recorded and no proxies shall be allowed.
[[Page 93]]
(b) Announcement of action to close meeting. Within one day of any
vote pursuant to paragraph (a) of this section or Sec. 200.409(a)
(relating to review of Commission determinations to open a meeting), the
Commission shall make publicly available:
(1) A written record reflecting the vote of each participating
member of the Commission on the question; and
(2) In the case of a meeting or portion thereof to be closed to the
public, a written explanation of the Commission's action closing the
meeting or a portion thereof, together with a list describing
generically or specifically the persons expected to attend the meeting
and their affiliation; and
(3) For every closed meeting, the certification executed by the
Commission's General Counsel as described in Sec. 200.406.
Sec. 200.405 Special procedure for determination to close meeting.
(a) Finding. Based, in part, on a review of several months of its
meetings, as well as the legislative history of the Sunshine Act, the
Commission finds that a majority of its meetings may properly be closed
to the public pursuant to Sec. 200.402(a) (4), (8), (9)(i), or (10), or
any combination thereof.
(b) Action to close meeting. The Commission may, by recorded vote of
a majority of its members at the commencement of any meeting or portion
thereof, determine to close any meeting or a portion thereof properly
subject to being closed pursuant to Sec. 200.402(a) (4), (8), (9)(i),
or (10), or any combination thereof. The procedure described in this
rule may be utilized notwithstanding the fact that a meeting or portion
thereof properly subject to being closed pursuant to Sec. 200.402(a)
(4), (8), (9)(i), or (10), or any combination thereof, could also be
closed pursuant to Sec. 200.402(a) (1), (2), (3), (5), (6), (7), or
(9)(ii), or any combination thereof.
(c) Announcement of action to close meeting. In the case of a
meeting or a portion of a meeting closed pursuant to this rule, as soon
as practicable the Commission shall make publicly available:
(1) A written record reflecting the vote of each participating
member of the Commission to close the meeting; and
(2) The certification described in Sec. 200.406, executed by the
Commission's General Counsel.
Sec. 200.406 Certification by the General Counsel.
For every Commission meeting closed pursuant to Sec. 200.402(a) (1)
through (10), the General Counsel of the Commission (or, in his or her
absence, the attorney designated by General Counsel pursuant to Sec.
200.21) shall publicly certify that, in his or her opinion, the meeting
may be closed to the public and shall state each relevant exemptive
provision.
Sec. 200.407 Transcripts, minutes, and other documents concerning
closed Commission meetings.
(a) Record of closed meetings. Except as provided in Sec.
200.407(b), the Commission's Secretary shall prepare a complete
transcript or electronic recording adequate to record fully the
proceedings of each closed meeting, or closed portion of a meeting.
(b) Minutes of closed meetings. In the case of a meeting, or portion
of a meeting, closed to the public pursuant to Sec. 200.402(a) (8),
(9)(i), or (10), the Secretary may, in his or her discretion or at the
direction of the Commission, prepare either the transcript or recording
described in Sec. 200.407(a), or a set of minutes. Such minutes shall
fully and clearly describe all matters discussed and shall provide a
full and accurate summary of any actions taken, and the reasons
therefor, including a description of each of the views expressed on any
item and the record of any rollcall vote (reflecting the vote of each
participating Commission member on the question). All documents
specifically considered by the Commission in connection with any action
shall be identified in such minutes are maintained.
(c) Retention of certificate and statement. The Secretary shall
retain a copy of every certification executed by the General Counsel
pursuant to Sec. 200.406, together with a statement from the presiding
officer of the meeting, or portion of a meeting to which the
certification applies, setting forth the time
[[Page 94]]
and place of the meeting, and the persons present.
(d) Minute Record. Nothing herein shall affect the provisions of
Sec. Sec. 200.13a and 200.40 requiring the Secretary to prepare and
maintain a Minute Record reflecting the official actions of the
Commission.
Sec. 200.408 Public access to transcripts and minutes of closed
Commission meetings; record retention.
(a) Public access to record. Within 20 days (excluding Saturdays,
Sundays, and legal holidays) of the receipt by the Commission's Freedom
of Information Act (``FOIA'') Officer of a written request, or within
such extended period as may be agreeable to the person making the
request, the Secretary shall make available for inspection by any person
in the Commission's Public Reference Room, the transcript, electronic
recording, or minutes (as required by Sec. 200.407(a) or (b)) of the
discussion of any item on the agenda, except for such item or items as
the Freedom of Information Act Officer determines to involve matters
which may be withheld under Sec. 200.402 or otherwise. Copies of such
transcript, or minutes, or a transcription of such recording disclosing
the identity of each speaker, shall be furnished to any person at the
actual cost of duplication, as identified on the FOIA web page of the
Commission's website at http://www.sec.gov, and, if a transcript is
prepared, the actual cost of such transcription.
(b) Review of deletion from record. Any person who has been notified
that the Freedom of Information Act Officer has determined to withhold
any transcript, recording, or minute, or portion thereof, which was the
subject of a request for access pursuant to Sec. 200.402(a), or any
person who has not received a response to his or her own request within
the 20 days specified in Sec. 200.408(a), may appeal the adverse
determination or failure to respond by applying for an order of the
Commission determining and directing that the transcript, recording or
minute, or deleted portion thereof, be made available. Such application
shall be in writing and should be directed to the Secretary, Securities
and Exchange Commission, Washington, DC 20549. The applicant shall state
such facts and cite such legal or other authorities as the applicant may
consider appropriate. The Commission shall make a determination with
respect to any appeal pursuant to this subsection within 20 days
(excepting Saturdays, Sundays and legal public holidays) after the
receipt of such appeal, or within such extended period as may be
agreeable to the person making the request. The Commission may determine
to withhold any record that is exempt from disclosure pursuant to Sec.
200.402(a), although it may disclose a record, even if exempt, if, in
its discretion, it determines it to be appropriate to do so.
(c) Retention of record. The Commission, by its Secretary, shall
retain a complete verbatim copy of the transcript, or a complete copy of
the minutes, or a complete electronic recording of each meeting, or
portion of a meeting, closed to the public, for a period of at least two
years after such meeting, or until one year after the conclusion of any
Commission proceeding with respect to which the meeting or portion was
held, whichever occurs later.
[42 FR 14693, Mar. 16, 1977, as amended at 84 FR 50738, Sept. 26, 2019]
Sec. 200.409 Administrative appeals.
(a) Review of determination to open meeting. Following any
announcement stating that the Commission intends to open a meeting or a
portion thereof, any person whose interests may be directly and
substantially affected by the disposition of the matter to be discussed
at such meeting may make a request, directed to the Commission's
Secretary, that the meeting, or relevant portion thereof, be closed
pursuant to Sec. 200.402(a) (5), (6), or (7). The Secretary shall
circulate such a request to the members of the Commission, along with a
supporting statement provided by the requestor setting forth the
requestor's interest in the matter and the reasons why the requestor
believes that the meeting (or portion thereof) should be closed, and the
Commission, upon the request of any one of its members, shall vote by
recorded vote on whether to close such meeting or portion.
[[Page 95]]
(b) Review of determination to close meeting. Following any
announcement that the Commission intends to close a meeting or a portion
thereof, any person may make written or telegraphic request, directed to
the Commission's Secretary, that the meeting or a portion thereof be
open. Such a request shall set forth the requestor's interest in the
matter and the reasons why the requestor believes that the meeting (or a
portion thereof) should be open to the public. The Secretary shall
circulate such a request and supporting statement to the members of the
Commission, and the Commission, upon the request of any one of its
members, shall vote whether to open such a meeting or a portion thereof.
Sec. 200.410 Miscellaneous.
(a) Unauthorized activities; maintenance of decorum. Nothing in this
subpart shall authorize any member of the public to be heard at, or
otherwise participate in, any Commission meeting, or to photograph or
record by videotape or similar device any Commission meeting or portion
thereof. The Commission may exclude any person from attendance at any
meeting whenever necessary to preserve decorum, or where appropriate or
necessary for health or safety reasons, or where necessary to terminate
behavior unauthorized by this paragraph (a). Any person desiring to
sound-record an open Commission meeting shall notify the Commission's
Secretary of his intention to do so at least 48 hours in advance of the
meeting in question. Any person desiring to photograph or videotape the
Commission's proceedings may apply to the Secretary for permission to do
so at least 48 hours in advance of the meeting in question. The
Commission's determination to permit photography or videotaping at any
meeting is confined to its exclusive discretion, and will be granted
only if such activities will not result in undue disruption of
Commission proceedings.
(b) Suspension of open meeting. Subject to the satisfaction of any
procedural requirements which may be required by this subpart, nothing
in this subpart shall preclude the Commission from directing that the
room be cleared of spectators, temporarily or permanently, whenever it
appears that the discussion during an open Commission meeting is likely
to involve any matter described in Sec. 200.402(a) (respecting closed
meetings).
(c) Access to Commission documents. Except as expressly provided,
nothing in this subpart shall authorize any person to obtain access to
any document not otherwise available to the public or not required to be
disclosed pursuant to subpart D. Access to documents considered or
mentioned at Commission meetings may only be obtained subject to the
procedures set forth in, and the provisions of, subpart D.
(d) Access to public meetings. Any member of the public who plans to
attend a public meeting of the Commission, and who requires an auxiliary
aid such as a sign language interpreter, should contact the Commission's
Selective Placement Coordinator, Office of Personnel at (202) 272-7065
or TDD number (202) 272-2552, prior to the meeting to make the necessary
arrangements. The Selective Placement Coordinator will take all
reasonable steps to accommodate requests made in advance of the
scheduled meeting date.
[42 FR 14693, Mar. 16, 1977, as amended at 44 FR 32366, June 6, 1979; 55
FR 10235, Mar. 20, 1990]
Subpart J_Classification and Declassification of National Security
Information and Material
Authority: 15 U.S.C. 77s; 11 U.S.C. 901, 1109(a); E.O. 12356, 47 FR
14874, Apr. 6, 1982; Information Security Oversight Office Directive No.
1 (47 FR 27836, June 25, 1982).
Source: 44 FR 65737, Nov. 15, 1979, unless otherwise noted.
Sec. 200.500 Purpose.
This part establishes general policies and procedures for the
classification, declassification and safeguarding of national security
information which is generated, processed and/or stored by the
Commission, and supplements Executive Order 12356, April 6, 1982 (47 FR
14874), and Information Security Oversight Office Directive No. 1, June
25, 1982 (47 FR 27836).
[47 FR 47236, Oct. 25, 1982]
[[Page 96]]
Sec. 200.501 Applicability.
This part applies to the handling of, and public access to, national
security information and classified documents in the Commission's
possession. Such documents no longer in the Commission's possession will
be handled by the agency having possession, or in accordance with
guidelines developed in consultation with the Archivist.
Sec. 200.502 Definition.
As used in this part: Foreign government information means either
(a) information provided to the United States by a foreign government or
governments, an international organization of governments, or any
element thereof with the expectation, express or implied, that the
information, the source of the information, or both, are to be held in
confidence, or (b) information produced by the United States pursuant to
or as a result of a joint arrangement with a foreign government or
governments or an international organization of governments or any
element thereof, requiring that the information, the arrangement, or
both, are to be held in confidence.
[47 FR 47236, Oct. 25, 1982]
Sec. 200.503 Senior agency official.
The Chief Operating Officer of the Commission is designated the
senior agency official responsible for conducting an oversight program
to ensure effective implementation of Executive Order 12356. Any
complaints or suggestions regarding the Commission's information
security program should be directed to the Office of the Chief Operating
Officer, Securities and Exchange Commission, Attn: Information Security
Program, 100 F Street, NE., Washington, DC 20549.
(a) The Deputy Chief Operating Officer is the Senior Agency Official
for purposes of the Paperwork Reduction Act of 1980. In this capacity,
the Deputy Chief Operating Officer will carry out all responsibilities
required by the Act (Pub. L. 96-511, 3506(b)), as well as serving as
Agency Clearance Officer for purposes of the publication of notices in
the Federal Register.
(b) [Reserved]
[47 FR 47236, Oct. 25, 1982, as amended at 49 FR 12686, Mar. 30, 1984;
51 FR 5315, Feb. 13, 1986; 73 FR 32226, June 5, 2008; 76 FR 60371,
60372, Sept. 29, 2011]
Sec. 200.504 Oversight Committee.
An Oversight Committee is established, under the chairmanship of the
Chief Operating Officer, with the following responsibilities:
(a) Establish a security education program to familiarize Commission
and other personnel who have access to classified information with the
provisions of Executive Order 12065, and encourage Commission personnel
to challenge those classification decisions they believe to be improper.
(b) Establish controls to insure that classified information is
used, processed, stored, reproduced, and transitted only under
conditions that will provide adequate protection and prevent access by
unauthorized persons.
(c) Establish procedures which require that a demonstrable need,
under section 4-1 of Executive Order 12065, for access to classified
information be established before administrative clearance procedures
are initiated, as well as other appropriate procedures to prevent
unnecessary access to classified information.
(d) Act on all suggestions and complaints concerning Commission
administration of its information security program.
(e) Establish procedures within the Commission to insure the orderly
and effective referral of requests for declassification of documents in
the Commission's possession.
(f) Review on an annual basis all practices for safeguarding
information and to eliminate those practices which are duplicative or
unnecessary.
(g) Recommend to the Chairman of the Commission appropriate
administrative action to correct abuse or violation of any provision of
Executive Order 12356.
(h) Consider and decide other questions concerning classification
and declassification that may be brought before it.
[[Page 97]]
(i) Develop special contingency plans for the protection of
classified information used in or near hostile or potentially hostile
areas.
(j) Promptly notify the Director of the Information Security
Oversight Office whenever an officer or employee of the United States
Government or its contractors, licensees or grantees knowingly,
willfully or negligently (1) discloses to unauthorized persons
information properly classified under Executive Order 12356 or
predecessor orders or (2) classifies or continues the classification of
information in violation of Executive Order 12356 or predecessor orders.
[44 FR 65737, Nov. 15, 1979, as amended at 47 FR 47236, Oct. 25, 1982;
51 FR 5315, Feb. 13, 1986]
Sec. 200.505 Original classification.
(a) No Commission Member or employee has the authority to classify
any information on an original basis.
(b) If a Commission employee originates information that appears to
require classification, the employee shall immediately notify the
Secretary and protect the information accordingly.
(c) If the Chief Operating Officer believes the information warrants
classification, it shall be sent to an agency with original
classification authority over the subject matter, or to the information
Security Oversight Office, for determination.
[44 FR 65737, Nov. 15, 1979, as amended at 51 FR 5315, Feb. 13, 1986]
Sec. 200.506 Derivative classification.
Any document that includes paraphrases, restatements, or summaries
of, or incorporates in new form, information that is already classified
shall be assigned the same level of classification as the source; if,
however, the basic information appears to have been so changed that no
classification, or a lower classification than originally assigned,
should be used, the appropriate official of the originating agency or
office of origin who has the authority to upgrade, downgrade or
declassify the information must be consulted prior to assigning a
different classification to the information.
[47 FR 47236, Oct. 25, 1982]
Sec. 200.507 Declassification dates on derivative documents.
(a) A document that derives its classification from information
classified under Executive Order 12356 of predecessor orders shall be
marked with the date or event assigned to that source information for
its automatic declassification or for review of its continued need for
classification.
(b) A derivative document that derives its classification from the
approved use of the classification guide of another agency shall bear
the declassification date required by the provisions of that
classification guide.
[47 FR 47236, Oct. 25, 1982]
Sec. 200.508 Requests for mandatory review for declassification.
(a) Requests for mandatory review of a Commission document for
declassification may be made by any United States citizen or permanent
resident alien, including Commission employees, or a Federal agency, or
a State or local government. The request shall be in writing and shall
be sent to the Office of the Chief Operating Officer, Attn: Mandatory
Review Request, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549.
(b) The request shall describe the material sufficiently to enable
the Commission to locate it. Requests with insufficient description of
the material will be returned to the requester for further information.
(c) Within 5 days of receiving a request for declassification, the
Commission shall acknowledge its receipt. If the document was
derivatively classified by the Commission or originally classified by
another agency, the request and the document shall be forwarded promptly
to the agency with original classification authority together with the
Commission's recommendation to withhold any of the information where
appropriate. The requester shall be notified of the referral.
(d) If the request requires the provision of services by the
Commission, fair and equitable fees may be charged under title 5 of the
Independent Offices
[[Page 98]]
Appropriation Act, 65 Stat. 290, 31 U.S.C. 483a.
[44 FR 65737, Nov. 15, 1979, as amended at 47 FR 47237, Oct. 25, 1982;
51 FR 5315, Feb. 13, 1986; 73 FR 32226, June 5, 2008]
Sec. 200.509 Challenge to classification by Commission employees.
Commission employees who have reasonable cause to believe that
information is classified unnecessarily, improperly, or for an
inappropriate period of time, may challenge those classification
decisions through mandatory review or other appropriate procedures as
established by the Oversight Committee. Commission employees who
challenge classification decisions may request that their identity not
be disclosed.
Sec. 200.510 Access by historical researchers.
(a) Persons outside the executive branch performing historical
research may have access to information over which the Commission has
classification jurisdiction for the period requested (but not longer
than 2 years unless renewed for an additional period of less than 2
years) if the Chief Operating Officer determines in writing that access
to the information will be consistent with the interests of national
security.
(b) The person seeking access to classified information must agree
in writing:
(1) To be subject to a national agency check;
(2) To protect the classified information in accordance with the
provisions of Executive Order 12356; and
(3) Not to publish or otherwise reveal to unauthorized persons any
classified information.
[44 FR 65737, Nov. 15, 1979, as amended at 47 FR 47237, Oct. 25, 1982;
51 FR 5315, Feb. 13, 1986]
Sec. 200.511 Access by former Presidential appointees.
(a) Former Commission Members appointed by the President may have
access to classified information or documents over which the Commission
has jurisdiction that they originated, reviewed, signed, or received
while in public office, if the Chief Operating Officer determines in
writing that access to the information will be consistent with the
interest of nation security.
(b) The person seeking access to classified information must agree
in writing:
(1) To be subject to a national agency check;
(2) To protect the classified information in accordance with the
provisions of Executive Order 12356; and
(3) Not to publish or otherwise reveal to unauthorized persons any
classified information.
[44 FR 65737, Nov. 15, 1979, as amended at 47 FR 47237, Oct. 25, 1982;
51 FR 5315, Feb. 13, 1986]
Subpart K_Regulations Pertaining to the Protection of the Environment
Authority: 15 U.S.C. 78w(a)(2).
Source: 44 FR 41177, July 16, 1979, unless otherwise noted.
Sec. 200.550 Purpose.
This subpart sets forth the procedures the Commission will follow to
ensure compliance with the goals of the National Environmental Policy
Act (NEPA) and with the procedures required by NEPA in the event that
the Commission should take action subject to such procedural
requirements.
Sec. 200.551 Applicability.
In the event of extraordinary circumstances in which a Commission
action may involve major Federal action significantly affecting the
quality of the human environment, the Commission shall follow the
procedures set forth in Sec. Sec. 200.552 through 200.554 of this part,
unless doing so would be inconsistent with its statutory authority under
the Federal securities laws.
[76 FR 71874, Nov. 21, 2011]
Sec. 200.552 NEPA planning.
Where it is reasonably foreseeable by the Commission that it may be
required to act on a matter specified in Sec. 200.551 and that matter
is likely to involve major Federal action significantly affecting the
quality of the
[[Page 99]]
human environment, the Commission shall:
(a) Advise the relevant persons as to information respecting the
environment, if any, which may later be required to be submitted for
Commission consideration should Commission action become necessary;
(b) Consult on any environmental factors involved with individuals,
organizations, and state and local authorities interested in the planned
action; and
(c) Begin implementing the procedures set forth in Sec. Sec.
200.553 and 200.554 as soon as possible, Provided, That such procedures
are not inconsistent with the Commission's authority under the Federal
securities laws.
Sec. 200.553 Draft, final and supplemental impact statements.
If the Commission determines that the requirements of section
102(2)(C) of NEPA for preparation of an environmental impact statement
are applicable in connection with a proposed Commission action, it shall
prepare such statement generally in accordance with the procedures
specified in 40 CFR parts 1500-1508, particularly part 1502 concerning
impact statement preparation and content, Sec. 1505.1 concerning
decision-making procedures, and Sec. 1501.6 concerning the function of
cooperating agencies, to the extent that such procedures do not conflict
with the Commission's statutory responsibilities and authority under the
Federal securities laws.
Sec. 200.554 Public availability of information.
(a) Any environmental assessment or impact statement, and Commission
responses pertaining to formal rulemaking proceedings or adjudicatory
proceedings, shall be made part of the record in any such proceedings.
In the case of formal adjudicatory proceedings, this shall be done in
accordance with Rule 460 of the Commission's Rules of Practice, Sec.
201.460 of this chapter. In the case of formal rulemaking proceedings,
this shall be done in accordance with the Commission's rules respecting
such proceedings.
(b) The location of publicly available environmental impact
statements will be 100 F Street, NE., Washington, DC 20549.
(c) Interested persons may obtain information regarding and status
reports on specific environmental impact statements and environmental
assessments by contacting the division or office within the Commission
which has responsibility for the particular proposed action.
[44 FR 41177, July 16, 1979, as amended at 47 FR 26819, June 22, 1982;
60 FR 32795, June 23, 1995; 73 FR 32226, June 5, 2008]
Subpart L_Enforcement of Nondiscrimination on the Basis of Handicap in
Programs or Activities Conducted by the Securities and Exchange
Commission
Authority: 29 U.S.C. 794.
Source: 53 FR 25885, July 8, 1988, unless otherwise noted.
Sec. 200.601 Purpose.
The purpose of this regulation is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
Sec. 200.602 Application.
This regulation (Sec. Sec. 200.601-200.670) applies to all programs
or activities conducted by the agency, except for programs or activities
conducted outside the United States that do not involve individuals with
handicaps in the United States.
Sec. 200.603 Definitions.
For purposes of this regulation, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to
[[Page 100]]
participate in, and enjoy the benefits of, programs or activities
conducted by the agency. For example, auxiliary aids useful for persons
with impaired vision include readers, Brailled materials, audio
recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive education services from the agency;
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose
[[Page 101]]
of the program or activity without modifications in the program or
activity that the agency can demonstrate would result in a fundamental
alteration in its nature;
(3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this regulation by Sec. 200.640.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this regulation, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
Sec. Sec. 200.604-200.609 [Reserved]
Sec. 200.610 Self-evaluation.
(a) The agency shall, by September 6, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this regulation and, to the extent modification
of any such policies and practices is required, the agency shall proceed
to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion
of the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
Sec. 200.611 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this regulation and its
applicability to the programs or activities conducted by the agency, and
make such information available to them in such manner as the head of
the agency finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this regulation.
Sec. Sec. 200.612-200.629 [Reserved]
Sec. 200.630 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to
[[Page 102]]
provide qualified individuals with handicaps with aid, benefits, or
services that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this regulation.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this regulation.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
Sec. Sec. 200.631-200.639 [Reserved]
Sec. 200.640 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subject to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1613, shall apply to employment in federally conducted
programs or activities.
Sec. Sec. 200.641-200.648 [Reserved]
Sec. 200.649 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 200.650, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. 200.650 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
[[Page 103]]
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 200.650(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with handicaps. The agency is
not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
Sec. 200.650(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to individuals
with handicaps. In cases where a physical alteration to an historic
property is not required because of Sec. 200.650(a) (2) or (3),
alternative methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by November 7, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by September 6, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by March 6, 1989, a transition plan setting forth
the steps necessary to complete such changes. The agency shall provide
an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan
[[Page 104]]
shall be made available for public inspection. The plan shall, at a
minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 200.651 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Sec. Sec. 200.652-200.659 [Reserved]
Sec. 200.660 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 200.660 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with handicaps receive the benefits and
services of the program or activity.
[[Page 105]]
Sec. Sec. 200.661-200.669 [Reserved]
Sec. 200.670 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Equal Employment Opportunity Manager shall be responsible
for coordinating implementation of this section. Complaints may be sent
to the EEO Manager, 100 F Street, NE., Washington, DC 20549.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 200.670(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of
the agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
[53 FR 25882, 25885, July 8, 1988, as amended at 53 FR 25882, July 8,
1988; 73 FR 32226, June 5, 2008]
Sec. Sec. 200.671-200.699 [Reserved]
Subpart M_Regulation Concerning Conduct of Members and Employees and
Former Members and Employees of the Commission
Authority: 15 U.S.C. 77s, 77sss, 78w, 80a-37, 80b-11; E.O. 11222, 3
CFR, 1964-1965 Comp., p. 36; 5 CFR 735.104; 5 CFR 2634; and 5 CFR 2635,
unless otherwise noted.
Source: 45 FR 36064, May 29, 1980, unless otherwise noted.
Sec. 200.735-1 Purpose.
This subpart sets forth the standards of ethical conduct required of
members, employees and special Government employees, and former members
and employees of the Securities and Exchange Commission.
[75 FR 42276, July 20, 2010]
Sec. 200.735-2 Policy.
(a) The Securities and Exchange Commission has been entrusted by
Congress with the protection of the public interest in a highly
significant
[[Page 106]]
area of our national economy. In view of the effect which Commission
action frequently has on the general public, it is important that
members, employees and special Government employees maintain unusually
high standards of honesty, integrity, impartiality and conduct. They
must be constantly aware of the need to avoid situations which might
result either in actual or apparent misconduct or conflicts of interest
and to conduct themselves in their official relationships in a manner
which commands the respect and confidence of their fellow citizens.
(b) For these reasons, members, employees, and special Government
employees should at all times abide by the standards of ethical conduct
for employees of the executive branch (codified in 5 CFR part 2635); the
supplemental standards of ethical conduct for members and employees of
the Securities and Exchange Commission (codified in 5 CFR part 4401);
the standards of conduct set forth in this subpart; the Canons of ethics
for members of the Securities and Exchange Commission (codified in
subpart C of this part 200); and, in the case of a person practicing a
profession as defined in 5 CFR 2636.305(b)(1), the applicable
professional ethical standards.
[45 FR 36064, May 29, 1980, as amended at 75 FR 42276, July 20, 2010]
Sec. 200.735-3 General provisions.
(a) A member or employee shall comply with the requirements of 5 CFR
part 2635, subpart A (General provisions) and in particular with the
provisions of 5 CFR 2635.101 (Basic obligations of public service);
2635.103 (Applicability to members of the uniformed services); and
2635.104 (Applicability to employees on detail).
(b) A member or employee of the Commission shall not:
(1) Engage, directly or indirectly, in any personal business
transaction or private arrangement for personal profit the opportunity
for which arises because of his or her official position or authority,
or that is based upon confidential or nonpublic information which he or
she gains by reason of such position or authority.
(2)(i) Divulge to any unauthorized person or release in advance of
authorization for its release any nonpublic Commission document, or any
information contained in any such document or any confidential
information: (A) In contravention of the rules and regulations of the
Commission promulgated under 5 U.S.C. 552, 552a and 552b; or (B) in
circumstances where the Commission has determined to accord such
information confidential treatment.
(ii) Except where the Commission or the General Counsel, pursuant to
delegated authority, has previously granted approval or in relation to a
Commission administrative proceeding or a judicial proceeding in which
the Commission, or a present or former Commissioner, or present or
former member of the staff, represented by Commission counsel, is a
party, any officer, employee or former officer or employee who is served
with a subpoena requiring the disclosure of confidential or non-public
information or documents shall, unless the Commission or the General
Counsel, pursuant to delegated authority, authorizes the disclosure of
such information or documents, respectfully decline to disclose the
information or produce the documents called for, basing his or her
refusal on this paragraph.
(iii) Any member, employee or former member or employee who is
served with such a subpoena not covered by the exceptions in paragraph
(b)(7)(ii) of this section shall promptly advise the General Counsel of
the service of such subpoena, the nature of the information or documents
sought, and any circumstances which may bear upon the desirability in
the public interest of making available such information or documents.
\1\ The Commission or the General Counsel, pursuant to delegated
authority, shall authorize the disclosure of non-expert, non-privileged,
factual staff testimony and the
[[Page 107]]
production of non-privileged documents when validly subpoenaed.
---------------------------------------------------------------------------
\1\ Detailed prohibitions regarding disclosure or use of
confidential or nonpublic information are set forth in Rule 122 (17 CFR
230.122) under the Securities Act of 1933; section 24(b) of the
Securities Exchange Act of 1934 (15 U.S.C. 78x) and Rule 0-4 (17 CFR
240.0-4); and Rule 24(b)(2) (17 CFR 240.24b-2), thereunder; section
45(a)(1) of the Investment Company Act, and section 210(b) of the
Investment Advisers Act of 1940 (15 U.S.C. 80b-10).
---------------------------------------------------------------------------
(c) A member or employee shall comply with the requirements of 5 CFR
part 2635, subpart B (Gifts from outside sources).
(d) A member or employee shall comply with the requirements of 5 CFR
part 2635, subpart C (Gifts between employees).
(e) A member or employee shall comply with the requirements of 5 CFR
part 2635, subpart D (Conflicting financial requirements);
(f) A member or employee shall comply with the requirements of 5 CFR
part 2635, subpart E (Impartiality).
(g) A member or employee shall comply with the requirements of 5 CFR
part 2635, subpart G (Misuse of position).
(h) No member or employee shall accept host-paid travel or
reimbursement except as in accordance with the requirements of the
Supplemental standards of ethical conduct for members and employees of
the Securities and Exchange Commission (codified at 5 CFR 4401.103
(Outside Employment and Activities)); 5 CFR part 2635, subpart H
(Outside Activities); and 31 U.S.C. 353 and 41 CFR 304-1.1 (Acceptance
of payment from a non-Federal source for travel expenses).
[45 FR 36064, May 29, 1980; 45 FR 40975, June 17, 1980, as amended at 50
FR 23287, June 3, 1985; 53 FR 17458, May 17, 1988; 54 FR 33500, Aug. 15,
1989; 73 FR 32226, June 5, 2008; 75 FR 42276, July 20, 2010]
Sec. 200.735-4 Outside employment and activities.
(a) Members and employees shall comply with the requirements of the
Supplemental standards of ethical conduct for members and employees of
the Securities and Exchange Commission (codified at 5 CFR 4401.103
(Outside employment and activities) and 5 CFR part 2635, subpart H
(Outside activities)).
(b) The Commission encourages employees to engage in teaching,
lecturing, and writing activities with or without compensation. \2\ In
participating in such activities, employees should be guided by the
following:
---------------------------------------------------------------------------
\2\ As to employees, while the receipt of honoraria is discouraged,
that rule is not applicable to the receipt of compensation for teaching.
---------------------------------------------------------------------------
(1) No teaching, lecturing, or writing should be engaged in if
prohibited by law, Executive order, Office of Personnel Management
regulations, or the rules in this subpart.
(2) No teaching, lecturing, or writing should be engaged in
(including for the purpose of the special preparation of a person or
class of persons for an examination of the Office of Personnel
Management or Board of Examiners for the Foreign Service) that depends
on information filed with the Commission, or obtained by the Commission
in an investigation or otherwise, or generated within the Commission
which is nonpublic, unless the Commission gives formal approval for the
use of such nonpublic information on the basis that the use thereof is
in the public interest. \3\
---------------------------------------------------------------------------
\3\ Since members of the Commission are covered by section 401(a) of
Executive Order 11222, they are prohibited by Civil Service Regulations
(5 CFR 735.203(c)) from receiving compensation or anything of monetary
value for any consultation, lecture, discussion, writing, or appearance
the subject matter of which is devoted substantially to the
responsibilities, programs, or operations of their agencies, or which
draws substantially on official data or ideas which have not become part
of the body of public information.
---------------------------------------------------------------------------
(c) If otherwise permitted by 18 U.S.C. 203 and 205, the provisions
of these rules or of 5 CFR 4401.103 do not preclude an employee from
acting as agent or attorney:
(1) For any Commission employee who is sued or under investigation
in connection with his or her official duties;
(2) For any Commission employee who is the subject of disciplinary,
loyalty, or other personnel administrative proceedings in connection
with those proceedings; or
(3) For any Commission employee who raises claims or against whom
allegations of wrongdoing are made pursuant to the Commission's Equal
Opportunity regulations, if such representation is not inconsistent with
the faithful performance of the employee's duties.
(d)(1) As paragraph (b) of this section indicates, the Commission
encourages
[[Page 108]]
employees to engage in teaching, lecturing and writing activities. \4\
It is understood, however, that Commission employees in their teaching,
writing and lecturing shall not
---------------------------------------------------------------------------
\4\ This paragraph (d), requiring review of prepared speeches or
writings relating to the Commission does not apply to teaching
activities.
---------------------------------------------------------------------------
(i) Use confidential or nonpublic information;
(ii) Make comments on pending litigation in which the Commission is
participating as a party or amicus curiae; or
(iii) Make comments on rulemaking proceedings pending before the
Commission which would adversely affect the operations of the
Commission.
(2) To assist employees in conforming to these requirements the
following procedure for reviewing writings prior to publication, or
prepared speeches prior to delivery, has been established:
(i) Employees must submit proposed publications or prepared speeches
relating to the Commission, or the statutes or rules it administers, to
the General Counsel for review. Employees will be notified as promptly
as possible, with due regard to publication deadlines, but in any event
within 30 days of receipt of the written document, whether such document
conforms to the requirements of this Rule.
(ii)(A) A determination by the General Counsel that a proposed
publication conforms to the requirements of the rule will not involve
adoption of, or concurrence in, the views expressed. Therefore, such
publication or speech shall include at an appropriate place or in a
footnote or otherwise, the following disclaimer of responsibility:
The Securities and Exchange Commission disclaims responsibility for
any private publication or statement of any SEC employee or
Commissioner.
This [article, outline, speech, chapter] expresses the author's
views and does not necessarily reflect those of the Commission, the
[other] Commissioners, or [other] members of the staff.
(B) In appropriate cases, the above disclaimer may be modified by
the General Counsel or the Commission to reflect the circumstances of an
individual case. In addition, any publication or speech that reflects
positions taken by the Commission shall set forth those positions
accurately and, if it contains differences with Commission positions, it
shall clearly state that such positions are those of the employee.
(e) With respect to host-paid travel, members and employees shall
comply with the requirements of the Supplemental standards of ethical
conduct for members and employees of the Securities and Exchange
Commission (codified at 5 CFR 4401.103 (Outside employment and
activities)); 5 CFR part 2635, subpart H (Outside Activities); and 31
U.S.C. 1353 and 41 CFR 304-1.1 (Acceptance of payment from a non-Federal
source for travel expenses).
(f)(1) With respect to seeking or negotiating outside employment,
members and employees shall comply with the requirements of the
Supplemental standards of ethical conduct for members and employees of
the Securities and Exchange Commission (codified at 5 CFR 4401.103
(Outside employment and activities)); 5 CFR part 2635, subpart F
(Seeking other employment); 5 CFR part 2635, subpart H (Outside
activities).
(2) Members and employees should be aware that 18 U.S.C. 208 (Acts
affecting a personal interest) provides, among other things, that a
member or employee is prohibited from participating personally and
substantially in any particular matter in which, to his or her
knowledge, the member or employee, his or her spouse, minor child,
general partner, organization of which the employee is an officer,
director, trustee, general partner or employee, or any person or
organization with whom he or she is negotiating or has any arrangement
concerning prospective employment, has a financial interest. This
provision does not apply if the employee has received a written
determination by an authorized official that the financial interest is
not so substantial as to be deemed likely to affect the integrity of the
employee's government service.
(3) Members may follow the procedural provision contained in Part V,
Section 503 of the Executive Order 11222.
(g) An employee who intends to accept or perform any outside or
private
[[Page 109]]
employment or professional work shall obtain necessary authorization in
advance of such acceptance or performance. A request for such
authorization shall be submitted to the Division Director, Office Head
or Regional Director concerned, together with all pertinent facts
regarding the proposed employment, such as the name of the employer, the
nature of the work to be performed, its estimated duration, and the fee
or compensation to be received. Division Directors, Office Heads and
Regional Directors have been delegated the authority to approve routine
requests for outside employment. The approving official shall forward to
the Director of Personnel a copy of each request showing the date of
approval. Requests of a non-routine nature should be forwarded to the
Director of Personnel.
(h) The Director of Personnel, or his designee, is authorized to
approve or disapprove requests for outside or private employment under
this rule, except as to those cases which, in his judgment, should be
considered and decided by the Commission. An employee may appeal a
disapproved request to the Commission. The written appeal, submitted
through the Director of Personnel, shall give reasons why the proposed
outside or private employment is consistent with this rule. The Director
of Personnel may not approve proposed outside or private employment
which is absolutely prohibited by these rules. The Commission may, in a
particular case, approve such employment.
[45 FR 36064, May 29, 1980; 45 FR 40975, June 17, 1980; 48 FR 39216,
Aug. 30, 1983; 50 FR 45603, Nov. 1, 1985; 73 FR 32226, June 5, 2008; 75
FR 42276, July 20, 2010]
Sec. 200.735-5 Securities transactions.
Securities transactions by members and employees must comply with
the provisions of 5 CFR 4401.102 (Prohibited and restricted financial
interests and transactions).
[75 FR 42277, July 20, 2010]
Sec. 200.735-6 Action in case of personal interest.
Members and employees shall comply with the requirements of 5 CFR
part 2640 (Interpretation, exemptions, and waiver guidance concerning 18
U.S.C. 208 (Acts affecting a personal interest)).
[75 FR 42277, July 20, 2010]
Sec. 200.735-7 Negotiation for employment.
Members and employees shall comply with the requirements of 18
U.S.C. 208 (Acts affecting a personal interest) and 5 CFR part 2635,
subpart F (Seeking other employment). See Sec. 200.735-4(f)(2) of this
subpart.
[75 FR 42277, July 20, 2010]
Sec. 200.735-8 Practice by former members and employees of the Commission.
(a) Members and employees and former members and employees shall
comply with the requirements of 18 U.S.C. 207 and 5 CFR part 2641 (Post
employment conflict of interest restrictions). Members and employees and
former members and employees should be aware that, among other
restrictions, 18 U.S.C. 207 generally prohibits a former member or
employee from knowingly communicating to or appearing before a Federal
agency with the intent to influence a particular matter involving
specific parties in which that person personally and substantially
participated while at the Commission.
(b)(1) Any former member or employee of the Commission who, within 2
years after ceasing to be such, is employed or retained as the
representative of any person outside the Government in any matter in
which it is contemplated that he or she will appear before the
Commission, or communicate with the Commission or its employees, shall,
within ten days of such retainer or employment, or of the time when
appearance before, or communication with the Commission or its employees
is first contemplated, file with the Office of the Ethics Counsel a
statement which includes:
(i) A description of the contemplated representation;
(ii) An affirmative representation that the former employee while on
the Commission's staff had neither personal and substantial
responsibility
[[Page 110]]
nor official responsibility for the matter which is the subject of the
representation; and
(iii) The name of the Commission Division or Office in which the
person had been employed.
(2) The statement required by paragraph (b)(1) of this section may
be filed electronically based on instructions provided by the Office of
the Ethics Counsel at www.sec.gov, or filed in paper by mailing to the
U.S. Securities & Exchange Commission, Office of the Ethics Counsel, 100
F Street NE., Washington, DC 20549-9150.
(3) Employment of a recurrent character may be covered by a single
comprehensive statement. Each such statement should include an
appropriate caption indicating that it is filed pursuant to this
section. The reporting requirements of this paragraph do not apply to
(i) Communications incidental to court appearances in litigation
involving the Commission; and
(ii) Oral communications concerning ministerial or informational
matters or requests for oral advice not otherwise prohibited by
paragraph (a) of this section.
(c) As used in this section, the term appear before the commission
means physical presence before the Commission or its employees in either
a formal or informal setting or the conveyance of material in connection
with a formal appearance or application to the Commission. As used in
this section the term communication with intent to influence does not
encompass communications which are not for the purpose of influencing
the Commission or any of its employees or which, at the time of the
filings, are reasonably believed not to involve any potential
controversy. As used in this section, the term representative or
representative capacity shall include not only the usual type of
representation by an attorney, etc., but also representation of a
corporation in the capacity of an officer, director or controlling
stockholder thereof.
(d)(1) Partners or associates of any person disqualified from
appearing or practicing before the Commission in a particular matter are
also disqualified. Such partners or associates (the firm) may request a
waiver of this prohibition from the Commission by writing a letter to
the General Counsel of the commission setting forth the facts of the
proposed representation and the individual's disqualification. In
appropriate situations, a firm may request a generic waiver with respect
to a number of different matters. Upon the advice of the Office of the
General Counsel, the Commission, or the General Counsel exercising
delegated authority, will advise the requestor of the Commission's
response.
(2) Waivers ordinarily will be granted where the firm makes a
satisfactory representation that it has adopted screening measures which
will effectively isolate the individual lawyer disqualified from
participating in the particular matter or matters and from sharing in
any fees attributable to it. It will be considered significant for
purposes of this determination that:
(i) The firm had a pre-existing securities law practice prior to the
arrival of the disqualified attorney;
(ii) The matter was previously the subject of consideration by the
firm or the client was already advised by the firm;
(iii) In cases where the matter or client became the subject of
consideration by the firm subsequent to the firm's employment of the
lawyer individually disqualified, that the matter was not brought to the
firm because of the disqualified attorney.
(3) Notwithstanding the existence or non-existence of any of these
factors, no waiver will be issued if the proposed representation would
create a significant appearance of impropriety or would otherwise
adversely affect the interests of the government. \5\ All proceedings
with respect to waivers shall be a matter of public record except to the
extent that such public disclosure
[[Page 111]]
might violate attorney-client privilege or breach the attorney's
obligation to preserve the confidences and secrets of this or her
clients, reveal the existence of ongoing private investigations,
interfere with law enforcement proceedings, or otherwise be inconsistent
with the public interest.
---------------------------------------------------------------------------
\5\ For example, no waiver will be granted if, during the course of
representing a client who has an interest with respect to a matter
before the Commission, a firm employs, or accepts as a partner, a member
of the staff or of the Commission who at any time during the course of
that representation had direct and substantial responsibility for the
same matter, and whose departure would result in a significant adverse
impact upon that matter at the Commission.
---------------------------------------------------------------------------
(e) Persons in doubt as to the applicability of any portion of this
section may apply for an advisory ruling of the Commission. \6\
---------------------------------------------------------------------------
\6\ Attention of former members and employees is directed to Formal
Opinion 342 of the Committee on Ethics of the American Bar Association,
62 A.B.A.J. 517 (1975) and to 18 U.S.C. 207.
[45 FR 36064, May 29, 1980, as amended at 50 FR 23669, June 5, 1985; 75
FR 42277, July 20, 2010; 77 FR 13491, Mar. 7, 2012]
Sec. 200.735-9 Indebtedness.
Members and employees shall comply with the requirements of 5 CFR
2635.809 (Just financial obligations).
[75 FR 42277, July 20, 2010]
Sec. 200.735-10 Miscellaneous statutory provisions.
Each member and employee is responsible for acquainting himself or
herself with the statutory provisions listed in 5 CFR 2635.902 (Related
statutes). A violation of any of these provisions is deemed a violation
of this subpart M.
[75 FR 42277, July 20, 2010]
Sec. 200.735-11 Statement of employment and financial interests.
(a) Members and employees shall file financial disclosure reports in
accordance with the requirements of 5 CFR part 2634 (Executive branch
financial disclosure).
(b) Prior to the time of entry on duty, or upon designation to a
position set forth in paragraph (c) of this section, such employee shall
submit to the Director of Personnel a statement, on the official form
made available for this purpose through the Office of Personnel, setting
forth the following information:
(1) A list of the names of all corporations, companies, firms, or
other business enterprises, partnerships, nonprofit organizations, and
educational or other institutions with or in which the employee, his or
her spouse, unemancipated minor child or other member of his or her
immediate household has--
(i) Any connection as an employee, officer, owner, director, member,
trustee, partner, adviser or consultant; or
(ii) Any continuing financial interest, through a pension or
retirement plan, shared income, or other arrangement as a result of any
current or prior employment or business or professional association.
(iii) Any financial interest through the ownership of stock, stock
options, bonds, securities, or other arrangements including trusts.
(2) A list of the names of the employee's creditors and the
creditors of his or her spouse, unemancipated minor child or other
member of his or her immediate household, other than those creditors to
whom any such person may be indebted by reason of a mortgage on property
which he or she occupies as a personal residence, or to whom such person
may be indebted for current and ordinary household and living expenses
such as those incurred for household furnishings, vacations, an
automobile, education, or the like.
(3) A list of the employee's interests and those of his or her
spouse, unemancipated minor child, or other member of his or her
immediate household in real property or rights in lands, other than
property which he or she occupies as a personal residence.
(4) For the purpose of this section, member of his or her immediate
household means a resident of the employee's household who is related to
the employee by blood or marriage.
(5) In the instance where a spouse is not a member of the employee's
immediate household, and the employee certifies he or she neither
derives nor expects to derive any economic benefit from the holdings of
the spouse, the Director of Personnel may waive the requirement of
reporting the interests of such spouse.
(c) Statements of employment and financial interests filed pursuant
to paragraph (a) of this section shall be
[[Page 112]]
sent to the Ethics Office in a sealed envelope marked ``Confidential
Employment and Financial Interests.'' They shall be maintained in a
confidential file. Only those officials of the Commission whose
participation is necessary for the carrying out of the purpose of this
Conduct Regulation may have access to such statements and no information
may be disclosed from them except as the Commission or the Office of
Personnel Management may determine for good cause shown.
(d) In accordance with the requirements of the Ethics in Government
Act of 1978, Pub. L. 95-521, the Ethics Office shall review the
financial disclosure reports filed pursuant to that Act.
(e) The Ethics Office shall examine the statements of employment and
financial interests filed pursuant to paragraph (a) of this section to
determine whether conflicts of interest or apparent conflicts of
interest on the part of employees exist. An employee shall be afforded
the opportunity to explain any conflict or appearance of conflict. When
the Director or Assistant Director of Personnel, in consultation with
appropriate superiors of the employee involved, is unable to resolve a
conflict or appearance of conflict, he or she shall report the matter to
the Commission through the Counselor for the Commission designated under
Sec. 200.735-15(a).
(f) Except as otherwise provided in paragraph (a) of this section
the statement of employment and financial interests and supplementary
statements required of employees are in addition to, and not in
substitution for, or in derogation of, any similar requirement imposed
by law, order or regulation. The submission of a statement by an
employee does not permit him or her or any other person to participate
in a matter in which his or her or the other person's participation is
prohibited by law, order or regulation.
(g) An employee has the right to ask for a review through the
Commission's grievance procedure outlined in section 771, Part II,
Manual of Administrative Regulations, of a complaint that his or her
position has been improperly included under the provisions of this
section as one requiring the submission of a statement of employment and
financial interests.
[45 FR 36064, May 29, 1980; 45 FR 40975, June 17, 1980, as amended at 73
FR 32226, June 5, 2008; 75 FR 42278, July 20, 2010; 76 FR 71450, Nov.
18, 2011]
Sec. 200.735-12 Special Government employees.
(a) Special Government employee means a person defined in section 18
U.S.C. 202 as a special Government employee. All of the provisions of
this Conduct Regulation are applicable to special Government employees,
except that in specific appropriate cases the Commission may exempt such
employees from, or modify the applicability of, any portion of any
provision of the Conduct Regulation.
(b) In no event will the Commission waive a provision of the Conduct
Regulation which would permit a special Government employee to:
(1) Use his or her Government employment for a purpose that is, or
gives the appearance of being, motivated by the desire for private gain
for himself or another person, particularly one with whom he or she has
family, business, or financial ties.
(2) Use inside information obtained as a result of his or her
Government employment for private gain for himself or herself or another
person either by direct action on his or her part or by counsel,
recommendation, or suggestion to another person, particularly one with
whom he or she has family, business, or financial ties. For purposes of
this paragraph, inside information means information obtained under
Government authority which has not become part of the body of public
information.
(3) Use his or her Government employment to coerce, or give the
appearance of coercing, a person to provide financial benefit to himself
or herself or another person, particularly one with whom he or she has
family, business, or financial ties.
(4) Receive or solicit from a person having business with the
Commission anything of value as a gift, gratuity, loan, entertainment,
or favor for himself or herself or another person, particularly one with
whom he or she has family, business or financial ties.
[[Page 113]]
(c) Prior to entrance on duty, each special Government employee
shall submit to the Director of Personnel a statement of employment and
financial interests which contains such information as the Director of
Personnel determines is relevant in the light of the duties the special
Government employee is to perform and, if appropriate, the financial
disclosure report as provided by title II of the Ethics in Government
Act of 1978, Pub. L. 95-521. It shall be kept current throughout the
period of employment by the filing of supplementary statements in
accordance with the requirements of Sec. 200.735-11(d). Statements
shall be on the official form made available for this purpose through
the Office of Personnel.
(d) The Commission may waive the requirement of paragraph (c) of
this section in the case of a special Government employee who is not a
consultant or an expert, as those terms are defined in chapter 304 of
the Federal Personnel Manual (5 CFR 735.304), if the duties of the
position are determined to be at a level of responsibility which does
not require the submission of such statement to protect the integrity of
the Commission.
Sec. 200.735-13 Disciplinary and other remedial action.
(a) Knowing participation in a violation of this subpart by persons
not within the scope of the foregoing rules in this subpart shall
likewise be deemed improper conduct and in contravention of Commission
rules. Departure from any of the rules in this subpart by employees or
special Government employees without specific approval may be cause for
appropriate remedial and/or disciplinary action or, in the case of
former members, employees, and special Government employees, for
disqualification from appearing and practicing before the Commission,
which may be in addition to any penalty prescribed by law.
(b) When there has been a departure from any of the rules of this
subpart without specific approval or when a conflict of interest or an
apparent conflict of interest on the part of an employee or special
Government employee arises, the Director of Personnel may order
immediate action to end such conflict or appearance of conflict of
interest. Remedial action may include, but is not limited to (1) changes
in assigned duties; (2) divestment by the employee or special Government
employee of his conflicting interest; (3) disciplinary action; or (4)
disqualification for a particular assignment. Remedial action, whether
disciplinary or otherwise, shall be effected in accordance with any
applicable laws, Executive Orders, and regulations. The Director of
Personnel may refer any recommended action to the Commission. The
employee may obtain review by the Commission of any action ordered to be
taken by the Director of Personnel. During the period of review, unless
otherwise directed by the Commission, the action ordered by the Director
of Personnel is stayed.
(c) Former members or employees who violate the post-employment
restriction provisions of 18 U.S.C. 207(a), (b) or (c), which parallel
the provisions of Rule 8(a), supra, will be subject to an administrative
enforcement proceeding as set forth in Rule 102(e) of the Commission's
Rules of Practice, Sec. 201.102(e) of this chapter, except that, when
proceedings are brought to determine if violations of post-employment
restrictions have occurred, denial of the privilege of appearing and
practicing before the Commission will be based on a finding of violation
of the provisions of Rule 8(a) and 18 U.S.C. 207 (a), (b) and (c).
Procedures applicable to such administrative proceedings are to be found
in the Commission's Rules of Practice, 17 CFR 201.100 et seq.
[45 FR 36064, May 29, 1980, as amended at 60 FR 32795, June 23, 1995]
Sec. 200.735-14 Employees on leave of absence.
The provisions of the rules in this subpart relative to employees of
the Commission are applicable to employees on a leave with pay or a
leave without pay status other than extended military service.
Sec. 200.735-15 Interpretive and advisory service.
(a) The Ethics Counsel shall be designated Counselor for the
Commission and shall serve as the Commission's delegate to the Office of
Personnel
[[Page 114]]
Management on matters covered by the rules in this subpart. The Ethics
Counsel shall be responsible for coordinating the Commission's
counseling services provided under this section and for assuring that
counseling and interpretations on questions of conflicts of interest and
other matters covered by the rules in this subpart are available to all
members and employees.
(b) A member, employee, or former member or employee may obtain
advice or guidance on the application of the rules in this subpart from
the Ethics Counsel. In addition, any former member or employee seeking
advice or an interpretation relating to the Ethics in Government Act
shall submit his or her request to the Ethics Counsel.
(c) The Ethics Counsel will treat information he or she receives
pursuant to requests for advice or guidance under this Rule on a
confidential basis, except that information he or she receives
indicating a possible past violation of any provision of this Conduct
Regulation or of the law will be brought to the attention of appropriate
persons.
(d) The Ethics Office shall furnish a copy of this Conduct
Regulation (subpart M) to each member, employee and special Government
employee immediately upon his or her entrance on duty and shall
thereafter, annually, and at such other times as circumstances warrant,
bring to the attention of each member, employee and special Government
employee this Conduct Regulation (subpart M) and all revisions thereof.
(e) The Ethics Office shall notify each member, employee and special
Government employee at the time of entrance on duty, and from time to
time thereafter, of the availability of counseling services and of how
and where these services are available.
[45 FR 36064, May 29, 1980, as amended at 73 FR 32227, June 5, 2008; 75
FR 42278, July 20, 2010; 76 FR 71450, Nov. 18, 2011; 79 FR 1735, Jan.
10, 2014]
Sec. 200.735-16 Delegation.
Any official responsibility assigned to a person in a particular
position pursuant to this subpart may be delegated by such person to any
other person.
Sec. 200.735-17 Administration of the conduct regulation.
The Designated Agency Ethics Official is responsible for the day-to-
day administration of this conduct regulation except where otherwise
provided.
[45 FR 36064, May 29, 1980, as amended at 75 FR 42278, July 20, 2010; 76
FR 71450, Nov. 18, 2011]
Sec. 200.735-18 Requests for waivers.
Unless a different procedure is specifically prescribed in a rule of
this part, an employee may submit a request for a waiver, modification
or postponement of a requirement included in this part to the Chairman.
Such waiver, modification or postponement may be granted if it is
determined by the Chairman that such waiver, modification of
postponement would not adversely affect the interest of the Commission
or the United States. Any such waiver, modification or postponement
granted by the Chairman shall be made available to the public. The
Chairman may submit any request made pursuant to this rule to the
Commission for its consideration. Any Commission action on such request
shall be made public only in the discretion of the Commission.
Requirements included in this part which implement any provision of
Federal law, regulation or Executive Order generally applicable to the
Executive Branch shall not be waived under this provision.
Subpart N_Commission Information Collection Requirements Under the
Paperwork Reduction Act: OMB Control Numbers
Authority: 44 U.S.C. 3506; 44 U.S.C. 3507.
Source: 67 FR 14634, Mar. 27, 2002, unless otherwise noted.
Sec. 200.800 OMB control numbers assigned pursuant to
the Paperwork Reduction Act.
(a) Purpose: This subpart collects and displays the control numbers
assigned to information collection requirements
[[Page 115]]
of the Commission by the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1980, 44 U.S.C. 3500 et seq. This subpart
displays current OMB control numbers for those information collection
requirements of the Commission that are rules and regulations and
codified in 17 CFR either in full text or incorporated by reference with
the approval of the Director of the Office of the Federal Register.
(b) Display.
------------------------------------------------------------------------
17 CFR part or section
Information collection where identified and Current OMB
requirement described control No.
------------------------------------------------------------------------
Regulation S-X................... Part 210................ 3235-0009
Regulation S-B................... Part 228................ 3235-0417
Regulation S-K................... Part 229................ 3235-0071
Rule 154......................... 230.154................. 3235-0495
Rule 155......................... 230.155................. 3235-0549
Rule 236......................... 230.236................. 3235-0095
Rule 237......................... 230.237................. 3235-0528
Regulation A..................... 230.251 thru 230.263.... 3235-0286
Regulation C..................... 230.400 thru 230.494.... 3235-0074
Rule 425......................... 230.425................. 3235-0521
Rule 477......................... 230.477................. 3235-0550
Rule 489......................... 230.489................. 3235-0411
Rule 498......................... 230.498................. 3235-0488
Regulation D..................... 230.500 thru 230.508.... 3235-0076
Regulation E..................... 230.601 thru 230.610a... 3235-0232
Rule 604......................... 230.604................. 3235-0232
Rule 605......................... 230.605................. 3235-0232
Rule 609......................... 230.609................. 3235-0233
Rule 701......................... 230.701................. 3235-0522
Regulation S..................... 230.901 thru 230.905.... 3235-0357
Regulation S-T................... Part 232................ 3235-0424
Form SB-1........................ 239.9................... 3235-0423
Form SB-2........................ 239.10.................. 3235-0418
Form S-1......................... 239.11.................. 3235-0065
Form S-2......................... 239.12.................. 3235-0072
Form S-3......................... 239.13.................. 3235-0073
Form N-2......................... 239.14.................. 3235-0026
Form N-1A........................ 239.15A................. 3235-0307
Form S-6......................... 239.16.................. 3235-0184
Form S-8......................... 239.16b................. 3235-0066
Form N-3......................... 239.17a................. 3235-0316
Form N-4......................... 239.17b................. 3235-0318
Form S-11........................ 239.18.................. 3235-0067
Form N-14........................ 239.23.................. 3235-0336
Form N-5......................... 239.24.................. 3235-0169
Form S-4......................... 239.25.................. 3235-0324
Form F-1......................... 239.31.................. 3235-0258
Form F-2......................... 239.32.................. 3235-0257
Form F-3......................... 239.33.................. 3235-0256
Form F-4......................... 239.34.................. 3235-0325
Form F-6......................... 239.36.................. 3235-0292
Form F-7......................... 239.37.................. 3235-0383
Form F-8......................... 239.38.................. 3235-0378
Form F-10........................ 239.40.................. 3235-0380
Form F-80........................ 239.41.................. 3235-0404
Form F-X......................... 239.42.................. 3235-0379
Form F-N......................... 239.43.................. 3235-0411
Form ID.......................... 239.63.................. 3235-0328
Form SE.......................... 239.64.................. 3235-0327
Form TH.......................... 239.65.................. 3235-0425
Form 1-A......................... 239.90.................. 3235-0286
Form 2-A......................... 239.91.................. 3235-0286
Form 144......................... 239.144................. 3235-0101
Form 1-E......................... 239.200................. 3235-0232
Form CB.......................... 239.800................. 3235-0518
Rule 6a-1........................ 240.6a-1................ 3235-0017
Rule 6a-3........................ 240.6a-3................ 3235-0021
Rule 6a-4........................ 240.6a-4................ 3235-0554
Rule 6h-1........................ 240.6h-1................ 3235-0555
Rule 8c-1........................ 240.8c-1................ 3235-0514
Rule 9b-1........................ 240.9b-1................ 3235-0480
Rule 10a-1....................... 240.10a-1............... 3235-0475
Rule 10b-10...................... 240.10b-10.............. 3235-0444
[[Page 116]]
Rule 10b-17...................... 240.10b-17.............. 3235-0476
Rule 10b-18...................... 240.10b-18.............. 3235-0474
Rule 10A-1....................... 240.10A-1............... 3235-0468
Rule 11a1-1(T)................... 240.11a1-1(T)........... 3235-0478
Rule 12a-5....................... 240.12a-5............... 3235-0079
Regulation 12B................... 240.12b-1 thru 240.12b- 3235-0062
36.
Rule 12d1-3...................... 240.12d1-3.............. 3235-0109
Rule 12d2-1...................... 240.12d2-1.............. 3235-0081
Rule 12d2-2...................... 240.12d2-2.............. 3235-0080
Rule 12f-1....................... 240.12f-1............... 3235-0128
Rule 13a-16...................... 240.13a-16.............. 3235-0116
Regulation 13D/G................. 240.13d-1 thru 240.13d-7 3235-0145
Schedule 13D..................... 240.13d-101............. 3235-0145
Schedule 13G..................... 240.13d-102............. 3235-0145
Rule 13e-1....................... 240.13e-1............... 3235-0305
Rule 13e-3....................... 240.13e-3............... 3235-0007
Schedule 13E-3................... 240.13e-100............. 3235-0007
Schedule 13e-4F.................. 240.13e-101............. 3235-0375
Regulation 14A................... 240.14a-1 thru 240.14a- 3235-0059
12.
Schedule 14A..................... 240.14a-101............. 3235-0059
Regulation 14C................... 240.14c-1............... 3235-0057
Schedule 14C..................... 240.14c-101............. 3235-0057
Regulation 14D................... 240.14d-1 thru 240.14d-9 3235-0102
Schedule TO...................... 240.14d-100............. 3235-0515
Schedule 14D-1................... 240.14d-101............. 3235-0102
Schedule 14D-9................... 240.14d-101............. 3235-0102
Schedule 14D-1F.................. 240.14d-102............. 3235-0376
Schedule 14D-9F.................. 240.14d-103............. 3235-0382
Regulation 14E................... 240.14e-1 thru 240.14e-2 3235-0102
Rule 14f-1....................... 240.14f-1............... 3235-0108
Rule 15a-4....................... 240.15a-4............... 3235-0010
Rule 15a-6....................... 240.15a-6............... 3235-0371
Rule 15b1-1...................... 240.15b1-1.............. 3235-0012
Rule 15b6-1(a)................... 240.15b6-1(a)........... 3235-0018
Rule 15c1-5...................... 240.15c1-5.............. 3235-0471
Rule 15c1-6...................... 240.15c1-6.............. 3235-0472
Rule 15c1-7...................... 240.15c1-7.............. 3235-0134
Rule 15c2-1...................... 240.15c2-1.............. 3235-0485
Rule 15c2-5...................... 240.15c2-5.............. 3235-0198
Rule 15c2-7...................... 240.15c2-7.............. 3235-0479
Rule 15c2-8...................... 240.15c2-8.............. 3235-0481
Rule 15c2-11..................... 240.15c2-11............. 3235-0202
Rule 15c2-12..................... 240.15c2-12............. 3235-0372
Rule 15c3-1...................... 240.15c3-1.............. 3235-0200
Rule 15c3-1(c)(13)............... 240.15c3-1(c)(13)....... 3235-0499
Appendix F to Rule 15c3-1........ 240.15c3-1f............. 3235-0496
Rule 15c3-3...................... 240.15c3-3.............. 3235-0078
Rule 15c3-4...................... 240.15c3-4.............. 3235-0497
Rule 15d-16...................... 240.15d-16.............. 3235-0116
Rule 15g-2....................... 240.15g-2............... 3235-0434
Rule 15g-3....................... 240.15g-3............... 3235-0392
Rule 15g-4....................... 240.15g-4............... 3235-0393
Rule 15g-5....................... 240.15g-5............... 3235-0394
Rule 15g-6....................... 240.15g-6............... 3235-0395
Rule 15g-9....................... 240.15g-9............... 3235-0385
Rule 15Aj-1...................... 240.15Aj-1.............. 3235-0044
Rule 15Ba2-1..................... 240.15Ba2-1............. 3235-0083
Rule 15Ba2-5..................... 240.15Ba2-5............. 3235-0088
Rule 15Bc3-1..................... 240.15Bc3-1............. 3235-0087
Rule 17a-1....................... 240.17a-1............... 3235-0208
Rule 17a-2....................... 240.17a-2............... 3235-0201
Rule 17a-3....................... 240.17a-3............... 3235-0033
Rule 17a-3(a)(16)................ 240.17a-3(a)(16)........ 3235-0508
Rule 17a-4....................... 240.17a-4............... 3235-0279
Rule 17a-4(b)(10)................ 240.17a-4(b)(10)........ 3235-0506
Rule 17a-5....................... 240.17a-5............... 3235-0123
Rule 17a-5(c).................... 240.17a-5(c)............ 3235-0199
Rule 17a-6....................... 240.17a-6............... 3235-0489
Rule 17a-7....................... 240.17a-7............... 3235-0131
Rule 17a-8....................... 240.17a-8............... 3235-0092
Rule 17a-9T...................... 240.17a-9T.............. 3235-0524
Rule 17a-10...................... 240.17a-10.............. 3235-0122
[[Page 117]]
Rule 17a-11...................... 240.17a-11.............. 3235-0085
Rule 17a-12...................... 240.17a-12.............. 3235-0498
Rule 17a-13...................... 240.17a-13.............. 3235-0035
Rule 17a-19...................... 240.17a-19.............. 3235-0133
Rule 17a-22...................... 240.17a-22.............. 3235-0196
Rule 17a-25...................... 240.17a-25.............. 3235-0540
Rule 17f-1(b).................... 240.17f-1(b)............ 3235-0032
Rule 17f-1(c).................... 240.17f-1(c)............ 3235-0037
Rule 17f-1(g).................... 240.17f-1(g)............ 3235-0290
Rule 17f-2(a).................... 240.17f-2(a)............ 3235-0034
Rule 17f-2(c).................... 240.17f-2(c)............ 3235-0029
Rule 17f-2(d).................... 240.17f-2(d)............ 3235-0028
Rule 17f-2(e).................... 240.17f-2(e)............ 3235-0031
Rule 17f-5....................... 240.17f-5............... 3235-0269
Rule 17h-1T...................... 240.17h-1T.............. 3235-0410
Rule 17h-2T...................... 240.17h-2T.............. 3235-0410
Rule 17Ab2-1..................... 240.17Ab2-1(a).......... 3235-0195
Rule 17Ac2-1..................... 240.17Ac2-1............. 3235-0084
Rule 17Ad-2(c), (d), and (h)..... 240.17Ad-2(c), (d) and 3235-0130
(h).
Rule 17Ad-3(b)................... 240.17Ad-3(b)........... 3235-0473
Rule 17Ad-4(b) and (c)........... 240.17Ad-4(b) and (c)... 3235-0341
Rule 17Ad-6...................... 240.17Ad-6.............. 3235-0291
Rule 17Ad-7...................... 240.17Ad-7.............. 3235-0291
Rule 17Ad-10..................... 240.17Ad-10............. 3235-0273
Rule 17Ad-11..................... 240.17Ad-11............. 3235-0274
Rule 17Ad-13..................... 240.17Ad-13............. 3235-0275
Rule 17Ad-15..................... 240.17Ad-15............. 3235-0409
Rule 17Ad-16..................... 240.17Ad-16............. 3235-0413
Rule 17Ad-17..................... 240.17Ad-17............. 3235-0469
Rule 19b-1....................... 240.19b-1............... 3235-0354
Rule 19b-4....................... 240.19b-4............... 3235-0045
Rule 19b-4(e).................... 240.19b-4(e)............ 3235-0504
Rule 19b-5....................... 240.19b-5............... 3235-0507
Rule 19b-7....................... 240.19b-7............... 3235-0553
Rule 19d-1....................... 240.19d-1(b) thru 3235-0206
240.19d-1(i).
Rule 19d-2....................... 240.19d-2............... 3235-0205
Rule 19d-3....................... 240.19d-3............... 3235-0204
Rule 19h-1....................... 240.19h-1(a), (c) thru 3235-0259
(e), and (g).
Rule 24b-1....................... 240.24b-1............... 3235-0194
Rule 101......................... 242.101................. 3235-0464
Rule 102......................... 242.102................. 3235-0467
Rule 103......................... 242.103................. 3235-0466
Rule 104......................... 242.104................. 3235-0465
Rule 301......................... 242.301................. 3235-0509
Rule 302......................... 242.302................. 3235-0510
Rule 303......................... 242.303................. 3235-0505
Rule 604......................... 242.604................. 3235-0462
Rule 605......................... 242.605................. 3235-0542
Rule 606......................... 242.606................. 3235-0541
Rule 607......................... 242.607................. 3235-0435
Rule 608......................... 242.608................. 3235-0500
Rule 609......................... 242.609................. 3235-0043
Rule 611......................... 242.611................. 3235-0600
Regulation S-P................... Part 248................ 3235-0537
Form 1........................... 249.1................... 3235-0017
Form 1-N......................... 249.10.................. 3235-0554
Form 25.......................... 249.25.................. 3235-0080
Form 26.......................... 249.26.................. 3235-0079
Form 3........................... 249.103................. 3235-0104
Form 4........................... 249.104................. 3235-0287
Form 5........................... 249.105................. 3235-0362
Form 8-A......................... 249.208a................ 3235-0056
Form 10.......................... 249.210................. 3235-0064
Form 10-SB....................... 249.210b................ 3235-0419
Form 18.......................... 249.218................. 3235-0121
Form 20-F........................ 249.220f................ 3235-0288
Form 40-F........................ 249.240f................ 3235-0381
Form 6-K......................... 249.306................. 3235-0116
Form 8-K......................... 249.308................. 3235-0060
Form 10-Q........................ 249.308a................ 3235-0070
Form 10-QSB...................... 249.308b................ 3235-0416
Form 10-K........................ 249.310................. 3235-0063
[[Page 118]]
Form 10-KSB...................... 249.310b................ 3235-0420
Form 11-K........................ 249.311................. 3235-0082
Form 18-K........................ 249.318................. 3235-0120
Form 12B-25...................... 249.322................. 3235-0058
Form 15.......................... 249.323................. 3235-0167
Form 13F......................... 249.325................. 3235-0006
Form SE.......................... 249.444................. 3235-0327
Form ID.......................... 249.446................. 3235-0328
Form DF.......................... 249.448................. 3235-0482
Form BD.......................... 249.501................. 3235-0012
Form BDW......................... 249.501a................ 3235-0018
Form BD-N........................ 249.501b................ 3235-0556
Form X-17A-5..................... 249.617................. 3235-0123
Form X-17A-19.................... 249.635................. 3235-0133
Form ATS......................... 249.637................. 3235-0509
Form ATS-R....................... 249.638................. 3235-0509
Form CRS......................... 249.640................. 3235-0766
Form X-15AJ-1.................... 249.802................. 3235-0044
Form X-15AJ-2.................... 249.803................. 3235-0044
Form 19b-4....................... 249.819................. 3235-0045
Form 19b-4(e).................... 249.820................. 3235-0504
Form Pilot....................... 249.821................. 3235-0507
Form SIP......................... 249.1001................ 3235-0043
Form MSD......................... 249.1100................ 3235-0083
Form MSDW........................ 249.1110................ 3235-0087
Form X-17F-1A.................... 249.1200................ 3235-0037
Form TA-1........................ 249b.100................ 3235-0084
Form TA-W........................ 249b.101................ 3235-0151
Form TA-2........................ 249b.102................ 3235-0337
Form CA-1........................ 249b.200................ 3235-0195
Rule 7a-15 thru 7a-37............ 260.7a-15 thru 260.7a-37 3235-0132
Form T-1......................... 269.1................... 3235-0110
Form T-2......................... 269.2................... 3235-0111
Form T-3......................... 269.3................... 3235-0105
Form T-4......................... 269.4................... 3235-0107
Form ID.......................... 269.7................... 3235-0328
Form SE.......................... 269.8................... 3235-0327
Form T-6......................... 269.9................... 3235-0391
Rule 0-1......................... 270.0-1................. 3235-0531
Rule 2a-7........................ 270.2a-7................ 3235-0268
Rule 2a19-1...................... 270.2a19-1.............. 3235-0332
Rule 3a-4........................ 270.3a-4................ 3235-0459
Rule 6c-7........................ 270.6c-7................ 3235-0276
Rule 6e-2........................ 270.6e-2................ 3235-0177
Rule 7d-1........................ 270.7d-1................ 3235-0311
Rule 7d-2........................ 270.7d-2................ 3235-0527
Section 8(b) of the Investment 270.8b-1 thru 270.8b-32. 3235-0176
Company Act of 1940.
Rule 10f-3....................... 270.10f-3............... 3235-0226
Rule 11a-2....................... 270.11a-2............... 3235-0272
Rule 11a-3....................... 270.11a-3............... 3235-0358
Rule 12b-1....................... 270.12b-1............... 3235-0212
Rule 17a-7....................... 270.17a-7............... 3235-0214
Rule 17a-8....................... 270.17a-8............... 3235-0235
Rule 17e-1....................... 270.17e-1............... 3235-0217
Rule 17f-1....................... 270.17f-1............... 3235-0222
Rule 17f-2....................... 270.17f-2............... 3235-0223
Rule 17f-4....................... 270.17f-4............... 3235-0225
Rule 17f-6....................... 270.17f-6............... 3235-0447
Rule 17f-7....................... 270.17f-7............... 3235-0529
Rule 17g-1(g).................... 270.17g-1(g)............ 3235-0213
Rule 17j-1....................... 270.17j-1............... 3235-0224
Rule 18f-1....................... 270.18f-1............... 3235-0211
Rule 18f-3....................... 270.18f-3............... 3235-0441
Rule 19a-1....................... 270.19a-1............... 3235-0216
Rule 20a-1....................... 270.20a-1............... 3235-0158
Rule 22d-1....................... 270.22d-1............... 3235-0310
Rule 23c-1....................... 270.23c-1............... 3235-0260
Rule 23c-3....................... 270.23c-3............... 3235-0422
Rule 27e-1....................... 270.27e-1............... 3235-0545
Rule 30b2-1...................... 270.30b2-1.............. 3235-0220
Rule 30d-2....................... 270.30d-2............... 3235-0494
Rule 30e-1....................... 270.30e-1............... 3235-0025
[[Page 119]]
Rule 30e-3....................... 270.30e-3............... 3235-0758
Rule 31a-1....................... 270.31a-1............... 3235-0178
Rule 31a-2....................... 270.31a-2............... 3235-0179
Rule 32a-4....................... 270.32a-4............... 3235-0530
Rule 34b-1....................... 270.34b-1............... 3235-0346
Rule 35d-1....................... 270.35d-1............... 3235-0548
Form N-5......................... 274.5................... 3235-0169
Form N-8A........................ 274.10.................. 3235-0175
Form N-2......................... 274.11a-1............... 3235-0026
Form N-3......................... 274.11b................. 3235-0316
Form N-4......................... 274.11c................. 3235-0318
Form N-8B-2...................... 274.12.................. 3235-0186
Form N-6F........................ 274.15.................. 3235-0238
Form 24F-2....................... 274.24.................. 3235-0456
Form N-18F-1..................... 274.51.................. 3235-0211
Form N-54A....................... 274.53.................. 3235-0237
Form N-54C....................... 274.54.................. 3235-0236
Form N-CEN....................... 274.101................. 3235-0729
Form N-27E-1..................... 274.127e-1.............. 3235-0545
Form N-27F-1..................... 274.127f-1.............. 3235-0546
Form N-PORT...................... 274.150................. 3235-0730
Form N-17D-1..................... 274.200................. 3235-0229
Form N-23C-1..................... 274.201................. 3235-0230
Form N-8F........................ 274.218................. 3235-0157
Form N-17F-1..................... 274.219................. 3235-0359
Form N-17F-2..................... 274.220................. 3235-0360
Form N-23c-3..................... 274.221................. 3235-0422
Form ID.......................... 274.402................. 3235-0328
Form SE.......................... 274.403................. 3235-0327
Rule 0-2......................... 275.0-2................. 3235-0240
Rule 203-3....................... 275.203-3............... 3235-0538
Rule 204-2....................... 275.204-2............... 3235-0278
Rule 204-3....................... 275.204-3............... 3235-0047
Rule 206(3)-2.................... 275.206(3)-2............ 3235-0243
Rule 206(4)-2.................... 275.206(4)-2............ 3235-0241
Rule 206(4)-3.................... 275.206(4)-3............ 3235-0242
Rule 206(4)-4.................... 275.206(4)-4............ 3235-0345
Form ADV......................... 279.1................... 3235-0049
Schedule I to Form ADV........... 279.1................... 3235-0490
Form ADV-W....................... 279.2................... 3235-0313
Form ADV-H....................... 379.3................... 3235-0538
Form 4-R......................... 279.4................... 3235-0240
Form 5-R......................... 279.5................... 3235-0240
Form 6-R......................... 279.6................... 3235-0240
Form 7-R......................... 279.7................... 3235-0240
Form ADV-E....................... 279.8................... 3235-0361
------------------------------------------------------------------------
[67 FR 14634, Mar. 27, 2002, as amended at 70 FR 37611, June 29, 2005;
76 FR 46616, Aug. 3, 2011; 77 FR 18684, Mar. 28, 2012; 80 FR 6902, Feb.
9, 2015; 82 FR 82009, Nov. 18, 2016; 83 FR 29203, June 22, 2018; 84 FR
33629, July 12, 2019]
PART 201_RULES OF PRACTICE--Table of Contents
Subpart A [Reserved]
Subpart B_Regulations Pertaining to the Equal Access to Justice Act
Sec.
201.31 Purpose of these rules.
201.32 When the Act applies.
201.33 Proceedings covered.
201.34 Eligibility of applicants.
201.35 Standards for awards.
201.36 Allowable fees and expenses.
201.37 Delegations of authority.
201.41 Contents of application.
201.42 Net worth exhibit.
201.43 Documentation of fees and expenses.
201.44 When an application may be filed.
201.51 Filing and service of documents.
201.52 Answer to application.
201.53 Reply.
201.54 Settlement.
201.55 Further proceedings.
201.56 Decision.
201.57 Commission review.
201.58 Judicial review.
201.59 Payment of award.
201.60 [Reserved]
Subpart C [Reserved]
[[Page 120]]
Subpart D_Rules of Practice
General Rules
201.100 Scope of the rules of practice.
201.101 Definitions.
201.102 Appearance and practice before the Commission.
201.103 Construction of rules.
201.104 Business hours.
201.110 Presiding officer.
201.111 Hearing officer: Authority.
201.112 Hearing officer: Disqualification and withdrawal.
201.120 Ex parte communications.
201.121 Separation of functions.
201.140 Commission orders and decisions: Signature and availability.
201.141 Orders and decisions: Service of orders instituting proceedings
and other orders and decisions.
201.150 Service of papers by parties.
201.151 Filing of papers with the Commission: Procedure.
201.152 Filing of papers: Form.
201.153 Filing of papers: Signature requirement and effect.
201.154 Motions.
201.155 Default; motion to set aside default.
201.160 Time computation.
201.161 Extensions of time, postponements and adjournments.
201.180 Sanctions.
201.190 Confidential treatment of information in certain filings.
201.191 Adjudications not required to be determined on the record after
notice and opportunity for hearing.
201.192 Rulemaking: Issuance, amendment and repeal of rules of general
application.
201.193 Applications by barred individuals for consent to associate.
201.194 Applications by security-based swap dealers or major security-
based swap participants for statutorily disqualified
associated persons to effect or be involved in effecting
security-based swaps.
Initiation of Proceedings and Prehearing Rules
201.200 Initiation of proceedings.
201.201 Consolidation and severance of proceedings.
201.202 Specification of procedures by parties in certain proceedings.
201.210 Parties, limited participants and amici curiae.
201.220 Answer to allegations.
201.221 Prehearing conference.
201.222 Prehearing submissions and disclosures.
201.230 Enforcement and disciplinary proceedings: Availability of
documents for inspection and copying.
201.231 Enforcement and disciplinary proceedings: Production of witness
statements.
201.232 Subpoenas.
201.233 Depositions upon oral examination.
201.234 Depositions upon written questions.
201.235 Introducing prior sworn statements or declarations.
201.240 Settlement.
201.250 Dispositive motions.
Rules Regarding Hearings
201.300 Hearings.
201.301 Hearings to be public.
201.302 Record of hearings.
201.310 Failure to appear at hearings: Default.
201.320 Evidence: Admissibility.
201.321 Evidence: Objections and offers of proof.
201.322 Evidence: Confidential information, protective orders.
201.323 Evidence: Official notice.
201.324 Evidence: Stipulations.
201.325 Evidence: Presentation under oath or affirmation.
201.326 Evidence: Presentation, rebuttal and cross-examination.
201.340 Proposed findings, conclusions and supporting briefs.
201.350 Record in proceedings before hearing officer; retention of
documents; copies.
201.351 Transmittal of documents to Secretary; record index;
certification.
201.360 Initial decision of hearing officer and timing of hearing.
Appeal to the Commission and Commission Review
201.400 Interlocutory review.
201.401 Consideration of stays.
201.410 Appeal of initial decisions by hearing officers.
201.411 Commission consideration of initial decisions by hearing
officers.
201.420 Appeal of determinations by self-regulatory organizations.
201.421 Commission consideration of determinations by self-regulatory
organizations.
201.430 Appeal of actions made pursuant to delegated authority.
201.431 Commission consideration of actions made pursuant to delegated
authority.
201.440 Appeal of determinations by the Public Company Accounting
Oversight Board.
201.441 Commission consideration of Board determinations.
201.450 Briefs filed with the Commission.
201.451 Oral argument before the Commission.
201.452 Additional evidence.
201.460 Record before the Commission.
201.470 Reconsideration.
201.490 Receipt of petitions for judicial review pursuant to 28 U.S.C.
2112(a)(1).
[[Page 121]]
Rules Relating to Temporary Orders and Suspensions
201.500 Expedited consideration of proceedings.
201.510 Temporary cease-and-desist orders: Application process.
201.511 Temporary cease-and-desist orders: Notice; procedures for
hearing.
201.512 Temporary cease-and-desist orders: Issuance after notice and
opportunity for hearing.
201.513 Temporary cease-and-desist orders: Issuance without prior notice
and opportunity for hearing.
201.514 Temporary cease-and-desist orders: Judicial review; duration.
201.520 Suspension of registration of brokers, dealers, or other
Exchange Act-registered entities: Application.
201.521 Suspension of registration of brokers, dealers, or other
Exchange Act-registered entities: Notice and opportunity for
hearing on application.
201.522 Suspension of registration of brokers, dealers, or other
Exchange Act-registered entities: Issuance and review of
order.
201.523 [Reserved]
201.524 Suspension of registrations: Duration.
201.530 Initial decision on permanent order: Timing for submitting
proposed findings and preparation of decision.
201.531 Initial decision on permanent order: Effect on temporary order.
201.540 Appeal and Commission review of initial decision making a
temporary order permanent.
201.550 Summary suspensions pursuant to Exchange Act Section
12(k)(1)(A).
Rules Regarding Disgorgement and Penalty Payments
201.600 Interest on sums disgorged.
201.601 Prompt payment of disgorgement, interest and penalties.
201.610-201.614 [Reserved]
201.620 [Reserved]
201.630 Inability to pay disgorgement, interest or penalties.
201.700 Initiation of proceedings for SRO proposed rule changes.
201.701 Issuance of order.
Informal Procedures and Supplementary Information Concerning
Adjudicatory Proceedings
201.900 Informal procedures and supplementary information concerning
adjudicatory proceedings.
Subpart E_Adjustment of Civil Monetary Penalties
201.1001 Adjustment of civil monetary penalties.
Subpart F_Fair Fund and Disgorgement Plans
201.1100 Creation of Fair Fund.
201.1101 Submission of plan of distribution; contents of plan.
201.1102 Provisions for payment.
201.1103 Notice of proposed plan and opportunity for comment by non-
parties.
201.1104 Order approving, modifying, or disapproving proposed plan.
201.1105 Administration of plan.
201.1106 Right to challenge.
Authority: 15 U.S.C. 77s, 77sss, 78w, 78x, 80a-37, and 80b-11; 5
U.S.C. 504(c)(1).
Sections 201.700 and 201.701 are also issued under sec. 916, Pub. L.
111-203, 124 Stat. 1376.
Source: 47 FR 610, Jan. 6, 1982, unless otherwise noted.
Subpart A [Reserved]
Subpart B_Regulations Pertaining to the Equal Access to Justice Act
Sec. 201.31 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (called the Act in
this subpart B), provides for the award of attorney fees and other
expenses to eligible individuals and entities who are parties to certain
administrative proceedings (called adversary adjudications) before the
Commission. An eligible party may receive an award when it prevails over
the Commission, unless the Commission's position was substantially
justified or special circumstances make an award unjust. The rules in
this subpart describe the parties eligible for awards and the
proceedings that are covered. They also explain how to apply for awards,
and the procedures and standards that the Commission will use in ruling
on those applications.
[54 FR 53051, Dec. 27, 1989]
Sec. 201.32 When the Act applies.
The Act applies to adversary adjudications described in Sec. 201.33
pending or commenced before the Commission on or after August 5, 1985.
It also applies to any adversary adjudication commenced on or after
October 1, 1984, and finally disposed of before August 5, 1985, provided
that an application for fees and expenses, as described in these
[[Page 122]]
rules, has been filed with the Commission within 30 days after August 5,
1985. Proceedings which have been substantially concluded are not deemed
pending under these rules although officially pending for purposes such
as concluding remedial actions found in Commission orders or private
undertakings.
[54 FR 53051, Dec. 27, 1989]
Sec. 201.33 Proceedings covered.
(a) The Act applies to adversary adjudications conducted by the
Commission. These are on the record adjudications under 5 U.S.C. 554 in
which the position of an Office or Division of the Commission as a
party, not including amicus participation, is presented by an attorney
or other representative who enters an appearance and participates in the
proceeding. See appendix, 17 CFR 201.60.
(b) The fact that the Commission has not identified a type of
proceeding as an adversary adjudication shall not preclude the filing of
an application by a party who believes the proceeding is covered by the
Act; whether the proceeding is covered will then be an issue for
resolution in proceedings on the application.
(c) If a proceeding includes both matters covered by the Act and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
[47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989]
Sec. 201.34 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to the adversary
adjudication for which it seeks it seeks an award. The term party is
defined in 5 U.S.C. 551(3). The applicant must show that it meets all
conditions of eligibility set out in this subpart.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including both personal and business
interests, and not more than 500 employees;
(3) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with more than 500
employees; and
(5) Any other partnership, corporation, association, unit of local
government, or public or private organization with a new worth of not
more than $7 million and not more than 500 employees.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
(d) An applicant who owns an unincorporated business will be
considered as an individual rather than a sole owner of an
unincorporated business if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(e) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be included
on a proportional basis.
(f) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
subpart, unless the administrative law judge determines that such
treatment would be unjust and contrary to the purposes of the Act in
light of the actual relationship between the affiliated entities. In
addition, the administrative law judge may determine that financial
relationships of the applicant other than those described in this
paragraph constitute special circumstances that would make an award
unjust.
[[Page 123]]
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
[47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989]
Sec. 201.35 Standards for awards.
(a) A prevailing applicant may receive an award for fees and
expenses incurred in connection with a proceeding or in a significant
and discrete substantive portion of the proceeding, unless the position
of the Office or Division over which the applicant has prevailed was
substantially justified. The position of the Office or Division
includes, in addition to the position taken by the Office or Division in
the adversary adjudication, the action or failure to act by the Office
or Division upon which the adversary adjudication is based. The burden
of proof that an award should not be made to an eligible prevailing
applicant is on counsel for an Office or Division of the Commission,
which must show that its position was reasonable in law and fact.
(b) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceeding or if special circumstances
make the award sought unjust.
[47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989]
Sec. 201.36 Allowable fees and expenses.
(a) Subject to the limitation of paragraph (b), awards will be based
on rates customarily charged, in the locale of the hearing, by persons
engaged in the business of acting as attorneys, agents and expert
witnesses, even if the services were made available without charge or at
a reduced rate to the applicant.
(b) No award of the fee of an attorney or agent under these rules
may exceed $75.00 per hour. No award to compensate an expert witness may
exceed the reasonable rate at which the Commission pays witnesses with
similar expertise. However, an award may also include the reasonable
expenses of the attorney, agent or witness as a separate item, if the
attorney, agent or witness ordinarily charges clients separately for
such expenses.
(c) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the administrative law judge shall
consider the following:
(1) If the attorney, agent or witness is in private practice, his or
her customary fee for similar services, or, if an employee of the
applicant the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services
provided.
(d) The reasonable cost of any study, analysis, engineering report,
test, project or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.
[47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989]
Sec. 201.37 Delegations of authority.
(a) The Commission may by order delegate authority to take final
action on matters pertaining to the Equal Access to Justice Act in
particular cases.
(b) Unless the Commission shall order otherwise, applications for
awards of fees and expenses made pursuant to this subject shall be
assigned by the Chief Administrative Law Judge to an administrative law
judge for determination.
[54 FR 53051, Dec. 27, 1989]
Sec. 201.41 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant, the proceeding for which an award is
sought and contain the information required in this subpart. The
application shall show that the applicant has prevailed and specify the
position(s) of the opposing Office or Division in the proceeding
[[Page 124]]
that the applicant alleges was not substantially justified. Unless the
applicant is an individual, the application shall also state the number
of employees of the applicant and describe briefly the type and purpose
of its organization or business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $2 million (if an individual) or
$7 million (for all other applicants, including their affiliates).
However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant wishes the Commission to consider in determining whether and
in what amount an award should be made.
(e) The application shall be signed by the applicant or an
authorized officer or attorney of the applicant. It shall also contain
or be accompanied by a written verification under oath or under penalty
of perjury that the information provided in the application is true and
correct.
[47 FR 610, Jan. 6, 1982, as amended at 54 FR 53051, Dec. 27, 1989]
Sec. 201.42 Net worth exhibit.
(a) Each applicant, except a qualified tax-exempt organization or
cooperative association, must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
defined in Sec. 201.34(f) of this part) when the proceeding was
initiated. The exhibit may be in any form convenient to the applicant
that provides full disclosure of the applicant's and its affiliates'
assets and liabilities and is sufficient to determine whether the
applicant qualifies under the standards in this subpart. The
administrative law judge or the Commission may require an applicant to
file additional information to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public
record of the proceeding. However, an applicant that objects to public
disclosure of information in any portion of the exhibit and believes
there are legal grounds for withholding it from disclosure may submit
that exhibit in accordance with 17 CFR 201.190.
[47 FR 610, Jan. 6, 1982, as amended at 60 FR 32795, June 23, 1995]
Sec. 201.43 Documentation of fees and expenses.
The application shall be accompanied by full documentation of the
fees and expenses, including the cost of any study, analysis,
engineering report, test, project or similar matter, for which an award
is sought. A separate itemized statement shall be submitted for each
professional firm or individual whose services are covered by the
application, showing the hours spent in connection with the proceeding
by each individual, a description of the specific services performed,
the rate at which each fee has been computed, any expenses for which
reimbursement is sought, the total amount claimed, and the total amount
paid or payable by the applicant or by any other person or entity for
the services provided. The applicant may be required to provide
vouchers, receipts, or other substantiation for any fees or expenses
claimed.
Sec. 201.44 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed
in the proceeding or in a significant and discrete substantive portion
of the proceeding, but in no case later than 30 days after the
Commission's final disposition of the proceeding.
(b) For purposes of this rule, final disposition means the date on
which a
[[Page 125]]
decision or order disposing of the merits of the proceeding or any other
complete resolution of the proceeding, such as a settlement or voluntary
dismissal, becomes final and unappealable, both within the Commission
and to the courts.
(c) If review or reconsideration is sought or taken of a decision as
to which an applicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy.
[47 FR 610, Jan. 6, 1982, as amended at 54 FR 53052, Dec. 27, 1989]
Sec. 201.51 Filing and service of documents.
Any application for an award or other document related to an
application shall be filed and served in the same manner as other papers
in proceedings under the Commission's Rules of Practice. In addition, a
copy of each application for fees and expenses shall be served on the
General Counsel of the Commission.
Sec. 201.52 Answer to application.
(a) Within 30 days after service of an application, counsel
representing the Office or Division of the Commission may file an answer
to the application. Unless the Office or Division of the Commission
counsel requests an extension of time for filing or files a statement of
intent to negotiate under paragraph (b) of this section, failure to file
an answer within the 30-day period may be treated as a consent to the
award requested.
(b) If counsel for the Office or Division of the Commission and the
applicant believe that the issues in the fee application can be settled,
they may jointly file a statement of their intent to negotiate a
settlement. The filing of this statement shall extend the time for
filing an answer for an additional 30 days, and further extensions may
be granted upon request by agency counsel and the applicant.
(c) The answer shall explain any objections to the award requested
and identify the facts relied on in support of that position. If the
answer is based on any alleged facts not already in the record of the
proceeding, it shall include supporting affidavits or a request for
further proceedings under Sec. 201.55.
Sec. 201.53 Reply.
Within 15 days after service of an answer, the applicant may file a
reply. If the reply is based on any alleged facts not already in the
record of the proceeding, the applicant shall include with the reply
either supporting affidavits or a request for further proceedings under
Sec. 201.55.
Sec. 201.54 Settlement.
The applicant and counsel for the Office or Division of the
Commission may agree on a proposed settlement of the award before final
action on the application, either in connection with a settlement of the
underlying proceeding or after the underlying proceeding has been
concluded, in accordance with the Commission's standard settlement
procedure. See 17 CFR 201.240. If a prevailing party and counsel for the
Office or Division of the Commission agree on a proposed settlement of
an award before an application has been filed, the application shall be
filed with the proposed settlement. If a proposed settlement provides
that each side shall bear its own expenses, and the settlement is
accepted, no application may be filed.
[54 FR 53052, Dec. 27, 1989, as amended at 60 FR 32795, June 23, 1995]
Sec. 201.55 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the applicant
or counsel for the Office or Division of the Commission, or on his or
her own initiative, the administrative law judge may order further
proceedings, such as an informal conference, oral argument, additional
written submissions or, as to issues other than substantial
justification (such as the applicant's eligibility or substantiation of
fees and expenses) an evidentiary hearing. The administrative law judge
may order all proceedings that are otherwise available under Sec.
201.221 and Sec. 201.222(a). Such further proceedings shall be held
only when necessary for full and fair resolution of the issues arising
from the application, and shall be conducted as promptly as possible.
Whether or
[[Page 126]]
not the Commission's position was substantially justified shall be
determined on the basis of the administrative record, as a whole, which
is made in the adversary adjudication for which fees and other expenses
are sought.
(b) A request for further proceedings under this section shall
specifically identify the information sought or the disputed issues and
shall explain why the additional proceedings are necessary to resolve
the issues.
[47 FR 610, Jan. 6, 1982, as amended at 54 FR 53052, Dec. 27, 1989; 70
FR 72569, Dec. 5, 2005]
Sec. 201.56 Decision.
The administrative law judge shall issue an initial decision on the
application promptly after completion of proceedings on the application.
The decision shall include written findings and conclusions on the
applicant's eligibility and status as a prevailing party, and an
explanation of the reasons for any difference between the amount
requested and the amount awarded. The decision shall also include, if at
issue, findings on whether the Commission's position was substantially
justified, whether the applicant unduly protracted the proceedings, or
whether special circumstances make an award unjust.
Sec. 201.57 Commission review.
In accordance with the procedures set forth in 17 CFR 201.410 and
201.411, either the applicant or counsel for the Office or Division of
the Commission may seek review of the initial decision on the fee
application, or the Commission may decide to review the decision on its
own initiative. If neither the applicant nor counsel for the Division or
Office of the Commission seeks review and the Commission does not take
review on its own initiative, the initial decision on the application
shall become a final decision of the Commission 30 days after it is
issued. Whether to review a decision is a matter within the discretion
of the Commission. If review is taken, the Commission will issue a final
decision on the application or remand the application to the
administrative law judge for further proceedings.
[47 FR 610, Jan. 6, 1982, as amended at 60 FR 32795, June 23, 1995]
Sec. 201.58 Judicial review.
Judicial review of final Commission decisions on awards may be
sought as provided in 5 U.S.C. 504(c)(2).
Sec. 201.59 Payment of award.
An applicant seeking payment of an award shall submit to the Chief
Financial Officer of the Commission a copy of the Commission's final
decision granting the award, accompanied by a sworn statement that the
applicant will not seek review of the decision in the United States
courts. The Commission will pay the amount awarded to the applicant as
authorized by law, unless judicial review of the award has been sought
by the applicant.
[54 FR 53052, Dec. 27, 1989, as amended at 76 FR 60372, Sept. 29, 2011]
Sec. 201.60 [Reserved]
Subpart C [Reserved]
Subpart D_Rules of Practice
Authority: 15 U.S.C. 77f, 77g, 77h, 77h-1, 77j, 77s, 77u, 77sss,
77ttt, 78(c)(b), 78d-1, 78d-2, 78l, 78m, 78n, 78o(d), 78o-3, 78o-
10(b)(6), 78s, 78u-2, 78u-3, 78v, 78w, 80a-8, 80a-9, 80a-37, 80a-38,
80a-39, 80a-40, 80a-41, 80a-44, 80b-3, 80b-9, 80b-11, 80b-12, 7202,
7215, and 7217.
Effective Date Note: At 85 FR 6349, Feb. 4, 2020, the authority
citation for subpart D to part 201 was revised, effective Apr. 6, 2020.
For the convenience of the user, the revised text is set forth as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77h-1, 77j, 77s, 77u, 77sss,
77ttt, 78(c)(b), 78d-1, 78d-2, 78l, 78m, 78n, 78o(d), 78o-3, 78o-
10(b)(6), 78s, 78u-2, 78u-3, 78v, 78w, 80a-8, 80a-9, 80a-37, 80a-38,
80a-39, 80a-40, 80a-41, 80a-44, 80b-3, 80b-9, 80b-11, 80b-12, 7202,
7215, and 7217.
Source: 60 FR 32796, June 23, 1995, unless otherwise noted.
General Rules
Sec. 201.100 Scope of the rules of practice.
(a) Unless provided otherwise, these Rules of Practice govern
proceedings before the Commission under the statutes that it
administers.
[[Page 127]]
(b) These rules do not apply to:
(1) Investigations, except where made specifically applicable by the
Rules Relating to Investigations, part 203 of this chapter; or
(2) Actions taken by the duty officer pursuant to delegated
authority under 17 CFR 200.43.
(3) Initiation of proceedings for SRO proposed rule changes under 17
CFR 201.700-701, except where made specifically applicable therein.
(c) The Commission, upon its determination that to do so would serve
the interests of justice and not result in prejudice to the parties to
the proceeding, may by order direct, in a particular proceeding, that an
alternative procedure shall apply or that compliance with an otherwise
applicable rule is unnecessary.
[60 FR 32796, June 23, 1995; 60 FR 46499, Sept. 7, 1995, as amended at
69 FR 13175, Mar. 19, 2004; 76 FR 4070, Jan. 24, 2011]
Sec. 201.101 Definitions.
(a) For purposes of these Rules of Practice, unless explicitly
stated to the contrary:
(1) Commission means the United States Securities and Exchange
Commission, or a panel of Commissioners constituting a quorum of the
Commission, or a single Commissioner acting as duty officer pursuant to
17 CFR 200.43;
(2) Counsel means any attorney representing a party or any other
person representing a party pursuant to Sec. 201.102(b);
(3) Disciplinary proceeding means an action pursuant to Sec.
201.102(e);
(4) Enforcement proceeding means an action, initiated by an order
instituting proceedings, held for the purpose of determining whether or
not a person is about to violate, has violated, has caused a violation
of, or has aided or abetted a violation of any statute or rule
administered by the Commission, or whether to impose a sanction as
defined in Section 551(10) of the Administrative Procedure Act, 5 U.S.C.
551(10);
(5) Hearing officer means an administrative law judge, a panel of
Commissioners constituting less than a quorum of the Commission, an
individual Commissioner, or any other person duly authorized to preside
at a hearing;
(6) Interested division means a division or an office assigned
primary responsibility by the Commission to participate in a particular
proceeding;
(7) Order instituting proceedings means an order issued by the
Commission commencing a proceeding or an order issued by the Commission
to hold a hearing;
(8) Party means the interested division, any person named as a
respondent in an order instituting proceedings, any applicant named in
the caption of any order, persons entitled to notice in a stop order
proceeding as set forth in Sec. 201.200(a)(2) or any person seeking
Commission review of a decision;
(9) Proceeding means any agency process initiated:
(i) By an order instituting proceedings; or
(ii) By the filing, pursuant to Sec. 201.410, of a petition for
review of an initial decision by a hearing officer; or
(iii) By the filing, pursuant to Sec. 201.420, of an application
for review of a self-regulatory organization determination; or
(iv) By the filing, pursuant to Sec. 201.430, of a notice of
intention to file a petition for review of a determination made pursuant
to delegated authority; or
(v) By the filing, pursuant to Sec. 201.440, of an application for
review of a determination by the Public Company Accounting Oversight
Board; or
(vi) By the filing, pursuant to Sec. 242.601 of this chapter, of an
application for review of an action or failure to act in connection with
the implementation or operation of any effective transaction reporting
plan; or
(vii) By the filing, pursuant to Sec. 242.608 of this chapter, of
an application for review of an action taken or failure to act in
connection with the implementation or operation of any effective
national market system plan; or
(viii) By the filing, pursuant to Section 11A(b)(5) of the
Securities Exchange Act of 1934, of an application for review of a
determination of a registered securities information processor;
[[Page 128]]
(10) Secretary means the Secretary of the Commission;
(11) Temporary sanction means a temporary cease-and-desist order or
a temporary suspension of the registration of a broker, dealer,
municipal securities dealer, government securities broker, government
securities dealer, or transfer agent pending final determination whether
the registration shall be revoked; and
(12) Board means the Public Company Accounting Oversight Board.
(b) [Reserved]
[60 FR 32796, June 23, 1995, as amended at 69 FR 13175, Mar. 19, 2004;
70 FR 37617, June 29, 2005]
Sec. 201.102 Appearance and practice before the Commission.
A person shall not be represented before the Commission or a hearing
officer except as stated in paragraphs (a) and (b) of this section or as
otherwise permitted by the Commission or a hearing officer.
(a) Representing oneself. In any proceeding, an individual may
appear on his or her own behalf.
(b) Representing others. In any proceeding, a person may be
represented by an attorney at law admitted to practice before the
Supreme Court of the United States or the highest court of any State (as
defined in Section 3(a)(16) of the Exchange Act, 15 U.S.C. 78c(a)(16));
a member of a partnership may represent the partnership; a bona fide
officer of a corporation, trust or association may represent the
corporation, trust or association; and an officer or employee of a state
commission or of a department or political subdivision of a state may
represent the state commission or the department or political
subdivision of the state.
(c) Former Commission employees. Former employees of the Commission
must comply with the restrictions on practice contained in the
Commission's Conduct Regulation, Subpart M, 17 CFR 200.735.
(d) Designation of address for service; notice of appearance; power
of attorney; withdrawal--(1) Representing oneself. When an individual
first makes any filing or otherwise appears on his or her own behalf
before the Commission or a hearing officer in a proceeding as defined in
Sec. 201.101(a), he or she shall file with the Commission, or otherwise
state on the record, and keep current, an address at which any notice or
other written communication required to be served upon him or her or
furnished to him or her may be sent and a telephone number where he or
she may be reached during business hours.
(2) Representing others. When a person first makes any filing or
otherwise appears in a representative capacity before the Commission or
a hearing officer in a proceeding as defined in Sec. 201.101(a), that
person shall file with the Commission, and keep current, a written
notice stating the name of the proceeding; the representative's name,
business address and telephone number; and the name and address of the
person or persons represented.
(3) Power of attorney. Any individual appearing or practicing before
the Commission in a representative capacity may be required to file a
power of attorney with the Commission showing his or her authority to
act in such capacity.
(4) Withdrawal. Any person seeking to withdraw his or her appearance
in a representative capacity shall file a notice of withdrawal with the
Commission or the hearing officer. The notice shall state the name,
address, and telephone number of the withdrawing representative; the
name, address, and telephone number of the person for whom the
appearance was made; and the effective date of the withdrawal. If the
person seeking to withdraw knows the name, address, and telephone number
of the new representative, or knows that the person for whom the
appearance was made intends to represent him- or herself, that
information shall be included in the notice. The notice must be served
on the parties in accordance with Sec. 201.150. The notice shall be
filed at least five days before the proposed effective date of the
withdrawal.
(e) Suspension and disbarment--(1) Generally. The Commission may
censure a person or deny, temporarily or permanently, the privilege of
appearing or practicing before it in any way to any person who is found
by the Commission after notice and opportunity for hearing in the
matter:
[[Page 129]]
(i) Not to possess the requisite qualifications to represent others;
or
(ii) To be lacking in character or integrity or to have engaged in
unethical or improper professional conduct; or
(iii) To have willfully violated, or willfully aided and abetted the
violation of any provision of the Federal securities laws or the rules
and regulations thereunder.
(iv) With respect to persons licensed to practice as accountants,
``improper professional conduct'' under Sec. 201.102(e)(1)(ii) means:
(A) Intentional or knowing conduct, including reckless conduct, that
results in a violation of applicable professional standards; or
(B) Either of the following two types of negligent conduct:
(1) A single instance of highly unreasonable conduct that results in
a violation of applicable professional standards in circumstances in
which an accountant knows, or should know, that heightened scrutiny is
warranted.
(2) Repeated instances of unreasonable conduct, each resulting in a
violation of applicable professional standards, that indicate a lack of
competence to practice before the Commission.
(2) Certain professionals and convicted persons. Any attorney who
has been suspended or disbarred by a court of the United States or of
any State; or any person whose license to practice as an accountant,
engineer, or other professional or expert has been revoked or suspended
in any State; or any person who has been convicted of a felony or a
misdemeanor involving moral turpitude shall be forthwith suspended from
appearing or practicing before the Commission. A disbarment, suspension,
revocation or conviction within the meaning of this section shall be
deemed to have occurred when the disbarring, suspending, revoking or
convicting agency or tribunal enters its judgment or order, including a
judgment or order on a plea of nolo contendere, regardless of whether an
appeal of such judgment or order is pending or could be taken.
(3) Temporary suspensions. An order of temporary suspension shall
become effective upon service on the respondent. No order of temporary
suspension shall be entered by the Commission pursuant to paragraph
(e)(3)(i) of this section more than 90 days after the date on which the
final judgment or order entered in a judicial or administrative
proceeding described in paragraph (e)(3)(i)(A) or (e)(3)(i)(B) of this
section has become effective, whether upon completion of review or
appeal procedures or because further review or appeal procedures are no
longer available.
(i) The Commission, with due regard to the public interest and
without preliminary hearing, may, by order, temporarily suspend from
appearing or practicing before it any attorney, accountant, engineer, or
other professional or expert who has been by name:
(A) Permanently enjoined by any court of competent jurisdiction, by
reason of his or her misconduct in an action brought by the Commission,
from violating or aiding and abetting the violation of any provision of
the Federal securities laws or of the rules and regulations thereunder;
or
(B) Found by any court of competent jurisdiction in an action
brought by the Commission to which he or she is a party or found by the
Commission in any administrative proceeding to which he or she is a
party to have violated (unless the violation was found not to have been
willful) or aided and abetted the violation of any provision of the
Federal securities laws or of the rules and regulations thereunder.
(ii) Any person temporarily suspended from appearing and practicing
before the Commission in accordance with paragraph (e)(3)(i) of this
section may, within 30 days after service upon him or her of the order
of temporary suspension, petition the Commission to lift the temporary
suspension. If no petition has been received by the Commission within 30
days after service of the order, the suspension shall become permanent.
(iii) Within 30 days after the filing of a petition in accordance
with paragraph (e)(3)(ii) of this section, the Commission shall either
lift the temporary suspension, or set the matter down for hearing at a
time and place designated by the Commission, or both, and, after
opportunity for hearing, may censure
[[Page 130]]
the petitioner or disqualify the petitioner from appearing or practicing
before the Commission for a period of time or permanently. In every case
in which the temporary suspension has not been lifted, every hearing
held and other action taken pursuant to this paragraph (e)(3) shall be
expedited in accordance with Sec. 201.500. If the hearing is held
before a hearing officer, the time limits set forth in Sec. 201.540
will govern review of the hearing officer's initial decision.
(iv) In any hearing held on a petition filed in accordance with
paragraph (e)(3)(ii) of this section, the staff of the Commission shall
show either that the petitioner has been enjoined as described in
paragraph (e)(3)(i)(A) of this section or that the petitioner has been
found to have committed or aided and abetted violations as described in
paragraph (e)(3)(i)(B) of this section and that showing, without more,
may be the basis for censure or disqualification. Once that showing has
been made, the burden shall be upon the petitioner to show cause why he
or she should not be censured or temporarily or permanently disqualified
from appearing and practicing before the Commission. In any such
hearing, the petitioner may not contest any finding made against him or
her or fact admitted by him or her in the judicial or administrative
proceeding upon which the proceeding under this paragraph (e)(3) is
predicated. A person who has consented to the entry of a permanent
injunction as described in paragraph (e)(3)(i)(A) of this section
without admitting the facts set forth in the complaint shall be presumed
for all purposes under this paragraph (e)(3) to have been enjoined by
reason of the misconduct alleged in the complaint.
(4) Filing of prior orders. Any person appearing or practicing
before the Commission who has been the subject of an order, judgment,
decree, or finding as set forth in paragraph (e)(3) of this section
shall promptly file with the Secretary a copy thereof (together with any
related opinion or statement of the agency or tribunal involved).
Failure to file any such paper, order, judgment, decree or finding shall
not impair the operation of any other provision of this section.
(5) Reinstatement. (i) An application for reinstatement of a person
permanently suspended or disqualified under paragraph (e)(1) or (e)(3)
of this section may be made at any time, and the applicant may, in the
Commission's discretion, be afforded a hearing; however, the suspension
or disqualification shall continue unless and until the applicant has
been reinstated by the Commission for good cause shown.
(ii) Any person suspended under paragraph (e)(2) of this section
shall be reinstated by the Commission, upon appropriate application, if
all the grounds for application of the provisions of that paragraph are
subsequently removed by a reversal of the conviction or termination of
the suspension, disbarment, or revocation. An application for
reinstatement on any other grounds by any person suspended under
paragraph (e)(2) of this section may be filed at any time and the
applicant shall be accorded an opportunity for a hearing in the matter;
however, such suspension shall continue unless and until the applicant
has been reinstated by order of the Commission for good cause shown.
(6) Other proceedings not precluded. A proceeding brought under
paragraph (e)(1), (e)(2) or (e)(3) of this section shall not preclude
another proceeding brought under these same paragraphs.
(7) Public hearings. All hearings held under this paragraph (e)
shall be public unless otherwise ordered by the Commission on its own
motion or after considering the motion of a party.
(f) Practice defined. For the purposes of these Rules of Practice,
practicing before the Commission shall include, but shall not be limited
to:
(1) Transacting any business with the Commission; and
(2) The preparation of any statement, opinion or other paper by any
attorney, accountant, engineer or other professional or expert, filed
with the Commission in any registration statement, notification,
application, report or other document with the consent of such attorney,
accountant, engineer or other professional or expert.
[60 FR 32796, June 23, 1995, as amended at 63 FR 57122, Oct. 26, 1998;
69 FR 13176, Mar. 19, 2004; 70 FR 72569, Dec. 5, 2005]
[[Page 131]]
Sec. 201.103 Construction of rules.
(a) The Rules of Practice shall be construed and administered to
secure the just, speedy, and inexpensive determination of every
proceeding.
(b) In any particular proceeding, to the extent that there is a
conflict between these rules and a procedural requirement contained in
any statute, or any rule or form adopted thereunder, the latter shall
control.
(c) For purposes of these rules:
(1) Any term in the singular includes the plural, and any term in
the plural includes the singular, if such use would be appropriate;
(2) Any use of a masculine, feminine, or neuter gender encompasses
such other genders as would be appropriate; and
(3) Unless the context requires otherwise, counsel for a party may
take any action required or permitted to be taken by such party.
Sec. 201.104 Business hours.
The Headquarters office of the Commission, at 100 F Street, NE.,
Washington, DC 20549, is open each day, except Saturdays, Sundays, and
Federal legal holidays, from 9 a.m. to 5:30 p.m., Eastern Standard Time
or Eastern Daylight Saving Time, whichever is currently in effect in
Washington, D.C. Federal legal holidays consist of New Year's Day;
Birthday of Martin Luther King, Jr.; Presidents Day; Memorial Day;
Independence Day; Labor Day; Columbus Day; Veterans Day; Thanksgiving
Day; Christmas Day; and any other day appointed as a holiday in
Washington, D.C. by the President or the Congress of the United States.
[60 FR 32796, June 23, 1995, as amended at 70 FR 72569, Dec. 5, 2005]
Sec. 201.110 Presiding officer.
All proceedings shall be presided over by the Commission or, if the
Commission so orders, by a hearing officer. When the Commission
designates that the hearing officer shall be an administrative law
judge, the Chief Administrative Law Judge shall select, pursuant to 17
CFR 200.30-10, the administrative law judge to preside.
Sec. 201.111 Hearing officer: Authority.
The hearing officer shall have the authority to do all things
necessary and appropriate to discharge his or her duties. No provision
of these Rules of Practice shall be construed to limit the powers of the
hearing officer provided by the Administrative Procedure Act, 5 U.S.C.
556, 557. The powers of the hearing officer include, but are not limited
to, the following:
(a) Administering oaths and affirmations;
(b) Issuing subpoenas authorized by law and revoking, quashing, or
modifying any such subpoena;
(c) Receiving relevant evidence and ruling upon the admission of
evidence and offers of proof;
(d) Regulating the course of a proceeding and the conduct of the
parties and their counsel;
(e) Holding prehearing and other conferences as set forth in Sec.
201.221 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;
(f) Recusing himself or herself upon motion made by a party or upon
his or her own motion;
(g) 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;
(h) Subject to any limitations set forth elsewhere in these Rules of
Practice, considering and ruling upon all procedural and other motions,
including a motion to correct a manifest error of fact in the initial
decision. A motion to correct is properly filed under this Rule only if
the basis for the motion is a patent misstatement of fact in the initial
decision. Any motion to correct must be filed within ten days of the
initial decision. A brief in opposition may be filed within five days of
a motion to correct. The hearing officer shall have 20 days from the
date of filing of any brief in opposition filed to rule on a motion to
correct;
(i) Preparing an initial decision as provided in Sec. 201.360;
[[Page 132]]
(j) 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 Commission; and
(k) Informing the parties as to the availability of one or more
alternative means of dispute resolution, and encouraging the use of such
methods.
[60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004;
70 FR 72569, Dec. 5, 2005]
Sec. 201.112 Hearing officer: Disqualification and withdrawal.
(a) Notice of disqualification. At any time a hearing officer
believes himself or herself to be disqualified from considering a
matter, the hearing officer shall issue a notice stating that he or she
is withdrawing from the matter and setting forth the reasons therefor.
(b) Motion for withdrawal. Any party who has a reasonable, good
faith basis to believe that a hearing officer has a personal bias, or is
otherwise disqualified from hearing a case, may make a motion to the
hearing officer that the hearing officer withdraw. 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.
Sec. 201.120 Ex parte communications.
(a) Except to the extent required for the disposition of ex parte
matters as authorized by law, the person presiding over an evidentiary
hearing may not:
(1) Consult a person or party on a fact in issue, unless on notice
and opportunity for all parties to participate; or
(2) 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 Commission.
(b) The Commission's code of behavior regarding ex parte
communications between persons outside the Commission and decisional
employees, 17 CFR 200.110 through 200.114, governs other prohibited
communications during a proceeding conducted under the Rules of
Practice.
Sec. 201.121 Separation of functions.
Any Commission officer, employee or agent engaged in the performance
of investigative or prosecutorial functions for the Commission in a
proceeding as defined in Sec. 201.101(a) may not, in that proceeding or
one that is factually related, participate or advise in the decision, or
in Commission review of the decision pursuant to Section 557 of the
Administrative Procedure Act, 5 U.S.C. 557, except as a witness or
counsel in the proceeding.
Sec. 201.140 Commission orders and decisions: Signature and availability.
(a) Signature required. All orders and decisions of the Commission
shall be signed by the Secretary or any other person duly authorized by
the Commission.
(b) Availability for inspection. Each order and decision shall be
available for inspection by the public from the date of entry, unless
the order or decision is nonpublic. A nonpublic order or decision shall
be available for inspection by any person entitled to inspect it from
the date of entry.
(c) Date of entry of orders. The date of entry of a Commission order
shall be the date the order is signed. Such date shall be reflected in
the caption of the order, or if there is no caption, in the order
itself.
Sec. 201.141 Orders and decisions: Service of orders instituting proceedings
and other orders and decisions.
(a) Service of an order instituting proceedings--(1) By whom made.
The Secretary, or another duly authorized officer of the Commission,
shall serve a copy of an order instituting proceedings on each person
named in the order as a party. The Secretary may direct an interested
division to assist in making service.
(2) How made--(i) To individuals. Notice of a proceeding shall be
made to an individual by delivering a copy of the order instituting
proceedings to the individual or to an agent authorized by appointment
or by law to receive such notice. Delivery means--handing a copy
[[Page 133]]
of the order to the individual; or leaving a copy at the individual's
office with a clerk or other person in charge thereof; or leaving a copy
at the individual's dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein; or sending
a copy of the order addressed to the individual by U.S. Postal Service
certified, registered or Express Mail and obtaining a confirmation of
receipt; or giving confirmed telegraphic notice.
(ii) To corporations or entities. Notice of a proceeding shall be
made to a person other than a natural person by delivering a copy of the
order instituting proceedings to an officer, managing or general agent,
or any other agent authorized by appointment or law to receive such
notice, by any method specified in paragraph (a)(2)(i) of this section,
or, in the case of an issuer of a class of securities registered with
the Commission, by sending a copy of the order addressed to the most
recent address shown on the entity's most recent filing with the
Commission by U.S. Postal Service certified, registered, or Express Mail
and obtaining a confirmation of attempted delivery.
(iii) Upon persons registered with the Commission. In addition to
any other method of service specified in paragraph (a)(2) of this
section, notice may be made to a person currently registered with the
Commission as a broker, dealer, municipal securities dealer, government
securities broker, government securities dealer, investment adviser,
investment company or transfer agent by sending a copy of the order
addressed to the most recent business address shown on the person's
registration form by U.S. Postal Service certified, registered or
Express Mail and obtaining a confirmation of attempted delivery.
(iv) Upon persons in a foreign country. Notice of a proceeding to a
person in a foreign country may be made by any of the following methods:
(A) Any method specified in paragraph (a)(2) of this section that is
not prohibited by the law of the foreign country; or
(B) By any internationally agreed means of service that is
reasonably calculated to give notice, such as those authorized by the
Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents; or
(C) Any method that is reasonably calculated to give notice:
(1) As prescribed by the foreign country's law for service in that
country in an action in its courts of general jurisdiction; or
(2) As the foreign authority directs in response to a letter
rogatory or letter of request; or
(3) Unless prohibited by the foreign country's law, by delivering a
copy of the order instituting proceedings to the individual personally,
or using any form of mail that the Secretary or the interested division
addresses and sends to the individual and that requires a signed
receipt; or
(D) By any other means not prohibited by international agreement, as
the Commission or hearing officer orders.
(v) In stop order proceedings. Notwithstanding any other provision
of paragraph (a)(2) of this section, in proceedings pursuant to Sections
8 or 10 of the Securities Act of 1933, 15 U.S.C. 77h or 77j, or Sections
305 or 307 of the Trust Indenture Act of 1939, 15 U.S.C. 77eee or 77ggg,
notice of the institution of proceedings shall be made by personal
service or confirmed telegraphic notice, or a waiver obtained pursuant
to paragraph (a)(4) of this section.
(vi) To persons registered with self-regulatory organizations.
Notice of a proceeding shall be made to a person registered with a self-
regulatory organization by any method specified in paragraph (a)(2)(i)
of this section, or by sending a copy of the order addressed to the most
recent address for the person shown in the Central Registration
Depository by U.S. Postal Service certified, registered, or Express Mail
and obtaining a confirmation of attempted delivery.
(3) Record of service. The Secretary shall maintain a record of
service on parties (in hard copy or computerized format), identifying
the party given notice, the method of service, the date of service, the
address to which service was made, and the person who made service. If a
division serves a copy of an order instituting proceedings, the division
shall file with the Secretary either an acknowledgement of service by
the
[[Page 134]]
person served or proof of service consisting of a statement by the
person who made service certifying the date and manner of service; the
names of the persons served; and their mail or electronic addresses,
facsimile numbers, or the addresses of the places of delivery, as
appropriate for the manner of service. If service is made in person, the
certificate of service shall state, if available, the name of the
individual to whom the order was given. If service is made by U.S.
Postal Service certified or Express Mail, the Secretary shall maintain
the confirmation of receipt or of attempted delivery, and tracking
number. If service is made to an agent authorized by appointment to
receive service, the certificate of service shall be accompanied by
evidence of the appointment.
(4) Waiver of service. In lieu of service as set forth in paragraph
(a)(2) of this section, the party may be provided a copy of the order
instituting proceedings by first class mail or other reliable means if a
waiver of service is obtained from the party and placed in the record.
(b) Service of orders or decisions other than an order instituting
proceedings. Written orders or decisions issued by the Commission or by
a hearing officer shall be served promptly on each party pursuant to any
method of service authorized under paragraph (a) of this section or
Sec. 201.150(c)(1)-(3). Such orders or decisions may also be served by
facsimile transmission if the party to be served has agreed to accept
such service in a writing, signed by the party, and has provided the
Commission with information concerning the facsimile machine telephone
number and hours of facsimile machine operation. Service of orders or
decisions by the Commission, including those entered pursuant to
delegated authority, shall be made by the Secretary or, as authorized by
the Secretary, by a member of an interested division. Service of orders
or decisions issued by a hearing officer shall be made by the Secretary
or the hearing officer.
[60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004;
70 FR 72569, Dec. 5, 2005; 81 FR 50233, July 29, 2016]
Sec. 201.150 Service of papers by parties.
(a) When required. In every proceeding as defined in Sec.
201.101(a), each paper, including each notice of appearance, written
motion, brief, or other written communication, shall be served upon each
party in the proceeding in accordance with the provisions of this
section; provided, however, that absent an order to the contrary, no
service shall be required for motions which may be heard ex parte.
(b) Upon a person represented by counsel. Whenever service is
required to be made upon a person represented by counsel who has filed a
notice of appearance pursuant to Sec. 201.102, service shall be made
pursuant to paragraph (c) of this section upon counsel, unless service
upon the person represented is ordered by the Commission or the hearing
officer.
(c) How made. Service shall be made by delivering a copy of the
filing. Delivery means:
(1) Personal service--handing a copy to the person required to be
served; or leaving a copy at the person's office with a clerk or other
person in charge thereof, or, if there is no one in charge, leaving it
in a conspicuous place therein; or, if the office is closed or the
person to be served has no office, leaving it at the person's dwelling
house or usual place of abode with some person of suitable age and
discretion then residing therein;
(2) Mailing the papers through the U.S. Postal Service by first
class, registered, or certified mail or Express Mail delivery addressed
to the person;
(3) Sending the papers through a commercial courier service or
express delivery service; or
(4) Transmitting the papers by facsimile transmission where the
following conditions are met:
(i) The persons so serving each other have provided the Commission
and the parties with notice of the facsimile machine telephone number to
be used and the hours of facsimile machine operation;
(ii) The transmission is made at such a time that it is received
during the Commission's business hours as defined in Sec. 201.104; and
[[Page 135]]
(iii) The sender of the transmission previously has not been served
in accordance with Sec. 201.150 with a written notice from the
recipient of the transmission declining service by facsimile
transmission.
(d) When service is complete. Personal service, service by U.S.
Postal Service Express Mail or service by a commercial courier or
express delivery service is complete upon delivery. Service by mail is
complete upon mailing. Service by facsimile is complete upon
confirmation of transmission by delivery of a manually signed receipt.
[60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004]
Sec. 201.151 Filing of papers with the Commission: Procedure.
(a) When to file. All papers required to be served by a party upon
any person shall be filed contemporaneously with the Commission. Papers
required to be filed with the Commission must be received within the
time limit, if any, for such filing. Filing with the Commission may be
made by facsimile transmission if the party also contemporaneously
transmits to the Commission a non-facsimile original with a manual
signature. However, any person filing with the Commission by facsimile
transmission will be responsible for assuring that the Commission
receives a complete and legible filing within the time limit set for
such filing.
(b) Where to file. Filing of papers with the Commission shall be
made by filing them with the Secretary. When a proceeding is assigned to
a hearing officer, a person making a filing with the Secretary shall
promptly provide to the hearing officer a copy of any such filing,
provided, however, that the hearing officer may direct or permit filings
to be made with him or her, in which event the hearing officer shall
note thereon the filing date and promptly provide the Secretary with
either the original or a copy of any such filings.
(c) To whom to direct the filing. Unless otherwise provided, where
the Commission has assigned a case to a hearing officer, all motions,
objections, applications or other filings made during a proceeding 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 briefs with
the Commission, shall be directed to and decided by the hearing officer.
(d) Certificate of service. Papers filed with the Commission or a
hearing officer shall be accompanied by a certificate stating the name
of the person or persons served, the date of service, the method of
service and the mailing address or facsimile telephone number to which
service was made, if not made in person. If the method of service to any
party is different from the method of service to any other party or the
method for filing with the Commission, the certificate shall state why a
different means of service was used.
[60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004]
Sec. 201.152 Filing of papers: Form.
(a) Specifications. Papers filed in connection with any proceeding
as defined in Sec. 201.101(a) shall:
(1) Be on one grade of unglazed white paper measuring 8\1/2\ x 11
inches, except that, to the extent that the reduction of larger
documents would render them illegible, such documents may be filed on
larger paper;
(2) Be typewritten or printed in 12-point or larger typeface or
otherwise reproduced by a process that produces permanent and plainly
legible copies;
(3) Include at the head of the paper, or on a title page, the name
of the Commission, 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;
(4) Be paginated with left hand margins at least 1 inch wide, and
other margins of at least 1 inch;
(5) Be double-spaced, with single-spaced footnotes and single-spaced
indented quotations; and
(6) Be stapled, clipped or otherwise fastened in the upper left
corner.
(b) Signature required. All papers must be dated and signed as
provided in Sec. 201.153.
(c) Suitability for recordkeeping. Documents which, in the opinion
of the Commission, are not suitable for computer scanning or
microfilming may be rejected.
(d) Number of copies. An original and three copies of all papers
shall be filed,
[[Page 136]]
unless filing is made by facsimile in accordance with Sec. 201.151. If
filing is made by facsimile, the filer shall also transmit to the Office
of the Secretary one non-facsimile original with a manual signature,
contemporaneously with the facsimile transmission. The non-facsimile
original must be accompanied by a statement of the date on which, and
the facsimile number to which, the party made transmission of the
facsimile filing.
(e) 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.
(f) Scandalous or impertinent matter. Any scandalous or impertinent
matter contained in any brief or pleading or in connection with any oral
presentation in a proceeding may be stricken on order of the Commission
or the hearing officer.
[60 FR 32796, June 23, 1995, as amended at 69 FR 13176, Mar. 19, 2004;
70 FR 72569, Dec. 5, 2005]
Sec. 201.153 Filing of papers: Signature requirement and effect.
(a) General requirements. Following the issuance of an order
instituting proceedings, every filing of 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. A
party who acts as his or her own counsel shall sign his or her
individual name and state his or her address and telephone number on
every filing.
(b) Effect of signature. (1) The signature of a counsel or party
shall constitute a certification that:
(i) the person signing the filing has read the filing;
(ii) to the best of his or her knowledge, information, and belief,
formed after reasonable inquiry, the filing is well grounded in fact and
is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law; and
(iii) the filing is not made for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of
adjudication.
(2) If a filing is not signed, the hearing officer or the Commission
shall strike the filing, unless it is signed promptly after the omission
is called to the attention of the person making the filing.
Sec. 201.154 Motions.
The requirements in this section apply to motions and related
filings except where another rule expressly governs.
(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. All written motions shall be served in accordance with Sec.
201.150, be filed in accordance with Sec. 201.151, meet the
requirements of Sec. 201.152, and be signed in accordance with Sec.
201.153. The Commission or the hearing officer may order that an oral
motion be submitted in writing. Unless otherwise ordered by the
Commission or the hearing officer, if a motion is properly made to the
Commission 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 Commission. No oral
argument shall be heard on any motion unless the Commission or the
hearing officer otherwise directs.
(b) Opposing and reply briefs. Briefs in opposition to a motion
shall be filed within five days after service of the motion. Reply
briefs shall be filed within three days after service of the opposition.
(c) Length limitation. No motion (together with the brief in support
of the motion), brief in opposition to the motion, or reply brief shall
exceed 7,000 words, exclusive of any table of contents or table of
authorities. The word limit shall not apply to any addendum that
consists solely of copies of applicable cases, pertinent legislative
provisions or rules, or relevant exhibits. Requests for leave to file
motions and briefs in excess of 7,000 words are disfavored. A motion or
brief, together with any accompanying brief, that does not exceed 15
pages in length, exclusive
[[Page 137]]
of pages containing the table of contents, table of authorities, and any
addendum that consists solely of copies of applicable cases, pertinent
legislative provisions, or rules and exhibits, but inclusive of
pleadings incorporated by reference, is presumptively considered to
contain no more than 7,000 words. Any motion or brief that exceeds these
page limits must include a certificate by the attorney, or an
unrepresented party, stating that the document complies with the length
limitation set forth in this paragraph and stating the number of words
in the document. The person preparing the certificate may rely on the
word count of a word-processing program to prepare the document.
[60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004;
70 FR 72569, Dec. 5, 2005; 81 FR 50234, July 29, 2016]
Sec. 201.155 Default; motion to set aside default.
(a) A party to a proceeding may be deemed to be in default and the
Commission or the hearing officer may determine the proceeding against
that party upon consideration of the record, including the order
instituting proceedings, 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, 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
commission or the hearing officer pursuant to Sec. 201.180(b).
(b) 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 Commission, at any time, may for good cause shown set
aside a default.
Sec. 201.160 Time computation.
(a) Computation. In computing any period of time prescribed in or
allowed by these Rules of Practice or by order of the Commission, 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 (as defined in Sec. 201.104), 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 for service by mail in paragraph (b) of this
section. 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.
(b) Additional time for service by mail. If service is made by mail,
three days shall be added to the prescribed period for response unless
an order of the Commission or the hearing officer specifies a date
certain for filing. In the event that an order of the Commission or the
hearing officer specifies a date certain for filing, no time shall be
added for service by mail.
[60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004]
Sec. 201.161 Extensions of time, postponements and adjournments.
(a) Availability. Except as otherwise provided by law, the
Commission, at any time, or the hearing officer, at any time prior to
the filing of his or her initial decision or, if no initial decision is
to be filed, at any time prior to the closing of the record, may, for
good cause shown, extend or shorten any time limits prescribed by these
Rules of Practice for the filing of any papers and may, consistent with
paragraphs (b) and (c) of this section, postpone or adjourn any hearing.
[[Page 138]]
(b) Considerations in determining whether to extend time limits or
grant postponements, adjournments and extensions. (1) In considering all
motions or requests pursuant to paragraph (a) or (b) of this section,
the Commission or the hearing officer should adhere to a policy of
strongly disfavoring such requests, except in circumstances where the
requesting party makes a strong showing that the denial of the request
or motion would substantially prejudice their case. In determining
whether to grant any requests, the Commission or hearing officer shall
consider, in addition to any other relevant factors:
(i) The length of the proceeding to date;
(ii) The number of postponements, adjournments or extensions already
granted;
(iii) The stage of the proceedings at the time of the request;
(iv) The impact of the request on the hearing officer's ability to
complete the proceeding in the time specified by the Commission; and
(v) Any other such matters as justice may require.
(2) To the extent that the Commission has chosen a timeline under
which the hearing would occur beyond the statutory 60-day deadline, this
policy of strongly disfavoring requests for postponement will not apply
to a request by a respondent to postpone commencement of a cease and
desist proceeding hearing beyond the statutory 60-day period.
(c)(1) Time limit. Postponements, adjournments or extensions of time
for filing papers shall not exceed 21 days unless the Commission or the
hearing officer states on the record or sets forth in a written order
the reasons why a longer period of time is necessary.
(2) Stay pending Commission consideration of offers of settlement.
(i) If the Commission staff and one or more respondents in the
proceeding file a joint motion notifying the hearing officer that they
have agreed in principle to a settlement on all major terms, then the
hearing officer shall stay the proceeding as to the settling
respondent(s), or in the discretion of the hearing officer as to all
respondents, pending completion of Commission consideration of the
settlement offer. Any such stay will be contingent upon:
(A) The settling respondent(s) submitting to the Commission staff,
within fifteen business days of the stay, a signed offer of settlement
in conformance with Sec. 201.240; and
(B) Within twenty business days of receipt of the signed offer, the
staff submitting the settlement offer and accompanying recommendation to
the Commission for consideration.
(ii) If the parties fail to meet either of these deadlines or if the
Commission rejects the offer of settlement, the hearing officer must be
promptly notified and, upon notification of the hearing officer, the
stay shall lapse and the proceeding will continue. In the circumstance
where:
(A) A hearing officer has granted a stay because the parties have
``agreed in principle to a settlement;''
(B) The agreement in principle does not materialize into a signed
settlement offer within 15 business days of the stay; and
(C) The stay lapses, the hearing officer will not be required to
grant another stay related to the settlement process until both parties
have notified the hearing officer in writing that a signed settlement
offer has been prepared, received by the Commission's staff, and will be
submitted to the Commission.
(iii) The granting of any stay pursuant to this paragraph (c) shall
stay the timeline pursuant to Sec. 201.360(a).
[60 FR 32796, June 23, 1995, as amended at 68 FR 35788, June 17, 2003;
81 FR 50234, July 29, 2016]
Sec. 201.180 Sanctions.
(a) Contemptuous conduct--(1) Subject to exclusion or suspension.
Contemptuous conduct by any person before the Commission or a hearing
officer during any proceeding, including at or in connection with any
conference, deposition or hearing, shall be grounds for the Commission
or the hearing officer to:
(i) Exclude that person from such deposition, hearing or conference,
or any portion thereof; and/or
(ii) Summarily suspend that person from representing others in the
proceeding in which such conduct occurred
[[Page 139]]
for the duration, or any portion, of the proceeding.
(2) Review procedure. A person excluded from a deposition, hearing
or conference, or a counsel summarily suspended from practice for the
duration or any portion of a proceeding, may seek review of the
exclusion or suspension by filing with the Commission, within three days
of the exclusion or suspension order, a motion to vacate the order. The
Commission shall consider such motion on an expedited basis as provided
in Sec. 201.500.
(3) Adjournment. Upon motion by a party represented by counsel
subject to an order of exclusion or suspension, an adjournment shall be
granted to allow the retention of new counsel. In determining the length
of an adjournment, the Commission or hearing officer shall consider, in
addition to the factors set forth in Sec. 201.161, the availability of
co-counsel for the party or of other members of a suspended counsel's
firm.
(b) Deficient filings; leave to cure deficiencies. The Commission or
the hearing officer may reject, in whole or in part, any filing that
fails to comply with any requirements of these Rules of Practice or of
any order issued in the proceeding in which the filing was made. Any
such filings shall not be part of the record. The Commission or the
hearing officer may direct a party to cure any deficiencies and to
resubmit the filing within a fixed time period.
(c) Failure to make required filing or to cure deficient filing. The
Commission or the hearing officer may enter a default pursuant to Sec.
201.155, dismiss one or more claims, decide the particular claim(s) at
issue against that person, or prohibit the introduction of evidence or
exclude testimony concerning that claim if a person fails:
(1) To make a filing required under these Rules of Practice; or
(2) To cure a deficient filing within the time specified by the
Commission or the hearing officer pursuant to paragraph (b) of this
section.
[60 FR 32796, June 23, 1995, as amended at 81 FR 50234, July 29, 2016]
Sec. 201.190 Confidential treatment of information in certain filings.
(a) Application. An application for confidential treatment pursuant
to the provisions of Clause 30 of Schedule A of the Securities Act of
1933, 15 U.S.C. 77aa(30), and Rule 406 thereunder, 17 CFR 230.406;
Section 24(b)(2) of the Securities Exchange Act of 1934, 15 U.S.C.
78x(b)(2), and Rule 24b-2 thereunder, 17 CFR 240.24b-2; Section 45(a) of
the Investment Company Act of 1940, 15 U.S.C. 80a-44(a), and Rule 45a-1
thereunder, 17 CFR 270.45a-1; or Section 210(a) of the Investment
Advisers Act of 1940, 15 U.S.C. 80b-10(a), shall be filed with the
Secretary. The application shall be accompanied by a sealed copy of the
materials as to which confidential treatment is sought.
(b) Procedure for supplying additional information. The applicant
may be required to furnish in writing additional information with
respect to the grounds for objection to public disclosure. Failure to
supply the information so requested within 14 days from the date of
receipt by the applicant of a notice of the information required shall
be deemed a waiver of the objection to public disclosure of that portion
of the information to which the additional information relates, unless
the Commission or the hearing officer shall otherwise order for good
cause shown at or before the expiration of such 14-day period.
(c) Confidentiality of materials pending final decision. Pending the
determination of the application for confidential treatment,
transcripts, non-final orders including an initial decision, if any, and
other materials in connection with the application shall be placed under
seal; shall be for the confidential use only of the hearing officer, the
Commission, the applicant, and any other parties and counsel; and shall
be made available to the public only in accordance with orders of the
Commission.
(d) Public availability of orders. Any final order of the Commission
denying or sustaining an application for confidential treatment shall be
made public. Any prior findings or opinions relating to an application
for confidential treatment under this section shall
[[Page 140]]
be made public at such time as the material as to which confidentiality
was requested is made public.
[60 FR 32796, June 23, 1995, as amended at 76 FR 71875, Nov. 21, 2011]
Sec. 201.191 Adjudications not required to be determined on the record
after notice and opportunity for hearing.
(a) Scope of the rule. This rule applies to every case of
adjudication, as defined in 5 U.S.C. 551, pursuant to any statute which
the Commission administers, where adjudication is not required to be
determined on the record after notice and opportunity for hearing and
which the Commission has not chosen to determine on the record after
notice and opportunity for hearing.
(b) Procedure. In every case of adjudication under paragraph (a) of
this section, the Commission shall give prompt notice of any adverse
action or final disposition to any person who has requested the
Commission to make (or not to make) any such adjudication, and furnish
to any such person a written statement of reasons therefor. Additional
procedures may be specified in rules relating to specific types of such
adjudications. Where any such rule provides for the publication of a
Commission order, notice of the action or disposition shall be deemed to
be given by such publication.
(c) Contents of the record. If the Commission provides notice and
opportunity for the submission of written comments by parties to the
adjudication or, as the case may be, by other interested persons,
written comments received on or before the closing date for comments,
unless accorded confidential treatment pursuant to statute or rule of
the Commission, become a part of the record of the adjudication. The
Commission, in its discretion, may accept and include in the record
written comments filed with the Commission after the closing date.
Sec. 201.192 Rulemaking: Issuance, amendment and repeal of rules
of general application.
(a) By petition. Any person desiring the issuance, amendment or
repeal of a rule of general application may file a petition therefor
with the Secretary. Such petition shall include a statement setting
forth the text or the substance of any proposed rule or amendment
desired or specifying the rule the repeal of which is desired, and
stating the nature of his or her interest and his or her reasons for
seeking the issuance, amendment or repeal of the rule. The Secretary
shall acknowledge, in writing, receipt of the petition and refer it to
the appropriate division or office for consideration and recommendation.
Such recommendations shall be transmitted with the petition to the
Commission for such action as the Commission deems appropriate. The
Secretary shall notify the petitioner of the action taken by the
Commission.
(b) Notice of proposed issuance, amendment or repeal of rules.
Except where the Commission finds that notice and public procedure are
impracticable, unnecessary, or contrary to the public interest, whenever
the Commission proposes to issue, amend, or repeal any rule or
regulation of general application other than an interpretive rule;
general statement of policy; or rule of agency organization, procedure,
or practice; or any matter relating to agency management or personnel or
to public property, loans, grants, benefits, or contracts, there shall
first be published in the Federal Register a notice of the proposed
action. Such notice shall include:
(1) A statement of the time, place, and nature of the rulemaking
proceeding, with particular reference to the manner in which interested
persons shall be afforded the opportunity to participate in such
proceeding;
(2) Reference to the authority under which the rule is proposed; and
(3) The terms or substance of the proposed rule or a description of
the subjects and issues involved.
Sec. 201.193 Applications by barred individuals for consent to associate.
Preliminary note
This rule governs applications to the Commission by certain persons,
barred by Commission order from association with brokers, dealers,
municipal securities dealers, government securities brokers, government
securities dealers, investment advisers, investment companies or
transfer agents, for consent to become so associated. Applications made
pursuant to this section must show that the proposed association would
be consistent
[[Page 141]]
with the public interest. In addition to the information specifically
required by the rule, applications should be supplemented, where
appropriate, by written statements of individuals (other than the
applicant) who are competent to attest to the applicant's character,
employment performance, and other relevant information. Intentional
misstatements or omissions of fact may constitute criminal violations of
18 U.S.C. 1001 et seq. and other provisions of law.
The nature of the supervision that an applicant will receive or
exercise as an associated person with a registered entity is an
important matter bearing upon the public interest. In meeting the burden
of showing that the proposed association is consistent with the public
interest, the application and supporting documentation must demonstrate
that the proposed supervision, procedures, or terms and conditions of
employment are reasonably designed to prevent a recurrence of the
conduct that led to imposition of the bar. As an associated person, the
applicant will be limited to association in a specified capacity with a
particular registered entity and may also be subject to specific terms
and conditions.
Normally, the applicant's burden of demonstrating that the proposed
association is consistent with the public interest will be difficult to
meet where the applicant is to be supervised by, or is to supervise,
another barred individual. In addition, where an applicant wishes to
become the sole proprietor of a registered entity and thus is seeking
Commission consent notwithstanding an absence of supervision, the
applicant's burden will be difficult to meet.
In addition to the factors set forth in paragraph (d) of this
section, the Commission will consider the nature of the findings that
resulted in the bar when making its determination as to whether the
proposed association is consistent with the public interest. In this
regard, attention is directed to Rule 5(e) of the Commission's Rules on
Informal and Other Procedures, 17 CFR 202.5(e). Among other things, Rule
5(e) sets forth the Commission's policy ``not to permit a * * *
respondent [in an administrative proceeding] to consent to * * * [an]
order that imposes a sanction while denying the allegations in the * * *
order for proceedings.'' Consistent with the rationale underlying that
policy, and in order to avoid the appearance that an application made
pursuant to this section was granted on the basis of such denial, the
Commission will not consider any application that attempts to reargue or
collaterally attack the findings that resulted in the Commission's bar
order.
(a) Scope of rule. Applications for Commission consent to associate,
or to change the terms and conditions of association, with a registered
broker, dealer, municipal securities dealer, government securities
broker, government securities dealer, investment adviser, investment
company or transfer agent may be made pursuant to this section where a
Commission order bars the individual from association with a registered
entity and:
(1) Such barred individual seeks to become associated with an entity
that is not a member of a self-regulatory organization; or
(2) The order contains a proviso that application may be made to the
Commission after a specified period of time.
(b) Form of application. Each application shall be supported by an
affidavit, manually signed by the applicant, that addresses the factors
set forth in paragraph (d) of this section. One original and three
copies of the application shall be filed pursuant to Sec. Sec. 201.151,
201.152 and 201.153. Each application shall include as exhibits:
(1) A copy of the Commission order imposing the bar;
(2) An undertaking by the applicant to notify immediately the
Commission in writing if any information submitted in support of the
application becomes materially false or misleading while the application
is pending;
(3) The following forms, as appropriate:
(i) A copy of a completed Form U-4, where the applicant's proposed
association is with a broker-dealer or municipal securities dealer;
(ii) A copy of a completed Form MSD-4, where the applicant's
proposed association is with a bank municipal securities dealer;
(iii) The information required by Form ADV, 17 CFR 279.1, with
respect to the applicant, where the applicant's proposed association is
with an investment adviser;
(iv) The information required by Form TA-1, 17 CFR 249b.100, with
respect to the applicant, where the applicant's proposed association is
with a transfer agent; and
(4) A written statement by the proposed employer that describes:
(i) The terms and conditions of employment and supervision to be
exercised over such applicant and, where applicable, by such applicant;
[[Page 142]]
(ii) The qualifications, experience, and disciplinary records of the
proposed supervisor(s) of the applicant;
(iii) The compliance and disciplinary history, during the two years
preceding the filing of the application, of the office in which the
applicant will be employed; and
(iv) The names of any other associated persons in the same office
who have previously been barred by the Commission, and whether they are
to be supervised by the applicant.
(c) Required showing. The applicant shall make a showing
satisfactory to the Commission that the proposed association would be
consistent with the public interest.
(d) Factors to be addressed. The affidavit required by paragraph (b)
of this section shall address each of the following:
(1) The time period since the imposition of the bar;
(2) Any restitution or similar action taken by the applicant to
recompense any person injured by the misconduct that resulted in the
bar;
(3) The applicant's compliance with the order imposing the bar;
(4) The applicant's employment during the period subsequent to
imposition of the bar;
(5) The capacity or position in which the applicant proposes to be
associated;
(6) The manner and extent of supervision to be exercised over such
applicant and, where applicable, by such applicant;
(7) Any relevant courses, seminars, examinations or other actions
completed by the applicant subsequent to imposition of the bar to
prepare for his or her return to the securities business; and
(8) Any other information material to the application.
(e) Notification to applicant and written statement. In the event an
adverse recommendation is proposed by the staff with respect to an
application made pursuant to this section, the applicant shall be so
advised and provided with a written statement of the reasons for such
recommendation. The applicant shall then have 30 days to submit a
written statement in response.
(f) Concurrent applications. The Commission will not consider any
application submitted pursuant to this section if any other application
for consent to associate concerning the same applicant is pending before
any self-regulatory organization.
Sec. 201.194 Applications by security-based swap dealers
or major security-based swap participants for statutorily disqualified
associated persons to effect or be involved in effecting security-based swaps.
A security-based swap dealer or major security-based swap
participant making an application under this section should refer to
paragraph (i) of this section.
(a) Scope of rule. Applications by a security-based swap dealer or
major security-based swap participant for the Commission to permit an
associated person (as provided in 15 U.S.C. 78c(a)(70)) to effect or be
involved in effecting security-based swaps on behalf of a registered
security-based swap dealer or major security-based swap participant, or
to change the terms and conditions thereof, may be made pursuant to this
section where the associated person is subject to a statutory
disqualification and thereby prohibited from effecting or being involved
in effecting security-based swaps on behalf of a security-based swap
dealer or major security-based swap participant under Exchange Act
Section 15F(b)(6) (15 U.S.C. 78o-10(b)(6)).
(b) Required showing. The applicant shall make a showing that it
would be consistent with the public interest to permit the person
associated with the security-based swap dealer or major security-based
swap participant who is subject to a statutory disqualification to
effect or be involved in effecting security-based swaps on behalf of the
security-based swap dealer or major security-based swap participant.
(c) Exclusion for other persons. The security-based swap dealer or
major security-based swap participant shall be excluded from the
prohibition in Section 15F(b)(6) of the Securities Exchange Act of 1934
(15 U.S.C. 78o-10(b)(6)) with respect to an associated person that is
not a natural person who is subject to a statutory disqualification.
[[Page 143]]
(d) Form of application. Each application with respect to an
associated person that is a natural person who is subject to a statutory
disqualification shall be supported by a written statement, signed by a
knowledgeable person authorized by the security-based swap dealer or
major security-based swap participant, which addresses the items set
forth in paragraph (e) of this section. The application shall be filed
pursuant to Rules of Practice 151, 152, and 153 (17 CFR 201.151,
201.152, and 201.153). Each application shall include as exhibits:
(1) A copy of the order or other applicable document that resulted
in the associated person being subject to a statutory disqualification;
(2) An undertaking by the applicant to notify promptly the
Commission in writing if any information submitted in support of the
application becomes materially false or misleading while the application
is pending;
(3) A copy of the questionnaire or application for employment
specified in 17 CFR 240.15Fb6-2(b), with respect to the associated
person; and
(4) If the associated person has been the subject of any proceeding
resulting in the imposition of disciplinary sanctions during the five
years preceding the filing of the application or is the subject of a
pending proceeding by the Commission, the Commodity Futures Trading
Commission, any federal or state regulatory or law enforcement agency,
registered futures association (as provided in 7 U.S.C. 21), foreign
financial regulatory authority, registered national securities
association, or any other self-regulatory organization (as provided in
15 U.S.C. 78c(a)(26)), or commodities exchange, or any court, the
applicant should include a copy of any order, decision, or document
issued by the court, agency, self-regulatory organization (as provided
in 15 U.S.C. 78c(a)(26)), or other relevant authority involved.
(e) Written statement. The written statement required by paragraph
(d) of this section shall address each of the following, to the extent
applicable:
(1) The associated person's compliance with any order resulting in
statutory disqualification, including whether the associated person has
paid fines or penalties, disgorged monies, made restitution or paid any
other monetary compensation required by any such order;
(2) The associated person's employment during the period subsequent
to becoming subject to a statutory disqualification;
(3) The capacity or position in which the person subject to a
statutory disqualification proposes to be associated with the security-
based swap dealer or major security-based swap participant;
(4) The terms and conditions of employment and supervision to be
exercised over such associated person and, where applicable, by such
associated person;
(5) The qualifications, experience, and disciplinary history of the
proposed supervisor(s) of the associated person;
(6) The compliance and disciplinary history, during the five years
preceding the filing of the application, of the applicant;
(7) The names of any other associated persons at the applicant who
have previously been subject to a statutory disqualification and whether
they are to be supervised by the associated person;
(8) Any relevant courses, seminars, examinations or other actions
completed by the associated person subsequent to becoming subject to a
statutory disqualification to prepare for his or her participation in
the security-based swap business;
(9) A detailed statement of why the associated person should be
permitted to effect or be involved in effecting security-based swaps on
behalf of the security-based swap dealer or major security-based swap
participant, notwithstanding the event resulting in statutory
disqualification, including what steps the associated person or
applicant has taken, or will take, to ensure that the statutory
disqualification does not negatively affect the ability of the
associated person to effect or be involved in effecting security-based
swaps on behalf of the security-based swap dealer or major security-
based swap participant in compliance with the applicable statutory and
regulatory framework;
[[Page 144]]
(10) Whether the associated person has been involved in any
litigation during the five years preceding the filing of the application
concerning investment or investment-related activities or whether there
are any unsatisfied judgments outstanding against the associated person
concerning investment or investment-related activities, to the extent
not otherwise covered by paragraph (e)(9) of this section. If so, the
applicant should provide details regarding such litigation or
unsatisfied judgments; and
(11) Any other information that the applicant believes to be
material to the application.
(f) Prior applications or processes. In addition to the information
specified above, any person making an application under this rule shall
provide any order, notice or other applicable document reflecting the
grant, denial or other disposition (including any dispositions on
appeal) of any prior application or process concerning the associated
person:
(1) Pursuant to this section;
(2) Pursuant to Rule of Practice 193 (17 CFR 201.193);
(3) Pursuant to Investment Company Act Section 9(c) (15 U.S.C. 80a-
9(c));
(4) Pursuant to Section 19(d) of the Securities Exchange Act of 1934
(15 U.S.C. 78s(d)), Rule 19h-1 under the Securities Exchange Act of 1934
(17 CFR 240.19h-1), or a proceeding by a self-regulatory organization
(as provided in 15 U.S.C. 78c(a)(26)) for a person to become or remain a
member, or an associated person of a member, notwithstanding the
existence of a statutory disqualification; or
(5) By the Commodity Futures Trading Commission or a registered
futures association (as provided in 7 U.S.C. 21) for registration,
including as an associated person, or listing as a principal,
notwithstanding the existence of a statutory disqualification,
including:
(i) Any order or other document providing that the associated person
may be listed as a principal or registered as an associated person of a
futures commission merchant, retail foreign exchange dealer, introducing
broker, commodity pool operator, commodity trading advisor, or leverage
transaction merchant, or any person registered as a floor broker or a
floor trader, notwithstanding that the person is subject to a statutory
disqualification from registration under Section 8a(2) or 8a(3) of the
Commodity Exchange Act (7 U.S.C. 12a(2), (3)); or
(ii) Any determination by a registered futures association (as
provided in 7 U.S.C. 21) that had the associated person applied for
registration as an associated person of a swap dealer or a major swap
participant, or had a swap dealer or major swap participant listed the
associated person as a principal in the swap dealer's or major swap
participant's application for registration, notwithstanding statutory
disqualification, the application of the associated person or of the
swap dealer or major swap participant, as the case may be, would have
been granted or denied.
(g) Notification to applicant and written statement. In the event an
adverse recommendation is proposed by Commission staff with respect to
an application made pursuant to this section, the applicant shall be so
advised and provided with a written statement of the reasons for such
recommendation. The applicant shall then have 30 days thereafter to
submit a written statement in response.
(h) Notice in lieu of an application. (1) A security-based swap
dealer or major security-based swap participant may permit a person
associated with it who is subject to a statutory disqualification to
effect or be involved in effecting security-based swaps on its behalf,
without making an application pursuant to this section, where the
conditions in paragraph (h)(2) of this section are met, and where:
(i) The person has been admitted to or continued in membership, or
participation or association with a member, of a self-regulatory
organization (as provided in 15 U.S.C. 78c(a)(26)), notwithstanding that
such person is subject to a statutory disqualification under Section
3(a)(39)(A) through (F) of the Securities Exchange Act of 1934 (15
U.S.C. 78c(a)(39)(A) through (F));
(ii) The person has been granted consent to associate pursuant to
the Rule of Practice 193 (17 CFR 201.193) or otherwise by the
Commission;
[[Page 145]]
(iii) The person has been permitted to effect or be involved in
effecting security-based swaps on behalf of a security-based swap dealer
or major security-based swap participant pursuant to this section; or
(iv) The person has been registered as, or listed as a principal of,
a futures commission merchant, retail foreign exchange dealer,
introducing broker, commodity pool operator, commodity trading advisor,
or leverage transaction merchant, registered as an associated person of
any of the foregoing, registered as or listed as a principal of a swap
dealer or major swap participant, or registered as a floor broker or
floor trader, notwithstanding that the person is subject to a statutory
disqualification under Sections 8a(2) or 8a(3) of the Commodity Exchange
Act (7 U.S.C. 12a(2), (3)), and the person is not subject to a
Commission bar or suspension pursuant to Sections 15(b), 15B, 15E, 15F,
or 17A of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b), 78o-4,
78o-7, 78o-10, 78q-1), Section 9(b) of the Investment Company Act of
1940 (15 U.S.C. 80a-9(b)), or Section 203(f) of the Investment Advisers
Act of 1940 (15 U.S.C. 80b-3(f)).
(2) A security-based swap dealer or major security-based swap
participant may permit a person associated with it who is subject to a
statutory disqualification to effect or be involved in effecting
security-based swaps on its behalf, without making an application
pursuant to this section, as provided in paragraph (h)(1), subject to
the following conditions:
(i) All matters giving rise to a statutory disqualification under
Section 3(a)(39)(A) through (F) of the Securities Exchange Act of 1934
(15 U.S.C. 78c(a)(39)(A) through (F)) have been subject to a process
where the membership, association, registration or listing as a
principal has been granted or otherwise approved by the Commission,
Commodity Futures Trading Commission, self-regulatory organization (as
provided in 15 U.S.C. 78c(a)(26)), or a registered futures association
(as provided in 7 U.S.C. 21);
(ii) The terms and conditions of the association with the security-
based swap dealer or major security-based swap participant are the same
in all material respects as those approved in connection with a previous
order, notice or other applicable document granting the membership,
association, registration or listing as a principal, as provided in
paragraph (h)(1); and
(iii) The security-based swap dealer or major security-based swap
participant has filed a notice with the Commission. The notice shall be
filed pursuant to Rules of Practice 151, 152, and 153 (17 CFR 201.151,
201.152, and 201.153). The notice must set forth, as appropriate:
(A) The name of the security-based swap dealer or major security-
based swap participant;
(B) The name of the associated person subject to a statutory
disqualification;
(C) The name of the associated person's prospective supervisor(s) at
the security-based swap dealer or major security-based swap participant;
(D) The place of employment for the associated person subject to a
statutory disqualification; and
(E) Identification of any agency, self-regulatory organization (as
provided in 15 U.S.C. 78c(a)(26)) or a registered futures association
(as provided in 7 U.S.C. 21) that has indicated its agreement with the
terms and conditions of the proposed association, registration or
listing as a principal.
(i) Note to Sec. 201.194. (1) Under Section 15F(b)(6) of the
Securities Exchange Act of 1934 (15 U.S.C. 78o-10(b)(6)), except to the
extent otherwise specifically provided by rule, regulation, or order of
the Commission, it shall be unlawful for a security-based swap dealer or
a major security-based swap participant to permit any person associated
with a security-based swap dealer or a major security-based swap
participant who is subject to a statutory disqualification to effect or
be involved in effecting security-based swaps on behalf of the security-
based swap dealer or major security-based swap participant, if the
security-based swap dealer or major security-based swap participant
knew, or in the exercise of reasonable care should have known, of the
statutory disqualification.
(2) Subject to the exclusion provided in paragraph (c) of this
section, in accordance with the authority granted in
[[Page 146]]
Section 15F(b)(6) of the Securities Exchange Act of 1934 (15 U.S.C. 78o-
10(b)(6)), this section governs applications to the Commission by a
security-based swap dealer or major security-based swap participant for
the Commission to issue an order to permit a natural person who is an
associated person of a security-based swap dealer or major security-
based swap participant who is subject to a statutory disqualification to
effect or be involved in effecting security-based swaps on behalf of the
security-based swap dealer or major security- based swap participant.
(3) Applications made pursuant to this section must show that it
would be consistent with the public interest to permit the associated
person of the security-based swap dealer or major security-based swap
participant to effect or be involved in effecting security-based swaps
on behalf of the security-based swap dealer or major security-based swap
participant. In addition to the information specifically required by the
rule, applications should be supplemented, where appropriate, by written
statements of individuals who are competent to attest to the associated
person's character, employment performance, and other relevant
information. In addition to the information required by the rule, the
Commission staff may request supplementary information to assist in the
Commission's review. Intentional misstatements or omissions of fact may
constitute criminal violations of 18 U.S.C. 1001, et seq. and other
provisions of law. The Commission will not consider any application that
attempts to reargue or collaterally attack the findings that resulted in
the statutory disqualification.
(4) The nature of the supervision that an associated person will
receive or exercise as an associated person with a registered entity is
an important matter bearing upon the public interest. In meeting the
burden of showing that permitting the associated person to effect or be
involved in effecting security-based swaps on behalf of the security-
based swap dealer or major security-based swap participant is consistent
with the public interest, the application and supporting documentation
must demonstrate that the terms or conditions of association, procedures
or proposed supervision, are reasonably designed to ensure that the
statutory disqualification does not negatively affect the ability of the
associated person to effect or be involved in effecting security-based
swaps on behalf of the security-based swap dealer or major security-
based swap participant in compliance with the applicable statutory and
regulatory framework.
(5) Normally, the applicant's burden of demonstrating that
permitting the associated person to effect or be involved in effecting
security-based swaps on behalf of the security-based swap dealer or
major security-based swap participant is consistent with the public
interest will be difficult to meet where the associated person is to be
supervised by, or is to supervise, another statutorily disqualified
individual. In addition, where there is an absence of supervision over
the associated person who is subject to a statutory disqualification,
the applicant's burden will be difficult to meet. The associated person
may be limited to association in a specified capacity with a particular
registered entity and may also be subject to specific terms and
conditions.
[84 FR 4944, Feb. 19, 2019]
Effective Date Note: At 85 FR 6349, Feb. 4, 2020, Sec. 201.194 was
amended by redesignating paragraph (c) as paragraph (c)(1), adding
paragraph (c) subject heading, and adding paragraph (c)(2), effective
Apr. 6, 2020. For the convenience of the user, the added text is set
forth as follows:
Sec. 201.194 Applications by security-based swap dealers or major
security-based swap participants for statutorily disqualified
associated persons to effect or be involved in effecting
security-based swaps.
* * * * *
(c) Exclusions.
* * * * *
(2) Exclusion for certain associated natural persons. A security-
based swap dealer or major security-based swap participant shall be
excluded from the prohibition in section 15F(b)(6) of the Exchange Act
(15 U.S.C. 78o-10(b)(6)) with respect to an associated person who is a
natural person who (i) is not a U.S. person (as defined in 17 CFR
240.3a71-3(a)(4)(i)(A)) and (ii) does not effect and is not involved in
effecting security-based swap transactions with or for counterparties
that are U.S. persons (as defined in 17 CFR
[[Page 147]]
240.3a71-3(a)(4)), other than a security-based swap transaction
conducted through a foreign branch (as that term is defined in 17 CFR
240.3a71-3(a)(3)) of a counterparty that is a U.S. person; provided,
however, that this exclusion shall not be available if the associated
person of that security-based swap dealer or major security-based swap
participant is currently subject to any order described in subparagraphs
(A) and (B) of section 3(a)(39) of the Exchange Act, with the limitation
that an order by a foreign financial regulatory authority described in
subparagraphs (B)(i) and (B)(iii) of section 3(a)(39) (15 U.S.C.
78c(a)(39)(B)(i) and (B)(iii)) shall only apply to orders by a foreign
financial regulatory authority in the jurisdiction where the associated
person is employed or located.
Initiation of Proceedings and Prehearing Rules
Sec. 201.200 Initiation of proceedings.
(a) Order instituting proceedings: Notice and opportunity for
hearing--(1) Generally. Whenever an order instituting proceedings is
issued by the Commission, appropriate notice thereof shall be given to
each party to the proceeding by the Secretary or another duly designated
officer of the Commission. Each party shall be given notice of any
hearing within a time reasonable in light of the circumstances, in
advance of the hearing; provided, however, no prior notice need be given
to a respondent if the Commission has authorized the Division of
Enforcement to seek a temporary sanction ex parte.
(2) Stop order proceedings: Additional persons entitled to notice.
Any notice of a proceeding relating to the issuance of a stop order
suspending the effectiveness of a registration statement pursuant to
Section 8(d) of the Securities Act of 1933, 15 U.S.C. 77h(d), shall be
sent to or served on the issuer; or, in the case of a foreign government
or political subdivision thereof, sent to or served on the underwriter;
or, in the case of a foreign or territorial person, sent to or served on
its duly authorized representative in the United States named in the
registration statement, properly directed in the case of telegraphic
notice to the address given in such statement. In addition, if such
proceeding is commenced within 90 days after the registration statement
has become effective, notice of the proceeding shall be given to the
agent for service named on the facing sheet of the registration
statement and to each other person designated on the facing sheet of the
registration statement as a person to whom copies of communications to
such agent are to be sent.
(b) Content of order. The order instituting proceedings shall:
(1) State the nature of any hearing;
(2) State the legal authority and jurisdiction under which the
hearing is to be held;
(3) Contain a short and plain statement of the matters of fact and
law to be considered and determined, unless the order directs an answer
pursuant to Sec. 201.220 in which case the order shall set forth the
factual and legal basis alleged therefor in such detail as will permit a
specific response thereto; and
(4) State the nature of any relief or action sought or taken.
(c) Time and place of hearing. The time and place for any hearing
shall be fixed with due regard for the public interest and the
convenience and necessity of the parties, other participants, or their
representatives.
(d) Amendment to order instituting proceedings--(1) By the
Commission. Upon motion by a party, the Commission may, at any time,
amend an order instituting proceedings to include new matters of fact or
law.
(2) By the hearing officer. Upon motion by a party, the hearing
officer may, at any time prior to the filing of an initial decision or,
if no initial decision is to be filed, prior to the time fixed for the
filing of final briefs with the Commission, amend an order instituting
proceedings to include new matters of fact or law that are within the
scope of the original order instituting proceedings.
(e) Publication of notice of public hearings. Unless otherwise
ordered by the Commission, notice of any public hearing shall be given
general circulation by release to the public, by publication in the SEC
News Digest and, where directed, by publication in the Federal Register.
Sec. 201.201 Consolidation and severance of proceedings.
(a) Consolidation. By order of the Commission or a hearing officer,
proceedings involving a common question
[[Page 148]]
of law or fact may be consolidated for hearing of any or all the matters
at issue in such proceedings. The Commission 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 of Practice 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 section, no
distinction is made between joinder and consolidation of proceedings.
(b) Severance. By order of the Commission, any proceeding may be
severed with respect to one or more parties. Any motion to sever must be
made solely to the Commission and must include a representation that a
settlement offer is pending before the Commission or otherwise show good
cause.
[60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004;
70 FR 72570, Dec. 5, 2005]
Sec. 201.202 Specification of procedures by parties in certain proceedings.
(a) Motion to specify procedures. In any proceeding other than an
enforcement or disciplinary proceeding, a proceeding to review a
determination by a self-regulatory organization pursuant to Sec. Sec.
201.420 and 201.421, or a proceeding to review a determination of the
Board pursuant to Sec. Sec. 201.440 and 201.441, a party may, at any
time up to 20 days prior to the start of a hearing, make a motion to
specify the procedures necessary or appropriate for the proceeding with
particular reference to:
(1) Whether there should be an initial decision by a hearing
officer;
(2) Whether any interested division of the Commission may assist in
the preparation of the Commission's decision; and
(3) Whether there should be a 30-day waiting period between the
issuance of the Commission's order and the date it is to become
effective.
(b) Objections; effect of failure to object. Any other party may
object to the procedures so specified, and such party may specify such
additional procedures as it considers necessary or appropriate. In the
absence of such objection or such specification of additional
procedures, such other party may be deemed to have waived objection to
the specified procedures.
(c) Approval required. Any proposal pursuant to paragraph (a) of
this section, even if not objected to by any party, shall be subject to
the written approval of the hearing officer.
(d) Procedure upon agreement to waive an initial decision. If an
initial decision is waived pursuant to paragraph (a) of this section,
the hearing officer shall notify the Secretary and, unless the
Commission directs otherwise within 14 days, no initial decision shall
be issued.
[60 FR 32796, June 23, 1995, as amended at 69 FR 13177, Mar. 19, 2004]
Sec. 201.210 Parties, limited participants and amici curiae.
(a) Parties in an enforcement or disciplinary proceeding, a
proceeding to review a self-regulatory organization determination, or a
proceeding to review a Board determination--(1) Generally. No person
shall be granted leave to become a party or a non-party participant on a
limited basis in an enforcement or disciplinary proceeding, a proceeding
to review a determination by a self-regulatory organization pursuant to
Sec. Sec. 201.420 and 201.421, or a proceeding to review a
determination by the Board pursuant to Sec. Sec. 201.440 and 201.441,
except as authorized by paragraph (c) of this section.
(2) Disgorgement proceedings. In an enforcement proceeding, a person
may state his or her views with respect to a proposed plan of
disgorgement or file a proof of claim pursuant to Sec. 201.1103.
(b) Intervention as a party--(1) Generally. In any proceeding, other
than an enforcement proceeding, a disciplinary proceeding, a proceeding
to review a self-regulatory determination, or a proceeding to review a
Board determination, any person may seek leave to intervene as a party
by filing a motion setting forth the person's interest in the
proceeding. No person, however, shall be admitted as a party to a
proceeding by intervention unless it is determined that leave to
participate pursuant to paragraph (c) of this section would be
inadequate for the protection of the person's interests. In
[[Page 149]]
a proceeding under the Investment Company Act of 1940, any
representative of interested security holders, or any other person whose
participation in the proceeding may be in the public interest or for the
protection of investors, may be admitted as a party upon the filing of a
written motion setting forth the person's interest in the proceeding.
(2) Intervention as of right. In proceedings under the Investment
Company Act of 1940, any interested State or State agency shall be
admitted as a party to any proceeding upon the filing of a written
motion requesting leave to be admitted.
(c) Leave to participate on a limited basis. In any proceeding,
other than an enforcement proceeding, a disciplinary proceeding, a
proceeding to review a self-regulatory determination, or a proceeding to
review a Board determination, any person may seek leave to participate
on a limited basis as a non-party participant as to any matter affecting
the person's interests:
(1) Procedure. 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. Leave to participate pursuant to this
paragraph (c) may include such rights of a party as the hearing officer
may deem appropriate. Persons granted leave to participate shall be
served in accordance with Sec. 201.150; provided, however, that a party
to the proceeding may move that the extent of notice of filings or other
papers to be provided to persons granted leave to participate be
limited, or may move that the persons granted leave to participate bear
the cost of being provided copies of any or all filings or other papers.
Persons granted leave to participate shall be bound, except as may be
otherwise determined by the hearing officer, by any stipulation between
the parties to the proceeding with respect to procedure, including
submission of evidence, substitution of exhibits, corrections of the
record, the time within which briefs or exceptions may be filed or
proposed findings and conclusions may be submitted, the filing of
initial decisions, the procedure to be followed in the preparation of
decisions and the effective date of the Commission's order in the case.
Where the filing of briefs or exceptions or the submission of proposed
findings and conclusions are waived by the parties to the proceedings, a
person granted leave to participate pursuant to this paragraph (c) shall
not be permitted to file a brief or exceptions or submit proposed
findings and conclusions except by leave of the Commission or of the
hearing officer.
(2) Certain persons entitled to leave to participate. The hearing
officer is directed to grant leave to participate under this paragraph
(c) to any person to whom it is proposed to issue any security in
exchange for one or more bona fide outstanding securities, claims or
property interests, or partly in such exchange and partly for cash,
where the Commission is authorized to approve the terms and conditions
of such issuance and exchange after a hearing upon the fairness of such
terms and conditions.
(3) Leave to participate in certain Commission proceedings by a
representative of the United States Department of Justice, a United
States Attorney's Office, or a criminal prosecutorial authority of any
State or any other political subdivision of a State. The Commission or
the hearing officer may grant leave to participate on a limited basis to
an authorized representative of the United States Department of Justice,
an authorized representative of a United States Attorney, 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 criminal investigation or
prosecution arising out of the same or similar facts that are at issue
in the pending Commission enforcement or disciplinary proceeding. Upon a
showing that such a stay is in the public interest or for the protection
of investors, the motion for stay shall be favored. A stay granted under
this paragraph (c)(3) may be granted for such a period and upon such
conditions as the Commission or the hearing officer deems appropriate.
[[Page 150]]
(d) Amicus participation--(1) Availability. An amicus brief may be
filed only if:
(i) A motion for leave to file the brief has been granted;
(ii) The brief is accompanied by written consent of all parties;
(iii) The brief is filed at the request of the Commission or the
hearing officer; or
(iv) The brief is presented by the United States or an officer or
agency thereof, or by a State, Territory or Commonwealth.
(2) Procedure. An amicus brief may be filed conditionally with the
motion for leave. The motion for leave shall identify the interest of
the movant and shall state the reasons why a brief of an amicus curiae
is desirable. Except as all parties otherwise consent, any amicus curiae
shall file its brief within the time allowed the party whose position
the amicus will support, unless the Commission or hearing officer, for
cause shown, grants leave for a later filing. In the event that a later
filing is allowed, the order granting leave to file shall specify when
an opposing party may reply to the brief. A motion of an amicus curiae
to participate in oral argument will be granted only for extraordinary
reasons.
(e) Permission to state views. Any person may make a motion seeking
leave to file a memorandum or make an oral statement of his or her
views. Any such communication may be included in the record; provided,
however, that unless offered and admitted as evidence of the truth of
the statements therein made, any assertions of fact submitted pursuant
to the provisions of this paragraph (e) will be considered only to the
extent that the statements therein made are otherwise supported by the
record.
(f) Modification of participation provisions. The Commission or the
hearing officer may, by order, modify the provisions of this section
which would otherwise be applicable, and may impose such terms and
conditions on the participation of any person in any proceeding as it
may deem necessary or appropriate in the public interest.
[60 FR 32796, June 23, 1995, as amended at 63 FR 63405, Nov. 13, 1998;
69 FR 13177, Mar. 19, 2004; 70 FR 72570, Dec. 5, 2005; 76 FR 71875, Nov.
21, 2011]
Sec. 201.220 Answer to allegations.
(a) When required. In its order instituting proceedings, the
Commission may require any respondent to file an answer to each of the
allegations contained therein. Even if not so ordered, any respondent in
any proceeding may elect to file an answer. Any other person granted
leave by the Commission or the hearing officer to participate on a
limited basis in such proceedings pursuant to Sec. 201.210(c) may be
required to file an answer.
(b) When to file. Except where a different period is provided by
rule or by order, a respondent required to file an answer as provided in
paragraph (a) of this section shall do so within 20 days after service
upon the respondent of the order instituting proceedings. Persons
granted leave to participate on a limited basis in the proceeding
pursuant to Sec. 201.210(c) may file an answer within a reasonable
time, as determined by the Commission or the hearing officer. If the
order instituting proceedings is amended, the Commission 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; effect of failure to deny. Unless otherwise directed
by the hearing officer or the Commission, 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. Any allegation not denied
shall be deemed admitted. A respondent must affirmatively state in the
answer any avoidance or affirmative defense, including but not limited
to res judicata and statute of limitations. In this regard, a respondent
must state in the answer whether the respondent relied on the advice of
counsel, accountants, auditors, or other professionals in connection
with any claim, violation alleged or remedy sought. Failure to do so may
be deemed a waiver.
[[Page 151]]
(d) Motion for more definite statement. A respondent may file with
an answer a motion for a more definite statement of specified matters of
fact or law to be considered or determined. Such motion shall state the
respects in which, and the reasons why, each such matter of fact or law
should be required to be made more definite. If the motion is granted,
the order granting such motion shall set the periods for filing such a
statement and any answer thereto.
(e) Amendments. A respondent may amend its answer at any time by
written consent of each adverse party or with leave of the Commission or
the hearing officer. Leave shall be freely granted when justice so
requires.
(f) Failure to file answer: Default. If a respondent fails to file
an answer required by this section within the time provided, such
respondent may be deemed in default pursuant to Sec. 201.155(a). A
party may make a motion to set aside a default pursuant to Sec.
201.155(b).
[81 FR 50234, July 29, 2016]
Sec. 201.221 Prehearing conference.
(a) Purposes of conference. The purposes of a prehearing conference
include, but are not limited to:
(1) Expediting the disposition of the proceeding;
(2) Establishing early and continuing control of the proceeding by
the hearing officer; and
(3) Improving the quality of the hearing through more thorough
preparation.
(b) Procedure. On his or her own motion or at the request of a
party, the hearing officer may, in his or her discretion, direct counsel
or any party to meet for an initial, final or other prehearing
conference. Such conferences may be held with or without the hearing
officer present as the hearing officer deems appropriate. Where such a
conference is held outside the presence of the hearing officer, the
hearing officer shall be advised promptly by the parties of any
agreements reached. Such conferences also may be held with one or more
persons participating by telephone or other remote means.
(c) Subjects to be discussed. At a prehearing conference
consideration may be given and action taken with respect to any and all
of the following:
(1) Simplification and clarification of the issues;
(2) Exchange of witness and exhibit lists and copies of exhibits;
(3) Timing of expert witness disclosures and reports, if any;
(4) Stipulations, admissions of fact, and stipulations concerning
the contents, authenticity, or admissibility into evidence of documents;
(5) Matters of which official notice may be taken;
(6) The schedule for exchanging prehearing motions or briefs, if
any;
(7) The method of service for papers other than Commission orders;
(8) The filing of any motion pursuant to Sec. 201.250;
(9) Settlement of any or all issues;
(10) Determination of hearing dates;
(11) Amendments to the order instituting proceedings or answers
thereto;
(12) Production, and timing for completion of the production, of
documents as set forth in Sec. 201.230, and prehearing production of
documents in response to subpoenas duces tecum as set forth in Sec.
201.232;
(13) Specification of procedures as set forth in Sec. 201.202;
(14) Depositions to be conducted, if any, and date by which
depositions shall be completed; and
(15) Such other matters as may aid in the orderly and expeditious
disposition of the proceeding.
(d) Required prehearing conference. Except where the emergency
nature of a proceeding would make a prehearing conference clearly
inappropriate, at least one prehearing conference should be held.
(e) Prehearing orders. At or following the conclusion of any
conference held pursuant to this section, the hearing officer shall
enter a ruling or order which recites the agreements reached and any
procedural determinations made by the hearing officer.
(f) Failure to appear: default. Any person who is named in an order
instituting proceedings as a person against whom findings may be made or
sanctions imposed and who fails to appear, in person or through a
representative, at a prehearing conference of which he or she has been
duly notified may be
[[Page 152]]
deemed in default pursuant to Sec. 201.155(a). A party may make a
motion to set aside a default pursuant to Sec. 201.155(b).
[60 FR 32796, June 23, 1995, as amended at 63 FR 63405, Nov. 13, 1998;
81 FR 50234, July 29, 2016]