[Federal Register Volume 64, Number 77 (Thursday, April 22, 1999)]
[Proposed Rules]
[Pages 19732-19739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9905]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 200

[Release Nos. 34-41288; FOIA-190; and PA-27; File No. S7-14-99]
RIN 3235-AH71


Amendments to the Commission's Freedom of Information Act, 
Privacy Act, and Confidential Treatment Rules

AGENCY: Securities and Exchange Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission proposes to amend its Freedom of Information 
Act, Privacy Act, and confidential treatment rules because they are 
outdated in many respects. The proposed amendments would conform these 
rules to current statutory and case law and administrative practice.

DATES: Comments must be received by June 21, 1999.

ADDRESSES: You should send three copies of your comments to Jonathan G. 
Katz, Secretary, U.S. Securities and Exchange Commission, 450 Fifth 
Street, NW., Stop 0609, Washington, DC 20549-0609. You may also submit 
your comments electronically to the following electronic address: rule-
[email protected]. All comments letters should refer to File
    No. S7-14-99; you should also include this file number in the 
subject line if you use electronic mail. Comment letters will be 
available for public inspection and copying at our Public Reference 
Room, 450 Fifth Street, NW., Washington, DC 20549. We will post 
electronically-submitted comment letters on our Internet Web site 
(http://www.sec.gov).

FOR FURTHER INFORMATION CONTACT: Betty Lopez, FOIA/Privacy Act Officer 
(202) 942-4327; or Elizabeth T. Tsai, Staff Attorney, Office of Freedom 
of Information and Privacy Act Operations (202) 942-4326.

SUPPLEMENTARY INFORMATION:

I. Discussion of Rule Amendments

    The Commission hereby proposes to amend its rules that allow 
persons to request records in its possession and request confidential 
treatment of records they submit to the Commission. The proposed 
amendments would make substantive and procedural changes to conform the 
rules to current statutory and case law and Commission practice. Other 
changes would correct clerical errors.
    For example, under the proposed amendments, persons who voluntarily 
submit commercial or financial records to the Commission for which they 
are claiming confidentiality must stamp each page of the records 
``Voluntarily Submitted'' in order to claim confidentiality under 
Critical Mass Energy Project v. Nuclear Regulatory Comm'n.\1\ Also, 
requests for confidential treatment and substantiations of such 
requests would be deemed confidential and effective for five years from 
the date of their last submission unless renewed by the requester.
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    \1\ 975 F.2d 871, 880 (D.C. Cir. 1992) (en banc), cert. denied, 
507 U.S. 984 (1993).
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    Specifically, the Commission proposes to amend 17 CFR 200.80, 
200.83, and 200.301 et seq. These rules lay down the procedures for 
requesting records under the Freedom of Information Act (``FOIA'') \2\ 
or the Privacy Act of 1974 (``Privacy Act'') \3\ and allow persons to 
request confidential treatment for records they submit to the 
Commission.\4\
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    \2\ 5 U.S.C. 552.
    \3\ 5 U.S.C. 552a.
    \4\ 5 U.S.C. 552.
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A. Confidential Treatment Requests

1. Background
    The Commission has acquired, and will continue to acquire, a large 
number of records from private parties. Some of these records are 
regarded as very sensitive by the persons providing them. Yet, members 
of the public often want access to those records in the Commission's 
possession. Under the FOIA, a request for agency records by any person 
must be honored unless they are exempt from disclosure.\5\
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    \5\ See 5 U.S.C. 552(b) (FOIA exemptions).
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    Thus, the Commission must carefully weigh competing interests in 
fulfilling its obligation to disclose non-exempt records to the public 
under the FOIA, while preserving the legitimate interest of the 
submitter in keeping sensitive records confidential. The Commission 
wants to assure submitters of records that it will preserve the 
confidentiality of such records to the extent permitted by law and 
consistent with the Commission's responsibilities.\6\ The Commission 
believes that the submission of records will be encouraged if the 
Commission maintains procedures that promote the fair evaluation of 
claims of confidentiality and enable it to determine which records may 
be withheld from disclosure under the FOIA.
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    \6\ A grant of confidential treatment does not preclude 
appropriate disclosure of the information, such as to Congress or 
another governmental authority. Nor does it preclude disclosure 
under a court order or subpoena.
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    To that end, in 1980, the Commission adopted confidential treatment 
procedures which apply to documents for which there is no other 
specific procedure to obtain confidentiality and which, in the normal 
course of Commission business, would not be placed in a public file.\7\ 
The Commission amended these rules in 1982 to provide that, by 
delegated authority from the Commission, the General Counsel would 
decide confidential treatment appeals.\8\
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    \7\ See 45 FR 62418, Sept. 19, 1980. The rule requires persons 
wishing to make a request for confidential treatment to submit their 
request at the time the information is first provided to the 
Commission or as soon thereafter as possible.
    \8\ 47 FR 20287, May 12, 1982.
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    One of the proposed amendments would implement the opinion of the 
District of Columbia Circuit in Critical Mass Energy Project v. Nuclear 
Regulatory Comm'n,\9\ in which the Court held that commercial or 
financial information, which is voluntarily submitted to an agency and 
is of a kind that the submitter would not customarily disclose to the 
public, is deemed confidential and, thus, exempt from disclosure under 
Exemption 4 of

[[Page 19733]]

the FOIA.\10\ As a result of Critical Mass, the Commission is proposing 
new procedures to ensure that records voluntarily submitted are 
properly identified as such.
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    \9\ 975 F.2d 871 (D.C. Cir. 1992) (en banc), cert. denied, 507 
U.S. 984 (1993).
    \10\ 975 F.2d at 879. Exemption 4 protects ``trade secrets and 
commercial or financial information obtained from a person and 
privileged or confidential.'' 5 U.S.C. 552(b)(4).
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    The proposed rule also addresses the confidentiality of requests 
for confidential treatment and substantiations submitted in support of 
such requests and requires that confidential treatment requesters renew 
their requests every five years. The Commission is also proposing 
certain other changes to conform the rule to current Commission 
practice. These rules are not intended to alter the substantive rights 
of any person to obtain or protect records under the FOIA or any other 
federal statute or regulation.
2. Significant Revisions in the Rule
a. Voluntarily Submitted Information
    In Critical Mass, the United States Court of Appeals for the 
District of Columbia Circuit held ``that Exemption 4 protects any 
financial or commercial information provided to the Government on a 
voluntary basis if it is of a kind that the provider would not 
customarily release to the public.'' \11\ Before Critical Mass, 
commercial or financial information was deemed confidential (and, thus, 
exempt) if it was likely that disclosure would ``impair the 
government's ability to obtain necessary information in the future'' or 
``cause substantial harm to the competitive position of the person'' 
submitting the information. National Parks & Conservation Ass'n v. 
Morton.\12\ Hence, Critical Mass applies to commercial or financial 
information submitted voluntarily to an agency, whereas National Parks 
remains applicable to such information required to be submitted to an 
agency.\13\
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    \11\ 975 F.2d at 880.
    \12\ 498 F.2d 765, 770 (D.C. Cir. 1974).
    \13\ 975 F.2d at 880.
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    The Commission's proposed rule requires that submitters designate 
the records that they claim to be submitting voluntarily by clearly 
marking each page ``Voluntarily Submitted.'' In addition, the submitter 
must describe the circumstances under which the records were submitted 
to the Commission in sufficient detail to support the claim that they 
were voluntarily submitted. No decision whether the records were, in 
fact, submitted voluntarily will be made unless the Commission receives 
a FOIA request for those records.\14\
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    \14\ Indeed, the Commission resolves any request for 
confidential treatment only at such time as a FOIA request is made 
for the designated records.
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    The Commission believes that this proposed rule comports with the 
present state of the law.\15\ Moreover, it will facilitate prompt, 
efficient review by the FOIA Office and eliminate the need for the 
Commission to obtain after-the-fact information of the circumstances of 
voluntary submissions.\16\ In short, the new rule should provide more 
accurate, reliable information in a manner that will facilitate timely 
responses by the FOIA Office to FOIA and confidential treatment 
requests.
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    \15\ The Commission recognizes that the law relating to 
Exemption 4 of the FOIA is still developing and that the applicable 
standards may be further modified.
    \16\ The person requesting confidential treatment is responsible 
for substantiating his request, including any assertion that the 
provided confidential commercial or financial records are 
voluntarily submitted.
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b. Confidentiality of Confidential Treatment Requests and 
Substantiations
    The Commission proposes to deem all confidential treatment requests 
confidential, even though historically the Commission has viewed such 
requests as unprotected by the FOIA.\17\ Frequently, submitters seek 
confidential treatment of their confidential treatment requests because 
the requests, themselves, contain confidential competitive information 
or describe in detail the information for which they seek 
confidentiality.
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    \17\ See FOIA Rel. No. 65, May 5, 1983, 48 FR 21112.
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    In addition, the FOIA Office has been unable to assure confidential 
treatment requesters that their substantiations would be kept 
confidential during and after the processing of their confidential 
treatment requests. The lack of such assurance has, on occasion, 
resulted in vague, generalized, or incomplete substantiations by those 
who feared that a thorough substantiation would reveal confidential 
information.
    The Commission now proposes to amend its rules so that confidential 
treatment requests and substantiations of confidential treatment 
requests will also be deemed confidential. This amendment would 
encourage persons requesting confidential treatment to submit full, 
detailed substantiations to demonstrate that the records should be 
withheld under FOIA Exemption 4.\18\
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    \18\ Nevertheless, if the FOIA requester or the confidential 
treatment requester files an action in Federal court, the 
confidential treatment request and its substantiation could become 
part of the court record.
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c. Expiration of Confidential Treatment Requests
    The Commission often spends considerable time, effort, and expense 
in notifying persons requesting confidential treatment that it has 
received a FOIA request for the submitted records. Frequently, however, 
notifying requesters becomes impossible because counsel, company 
personnel, addresses, or telephone numbers have changed without notice 
to the FOIA Office.\19\
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    \19\ The Commission's existing confidential treatment rule 
requires notice of any change in address or telephone number of a 
confidential treatment requester. 17 CFR 200.83(c)(3). Persons 
requesting confidential treatment frequently fail, however, to 
comply with this requirement.
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    Moreover, it has been the Commission's experience that the need for 
confidential treatment often diminishes with the passage of time. Thus, 
the Commission believes that a rule designating an expiration date for 
confidential treatment requests five years after their receipt by the 
FOIA Office is appropriate.\20\ To that end, the proposed amendment 
states that a confidential treatment request will expire five years 
after its receipt by the FOIA Office unless the person requesting 
confidentiality renews the request before its expiration date.
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    \20\ See Executive Order No. 12,600, 3 CFR, 1987 Comp., p. 235, 
permits such time limits.
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3. Other Procedural Provisions in the Confidential Treatment Rules
    Under paragraph (c)(2) of the proposed rule, written requests for 
confidential treatment must refer to identifying numbers and codes 
placed on the records. While the current rule permits a submitter to 
attach a cover sheet rather than actually mark each page of the record, 
the FOIA Office has encountered difficulties determining which records 
are covered when this method is used. Therefore, the amended rule 
requires that all records covered by a confidential treatment request 
be marked ``Confidential Treatment requested by (name),'' accompanied 
by an identifying number and code on each page. Further, the 
confidential treatment request and any substantiation should specify by 
the identifying code the records they cover.
    Finally, the FOIA Office will issue a preliminary decision to the 
person requesting confidential treatment under paragraph (e) of the 
proposed rule. The requester will then have ten calendar days after the 
preliminary decision to respond to the preliminary decision or to 
submit a supplemental substantiation if he or she desires. The Office 
of Freedom of Information and Privacy Act

[[Page 19734]]

Operations may issue the final decision ten business days after the 
preliminary decision if that Office receives no supplemental 
substantiation within the time allowed. This change is intended to 
conform the rule to the Commission's current practice.

B. Amendments to Rules Regarding Commission Records and Information and 
the Privacy of Individuals

1. Commission Records and Information
    The proposed amendments are designed to (1) implement the 
Electronic Freedom of Information Act Amendments of 1996 (``EFOIA'') 
\21\ and the FOIA Reform Act of 1986 (``FOIA Reform Act''),\22\ (2) 
clarify the methods used by the Commission to respond to FOIA requests, 
and (3) correct outdated information and certain typographical errors 
in the present regulations.
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    \21\ Pub. L. 104-231, 110 Stat. 3048 (1996).
    \22\ Pub. L. 99-570, 100 Stat. 3207 (1986).
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    A number of the proposed amendments would conform 17 CFR 200.80 to 
the EFOIA. For example, in addition to (1) final opinions and orders, 
(2) statements of policy and interpretations adopted by the agency but 
not published in the Federal Register, and (3) staff manuals and 
instructions which must be available for inspection and copying in the 
public reference room,\23\ EFOIA requires that each agency make 
available, (4) records processed and disclosed in response to a FOIA 
request when the agency determines that those records have become or 
are likely to become the subject of subsequent requests; and (5) a 
general index of such previously released records.\24\ Moreover, as the 
EFOIA permits an agency to respond to a FOIA request within 20 business 
days of receipt of the request (rather than 10 days as previously 
mandated), the proposed amendments reflect the longer response time 
permitted by law.\25\ Lastly, the EFOIA requires each agency to adopt 
rules for expedited processing of certain requests.\26\
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    \23\ See 5 U.S.C. 552(a)(2).
    \24\ See 5 U.S.C. 552(a)(2)(D) and (E).
    \25\ 5 U.S.C. 552(a)(6)(A)(i).
    \26\ 5 U.S.C. 552(a)(6)(E).
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    As amended by the FOIA Reform Act, the FOIA authorizes agencies to 
recover review costs from commercial-use requesters.\27\ Review costs 
are the direct costs incurred during the initial examination of a 
record to determine whether the record must be disclosed and whether to 
withhold any portion as exempt from disclosure.\28\ The proposed 
amendment would add review fees to search and duplication fees now 
authorized under 17 CFR 200.80(e) and would codify the practice of 
charging review fees to commercial requesters.
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    \27\ 5 U.S.C. 552(a)(4)(A)(ii)(I).
    \28\ 5 U.S.C. 552(a)(4)(A)(iv).
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    The FOIA Reform Act also requires each agency to promulgate 
procedures and guidelines for determining when search, review, and 
duplication fees should be waived or reduced.\29\ The proposed 
amendment provides that such fees will be waived or reduced if 
disclosure is in the public interest because it will likely contribute 
significantly to public understanding of government activities and is 
not primarily in the commercial interest of the requester. Moreover, 
the FOIA Reform Act extends the protection of Exemption 7 to all 
records or information that are compiled for law enforcement purposes, 
not merely investigatory records. As a result, the proposed amendment 
deletes the definition of ``investigatory records'' found in 17 CFR 
200.80(b)(7)(ii).
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    \29\ Freedom of Information Reform Act of 1986, Pub. L. 99-570, 
sec. 1803, 100 Stat. 3207-1, 49 (1986) (amending 5 U.S.C. 
552(a)(4)(A)).
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    Finally, because the Commission has rescinded certain rules 
mentioned in 17 CFR 200.80(b)(4)(ii), the proposed amendments would 
delete references to those rules.\30\
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    \30\ The Commission has rescinded two of the rules referred to 
in 17 CFR 200.80(b)(4)(ii):
    17 CFR 240.17a-9 (See Rel. 34-18108, Sept. 21, 1981, 46 FR 
49114); and
    17 CFR 240.17a-16 (See Rel. 34-20121, Aug. 26, 1983, 48 FR 
39604).
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2. The Privacy of Individuals and Systems of Records
    The proposed amendments would conform this rule to the current 
organization of the Commission and the systems of records it currently 
maintains. For example, certain systems of records deemed exempt from 
the Privacy Act \31\ are no longer maintained by the Commission or have 
been merged into other systems. Consequently, the Commission proposes 
to amend Sec. 200.313(a) to reflect these changes. In addition, the 
proposed amendments would conform the Commission's rules to a recent 
change in the case law regarding requests for information under the 
Privacy Act. In Summers v. Dep't of Justice,\32\ the court held that a 
verification of an individual's identity for purposes of obtaining 
access to Privacy Act records need not be sworn or notarized if the 
unsworn statement complies with 28 U.S.C. 1746.\33\ The proposed 
amendment would permit such an unsworn statement to verify an 
individual's identity.
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    \31\ See 17 CFR 200.313(a).
    \32\ 999 F.2d 570 (D.C. Cir. 1993).
    \33\ Section 1746 permits an unsworn statement when subscribed 
as true under penalty of perjury if written in the particular format 
set forth in the statute.
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II. Effects on Competition

    Section 23(a)(2) of the Securities Exchange Act of 1934 (``Exchange 
Act'') \34\ requires the Commission, in adopting rules under the 
Exchange Act, to consider the anti-competitive effect of such rules, if 
any, and to balance any impact against the regulatory benefits 
furthering the purposes of the Exchange Act. The Commission has 
considered these proposed amendments to 17 CFR 200.80, 200.83, and 
200.301 et seq., in light of the standards cited in section 23(a)(2), 
and believes that the amendments will not impose any burden on 
competition not necessary or appropriate in furtherance of the Exchange 
Act. The proposed amendments would merely conform the rules to current 
law, clarify document submission procedures, and help assure voluntary 
submitters of confidential commercial or financial information that the 
information they submit will not be readily available to competitors.
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    \34\ 15 U.S.C. 78w(a)(2).
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III. Statutory Basis of Rule

    These amendments are proposed under the authority of the FOIA, 5 
U.S.C. 552; the Privacy Act, 5 U.S.C. 552a; the Administrative 
Procedure Act, 5 U.S.C. 553; section 19 of the Securities Act of 1933, 
15 U.S.C. 77s; sections 23 and 24 of the Exchange Act, 15 U.S.C. 78w, 
78x; section 20 of the Public Utility Holding Company Act of 1935, 15 
U.S.C. 79t; section 319 of the Trust Indenture Act of 1939, 15 U.S.C. 
77sss; section 38 of the Investment Company Act of 1940; 15 U.S.C. 80a-
37; and section 211 of the Investment Advisers Act of 1940, 15 U.S.C. 
80b-11.

IV. Initial Regulatory Flexibility Analysis

    The Commission has prepared this initial regulatory flexibility 
analysis in accordance with 5 U.S.C. 603.

A. Reasons for Action

    To update its regulations, the Commission is proposing to amend its 
rules to conform them to present Commission organization and practice 
and current statutory and case law.

B. Objectives and Legal Basis

    These proposed amendments are designed to conform the Commission's 
rules to statutory changes in the FOIA, enhance public access to 
nonpublic records in the Commission's possession which do not contain 
confidential

[[Page 19735]]

commercial or financial information, and improve statutory safeguards 
to protect individuals from an invasion of their personal privacy. This 
action is authorized by 5 U.S.C. 552, 5 U.S.C. 552a, and Executive 
Order 12,600.

C. Small Entities Affected

    The proposed changes will affect all small entities requesting 
Commission records under the FOIA or requesting confidential treatment 
for information that they submit to the Commission. The Commission 
believes that the burden imposed on small entities as a result of these 
proposed amendments will be negligible. There is no reasonable method 
for estimating the number of entities involved.

D. Compliance Requirements

    There will be no additional reporting, recordkeeping, or other 
compliance requirements.

E. Duplicative, Overlapping, or Conflicting Rules

    The Commission believes that there are no duplicative, overlapping, 
or conflicting federal rules.

F. Significant Alternatives

    There are no significant alternatives to the proposed amendments 
that would accomplish the stated objectives of applicable statutes and 
executive order.

G. Solicitation of Comments

    You may submit written comments on this Initial Regulatory 
Flexibility Analysis by sending three copies of your submission to: 
Office of the Secretary, Securities and Exchange Commission, 450 Fifth 
Street, NW, Washington, DC 20549-0609.
    You may also e-mail your comments to [email protected]. Please 
note on the first page of your submission that it relates to File No. 
S7-14-99. Your comments will be available for public inspection and 
copying at the Commission's Public Reference Room at 450 Fifth Street, 
NW, Washington, DC 20549. We will consider your comments when we 
prepare the Final Regulatory Flexibility Analysis in connection with 
the adoption of the final rules.

List of Subjects in 17 CFR Part 200

    Administrative practice and procedures; Classified information; 
Freedom of information; Privacy.

Text of Amendments to 17 CFR Part 200

    For the reasons set out in the preamble, Title 17, Chapter II of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND 
REQUESTS

Subpart D--Information and Requests

    1. The authority citation for part 200, subpart D is revised to 
read as follows:

    Authority: 5 U.S.C. 552, as amended, 15 U.S.C. 77f(d), 77s, 
77ggg(a), 78m(F), 78w, 79t, 79v(a), 77sss, 80a-37, 80a-44(a), 80a-
44(b), 80b-10(a), and 80b-11.
    Sec. 200.80 also issued under 5 U.S.C. 552b; 15 U.S.C. 78d-1, 
78d-2; 78a et seq.; 11 U.S.C. 901, 1109(a).
    Sec. 200.80a also issued under 5 U.S.C. 552b.
    Secs. 200.80b and 200.80c also issued under 11 U.S.C. 901, 
1109(a).
    Sec. 200.82 also issued under 15 U.S.C. 78n.
    Sec. 200.83 also issued under Exec. Order 12,600, 3 CFR, 1987 
Comp., p. 235.


Sec. 200.80   [Amended]

    2. Amend Sec. 200.80 by adding ``Northeast and Midwest'' before the 
phrase ``Regional Offices'' in the introductory text of paragraph 
(a)(2), removing the word ``and'' at the end of paragraph (a)(2)(iv), 
removing the period at the end of paragraph (a)(2)(v) and adding in its 
place ``; and''; adding paragraph (a)(2)(vi) and republishing paragraph 
(a)(2) to read as follows:


Sec. 200.80  Commission records and information.

    (a)(1) * * *
    (2) Records available for public inspection and copying; documents 
published and indexed. * * *
    (vi) Copies and a general index of all records which have been 
released to any person under the Freedom of Information Act and which, 
because of the nature of their subject matter, the Commission 
determines have become or are likely to become the subject matter of 
subsequent requests for substantially the same records.
* * * * *
    3. Amend Sec. 200.80 by redesignating paragraphs (a)(3) and (a)(4) 
as paragraphs (a)(4) and (a)(5), correcting ``secton'' to read 
``section'' in the first sentence of newly redesignated paragraph 
(a)(4), and adding new paragraph (a)(3) to read as follows:


Sec. 200.80  Commission records and information.

    (a)(1) * * *
    (3) Records created on or after November 1, 1996, which are 
required to be available for public inspection and copying under 
paragraph (a)(2) of this section, shall be made available on the 
Internet.
* * * * *
    4. Amend Sec. 200.80, paragraph (b)(4)(ii), by correcting 
``pursant'' to read ``pursuant''; by revising the phrase ``15c3-
1(c)(7)(G)'' to read ``15c3-1d(c)(6)(i)''; by revising the phrase ``17 
CFR 240.15c-1(c)(7)(vii)'' to read ``17 CFR 240.15c3-1d(c)(6)(i)''; by 
revising the phrase ``Rules 17a-9, 17a-10, 17a-12 and 17a-16'' to read 
``Rules 17a-10 and 17a-12''; and by revising the phrase ``17 CFR 
240.17a-9, 240.17a-10, 240.17a-12, and 240.17a-16'' to read ``17 CFR 
240.17a-10 and 240.17a-12''.
    5. Amend Sec. 200.80 by removing paragraph (b)(7)(ii); by 
redesignating the introductory text of paragraph (b)(7)(i) as paragraph 
(b)(7) and paragraphs (b)(7)(i)(A) through (F) as paragraphs (b)(7)(i) 
through (b)(7)(vi); by revising the word ``State'' to read ``state'' in 
newly redesignated paragraph (b)(7)(iv); and by adding a comma after 
the word ``examination'' in paragraph (b)(8).
    6. Amend Sec. 200.80(c)(1) as follows:
    a. In paragraph (c)(1) introductory text, first sentence, remove 
the numbers ``(202-272-3100)'' and revise the phrase ``New York and 
Chicago regional offices'' to read ``Northeast and Midwest Regional 
Offices''; and, in the second sentence, revise the phrase ``8\1/2\ x 
14'' to read ``8\1/2\ x 11'' and the phrase ``New York and Chicago 
offices'' to read ``Northeast and Midwest Regional Offices'';
    b. In paragraph (c)(1)(i), second sentence, revise the phrases 
``regional offices in New York or Chicago'' to read ``Northeast and 
Midwest Regional Offices'';
    c. In paragraph (c)(1)(iii), first sentence, revise the phrase 
``New York and Chicago regional offices'' to read ``Northeast and 
Midwest Regional Offices''; and, in the second sentence, revise the 
term ``suite'' to read ``Suite'' each time it appears in the list of 
Commission offices and, for the Southeast Regional Office, revise the 
phrase ``8:30 a.m. to 5 p.m.'' to read ``9:00 a.m. to 5:30 p.m.''.
    7. Amend Sec. 200.80(c)(2), first sentence, by revising the phrase 
``or by telephone'' to read ``or in writing''; in the second sentence, 
by removing the phrase ``and telephone numbers''; and, in the third 
sentence, by revising the phrase ``a particular regional office'' to 
read ``the Northeast or Midwest Regional Office''.
    8. Amend Sec. 200.80(d)(1), first sentence, by adding the word 
``the'' after the phrase ``by mail directed to''; in the second 
sentence, by adding the word ``the'' after the phrase ``not available 
in''; in the third sentence, by revising the phrase ``Securities and 
Exchange Commission, Washington, DC 20549'' to read ``SEC Operations 
Center, 6432 General Green Way, Alexandria, VA 22312-2413''; and by 
adding a sentence

[[Page 19736]]

at the end of paragraph (d)(1) to read as follows:


Sec. 200.80  Commission records and information.

* * * * *
    (d) * * *--(1) * * * The request may also be made by facsimile 
(703-914-1149) or by Internet (foia/[email protected]).
* * * * *
    9. Revise Sec. 200.80(d)(5) to read as follows:


Sec. 200.80  Commission records and information.

* * * * *
    (d) * * *
    (5) Initial determination; multi-track processing, and denials.--
(i) Time within which to respond. When a request complies with the 
procedures in this section for requesting records under the Freedom of 
Information Act, a response shall be sent within 20 business days from 
the date the Office of Freedom of Information and Privacy Act 
Operations receives the request, except as described in paragraphs 
(d)(5)(ii) and (d)(5)(iii) of this section. If that Office has 
identified the requested records, the response shall state that the 
records are being withheld, in whole or in part, under a specific 
exemption or are being released.
    (ii) Voluminous records. When the requested records are so 
voluminous that they cannot be reviewed within 20 business days, as 
prescribed in paragraph (d)(5)(i) of this section, the Office of 
Freedom of Information and Privacy Act Operations shall inform the 
requester of their approximate volume, give the requester the choice of 
having the records included in the Commission's first-in, first-out 
(FIFO) system for reviewing voluminous records, and state the 
approximate time when the review will start. A requester may modify or 
limit his or her request to qualify for review within 20 business days.
    (iii) Expedited processing. The Office of Freedom of Information 
and Privacy Act Operations 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 of actual or alleged Federal government 
activity. A compelling need shall be demonstrated by a statement, 
certified to be true and correct to the best of the requester's 
knowledge and belief. The Office of Freedom of Information and Privacy 
Act Operations shall notify the requester of the decision to grant or 
deny the request for expedited treatment within 10 days of the date of 
the request. A request for records that has been granted expedited 
processing shall be processed as soon as practicable.
    (iv) Notice of denial. Any notification of denial of any request 
for records shall state the name and title or position of the person 
responsible for the denial of the request, the reason for the decision, 
and the right of the requester to appeal to the General Counsel. The 
decision shall estimate the volume of records that are being withheld 
in their entirety, unless giving such an estimate would harm an 
interest protected by the applicable exemption. The amount of 
information redacted shall be indicated on the released portion of the 
record and, if technically feasible, at the place where the redaction 
is made.
    (v) Form of releasable records. Releasable records shall be made 
available in any form or format requested if they are readily 
reproducible in that form or format.
* * * * *
    10. Revise the introductory text of Sec. 200.80(d)(6) to read as 
follows:


Sec. 200.80  Commission records and information.

* * * * *
    (d) * * *
    (6) Administrative review. Any person who has received no response 
to a request within the period prescribed in paragraph (d)(5) of this 
section or within an extended period permitted under paragraph (d)(7) 
of this section, or whose request has been denied under paragraph 
(d)(5) of this section, may appeal the adverse decision or failure to 
respond to the General Counsel.
* * * * *
    11. Revise Sec. 200.80(d)(6)(ii) to read as follows:


Sec. 200.80  Commission records and information.

* * * * *
    (d) * * *
    (6) * * *
    (ii) The appeal must be mailed to the Office of Freedom of 
Information and Privacy Act Operations, SEC Operations Center, 6432 
General Green Way, Alexandria, VA 22312-2413 or delivered to Room 1418 
at that address, and a copy of it must be mailed to the General 
Counsel, Securities and Exchange Commission, 450 Fifth Street, NW, 
Washington, DC 20549 or delivered to Room 1012-B at that address.
    12. Amend Sec. 200.80, paragraph (d)(7), introductory text, first 
sentence, by revising the word ``reasons'' to read ``unusual 
circumstances''; second sentence, by revising the phrase ``working 
days'' to read ``business days, except as provided in paragraph (d)(8) 
of this section''.
    13. Revise Sec. 200.80(d)(8), introductory text, to read as 
follows:


Sec. 200.80  Commission records and information.

* * * * *
    (d) * * *
    (8) Inability to meet time limits. If a request for records cannot 
be processed within the time prescribed under paragraph (d)(7) of this 
section, the Commission shall so notify and give the requester an 
opportunity to modify the request so that it may be processed within 
that time or to arrange an alternative time for processing the request 
or a modified request. An unreasonable refusal to modify a request or 
arrange an alternative time for processing the request shall be a 
factor in determining whether unusual circumstances exist under 
paragraph (d)(7) of this section.
* * * * *
    14. Amend Sec. 200.80(d)(9) by removing the heading ``Oral 
requests; misdirected written requests''; removing paragraph (d)(9)(i); 
and redesignating paragraph (d)(9)(ii) as paragraph (d)(9).
    15. Amend Sec. 200.80(e), introductory text, first sentence, by 
adding after the word ``locating'' the word ``, reviewing,''.
    16. Amend Sec. 200.80(e)(1), first sentence, by adding the words 
``and reviewing'' immediately after the words ``searching for''.
    17. Amend Sec. 200.80(e)(3), first sentence, by adding the phrase 
``, reviewing'' immediately after the word ``locating''; and third 
sentence, by revising the figure ``$25'' to read ``$28'' and the word 
``advised'' to read ``informed''.
    18. Amend Sec. 200.80, by revising paragraph (e)(4) to read as 
follows:


Sec. 200.80  Commission records and information.

* * * * *
    (e) * * *
    (4) Waiver or reduction of fees. (i) The Office of Freedom of 
Information and Privacy Act Operations may waive or reduce search, 
review, and duplication fees if:
    (A) Disclosure of the requested records 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 is not primarily in the commercial interest of the 
requester.

[[Page 19737]]

    (ii) The Office of Freedom of Information and Privacy Act 
Operations will determine whether disclosure is likely to contribute 
significantly to public understanding of the operations or activities 
of the government based upon four factors:
    (A) Whether the subject of the requested records concerns the 
operations and activities of the Federal government;
    (B) Whether the requested records are meaningfully informative on 
those operations or activities so that their disclosure would likely 
contribute to increased public understanding of specific operations or 
activities of the government;
    (C) Whether disclosure will contribute to the understanding of the 
public at large, rather than the understanding of the requester or a 
narrow segment of interested persons; and
    (D) Whether disclosure would contribute significantly to public 
understanding of the governmental operations or activities.
    (iii) The Office of Freedom of Information and Privacy Act 
Operations will determine whether disclosure of the requested records 
is not primarily in the commercial interest of the requester based upon 
two factors:
    (A) Whether disclosure would further any commercial interests of 
the requester, and
    (B) Whether the public interest in disclosure is greater than the 
requester's commercial 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) A request for a waiver or reduction of fees may be a part of a 
request for records. Such requests should address all the factors 
identified in paragraphs (e)(4)(ii) and (e)(4)(iii) of this section.
    (vi) Denials of requests for a waiver or reduction of fees may be 
appealed to the General Counsel in accordance with the procedure set 
forth in paragraph (d)(6) of this section.
* * * * *
    19. Amend Sec. 200.80, paragraph (e)(7)(i), first sentence, by 
revising the phrase ``New York, or Chicago'' to read ``Northeast, or 
Midwest'' and by removing the word ``Branch''; and paragraph 
(e)(7)(ii), last sentence, by removing ``or calling this facility at 
202-272-3100''.
    20. Amend Sec. 200.80, paragraph (e)(8)(iii), second sentence, by 
adding ``U.S.'' before ``Government Printing Office''.
    21. Amend Sec. 200.83, by revising paragraphs (c)(2) through 
paragraphs (c)(6) and adding paragraphs (c)(7), (c)(8), and (c)(9) to 
read as follows:


Sec. 200.83  Confidential treatment procedures under the Freedom of 
Information Act.

* * * * *
    (c) Written request for confidential treatment to be submitted with 
information. (1) * * *
    (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. In his or her 
written confidential treatment request, the person must refer to the 
record by identifying number and code.
    (3) A person who submits a record to the Commission voluntarily and 
requests confidential treatment of it, must comply with paragraph 
(c)(2) of this section and mark each page clearly with the words 
``Voluntarily Submitted.'' In the written confidential treatment 
request, the person must explain the circumstances under which the 
record was voluntarily submitted to the Commission. The burden is on 
the person requesting confidential treatment to show that the record 
was submitted voluntarily.
    (4) 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 Act Operations, SEC Operations 
Center, 6432 General Green Way, Alexandria, VA 22312-2413. 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.
    (5) 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)(4) of this section.
    (6) 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.
    (7) 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.
    (8) A confidential treatment request will expire five 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 Operations Center, 6432 General Green Way, 
Alexandria, VA 22312-2413, and must clearly identify the record for 
which confidential treatment is sought. A renewal request will likewise 
expire five years from the date that Office receives it, unless that 
Office receives another timely renewal request which complies with the 
requirements of this paragraph.
    (9) A confidential treatment request shall be confidential. 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(d)(6)) or by the confidential treatment requester (under 
paragraph (e)(5) of this section), the confidential treatment request 
may become part of the court record.
* * * * *
    22. Amend Sec. 200.83, paragraph (d)(1), by revising the phrase 
``telegram or express'' to read ``facsimile or certified'' and by 
adding a sentence to read as follows:

[[Page 19738]]

Sec. 200.83  Confidential treatment procedures under the Freedom of 
Information Act.

* * * * *
    (d) Substantiation of request for confidential treatment. (1) * * * 
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 Commission's General Counsel as permitted 
by paragraph (e) of this section.
* * * * *
    23. Revise Sec. 200.83, paragraph (e)(1), to read as follows:


Sec. 200.83  Confidential treatment procedures under the Freedom of 
Information Act.

* * * * *
    (e) Appeal from initial determination that confidential treatment 
is not warranted. (1) The Office of Freedom of Information and Privacy 
Act Operations will issue a preliminary decision that will inform the 
confidential treatment requester whether that Office is of the view 
that confidential treatment is warranted with respect to all or part of 
the records in question. The preliminary decision may ask the 
confidential treatment requester to submit a supplemental 
substantiation within ten calendar days from the date of notice of the 
preliminary decision. The confidential treatment requester may respond 
to the preliminary decision within ten business days of receipt. The 
Office of Freedom of Information and Privacy Act Operations may issue a 
final decision no sooner than ten business days after giving notice of 
the preliminary decision. It shall inform, by mail or facsimile, the 
person seeking the record under the Freedom of Information Act and the 
person requesting confidential treatment of the final decision and of 
their right to appeal the decision to the Commission's General Counsel 
within ten calendar days from the date of the final decision. Records 
which the Office of Freedom of Information and Privacy Act Operations 
determines are not entitled to confidential treatment may be released 
under the Freedom of Information Act no sooner than ten calendar days 
after the date of the final decision unless, within those ten calendar 
days, it receives an appeal from the confidential treatment requester. 
In such a case, the person seeking the information under the Freedom of 
Information Act will be informed of the pending appeal and that no 
disclosure of the records will be made until the appeal is resolved.
* * * * *
    24. Amend Sec. 200.83, paragraph(e)(2), by revising the second 
sentence and adding a third sentence to read as follows:


Sec. 200.83  Confidential treatment procedures under the Freedom of 
Information Act.

* * * * *
    (e) Appeal from initial determination that confidential treatment 
is not warranted. (1) * * *
    (2) * * * The appeal must 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). A copy of the appeal must be mailed to the General Counsel, 
Securities and Exchange Commission, 450 Fifth Street, NW., Washington, 
DC 20549-0606. * * *
    25. Amend Sec. 200.83, paragraph(e)(4), first sentence, by revising 
the phrase ``telegram or express'' to read ``facsimile or certified''.
    26. Amend Sec. 200.83, paragraph (e)(5), last sentence, by revising 
the phrase ``telegram or express'' to read ``facsimile or certified''.
    27. Amend Sec. 200.83 by redesignating paragraphs (g), (h), and (i) 
as paragraphs (h), (i), and (j); by revising the phrase ``(c)(4)'' in 
newly redesignated paragraph (h)(1) to read ``(c)(5)''; by revising the 
phrase ``(g)(1)'' in the first sentence of newly redesignated paragraph 
(h)(2) to read ``(h)(1)''; by removing the commas after ``extended'' 
and ``Officer'' in newly redesignated paragraph (i), and adding new 
paragraphs (g) and (k) to read as follows:


Sec. 200.83  Confidential treatment procedures under the Freedom of 
Information Act.

* * * * *
    (g) Confidentiality of substantiations. Confidential treatment 
requests and substantiations of requests for confidential treatment 
shall be confidential. 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(d)(6)) or by the person requesting 
confidential treatment (under paragraph(e)(5) of this section), the 
substantiations may become part of the court record.
* * * * *
    (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.

Subpart H--Regulations Pertaining to the Privacy of Individuals and 
Systems of Records Maintained by the Commission

    28. The authority citation for Part 200, Subpart H continues to 
read in part as follows:

    Authority: 5 U.S.C. 552a(f), unless otherwise noted.
* * * * *


Sec. 200.303  Amended

    29. Amend Sec. 200.303, paragraph (a), introductory text, by 
revising the clause ``by the individual in person during normal 
business hours at the Commission's Public Reference Room which is 
located at 450 Fifth Street, NW., Room 1024, Washington, DC, or by mail 
addressed to the Privacy Act Officer, Securities and Exchange 
Commission, Washington, DC 20549'' to read ``by mail to the Privacy Act 
Officer, SEC Operations Center, 6432 General Green Way, Alexandria, VA 
22312-2413, or by facsimile (703-914-1149)''.
    30. Amend Sec. 200.303, paragraph(a)(2), second sentence, by 
revising the phrase ``Commission's Public Reference Room located at 450 
Fifth Street, NW., Room 1024, Washington, DC,'' to read ``Office of 
Freedom of Information and Privacy Act Operations, SEC Operations 
Center, 6432 General Green Way, Alexandria, VA 22312-2413,''; revising 
``suite'' to read ``Suite'' each time it appears in the list of 
Commission offices; for the Southeast Regional Office, revising the 
phrase ``8:30 a.m. to 5 p.m.'' to read ``9:00 a.m. to 5:30 p.m.''; for 
the Central Regional Office, revising the acronym ``C.S.T.'' to read 
``M.S.T.''; and, in the last sentence of the concluding paragraph, 
adding immediately after ``New Year's Day,'' the phrase ``Martin Luther 
King, Jr.'s Birthday,''.
    31. Amend Sec. 200.303(a)(3), first sentence, by revising the 
phrase ``For the purpose of verifying his identity, an'' to read 
``An''.
    32. Revise Sec. 200.303(a)(4) to read as follows:


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) * * *
    (4) Method for verifying identity by mail. Where an individual 
cannot appear at one of the Commission's Offices for the purpose of 
verifying his identity, he must submit along with the request for 
information or access, a statement attesting to his identity.

[[Page 19739]]

Where access is being sought, the statement shall include a 
representation that the records being sought 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 subscribed by him 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)

    33. Amend Sec. 200.303, paragraph (b)(2), first sentence, by 
revising the phrase ``Commission's Public Reference Room in Washington 
DC'' to read ``Office of Information and Privacy Act Operations, SEC 
Operations Center, 6432 General Green Way, Alexandria, VA 22312-2413''.
    34. Revise Sec. 200.306(a), introductory text, to read as follows:


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).
* * * * *
    35. Amend Sec. 200.308, paragraph (a), introductory text, by 
revising the phrase ``Commission's staff'' to read ``Office of 
Information and Privacy Act Operations'' and revising the phrase ``by 
applying for an order of the General Counsel determining and directing 
that access to the record be granted or that the record be amended or 
corrected in accordance with his request'' to read ``to the General 
Counsel''.
    36. Amend Sec. 200.308, paragraph (a)(1), by revising the word 
``application'' to read ``appeal''.
    37. Revise Sec. 200.308, paragraph (a)(2), to read as follows:


Sec. 200.308  Appeal of initial adverse agency determination as to 
access or as to amendment or correction.

    (a) * * *
    (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).
* * * * *
    38. Amend Sec. 200.308, paragraph (a)(9)(ii) by adding the phrase 
``or her'' immediately after the word ``His''.
    39. Amend Sec. 200.308, paragraph (b)(1), first sentence, by 
revising the phrase ``to the Securities and Exchange Commission, Public 
Reference Branch, 450 Fifth Street NW., Room 1024, Washington, DC 
20549, or mailed to the Privacy Act Officer, Securities and Exchange 
Commission, Washington, DC 20549,'' to read ``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),''.


Sec. 200.310  [Amended]

    40. Amend Sec. 200.310, paragraph(a), first sentence, by revising 
the phrase ``made in person during normal business hours at the Public 
Reference Room at 450 Fifth Street, NW., Room 1024, Washington, DC, or 
by mail addressed to the Privacy Act Officer, Securities and Exchange 
Commission, Washington, DC 20549'' to read ``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)''; and by removing the last sentence.
    41. Amend Sec. 200.310, paragraph (b), by revising the phrase ``the 
Director of the Office of Consumer Affairs and Information Services'' 
to read ``the Privacy Act Officer'' and adding the phrase ``or she'' 
immediately after the word ``he''.
    42. Amend Sec. 200.312 by revising paragraphs (a)(1) through (a)(8) 
to read as follows:


Sec. 200.312  Specific exemptions.

* * * * *
    (a) * * *
    (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; and
    (6) Agency Correspondence Tracking System.
* * * * *
    By the Commission.

    Dated: April 14, 1999.
Jonathan G. Katz,
Secretary.
[FR Doc. 99-9905 Filed 4-21-99; 8:45 am]
BILLING CODE 8010-01-P