[Federal Register Volume 65, Number 178 (Wednesday, September 13, 2000)]
[Rules and Regulations]
[Pages 55180-55186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23341]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 200

[Release Nos. 34-43239; FOIA-191; PA-30; File No. S7-14-99]
RIN 3235-AH71


Amendments to the Commission's Freedom of Information and Privacy 
Act Rules and Confidential Treatment Rule 83

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Commission is amending its procedures for requesting 
confidential treatment of records submitted to the Commission when no 
other procedures are applicable. It is also amending its procedures for 
requesting information under the Freedom of Information Act and for 
requesting, amending, or correcting records about individuals under the 
Privacy Act of 1974. These amendments, which conform the procedures to 
current statutory and case law and administrative practice and correct 
clerical errors, reflect staff and public comments on proposed 
amendments that were announced on April 14, 1999.

EFFECTIVE DATE: October 13, 2000.

FOR FURTHER INFORMATION CONTACT: Betty A. Lopez, Privacy Act Officer, 
(202) 942-4320, Office of Filings and Information Services, SEC, 
Operations Center, 6432 General Green Way, Alexandria, VA 22312-2413.

SUPPLEMENTARY INFORMATION: Today, the Commission is adopting amendments 
that update Rule 80 (17 CFR 200.80] under the Freedom of Information 
Act (5 U.S.C. 552) (FOIA), Rule 83 (17 CFR 200.83) under the FOIA, and 
Rules 303, 306, 308, 310, and 312 (17 CFR 200.303, 306, 308, 310, and 
312) under the Privacy Act of 1974 (5 U.S.C. 552a) (Privacy Act).

I. Background

    On April 14, 1999, the Commission proposed to amend Rule 83, which 
sets forth the procedures for requesting confidential treatment of 
records submitted to the Commission when no other procedures apply.\1\ 
It also proposed to amend Rule 80, which sets forth the procedures for 
requesting Commission records under the FOIA.\2\ Moreover, it proposed 
to amend some of its Privacy Act rules, which set forth the procedures 
for requesting, amending, or correcting Commission records about 
individuals.\3\ The 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.
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    \1\ Securities Exchange Act Release No. 41288 (April 14, 1999), 
64 FR 19732 (April 22, 1999).
    \2\ Id.
    \3\ Id.
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    The Commission received eight comment letters.\4\ Commenters 
generally supported the proposals, but opposed the five-year expiration 
period for confidential treatment requests as being unduly burdensome. 
Two suggested changing the period to 10 years.\5\ The Commission is 
adopting the proposed amendments with certain modifications of the 
proposed Rule 83 amendments that address some concerns of commenters.
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    \4\ See letters to Jonathan K. Katz from Lehman Brothers; 
Morgan, Lewis & Bockius LLP (``MLB''); Securities Industry 
Association (``SIA''); Merrill Lynch; A.G. Edwards & Sons, Inc. 
(``Edwards''); New York Stock Exchange (``NYSE''); and The Chicago 
Board Options Exchange (``CBOE''); and letter to the Office of the 
Secretary from Dan Jamieson.
    \5\ See Lehman Brothers and MLB letters.
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II. Discussion

A. Confidential Treatment Rule 83

1. Scope of the Rule
    The Commission has several rules laying down procedures for 
requesting confidential treatment of records submitted to it.\6\ The 
present amendments affect only Rule 83, which sets forth procedures for 
requesting confidential treatment of records submitted to the 
Commission where no other statute or Commission rule provides 
procedures for requesting confidential treatment for particular 
categories of information or where the Commission has not specified 
that an alternative procedure be used in connection with a particular 
study, report, investigation, or other matter.\7\ The scope of Rule 83 
is expressly stated in the current version of the rule \8\ and that 
scope remains unchanged.
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    \6\ See, for example, 17 CFR 230.406 for records submitted under 
the Securities Act of 1933 (``Securities Act''), 15 U.S.C. 77a et 
seq., and 17 CFR 240.24b-2 for records submitted under the 
Securities Exchange Act of 1934 (``Exchange Act''), 15 U.S.C. 78a et 
seq.
    \7\ See 17 CFR 200.83(b), which further states that it 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 under 5 U.S.C. 
552(b)(6).
    \8\ 17 CFR 200.83(b).
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2. Identifying Number and Code
    The current version of Rule 83 generally requires all records which

[[Page 55181]]

contain information for which a request for confidential treatment is 
made or the appropriate segregable portion thereof to be ``marked by 
the person submitting the records with a prominent stamp, typed legend, 
or other suitable form of notice on each page or segregable portion of 
each page, stating `Confidential Treatment Requested by (name)'.'' \9\ 
It further provides that, if such marking is impractical under the 
circumstances, a cover sheet prominently marked ``Confidential 
Treatment Requested by (name)'' should be securely attached to each 
group of records submitted for which confidential treatment is 
requested and that each of the records submitted in this manner should 
be individually marked with an identifying number and code so that they 
are separately identifiable.\10\ The revised rule, as proposed, 
requires a person who submits a record to the Commission for which he 
or she seeks confidential treatment to mark each page or segregable 
portion of each page with the words ``Confidential Treatment Requested 
by (name)'' and an identifying number and code, without regard to the 
manner in which the records were submitted. The adopted amendment would 
state, as an example, that a Bates-stamped identifying number or code 
may be used for this purpose.
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    \9\ 17 CFR 200.83(c)(2).
    \10\ Id.
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3. Voluntarily Submitted Records
    A proposed amendment of Rule 83 would have added that a person, who 
submits a record to the Commission voluntarily and requests its 
confidential treatment, must mark each page ``Voluntarily Submitted'' 
and explain the circumstances under which the record was voluntarily 
submitted. Several commenters objected to these additional requirements 
as being unduly burdensome.\11\ They said that voluntary submissions 
could include hundreds or thousands of pages and the Commission 
frequently asks for voluntary submission of records. They pointed out 
that only a small fraction of voluntarily submitted records are ever 
requested under the FOIA. Upon reconsideration, the Commission has 
decided not to require that the submitter both mark the record 
``Voluntarily Submitted'' and explain the circumstances under which the 
record was voluntarily submitted. Rather, although not specified by the 
rule, an explanation of the circumstances of voluntary submission 
should continue to be part of a substantiation that the confidential 
treatment requester furnishes after receiving notice of a FOIA request 
for the records.
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    \11\ See Lehman Brothers, MLB, SIA, Merrill Lynch, and Edwards 
letters.
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4. Five-year Expiration Date
    Currently, Rule 83 does not provide an expiration date for 
confidential treatment requests. A proposed amendment would have stated 
that a confidential treatment request would expire five years after its 
receipt by the Commission's FOIA Office unless the person requesting 
confidentiality renews the request before it expires. Several 
commenters \12\ noted the difficulty and expense of tracking the 
contents and expiration date of confidential treatment requests, in 
light of the frequency with which the Commission asks for voluntary 
submission of records. Two commenters \13\ suggested a 10-year 
expiration period as in a similar rule of the U.S. Department of 
Justice.\14\ The Commission accepts this suggestion. Accordingly, the 
adopted amendment sets 10 years as the expiration date of confidential 
treatment requests under Rule 83. The Commission does not plan to 
notify the confidential treatment requester when the 10 years is about 
to expire. Moreover, providing an expiration date for such requests 
does not affect the duration of a grant of confidentiality or the 
Commission's right to review a grant in light of subsequent events.
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    \12\ See Lehman Brothers, MLB, SIA, Merrill Lynch, Edwards, 
NYSE, and CBOE letters.
    \13\ See Lehman Brothers and MLB letters.
    \14\ In 28 CFR 16.8(c), the Department of Justice states:
    Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the 
submitter requests, and provides justification for, a longer 
designation period.
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5. Substantiation to Remain Nonpublic
    A proposed amendment would have stated that a confidential 
treatment request and a substantiation for it shall be confidential, 
but if an action is filed in a Federal court by the FOIA or 
confidential treatment requester, both may become part of the court 
record. After further consideration, the Commission has decided that 
both the confidential treatment request and substantiation shall be 
nonpublic but, if an action is filed in a Federal court under the FOIA, 
the confidential treatment request or substantiation, or both, may 
become part of the court record.

B. Rule 80 and Privacy Act Rules

    The Commission received no unfavorable comments on its proposed 
amendments to Rule 80 or the rules under the Privacy Act.

III. Effects On Competition

    Section 23(a)(2) of the Exchange Act \15\ requires the Commission, 
in adopting rules under the Exchange Act, to consider their 
anticompetitive effect, if any, and to balance any impact they may have 
against the regulatory benefits furthering the purposes of the Exchange 
Act. The Commission believes that the amendments will have a neutral 
effect on competition since they would merely conform the rules to 
current law, clarify procedures for submitting records, and assure 
voluntary submitters of confidential commercial or financial records 
that their records will be protected consistent with statutory and case 
law.
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    \15\ 15: 15 U.S.C. 78w(a)(2).
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IV. Statutory Basis Of Rule Amendments

    The Commission is adopting the amendments 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, 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.

V. Final Regulatory Flexibility Analysis

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

A. Reasons for Action

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

B. Objectives and Legal Basis

    These amendments will implement recent amendments to the FOIA, 
conform Commission rules to current case law and administrative 
practice, enhance public access to non-privileged, non-confidential 
Commission records, and protect personal privacy. The amendments are 
authorized by 5 U.S.C. 552, 5 U.S.C. 552a, and Executive Order 12,600.

[[Page 55182]]

C. Small Entities Affected

    The amendments will affect all small entities that request 
Commission records under the FOIA or confidential treatment for records 
they submit to the Commission under Rule 83. While it cannot reasonably 
estimate the number of small entities that could be affected, the 
Commission believes that any burden that the amendments might place on 
small entities will be negligible.

D. Compliance Requirements

    The amendments will not impose any 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 amendments that would 
accomplish the stated objectives of applicable statutes and executive 
order.

VI. Cost-Benefit Analysis

    The Commission is sensitive to the costs imposed by its rules and 
regulations, such as its rules under the Freedom of Information Act and 
the Privacy Act. Most of the rule amendments adopted today merely 
conform FOIA and Privacy Act regulations to current law and practice 
(for example, by specifying what types of information we will post on 
our web site under the Electronic Freedom of Information Act Amendments 
of 1996).
    A number of the rule amendments, however, will impose some costs on 
persons subject to them. One amendment requires persons seeking 
confidential treatment for records submitted to the Commission to mark 
each page with the phrase ``Confidential Treatment Requested by 
[name]'' and an identifying number or code. In general, however, the 
cost of marking each page should be small. Moreover, the cost will be 
justified by significant benefits from the resulting ease and accuracy 
of determining which records requested under the FOIA are subject to 
confidential treatment requests and by whom. Such positive 
identification will avoid potentially costly, inadvertent mistakes when 
the records are separated from the confidential treatment request 
covering them.
    Another amendment states that a confidential treatment request will 
expire 10 years from the date of its receipt by the FOIA Office, unless 
the request is renewed before its expiration date. In effect, this 
amendment requires a confidential treatment requester, who wants to 
renew the request, to ask for such renewal before the initial request 
expires. The need to protect most commercial or financial records 
submitted to the Commission generally diminishes over time. Therefore, 
the Commission anticipates that only a few confidential treatment 
requesters will renew their requests after 10 years. The Commission 
believes that the cost of renewing a request will be minimal and will 
be justified by the assurance that the requester will be notified and 
given an opportunity to substantiate the confidential treatment request 
before the records are released under the FOIA.
    Finally, an amendment expressly lists review fees among the FOIA 
fees. Although inadvertently omitted in the introductory text of 17 CFR 
200.80(e) and the first sentence of 17 CFR 200.80(e)(1) and (3), the 
Commission has authorized review fees since 1987. See 17 CFR 
200.80(e)(9)(ii), 17 CFR 200.80(e)(10)(ii), and 17 CFR 200.80f. 
Therefore, this amendment will not impose any additional cost.

List of Subjects in 17 CFR Part 200

    Administrative practice and procedures, Confidential business 
information, Freedom of information, and Privacy.

VII. Text of Amendments

    For the reasons set out in the preamble, Title 17, Chapter II, of 
the Code of Federal Regulations is 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)(3), 78w, 79t, 79v(a), 77sss, 80a-37, 80a-44(a), 
80a-44(b), 80b-10(a), 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.

    2. Amend Sec. 200.80 by:
    a. adding ``Northeast and Midwest'' before the phrase ``Regional 
Offices'' in the introductory text of paragraph (a)(2);
    b. removing the word ``and'' at the end of paragraph (a)(2)(iv);
    c. removing the period at the end of paragraph (a)(2)(v) and adding 
in its place ``; and''; and
    d. adding paragraph (a)(2)(vi) and republishing the paragraph 
heading for (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:
    a. Redesignating paragraphs (a)(3) and (a)(4) as paragraphs (a)(4) 
and (a)(5);
    b. Correcting ``secton'' to read ``section'' in the first sentence 
of newly redesignated paragraph (a)(4); and
    c. 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:
    a. Correcting ``pursant'' to read ``pursuant'';
    b. Revising the phrase ``15c3-1(c)(7)(G)'' to read ``15c3-
1d(c)(6)(i)'';
    c. Revising the phrase ``17 CFR 240.15c-1(c)(7)(vii)'' to read ``17 
CFR 240.15c3-1d(c)(6)(i)'';
    d. Revising the phrase ``Rules 17a-9, 17a-10, 17a-12 and 17a-16'' 
to read ``Rules 17a-10 and 17a-12''; and
    e. 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:
    a. Removing paragraph (b)(7)(ii);
    b. 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);
    c. Revising the word ``State'' to read ``state'' in newly 
redesignated paragraph (b)(7)(iv); and
    d. Adding a comma after the word ``examination'' in paragraph 
(b)(8).

[[Page 55183]]


    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 phrase 
``regional offices in New York or Chicago'' to read ``Northeast and 
Midwest Regional Offices''; and
    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 a.m. to 5:30 p.m.''

    7. Amend Sec. 200.80(c)(2) as follows:
    a. In the first sentence, by revising the phrase ``or by 
telephone'' to read ``or in writing'';
    b. In the second sentence, by removing the phrase ``and telephone 
numbers''; and
    c. In the third sentence, by removing the phrase ``, or to a 
particular regional office''.

    8. Amend Sec. 200.80(d)(1) as follows:
    a. In the first sentence, by adding the word ``the'' after the 
phrase ``by mail directed to'';
    b. In the second sentence, by adding the word ``the'' after the 
phrase ``not available in'';
    c. 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
    d. At the end of paragraph (d)(1), by adding a sentence 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. The amount of separate and distinct 
records which are demanded in a single request or the amount of time or 
work (or both) involved may be such that the review of the records 
cannot be completed within 20 business days, as prescribed in paragraph 
(d)(5)(i) of this section. In such a case, the Office of Freedom of 
Information and Privacy Act Operations shall inform the requester of 
the approximate volume of the records and give him or her the option of 
limiting the scope of the request to qualify for 20-day processing or 
placing the request in the Commission's first-in, first-out (FIFO) 
system for reviewing voluminous records. In the latter case, the Office 
will inform the requester of the approximate time when the review will 
start. The FIFO system allows the Commission to serve all those 
requesting voluminous records on a first-come, first-served basis, such 
that all releasable records sought will be released at one time, unless 
the requester specifically requests that releasable records be released 
piecemeal as they are processed.
    (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 ten business 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''; and second sentence, by revising the phrase ``working 
days'' to read ``business days,

[[Page 55184]]

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.
* * * * *

    14. Amend Sec. 200.80(d)(9) by:
    a. Removing the heading ``Oral requests; misdirected written 
requests'';
    b. Removing paragraph (d)(9)(i); and
    c. 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 word ``, 
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.
    (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) and (c)(8) 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, 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 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.
    (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

[[Page 55185]]

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, 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 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 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:


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(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) 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.
* * * * *

    24. Amend Sec. 200.83, paragraph(e)(2), by revising the second 
sentence and adding a sentence after the second 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. * * *
* * * * *

    25. Amend Sec. 200.83, paragraph(e)(3), third sentence by removing 
the clause ``in accordance with the provisions of Sec. 201.28 of this 
chapter''.

    26. Amend Sec. 200.83, paragraph(e)(4), first sentence, by revising 
the phrase ``telegram or express'' to read ``facsimile or certified''.

    27. Amend Sec. 200.83, paragraph (e)(5), last sentence, by revising 
the phrase ``telegram or express'' to read ``facsimile or certified''.

    28. Amend Sec. 200.83 by:
    a. Redesignating paragraphs (g), (h), and (i) as paragraphs (h), 
(i), and (j);
    b. Revising the phrase ``(c)(4)'' in newly redesignated paragraph 
(h)(1) to read ``(c)(5)'';
    c. Revising the phrase ``(g)(1)'' in the first sentence of newly 
redesignated paragraph (h)(2) to read ``(h)(1)'';
    d. Removing the commas after ``extended'' and ``Officer'' in newly 
redesignated paragraph (i); and
    e. Adding new paragraphs (g) and (k) to read as follows:


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

* * * * *
    (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 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), both request and substantiation may 
become part of the public 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

    29. 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.
* * * * *

    30. 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

[[Page 55186]]

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)''.

    31. Amend Sec. 200.303, paragraph(a)(2) as follows:
    a. In the 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,'';
    b. In the list of Commission offices, by revising ``suite'' to read 
``Suite'' each time it appears; 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.''; and for the Central Regional Office, revising the acronym 
``C.S.T.'' to read ``M.S.T.''; and
    c. In the last sentence of the concluding paragraph, adding 
immediately after ``New Year's Day,'' the phrase ``Martin Luther King, 
Jr.'s Birthday,''.

    32. Amend Sec. 200.303(a)(3), first sentence, by revising the 
phrase ``For the purpose of verifying his identity, an'' to read 
``An''.

    33. 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 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)

    34. 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''.

    35. 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).
* * * * *

    36. 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''.

    37. Amend Sec. 200.308, paragraph (a)(1), by revising the word 
``application'' to read ``appeal''.

    38. Revise Sec. 200.308(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).
* * * * *

    39. Amend Sec. 200.308, paragraph (a)(9)(ii) by adding the phrase 
``or her'' immediately after the word ``His''.

    40. 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, D.C. 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),''.

    41. 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.

    42. 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''.

    43. Amend Sec. 200.312 by removing paragraphs (a)(1) through (a)(8) 
and adding paragraphs (a)(1) through (a)(6) 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.

    September 1, 2000.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 00-23341 Filed 9-12-00; 8:45 am]
BILLING CODE 8010-01-P