[Federal Register Volume 85, Number 250 (Wednesday, December 30, 2020)]
[Rules and Regulations]
[Pages 86464-86481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25747]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 201

[Release No. 34-90442; File No. S7-18-15]
RIN 3235-AL87


Amendments to the Commission's Rules of Practice

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
adopting amendments to its Rules of Practice to require persons 
involved in Commission administrative proceedings to file and serve 
documents electronically.

[[Page 86465]]


DATES: Effective Date: The final rules are effective January 29, 2021, 
except for Instruction 8 which is effective July 12, 2021.
    Compliance Date: Compliance with the amended rules is required on 
April 12, 2021 (``Compliance Date''). The Compliance Date is discussed 
further at Section III below.

FOR FURTHER INFORMATION CONTACT: J. Matthew DeLesDernier, Office of the 
Secretary (202) 551-5400, and Benjamin Schiffrin, Office of the General 
Counsel, (202) 551-5150, Securities and Exchange Commission, 100 F 
Street NE, Washington, DC 20549.

SUPPLEMENTARY INFORMATION: The Commission is adopting amendments to 17 
CFR 201.102, 201.140, 201.141, 201.150, 201.151, 201.152, 201.193, 
201.322, 201.351, 201.420 and 201.440 (``Commission Rules of Practice 
102, 140, 141, 150, 151, 152, 193, 322, 351, 420 and 440'').

I. Introduction

    On September 24, 2015, the Commission proposed amendments to its 
Rules of Practice to automate and modernize aspects of the filing 
process in administrative proceedings through electronic filing and 
service in such proceedings.\1\ The proposed amendments sought to 
enhance the accessibility and transparency of administrative 
proceedings and to facilitate the prompt distribution of public 
information regarding these proceedings by enabling the Commission to 
more efficiently process filings and make them more readily available 
to the public. As discussed in the proposing release, the proposed 
amendments coincided with the Commission's development of an internet-
based electronic filing system for its administrative proceedings.
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    \1\ Amendments to the Commission's Rules of Practice, Exchange 
Act Release No. 75977 (Sept. 24, 2015), 80 FR 60082 (Oct. 5, 2015), 
available at http://www.govinfo.gov/content/pkg/FR-2015-10-05/pdf/2015-24705.pdf (last visited Nov. 17, 2020).
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    The Electronic Filings in Administrative Proceedings (``eFAP'') 
system will be accessible via the Commission's website beginning on the 
Compliance Date of these rules. A link on the website at www.sec.gov 
will route the user to login.gov (a General Services Administration 
service) for multifactor authentication; login.gov will then route the 
user back to the eFAP system. In addition, contemporaneously with the 
issuance of this release, the Commission's Office of the Secretary has 
posted on the Commission's website Instructions for Electronic Filing 
and Service of Documents in SEC Administrative Proceedings and 
Technical Specifications (``Instructions''),\2\ as well as an eFAP User 
Manual (``User Manual'') for participants using the eFAP system.\3\ The 
Instructions describe in ``question and answer'' format the technical 
requirements for electronic filing, including the mechanics of 
uploading documents, acceptable file formats, file size limitations, 
and naming conventions, among other things. They also address 
electronic service of documents by the Office of the Secretary of the 
Commission upon the parties to the proceeding, which will occur through 
the eFAP system, and electronic service by the parties upon other 
participants in the proceeding, which will be effectuated by email 
outside of the eFAP system. The User Manual addresses the technical 
requirements of registration and login and includes various screenshots 
that users will encounter in navigating the eFAP system.
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    \2\ See Instructions for Electronic Filing and Service of 
Documents in SEC Administrative Proceedings and Technical 
Specifications, available at https://www.sec.gov/efapdocs/instructions.pdf.
    \3\ See eFAP User Manual--Registered User and eFAP User Manual--
SEC Filer, available at https://www.sec.gov/efapdocs/registered-user-manual.pdf and https://www.sec.gov/efapdocs/sec-filer-manual.pdf.
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    The proposal involved three primary components. First, persons 
involved in administrative proceedings who currently are required to 
file documents under Rules 151 and 152 of the Commission's Rules of 
Practice would be required to file such documents electronically. 
Second, persons filing documents in the new eFAP system would be 
required to redact or omit sensitive personal information and could 
seek a protective order for any unredacted sensitive personal 
information that the person believes is necessary to the proceeding. As 
a corollary to these electronic filing requirements, the proposal also 
would require electronic filing and redaction of records under Rule 420 
and Rule 440 in administrative proceedings involving determinations by 
self-regulatory organizations (``SROs'') and the Public Company 
Accounting Oversight Board (``PCAOB''), respectively, and electronic 
submission and redaction of records under Rule 351 in proceedings 
before hearing officers. Third, parties would be required to serve each 
other electronically in the form and manner that is prescribed in the 
materials posted on the Commission's website.
    After carefully considering the comments we received on the 
proposal, we are adopting the proposal with certain modifications. 
Under the final rules, pleadings and pleading attachments filed with 
the Commission under Final Rules 151 and 152 must redact sensitive 
personal information, but, as discussed below, the redaction 
requirements are modified from the proposal to eliminate the redaction 
of records submitted after a hearing before a hearing officer under 
Final Rule 351(c), records certified and filed by an SRO under Final 
Rule 420(e), and records certified and filed by the PCAOB under Final 
Rule 440(d). We have decided to modify the redaction requirements for 
records submitted or filed under Rules 351, 420 and 440 because, as 
discussed below, the records received by the Commission under these 
rules are not posted to the Commission's website. Persons seeking 
access to such records in administrative proceedings may, consistent 
with current practice, submit a request to the Commission under the 
Freedom of Information Act (``FOIA'') or under any other applicable law 
and, if disclosure is required, then any documents would be redacted by 
Commission staff as appropriate.

II. Description of the Final Rules

A. Rule 151 (Procedure for Filing Papers With the Commission)

1. Proposed Rules
    Rule 151(a) currently sets forth the procedural requirements for 
filing papers with the Commission. The rule amendments, as proposed, 
would require all filings and documents that are attached to filings to 
be submitted electronically in accordance with the requirements of 
Proposed Rule 152(a). Documents or items not attached to filings, such 
as hearing exhibits, generally would be submitted in accordance with 
Proposed Rule 351.\4\
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    \4\ Rule 351 governs, among other things, the submission of 
exhibits to the Office of the Secretary.
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    Proposed Rule 151(d) would make amendments to the procedure for 
filing papers with the Commission that are consistent with the 
transition to electronic filing, and would require that parties include 
in the certificate of service the email address to which service was 
made, if personal service was not effectuated. The proposed rule also 
would eliminate the requirement in current Rule 151(d) to state in the 
certificate of service why a different method of service or filing was 
used, when applicable.
    Proposed Rule 151(e) would require persons to omit or redact 
sensitive personal information from filings. Sensitive personal 
information would include a Social Security number,

[[Page 86466]]

taxpayer identification number, financial account number, credit card 
or debit card number, passport number, driver's license number, state-
issued identification number, home address (other than city and state), 
telephone number, date of birth (other than year), names and initials 
of minor children, as well as any sensitive health information 
identifiable by individual, such as an individual's medical records. We 
proposed four exceptions to the redaction requirement. Under the 
proposal, persons would not be required to redact: (1) The last four 
digits of a taxpayer identification number, financial account number, 
credit card or debit card number, passport number, driver's license 
number, and state-issued identification number; (2) home addresses and 
telephone numbers of parties and persons filing documents with the 
Commission; (3) business telephone numbers; and (4) any information 
that is available on the Commission's public website from copies of 
filings by regulated entities or registrants. Under the proposal, if 
the person making a filing believes that sensitive personal information 
contained in the filing is necessary to the proceeding, the person 
would need to file a motion for a protective order in accordance with 
Rule 322 \5\ to limit disclosure of unredacted sensitive personal 
information.
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    \5\ 17 CFR 201.322. See infra at II.C. for a discussion of 
amendments to Rule 322.
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    Under Proposed Rule 151(e), all filings would need to include a 
certification that any sensitive personal information has been excluded 
or redacted from the filing or, if necessary to the filing, has been 
filed under seal pursuant to Rule 322.
2. Comments Received
    Two commenters asserted that in requiring parties to undertake the 
redaction of sensitive personal information, the Commission was 
``attempting to devolve its Privacy Act [of 1974] responsibilities on 
private parties'' and shift the costs of compliance to parties in 
administrative proceedings.\6\ These commenters also asserted that the 
Commission is barred by the Privacy Act from disclosing home addresses 
of parties to administrative proceedings.\7\ One of these commenters 
objected to the term ``sensitive health information'' to describe a 
category of information subject to the redaction requirement, arguing, 
among other things, that the proposal fails to define this term or 
provide standards for what would constitute ``sensitive'' health 
information. The commenter also asserted that the Privacy Act bars 
``disclosure of all medical information'' and that such information 
must not be disclosed by the Commission because ``disclosure of medical 
files (whether sensitive or not) would not advance FOIA's objective of 
permitting public scrutiny of agency action.'' \8\
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    \6\ See Keith Paul Bishop letter dated October 6, 2015 (``Bishop 
letter'') at 2-3; Anonymous letter dated October 18, 2015 
(``Anonymous letter'') at 2.
    \7\ Bishop letter at 2; Anonymous letter at 2.
    \8\ Bishop letter at 3.
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3. Final Rules
    We are adopting Rule 151(a) substantially as proposed, with one 
revision. As adopted, Final Rule 151(a) requires parties to proceedings 
to submit electronically all filings and documents that are attached to 
filings in accordance with the requirements of Rule 152(a). Final Rule 
151(a) does not include the last sentence of Proposed Rule 151(a), 
which provided that ``[d]ocuments or items that are not attached to 
filings . . . shall be submitted in accordance with Rule 351.'' We are 
deleting this sentence of the proposed language from the final rule to 
avoid suggesting that Rules 151 and 351 are the only rules governing 
the submission of documents to the Commission. For example, while Rule 
351 governs the filing of records from hearings, Rule 420(e) and Rule 
440(d), respectively, govern the submission of SRO and PCAOB records to 
the Commission.
    We did not receive any comments on the proposed amendments to Rule 
151(d) and are adopting these amendments as proposed. Final Rule 151(d) 
provides that papers filed with the Commission must include in the 
certificate of service the email address to which service was made, if 
not made in person.
    In light of the concerns raised by commenters, we are adopting Rule 
151(e) with a modification from the proposal to the definition of 
sensitive personal information. Specifically, we are modifying the 
proposed phrase ``sensitive health information'' to address the 
concerns raised by a commenter who argued that FOIA Exemption 6 \9\ 
protects health information that is not ``sensitive'' and that the 
Commission did not provide a basis for determining what information 
constitutes ``sensitive health information.'' \10\ Although this 
commenter suggested that any information that would be protected by 
FOIA Exemption 6 must be omitted or redacted in papers filed with the 
Commission to satisfy the Privacy Act,\11\ that is not the case. An 
agency may disclose information protected by the Privacy Act in 
connection with the agency's ``routine uses'' regardless of whether the 
information is exempt under FOIA.\12\ The Commission's System of 
Records Notice (``SORN'') for administrative proceeding files includes, 
as one of the routine uses, making records available to the public in 
matters involving administrative proceedings.\13\ Thus, as appropriate, 
the Commission can release information in administrative proceeding 
filings that could be protected by FOIA in other contexts without 
violating the Privacy Act.
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    \9\ 5 U.S.C. 552(b)(6) (protecting information about individuals 
when disclosure of the information ``would constitute a clearly 
unwarranted invasion of personal privacy''); see also 5 U.S.C. 
552(b)(7)(C) (protecting law enforcement information when its 
disclosure ``could reasonably be expected to constitute an 
unwarranted invasion of personal privacy'').
    \10\ Bishop letter at 3.
    \11\ Bishop letter at 2 (citing 5 U.S.C. 552a(b)(2) (allowing 
disclosure of information protected by the Privacy Act when the FOIA 
requires disclosure)).
    \12\ 5 U.S.C. 552a(b)(3), (e)(4)(D); see also, e.g., Dep't of 
the Air Force, Scott Air Force Base v. Fed. Labor Rels. Auth., 104 
F.3d 1396, 1401-02 (D.C. Cir. 1997) (discussing routine use 
exception).
    \13\ See System of Records Notice SEC-36 (Administrative 
Proceeding Files) available at https://www.sec.gov/about/privacy/sorn/secsorn36.pdf; see also Privacy Act of 1974: Systems of 
Records, Release No. PA-52, 79 FR 69894, 69896 (2014) (Routine Use 
No. 18 authorizing disclosure ``[t]o members of Congress, the press 
and the public in response to inquiries relating to particular 
Registrants and their activities, and other matters under the 
Commission's jurisdiction. In matters involving public proceedings, 
most of the records are available to the public.'').
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    Nonetheless, we take seriously the commenter's concerns regarding 
Exemption 6's protection of health information. Our staff will continue 
to review filings before posting them. And although the Commission is 
not required to protect all information that FOIA Exemption 6 protects 
when releasing filings in administrative proceedings, the policy behind 
FOIA Exemption 6 is relevant to a determination of what redactions are 
appropriate. To address these considerations, we are substituting the 
term ``unnecessary'' for the term ``sensitive,'' so that the standard 
for redaction or omission under the final rules is ``unnecessary'' 
health information. Under Final Rule 151(e), a party is required to 
redact or omit health information that is not necessary to the 
proceeding. We believe that parties to a proceeding will be in the best 
position to know what health information is necessary to a proceeding. 
We believe that health information that is discussed in a brief, 
motion, or other filing will

[[Page 86467]]

likely be necessary to an issue in the proceeding--for example, if a 
respondent's health condition served as a basis for a defense against 
liability in the proceeding, or if the health of counsel is proffered 
as a basis for an extension of a filing deadline--while health matters 
that may be referenced only in transcripts or other documents attached 
to filings generally are not likely to be necessary.
    We recognize that by requiring the omission or redaction only of 
unnecessary health information, we are allowing parties to file, 
without redaction, sensitive health information that is necessary to a 
proceeding. Such an approach is similar to the balancing that courts 
have applied in the FOIA context. Under FOIA, to determine whether an 
invasion of privacy is unwarranted, agencies balance privacy interests 
and the public interest in understanding the activities of the agency. 
Disclosure of information in which an individual has a privacy interest 
is warranted when that public interest outweighs any privacy 
interests.\14\ When health information is necessary to a proceeding, it 
may shed light on the basis for decisions in administrative 
proceedings, and provide valuable information to the public.
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    \14\ See Dep't of Justice v. Reporters Comm. for Freedom of the 
Press, 489 U.S. 749, 773-73 (1989).
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    However, we recognize that there may be situations in which a 
person has a privacy interest in necessary information that outweighs 
the value in providing that information to the public. We believe that 
those situations can be better handled through a motion for a 
protective order under Rule 322 to limit disclosure of the unredacted 
health information because it requires a facts and circumstances 
determination on a case-by-case basis.
    Under Final Rule 322(b), filing a motion for a protective order 
allows for a case-by-case determination as to whether ``the harm 
resulting from disclosure would outweigh the benefits of disclosure.'' 
Any party may file a motion for a protective order regarding health 
information either to protect information it anticipates including in 
filings or to protect information it anticipates another party may 
include in filings. We recognize that this approach may leave open the 
possibility that health information about a victim or other third party 
may not be protected from disclosure where such protection may be 
warranted, but we think the possibility of any clearly unwarranted 
disclosure is unlikely because filers have an obligation to redact 
unnecessary information, and health information in which victims or 
other similarly situated persons have a strong privacy interest is 
rarely necessary in administrative proceedings. In addition, where 
health information about victims is necessary, the Division of 
Enforcement will have an interest in protecting victims from 
unwarranted disclosures of sensitive health information both because it 
will be seeking to protect victims generally and because taking steps 
to protect and help victims would, in most instances, make the victims 
more likely to cooperate in an investigation. We encourage all parties 
to exercise caution when including health information in their filings. 
Of course, as noted above, our staff will also continue to review 
filings before posting them.\15\
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    \15\ See 5 U.S.C. 552a (setting forth what personal information 
the federal government collects and how it uses or discloses that 
information).
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    In addition to the comment on the disclosure of health information, 
two commenters argued that the Commission is barred by the Privacy Act 
from disclosing home addresses of parties and persons filing documents 
with the Commission and therefore the Commission should modify the rule 
to require redaction of this information. We are adopting Rule 151(e) 
as proposed to not require redaction of home addresses of parties to 
administrative proceedings and of persons filing documents with the 
Commission in administrative proceedings. As noted above, one of the 
Commission's routine uses for records in administrative proceedings is 
making them available to the public, so disclosure of home addresses 
does not violate the Privacy Act. We also believe that individuals 
often have only a minimal privacy interest in home addresses because 
home addresses are often readily available to the public. In contrast, 
requiring redaction of home addresses could place a burden on the 
Commission and on filers. Because certificates of service and filings 
in cases with pro se respondents regularly contain the respondents' 
home addresses, it would be necessary to redact the addresses and then 
file unredacted certificates of service under seal. We also note that 
redacting home addresses is not required in civil proceedings in 
federal court.\16\ Based on this, the Commission believes that keeping 
the exception as proposed is appropriate and consistent with the goal 
of promoting transparency. As discussed above, a motion for a 
protective order to limit the disclosure of the information may be 
filed under Rule 322.
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    \16\ See Fed. R. Civ. P. 5.2.
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    Although we are not requiring redaction of home addresses of 
parties to administrative proceedings and of persons filing documents 
in those proceedings, upon further consideration we are adopting Rule 
151(e) to require the full redaction of taxpayer identification 
numbers, including social security numbers, given the sensitive nature 
of that information. If a person making a filing believes that 
sensitive personal information is necessary to the proceeding, Rule 
151(e)(2) allows for the filing of an unredacted document along with a 
motion for a protective order to limit the disclosure of the 
information under Rule 322. We are adopting Rule 151(e)(2) 
substantially as proposed with a minor modification to make clear that 
a redacted version of the document should be filed along with the 
motion for a protective order under Rule 322.
    Final Rule 151(e)(3) requires that all filings include a 
certification that any sensitive personal information has been omitted 
or redacted from the filing or, if necessary to the filing, has been 
filed under seal pursuant to Rule 322. Final Rule 151(e)(3) modifies 
the language of the certification in the proposed rule to substitute 
the word ``omitted'' for the proposed word ``excluded.'' We are making 
this technical correction to conform the language of the certification 
to the prefatory language in paragraph (e), which requires that 
sensitive personal information be redacted or ``omitted'' from all 
filings. We are also modifying in the Final Rule the language of the 
certification from the language used in the proposed rule to replace 
``any sensitive personal information'' with ``any information described 
in paragraph (e) of this rule'' to clarify that the certification does 
not cover sensitive personal information that is exempted from the 
redaction requirement.
    We do not agree with the commenter who suggested the Commission was 
``attempting to devolve'' its Privacy Act responsibilities on private 
parties by requiring parties to undertake the redactions in 
administrative proceedings. Requiring private parties to redact certain 
information that is not necessary to a proceeding is consistent with 
the Privacy Act requirement that each agency ``maintain in its records 
only such information about an individual as is relevant and necessary 
to accomplish a purpose of the agency required to be accomplished by 
statute or by executive order of the

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President.'' \17\ And two commenters supported the idea that the 
parties filing documents are well positioned to undertake redaction and 
initially draft documents to avoid the use of sensitive personal 
information.\18\ One of these commenters explained that this was 
because they ``have the most knowledge, and control over the creation, 
of the documents.'' \19\ We therefore continue to believe that parties 
filing documents are well positioned to undertake the redaction 
requirement. In addition, the final rules do not obviate the 
Commission's obligations under the Privacy Act because, even if the 
parties redact information, the Commission maintains ultimate 
responsibility for complying with the Privacy Act. We note that other 
federal agencies also require parties making filings to redact or 
exclude certain sensitive personal information.\20\
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    \17\ 5 U.S.C. 552a(e)(1).
    \18\ See Financial Industry Regulatory Authority letter dated 
November 24, 2015 (``FINRA letter'') and Public Company Accounting 
Oversight Board letter dated December 3, 2015 (``PCAOB letter'').
    \19\ See PCAOB letter.
    \20\ See, e.g., National Labor Relations Board, E-Filing Terms 
and Conditions, available at http://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1673/electronic_filings.pdf (last 
visited Nov. 17, 2020) (directing filers to ``redact (remove) any 
non-essential personally identifiable information before uploading 
an E-filing''); Federal Maritime Commission, Rules of Practice and 
Procedure, 46 CFR 502.13(a) (requiring parties to exclude 
information such as social security numbers in electronic or paper 
filings); Department of Labor, Rules of Practice and Procedure for 
Administrative Hearings before the Office of Administrative Law 
Judges, 29 CFR 18.31(a) (same).
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B. Rule 152 (Filing of Papers: Form)

1. Proposed Rule
    Current Rule 152 specifies the requirements for filing papers in 
administrative proceedings. The proposed amendments to Rule 152(a) 
would direct persons to submit all filings electronically in the form 
and manner that is posted in the materials on the Commission's website. 
Under Proposed Rule 152(a), papers filed electronically would need to 
be received by the Commission by midnight Eastern Time, as opposed to 
5:30 p.m. Eastern Time, the current deadline for filing papers.
    Proposed Rule 152(a)(1) would provide further requirements if a 
person could not reasonably comply with the electronic filing 
requirements due to lack of access to electronic transmission devices 
(as a result, for example, of incarceration). The person would file a 
certification explaining why he or she reasonably cannot comply and 
indicating the expected duration of the person's reasonable inability 
to comply. The certification would be immediately effective and, upon 
filing such certification, the person could file paper documents by any 
other methods listed in the rule. Under Proposed Rule 152(a)(2), such 
non-electronic methods would include hand delivery though a commercial 
courier service or express delivery service, to be received by the 
Commission by 5:30 p.m. Eastern Time; mailing through the U.S. Postal 
Service, to be received by the Commission by 5:30 p.m. Eastern Time; or 
transmittal by facsimile, to be received by the Commission by midnight 
Eastern Time.
    Proposed Rule 152(b) would make amendments to the form of papers 
required to be filed with the Commission that would be consistent with 
the transition to electronic filing, such as the deletion of references 
to typewritten copies and the requirement to staple or otherwise fasten 
papers. Likewise, the proposal would eliminate the requirement in 
current Rule 152(d) to file an original and three copies of all papers 
filed with the Commission, and would delete the reference to 
microfilming in current Rule 152(c).
    Proposed Rule 152(c) would provide that electronic filings that 
require a signature pursuant to Rule 153 (Filing of Papers: Signature 
Requirement and Effect) \21\ may be signed with an ``/s/'' notation, 
which would be deemed the signature of the person making the filing for 
purposes of Rule 153.
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    \21\ 17 CFR 201.153.
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    The proposing release stated that, for the first 90 days after the 
proposed amendments become effective, the Commission would administer a 
phase-in period that would require all filings to be made both 
electronically and in paper format. Our preliminary view was that a 90-
day phase-in period would constitute a reasonable amount of time for 
persons to become proficient in the electronic filing procedures while 
ensuring that the Commission receives the filing should there be an 
electronic transmission failure. The proposal also suggested that a 
longer phase-in period might be appropriate in case of substantial 
difficulties with electronic filing.
2. Comments Received
    Commenters generally supported electronic filing,\22\ but one 
thought the Commission should further increase transparency in its 
administrative proceedings by adopting an electronic filing system akin 
to the PACER system in the federal courts, and make the docket and 
documents filed in administrative proceedings directly accessible to 
the public upon filing.\23\
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    \22\ Financial Services Roundtable letter dated December 4, 2015 
(``FSR letter'') at 3,10; New York Stock Exchange letter dated 
December 3, 2015 (``NYSE letter'') at 1; PCAOB letter at 1; FINRA 
letter at 1; Better Markets letter dated December 4, 2015 (``Better 
Markets letter'') at 1.
    \23\ Better Markets letter at 1, 2-3.
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    Another commenter asserted that the Commission should describe the 
form or manner of electronic filing that will be required, such as the 
acceptable electronic formats, file size requirements, naming 
conventions, and encryption requirements.\24\
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    \24\ See, e.g., FINRA letter n.3 & 15.
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3. Final Rule
    We are adopting the amendments to Rule 152 as proposed to require 
electronic filing in Commission administrative proceedings, with 
certain revisions as described below. Although the eFAP system will not 
allow for immediate and direct public access to the docket and filings 
in administrative proceedings as one commenter urged, it will 
facilitate the public's access to filings in the Commission's 
administrative proceedings and provide the parties and the Commission 
with access to the filings more quickly. Electronic filing under the 
amended rules will enable the Commission to more efficiently process 
and post filings. Electronic filing will make administrative 
proceedings more efficient, as it will eliminate delays that result 
from filing paper documents through the mail and routing paper filings 
internally throughout the Commission. At this point in time, the eFAP 
system will not generate an automatic public docket, but we anticipate 
that electronic filing could facilitate the development of such a 
public docket in the future and that Commission staff will work toward 
that objective. While we are allowing, as proposed, an ``/s/'' 
signature for electronic filings, upon further consideration we are 
clarifying that, in those situations, the filer's login and password 
into the eFAP system will be deemed the signature for each filing.
    As noted above, one commenter stated that the proposal did not 
specify the technical requirements for electronic filing; the Office of 
the Secretary is posting on the Commission's website contemporaneously 
with the issuance of this release instructions for electronic filing 
and service. As set forth in the Instructions, parties are advised that 
documents filed electronically should, where possible, be filed in 
native portable document format (pdf). The Instructions include 
additional details, including the mechanics of uploading documents, 
acceptable file formats, file

[[Page 86469]]

size limitations, and naming conventions, among other things. The User 
Manual includes various screenshots from the registration and filing 
process and provides detailed instructions for navigating the system. 
The Commission believes that providing filers with this information 
now, coupled with a longer compliance period than was proposed 
(discussed infra),\25\ will provide filers with the necessary 
information and time to prepare for electronic filing under the Final 
Rules. The Instructions are intended to assist filers in complying with 
the Final Rules. We expect that the Instructions and User Manual will 
be updated periodically to reflect changes in technology and the 
Commission's experience with the new electronic filing system, and we 
have accordingly revised Rules 152(a) and 152(d) to make clear that 
proper use of the electronic filings system will be as specified by the 
Office of the Secretary in materials posted on the Commission's 
website.
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    \25\ See infra discussion at Section III (Compliance Date and 
Phase-In Period for the Final Rules).
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    We did not receive comments addressing the requirement for both 
electronic and paper copies during the proposed 90-day phase-in period. 
To help facilitate compliance with this provision, we are amending Rule 
152 to add a new paragraph (g) entitled ``Interim Procedures for Filing 
Papers with the Commission in Both Electronic and Paper Format.'' Final 
Rule 152(g) requires that, for the initial 90-day period beginning on 
April 12, 2021, papers filed in connection with any proceeding as 
defined in Rule 101(a) shall be filed both electronically in accordance 
with section (a) and, in addition, in either paper format or by 
email.\26\ If filed in paper format, an original and three copies of 
all paper filings must be submitted to the Office of the Secretary in 
accordance with any of the delivery methods set forth in section 
(a)(2). Final Rule 152(g) will be removed from the Final Rules on July 
12, 2021, when the rule is no longer relevant.
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    \26\ See Pending Administrative Proceedings, Exchange Act 
Release No. 88415, https://www.sec.gov/litigation/opinions/2020/33-10767.pdf (providing that pending further order of the Commission 
parties to the extent possible shall submit all filings 
electronically at [email protected]).
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C. Rule 322 (Protective Orders)

1. Proposed Rule
    Rule 322 currently provides a process for seeking a protective 
order to limit from disclosure to other parties or to the public 
documents or testimony that contain confidential information. We 
proposed to amend the rule to articulate requirements for requesting a 
protective order when review of the documents that are the subject of 
the request is necessary to a ruling on the motion. In such instances, 
proposed Rule 322(b) would require the movant to file an unredacted 
version of the submission to be used by the hearing officer and the 
Commission for purposes of the proceeding and a redacted version to be 
used for distribution to the public. All confidential information in 
the unredacted version would need to be marked as such and the first 
page of the document would need to be labeled ``Under Seal.'' The 
redacted version would be required to be identical in all other 
respects to the unredacted version. A person would not be required to 
file a redacted version if the submission would be redacted in its 
entirety.
2. Comments Received
    We received one comment requesting a streamlined protective order 
process under Rule 322 for records from SRO proceedings.\27\ The 
commenter urged that, in the event that the Commission required SROs to 
redact exhibits and transcripts from SRO proceedings upon filing with 
the Commission under proposed Rule 420, the Commission should 
streamline the protective order process for those exhibits and 
transcripts. Because, as discussed below, the final rules do not 
require SROs to redact exhibits and transcripts submitted under Rule 
420, the comment is moot.\28\
---------------------------------------------------------------------------

    \27\ See FINRA letter at 6.
    \28\ See discussion of amendments to Rule 420, infra at Section 
D.
---------------------------------------------------------------------------

3. Final Rule
    We are adopting Rule 322(b) as proposed. Final Rule 322(b) applies 
to all motions for protective orders under Rule 322, i.e., not just 
motions regarding sensitive personal information.

D. Rule 420 (Appeal of Determinations by Self-Regulatory Organizations)

1. Proposed Rule
    Current Rule 420 sets forth the requirements regarding appeals of 
determinations by self-regulatory organizations.\29\ Currently, Rule 
420(e) requires a self-regulatory organization to certify and file with 
the Commission one copy of the record upon which the action complained 
of was taken, to file with the Commission three copies of an index to 
such record, and to serve upon each party one copy of the index within 
fourteen days after receiving an application for review or a Commission 
order for review. The proposed amendments to Rule 420(e) would require 
an SRO to certify and electronically file with the Commission, in the 
form and manner that is prescribed in the materials on the Commission's 
website, one unredacted copy of the record upon which the action 
complained of was taken. If such record contains any sensitive personal 
information, the SRO would also need to file electronically with the 
Commission one redacted copy of such record. The definition of 
sensitive personal information in proposed amendments to Rule 420(e) 
would mirror the definition in Proposed Rule 151. The proposed 
amendments to Rule 420(e)(2) also would require an SRO to file 
electronically with the Commission one copy of a record index and to 
serve the index upon each party. The proposed amendments would provide 
that, if such record index contains any sensitive personal information, 
the SRO would be required to file electronically a copy of the record 
and index that omits or redacts the sensitive personal information. The 
proposed amendments would also require persons making a filing pursuant 
to Rule 420 to certify that any sensitive personal information has been 
excluded or redacted from the filing under Proposed Rule 420(e)(3).
---------------------------------------------------------------------------

    \29\ 17 CFR 201.420.
---------------------------------------------------------------------------

2. Comments Received
    The two comments we received on this aspect of the proposal 
generally supported the Commission's efforts to create an electronic 
filing system and modernize aspects of the filing process in appeals 
from SRO proceedings.\30\ But the commenters expressed concern that the 
redaction requirement as proposed would impose a ``substantial 
burden.'' \31\ One SRO noted that because it does not currently have 
rules that mandate exclusion or redaction of sensitive information for 
parties filing documents in its disciplinary and appealable 
proceedings, it would potentially be required to spend hundreds of 
hours a year redacting exhibits and other filings that contain 
sensitive personal information.\32\ This commenter urged

[[Page 86470]]

the Commission to exempt from the redaction requirement exhibits and 
transcripts contained in the record of the SRO.\33\ As an alternative, 
the commenter suggested a streamlined process for an SRO to obtain a 
protective order for exhibits in the record.\34\ Another commenter 
requested that the Commission clarify the types of documents that it 
intends to post on its website in connection with appeals of SRO 
disciplinary proceedings.\35\
---------------------------------------------------------------------------

    \30\ See FINRA letter at 9; NYSE letter at 1.
    \31\ FINRA letter at 9; see also NYSE letter at 1 (describing 
proposed redaction requirement as ``unduly burdensome'').
    \32\ FINRA letter at 2; see also id. at 4 (``FINRA's experience 
shows that redaction will be a highly costly endeavor that 
intensively consumes time and labor. During the first nine months of 
2015, FINRA filed approximately 85,622 record pages in 11 appeals to 
the Commission. The costs involved in redacting a large record are 
dramatic. When recently redacting a record with 39,266 pages, FINRA 
expended 201.5 man hours. Based on the first nine months of 2015, 
FINRA projects that it will file 114,160 pages of certified records 
this year.'').
    \33\ Id. at 3 (``FINRA urges the Commission to exclude SROs from 
the requirements to redact and certify that the exhibits and Trial-
Level Transcripts contained in records submitted pursuant to SEC 
Rule of Practice 420(e) do not contain sensitive personal 
information.'').
    \34\ Id. at 6-7.
    \35\ NYSE letter at 2.
---------------------------------------------------------------------------

    Another SRO requested additional time to file the redacted 
certified record.\36\ With respect to the certification requirement in 
Proposed Rule 420(e), the SRO asserted that such a requirement would be 
onerous because of the large number of pages contained in the records 
of its proceedings and the potential for human error in the redaction 
process. The commenter suggested that an SRO be allowed to certify 
instead that it has undertaken ``reasonable efforts'' to exclude or 
redact any sensitive personal information.\37\
---------------------------------------------------------------------------

    \36\ FINRA letter at 7.
    \37\ Id. at 9.
---------------------------------------------------------------------------

3. Final Rule
    We are adopting the proposed amendments to Rule 420 with certain 
modifications in response to the comments. Final Rule 420(e) adopts the 
proposed requirement for SRO certification and electronic filing of the 
record fourteen days after receipt of an application for review or a 
Commission order for review, but the Final Rule limits the proposed 
redaction requirements to the record index required to be filed 
pursuant to Rule 420(e). As a result, SROs need not redact the 
certified record filed pursuant to the Rule. We are adopting this 
approach because we are persuaded by the commenters who emphasized that 
such a requirement would be burdensome because of ``the large number of 
pages contained in the records of its proceedings and the potential for 
human error in the redaction process.'' \38\ We believe that any 
potential transparency benefits from requiring redaction of such 
records under this rule do not justify the costs and burdens associated 
with requiring the redaction of these often-voluminous records, many of 
which may contain large amounts of sensitive personal information. 
While we recognize the benefits of transparency in our proceedings and 
intend to continue to post significant pleadings such as substantive 
motions and merits briefs on the Commission's website--which will be 
facilitated by the electronic submission of those documents--the 
Commission does not post on its website the record underlying an SRO 
appeal. We thus have decided to modify from the proposal the redaction 
requirements for those records under Final Rule 420.
---------------------------------------------------------------------------

    \38\ FINRA letter at 9.
---------------------------------------------------------------------------

    By contrast, under the final rule, if any such SRO records 
(including exhibits or transcripts) are attached to a filing pursuant 
to Final Rule 151 (Filing of Papers with the Commission; Procedure), 
the attachment must comply with the Final Rule 151 redaction 
requirements.\39\ This distinction recognizes the difference between 
the often voluminous records underlying an SRO appeal, which the 
Commission currently does not--and under the final rule will not--post 
to its website, and exhibits filed as attachments to significant 
filings, which typically are less voluminous and which are posted--and 
will continue to be posted--together with the filing.
---------------------------------------------------------------------------

    \39\ See 17 CFR 201.322(c) (``Documents and testimony introduced 
in a public hearing are presumed to be public'').
---------------------------------------------------------------------------

    Persons who wish to obtain records certified and filed by an SRO 
pursuant to Rule 420(e) may, consistent with current practice, submit a 
request to the Commission under FOIA and, if disclosure is required 
under FOIA, then any documents produced would be redacted by Commission 
staff as appropriate under FOIA.
    Final Rule 420(e) retains the requirement from the proposal that 
the SRO electronically file an index to the record, and retains, from 
the proposal, the redaction requirement for the record index. The Final 
Rule requires redaction of sensitive personal information from the 
record index because the record index will be made available on the 
Commission's website, and we expect the burden to SROs of redacting the 
record index will be minimal. Accordingly, as was proposed, Final Rule 
420(e) provides that if the index contains any sensitive personal 
information, the SRO must file electronically an unredacted copy of the 
record index and a redacted copy of the index. The record index should 
assist the public in identifying what documents are not publicly 
available and thereby inform any requests that the public may wish to 
make pursuant to FOIA, because it will list each of the documents filed 
in the underlying SRO proceeding.\40\
---------------------------------------------------------------------------

    \40\ Since Final Rule 420 will not require redaction of exhibits 
and transcripts, the comment seeking a streamlined process for an 
SRO to obtain a protective order for such portions of the record on 
appeal is moot. For the same reasons, the final amendments obviate 
the need for additional time to file redacted copies of the 
certified record.
---------------------------------------------------------------------------

    The final rule renumbers proposed paragraph (e)(2) as paragraph 
(e)(1), and proposed paragraph (e)(1) as paragraph (e)(2). This 
conforming change aligns with the final amendments to this rule because 
it first sets forth the document that must be redacted in paragraph 
(e)(1) (i.e., the record index) and then follows with the specific 
redaction requirements in paragraph (e)(2).
    Final Rule 420(e)(2) articulates the definition of sensitive 
personal information that must be redacted from the record index. As 
with the amendments to Rule 151(e), Final Rule 420(e)(2) modifies the 
proposed definition of ``sensitive health information'' to substitute 
the term ``unnecessary'' for the term ``sensitive,'' so that the 
standard for health information required to be redacted or omitted is 
``unnecessary'' health information.\41\ Also like Rule 151(e), Final 
Rule 420(e)(2) requires the full redaction of taxpayer identification 
numbers.
---------------------------------------------------------------------------

    \41\ See discussion supra at Section II.A.3.
---------------------------------------------------------------------------

    We are adopting the certification requirement substantially as 
proposed, but in response to a comment we are revising the language to 
clarify that the certification requirement does not apply to the 
record.\42\ The final rule also renumbers the certification in proposed 
paragraph (e)(3) as paragraph (f) in Final Rule 420 to clarify that the 
certification requirement applies to an application for review filed 
under Rule 420(a). As we did in Final Rule 151, we are modifying the 
certification in the proposed rule to substitute the word ``omitted'' 
for the proposed word ``excluded'' to conform the language of the 
certification to the prefatory language in paragraph (c). We are also 
modifying the language of the certification in the proposed rule to 
replace ``any sensitive personal information'' with ``any information 
described in paragraph (e)(2) of this rule'' to clarify that the 
certification does not cover sensitive personal information that is 
exempted from the redaction requirement. As adopted, Final Rule 420(f) 
states that ``[a]ny filing made pursuant to this rule, other than the 
record upon which the action

[[Page 86471]]

complained of was taken, must include a certification that any 
information described in paragraph (e)(2) of this rule has been omitted 
or redacted from the filing.'' This certification mirrors the filer's 
obligation to either not include sensitive personal information in 
filings or redact any sensitive personal information included in the 
filings.
---------------------------------------------------------------------------

    \42\ See PCAOB Letter at 3 n.3.
---------------------------------------------------------------------------

    In response to the comment urging the Commission to revise the 
certification requirement to substitute a ``reasonable efforts'' 
standard, we believe that the language of the certification in the 
final rule is appropriate because it creates a clear standard that is 
easily applied. We also note that the ``reasonable efforts'' standard 
was suggested by the commenter in response to the proposed rule that 
would have required the entire SRO record to be redacted, rather than 
only the record index. Because the final rule limits the redaction 
requirement to the record index, the potential for human error in the 
redaction process should be significantly reduced. Finally, the 
language of the certification in the Final Rule is generally consistent 
with the certification requirements of many federal courts.\43\ As with 
Rule 152(a), we have also modified Rule 420(e) to clarify that 
electronic filing of the record will be done in the form and manner as 
specified by the Office of the Secretary in materials posted on the 
Commission's website.
---------------------------------------------------------------------------

    \43\ See, e.g., U.S. Court of Appeals for the Third Circuit, CM/
ECF Public User Manual 8 (Jan. 2017); U.S. Court of Appeals for the 
Ninth Circuit, CM/ECF User Manual 11 (Nov. 2016); U.S. Court of 
Appeals for the Tenth Circuit, CM/ECF User's Manual 11 (7th ed. May 
2017); U.S. Court of Appeals for the Federal Circuit, CM/ECF User 
Manual 21 (Aug. 2015).
---------------------------------------------------------------------------

E. Rule 440 (Appeal of Determinations by the Public Company Accounting 
Oversight Board)

1. Proposed Rule
    Current Rule 440 \44\ largely tracks Current Rule 420 and sets 
forth similar requirements regarding appeals of determinations by the 
PCAOB. Like Proposed Rule 420, the proposed amendments to Rule 440(d) 
would require the PCAOB to electronically file with the Commission in 
the form and manner that is prescribed in the materials on the 
Commission's website one unredacted copy of the record upon which the 
action complained of was taken. If such record contains any sensitive 
personal information, the PCAOB would also need to file electronically 
with the Commission one redacted copy of such record. The definition of 
sensitive personal information under the proposed amendments also would 
mirror the definition in Proposed Rules 151 and 420. Proposed Rule 
440(d)(2) would require the PCAOB to file electronically with the 
Commission one copy of a record index and to serve the index upon each 
party. The proposed amendments would also provide that, if such index 
contains sensitive personal information, the PCAOB would be required to 
file electronically a copy of the record and index that omits or 
redacts the sensitive personal information and to certify that any 
sensitive personal information has been excluded or redacted from the 
filing.
---------------------------------------------------------------------------

    \44\ 17 CFR 201.440.
---------------------------------------------------------------------------

2. Comments Received
    We received one comment on the proposed amendments to Rule 440.\45\ 
The commenter noted that PCAOB disciplinary proceedings can generate 
voluminous records, and asserted that it could better achieve the 
objectives sought in the proposed rules by implementing processes 
designed to prevent the parties' introduction of sensitive personal 
information from the initiation of the disciplinary proceeding and to 
require the parties to redact sensitive personal information as 
necessary, and by certifying that the PCAOB has processes in place that 
are ``reasonably designed to ensure compliance with requirements for 
protecting sensitive personal information.'' \46\
---------------------------------------------------------------------------

    \45\ PCAOB letter at 2-2.
    \46\ Id.
---------------------------------------------------------------------------

3. Final Rule
    We are adopting amendments to Rule 440 that are consistent with the 
modifications to Final Rule 420. Like Final Rule 420, Final Rule 440(d) 
adopts the proposed requirement for PCAOB certification and electronic 
filing of the record fourteen days after receipt of an application for 
review or a Commission order for review, but clarifies that such filing 
will be done in form and manner as specified by the Office of the 
Secretary in materials posted on the Commission's website. The 
redaction requirements in Final Rule 440(d), consistent with Final Rule 
420, do not include the underlying records. The Commission recognizes 
that, like SRO proceedings, PCAOB disciplinary proceedings can generate 
voluminous records, many of which may contain sensitive personal 
information. In response to the comment received on this aspect of the 
proposal, and for the reasons discussed above with respect to Rule 420, 
we believe that any potential benefits from requiring redaction of 
PCAOB disciplinary proceeding records under Rule 440 do not justify the 
potential costs and burdens associated with such redaction 
requirements.\47\ However, for the same reasons discussed above with 
respect to Rule 420, any filing and any record attached to a filing 
pursuant to Final Rule 151 must comply with the redaction requirements 
of that rule. This distinction recognizes the difference between the 
often voluminous records underlying a PCAOB appeal, which the 
Commission does not--and under the final rule will not--post to its 
website, and exhibits filed as attachments to filings, which typically 
are less voluminous and will continue to be posted with the filing.
---------------------------------------------------------------------------

    \47\ As with SRO records filed under Rule 420, persons who wish 
to obtain PCAOB records that are filed pursuant to Rule 440 could, 
consistent with current practice, submit a request to the Commission 
under FOIA and if disclosure is required, any documents produced 
would be redacted by Commission staff as appropriate under FOIA.
---------------------------------------------------------------------------

    Final Rule 440(d) retains the requirement that the PCAOB 
electronically file an index to the record, and retains, from the 
proposal, the redaction requirement for the record index. If such index 
contains any sensitive personal information, the PCAOB shall, in 
addition to filing electronically an unredacted copy of the record 
index, also electronically file one redacted copy of the index. As with 
Rule 420(e), the record index filed pursuant to Rule 440(d) will be 
made available on the Commission's website, and we expect the burden on 
the PCAOB of redacting the record index will be minimal. Moreover, we 
believe the record index will assist the public in identifying what 
documents are not publicly available and thereby inform any requests 
that the public may wish to make pursuant to FOIA, because it will list 
each of the documents filed in the underlying PCAOB proceeding.
    The final rule renumbers proposed paragraph (d)(2) as paragraph 
(d)(1), and proposed paragraph (d)(1) as paragraph (d)(2). This non-
substantive change mirrors the amendments we are making to Final Rule 
420(e) by first identifying the documents that must be redacted (i.e., 
the record index) and then describing the specific redaction 
requirements.
    Final Rule 440(d)(2) articulates the definition of sensitive 
personal information that must be redacted from the record index. 
Consistent with the definition of sensitive personal information we are 
adopting in Final Rules 151(e) and 420(e), Final Rule 440(d)(2) 
modifies from the proposal the definition of sensitive health

[[Page 86472]]

information to substitute the term ``unnecessary'' for the term 
``sensitive,'' so that the standard for health information required to 
be redacted or omitted is ``unnecessary'' health information.\48\ As 
with Rules 151(e) and 420(e), Final Rule 440(d)(2) also now requires 
the full redaction of taxpayer identification numbers.
---------------------------------------------------------------------------

    \48\ See discussion supra at Sections II.A.3 and II.D.3.
---------------------------------------------------------------------------

    As we did in Final Rules 151 and 420, we are modifying the 
certification in the proposed rule to substitute the word ``omitted'' 
for the proposed word ``excluded'' to conform the language of the 
certification to the prefatory language in paragraph (d). As in Final 
Rule 420, Final Rule 440 also renumbers the certification in proposed 
paragraph (d)(3) as paragraph (e) to clarify that the certification 
requirement applies to an application for review filed under Rule 
440(a). Likewise, we are modifying Final Rule 440(e) to state that 
``any filing made pursuant to this rule, other than the record upon 
which the action complained of was taken, must include a certification 
that any information described in paragraph (d)(2) of this rule has 
been omitted or redacted from the filing,'' to clarify that the 
certification requirement does not apply to the underlying record and 
that the certification does not cover sensitive personal information 
that is exempted from the redaction requirement As discussed above, we 
believe that the language of the certification is appropriate because 
it creates a clear standard that is easily applied. It is also 
generally consistent with the certification requirements of many 
federal courts.\49\ We note that the alternative certification standard 
suggested by the commenter was in response to the proposed rule that 
would have required the entire record on appeal from a PCAOB proceeding 
to be redacted. Accordingly, the commenter's concerns should be 
mitigated by the Final Rule, which limits the redaction requirements to 
the record index.
---------------------------------------------------------------------------

    \49\ See supra n.43.
---------------------------------------------------------------------------

F. Rule 351 (Transmittal of Documents to Secretary; Record Index; 
Electronic Copy of Exhibits; Certification)

1. Proposed Rule
    Current Rule 351 \50\ governs the requirements regarding the 
transmittal of documents by a hearing officer to the Secretary of the 
Commission, as well as the preparation, issuance, and certification of 
a record index in such administrative proceedings. We proposed to amend 
Rule 351(b) to reduce from fifteen days to three days the length of 
time a party may file proposed corrections to the record index. We also 
proposed to amend the rule to provide persons who oppose the proposed 
corrections three days to file an opposition.
---------------------------------------------------------------------------

    \50\ 17 CFR 201.351.
---------------------------------------------------------------------------

    Proposed new Rule 351(c) would require the parties to submit 
electronically copies of all exhibits admitted during the hearing, 
exhibits offered but not admitted during the hearing, and post-hearing 
exhibits.\51\ Such evidence would be submitted in the form and manner 
prescribed in the materials posted on the Commission's website.
---------------------------------------------------------------------------

    \51\ As discussed infra in Section II.F.3, there was a 
discrepancy in the proposing release regarding the deadline for the 
post-hearing submission of exhibits. Section II.D. stated that 
submissions would be required ``no later than five days after the 
Secretary serves a final record index'' but the proposed rule text 
in Section VI. erroneously stated that submissions would be required 
``[w]ithin two weeks after the close of a hearing.''
---------------------------------------------------------------------------

    Proposed Rule 351(c) would set forth the same definition of 
``sensitive personal information'' contained in Proposed Rule 151(e) 
and would require its redaction or omission from all documents 
submitted under Rule 351(c). Proposed Rule 351(c)(1)(ii) would provide 
that if the person submitting record exhibits and other documents or 
items that are not attached to filings believes that sensitive personal 
information contained therein is necessary to the proceeding, the 
person would file unredacted documents, along with a motion for a 
protective order under Rule 322 to limit disclosure of unredacted 
sensitive personal information. Proposed Rule 351(c)(2) would provide 
that a person who reasonably cannot submit exhibits electronically must 
file a certification explaining why the person cannot comply, and 
indicate the expected duration of the person's reasonable inability to 
comply. Upon filing the certification, the person would submit 
originals of any exhibits that have not already been submitted to the 
Secretary of the Commission by other means.
    Proposed Rule 351(c)(3) would state that electronic submissions 
that require a signature pursuant to Rule 153 may be signed with an ``/
s/'' notation, which would be deemed the signature of the person making 
the filing for purposes of Rule 153.\52\
---------------------------------------------------------------------------

    \52\ 17 CFR 201.153 (Filing of Papers: Signature Requirement and 
Effect).
---------------------------------------------------------------------------

    Under Proposed Rule 351(c)(4), the parties would need to certify 
that exhibits and other documents or items submitted to the Secretary 
under the rule: (i) Are true and accurate copies of exhibits that were 
admitted or offered and not admitted during the hearing; and (ii) that 
any sensitive personal information as defined in Rule 351(c) has been 
excluded or redacted, or, if necessary to the proceeding, has been 
filed under seal pursuant to Rule 322.
2. Comments Received
    We did not receive any comments specifically addressing the 
proposed amendments to Rule 351. But, as discussed above, two 
commenters generally objected to the Commission's proposed definition 
of ``sensitive personal information.'' \53\
---------------------------------------------------------------------------

    \53\ See supra at II.A.2.
---------------------------------------------------------------------------

3. Final Rule
    We are adopting the amendments to Rule 351 substantially as 
proposed, but with certain modifications to Final Rule 351(c) that are 
designed to conform with other modifications that we are adopting 
today. Consistent with the modifications to the proposed SRO and PCAOB 
record redaction requirements under Final Rules 420 and 440, and for 
the same reasons, we are modifying the redaction requirements under 
proposed Rule 351(c). We are similarly revising Rule 351(c) to make 
clear that electronic filing of the record will be done in form and 
manner as specified by the Office of the Secretary in materials posted 
on the Commission's website. Under Final Rule 351(c), parties will not 
be required to exclude or redact sensitive personal information from 
exhibits before submitting them to the Office of the Secretary because 
the exhibits will not be posted to the Commission's website.\54\ 
Because the redaction of sensitive personal information will not be 
required under the amended rule, the final rule eliminates the 
definition of sensitive personal information in Proposed Rule 351(c)(1) 
and the redaction certification in Proposed Rule 351(c)(4)(ii).
---------------------------------------------------------------------------

    \54\ Nothing in Final Rule 351 should be construed as limiting 
or precluding the redaction or omission of sensitive personal 
information under other Rules of Practice or by order of the 
Commission or hearing officers. See, e.g., 17 CFR 201.230(b), 17 CFR 
201.322.
---------------------------------------------------------------------------

    Final Rule 351(c) requires the parties to submit electronic copies 
of all exhibits within five days after the Secretary serves a final 
record index. We did not receive any comments on this aspect of the 
proposal, but we acknowledge that the proposing release erroneously 
contained two different calculations of the deadline. Section II.D. of 
the proposing release stated that electronic submissions of exhibits 
would be required ``no later than five days after the Secretary serves 
a final

[[Page 86473]]

record index,'' and thereby incorporated the process for finalizing the 
record index under Proposed Rule 351(b). But the rule text proposed in 
Section VI. stated that such electronic submissions would be required 
``[w]ithin two weeks after the close of a hearing,'' which potentially 
could have required parties to submit exhibits before receiving and 
reviewing the final record index under Proposed Rule 351(b). We believe 
that Final Rule 351(b) and Final Rule 351(c) will encourage an orderly 
and efficient post-hearing process for the parties to assemble and 
organize the exhibits, then review and if necessary correct the record 
index prepared by the Secretary, and then appropriately submit and 
certify copies of exhibits for Commission review.
    We are also modifying Final Rule 351(c)(4) to clarify that the 
certification applies to exhibits that were admitted during the 
hearing, exhibits that were offered but not admitted during the 
hearing, ``or any other exhibits that were admitted after the 
hearing.'' The final certification language conforms with the 
electronic submission requirements in Final Rule 351(c), which requires 
the parties to submit to the Office of the Secretary a copy of ``all 
exhibits that were admitted, or offered and not admitted, during the 
hearing, and any other exhibits that were admitted after the hearing.''
    We are adopting the remaining amendments to Rule 351 as proposed, 
except that while we are allowing, as proposed, an ``/s/'' signature 
for electronic filings, upon further consideration we are clarifying 
that, in those situations, the filer's login and password into the eFAP 
system will be deemed the signature for each filing. We further note 
that we did not receive any comments to the proposed amendments to Rule 
351(b) about the time in which parties can file proposed corrections to 
the index and an opposition to the proposed corrections, and we 
continue to believe such deadlines are appropriate given the increased 
speed and efficiency of electronic transmission of documents such as 
the record index.

G. Rule 150 (Service of Papers by Parties)

    Rule 150 currently governs service of papers by parties in 
administrative proceedings. Under Rule 150(a), each paper, including 
each notice of appearance, written motion, brief, or other written 
communication shall be served upon each party in the proceeding in 
accordance with the rule. Current Rule 150(c) \55\ prescribes the 
various methods of service permitted under the rule, which include 
personal service, mailing by U.S. Postal Service, sending the papers 
through a commercial courier service or express delivery service, or 
transmitting the papers by facsimile, where certain conditions are 
satisfied. We proposed to amend Rule 150(c) to require parties to serve 
each other electronically in the form and manner that is prescribed in 
the materials posted on the Commission's website. As we noted in the 
proposing release, electronic service by email is a practice that 
already appears to occur in Commission administrative proceedings. The 
Instructions issued by the Office of the Secretary today therefore 
reflect current electronic service practice in our administrative 
proceedings.
---------------------------------------------------------------------------

    \55\ 17 CFR 201.150(c).
---------------------------------------------------------------------------

    The proposal also provided that a party who reasonably could not 
comply with the electronic service requirement would need to file a 
certification under new Rule 150(c)(1) that explains why the person 
reasonably could not comply and indicating the expected duration of the 
person's reasonable inability to comply (such as whether the 
certification is intended to apply to a single instance of service or 
all instances of service made during the proceeding). The certification 
would be effective immediately and become part of the record of the 
proceeding upon filing, and upon filing such certification the person 
could then serve paper documents by any additional method listed in 
Rule 150(d).
    We also proposed to amend Rule 150(d) to provide for additional 
methods of service if a person reasonably cannot comply with the 
electronic service requirements, or if service is of an investigative 
subpoena pursuant to 17 CFR 203.8. The methods of service would be 
those permitted under current Rule 150(c), but the provision for 
service by facsimile would be amended to eliminate certain outdated or 
unnecessary conditions, such as the requirement to provide the 
Commission and other parties with notice of the hours of facsimile 
machine operation. The proposal also would eliminate the requirement 
that facsimile transmissions be received during the Commission's 
business hours. Under Proposed Rule 150(e),\56\ electronic service 
would be deemed complete upon transmission.
---------------------------------------------------------------------------

    \56\ 17 CFR 201.150(e).
---------------------------------------------------------------------------

    We did not receive any comments on our proposed amendments to Rule 
150 and are adopting the rule as proposed with minor modifications to 
account for situations where a party has not provided a valid email 
address or is unable to file documents electronically. As noted in the 
Instructions posted on the Commission's website, participants in 
administrative proceedings should serve their documents upon each party 
in the proceeding by email, contemporaneously with the filing of the 
documents in the eFAP system.\57\ Filing a document electronically in 
the eFAP system will not effectuate service upon the parties to the 
proceeding (including the Division of Enforcement) as required by Rule 
150(a). As with several other rules as described above, we have also 
revised Rule 150(c) to make clear that electronic filing of documents 
are to be done in the form and manner as specified by the Office of the 
Secretary in materials posted on the Commission's website
---------------------------------------------------------------------------

    \57\ 17 CFR 201.151(a). Service is contemporaneous if it is 
completed reasonably promptly after a document is filed.
---------------------------------------------------------------------------

    Service of documents by the Office of the Secretary of the 
Commission upon participants in the proceeding will be done through the 
eFAP system and routed to the participant's email address of record. As 
explained in the Instructions, the eFAP system will generate an email 
notifying the participant of service of the document and the email will 
include link(s) to the document(s) served by the Office of the 
Secretary.
    Pursuant to Final Rule 150(e), electronic service is complete upon 
transmission. Thus, failure to open the email or download the documents 
served will not render service ineffective. But electronic service is 
not effective if the sender learns that the transmission failed.

H. Additional Amendments

1. Rule 102 (Appearance and Practice Before the Commission)
    Rule 102(d) \58\ requires a person appearing in an administrative 
proceeding either on his own behalf or in a representative capacity to 
provide to the Commission, and keep current, certain contact 
information, such as address and telephone number that may be used 
during the proceeding. Consistent with the introduction of electronic 
filing and service, we proposed to amend Rule 102(d) to require that 
both a mailing address and an email address must be provided under 
paragraphs (d)(1), (d)(2), and (d)(4). We did not receive any comments 
on the proposed amendments and are adopting the rule as proposed, with 
one implementing change.
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    \58\ 17 CFR 201.102(d).

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[[Page 86474]]

    Specifically, we are amending Rule 102(d) to require that, within 
ten days of the Compliance Date, any individual appearing on his or her 
own behalf before the Commission or hearing officer in a proceeding as 
defined in Rule 101(a) that is ongoing on that date shall 
electronically file a notice that complies with section (d)(1). 
Likewise, any person appearing in a representative capacity before the 
Commission or hearing officer in a proceeding as defined in Rule 101(a) 
that is ongoing on that date shall electronically file a notice that 
complies with section (d)(2). The notices shall be served in accordance 
with Rule 150(a).\59\ Participants are directed to electronically file 
a Rule 102(d) compliant notice in their ongoing proceedings even if a 
prior Rule 102(d) paper filing included the participant's email 
address. This will enable the Office of the Secretary to begin 
electronically serving documents upon participants in administrative 
proceedings after the Compliance Date.\60\
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    \59\ The Commission is extending Rule 102(d) to ongoing 
proceedings because it is a purely a procedural requirement that the 
Commission deems necessary to implement our electronic filing system 
in an orderly and timely fashion. See James V. Hurson Ass'n v. 
Glickman, 229 F.3d 277, 280 (D.C. Cir. 2002) (citing JEM 
Broadcasting Co. v. FCC, 22 F.3d 320 (D.C. Cir. 1994)) (a procedural 
rule that an agency need not adopt through notice-and-comment 
rulemaking, in contrast to a substantive rule that must be adopted 
through notice-and-comment rulemaking, ``covers agency actions that 
do not themselves alter rights or interest of parties, although it 
may alter the manner in which parties present themselves or their 
viewpoints to the agency'').
    \60\ Additionally, as noted in the Instructions, participants 
should make a new Rule 102(d) filing whenever they wish to change 
their email address used for service.
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2. Rule 140 (Commission Orders and Decisions; Signature and 
Availability)
    Rule 140(a) \61\ requires the Secretary or other authorized person 
to sign Commission orders and decisions. We proposed to amend the rule 
to provide that the signature may be an electronic signature that 
consists of an ``/s/'' notation or any other digital signature. The 
Commission did not receive any comments on this aspect of the proposal. 
We are adopting the amendment as proposed.
---------------------------------------------------------------------------

    \61\ 17 CFR 201.140.
---------------------------------------------------------------------------

3. Rule 141 (Orders and Decisions: Service of Orders Instituting 
Proceedings and Other Orders and Decisions)
    Rule 141 governs service of Orders Instituting Proceedings 
(``OIPs'') and other orders and decisions issued by the Commission or a 
hearing officer in administrative proceedings. We proposed to amend 
Rule 141(b) relating to service of orders other than OIPs or decisions 
\62\ to allow the Secretary to serve such orders and decisions 
electronically or by any of the additional methods of service 
authorized by Proposed Rule 150(d). These methods would be in addition 
to the means of service permitted under current Rule 141(a). We did not 
receive any comments on the proposed amendments to Rule 141 and are 
adopting the amendments as proposed.\63\
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    \62\ 17 CFR 201.141(b).
    \63\ As proposed, we are adopting one ministerial change to Rule 
141(a) to refer generically to ``express mail'' rather than a 
particular U.S. Postal Service product.
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4. Rule 193 (Applications by Barred Individuals for Consent to 
Associate)
    Rule 193 \64\ governs applications to the Commission by certain 
persons, barred by Commission order from association with brokers, 
dealers, municipal securities dealers, government securities brokers, 
government securities dealers, investment advisers, investment 
companies, or transfer agents, for consent to become so associated. 
Rule 193 currently provides that an original and three copies of an 
application shall be filed under Rules 151, 152, and 153, and that such 
application shall be supported by a manually signed affidavit. 
Consistent with the transition to electronic filing and service, we 
proposed to delete the term ``manually,'' delete the reference to one 
original and three copies, and leave the cross reference to Rules 151, 
152, and 153 to account for electronic filing. We did not receive any 
comments on this aspect of the proposal and are adopting these 
amendments as proposed with minor modifications to move a preliminary 
note in current Rule 193 into the text of the rule as a new paragraph 
(a), without otherwise modifiying the preliminary note's text, and to 
redesignate the other paragraphs accordingly.
---------------------------------------------------------------------------

    \64\ 17 CFR 201.193.
---------------------------------------------------------------------------

III. Compliance Date for the Final Rules

    As proposed, persons subject to the electronic filing requirements 
would have been required to comply with the final rules on the 
effective date. Commenters sought an extended implementation period for 
compliance with the final rules.\65\ Two commenters sought a one-year 
implementation period for the electronic filing requirement to take 
effect.\66\ According to one of the commenters, a longer implementation 
period would allow it to prepare for electronic filing by converting 
its own case processing to an all-electronic system.\67\ The second 
commenter requested a one-year implementation period to allow it to 
``develop, test, and improve responsive processes for managing any 
sensitive personal information in [its] administrative proceedings.'' 
\68\ A third commenter advocated for a compliance period of ``six 
months or more.'' \69\
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    \65\ FINRA letter; NYSE letter; PCAOB letter; FSR letter.
    \66\ FINRA letter; PCAOB letter.
    \67\ FINRA letter at 7.
    \68\ PCAOB letter at 3.
    \69\ FSR letter at 10-11.
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    The amended rules will become effective 30 days after publication 
in the Federal Register (Effective Date). After considering the 
comments, the Commission has decided to require compliance with the 
amended rules on April 12, 2021 (Compliance Date). The requirements of 
the amended rules will apply to all filings, transmissions or 
submissions to the Commission that are required to be made on or after 
the Compliance Date.\70\
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    \70\ The eFAP system will not be accessible to filers prior to 
the Compliance Date.
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    The Commission believes this compliance period will provide an 
appropriate period of time that balances the interests of parties in 
administrative proceedings to prepare for electronic filing, while 
continuing to advance the Commission's goal of enhancing accessibility 
of its administrative proceedings. Moreover, in light of the current 
Commission guidance encouraging parties to submit by email and our 
decision to modify, from the proposal, the redaction requirements for 
records submitted under Rules 351, 420 and 440, we do not believe a 
longer implementation period is necessary because the universe of 
records subject to redaction should be significantly reduced and 
parties have already been submitting documents electronically.

IV. Administrative Procedure Act, Regulatory Flexibility Act, and 
Paperwork Reduction Act

    The Commission finds, in accordance with Section 553(b)(3)(A) of 
the Administrative Procedure Act,\71\ that these revisions relate 
solely to agency organization, procedure, or practice. They are 
therefore not subject to the provisions of the Administrative Procedure 
Act requiring notice, opportunity for public comment, and publication. 
The Regulatory Flexibility

[[Page 86475]]

Act \72\ therefore does not apply.\73\ Nonetheless, the Commission 
previously determined that it would be useful to publish the proposed 
rules for notice and comment before adoption. The Commission has 
considered all comments received. Because these rules relate to 
``agency organization, procedure or practice that does not 
substantially affect the rights or obligations of non-agency parties,'' 
they are not subject to the Small Business Regulatory Enforcement 
Fairness Act.\74\ To the extent these rules relate to agency 
information collections during the conduct of administrative 
proceedings, they are exempt from review under the Paperwork Reduction 
Act.\75\
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    \71\ 5 U.S.C. 553(b)(3)(A).
    \72\ 5 U.S.C. 601-612.
    \73\ See 5 U.S.C. 603.
    \74\ 5 U.S.C. 804(3)(C).
    \75\ See 44 U.S.C. 3518(c)(1)(B)(ii); 5 CFR 1320.4 (exempting 
collections during the conduct of administrative proceedings or 
investigations).
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I. Other Matters

    If any of the provisions of these rules, or the application thereof 
to any person or circumstance, is held to be invalid, such invalidity 
shall not affect other provisions or application of such provisions to 
other persons or circumstances that can be given effect without the 
invalid provision or application.

V. Economic Analysis

    The Commission is sensitive to the costs and benefits of its rules. 
The current processes and filing requirements for administrative 
proceedings serve as the baseline against which the economic impacts of 
the adopted rules are measured. At present, submissions are permitted 
to be filed with the Commission in paper format or by facsimile 
followed by a paper submission.\76\ The Commission's current Rules of 
Practice do not identify sensitive personal information that must be 
redacted from these documents by those who file them. Instead, such 
redaction is undertaken by the Commission when necessary in responding 
to document requests from the public or posting documents on the 
Commission's public website. Service by email is already generally an 
accepted practice by parties to administrative proceedings who mutually 
agree to it, although it is not expressly permitted by rule.
---------------------------------------------------------------------------

    \76\ In addition, materials for which a paper format is not 
possible or not appropriate, such as audio files, are submitted on 
electronic media such as compact disks or thumb drives. The 
processes and requirements for the submission of such materials in 
administrative proceedings will not be affected by the adopted 
rules, except for the requirement that an associated Notice of 
Manual Filing be filed and served electronically as described in the 
Instructions.
---------------------------------------------------------------------------

    We continue to believe that the scope of the benefits and costs of 
the adopted rules will depend on the expected volume of administrative 
proceedings and the number of filed documents and document requests 
associated with these proceedings. New proceedings initiated and not 
immediately settled in fiscal years 2018 and 2019 totaled 206 and 223 
respectively, similar to the number of litigated proceedings reported 
for previous years in the proposing release.
    In fiscal years 2018 and 2019, an average of approximately 2,700 
filings were submitted per year in relation to litigated proceedings, 
including filings by outside parties as well as Commission staff. These 
filings consist of one or more documents, such as motions, briefs, and 
record exhibits, and the length of the filings generally ranges from 
one page to a few thousand pages. It is difficult to predict whether 
the number of filings in future years will increase or decrease 
relative to these levels. A degree of volatility in the volume of 
filings is expected as the number, types, and complexity of proceedings 
varies over time. The frequency of litigated proceedings and volume of 
filings hereafter may also either increase or decrease as a result of 
recent amendments to the Commission's Rules of Practice that, for 
example, extended the potential length of the prehearing period, 
provided parties to proceedings with additional opportunities to 
conduct depositions, and clarified the ability of both sides to a 
proceeding to make certain dispositive motions in certain types of 
proceedings.\77\
---------------------------------------------------------------------------

    \77\ See, e.g., Amendments to the Commission's Rules of 
Practice, Exchange Act Release No. 78319, 81 FR 50211, 50230-31 
(July 13, 2016), available at https://www.sec.gov/rules/final/2016/34-78319.pdf (last visited Nov. 17, 2020) (stating that the 
Commission is ``unable to precisely predict the economic effect of 
the final rules on administrative proceedings, as the number and 
type of proceedings can vary based on many factors unrelated to the 
Rules of Practice'').
---------------------------------------------------------------------------

    The Commission receives numerous requests from the public to 
release documents related to administrative proceedings. Requests for 
records related to administrative proceedings (both settled and 
litigated) numbered 46 and 26 for fiscal years 2018 and 2019 
respectively.\78\ In 2014, the Commission also began regularly making 
certain substantive filings such as significant pleadings and motions 
by outside parties in administrative proceedings available to the 
public by posting them on its public website.\79\ In fiscal years 2018 
and 2019, filings posted to SEC.gov were accessed 542,811 and 633,763 
times, respectively, further demonstrating public interest in documents 
related to administrative proceedings.
---------------------------------------------------------------------------

    \78\ These numbers reflect the number of requests that reached 
the Office of the Secretary, but there might be other requests to 
the Commission that did not reach the Office of the Secretary.
    \79\ These documents are currently available at www.sec.gov/litigation/apdocuments/ap-closed-fileno-asc.xml for closed 
proceedings and www.sec.gov/litigation/apdocuments/ap-open-fileno-asc.xml for open proceedings.
---------------------------------------------------------------------------

    The implementation of electronic filing and the related adopted 
rules are intended to improve the efficiency and transparency of the 
Commission's operations and to modernize the document management 
process to be consistent with common practice in other tribunals. 
Benefits of the adopted rules are anticipated to accrue to the public 
and outside parties to administrative proceedings as well as the 
Commission.
    Specifically, the adopted rules may benefit members of the public 
with an interest in the Commission's administrative proceedings by 
permitting the Commission to more quickly make public the documents 
relating to these proceedings, both when posting documents directly to 
the Commission's public website and when responding to requests. One 
commenter described the proposed rules as ``an important first step to 
improve the public's access to filings in administrative proceedings.'' 
\80\ The Commission's response to document requests and public posting 
of documents is expected to be more time- and cost-effective due to the 
efficiency of electronic retrieval and the fact that the Commission's 
own review and redaction of documents may be expedited because 
sensitive information will have been redacted in advance. As discussed 
below, the modifications made to the redaction requirement relative to 
the proposal may reduce these expected benefits.
---------------------------------------------------------------------------

    \80\ See Better Markets letter.
---------------------------------------------------------------------------

    The adopted rules may increase the speed at which information from 
administrative proceedings is transmitted amongst parties to the 
proceeding as well as the broader public, and enhance the overall 
transparency of these proceedings. Several commenters noted that 
parties to administrative proceedings would likely benefit from the 
proposed rules.\81\

[[Page 86476]]

Parties to administrative proceedings may benefit from the increased 
flexibility enabled by the changes, such as the Commission's acceptance 
of electronic submissions until midnight rather than the close of 
business on a given day. These parties may also benefit from savings on 
printing and mailing costs because, after the phase-in period, filing 
paper copies generally will not be required. In addition, the changes 
expressly require service by electronic means, which may increase 
further the savings in printing and mailing and benefit filers who 
telework.
---------------------------------------------------------------------------

    \81\ See, e.g., FINRA letter (stating that the ``electronic 
filing of materials will lower reproduction and delivery costs'') 
and Better Markets letter (stating that the proposed rules would 
``benefit parties who are familiar with electronic-filing 
systems'').
---------------------------------------------------------------------------

    The magnitude of the expected benefits of the adopted rules is 
difficult to quantify due to the limitations of existing data. Although 
commenters generally supported the idea that the proposed rules would 
be beneficial,\82\ they also did not provide data that would allow us 
to quantify these benefits.
---------------------------------------------------------------------------

    \82\ See supra notes 80 and 81. See also PCAOB letter (stating 
that they support the objective of ``making the administrative 
appeals process more accessible to the public and increasingly 
efficient''); FSR letter (stating that the proposed rules were 
``commendable.''
---------------------------------------------------------------------------

    The costs of the proposal will be borne by the Commission as well 
as the outside parties to administrative proceedings. The adopted rules 
place the primary burden of redacting sensitive personal and 
unnecessary health information on the parties submitting documents in 
administrative proceedings--either outside parties or Commission 
staff--following common practice in federal courts. When sensitive 
personal or health information is necessary to the proceedings, outside 
parties or the Commission staff may expend additional resources filing 
a motion for a protective order in accordance with Rule 322 to limit 
disclosure of the sensitive information and to separately prepare both 
a redacted and unredacted version of the documents.
    Commenters raised several concerns about the costs of the proposed 
redaction requirement. One commenter expressed concern that the 
redaction requirement would allow the Commission to shift its redaction 
costs onto other parties.\83\ Another commenter claimed that the 
Commission failed to consider litigation costs that could arise if the 
Commission were to make public any documents that had not been properly 
redacted by a party to a proceeding.\84\ Commission staff will continue 
to review any documents the Commission makes public, and to make 
redactions where necessary, though this review may be more efficient 
than in the past because of the prior redaction undertaken by the 
parties to a proceeding. Two commenters supported the idea that the 
parties filing documents are well positioned to undertake redaction and 
initially draft documents to avoid the use of sensitive personal 
information.\85\ One of these commenters explained that this was 
because they ``have the most knowledge, and control over the creation, 
of the documents.'' \86\ We therefore continue to believe that parties 
filing documents are well positioned to undertake this requirement and 
that the narrow definition of sensitive personal information in the 
adopted rules will limit the burden on parties required to redact 
documents.
---------------------------------------------------------------------------

    \83\ See Bishop letter.
    \84\ See Anonymous letter.
    \85\ See FINRA and PCAOB letters.
    \86\ See PCAOB Letter.
---------------------------------------------------------------------------

    The Commission recognizes, however, that the costs of reviewing and 
editing all filings to protect sensitive personal information and 
unnecessary health information would be significant for some parties. 
Three commenters highlighted challenges associated with redaction in 
cases on appeal to the Commission.\87\ One of these commenters 
projected that it would file 114,160 pages of certified records of 
proceedings on appeal to the Commission in 2015. Another commenter 
similarly noted that its proceedings could generate ``voluminous 
records,'' providing examples of records with 7,000, 30,000, and 69,000 
pages.\88\
---------------------------------------------------------------------------

    \87\ See FINRA, NYSE, and PCAOB letters.
    \88\ See PCAOB letter.
---------------------------------------------------------------------------

    In response to these concerns, we are limiting the redaction 
requirement to filings other than (1) any set of exhibits offered and/
or admitted at a hearing (i.e., filed pursuant to Rule 351) and (2) 
records of proceedings on appeal from SROs or the PCAOB to the 
Commission. In fiscal years 2018 and 2019, there were approximately 390 
and 992 filings, respectively, that would have would have been subject 
to the redaction requirement as so limited. The exception to the 
redaction requirement may reduce the expected benefits of the adopted 
rules relative to the proposal, in that more filings will not require 
redaction and thus parties to the associated proceedings may file 
protective orders under Rule 322 for these filings. At the same time, 
we expect this change to significantly lower the expected burden of the 
electronic filing requirements on parties to administrative proceedings 
because, based on our experience, these documents are, on average, 
significantly longer and thus more burdensome to redact than other 
filings.\89\ That said, we cannot quantitatively estimate the total 
remaining burden of redaction under the adopted rules because we do not 
have systematic data on length of filings and, as discussed above, the 
expected future volume of filings difficult to predict.
---------------------------------------------------------------------------

    \89\ We acknowledge that SROs that use automated redaction might 
experience a smaller decrease in the expected burden.
---------------------------------------------------------------------------

    Parties to administrative proceedings will also bear any 
incremental burden of electronic filings over the current practice of 
facsimile or paper transmissions. The magnitude of costs will depend 
primarily on whether the original format of the documents to be 
submitted is electronic or whether they must be scanned or otherwise 
converted to an electronic format. The costs will also be affected by 
the nature of the documents relative to the logistical requirements of 
the electronic filing system. For example, electronic files may need to 
be renamed and large files may need to be broken down into separate 
files to be compliant with the system requirements.\90\ Other factors 
that may affect these costs include the ease of access the party has to 
the internet and to any hardware and software that may be involved in 
processing the documents. We did not receive comments on these costs 
and continue to expect that, for most parties, these costs will not be 
significant because, among other things, most parties already are 
subject to similar requirements in other kinds of legal proceedings or 
have access to the internet and conversion programs at a reasonable 
cost. Further, these potential burdens may be mitigated for some 
parties as the adopted rules provide for relief from the electronic 
filing requirements in situations in which a party certifies a 
reasonable inability to comply with the electronic filing requirement.
---------------------------------------------------------------------------

    \90\ For files larger than 500 megabytes that cannot be broken 
down into smaller files or filings that cannot be provided in PDF 
format, parties may incur additional costs to submit these documents 
on other electronic media, such as compact disks or thumb drives. We 
expect the incremental costs of this requirement to be minimal as, 
based on our experience, such filings are typically already 
submitted using electronic media under the baseline. See supra n.76.
---------------------------------------------------------------------------

    As discussed above, the Commission has considered alternatives to 
the adopted rules, including alternative treatment of records of 
proceedings on appeal to the Commission. Commenters suggested 
alternatives based on their concerns about the burden of redacting

[[Page 86477]]

these records. For example, two commenters discussed the possibility of 
permitting additional time for the filing of the redacted copy of the 
record as compared to the deadline for filing the unredacted 
version.\91\ We believe that the modification of the adopted rules to 
exclude these records as well as exhibits submitted under Rule 351 from 
the redaction requirement will allow for reduced costs of compliance 
relative to the proposal, but might also reduce the benefits of the 
proposal.
---------------------------------------------------------------------------

    \91\ See FINRA and PCAOB letters.
---------------------------------------------------------------------------

    We have also considered alternatives with respect to the timing of 
implementation of the new filing requirements. Several commenters 
suggested an extended transition period or implementation delay of six 
months to one year.\92\ Such a delay would, for example, permit 
individuals and entities that are regularly parties to administrative 
proceedings to adapt their own processes and systems to most 
efficiently comply with the adopted rules. While we are sensitive to 
the efforts that may be required to adapt to the electronic filing 
requirements, we believe that the modification in the adopted rules to 
not require the filing parties to redact records of proceedings on 
appeal to the Commission and exhibits submitted under Rule 351 should 
substantially ease this transition.
---------------------------------------------------------------------------

    \92\ See FINRA, FSR, NYSE and PCAOB letters.
---------------------------------------------------------------------------

    Additional alternatives to the adopted rules could involve the 
implementation of electronic filing with different requirements. In 
particular, the Commission could permit electronic filing on a 
voluntary, rather than mandatory, basis. While these changes might 
permit parties to choose the method of filing that best suits their 
objectives and potentially reduce the costs associated with filing, 
this alternative could undermine the consistency of public disclosure 
by establishing multiple sets of filing requirements and standards and 
reduce the benefits that result from efficiencies associated with 
electronic filing. Alternatively, the Commission could continue to 
allow the filing of unredacted documents, either requiring, as one 
commenter suggested, that the party that filed a document provide a 
redacted version if necessary to respond to a public request for a 
document \93\ or that redaction be undertaken by Commission staff when 
necessary. Relative to these alternatives, or to the existing paper 
format and facsimile document submission and management system for 
administrative proceedings, the Commission believes that the adopted 
changes achieve the benefits described above in a time- and cost-
efficient manner.
---------------------------------------------------------------------------

    \93\ See PCAOB letter (suggesting that this alternative could be 
used, for a limited trial period, for records in proceedings on 
appeal to the Commission).
---------------------------------------------------------------------------

    The Commission does not expect significant effects on efficiency, 
competition, or capital formation to result from the adopted changes. 
And to the extent that the changes impose any burden on competition, 
the Commission believes that such burden would be necessary and 
appropriate in furtherance of the purposes of the Exchange Act.\94\
---------------------------------------------------------------------------

    \94\ See 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------

V. Statutory Basis

    These amendments to the Rules of Practice are being adopted 
pursuant to statutory authority granted to the Commission, including 
section 3 of the Sarbanes-Oxley Act of 2002, 15 U.S.C. 7202; section 19 
of the Securities Act, 15 U.S.C. 77s; sections 4A, 19, and 23 of the 
Exchange Act, 15 U.S.C. 78d-1, 78s, and 78w; section 319 of the Trust 
Indenture Act of 1939, 15 U.S.C. 77sss; sections 38 and 40 of the 
Investment Company Act, 15 U.S.C. 80a-37 and 80a-39; and section 211 of 
the Investment Advisers Act, 15 U.S.C. 80b-11.

List of Subjects in 17 CFR Part 201

    Administrative practice and procedure.

    For the reasons set forth in the preamble, the Commission is 
amending title 17, part 201 of the Code of Federal Regulations as 
follows:

PART 201--RULES OF PRACTICE

0
1. The authority citation for Part 201, subpart D, is revised to read 
as follows:

    Authority: 15 U.S.C. 77f, 77g, 77h, 77h-1, 77j, 77s, 77u, 
78c(b), 78d-1, 78d-2, 78l, 78m, 78n, 78o(d), 78o-3, 78s, 78u-2, 78u-
3, 78v, 78w, 77sss, 77ttt, 80a-8, 80a-9, 80a-37, 80a-38, 80a-39, 
80a-40, 80a-41, 80a-44, 80b-3, 80b-9, 80b-11, 80b-12, 7202, 7215, 
and 7217.

0
2. Section 201.102 is amended by revising paragraphs (d)(1), (2), and 
(4) to read as follows:


Sec.  201.102  Appearance and practice before the Commission.

* * * * *
    (d) * * *
    (1) Representing oneself. When an individual first makes any filing 
or otherwise appears on his or her own behalf before the Commission or 
a hearing officer in a proceeding as defined in Sec.  201.101(a), he or 
she shall file with the Commission, or otherwise state on the record, 
and keep current, a mailing address and email address at which any 
notice or other written communication required to be served upon him or 
her or furnished to him or her may be sent and a telephone number where 
he or she may be reached during business hours. Within ten days of 
April 12, 2021, any individual appearing on his or her own behalf 
before the Commission or hearing officer in a proceeding as defined in 
Sec.  201.101(a) that is ongoing on that date shall electronically file 
a notice that complies with this paragraph. Notices required by this 
section shall be served in accordance with Sec.  201.150(a). 
Individuals shall electronically file a Sec.  201.102(d) compliant 
notice in their ongoing proceedings even if a prior Sec.  201.102(d) 
paper filing included the participant's email address.
    (2) Representing others. When a person first makes any filing or 
otherwise appears in a representative capacity before the Commission or 
a hearing officer in a proceeding as defined in Sec.  201.101(a), that 
person shall file with the Commission, and keep current, a written 
notice stating the name of the proceeding; the representative's name, 
business address, email address, and telephone number; and the name, 
email address, and address of the person or persons represented. Within 
ten days of April 12, 2021, any person appearing in a representative 
capacity before the Commission or hearing officer in a proceeding as 
defined in Sec.  201.101(a) that is ongoing on that date shall 
electronically file a notice that complies with paragraph (d)(2) of 
this section. Notices required by this section shall be served in 
accordance with Sec.  201.150(a). Participants are directed to 
electronically file a Sec.  201.102(d) compliant notice in their 
ongoing proceedings even if a prior Sec.  201.102(d) paper filing 
included the participant's email address.
* * * * *
    (4) Withdrawal. Any person seeking to withdraw his or her 
appearance in a representative capacity shall file a notice of 
withdrawal with the Commission or the hearing officer. The notice shall 
state the name, mailing address, email address, and telephone number of 
the withdrawing representative; the name, email address, address, and 
telephone number of the person for whom the appearance was made; and 
the effective date of the withdrawal. If the person seeking to withdraw 
knows the name, mailing address, email address, and telephone number of 
the new representative, or knows that the person for whom the

[[Page 86478]]

appearance was made intends to represent him- or herself, that 
information shall be included in the notice. The notice must be served 
on the parties in accordance with Sec.  201.150. The notice shall be 
filed at least five days before the proposed effective date of the 
withdrawal.
* * * * *

0
3. Section 201.140 is amended by revising paragraph (a) to read as 
follows:


Sec.  201.140  Commission orders and decisions: Signature and 
availability.

    (a) Signature required. All orders and decisions of the Commission 
shall be signed by the Secretary or any other person duly authorized by 
the Commission. The signature may be an electronic signature that 
consists of an ``/s/'' notation or any other digital signature.
* * * * *

0
4. Section 201.141 is amended by:
0
a. Removing the words ``Express Mail'' wherever they appear and adding 
in their place the words ``express mail''; and
0
b. Revising the first sentence of paragraph (b).
    The revision reads as follows:


Sec.  201.141  Orders and decisions: Service of orders instituting 
proceedings and other orders and decisions.

* * * * *
    (b) * * * Written orders or decisions issued by the Commission or 
by a hearing officer shall be served promptly on each party pursuant to 
any method of service authorized under paragraph (a) of this section or 
Sec.  201.150(c) and (d). * * *

0
5. Section 201.150 is amended by:
0
a. Redesignating paragraphs (c) and (d) as paragraphs (d) and (e);
0
b. Adding new paragraph (c);
0
c. Revising newly redesignated paragraphs (d) introductory text and 
(d)(4);
0
d. Revising newly redesignated paragraph (e); and
0
e. Removing the words ``Express Mail'' wherever they appear and adding 
in their place the words ``express mail''.
    The revisions and addition read as follows:


Sec.  201.150  Service of papers by parties.

* * * * *
    (c) How made. Service shall be made electronically in the form and 
manner to be specified by the Office of the Secretary in the materials 
posted on the Commission's website. Persons serving each other shall 
have provided the Commission and the parties with notice of an email 
address.
    (1) Certification of inability to serve electronically. If a person 
reasonably cannot serve electronically (due, for example, to a failure 
to have a functional email address or a lack of access to electronic 
transmission devices due to incarceration or otherwise), the person 
promptly shall file a certification under this paragraph that explains 
why the person reasonably cannot comply using any additional method of 
service listed in Sec.  201.150(d). The filing also must indicate the 
expected duration of the person's reasonable inability to comply, such 
as whether the certification is intended to apply to a solitary 
instance of service or all instances of service made during the 
proceeding. The certification is immediately effective. Upon filing the 
certification, it will be part of the record of the proceeding, and the 
person may serve paper documents by any additional method listed in 
Sec.  201.150(d).
    (2) [Reserved].
    (d) Additional methods of service. If a person reasonably cannot 
serve electronically, or if service is of an investigative subpoena 
pursuant to 17 CFR 203.8, service may be made by delivering a copy of 
the filing. Delivery means:
* * * * *
    (4) Transmitting the papers by facsimile transmission to the person 
required to be served. The persons so serving each other shall have 
provided the Commission and the parties with notice of a facsimile 
machine telephone number.
    (e) When service is complete. Electronic service is complete upon 
transmission, but is not effective if the sender learns that the 
transmission failed. Personal service, service by U.S. Postal Service 
express mail or service by a commercial courier or express delivery 
service is complete upon delivery. Service by mail is complete upon 
mailing. Service by facsimile is complete upon confirmation of 
transmission.

0
6. Section 201.151 is amended by revising paragraphs (a) and (d) and 
adding paragraph (e) to read as follows:


Sec.  201.151  Filing of papers with the Commission: Procedure.

    (a) When to file. All papers required to be served upon any person 
shall also be filed contemporaneously with the Commission 
electronically pursuant to the requirements of Sec.  201.152(a). The 
person making such filing is responsible for ensuring that the 
Commission receives a complete and legible filing within the time limit 
set for such filing. Documents that are attached to filings shall be 
filed in accordance with this section.
* * * * *
    (d) Certificate of service. Papers filed with the Commission or a 
hearing officer shall be accompanied by a certificate stating the name 
of the person or persons served, the date of service, the method of 
service, and the mailing address or email address to which service was 
made, if not made in person.
    (e) Sensitive personal information. Sensitive personal information 
is defined as a Social Security number, taxpayer identification number, 
financial account number, credit card or debit card number, passport 
number, driver's license number, state-issued identification number, 
home address (other than city and state), telephone number, date of 
birth (other than year), names and initials of minor children, as well 
as any unnecessary health information identifiable by individual, such 
as an individual's medical records. Sensitive personal information 
shall not be included in, and must be redacted or omitted from, all 
filings subject to:
    (1) Exceptions. The following information may be included and is 
not required to be redacted from filings:
    (i) The last four digits of a financial account number, credit card 
or debit card number, passport number, driver's license number, and 
state-issued identification number;
    (ii) Home addresses and telephone numbers of parties and persons 
filing documents with the Commission;
    (iii) Business telephone numbers; and
    (iv) Copies of unredacted filings by regulated entities or 
registrants that are available on the Commission's public website.
    (2) Confidential treatment of information. If the person making any 
filing believes that sensitive personal information (as defined above) 
contained therein is necessary to the proceeding, the person shall file 
unredacted documents, along with a motion for a protective order with 
redacted documents, in accordance with Sec.  201.322 to limit 
disclosure of unredacted sensitive personal information.
    (3) Certification. Any filing must include a certification that any 
information described in paragraph (e) of this section has been omitted 
or redacted from the filing or, if necessary to the filing, has been 
filed under seal pursuant to Sec.  201.322.

0
7. Section 201.152 is amended by:
0
a. Removing paragraph (d);
0
b. Redesignating paragraphs (a), (b), and (c) as paragraphs (b), (c), 
and (d);

[[Page 86479]]

0
c. Adding new paragraph (a);
0
d. Revising newly redesignated paragraphs (b), (c), and (d); and
0
e. Adding new paragraph (g).
    The revisions and addition read as follows:


Sec.  201.152  Filing of papers: Form.

    (a) Electronic filing. Papers filed in connection with any 
proceeding as defined in Sec.  201.101(a) shall be filed electronically 
in the form and manner to be specified by the Office of the Secretary 
in the materials posted on the Commission's website. Papers filed 
electronically must be received by the Commission by midnight Eastern 
Time on the date the filing is due.
    (1) Certification of Inability to File Electronically. If a person 
reasonably cannot comply with the requirements of this section, due to 
a lack of access to electronic transmission devices (due to 
incarceration or otherwise), the person promptly shall file a 
certification under this paragraph that explains why the person 
reasonably cannot comply using any additional method of filing listed 
in Sec.  201.152(a)(2). The filing also must indicate the expected 
duration of the person's reasonable inability to comply, such as 
whether the certification is intended to apply to a solitary filing or 
all filings made during the proceeding. The certification is 
immediately effective. Upon filing the certification, it will be part 
of the record of the proceeding, and the person may file paper 
documents by any additional method listed in Sec.  201.152(a)(2).
    (2) Additional methods of filing. If a person reasonably cannot 
file electronically, filing may be made by hand delivering the filing 
by 5:30 p.m. Eastern Time through a commercial courier service or 
express delivery service; mailing the filing through the U.S. Postal 
Service by first class, certified, registered, or express mail delivery 
so that it is received by the Commission by 5:30 p.m. Eastern Time; or 
transmitting the filing by facsimile transmission so that it is 
received by the Commission by midnight Eastern Time.
    (b) Form. Papers filed in connection with any proceeding as defined 
in Sec.  201.101(a) shall:
    (1) Reflect a page, electronically or otherwise, that measures 8\1/
2\ x 11 inches when printed, except that, to the extent that the 
reduction of larger documents would render them illegible when printed, 
such documents may be filed on larger paper;
    (2) Use 12-point or larger typeface;
    (3) Include at the head of the paper, or on a title page, the name 
of the Commission, the title of the proceeding, the names of the 
parties, the subject of the particular paper or pleading, and the file 
number assigned to the proceeding;
    (4) Be paginated with left hand margins at least 1 inch wide, and 
other margins of at least 1 inch; and
    (5) Be double-spaced, with single-spaced footnotes and single-
spaced indented quotations.
    (c) Signature required. All papers must be dated and signed as 
provided in Sec.  201.153. Electronic filings that require a signature 
pursuant to Sec.  201.153 may be signed with an ``/s/'' notation, but 
in that event, the use of the filer's log in and password to file a 
document shall be deemed the signature of the person making the filing 
for purposes of Sec.  201.153.
    (d) Suitability for recordkeeping. Documents which, in the opinion 
of the Office of the Secretary, are not suitable for computer scanning 
may be rejected.
* * * * *
    (g) Interim Procedures for Filing Papers with the Commission in 
Both Electronic and Paper Format. For the initial 90-day period 
beginning on April 12, 2021, papers filed in connection with any 
proceeding as defined in Sec.  201.101(a) shall be filed both 
electronically in accordance with paragraph (a) of this section and, in 
addition, in paper format or by email at [email protected]. If filed in 
paper format, an original and three copies of all paper filings must be 
submitted to the Office of the Secretary in accordance with any of the 
delivery methods set forth in paragraph (a)(2) of this section.


Sec.  201.152  [Amended]

0
8. Effective, July 12, 2021, amend Sec.  201.152 by removing paragraph 
(g).9. Section 201.193 is amended by:
0
a. Redesignating paragraphs (a) through (f) as (b) through (g);
0
b. Revising the Preliminary Note; and
0
c. Revising newly redesignated paragraph (c) introductory text.
    The revisions read as follows:


Sec.  201.193  Applications by barred individuals for consent to 
associate.

    (a) Preliminary note. This section governs applications to the 
Commission by certain persons, barred by Commission order from 
association with brokers, dealers, municipal securities dealers, 
government securities brokers, government securities dealers, 
investment advisers, investment companies or transfer agents, for 
consent to become so associated. Applications made pursuant to this 
section must show that the proposed association would be consistent 
with the public interest. In addition to the information specifically 
required by the section, applications should be supplemented, where 
appropriate, by written statements of individuals (other than the 
applicant) who are competent to attest to the applicant's character, 
employment performance, and other relevant information. Intentional 
misstatements or omissions of fact may constitute criminal violations 
of 18 U.S.C. 1001 et seq. and other provisions of law.
    (1) The nature of the supervision that an applicant will receive or 
exercise as an associated person with a registered entity is an 
important matter bearing upon the public interest. In meeting the 
burden of showing that the proposed association is consistent with the 
public interest, the application and supporting documentation must 
demonstrate that the proposed supervision, procedures, or terms and 
conditions of employment are reasonably designed to prevent a 
recurrence of the conduct that led to imposition of the bar. As an 
associated person, the applicant will be limited to association in a 
specified capacity with a particular registered entity and may also be 
subject to specific terms and conditions.
    (2) Normally, the applicant's burden of demonstrating that the 
proposed association is consistent with the public interest will be 
difficult to meet where the applicant is to be supervised by, or is to 
supervise, another barred individual. In addition, where an applicant 
wishes to become the sole proprietor of a registered entity and thus is 
seeking Commission consent notwithstanding an absence of supervision, 
the applicant's burden will be difficult to meet.
    (3) In addition to the factors set forth in paragraph (d) of this 
section, the Commission will consider the nature of the findings that 
resulted in the bar when making its determination as to whether the 
proposed association is consistent with the public interest. In this 
regard, attention is directed to Sec.  202.5(e) of the Commission's 
Rules on Informal and Other Procedures, 17 CFR 202.5(e). Among other 
things, Sec.  202.5(e) sets forth the Commission's policy ``not to 
permit a * * * respondent [in an administrative proceeding] to consent 
to * * * [an] order that imposes a sanction while denying the 
allegations in the * * * order for proceedings.'' Consistent with the 
rationale underlying that policy, and in order to avoid the appearance 
that an application made pursuant to this section was granted on the 
basis of such denial, the Commission will not consider any application 
that attempts to reargue or

[[Page 86480]]

collaterally attack the findings that resulted in the Commission's bar 
order.
* * * * *
    (c) Form of application. Each application shall be supported by an 
affidavit, signed by the applicant, that addresses the factors set 
forth in paragraph (d) of this section. The application shall be filed 
pursuant to Sec. Sec.  201.151, 152 and 153. Each application shall 
include as exhibits:
* * * * *

0
10. Section 201.322 is amended by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b), (c), and (d) as paragraphs (c), (d), 
and (e); and
0
c. Adding new paragraph (b).
    The revision and addition read as follows:


Sec.  201.322  Evidence: Confidential information, protective orders.

    (a) Procedure. In any proceeding as defined in Sec.  201.101(a), a 
party, any person who is the owner, subject or creator of a document 
subject to subpoena or which may be introduced as evidence, or any 
witness who testifies at a hearing may file a motion requesting a 
protective order to limit from disclosure to other parties or to the 
public documents or testimony that contain confidential information. 
The motion should include a general summary or extract of the documents 
without revealing confidential details.
    (b) Submission of confidential information. If review of the 
documents that are the subject of a request for a protective order is 
necessary to a ruling on the motion and the information as to which a 
protective order is sought is available to the movant, the motion shall 
be accompanied by:
    (1) A complete, sealed copy of the materials containing the 
information as to which a protective order is sought, with the 
allegedly confidential information marked as such, and with the first 
page of the document labeled ``Under Seal.'' If the movant seeks a 
protective order against disclosure to other parties as well as the 
public, copies of the documents shall not be served on other parties; 
and
    (2) A redacted copy of the materials containing the information as 
to which a protective order is sought, with the allegedly confidential 
information redacted. The redacted version shall indicate any omissions 
with brackets or ellipses, and its pagination and depiction of text on 
each page shall be identical to that of the sealed version. A redacted 
copy need not accompany a motion requesting a protective order if the 
materials would be redacted in their entirety.
* * * * *

0
11. Section 201.351 is amended by:
0
a. Revising the section heading;
0
b. Revising paragraph (b);
0
c. Redesignating paragraph (c) as paragraph (d); and
0
d. Adding new paragraph (c).
    The revisions and addition read as follows:


Sec.  201.351  Transmittal of documents to Secretary; record index; 
electronic copy of exhibits; certification.

* * * * *
    (b) Preparation, certification of record index. Promptly after the 
close of the hearing, the hearing officer shall transmit to the 
Secretary an index of the originals of any motions, exhibits or any 
other documents filed with or accepted into evidence by the hearing 
officer that have not been previously transmitted to the Secretary, and 
the Secretary shall prepare a record index. Prior to issuance of an 
initial decision, or if no initial decision is to be prepared, within 
30 days of the close of the hearing, the Secretary shall transmit the 
record index to the hearing officer and serve a copy of the record 
index on each party. Any person may file proposed corrections to the 
record index with the hearing officer within three days of service of 
the record index. Any opposition to the proposed corrections shall be 
filed within three days of service of the proposed corrections. The 
hearing officer shall, by order, direct whether any corrections to the 
record index shall be made. The Secretary shall make such corrections, 
if any, and issue a revised record index. If an initial decision is to 
be issued, the initial decision shall include a certification that the 
record consists of the items set forth in the record index or revised 
record index issued by the Secretary.
    (c) Electronic exhibits. No later than five days after the 
Secretary serves a final record index, the parties shall submit 
electronically to the Secretary a copy of all exhibits that were 
admitted, or offered and not admitted, during the hearing, and any 
other exhibits that were admitted after the hearing. The parties shall 
submit such evidence in the form and manner to be specified by the 
Office of the Secretary in the materials posted on the Commission's 
website.
    (1) Certification of Inability to Submit Exhibits Electronically. A 
person who reasonably cannot submit exhibits electronically must file a 
certification under Sec.  201.351(c)(1) that explains why the person 
reasonably cannot comply. The filing also must indicate the expected 
duration of the person's reasonable inability to comply, such as 
whether the certification is intended to apply to a solitary submission 
or all submissions made during the proceeding. The certification is 
immediately effective. Upon filing the certification, it will be part 
of the record of the proceeding, and the person shall submit originals 
of any exhibits that have not already been submitted to the Secretary 
by other means.
    (2) Signature requirement. Electronic submissions that require a 
signature pursuant to Sec.  201.153 may be signed with an ``/s/'' 
notation, but in that event, the use of the filer's login and password 
to file a document shall be deemed the signature of the person making 
the submission for purposes of Sec.  201.153.
    (3) Certification. The parties shall certify that exhibits and 
other documents or items submitted to the Secretary under this section 
are true and accurate copies of exhibits that were admitted, or offered 
and not admitted, during the hearing, or any other exhibits that were 
admitted after the hearing.
* * * * *

0
12. Section 201.420 is amended by revising paragraph (e) and adding 
paragraph (f) to read as follows:


Sec.  201.420  Appeal of determinations by self-regulatory 
organizations.

* * * * *
    (e) Certification of the record; service of the index. Fourteen 
days after receipt of an application for review or a Commission order 
for review, the self-regulatory organization shall certify and file 
electronically in the form and manner to be specified by the Office of 
the Secretary in the materials posted on the Commission's website one 
unredacted copy of the record upon which the action complained of was 
taken.
    (1) The self-regulatory organization also shall file electronically 
with the Commission one copy of an index to such record, and shall 
serve upon each party one copy of the index. If such index contains any 
sensitive personal information, as defined in paragraph (e)(2) of this 
section, the self-regulatory organization also shall file 
electronically with the Commission one redacted copy of such index, 
subject to the requirements of paragraph (e)(2) of this section.
    (2) Sensitive personal information. Sensitive personal information 
is defined as a Social Security number, taxpayer identification number, 
financial account number, credit card or debit card number, passport 
number, driver's license number, state-issued identification number, 
home address

[[Page 86481]]

(other than city and state), telephone number, date of birth (other 
than year), names and initials of minor children, as well as any 
unnecessary health information identifiable by individual, such as an 
individual's medical records. Sensitive personal information shall not 
be included in, and must be redacted or omitted from, all filings 
subject to:
    (i) Exceptions. The following information may be included and is 
not required to be redacted from filings:
    (A) The last four digits of a financial account number, credit card 
or debit card number, passport number, driver's license number, and 
state-issued identification number;
    (B) Home addresses and telephone numbers of parties and persons 
filing documents with the Commission;
    (C) Business telephone numbers; and
    (D) Copies of unredacted filings by regulated entities or 
registrants that are available on the Commission's public website.
    (f) Certification. Any filing made pursuant to this section, other 
than the record upon which the action complained of was taken, must 
include a certification that any information described in paragraph 
(e)(2) of this section has been omitted or redacted from the filing.

0
13. Section 201.440 is amended by revising paragraph (d) and adding 
paragraph (e) to read as follows:


Sec.  201.440  Appeal of determinations by the Public Company 
Accounting Oversight Board.

* * * * *
    (d) Certification of the record; service of the index. Within 
fourteen days after receipt of an application for review, the Board 
shall certify and file electronically in the form and manner to be 
specified by the Office of the Secretary in the materials posted on the 
Commission's website one unredacted copy of the record upon which it 
took the complained-of action.
    (1) The Board shall file electronically with the Commission one 
copy of an index of such record, and shall serve one copy of the index 
on each party. If such index contains any sensitive personal 
information, as defined in paragraph (d)(2) of this section, the Board 
also shall file electronically with the Commission one redacted copy of 
such index, subject to the requirements of paragraphs (d)(2) of this 
section.
    (2) Sensitive personal information. Sensitive personal information 
is defined as a Social Security number, taxpayer identification number, 
financial account number, credit card or debit card number, passport 
number, driver's license number, state-issued identification number, 
home address (other than city and state), telephone number, date of 
birth (other than year), names and initials of minor children, as well 
as any unnecessary health information identifiable by individual, such 
as an individual's medical records. Sensitive personal information 
shall not be included in, and must be redacted or omitted from, all 
filings subject to:
    (i) Exceptions. The following information may be included and is 
not required to be redacted from filings:
    (A) The last four digits of a financial account number, credit card 
or debit card number, passport number, driver's license number, and 
state-issued identification number;
    (B) Home addresses and telephone numbers of parties and persons 
filing documents with the Commission;
    (C) Business telephone numbers; and
    (D) Copies of unredacted filings by regulated entities or 
registrants that are available on the Commission's public website.
    (e) Certification. Any filing made pursuant to this section, other 
than the record upon which the action complained of was taken, must 
include a certification that any information described in paragraph 
(d)(2) of this section has been omitted or redacted from the filing.

    By the Commission.

    Dated: November 17, 2020.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-25747 Filed 12-29-20; 8:45 am]
BILLING CODE 8011-01-P