[Federal Register Volume 83, Number 2 (Wednesday, January 3, 2018)]
[Proposed Rules]
[Pages 291-302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27967]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 200

[Release Nos. 34-82373; FOIA-192; File No. S7-09-17]
RIN 3235-AM25


Freedom of Information Act Regulations

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'' or 
``SEC'') is publishing for comment proposed amendments to the 
Commission's regulations under the Freedom of Information Act 
(``FOIA''). This rule proposes revisions to the Commission's 
regulations under the FOIA to reflect changes required by the FOIA 
Improvement Act of 2016 (``Improvement Act''); and clarify, update, and 
streamline the language of several procedural provisions.

DATES: Comments should be received by February 2, 2018.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form located at 
http://www.sec.gov/rules/proposed.shtml;
     Send an email to [email protected], including File 
Number S7-09-17 on the subject line; or
     Use the Federal eRulemaking Portal located at http://www.regulations.gov, following the instructions for submitting 
comments.

Paper Comments

     Send paper comments to Secretary, Securities and Exchange 
Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number S7-09-17. This file number 
should be included on the subject line if email is used. To help us 
process and review your comments more efficiently, please use only one 
method. The Commission will post all comments on the Commission's 
internet website (http://www.sec.gov/rules/proposed.shtml). Comments 
are also available for website viewing and printing in the Commission's 
Public Reference Room, 100 F Street NE, Washington DC 20549, on 
official working days between the hours of 10:00 a.m. and 3:00 p.m. All 
comments received will be posted without change.

[[Page 292]]

Persons submitting comments are cautioned that we do not redact or edit 
personal identifying information from comment submissions. You should 
submit only information that you wish to make available publicly. 
Studies, memoranda, or other substantive items may be added by the 
Commission or staff to the comment file during this rulemaking. A 
notification of the inclusion in the comment file of any such materials 
will be made available on the Commission's website. To ensure direct 
electronic receipt of such notifications, sign up through the ``Stay 
Connected'' option at www.sec.gov to receive notifications by email.

FOR FURTHER INFORMATION CONTACT: Mark Tallarico, Senior Counsel, Office 
of the General Counsel, (202) 551-5132; Securities and Exchange 
Commission, 100 F Street NE, Washington, DC 20549-5041.

SUPPLEMENTARY INFORMATION:

I. Background

    The Commission is proposing revisions to its regulations under the 
FOIA, 5 U.S.C. 552. As required by the Improvement Act, Public Law 114-
185, 130 Stat. 538, the Commission has reviewed its FOIA regulations to 
identify any changes that are necessary to conform its regulations to 
the Improvement Act. In connection with that review, the Commission has 
identified both changes necessitated by the Improvement Act and other 
areas where it would be beneficial to clarify, update, and streamline 
the language of several procedural provisions. Due to the scope of the 
proposed revisions, the proposed rule would replace the Commission's 
current FOIA regulations in their entirety (17 CFR 200.80 through 
200.80f).

II. Discussion of the Proposed Rule

A. Changes To Conform to the Improvement Act

    The Commission is proposing four changes to the Commission's FOIA 
regulations to conform them to the Improvement Act. First, the proposed 
rule revises Section 200.80(a) to provide that records the FOIA 
requires to be made available for public inspection will be available 
in electronic format. Second, the proposed rule revises Section 
200.80(c) to provide that a request for records may be denied to the 
extent the exemptions in 5 U.S.C. 552(b) apply to the requested records 
and Commission staff reasonably foresees that disclosure would harm an 
interest protected by the applicable exemption, the disclosure of the 
requested records is prohibited by law, or the requested records are 
otherwise exempted from disclosure under 5 U.S.C. 552(b)(3). Third, the 
proposed rule revises the regulations to state that FOIA requesters may 
seek assistance from the Office of FOIA Services' FOIA Public Liaisons 
(Sections 200.80(b), (d), and (e)) and to advise FOIA requesters of 
their right to seek dispute resolution services offered by the Office 
of Government Information Services in the case of a denied request 
(Section 200.80(e)). Fourth, the proposed rule revises Section 
200.80(g) to incorporate the amendments to the FOIA requiring agencies 
to waive fees, under certain circumstances, if they do not comply with 
the time limits under the FOIA.

B. Proposed Amendments To Update, Clarify, and Streamline the FOIA 
Regulations

    The remaining proposed changes are to certain procedural 
provisions. Those changes clarify, update, and streamline the 
Commission's regulations, and most of the changes make the regulations 
consistent with existing practices. The proposed regulations, among 
other things, update the various methods for submitting FOIA requests 
and administrative appeals (Sections 200.80(b) and (f)); describe 
certain information that is required when submitting requests for 
records about oneself or another individual (Section 200.80(b)); 
explain the situations in which the Office of FOIA Services staff will 
work with other Federal agencies that have an interest in agency 
records that may be responsive to a request (Section 200.80(c)); 
incorporate language that allows the Office of FOIA Services to seek a 
one-time clarification of an ambiguous request and toll the time period 
for responding to the request until the requester clarifies the request 
(Section 200.80(c)); clarify when the 20-day statutory time limit for 
responding to requests begins (i.e., when requests are received by the 
Office of FOIA Services and when requests are modified so that they 
reasonably describe the records sought) (Section 200.80(d)); clarify 
the Office of FOIA Services' system for multi-track processing of 
requests (Section 200.80(d)); and enable the Office of FOIA Services to 
aggregate requests involving related matters where it appears that 
multiple requests together constitute a single request that would 
involve unusual circumstances (Section 200.80(d)).
    Two of the procedural changes impose possible burdens on 
requesters. First, requesters must include their full names and return 
addresses in their request (Section 200.80(b)). Second, the Office of 
FOIA Services may aggregate related requests from one requester (or a 
group of requesters), and that aggregation may permit the Office of 
FOIA Services to extend deadlines for processing the request or place 
the request in a queue for complex requests. Other procedural changes 
provide more flexibility to requesters. For example, the proposed rule 
provides that administrative appeals need only be sent to the Office of 
FOIA Services (no longer requiring appeals to be sent to both the 
Office of FOIA Services and the Office of the General Counsel) (Section 
200.80(f)).
    The proposed rule also clarifies, consistent with existing 
practice, that the Office of FOIA Services will close requests if 
requesters do not take certain steps within set time periods. For 
example, requesters must respond to the Office of FOIA Services' one-
time clarification request within 30 calendar days (Section 200.80(d)); 
agree to pay anticipated fees within 30 calendar days of the Office of 
FOIA Services' fee estimate (Section 200.80(g)); and, when required to 
do so, make an advance payment within 30 calendar days of the Office of 
FOIA Services' fee notice (Section 200.80(g)).

C. Proposed Revisions to Fee Provisions

    The proposed rule also revises the Office of FOIA Services' fee 
procedures and fee schedule in Section 200.80(g). Two of the revisions 
could change current practices. First, the proposed rule allows the 
Office of FOIA Services to collect fees before sending records to a 
requester instead of seeking payment when the records are sent. Second, 
the proposed rule removes from the rule the set duplication fee of 24 
cents per page and instead refers requesters to the FOIA fee page on 
the Commission's website, where the current fee will be posted.\1\ The 
duplication fee posted on the website will reflect the direct costs of 
photocopying or producing a printout, taking into account various 
factors including the salary of the employee(s) performing the work and 
the cost of materials. The duplication fee posted on the Commission's 
website will be adjusted as appropriate to reflect current costs. 
Eliminating the set duplication fee will allow the Office of FOIA 
Services to align its photocopying and printout fees with the actual 
costs of duplicating records for production to requesters (in paper 
format) without having to amend the regulations.
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    \1\ The Commission anticipates that the initial posted fee will 
be 15 cents per page, and the Commission is already charging this 
lower cost.

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    The proposed rule also codifies several existing practices. For 
example, it states that fees for duplicating records onto electronic 
medium (including the costs associated with scanning materials, where 
applicable) will be the direct costs of duplicating records for 
requesters; clarifies that the Office of FOIA Services will not process 
any requests once it determines that a fee may be charged unless the 
requester commits to pay the estimated fees; adds and clarifies fee-
related definitions; clarifies the direct costs that can be charged by 
the Office of FOIA Services as part of search, review, and duplication 
fees; and sets forth the various methods by which FOIA processing fees 
can be paid.

D. Proposed Elimination of Certain Provisions

    The proposed rule eliminates certain provisions in the Commission's 
current FOIA regulations that repeat information contained in the FOIA 
statute and do not need to be in the Commission's regulations. Among 
the provisions that the Commission is proposing to remove are: (1) The 
list of information the FOIA requires the Commission to publish in the 
Federal Register (Section 200.80(a)(1) of the current regulations), (2) 
the categories of records the FOIA requires the Commission to make 
available for public inspection (Section 200.80(a)(2) of the current 
regulations), and (3) the nine categories of records that are exempt 
from disclosure under 5 U.S.C. 552(b) (Section 200.80(b) of the current 
regulations). Finally, the Commission is proposing to eliminate 
Appendices A through F. Appendices A through D and F provide general 
information that is available on the Commission's website to the extent 
it is relevant to the public. The information in Appendix E is revised 
and updated and moved to Section 200.80(g) (Fees) of the proposed 
regulations.

E. Structure of the Proposed Rule

    The structure of the regulations will be revised accordingly: 
Section 200.80(a) (General provisions); Section 200.80(b) (Requirements 
for making requests); Section 200.80(c) (Processing requests); Section 
200.80(d) (Time limits and expedited processing); Section 200.80(e) 
(Responses to requests); Section 200.80(f) (Administrative appeals); 
and Section 200.80(g) (Fees).

III. General Request for Comments

    We request and encourage any interested person to submit comments 
on any aspect of the proposals, other matters that might have an impact 
on the proposals, and suggestions for additional changes. We note that 
comments are of particular assistance to us if accompanied by analysis 
of the issues addressed in those comments and any data that may support 
the analysis. We urge commenters to be as specific as possible.

IV. Economic Analysis

    The Commission is sensitive to the economic effects, including the 
costs and benefits, that result from its rules. Section 23(a)(2) of the 
Securities Exchange Act of 1934 (``Exchange Act'') requires the 
Commission, in making rules pursuant to any provision of the Exchange 
Act, to consider among other matters the impact any such rule would 
have on competition and prohibits any rule that would impose a burden 
on competition that is not necessary or appropriate in furtherance of 
the purposes of the Exchange Act.\2\ Further, Section 3(f) of the 
Exchange Act requires the Commission, when engaging in rulemaking where 
it is required to consider or determine whether an action is necessary 
or appropriate in the public interest, to consider, in addition to the 
protection of investors, whether the action will promote efficiency, 
competition, and capital formation.\3\ As discussed further below, the 
Commission preliminarily believes that the economic effects of the 
proposed amendments would be limited. The Commission notes that, where 
possible, it has attempted to quantify the costs, benefits, and effects 
on efficiency, competition, and capital formation expected to result 
from the proposed amendments. In some cases, however, the Commission is 
unable to quantify the economic effects because it lacks the 
information necessary to provide a reasonable estimate. Additionally, 
some of the potential benefits of the amendments are inherently 
difficult to quantify.
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    \2\ 15 U.S.C. 78w(a).
    \3\ 15 U.S.C. 78c(f).
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    The proposed revisions fall into four categories. First, as 
discussed in more detail above, the Commission is proposing amendments 
to its regulations to conform the regulations to the Improvement Act. 
Consistent with the Improvement Act, the proposed rule provides: (1) 
Records required to be made available pursuant to the FOIA will be made 
available in electronic format; (2) records will be withheld under the 
exemptions in 5 U.S.C. 552(b) only if Commission staff reasonably 
foresees that disclosure would harm an interest protected by the 
applicable exemption or disclosure is prohibited by law; (3) FOIA 
requesters may seek assistance from the Office of FOIA Services' FOIA 
Public Liaisons and will be advised that they have the right to seek 
dispute resolution services from the Office of Government Information 
Services if their request is denied; and (4) the Office of FOIA 
Services is required to waive fees, in certain circumstances, if it 
does not comply with the time limits under the FOIA. The Commission 
believes that these changes would have minimal impact on FOIA 
requesters because they largely codify the Commission's existing 
practices. To the extent the amendments result in these practices being 
followed more consistently, they could benefit the public by increasing 
the amount of information available, making more information available 
in an electronic format, and ensuring that requesters know of their 
right to seek alternative dispute resolution. The Commission also 
believes that the public could benefit from the increased transparency 
regarding these practices. The Commission does not expect these 
proposed amendments to result in additional costs to any member of the 
public.
    Second, the Commission is proposing amendments to procedural 
provisions, which are intended to better reflect and improve existing 
practice. Most of these changes codify existing Office of FOIA Services 
practice, including: (1) Adding to the regulation additional methods 
for submitting FOIA requests and administrative appeals; (2) clarifying 
the existing procedures for submitting requests for records about 
oneself or another individual; (3) clarifying the existing procedures 
for submitting a proper FOIA request and seeking clarification of a 
request; (4) clarifying existing procedures for submitting an 
administrative appeal; and (5) clarifying the existing practice that 
limits administrative appeals to written filings (i.e., there is no 
opportunity for personal appearance, oral argument, or hearing on 
appeal). The Commission does not expect these changes to result in 
additional costs to any member of the public. The Commission also 
expects that there would be some benefit to FOIA requesters from the 
increased transparency regarding these practices.
    Two proposed procedural changes could affect members of the public. 
First, FOIA requesters will be required to include their full names and 
addresses in their requests. Providing a full name and address is not 
itself burdensome, but some requesters may prefer to remain anonymous 
and could be deterred from submitting FOIA requests by this 
requirement. However,

[[Page 294]]

because nearly all FOIA requesters provide this information already, 
the Commission expects that the economic impact of the amendment will 
be minimal. Second, the Office of FOIA Services will be able to 
aggregate related requests from one requester (or a group of 
requesters). The Office of FOIA Services could aggregate requests that 
on their own do not involve ``unusual circumstances,'' as defined in 
the proposed regulations, or warrant placement in a track for complex 
requests, so aggregation may lead to extended deadlines for processing 
a request or cause a request to be handled after other complex 
requests. Based on past experience, the Commission expects that few 
requests will be aggregated. In addition, if the aggregation of 
requests results in the requests being placed in a track for complex 
requests that could extend the processing time, the requester could 
modify the request so that it can be processed more quickly. Thus, the 
Commission expects that the impact of this amendment also will be 
minimal.
    Third, the Commission is proposing to revise the Office of FOIA 
Services' fee procedures and fee schedule in several ways, including: 
(1) Eliminating from the rule the per page duplication fee for copying 
or printing requested records, and instead referring requesters to the 
FOIA fee page on the Commission's website; (2) allowing the Office of 
FOIA Services to collect fees before sending records to a requester 
instead of seeking payment when the records are sent; (3) clarifying 
the direct costs that can be charged by the Office of FOIA Services as 
part of its search, review, and duplication fees; and (4) codifying the 
existing Office of FOIA Services practice of charging requesters the 
actual cost of production for materials produced in an electronic 
format. In general, lowering fees associated with FOIA requests could 
encourage additional FOIA submissions, while raising fees could deter 
them. However, as discussed below, the Commission does not anticipate 
that any of its proposed changes to the Office of FOIA Services' fee 
procedures would impose significant new costs on FOIA requesters.
    With respect to the elimination of the set per page duplication 
fee, the Commission anticipates that the initial posted fee will be 15 
cents per page, and the Office of FOIA Services has already lowered its 
per page duplication fee from 24 cents to 15 cents to reflect its 
actual duplication costs. Even if the Office of FOIA Services were to 
increase the per page duplication fee in the future, the impact of any 
increase would likely be minimal. Information about the fees the 
Commission has collected for FOIA requests for the past six years 
serves as a baseline from which the Commission can estimate the 
economic effects of this proposed change. Table 1 shows the number of 
requests received and processed by the Commission during fiscal years 
2011 through 2016 and the fees the Commission collected. The fees 
collected by the Commission for processing FOIA requests include 
charges for staff time associated with locating, reviewing, and copying 
responsive documents. The Commission collects fees for duplication of 
24 cents per page for paper copies and the costs of production for 
other types of media. The fee schedule for FOIA requests is available 
on the Commission's website.

                               Table 1--FOIA Requests in Fiscal Years 2011 to 2016
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                                                                                                 Fees collected
                          Fiscal year                              Requests        Requests      for processing
                                                                   received        processed        requests
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2011..........................................................          11,555          11,562        $78,005.94
2012..........................................................          11,292          11,302         27,577.00
2013..........................................................          12,275          12,167         35,954.30
2014..........................................................          14,862          14,757         22,670.81
2015..........................................................          16,898          16,207         19,890.07
2016..........................................................          14,458          15,196         41,029.68
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    As shown in Table 1, from fiscal year 2011-2016, the Office of FOIA 
Services collected an average of $37,521.30 per year in fees for 
processing an average of 13,532 requests. These amounts correspond to 
an average fee of $2.77 collected per request processed.\4\ Even if all 
of those fees were for duplication (which they were not), a one cent 
per page increase in duplication fees would result in an increase in 
total fees collected of approximately $1,563.39,\5\ corresponding to an 
average fee of $2.89 collected per request processed.\6\
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    \4\ Calculated as $37,521.30/13,532 = $2.77.
    \5\ To arrive at this estimated increase, we divide $37,521.30 
in duplication fees by a cost of $0.24 per page to derive an 
estimate of approximately 156,339 pages of copies on average per 
fiscal year. 156,339 pages x $0.01 increase in per-page duplication 
fees = $1,563.39 in additional total processing fees.
    \6\ Calculated as ($37,521.30 + $1,563.39)/13,532 = $2.89.
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    With respect to the amendment providing that the FOIA Office can 
collect fees before sending records to a requester (instead of seeking 
payment when the records are sent), the Commission expects that any 
additional cost will be limited to a slight delay in receiving 
documents. The timing of the collection would not itself impose any 
additional costs on FOIA requesters because the timing would not alter 
the amount of fees charged. Any delay in receiving the documents would 
not be significant because a FOIA requester could make an electronic 
payment upon receipt of the request for payment, and the Office of FOIA 
Services would then provide the documents. The Commission notes that 
some requesters may choose to forego receiving the records in question 
if the fees are substantial, though even this impact may be muted 
because requesters would have been advised of and approved potential 
charges before requests are processed by the FOIA Office.
    The proposed clarification regarding direct costs and codification 
of existing practice with respect to fees for materials produced in an 
electronic format are consistent with existing practice, and the 
Commission therefore does not expect these amendments to impose any 
additional burden on the public. The other proposed changes to the 
Office of FOIA Services' fee procedures also codify existing processes 
and will therefore not impose any additional burden on requesters. 
These proposed changes include: (1) Clarifying that the Office of FOIA 
Services will not process any requests once it determines that a fee 
may be charged unless the requester commits to pay the estimated fees; 
and (2) adding and clarifying certain fee-related definitions. The 
Commission does not expect these amendments to result in additional 
costs to any member of the public. To the contrary, the Commission

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believes that the public could benefit from the increased transparency 
regarding these practices.
    Finally, the Commission is proposing to eliminate certain 
provisions in its FOIA regulations that are restatements of provisions 
in the FOIA statute. The Commission does not expect these amendments to 
result in any economic effects, as the elimination of these redundant 
provisions would not have any substantive consequence.
    The Commission believes that the proposed amendments would not have 
any significant impact on efficiency, competition, or capital 
formation. The Commission requests comment on all aspects of the 
benefits and costs of the proposal, including any anticipated impacts 
on efficiency, competition, or capital formation.

V. Regulatory Flexibility Act Certification

    Section 3(a) of the Regulatory Flexibility Act of 1980 (``RFA'') 
requires the Commission to undertake an initial regulatory flexibility 
analysis of the effect of the proposed rule amendments on small 
entities unless the Commission certifies that the proposal, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. As discussed above, most of the proposed changes are 
procedural. Many of the changes codify existing practices and are 
therefore unlikely to have any economic impact on requesters. With 
respect to the changes to the fee schedule, under the FOIA, agencies 
may recover only the direct costs of searching for, reviewing, and 
duplicating the records processed for requesters. These fees are 
typically nominal, and the proposed changes to the fees are therefore 
similarly nominal and would not have a significant economic impact on a 
FOIA requester, even a small entity. In accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that the 
proposed amendments to the FOIA regulations, if adopted, would not have 
a significant economic impact on a substantial number of small 
entities. The Commission requests comment regarding the appropriateness 
of its certification.

VI. Paperwork Reduction Act

    The proposed rule would not impose any new ``collection of 
information'' requirement as defined by the Paperwork Reduction Act of 
1995 (``PRA''), 44 U.S.C. 3501 et seq.; nor would it create any new 
filing, reporting, recordkeeping, or disclosure reporting requirements. 
Accordingly, we are not submitting the proposed rule to the Office of 
Management and Budget for review under the PRA.\7\ We request comment 
on whether our conclusion that there are no new collections of 
information is correct.
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    \7\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
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VII. Small Business Regulatory Enforcement Fairness Act

    Under the Small Business Regulatory Enforcement Fairness Act of 
1996, a rule is considered ``major'' where, if adopted, it results or 
is likely to result in: (i) An annual effect on the economy of $100 
million or more (either in the form of an increase or a decrease); (ii) 
a major increase in costs or prices for consumers or individual 
industries; or (iii) significant adverse effect on competition, 
investment, or innovation.\8\ We request comment on the potential 
impact of the proposed rule on the economy on an annual basis, any 
potential increase in costs or prices for consumers or individual 
industries, and any potential effect on competition, investment, or 
innovation. Commenters are requested to provide empirical data and 
other factual support for their view to the extent possible.
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    \8\ Public Law 104-121, 110 Stat. 857 (1996) (codified in 
various sections of 5 U.S.C., 15 U.S.C. and as a note to 5 U.S.C. 
601).
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VIII. Statutory Authority and Text of Proposed Rule Amendments

    The amendments contained herein are being proposed under the 
authority set forth in Public Law 114-185 Sec.  3(a), 130 Stat. 538; 5 
U.S.C. 552; 15 U.S.C. 77f(d), 77s, 77ggg(a), 78d-1, 78w(a), 80a-37(a), 
80a-44(b), 80b-10(a), and 80b-11(a).

List of Subjects in 17 CFR Part 200

    Administrative practice and procedure; Freedom of information.

Text of Proposed Amendments

    For the reasons stated in the preamble, the Commission proposes to 
amend 17 CFR part 200 as follows:

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

Subpart D--Information and Requests

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

    Authority: 5 U.S.C. 552, as amended, 15 U.S.C. 77f(d), 77s, 
77ggg(a), 77sss, 78m(F)(3), 78w, 80a-37, 80a-44(a), 80a-44(b), 80b-
10(a), and 80b-11, unless otherwise noted.
    Section 200.80 also issued under Public Law 114-185 sec. 3(a), 
130 Stat. 538; 5 U.S.C. 552; 15 U.S.C. 77f(d), 77s, 77ggg(a), 78d-1, 
78w(a), 80a-37(a), 80a-44(b), 80b-10(a), and 80b-11(a), unless 
otherwise noted.
    Section 200.82 also issued under 15 U.S.C. 78n.
    Section 200.83 also issued under E.O. 12600, 3 CFR, 1987 Comp., 
p. 235.

0
2. Revise Sec.  200.80 to read as follows:


Sec.  200.80   Securities and Exchange Commission records and 
information.

    (a) General provisions. (1) This section contains the rules that 
the U.S. Securities and Exchange Commission follows in processing 
requests for records under the Freedom of Information Act (``FOIA''), 5 
U.S.C. 552, as amended. These rules should be read in conjunction with 
the text of the FOIA and the Uniform Freedom of Information Fee 
Schedule and Guidelines published by the Office of Management and 
Budget (``OMB Guidelines''). Requests made by individuals for records 
about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are 
processed in accordance with the Commission's Privacy Act regulations 
at subpart H, as well as this section.
    (2) Proactive disclosure of Agency records. (i) Records that the 
FOIA requires to be made available for public inspection in an 
electronic format (pursuant to 5 U.S.C. 552(a)(2)) are accessible 
through the Commission's website, http://www.sec.gov. Each division and 
office of the Commission is responsible for determining which of its 
records are required to be made publicly available in an electronic 
format, as well as identifying additional records of interest to the 
public that are appropriate for public disclosure, and for posting and 
indexing such records. Each division and office shall ensure that its 
posted records and indexes are reviewed and updated on an ongoing 
basis.
    (ii) Those who do not have access to the internet may obtain these 
records by contacting the Commission's Office of FOIA Services by 
telephone at 202-551-7900, by email at [email protected], or by visiting 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549-2736, on official working days between the hours of 10:00 a.m. 
and 3:00 p.m.
    (b) Requirements for making requests for records-- (1) How made and 
addressed. The Commission has a centralized system for responding to 
FOIA requests, with all requests processed by the Office of FOIA 
Services. Requests for agency records must be in writing and include 
the requester's full name and a legible return address. Requesters may 
also include other contact information, such as an email address and a 
telephone number. Requests may be submitted by

[[Page 296]]

U.S. mail or delivery service and addressed to the Freedom of 
Information Act Officer, SEC, 100 F Street NE, Washington, DC 20549. 
Requests may also be made by facsimile (202-772-9337), email 
([email protected]), or online at the Commission's website (http://www.sec.gov). The request (and envelope, if the request is mailed or 
hand-delivered) should be marked ``Freedom of Information Act 
Request.''
    (2) Requests for records about oneself or another individual. (i) A 
requester who is making a request for records about himself or herself 
must comply with the verification of identity provisions set forth in 
subpart H of this part to obtain any documents that would not be 
available to the public under the FOIA.
    (ii) For requests for records about another individual, a requester 
may receive greater access by submitting either a notarized 
authorization signed by the individual permitting disclosure of his or 
her records or proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary). The Office of FOIA Services can 
require a requester to supply additional information if necessary to 
verify that a particular individual has consented to disclosure.
    (3) Description of records sought. A FOIA request must reasonably 
describe the agency records sought with sufficient specificity with 
respect to names, dates, and subject matter to enable personnel within 
the divisions and offices of the Commission to locate them with a 
reasonable effort. Before submitting a request, a requester may contact 
the Office of FOIA Services' FOIA Public Liaisons to discuss the 
records they are seeking and to receive assistance in describing the 
records (contact information for these individuals is on the 
Commission's website, http://www.sec.gov). If the Office of FOIA 
Services determines that a request does not reasonably describe the 
records sought, it shall inform the requester what additional 
information is needed or how the request is insufficient. A requester 
who is attempting to reformulate or modify such a request may discuss 
the request with the Office of FOIA Services' designated FOIA contact, 
its FOIA Public Liaisons, or a representative of the Office of FOIA 
Services, each of whom is available to assist the requester in 
reasonably describing the records sought. When a requester fails to 
provide sufficient information within 30 calendar days after having 
been asked to reasonably describe the records sought, the Office of 
FOIA Services shall notify the requester in writing that the request 
has not been properly made, that no further action will be taken, and 
that the FOIA request is closed. Such a notice constitutes an adverse 
determination under paragraph (e)(2) of this section for which the 
Office of FOIA Services shall follow the procedures for a denial letter 
under paragraph (e)(2) of this section. In cases where a requester has 
modified his or her request so that it reasonably describes the 
requested records, the date of receipt for purposes of the 20-day time 
limit of paragraph (d) of this section shall be the date of receipt of 
the modified request.
    (c) Processing requests--(1) In general. (i) A request for records 
may be denied to the extent the exemptions in 5 U.S.C. 552(b) apply to 
the requested records and:
    (A) Commission staff reasonably foresees that disclosure would harm 
an interest protected by the applicable exemption; or
    (B) The disclosure of the requested records is prohibited by law or 
is exempt from disclosure under 5 U.S.C. 552(b)(3).
    (ii) In determining which records are responsive to a request, the 
Office of FOIA Services ordinarily will include only records in the 
agency's possession as of the date that it begins its search.
    (2) Re-routing of misdirected requests. Any division or office 
within the Commission that receives a written request for records 
should promptly forward the request to the Office of FOIA Services for 
processing.
    (3) Consultation, referral, and coordination. When reviewing 
records located in response to a request, the Office of FOIA Services 
will determine whether another Federal agency is better able to 
determine if the record is exempt from disclosure under the FOIA. As to 
any such record, the Office of FOIA Services will proceed in one of the 
following ways:
    (i) Consultation. In instances where a record is requested that 
originated within a division or office within the Commission and 
another Federal agency has a significant interest in the record (or a 
portion thereof), the Office of FOIA Services will consult with that 
Federal agency before responding to a requester. When the Office of 
FOIA Services receives a request for a record (or a portion thereof) in 
its possession that originated with another entity within the Federal 
Government that is not subject to the FOIA, the Office of FOIA Services 
will typically consult with that entity prior to making a release 
determination.
    (ii) Referral. When the Office of FOIA Services receives a request 
for a record (or a portion thereof) in its possession that originated 
with another Federal agency subject to the FOIA, the Office of FOIA 
Services will typically refer the record to that agency for direct 
response to the requester. Ordinarily, the agency that originated the 
record will be presumed to be best able to make the disclosure 
determination. However, if the Office of FOIA Services and the 
originating agency jointly agree that the Office of FOIA Services is in 
the best position to make a disclosure determination regarding the 
record, then the record may be handled as a consultation and processed 
by the Office of FOIA Services. Whenever the Office of FOIA Services 
refers a record to another Federal agency for direct response to the 
requester, the Office of FOIA Services shall notify the requester in 
writing of the referral and inform the requester of the name of the 
agency to which the record was referred.
    (iii) Coordination. If disclosure of the identity of the agency to 
which the referral would be made could harm an interest protected by an 
exemption, the Office of FOIA Services generally will coordinate with 
the originating agency to seek its views as to disclosure of the record 
and then advise the requester of the release determination for the 
record that is the subject of the coordination.
    (iv) Classified information. On receipt of any request involving 
classified information, the Commission staff in possession of the 
information shall determine whether the information is currently and 
properly classified and take appropriate action to ensure compliance 
with subpart J of this part. Whenever a request involves a record 
containing information that has been classified or may be appropriate 
for classification by another Federal agency under an executive order 
concerning the classification of records, the Office of FOIA Services 
shall refer the responsibility for responding to the request regarding 
that information to the agency that classified the information, or that 
should consider the information for classification. Whenever agency 
records contain information that has been classified by another Federal 
agency, the Office of FOIA Services shall refer the responsibility for 
responding to that portion of the request to the agency that classified 
the underlying information except in circumstances that come within 
paragraph (c)(3)(iii) of this section.
    (d) Time limits and expedited processing. -- (1) In general. The 
Office of FOIA Services will seek to respond to requests according to 
their order of receipt within each track of the Office of FOIA 
Services' multitrack processing

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system as described in paragraph (d)(4) of this section.
    (2) Initial response. A determination whether to comply with a FOIA 
request shall be made within 20 days (excepting Saturdays, Sundays, and 
legal public holidays) from the date the Office of FOIA Services 
receives a request for a record under this part, except when the 
circumstances described in paragraphs (d)(3), (5), or (7) of this 
section are applicable. In instances where a FOIA requester has 
misdirected a request that is re-routed pursuant to paragraph (c)(2) of 
this section, the response time shall commence on the date that the 
request is first received by the Office of FOIA Services, but in any 
event not later than 10 working days after the request is first 
received by any division or office of the Commission.
    (3) Clarification of request. The Office of FOIA Services may seek 
clarification of a request (or a portion of a request) for records. The 
request for clarification generally should be in writing. The first 
time the Office of FOIA Services seeks clarification, the time for 
responding to the entire request (set forth in paragraph (d)(2) of this 
section) is tolled until the requester responds to the clarification 
request. The tolled period will end when the Office of FOIA Services 
receives a response from the requester that reasonably describes the 
requested records. If the Office of FOIA Services asks for 
clarification and does not receive a written response from the 
requester within 30 calendar days from the date of the clarification 
request, the Office of FOIA Services will presume that the requester is 
no longer interested in the record(s) sought and notify the requester 
that any portion of the request as to which clarification was sought 
has been closed.
    (4) Multitrack processing. The Office of FOIA Services shall use a 
multitrack system for processing FOIA requests. The Office of FOIA 
Services shall designate one track for requests that are granted 
expedited processing, in accordance with the standards set forth in 
paragraph (d)(7) of this section. The Office of FOIA Services shall use 
two or more additional processing tracks that distinguish between 
simple and more complex requests based on the estimated amount of work 
and/or time needed to process the request. Among the factors the Office 
of FOIA Services may consider are the time to perform a search, the 
number of pages that must be reviewed in processing the request, and 
the need for consultations or referrals. The Office of FOIA Services 
shall advise requesters of the track into which their request falls 
and, when appropriate, shall offer the requesters an opportunity to 
narrow the scope of their request so that it can be placed in a 
different processing track.
    (5) Unusual circumstances. The Office of FOIA Services may extend 
the time period for processing a FOIA request in ``unusual 
circumstances.'' To extend the time, the Office of FOIA Services shall 
notify the requester in writing of the unusual circumstances involved 
and of the date by which processing of the request is expected to be 
completed. If the extension exceeds 10 working days, the Office of FOIA 
Services shall provide the requester, in writing, with an opportunity 
to modify the request or arrange an alternative time frame for 
processing the request or a modified request. The Office of FOIA 
Services shall also make available its FOIA Public Liaisons to assist 
in the resolution of any disputes and notify the requester of the right 
to seek dispute resolution services from the Office of Government 
Information Services. For purposes of this section, ``unusual 
circumstances'' include:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request.
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are the subject 
of a single request.
    (iii) The need to consult with another Federal agency having a 
substantial interest in the determination of the FOIA request or among 
two or more divisions or offices within the Commission having 
substantial subject-matter interest therein.
    (6) Aggregating requests. The Office of FOIA Services may aggregate 
requests in cases where it reasonably believes that multiple requests, 
submitted either by a requester or by a group of requesters acting in 
concert, together constitute a single request that would involve 
unusual circumstances, as defined in paragraph (d)(5) of this section. 
Multiple requests involving unrelated matters shall not be aggregated. 
The Office of FOIA Services shall advise requesters, in writing, when 
it determines to aggregate multiple requests and comply with paragraph 
(d)(5) of this section. Aggregation of requests for this purpose will 
be conducted independent of aggregation requests for fee purposes under 
paragraph (g)(8) of this section.
    (7) Expedited processing. The Office of FOIA Services shall grant a 
request for expedited processing if the requester demonstrates a 
``compelling need'' for the records. ``Compelling need'' means that a 
failure to obtain the requested records on an expedited basis could 
reasonably be expected to pose an imminent threat to an individual's 
life or physical safety or, if the requester is primarily engaged in 
disseminating information, an urgency to inform the public about an 
actual or alleged Federal Government activity.
    (i) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (ii) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining why there is a ``compelling 
need'' for the records.
    (iii) The Office of FOIA Services shall determine whether to grant 
or deny a request for expedited processing and provide notice of that 
determination within 10 calendar days of receipt of the request by the 
Office of FOIA Services. A request for records that has been granted 
expedited processing shall be processed as soon as practicable. If a 
request for expedited processing is denied, any appeal of that 
determination shall be decided expeditiously.
    (8) Appeals. An administrative appeal shall be decided within 20 
days (excepting Saturdays, Sundays, and legal public holidays) from the 
date the Office of FOIA Services receives such appeal except in the 
unusual circumstances specified in paragraph (d)(5) of this section. In 
those unusual circumstances, the 20-day time limit may be extended by 
written notice to the person making the appeal setting forth the 
unusual circumstances for such extension and the date on which a 
determination is expected to be dispatched. No such notice shall 
specify a date that would result in an extension of more than 10 
working days.
    (e) Responses to requests for records-- (1) Acknowledgment of 
requests. Upon receipt of a request for records, the Office of FOIA 
Services ordinarily will send the requester an acknowledgment letter 
that provides an assigned request number for further reference and, if 
necessary, confirms whether the requester is willing to pay fees.
    (2) Responses to requests. (i) Any letter determining whether to 
comply with a request will inform the requester of the right to seek 
assistance from the Office of FOIA Services' FOIA Public Liaisons.
    (ii) If the Office of FOIA Services makes a determination to grant 
a request in whole or in part, it shall notify the requester in writing 
of such determination, disclose records to the requester, and collect 
any applicable fees.

[[Page 298]]

    (iii) If the Office of FOIA Services makes an adverse determination 
regarding a request, it shall notify the requester of that 
determination in writing. Adverse determinations, or denials of 
requests, include decisions that: The requested record is exempt, in 
whole or in part; the request does not reasonably describe the records 
sought; the requested record does not exist (or is not subject to the 
FOIA), cannot be located, or has previously been destroyed; or the 
requested record is not readily producible in the form or format sought 
by the requester. Adverse determinations also include designations of 
requesters' fee category, denials of fee waiver requests, or denials of 
requests for expedited processing.
    (iv) An adverse determination letter shall be signed and include:
    (A) The names and titles or positions of each person responsible 
for the adverse determination;
    (B) A brief statement of the reasons for the adverse determination, 
including any FOIA exemption applied by the official denying the 
request;
    (C) For records disclosed in part, markings or annotations to show 
the applicable FOIA exemption(s) and the amount of information deleted, 
unless doing so would harm an interest protected by an applicable 
exemption. The location of the information deleted shall also be 
indicated on the record, if feasible;
    (D) An estimate of the volume of any records or information 
withheld by providing the number of pages withheld in their entirety or 
some other reasonable form of estimation. This estimate is not required 
if the volume is otherwise indicated by deletions marked on the records 
that are disclosed in part or if providing an estimate would harm an 
interest protected by an applicable FOIA exemption;
    (E) A statement that the adverse determination may be appealed 
under paragraph (f) of this section, and a description of the 
requirements for filing an administrative appeal set forth in that 
paragraph; and
    (F) A statement of the right of the requester to seek dispute 
resolution services from the Office of FOIA Services' FOIA Public 
Liaisons or the Office of Government Information Services (``OGIS'').
    (3) Mediation services. OGIS offers mediation services to resolve 
disputes between requesters and the Office of FOIA Services as a non-
exclusive alternative to litigation. Requesters with concerns about the 
handling of their requests may contact OGIS.
    (f) Administrative appeals--(1) Administrative review. If a 
requester receives an adverse determination as described in paragraph 
(e)(2)(iii) of this section, or the request has not been timely 
determined within the time period prescribed in paragraph (d)(2) of 
this section or within an extended period permitted under paragraph 
(d)(5) of this section, the requester may file an appeal to the Office 
of the General Counsel consistent with the procedures described in 
paragraphs (f)(2) through (4) of this section. A requester generally 
must submit a timely administrative appeal before seeking review by a 
court of an adverse determination.
    (2) Time limits. Appeals can be submitted in writing or 
electronically, as described in paragraph (f)(3) of this section. The 
appeal must be received within 90 calendar days of the date of the 
written denial of the adverse determination and must be received no 
later than 11:59 p.m., Eastern Time, on the 90th day. If the Office of 
FOIA Services has not issued a determination on a request, an appeal 
may be submitted any time after the statutory time period for 
responding to a request ends.
    (3) Contents of appeal. Appeals should be clearly and prominently 
identified at the top of the first page as ``Freedom of Information Act 
Appeal'' and should provide the assigned FOIA request number. The 
appeal should include a copy of the original request and adverse 
determination. Appeals should include a statement of the requester's 
arguments as to why the records requested should be made available and 
why the adverse determination was in error. If only a portion of the 
adverse determination is appealed, the requester must specify which 
part is being appealed.
    (4) How to file and address an appeal. If submitted by U.S. mail or 
delivery service, the appeal must be sent to the Office of FOIA 
Services at 100 F Street NE, Washington, DC 20549. Appeals may also be 
made by facsimile at 202-772-9337, email ([email protected]), or online at 
the Commission's website (http://www.sec.gov). A legible return address 
must be included with the FOIA appeal. The requester may also include 
other contact information, such as a telephone number and/or email 
address.
    (5) Adjudication of appeals. The Office of the General Counsel has 
the authority to grant or deny all appeals, in whole or in part. In 
appropriate cases the Office of the General Counsel may refer appeals 
to the Commission for determination. No opportunity for personal 
appearance, oral argument, or hearing on appeal is provided. Upon 
receipt of an appeal, the Office of FOIA Services ordinarily will send 
the requester an acknowledgment letter that confirms receipt of the 
requester's appeal.
    (6) Determinations on appeals. A determination on an appeal must be 
made in writing. A determination that denies an appeal, in whole or in 
part, shall include a brief explanation of the basis for the denial, 
identify the applicable FOIA exemptions asserted, and describe why the 
exemptions apply. As applicable, the determination will provide the 
requester with notification of the statutory right to file a lawsuit in 
accordance with 5 U.S.C. 552(a)(4), and will inform the requester of 
the mediation services offered by the Office of Government Information 
Services as a non-exclusive alternative to litigation. If the Office of 
FOIA Services' determination is remanded or modified on appeal, the 
Office of the General Counsel will notify the requester of that 
determination in writing.
    (g) Fees-- (1) In general. The Office of FOIA Services shall charge 
fees for processing requests under the FOIA in accordance with the 
provisions of this section and with the OMB Guidelines, except where 
fees are limited under paragraph (g)(4) of this section or when a 
waiver or reduction is granted under paragraph (g)(12) of this section. 
To resolve any fee issues that arise under this section, the Office of 
FOIA Services may contact a requester for additional information. The 
Office of FOIA Services shall ensure that searches, review, and 
duplication are conducted in an efficient manner. The Office of FOIA 
Services ordinarily will collect all applicable fees before sending 
copies of records to a requester. Requesters must pay fees by check, 
certified check, or money order, or where possible, by electronic 
payment.
    (2) Definitions. For purposes of this section:
    (i) Commercial use request is a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include 
furthering those interests through litigation. The Office of FOIA 
Services will determine whether to place a requester in the commercial 
use category on a case-by-case basis based on the requester's intended 
use of the information.
    (ii) Direct costs are those expenses the Office of FOIA Services 
and any staff within the divisions and offices of the Commission incur 
in searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. Direct costs 
include the salary of the employee(s) performing the work (i.e.,

[[Page 299]]

the basic rate of pay for the employee(s), plus 16% of that rate to 
cover benefits), the cost of materials, and the cost of operating 
computers and other electronic equipment, such as photocopiers and 
scanners. Direct costs do not include overhead expenses such as the 
costs of space and of heating or lighting a facility in which the 
service is performed.
    (iii) Duplication is reproducing a record, or the information 
contained in it, to respond to a FOIA request. Copies can take the form 
of paper, audiovisual materials, or electronic records, among others. 
The Office of FOIA Services shall honor a requester's specified 
preference of form or format of disclosure if the record is readily 
reproducible with reasonable efforts in the requested form or format.
    (iv) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is authorized by, and is made under the auspices of, an 
educational institution and that the records are not sought for a 
commercial use, but rather are sought to further scholarly research.
    (v) Noncommercial scientific institution is an institution that is 
not operated to further a commercial, trade, or profit interest and 
that is operated solely for the purpose of conducting scientific 
research, the results of which are not intended to promote any 
particular product or industry. A requester in this category must show 
that the request is authorized by and is made under the auspices of a 
qualifying institution and that the records are sought to further 
scientific research and are not for a commercial use.
    (vi) Representative of the news media or news media requester is 
any person or entity that is organized and operated to publish or 
broadcast news to the public and that actively gathers information of 
potential interest to a segment of the public, uses its editorial 
skills to turn the raw materials into a distinct work, and distributes 
that work to an audience. The term ``news'' means information that is 
about current events or that would be of current interest to the 
public. The Office of FOIA Services will determine whether to grant a 
requester news media status on a case-by-case basis based upon the 
requester's intended use of the requested material.
    (vii) Review is the examination of a record located in response to 
a request to determine whether any portion of it is exempt from 
disclosure. Review time includes doing all that is necessary to prepare 
the record for disclosure, such as redacting the record and marking any 
applicable exemptions. Review time also includes time spent obtaining 
and considering formal objections to disclosure made by a submitter 
under Sec.  200.83, but it does not include time spent resolving legal 
or policy issues regarding the application of exemptions.
    (viii) Search is the review, manually or by automated means, of 
agency records for the purpose of locating those records that are 
responsive to a request. Search time includes page-by-page or line-by-
line identification of information within records and the reasonable 
efforts expended to locate and retrieve information from electronic 
records.
    (3) Charging fees. In responding to FOIA requests, the Office of 
FOIA Services shall charge the fees summarized in chart form in 
paragraph (g)(3)(i) of this section and explained in paragraphs 
(g)(3)(ii) through (v) of this section, unless fees are limited under 
paragraph (g)(4) of this section or a waiver or reduction of fees has 
been granted under paragraph (g)(12) of this section.
    (i) The four categories of requesters and the chargeable fees for 
each are:

----------------------------------------------------------------------------------------------------------------
         Requester category                Search fees             Review fees             Duplication fees
----------------------------------------------------------------------------------------------------------------
(A) Commercial use requesters......  Yes...................  Yes...................  Yes.
(B) Educational and noncommercial    No....................  No....................  Yes (first 100 pages, or
 scientific institutions.                                                             equivalent volume, free).
(C) Representatives of the news      No....................  No....................  Yes (first 100 pages, or
 media.                                                                               equivalent volume, free).
(D) All other requesters...........  Yes (first 2 hours      No....................  Yes (first 100 pages, or
                                      free).                                          equivalent volume, free).
----------------------------------------------------------------------------------------------------------------

    (ii) Search fees. (A) Search fees shall be charged for all 
requests--other than requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media--subject to the limitations of paragraph (g)(4) of this section. 
The Office of FOIA Services may charge for time spent searching even if 
no responsive records are located or it is determined that the records 
are entirely exempt from disclosure. Search fees shall be the direct 
costs of conducting the search by agency employees.
    (B) Requesters shall be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. Requesters shall be notified 
of the costs associated with creating and implementing such a program 
and must agree to pay the associated costs before the costs may be 
incurred.
    (C) For requests that require the retrieval of agency records 
stored at a Federal records center operated by the National Archives 
and Records Administration (``NARA''), additional costs shall be 
charged in accordance with the Transactional Billing Rate Schedule 
established by NARA.
    (iii) Review fees. Review fees shall be charged to requesters who 
make commercial use requests. Review fees shall be assessed in 
connection with the initial review of the record, i.e., the review 
agency employees conduct to determine whether an exemption applies to a 
particular record or portion of a record. Also, if an exemption 
asserted to withhold a record (or a portion thereof) is deemed to no 
longer apply, any costs associated with the re-review of the records to 
consider the use of other exemptions may be assessed as review fees. 
Review fees shall be the direct costs of conducting the review by the 
involved employees. Review fees can be charged even if the records 
reviewed ultimately are not disclosed.
    (iv) Search and review services (review applies to commercial-use 
requesters only). (A) The Office of FOIA Services will establish and 
charge average rates for the groups of employees' salary grades 
typically involved in the search and review of records. Those groups 
will consist of employees at:
    (1) Grades SK-8 or below;
    (2) Grades SK-9 to SK-13; and
    (3) Grades SK-14 or above.
    (B) The average rates will be based on the hourly salary (i.e., 
basic salary plus locality payment), plus 16 percent for benefits, of 
employees who routinely perform search and review services. The average 
hourly rates are listed on the FOIA web page of the Commission's 
website at http://www.sec.gov and will be updated as salaries change. 
Fees will

[[Page 300]]

be charged in quarter-hour increments. No search fee or review fee will 
be charged for a quarter-hour period unless more than half of that 
period is required for search or review.
    (v) Duplication fees. Duplication fees shall be charged to all 
requesters, subject to the limitations of paragraph (g)(4) of this 
section. Fees for either a photocopy or printout of a record (no more 
than one copy of which need be supplied) are identified on the FOIA web 
page of the Commission's website at www.sec.gov. For copies of records 
produced on tapes, disks, or other media, the Office of FOIA Services 
shall charge the direct costs of producing the copy, including operator 
time. Where paper documents must be scanned to comply with a 
requester's preference to receive the records in an electronic format, 
the requester shall pay the direct costs associated with scanning those 
materials. For all other forms of duplication, the Office of FOIA 
Services shall also charge the direct costs.
    (4) Limitations on charging fees. (i) No search or review fees will 
be charged for requests by educational institutions (unless the 
requests are sought for a commercial use), noncommercial scientific 
institutions, or representatives of the news media.
    (ii) Except for requesters seeking records for a commercial use, 
the Office of FOIA Services shall provide without charge the first 100 
pages of duplication (or the cost equivalent for other media) and the 
first two hours of search.
    (iii) Fees will not be charged where the costs of collecting and 
processing the fee are likely to equal or exceed the amount of the fee.
    (iv) The Office of FOIA Services will not assess search fees (or, 
in the case of requests from representatives of the news media or 
educational or noncommercial scientific institutions, duplication fees) 
when 5 U.S.C. 552(a)(4)(A)(viii) prohibits the assessment of those 
fees.
    (5) Notice of anticipated fees. (i) When the Office of FOIA 
Services determines or estimates that the fees to be assessed in 
accordance with this section will exceed the amount it would cost the 
Office of FOIA Services to collect and process the fees, the Office of 
FOIA Services shall notify the requester of the actual or estimated 
amount of fees, unless the requester has indicated a willingness to pay 
fees as high as the estimated fees. If only a portion of the fee can be 
estimated readily, the Office of FOIA Services shall advise the 
requester accordingly. If the requester is not a commercial use 
requester, the notice shall specify that the requester is entitled to 
the statutory entitlements of 100 pages of duplication at no charge 
and, if the requester is charged search fees, two hours of search time 
at no charge.
    (ii) In cases in which a requester has been notified that the 
actual or estimated fees will amount to more than it would cost the 
Office of FOIA Services to collect and process the fees, or amount to 
more than the amount the requester indicated a willingness to pay, the 
Office of FOIA Services will do no further work on the request until 
the requester commits in writing to pay the actual or estimated total 
fee, or designates some amount of fees the requester is willing to pay, 
or in the case of a requester who is not a commercial use requester 
designates that the requester seeks only that which can be provided by 
the statutory entitlements. The Office of FOIA Services will toll the 
response period while it notifies the requester of the actual or 
estimated amount of fees and this time will be excluded from the 20 
working day time limit (as specified in paragraph (d)(2) of this 
section). The requester's agreement to pay fees must be made in 
writing, must designate an exact dollar amount the requester is willing 
to pay, and must be received within 30 calendar days from the date of 
the notification of the fee estimate. If the requester fails to submit 
an agreement to pay the anticipated fees within 30 calendar days from 
the date of the Office of FOIA Services' fee notice, the Office of FOIA 
Services will presume that the requester is no longer interested in the 
records and notify the requester that the request has been closed.
    (iii) The Office of FOIA Services shall make available their FOIA 
Public Liaisons or other FOIA professionals to assist any requester in 
reformulating a request to meet the requester's needs at a lower cost.
    (6) Charges for other services. Although not required to provide 
special services, if the Office of FOIA Services chooses to do so as a 
matter of administrative discretion, the direct costs of providing the 
service shall be charged. Examples of such special services include 
certifying that records are true copies, providing multiple copies of 
the same document, or sending records by means other than first class 
mail. The cost for the attestation of records with the Commission seal 
(i.e., certifying records as true copies) is $4.00 per record, which 
may be waived for records certified electronically. Requests for 
certified copies of records or documents shall ordinarily be serviced 
within 20 working days. Requests will be processed in the order in 
which they are received.
    (7) Charging interest. The Office of FOIA Services may begin to 
charge interest on any unpaid bill starting on the 31st calendar day 
following the date of billing the requester. Interest charges shall be 
assessed at the rate provided in 31 U.S.C. 3717 and accrue from the 
date of the billing until the payment is received. The Office of FOIA 
Services shall take all steps authorized by the Debt Collection Act of 
1982, as amended, and the Commission's Rules Relating to Debt 
Collection to effect payment, including offset, disclosure to consumer 
reporting agencies, and use of collection agencies.
    (8) Aggregating requests. If the Office of FOIA Services reasonably 
believes that a requester or a group of requesters acting in concert is 
attempting to divide a request into a series of requests for the 
purpose of avoiding fees, the Office of FOIA Services may aggregate 
those requests and charge accordingly. Among the factors the Office of 
FOIA Services shall consider in deciding whether to aggregate are 
whether the requests were submitted close in time and whether the 
requests seek documents about related matters. The Office of FOIA 
Services may presume that multiple requests that involve related 
matters made by the same requester or a group of requesters within a 30 
calendar day period have been made to avoid fees. For requests 
separated by a longer period, the Office of FOIA Services will 
aggregate them only where it determines that aggregation is warranted 
in view of all the circumstances involved.
    (9) Advance payments. (i) For requests other than those described 
in paragraphs (g)(9)(ii) and (iii) of this section, the Office of FOIA 
Services shall not require a requester to make advance payment (i.e., 
payment made before the Office of FOIA Services begins to process or 
continues to work on a request). Payment owed for work already 
completed (i.e., payment before copies are sent to a requester) is not 
an advance payment.
    (ii) When the Office of FOIA Services determines or estimates that 
a total fee to be charged under this section will exceed $250.00, it 
shall notify the requester of the actual or estimated fee and may 
require the requester to make an advance payment of the entire 
anticipated fee before beginning to process the request. A notice under 
this paragraph shall offer the requester an opportunity to discuss the 
matter with the Office of FOIA Services' FOIA Public Liaisons or other 
FOIA professionals to modify the request in

[[Page 301]]

an effort to meet the requester's needs at a lower cost.
    (iii) When a requester has previously failed to pay a properly 
charged FOIA fee to the Office of FOIA Services or other Federal agency 
within 30 calendar days of the date of billing, the Office of FOIA 
Services shall notify the requester that he or she is required to pay 
the full amount due, plus any applicable interest, and to make an 
advance payment of the full amount of any anticipated fee, before the 
Office of FOIA Services begins to process a new request or continues 
processing a pending request from that requester. Where the Office of 
FOIA Services has a reasonable basis to believe that a requester has 
misrepresented the requester's identity to avoid paying outstanding 
fees, it may require that the requester provide proof of identity and 
pay in advance.
    (iv) When the Office of FOIA Services requires advance payment or 
payment due under paragraphs (g)(9)(ii) and (iii) of this section, the 
Office of FOIA Services will not further process the request until the 
required payment is made. The Office of FOIA Services will toll the 
processing of the request while it notifies the requester of the 
advanced payment due and this time will be excluded from the 20 working 
day time limit (as specified in paragraph (d)(2) of this section). If 
the requester does not pay the advance payment within 30 calendar days 
from the date of the Office of FOIA Services' fee notice, the Office of 
FOIA Services will presume that the requester is no longer interested 
in the records and notify the requester that the request has been 
closed.
    (10) Tolling. When necessary for the Office of FOIA Services to 
clarify issues regarding fee assessment with the requester, the time 
limit for responding to a FOIA request is tolled until the Office of 
FOIA Services resolves such issues with the requester.
    (11) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute (except the FOIA) that specifically requires an agency to set 
and collect fees for particular types of records. In instances where 
records responsive to a request are subject to a statutorily-based fee 
schedule program, the Office of FOIA Services shall inform the 
requester how to obtain records from that program. Provision of such 
records is not handled under the FOIA.
    (12) Requirements for waiver or reduction of fees. (i) Records 
responsive to a request will be furnished without charge, or at a 
charge reduced below that established under paragraph (g)(3) of this 
section, if the requester asks for such a waiver in writing and the 
Office of FOIA Services determines, after consideration of information 
provided by the requester, that the requester has demonstrated that:
    (A) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government; and
    (B) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (ii) In deciding whether disclosure of the requested information is 
likely to contribute significantly to public understanding of the 
operations or activities of the government, the Office of FOIA Services 
shall consider all four of the following factors:
    (A) The subject of the request: Whether the subject of the 
requested records concerns the operations or activities of the 
government. The subject of the requested records must concern 
identifiable operations or activities of the Federal Government, with a 
connection that is direct and clear, not remote or attenuated.
    (B) The informative value of the information to be disclosed: 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities to be likely to contribute to an increased 
public understanding of those operations or activities. The disclosure 
of information that already is in the public domain, in either a 
duplicative or a substantially identical form, would not be likely to 
contribute to such understanding.
    (C) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area and ability and intention to effectively 
convey information to the public shall be considered. It shall be 
presumed that a representative of the news media satisfies this 
consideration.
    (D) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute significantly to public 
understanding of government operations or activities. The public's 
understanding of the subject in question prior to the disclosure must 
be significantly enhanced by the disclosure.
    (iii) In deciding whether disclosure of the requested information 
is primarily in the commercial interest of the requester, the Office of 
FOIA Services shall consider the following factors:
    (A) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. The Office of FOIA Services shall consider any 
commercial interest of the requester (with reference to the definition 
of ``commercial use requester'' in paragraph (g)(2)(i) of this 
section), or of any person on whose behalf the requester may be acting, 
that would be furthered by the requested disclosure. Requesters shall 
be given an opportunity to provide explanatory information regarding 
this consideration.
    (B) The primary interest in disclosure: Whether the public interest 
is greater than any identified commercial interest in disclosure. The 
Office of FOIA Services ordinarily shall presume that where a news 
media requester has satisfied the public interest standard, the public 
interest will be the interest primarily served by disclosure to that 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return shall not be 
presumed to primarily serve the public interest.
    (iv) If only a portion of the requested records satisfies both the 
requirements for a waiver or reduction of fees, a waiver or reduction 
of fees will be granted for only that portion.
    (v) Requests for a waiver or reduction of fees should address all 
the factors identified in paragraphs (g)(12)(ii) and (iii) of this 
section.
    (vi) Denials of requests for a waiver or reduction of fees are 
adverse determinations (as defined in paragraph (e)(2)(iii) of this 
section) and may be appealed to the General Counsel in accordance with 
the procedures set forth in paragraph (f) of this section.


Sec.  200.80a  [Removed]

0
3. Remove Sec.  200.80a.


Sec.  200.80b   [Removed]

0
4. Remove Sec.  200.80b.


Sec.  200.80c  [Removed]

0
5. Remove Sec.  200.80c.


Sec.  200.80d   [Removed]

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6. Remove Sec.  200.80d.


Sec.  200.80e  [Removed]

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7. Remove Sec.  200.80e.

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Sec.  200.80f  [Removed]

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8. Remove Sec.  200.80f.

    By the Commission.

    Dated: December 21, 2017.
Brent J. Fields,
Secretary.
[FR Doc. 2017-27967 Filed 1-2-18; 8:45 am]
 BILLING CODE 8011-01-P


