[Federal Register Volume 83, Number 125 (Thursday, June 28, 2018)]
[Rules and Regulations]
[Pages 30322-30333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13943]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 200

[Release Nos. 34-83506; FOIA-193; File No. S7-09-17]
RIN 3235-AM25


Amendments to the Commission's Freedom of Information Act 
Regulations

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'' or 
``SEC'') is adopting amendments to the Commission's regulations under 
the Freedom of Information Act (``FOIA''). The Commission is amending 
the FOIA regulations to reflect changes required by the FOIA 
Improvement Act of 2016 (``Improvement Act'') and to clarify, update, 
and streamline the regulations.

DATES: Effective July 30, 2018.

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. Introduction

    On December 21, 2017, the Commission proposed amendments to its 
existing regulations under the FOIA, 5 U.S.C. 552,\1\ to reflect 
changes required by the Improvement Act and to clarify, update, and 
streamline the language of several procedural provisions. The 
Commission received four comment letters on the proposed amendments. 
After consideration of the comments received, the Commission is 
adopting the amendments to its FOIA regulations as proposed, other than 
changes to two definitions related to the collection of fees and a few 
technical modifications for clarity. Due to the scope of the 
amendments, this final rule replaces the Commission's existing FOIA 
regulations in their entirety (17 CFR 200.80 through 200.80f).
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    \1\ See Release No. 34-82373 (Dec. 21, 2017), 83 FR 291 (Jan. 3, 
2018) (``Proposing Release'').
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II. Final Amendments

A. Changes To Conform to the Improvement Act

    The Commission is adopting four changes to the Commission's FOIA 
regulations to conform them to the Improvement Act. These changes are 
being adopted largely as proposed.\2\ First, the final 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 
on the Commission's website, http://www.sec.gov. Second, the final 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 final 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 final 
rule incorporates the amendments to the FOIA requiring agencies, if 
they do not comply with the time limits, to waive fees, under certain 
circumstances (Section 200.80(g)).
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    \2\ The Commission is making one technical, clarifying 
modification from the proposal. Specifically, in the first sentence 
of Section 200.80(a)(2)(ii), the word ``Those'' is changed to 
``Persons.''
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B. Amendments to Certain Procedural Provisions

    The final amendments also revise 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. These changes are being largely adopted as 
proposed.\3\ The amended regulations, among other things, update the 
various methods for submitting FOIA requests and administrative appeals 
(Sections 200.80(b) and (f)); incorporate language requiring requesters 
to include their full names and return addresses in their FOIA requests 
(Section 200.80(b)); 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(d)); 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 
multitrack processing of requests (Section 200.80(d)); and insert a 
provision to 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)).
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    \3\ The Commission is making one technical, clarifying 
modification from the proposal. Specifically, the third sentence of 
Section 200-.80(f)(3), is changed from ``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'' to ``Appeals should include a statement of the 
requester's arguments as to why the records requested should be made 
available and the reason(s) the FOIA requester contends the adverse 
determination was in error.''
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    The final 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

[[Page 30323]]

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. Revisions to Fee Provisions

    Section 200.80(g) of the final rule revises the Office of FOIA 
Services' fee procedures and fee schedule in two ways. Both of these 
changes are being adopted as proposed. First, the final 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 (Section 
200.80(g)(1)). Second, the final rule removes 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 
(Section 200.80(g)(3)(v)).\4\ 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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    \4\ The initial posted fee will be 15 cents per page, and the 
Commission is already charging this lower cost.
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    As proposed, the final 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 (Section 200.80(g)(3)(v)); 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 any estimated fees (Section 200.80(g)(5)(ii)); clarifies the direct 
costs that can be charged by the Office of FOIA Services as part of 
search, review, and duplication fees (Section 200.80(g)(3)); and sets 
forth the various methods by which FOIA processing fees can be paid 
(Section 200.80(g)(1)).
    The final rule also revises existing fee-related definitions and 
incorporates new fee-related definitions (Section 200.80(g)(2)). As 
discussed below, some of these definitions have been slightly revised 
in the final rule in response to comments received on the proposed 
rule.\5\
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    \5\ The Commission is also making several technical, clarifying 
modifications from the proposal in the fee provisions. In the first 
sentence of Section 200.80(g)(3), the phrase ``shall charge the fees 
summarized in chart form . . .'' is changed to ``shall charge fees 
for the services summarized in chart form . . .'' to more accurately 
describe the chart. In the first sentence of Section 
200.80(g)(3)(ii)(B), the phrase `` to locate records'' is changed to 
``to locate or identify responsive records'' so as to more precisely 
describe the search. In Section 200.80(g)(12)(ii), the phrase 
``shall consider all four of the following factors'' is changed to 
``shall consider each of the following four factors.''
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D. Elimination of Certain Provisions

    As proposed, the final 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 removing are: 
(1) The list of information the FOIA requires the Commission to publish 
in the Federal Register (Section 200.80(a)(1) of the superseded 
regulations), (2) the categories of records the FOIA requires the 
Commission to make available for public inspection (Section 
200.80(a)(2) of the superseded 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 superseded regulations). Finally, the 
final rule eliminates Appendices A through F from the existing FOIA 
regulations. Appendices A through D and F of the existing regulations 
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 of the existing regulations is revised and updated and moved 
to Section 200.80(g) (Fees) of the final rule.

E. Structure of the Final Rule

    The structure of the regulations is amended 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. Public Comments

    The Commission received four comment letters in response to the 
proposed rulemaking. Two of the comments concern definitions in the fee 
provisions of the proposed rule and suggest substantive changes to the 
Commission's proposed fee definitions.\6\ One comment suggests 
technical clarifications to some of the Commission's FOIA 
procedures.\7\ The final letter supports certain provisions in the 
proposed rule.\8\ The Commission has considered the comments received 
and, as discussed below, in certain cases has made modifications in the 
final amendments in response to those comments.
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    \6\ See letter from Ryan P. Mulvey, Counsel, Cause of Action 
Institute, dated January 3, 2018 (``CoA Institute letter''); letter 
from Keith P. Bishop, dated January 12, 2018 (``Bishop letter'')
    \7\ See letter from Rachel Wood, dated April 27, 2018.
    \8\ See letter from Lori Gayle Nuckolls, dated January 22, 2018.
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    In proposing the definitions in the fee provisions of the proposed 
rule, the Commission considered the FOIA's directive that agencies 
``promulgate regulations . . . specifying the schedule of fees 
applicable to the processing of requests . . . [and that] [s]uch 
schedule shall conform to the guidelines which shall be promulgated . . 
. by the Director of the Office of Management and Budget [(``OMB'')].'' 
\9\ In light of this directive, the Commission looked to the 
definitions in the OMB's 1987 FOIA fee guidelines except to the extent 
that courts have held that the definitions are not consistent with the 
FOIA.\10\
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    \9\ 5 U.S.C. 552(a)(4)(A)(i).
    \10\ Uniform Freedom of Information Act Fee Schedule and 
Guidelines, 52 FR at 10,018 (March 27, 1987).
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A. Section 200.80(g)(2)(iv) (Definition of Educational Institution)

    One commenter expressed concern that the Commission's definition of 
``educational institution'' in proposed Section 200.80(g)(2)(iv) is 
inconsistent with the FOIA provision that addresses fees that agencies 
can charge when ``records are not sought for commercial use and the 
request is made by an educational or noncommercial scientific 
institution, whose purpose is scholarly or scientific research.'' \11\ 
The commenter stated that the Commission's proposed definition of 
``educational institution'' ``deviates from the statute in two 
respects''--the definition ``omits reference to `scientific research' 
'' and it ``requires that the purpose of the request be `to further 
scholarly research' whereas the statute requires only that the 
educational institution have a purpose of scholarly or scientific 
research.'' \12\
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    \11\ See Bishop letter (quoting 5 U.S.C. 552(a)(4)(A)(ii)(II)).
    \12\ See Bishop letter.

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[[Page 30324]]

    The FOIA does not define the term ``educational institution.'' The 
Commission's proposed definition of ``educational institution'' did not 
include a reference to ``scientific research'' because in promulgating 
its fee guidelines, the OMB found that ``the statute and the 
legislative history recite the formula `educational or scientific 
institution/scholarly or scientific research,' and it seems clear that 
the phrase was meant to be read disjunctively so that scholarly applies 
to educational institution and scientific applies to non-commercial 
scientific institution.'' \13\ In addition, ``scholarly research'' is a 
broad term that would generally include ``scientific research.'' 
Accordingly, the Commission does not believe it is necessary to include 
``scientific research'' as part of its definition of ``educational 
institution.''
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    \13\ 52 FR at 10,014.
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    In response to the commenter's suggestion to remove from the 
definition of ``educational institution'' the requirement that the 
records are sought to ``further scholarly research,'' the Commission is 
deleting this language from the definition and is inserting language to 
clarify that the requester must show that the request is made in 
connection with the requester's role at the educational institution and 
that the records are not sought for commercial or personal use. The 
definition of ``educational institution'' in the final rule at Sec.  
200.80(g)(2)(iv) is thus revised to read:
    Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with the requester's role at the 
educational institution and that the records are not sought for 
commercial or personal use.

B. Section 200.80(g)(2)(v) (Definition of Noncommercial Scientific 
Institution)

    One commenter expressed concern that the Commission's proposed 
definition of ``noncommercial scientific institution'' in proposed 
Sec.  200.80(g)(2)(v) is inconsistent with the FOIA ``because it 
imposes additional limitations and conditions not found in the 
statutory definition.'' \14\ This commenter stated that the FOIA, 
unlike the proposed rule, ``does not require (i) that the institution 
be operated solely for the purpose of conducting scientific research, 
or (ii) that the request is being made under the auspices of a 
qualifying institution.'' \15\
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    \14\ See Bishop letter.
    \15\ Id.
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    The Commission believes that its proposed definition of 
``noncommercial scientific institution'' is consistent with the FOIA. 
The FOIA does not define the term ``noncommercial scientific 
institution'' and the Commission has adopted the definition from the 
OMB's FOIA fee guidelines. Those guidelines provide that the ``term 
`non-commercial scientific institution' refers to an institution that 
is not operated on a `commercial' basis . . . and which is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry.'' 
\16\ The OMB guidelines further state that ``[t]o be eligible for 
inclusion [in the noncommercial scientific institution] category, 
requesters must show that the request is being made as authorized by 
and under the auspices of a qualifying institution and that the records 
are not sought for a commercial use, but are sought in furtherance of . 
. . scientific . . . research.'' \17\ Accordingly, the Commission is 
adopting the proposed definition of ``noncommercial scientific 
institution'' in Section 200.80(g)(2)(v) of the final rule without 
change.
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    \16\ 52 FR at 10,018.
    \17\ 52 FR at 10,019.
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C. Section 200.80(g)(2)(vi) (Definition of Representative of the News 
Media or News Media Requester)

    Two commenters expressed concern that the Commission's proposed 
definition of ``representative of the news media'' or ``news media 
requester'' is inconsistent with the statutory definition.\18\ Both 
commenters noted that the statutory definition does not require a 
``news media requester'' to be ``organized and operated to publish or 
broadcast news to the public.'' \19\ One of the commenters specifically 
recommended striking the ``organized and operated'' standard from the 
definition.\20\ In response to these comments, the Commission has 
omitted the ``organized and operated'' language in the final rule.
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    \18\ See Bishop letter; CoA Institute letter.
    \19\ Id.
    \20\ See CoA Institute letter.
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    One commenter addressed three additional considerations related to 
the Commission's proposed definition of ``news media requester.'' \21\ 
This commenter first recommended further revising the proposed 
definition of ``news media requester'' by deleting the last sentence of 
the proposed definition (``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.'') 
because ``the statute's focus [is] on requesters, rather than [their] 
requests.'' \22\ In response to this recommendation, the Commission has 
removed the final sentence from the definition of ``news media 
requester'' in the final rule.
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    \21\ Id.
    \22\ Id. (citing Cause of Action v. Federal Trade Commission 799 
F.3d 1108, 1121 (DC Cir. 2015)).
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    This commenter also recommended that the Commission recognize that 
a news media requester may use ``editorial skills'' to turn ``raw 
materials into a distinct work'' when writing documents such as press 
releases and editorial comments, as the U.S. Court of Appeals for the 
District of Columbia stated in Cause of Action v. Federal Trade 
Commission.\23\ The commenter did not recommend any changes to the rule 
to address this issue, and the Commission believes none are 
necessary.\24\ The Commission, as appropriate, will consider Cause of 
Action and any other relevant precedents in applying the fee provisions 
in its regulations.
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    \23\ Id. (citing Cause of Action, 799 F.3d at 1122-25).
    \24\ Id.
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    Finally, this commenter recommended that the Commission ``should 
indicate [in its definition of ``news media requester''] that any 
examples of news media entities it may include in its regulations are 
non-exhaustive.'' \25\ The Commission is not making any changes in 
response to this comment because the definition in the final rule does 
not contain any examples of news media entities.
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    \25\ Id.
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IV. Other Matters

    If any of the provisions of these amendments, 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 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

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competition that is not necessary or appropriate in furtherance of the 
purposes of the Exchange Act.\26\ 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.\27\
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    \26\ 15 U.S.C. 78w(a).
    \27\ 15 U.S.C. 78c(f).
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    As explained in the proposal and discussed further below, the 
Commission believes that the economic effects of the final rule will 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.
    The amendments to the Commission's FOIA regulations fall into four 
categories. First, as discussed in more detail above, the Commission is 
amending its regulations to conform the regulations to the Improvement 
Act. Consistent with the Improvement Act, the amended 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 will 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 amendments to 
result in additional costs to any member of the public.
    Second, the final rule will amend several procedural provisions 
within the Commission's FOIA regulations, which will 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 procedural changes could impose limited costs on 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, 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 can aggregate 
requests that on their own do not involve ``unusual circumstances,'' as 
defined in the amended regulations, or warrant placement in a track for 
complex requests (i.e., requests that require more work and/or time to 
process than most 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 can 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 revising 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 changes to the Office of FOIA Services' fee procedures will 
impose significant new costs on FOIA requesters.
    With respect to the elimination of the set per page duplication 
fee, 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 seven years allows the 
Commission to 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 2017 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, as well as 
duplication fees for paper copies and production costs for other types 
of media. The fee schedule for FOIA

[[Page 30326]]

requests is available on the Commission's website.

                               Table 1--FOIA Requests in Fiscal Years 2011 to 2017
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                                                                                                       Fees
                                                                     Requests        Requests      collected for
                           Fiscal year                               received        processed      processing
                                                                                                     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
2017............................................................          13,063          13,069       35,025.15
----------------------------------------------------------------------------------------------------------------

    As shown in Table 1, from fiscal years 2011-2017, the Office of 
FOIA Services collected an average of $37,164.71 per year in fees for 
processing an average of 13,466 requests. These amounts correspond to 
an average fee of $2.76 collected per request processed.\28\ 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 $1,548.53,\29\ corresponding 
to an average fee of $2.87 collected per request processed.\30\
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    \28\ Calculated as $37,164.71/13,466 = $2.76.
    \29\ To arrive at this estimated increase, we divide $37,164.71 
in duplication fees by a cost of $0.24 per page to derive an 
estimate of approximately 154,853 pages of copies on average per 
fiscal year. 154,853 pages x $0.01 increase in per-page duplication 
fees = $1,548.53 in additional total processing fees.
    \30\ Calculated as ($37,164.71 + $1,548.53)/13,466 = $2.87.
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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 will 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 will 
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 forgo receiving the records in question 
if the fees are substantial, though even this impact may be muted 
because requesters will have been advised of and approved potential 
charges before requests are processed by the FOIA Office.
    The clarification regarding direct costs and codification of 
existing practices with respect to fees for materials produced in an 
electronic format are consistent with existing practices, and the 
Commission therefore does not expect these amendments to impose any 
additional burden on the public. The other changes to the Office of 
FOIA Services' fee procedures also codify existing processes and will 
therefore not impose any additional burden on requesters. These 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 believes that the public 
could benefit from the increased transparency regarding these 
practices. As discussed above, some of the fee-related definitions have 
been revised in the final rule in response to comments on the proposed 
rule. Specifically, the Commission has revised the definitions of 
``educational institution'' and ``representative of the news media'' or 
``news media requester.'' The revisions serve to clarify and broaden 
the scope of existing definitions, which may benefit some requesters. 
The Commission does not expect these revisions to result in additional 
costs to any member of the public.
    Finally, the final rule will eliminate certain provisions in the 
SEC's 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 
will not have any substantive consequence.
    The Commission requested comments on all aspects of the benefits 
and costs of the proposal. No commenter addressed the economic analysis 
contained in the proposal. The Commission continues to believe that the 
amendments to the Commission's FOIA regulations will not have any 
significant impact on efficiency, competition, or capital formation.

VI. Regulatory Flexibility Act Certification

    Pursuant to Section 605(b) of the Regulatory Flexibility Act of 
1980,\31\ the Commission certified that, when adopted, the amendments 
to 17 CFR 200.80 would not have a significant economic impact on a 
substantial number of small entities. This certification, including our 
basis for the certification, was included in the proposing release. The 
Commission solicited comments on the appropriateness of its 
certification, but received none. The Commission is adopting the final 
rules as modified and discussed above. These modifications to the 
proposal would not alter the basis upon which the certification was 
made.
---------------------------------------------------------------------------

    \31\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------

VII. Paperwork Reduction Act

    The Commission stated in the proposed release that the proposed 
amendments to the FOIA regulations do not contain any collection of 
information as defined by the Paperwork Reduction Act of 1995 
(``PRA'').\32\ The Commission also determined that the proposed 
amendments would not create any new filing, reporting, recordkeeping, 
or disclosure reporting requirements. Accordingly, the Commission did 
not submit the proposed amendments to the Office of Management and 
Budget for review under the PRA.\33\ The Commission solicited comments 
on whether its conclusion that there are no new collections of 
information is

[[Page 30327]]

correct, and it did not receive any comments.
---------------------------------------------------------------------------

    \32\ 44 U.S.C. 3501 et seq.
    \33\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
---------------------------------------------------------------------------

VIII. Statutory Authority and Text of 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 Amendments

    For the reasons stated in the preamble, the Commission amends 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. Section 200.80 is revised 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)(i) Records that the FOIA requires to be made available for 
public inspection in an electronic format (pursuant to 5 U.S.C. 
552(a)(2)) are accessible through the Commission's website, http://www.sec.gov. Each division and office of the Commission is responsible 
for determining which of its records are required to be made publicly 
available in an electronic format, as well as identifying additional 
records of interest to the public that are appropriate for public 
disclosure, and for posting and indexing such records. Each division 
and office shall ensure that its posted records and indexes are 
reviewed and updated on an ongoing basis.
    (ii) Persons who do not have access to the internet may obtain 
these records by contacting the Commission's Office of FOIA Services by 
telephone at 202-551-7900, by email at [email protected], or by visiting 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549-2736, on official working days between the hours of 10:00 a.m. 
and 3:00 p.m.
    (b) Requirements for making requests for records--(1) How made and 
addressed. The Commission has a centralized system for responding to 
FOIA requests, with all requests processed by the Office of FOIA 
Services. Requests for agency records must be in writing and include 
the requester's full name and a legible return address. Requesters may 
also include other contact information, such as an email address and a 
telephone number. Requests may be submitted by U.S. mail or delivery 
service and addressed to the Freedom of Information Act Officer, SEC, 
100 F Street NE, Washington, DC 20549. Requests may also be made by 
facsimile (202-772-9337), email ([email protected]), or online at the 
Commission's website (http://www.sec.gov). The request (and envelope, 
if the request is mailed or hand-delivered) should be marked ``Freedom 
of Information Act Request.''
    (2) Requests for records about oneself or another individual. (i) A 
requester who is making a request for records about himself or herself 
must comply with the verification of identity provisions set forth in 
subpart H of this part to 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.

[[Page 30328]]

    (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 system as described in paragraph (d)(4) 
of this section.
    (2) Initial response. A determination whether to comply with a FOIA 
request shall be made within 20 days (excepting Saturdays, Sundays, and 
legal public holidays) from the date the Office of FOIA Services 
receives a request for a record under this part, except when the 
circumstances described in paragraph (d)(3), (5), or (7) of this 
section are applicable. In instances where a FOIA requester has 
misdirected a request that is re-routed pursuant to paragraph (c)(2) of 
this section, the response time shall commence on the date that the 
request is first received by the Office of FOIA Services, but in any 
event not later than 10 working days after the request is first 
received by any division or office of the Commission.
    (3) Clarification of request. The Office of FOIA Services may seek 
clarification of a request (or a portion of a request) for records. The 
request for clarification generally should be in writing. The first 
time the Office of FOIA Services seeks clarification, the time for 
responding to the entire request (set forth in paragraph (d)(2) of this 
section) is tolled until the requester responds to the clarification 
request. The tolled period will end when the Office of FOIA Services 
receives a response from the requester that reasonably describes the 
requested records. If the Office of FOIA Services asks for 
clarification and does not receive a written response from the 
requester within 30 calendar days from the date of the clarification 
request, the Office of FOIA Services will presume that the requester is 
no longer interested in the 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

[[Page 30329]]

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.
    (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 must 
generally submit a timely administrative appeal before seeking review 
by a court of an adverse determination.
    (2) Time limits. Appeals can be submitted in writing or 
electronically, as described in paragraph (f)(3) of this section. The 
appeal must be received within 90 calendar days of the date of the 
written denial of the adverse determination and must be received no 
later than 11:59 p.m., Eastern Time, on the 90th day. If the Office of 
FOIA Services has not issued a determination on a request, an appeal 
may be submitted any time after the statutory time period for 
responding to a request ends.
    (3) Contents of appeal. Appeals should be clearly and prominently 
identified at the top of the first page as ``Freedom of Information Act 
Appeal'' and should provide the assigned FOIA

[[Page 30330]]

request number. The appeal should include a copy of the original 
request and adverse determination. Appeals should include a statement 
of the requester's arguments as to why the records requested should be 
made available and the reason(s) the FOIA requester contends the 
adverse determination was in error. If only a portion of the adverse 
determination is appealed, the requester must specify which part is 
being appealed.
    (4) How to file and address an appeal. If submitted by U.S. mail or 
delivery service, the appeal must be sent to the Office of FOIA 
Services at 100 F Street NE, Washington, DC 20549. Appeals may also be 
made by facsimile at 202-772-9337, email ([email protected]), or online at 
the Commission's website (http://www.sec.gov). A legible return address 
must be included with the FOIA appeal. The requester may also include 
other contact information, such as a telephone number and/or email 
address.
    (5) Adjudication of appeals. The Office of the General Counsel has 
the authority to grant or deny all appeals, in whole or in part. In 
appropriate cases the Office of the General Counsel may refer appeals 
to the Commission for determination. No opportunity for personal 
appearance, oral argument, or hearing on appeal is provided. Upon 
receipt of an appeal, the Office of FOIA Services ordinarily will send 
the requester an acknowledgment letter that confirms receipt of the 
requester's appeal.
    (6) Determinations on appeals. A determination on an appeal must be 
made in writing. A determination that denies an appeal, in whole or in 
part, shall include a brief explanation of the basis for the denial, 
identify the applicable FOIA exemptions asserted, and describe why the 
exemptions apply. As applicable, the determination will provide the 
requester with notification of the statutory right to file a lawsuit in 
accordance with 5 U.S.C. 552(a)(4), and will inform the requester of 
the mediation services offered by the Office of Government Information 
Services as a non-exclusive alternative to litigation. If the Office of 
FOIA Services' determination is remanded or modified on appeal, the 
Office of the General Counsel will notify the requester of that 
determination in writing.
    (g) Fees--(1) In general. The Office of FOIA Services shall charge 
fees for processing requests under the FOIA in accordance with the 
provisions of this section and with the OMB Guidelines, except where 
fees are limited under paragraph (g)(4) of this section or when a 
waiver or reduction is granted under paragraph (g)(12) of this section. 
To resolve any fee issues that arise under this section, the Office of 
FOIA Services may contact a requester for additional information. The 
Office of FOIA Services shall ensure that searches, review, and 
duplication are conducted in an efficient manner. The Office of FOIA 
Services ordinarily will collect all applicable fees before sending 
copies of records to a requester. Requesters must pay fees by check, 
certified check, or money order, or where possible, by electronic 
payment.
    (2) Definitions. For purposes of this section:
    (i) Commercial use request is a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include 
furthering those interests through litigation. The Office of FOIA 
Services will determine whether to place a requester in the commercial 
use category on a case-by-case basis based on the requester's intended 
use of the information.
    (ii) Direct costs are those expenses the Office of FOIA Services 
and any staff within the divisions and offices of the Commission incur 
in searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. Direct costs 
include the salary of the employee(s) performing the work (i.e., the 
basic rate of pay for the employee(s), plus 16% of that rate to cover 
benefits), the cost of materials, and the cost of operating computers 
and other electronic equipment, such as photocopiers and scanners. 
Direct costs do not include overhead expenses such as the costs of 
space and of heating or lighting a facility in which the service is 
performed.
    (iii) Duplication is reproducing a record, or the information 
contained in it, to respond to a FOIA request. Copies can take the form 
of paper, audiovisual materials, or electronic records, among others. 
The Office of FOIA Services shall honor a requester's specified 
preference of form or format of disclosure if the record is readily 
reproducible with reasonable efforts in the requested form or format.
    (iv) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with the requester's role at the 
educational institution and that the records are not sought for 
commercial or personal use.
    (v) Noncommercial scientific institution is an institution that is 
not operated to further a commercial, trade, or profit interest and 
that is operated solely for the purpose of conducting scientific 
research, the results of which are not intended to promote any 
particular product or industry. A requester in this category must show 
that the request is authorized by and is made under the auspices of a 
qualifying institution and that the records are sought to further 
scientific research and are not for a commercial use.
    (vi) Representative of the news media or news media requester is 
any person or entity that gathers information of potential interest to 
a segment of the public, uses its editorial skills to turn the raw 
materials into a distinct work, and distributes that work to an 
audience. The term ``news'' means information that is about current 
events or that would be of current interest to the public.
    (vii) Review is the examination of a record located in response to 
a request to determine whether any portion of it is exempt from 
disclosure. Review time includes doing all that is necessary to prepare 
the record for disclosure, such as redacting the record and marking any 
applicable exemptions. Review time also includes time spent obtaining 
and considering formal objections to disclosure made by a submitter 
under Sec.  200.83, but it does not include time spent resolving legal 
or policy issues regarding the application of exemptions.
    (viii) Search is the review, manually or by automated means, of 
agency records for the purpose of locating those records that are 
responsive to a request. Search time includes page-by-page or line-by-
line identification of information within records and the reasonable 
efforts expended to locate and retrieve information from electronic 
records.
    (3) Charging fees. In responding to FOIA requests, the Office of 
FOIA Services shall charge fees for the services summarized in chart 
form in paragraph (g)(3)(i) of this section and explained in paragraphs 
(g)(3)(ii) through (v) of this section, unless fees are limited under 
paragraph (g)(4) of this section or a waiver or reduction of fees has 
been granted under paragraph (g)(12) of this section.
    (i) The four categories of requesters and the chargeable fees for 
each are:

[[Page 30331]]



 
----------------------------------------------------------------------------------------------------------------
         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 or identify responsive records. Requesters shall be 
notified of the costs associated with creating and implementing such a 
program and must agree to pay the associated costs before the costs may 
be incurred.
    (C) For requests that require the retrieval of agency records 
stored at a Federal records center operated by the National Archives 
and Records Administration (``NARA''), additional costs shall be 
charged in accordance with the Transactional Billing Rate Schedule 
established by NARA.
    (iii) Review fees. Review fees shall be charged to requesters who 
make commercial use requests. Review fees shall be assessed in 
connection with the initial review of the record, i.e., the review 
agency employees conduct to determine whether an exemption applies to a 
particular record or portion of a record. Also, if an exemption 
asserted to withhold a record (or a portion thereof) is deemed to no 
longer apply, any costs associated with the re-review of the records to 
consider the use of other exemptions may be assessed as review fees. 
Review fees shall be the direct costs of conducting the review by the 
involved employees. Review fees can be charged even if the records 
reviewed ultimately are not disclosed.
    (iv) Search and review services (review applies to commercial-use 
requesters only). (A) The Office of FOIA Services will establish and 
charge average rates for the groups of employees' salary grades 
typically involved in the search and review of records. Those groups 
will consist of employees at:
    (1) Grades SK-8 or below;
    (2) Grades SK-9 to SK-13; and
    (3) Grades SK-14 or above.
    (B) The average rates will be based on the hourly salary (i.e., 
basic salary plus locality payment), plus 16 percent for benefits, of 
employees who routinely perform search and review services. The average 
hourly rates are listed on the FOIA web page of the Commission's 
website at http://www.sec.gov and will be updated as salaries change. 
Fees will be charged in quarter-hour increments. No search fee or 
review fee will be charged for a quarter-hour period unless more than 
half of that period is required for search or review.
    (v) Duplication fees. Duplication fees shall be charged to all 
requesters, subject to the limitations of paragraph (g)(4) of this 
section. Fees for either a photocopy or printout of a record (no more 
than one copy of which need be supplied) are identified on the FOIA web 
page of the Commission's website at www.sec.gov. For copies of records 
produced on tapes, disks, or other media, the Office of FOIA Services 
shall charge the direct costs of producing the copy, including operator 
time. Where paper documents must be scanned to comply with a 
requester's preference to receive the records in an electronic format, 
the requester shall pay the direct costs associated with scanning those 
materials. For all other forms of duplication, the Office of FOIA 
Services shall also charge the direct costs.
    (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

[[Page 30332]]

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 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 each of the following four factors:
    (A) The subject of the request: whether the subject of the 
requested records concerns the operations or activities of the 
government. The subject of the requested records must concern 
identifiable operations or activities of

[[Page 30333]]

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]

0
7. Remove Sec.  200.80e.


Sec.  200.80f  [Removed]

0
8. Remove Sec.  200.80f.

    By the Commission.

    Dated: June 25, 2018.
Brent J. Fields,
Secretary.
[FR Doc. 2018-13943 Filed 6-27-18; 8:45 am]
 BILLING CODE 8011-01-P


