[Federal Register Volume 84, Number 187 (Thursday, September 26, 2019)]
[Rules and Regulations]
[Pages 50737-50739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20369]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 200, 201, 229, 230, and 240

[Release No. 34-86982; File No. S7-09-17]


Technical Amendments To Update Cross-References to Commission's 
FOIA Regulations

AGENCY: Securities and Exchange Commission.

ACTION: Final rule; technical amendments.

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SUMMARY: The Securities and Exchange Commission (``SEC'' or 
``Commission'') is adopting technical amendments to update cross-
references to reflect amendments to the Commission's Freedom of 
Information Act (``FOIA'') regulations published as a final rule on 
June 28, 2018.

DATES: Effective September 26, 2019.

FOR FURTHER INFORMATION CONTACT: Mark Tallarico, Senior Counsel, (202) 
551-5132, Office of the General Counsel, Securities and Exchange 
Commission, 100 F Street NE, Washington, DC 20549-9150.

SUPPLEMENTARY INFORMATION:

I. Background

    On June 28, 2018, the Commission published a final rule amending 
its FOIA regulations at 17 CFR 200.80 (Securities and Exchange 
Commission records and information). Because of the breadth of the 
amendments, the final rule removed the Commission's prior FOIA 
regulations in their entirety (Sec.  200.80 and appendices A through F) 
and replaced them with new regulations (Sec.  200.80).
    In light of the 2018 amendments of its FOIA regulations, the 
Commission is now adopting technical amendments to other sections of 
title 17, chapter II of the Code of Federal Regulations to update 
cross-references to the Commission's FOIA regulations (Sec.  200.80) 
that are contained in those sections.

II. Administrative Law Matters

    The Administrative Procedure Act (``APA'') generally requires an 
agency to publish notice of a rulemaking in the Federal Register and 
provide an opportunity for public comment. This requirement does not 
apply, however, if the agency ``for good cause finds . . . that notice 
and public procedure are impracticable, unnecessary, or contrary to the 
public interest.'' \1\ The technical amendments do not impose any new 
substantive regulatory requirements on any person. The technical 
amendments merely update cross-references in the Commission's 
regulations. These amendments are therefore ministerial in nature. For 
these reasons, there is good cause for the Commission to find that it 
is unnecessary to publish notice of these amendments in the Federal 
Register or to solicit public comment thereon.\2\ Although the APA 
generally requires publication of a rule at least 30 days before its 
effective date, for similar reasons we further find there is good cause 
for the amendments to take effect on September 26, 2019. Additionally, 
the provisions of the Regulatory Flexibility Act, which apply only when 
notice and comment are required by the APA or other law, are not 
applicable.\3\ These amendments do not contain any collection of 
information requirements as defined by the Paperwork Reduction Act of 
1995.\4\
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    \1\ U.S.C. 553(b)(3)(B).
    \2\ This finding also satisfies the requirements of 5 U.S.C. 
808(2), allowing the amendments to become effective notwithstanding 
the requirement of 5 U.S.C. 801.
    \3\ 5 U.S.C. 601 et seq.
    \4\ 44 U.S.C. 3501 et seq.
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    Pursuant to the Congressional Review Act,\5\ the Office of 
Information and Regulatory Affairs has designated this final rule as 
not a ``major rule,'' as defined by 5 U.S.C. 804(2).
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    \5\ 5 U.S.C. 801 et seq.
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III. Economic Analysis

    We are adopting technical amendments to update cross-references to 
Commission rules in light of recent amendments to the Commission's FOIA 
regulations. These amendments merely make conforming changes to 
Commission rules that cross-reference the FOIA regulations and do not 
impose any substantive regulatory obligations on any person or 
otherwise. We expect the amendments to help eliminate potential 
confusion that could result from outdated cross-references. We do not 
believe they will have any substantial economic effects, including on 
efficiency, competition, or capital formation. Further, because the 
amendments impose no new burdens on private parties, the Commission 
does not believe that the amendments will have any impact on 
competition for purposes of section 23(a)(2) of the Securities Exchange 
Act of 1934 (``Exchange Act'').\6\
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    \6\ 15 U.S.C. 78w(a)(2).
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IV. Statutory Authority

    These technical amendments are adopted pursuant to statutory 
authority granted to the Commission under Section 19(a) of the 
Securities Act of 1933 and section 23(a) of the Exchange Act.

List of Subjects

17 CFR Part 200

    Authority delegations (Government agencies), Freedom of 
information, Organization and functions (Government agencies), 
Reporting and recordkeeping requirements.

17 CFR Part 201

    Administrative practice and procedure.

17 CFR Part 229

    Reporting and recordkeeping requirements.

17 CFR Part 230

    Confidential business information, Reporting and recordkeeping 
requirements.

17 CFR Part 240

    Confidential business information, Reporting and recordkeeping 
requirements.

Text of Amendments

    For the reasons set out above, the Commission is amending title 17, 
chapter II, of the Code of Federal Regulations as follows:

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

Subpart A--Organization and Program Management

0
 1. The general authority citation for part 200, subpart A, continues 
to read as follows:

    Authority: 15 U.S.C. 77c, 77o, 77s, 77z-3, 77sss, 78d, 78d-1, 
78d-2, 78o-4, 78w, 78ll(d), 78mm, 80a-37, 80b-11, 7202, and 7211 et 
seq., unless otherwise noted.
* * * * *

0
2. Amend Sec.  200.30-14 by revising paragraph (c) to read as follows:

[[Page 50738]]

Sec.  200.30-14  Delegation of authority to the General Counsel.

* * * * *
    (c) Determine the appropriate disposition of all Freedom of 
Information Act and confidential treatment appeals in accordance with 
Sec. Sec.  200.80(f) and (g)(12) and 200.83(e), (f), and (h).
* * * * *

Subpart D--Information and Requests


0
 3. The general authority citation for part 200, subpart D, continues 
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.
* * * * *

0
4. Amend Sec.  200.83 by revising paragraphs (c)(8), (f), and (g) to 
read as follows:


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

* * * * *
    (c) * * *
    (8) A confidential treatment request shall be nonpublic. If an 
action is filed in a Federal court, however, by either the Freedom of 
Information Act requester (under 5 U.S.C. 552(a)(4) and Sec.  
200.80(f)) or by the confidential treatment requester (under paragraph 
(e)(5) of this section), the confidential treatment request may become 
part of the court record.
* * * * *
    (f) Initial determination that confidential treatment is warranted. 
If it is determined by the Commission's Freedom of Information Act 
Officer that confidential treatment is warranted, the person submitting 
the information and the person requesting access to the information 
under the Freedom of Information Act will be so informed by mail. The 
person requesting access, pursuant to the Freedom of Information Act, 
will also be informed of the right to appeal the determination to the 
General Counsel. Any such appeal must be taken in accordance with the 
provisions of the Freedom of Information Act and Commission rules 
thereunder. See 17 CFR 200.80(f).
    (g) Confidential treatment request and substantiation as nonpublic. 
Any confidential treatment request and substantiation of it shall be 
nonpublic. If an action is filed in a Federal court, however, by the 
Freedom of Information Act requester (under 5 U.S.C. 552(a)(4) and 
Sec.  200.80(f)) or by the confidential treatment requester (under 
paragraph (e)(5) of this section), both the request and substantiation 
may become part of the public court record.
* * * * *

Subpart I--Regulations Pertaining to Public Observation of 
Commission Meetings

0
5. The authority citation for part 200, subpart I, continues to read as 
follows:

    Authority: 5 U.S.C. 552b, unless otherwise noted. Section 
200.410 also is issued under 29 U.S.C. 794.


0
 6. Amend Sec.  200.408 by revising paragraph (a) to read as follows:


Sec.  200.408   Public access to transcripts and minutes of closed 
Commission meetings; record retention.

    (a) Public access to record. Within 20 days (excluding Saturdays, 
Sundays, and legal holidays) of the receipt by the Commission's Freedom 
of Information Act (``FOIA'') Officer of a written request, or within 
such extended period as may be agreeable to the person making the 
request, the Secretary shall make available for inspection by any 
person in the Commission's Public Reference Room, the transcript, 
electronic recording, or minutes (as required by Sec.  200.407(a) or 
(b)) of the discussion of any item on the agenda, except for such item 
or items as the Freedom of Information Act Officer determines to 
involve matters which may be withheld under Sec.  200.402 or otherwise. 
Copies of such transcript, or minutes, or a transcription of such 
recording disclosing the identity of each speaker, shall be furnished 
to any person at the actual cost of duplication, as identified on the 
FOIA web page of the Commission's website at http://www.sec.gov, and, 
if a transcript is prepared, the actual cost of such transcription.
* * * * *

PART 201--RULES OF PRACTICE

Subpart D--Rules of Practice

0
 7. The authority citation for part 201, subpart D, continues to read 
as follows:

     Authority:  15 U.S.C. 77f, 77g, 77h, 77h-1, 77j, 77s, 77u, 
77sss, 77ttt, 78c(b), 78d-1, 78d-2, 78l, 78m, 78n, 78o(d), 78o-3, 
78o-10(b)(6), 78s, 78u-2, 78u-3, 78v, 78w, 80a-8, 80a-9, 80a-37, 
80a-38, 80a-39, 80a-40, 80a-41, 80a-44, 80b-3, 80b-9, 80b-11, 80b-
12, 7202, 7215, and 7217.


0
8. Amend Sec.  201.230 by revising paragraph (f) to read as follows:


Sec.  201.230   Enforcement and disciplinary proceedings: Availability 
of documents for inspection and copying.

* * * * *
    (f) Copying costs and procedures. The respondent may obtain a 
photocopy of any documents made available for inspection. The 
respondent shall be responsible for the cost of photocopying. Unless 
otherwise ordered, charges for copies made by the Division of 
Enforcement at the request of the respondent will be at the rate 
charged pursuant to the fee schedule identified on the Freedom of 
Information Act (``FOIA'') web page of the Commission's website at 
http://www.sec.gov for copies. The respondent shall be given access to 
the documents at the Commission's offices or such other place as the 
parties may agree during normal business hours for copying of documents 
at the respondent's expense.
* * * * *

PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES 
ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND 
CONSERVATION ACT OF 1975--REGULATION S-K

0
 9. The authority citation for part 229 continues to read as follows:

    Authority:  15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 
77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 
77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78l, 78m, 78n, 78n-1, 78o, 78u-
5, 78w, 78ll, 78mm, 80a-8, 80a-9, 80a-20, 80a-29, 80a-30, 80a-31(c), 
80a-37, 80a-38(a), 80a-39, 80b-11 and 7201 et seq.; 18 U.S.C. 1350; 
sec. 953(b), Pub. L. 111-203, 124 Stat. 1904 (2010); and sec. 
102(c), Pub. L. 112-106, 126 Stat. 310 (2012).

Subpart 229.400--Management and Certain Security Holders

0
10. Amend Sec.  229.402 by revising paragraph 4 in the Instructions to 
Item 402(b) following paragraph (b)(2)(xv) to read as follows:


Sec.  229.402   (Item 402) Executive compensation.

* * * * *
    (b) * * *
    (2) * * *
    (xv) * * *
    Instructions to Item 402(b).
* * * * *
    4. Registrants are not required to disclose target levels with 
respect to specific quantitative or qualitative performance-related 
factors considered by the compensation committee or the board of 
directors, or any other factors or criteria involving confidential 
trade secrets or confidential commercial or financial information, the 
disclosure of which would result in competitive harm

[[Page 50739]]

for the registrant. The standard to use when determining whether 
disclosure would cause competitive harm for the registrant is the same 
standard that would apply when a registrant requests confidential 
treatment of confidential trade secrets or confidential commercial or 
financial information pursuant to Securities Act Rule 406 (17 CFR 
230.406) and Exchange Act Rule 24b-2 (17 CFR 240.24b-2), each of which 
incorporates the criteria for non-disclosure when relying upon 
Exemption 4 of the Freedom of Information Act (5 U.S.C. 552(b)(4)). A 
registrant is not required to seek confidential treatment under the 
procedures in Securities Act Rule 406 and Exchange Act Rule 24b-2 if it 
determines that the disclosure would cause competitive harm in reliance 
on this instruction; however, in that case, the registrant must discuss 
how difficult it will be for the executive or how likely it will be for 
the registrant to achieve the undisclosed target levels or other 
factors.
* * * * *

PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933

0
 11. In part 230:
0
a. The general authority citation for part 230 continues to read as set 
forth below; and
0
b. The specific authority citation for Sec. Sec.  230.400 to 230.499 is 
revised; and
0
c. A specific authority citation for Sec.  230.457 is added.
    The authorities read as follows:

    Authority: 15 U.S.C. 77b, 77b note, 77c, 77d, 77f, 77g, 77h, 
77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78o-
7 note, 78t, 78w, 78ll(d), 78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-
30, and 80a-37, and Pub. L. 112-106, sec. 201(a), sec. 401, 126 
Stat. 313 (2012), unless otherwise noted.
* * * * *
    Sections 230.400 to 230.499 issued under secs. 6, 8, 10, 19, 48 
Stat. 78, 79, 81, and 85, as amended (15 U.S.C. 77f, 77h, 77j, 77s).
    Sec. 230.457 also issued under secs. 6 and 7, 15 U.S.C. 77f and 
77g.
* * * * *

Regulation C--Registration

0
12. The authority citation under the undesignated center heading 
``Regulation C--Registration'' is removed.

0
13. Amend Sec.  230.406 by:
0
 a. Removing preliminary notes (1) and (2);
0
b. Adding introductory text; and
0
 c. Revising paragraph (b)(2)(ii).
    The addition and revision read as follows:


Sec.  230.406   Confidential treatment of information filed with the 
Commission.

    Confidential treatment of supplemental information or other 
information not required to be filed under the Act should be requested 
under 17 CFR 200.83 and not under this rule. All confidential treatment 
requests shall be submitted in paper format only, whether or not the 
filer is an electronic filer. See Rule 101(c)(1)(i) of Regulation S-T 
(Sec.  232.101(c)(1)(i) of this chapter).
* * * * *
    (b) * * *
    (2) * * *
    (ii) A statement of the grounds of the objection referring to and 
analyzing the applicable exemption(s) from disclosure under the Freedom 
of Information Act (5 U.S.C. 552) and a justification of the period of 
time for which confidential treatment is sought;
* * * * *

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1934

0
 14. The general authority citation for part 240 continues to read as 
follows:

     Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 
78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 
78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 
80a-23, 80a-29, 80a--37, 80b-3, 80b-4, 80b-11, 7201 et seq.; and 
8302; 7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C. 1350; and 
Pub. L. 111-203, 939A, 124 Stat. 1887 (2010); and secs. 503 and 602, 
Pub. L. 112-106, 126 Stat. 326 (2012), unless otherwise noted.
* * * * *

Subpart A--Rules and Regulations Under the Securities Exchange Act 
of 1934

0
15. Amend Sec.  240.10A-1 by revising paragraph (c) introductory text 
to read as follows:


Sec.  240.10A-1   Notice to the Commission Pursuant to Section 10A of 
the Act.

* * * * *
    (c) A notice or report submitted to the Office of the Chief 
Accountant in accordance with paragraphs (a) and (b) of this section 
shall be deemed to be an investigative record and shall be nonpublic 
and exempt from disclosure pursuant to the Freedom of Information Act 
to the same extent and for the same periods of time that the 
Commission's investigative records are nonpublic and exempt from 
disclosure under, among other applicable provisions, 5 U.S.C. 
552(b)(7). Nothing in this paragraph, however, shall relieve, limit, 
delay, or affect in any way, the obligation of any issuer or any 
independent accountant to make all public disclosures required by law, 
by any Commission disclosure item, rule, report, or form, or by any 
applicable accounting, auditing, or professional standard.
* * * * *

0
16. Amend Sec.  240.24b-2 by revising paragraph (b)(2) to read as 
follows:


Sec.  240.24b-2   Nondisclosure of information filed with the 
Commission and with any exchange.

* * * * *
    (b) * * *
    (2) An application making objection to the disclosure of the 
confidential portion. Such application shall be on a sheet or sheets 
separate from the confidential portion, and shall contain:
    (i) An identification of the portion;
    (ii) A statement of the grounds of objection referring to, and 
containing an analysis of, the applicable exemption(s) from disclosure 
under the Freedom of Information Act (5 U.S.C. 552(b)), and a 
justification of the period of time for which confidential treatment is 
sought;
    (iii) A written consent to the furnishing of the confidential 
portion to other government agencies, offices or bodies and to the 
Congress; and
    (iv) The name of each exchange, if any, with which the material is 
filed.
* * * * *

    By the Commission.

    Dated: September 17, 2019.
Vanessa Countryman,
Secretary.
[FR Doc. 2019-20369 Filed 9-25-19; 8:45 am]
 BILLING CODE 8011-01-P


