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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.

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) 5515132, 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 (§ 200.80 and appendices A through F) and replaced them with new regulations

(§ 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 (§ 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

U.S.C. 553(b)(3)(B).

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.

5 U.S.C. 601 et seq.

44 U.S.C. 3501 et seq.

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).

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 crossreferences. 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

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

5 U.S.C. § 801 et seq.

15 U.S.C. § 78w(a)(2).

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

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.

* * * * *

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

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

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confidential treatment appeals in accordance with §§ 200.80(f) and (g)(12) and 200.83(e), (f),

and (h).

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Subpart D—Information and Requests

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.

* * * * *

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

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

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(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

§ 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.

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(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

§ 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

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.

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

§ 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 §

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 § 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

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.

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

§ 201.230 Enforcement and disciplinary proceedings: Availability of documents for

inspection and copying.

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(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

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, 80a38(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

10. Amend § 229.402 by revising paragraph 4 in the Instructions to Item 402(b) following

paragraph (b)(2)(xv) to read as follows:

§ 229.402 (Item 402) Executive compensation.

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(b) * * *

(2) * * *

(xv) * * *

Instructions to Item 402(b).

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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

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.

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

11. In part 230:

a. The general authority citation for part 230 continues to read as set forth below; and

b. The specific authority citation for §§ 230.400 to 230.499 is revised; and

c. A specific authority citation for § 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, 80a29, 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

12. The authority citation under the undesignated center heading “Regulation C” is removed.

13. Amend § 230.406 by:

a. Removing preliminary notes (1) and (2);

Adding introductory text; and

c. Revising paragraph (b)(2)(ii).

The addition and revision read as follows:

§ 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 (§232.101(c)(1)(i) of this chapter).

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(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

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, 78o4, 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

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

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

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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.

*****

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

§ 240.24b-2 Nondisclosure of information filed with the Commission and with any

exchange.

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(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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.