[Federal Register Volume 83, Number 125 (Thursday, June 28, 2018)]
[Rules and Regulations]
[Pages 30322-30333]
[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,<PHONE_NUMBER>; 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

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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    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

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

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

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<PHONE_NUMBER>, 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<PHONE_NUMBER>), email ([email protected]), or online at the
Commission's website (http://www.sec.gov). The request (and envelope,
if the request is mailed or hand-delivered) should be marked ``Freedom
of Information Act Request.''
    (2) Requests for records about oneself or another individual. (i) A
requester who is making a request for records about himself or herself
must comply with the verification of identity provisions set forth in
subpart H of this part to obtain any documents that would not be
available to the public under the FOIA.
    (ii) For requests for records about another individual, a requester
may receive greater access by submitting either a notarized
authorization signed by the individual permitting disclosure of his or
her records or proof that the individual is deceased (e.g., a copy of a
death certificate or an obituary). The Office of FOIA Services can
require a requester to supply additional information if necessary to
verify that a particular individual has consented to disclosure.
    (3) Description of records sought. A FOIA request must reasonably
describe the agency records sought with sufficient specificity with
respect to names, dates, and subject matter to enable personnel within
the divisions and offices of the Commission to locate them with a
reasonable effort. Before submitting a request, a requester may contact
the Office of FOIA Services' FOIA Public Liaisons to discuss the
records they are seeking and to receive assistance in describing the
records (contact information for these individuals is on the
Commission's website, http://www.sec.gov). If the Office of FOIA
Services determines that a request does not reasonably describe the
records sought, it shall inform the requester what additional
information is needed or how the request is insufficient. A requester
who is attempting to reformulate or modify such a request may discuss
the request with the Office of FOIA Services' designated FOIA contact,
its FOIA Public Liaisons, or a representative of the Office of FOIA
Services, each of whom is available to assist the requester in
reasonably describing the records sought. When a requester fails to
provide sufficient information within 30 calendar days after having
been asked to reasonably describe the records sought, the Office of
FOIA Services shall notify the requester in writing that the request
has not been properly made, that no further action will be taken, and
that the FOIA request is closed. Such a notice constitutes an adverse
determination under paragraph (e)(2) of this section for which the
Office of FOIA Services shall follow the procedures for a denial letter
under paragraph (e)(2) of this section. In cases where a requester has
modified his or her request so that it reasonably describes the
requested records, the date of receipt for purposes of the 20-day time
limit of paragraph (d) of this section shall be the date of receipt of
the modified request.
    (c) Processing requests--(1) In general. (i) A request for records
may be denied to the extent the exemptions in 5 U.S.C. 552(b) apply to
the requested records and:
    (A) Commission staff reasonably foresees that disclosure would harm
an interest protected by the applicable exemption; or
    (B) The disclosure of the requested records is prohibited by law or
is exempt from disclosure under 5 U.S.C. 552(b)(3).
    (ii) In determining which records are responsive to a request, the
Office of FOIA Services ordinarily will include only records in the
agency's possession as of the date that it begins its search.

    (2) Re-routing of misdirected requests. Any division or office
within the Commission that receives a written request for records
should promptly forward the request to the Office of FOIA Services for
processing.
    (3) Consultation, referral, and coordination. When reviewing
records located in response to a request, the Office of FOIA Services
will determine whether another Federal agency is better able to
determine if the record is exempt from disclosure under the FOIA. As to
any such record, the Office of FOIA Services will proceed in one of the
following ways:
    (i) Consultation. In instances where a record is requested that
originated within a division or office within the Commission and
another Federal agency has a significant interest in the record (or a
portion thereof), the Office of FOIA Services will consult with that
Federal agency before responding to a requester. When the Office of
FOIA Services receives a request for a record (or a portion thereof) in
its possession that originated with another entity within the Federal
Government that is not subject to the FOIA, the Office of FOIA Services
will typically consult with that entity prior to making a release
determination.
    (ii) Referral. When the Office of FOIA Services receives a request
for a record (or a portion thereof) in its possession that originated
with another Federal agency subject to the FOIA, the Office of FOIA
Services will typically refer the record to that agency for direct
response to the requester. Ordinarily, the agency that originated the
record will be presumed to be best able to make the disclosure
determination. However, if the Office of FOIA Services and the
originating agency jointly agree that the Office of FOIA Services is in
the best position to make a disclosure determination regarding the
record, then the record may be handled as a consultation and processed
by the Office of FOIA Services. Whenever the Office of FOIA Services
refers a record to another Federal agency for direct response to the
requester, the Office of FOIA Services shall notify the requester in
writing of the referral and inform the requester of the name of the
agency to which the record was referred.
    (iii) Coordination. If disclosure of the identity of the agency to
which the referral would be made could harm an interest protected by an
exemption, the Office of FOIA Services generally will coordinate with
the originating agency to seek its views as to disclosure of the record
and then advise the requester of the release determination for the
record that is the subject of the coordination.
    (iv) Classified information. On receipt of any request involving
classified information, the Commission staff in possession of the
information shall determine whether the information is currently and
properly classified and take appropriate action to ensure compliance
with subpart J of this part. Whenever a request involves a record
containing information that has been classified or may be appropriate
for classification by another Federal agency under an executive order
concerning the classification of records, the Office of FOIA Services
shall refer the responsibility for responding to the request regarding
that information to the agency that classified the information, or that
should consider the information for classification. Whenever agency
records contain information that has been classified by another Federal
agency, the Office of FOIA Services shall refer the responsibility for
responding to that portion of the request to the agency that classified
the underlying information except in circumstances that come within
paragraph (c)(3)(iii) of this section.
    (d) Time limits and expedited processing--(1) In general. The
Office of FOIA Services will seek to respond to requests according to
their order of receipt within each track of the Office of FOIA
Services' multitrack processing 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

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

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<PHONE_NUMBER>, 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:

----------------------------------------------------------------------------------------------------------------
         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

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

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]

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Sec.  200.80b  [Removed]

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Sec.  200.80c  [Removed]

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Sec.  200.80d  [Removed]

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Sec.  200.80e  [Removed]

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Sec.  200.80f  [Removed]

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    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