Imágenes de páginas
PDF
EPUB

(vi) The ease or difficulty of a competitor's obtaining or compiling the commercial or financial information;

(vii) Whether the commercial or financial information was voluntarily submitted to the Commission and, if so, whether and how disclosure of the information would tend to impede the availability of similar information to the Commission;

(viii) The extent, if any, to which portions of the substantiation of the request for confidential treatment should be afforded confidential treatment; and

(ix) Such additional facts and such legal and other authorities as the requesting person may consider appropriate.

(e) Appeal from initial determination that confidential treatment is not warranted. (1) If it is determined by the Commission's Freedom of Information Act Officer that confidential treatment is not warranted with respect to all or part of the information in question, the person requesting access to the information under the Freedom of Information Act and the person requesting confidential treatment will be so notified by telephone, telegram or express mail. The person requesting confidential treatment will also be informed that any appeal of such decision must be taken to the Commission's General Counsel within ten calendar days of the date of the notice. Information which is determined not to be entitled to confidential treatment may be released under the Freedom of Information Act ten calendar days after notice to the person requesting confidential treatment. If within that ten calendar day period the General Counsel has actually received an appeal from the person requesting confidential treatment, the person requesting access to the information under the Freedom of Information Act will be informed of the pending appeal and that no disclosure of the information will be made until the appeal is resolved.

(2) Any appeal of a denial of a request for confidential treatment shall be in writing, and shall be clearly and prominently identified on the envelope or other cover and at the top of the first page by the legend "FOIA

Confidential Treatment Appeal." The appeal should be delivered or sent by mail to the General Counsel, with a copy to the Freedom of Information Act Officer. The person requesting confidential treatment may supply additional substantiation of the request for confidential treatment in connection with the appeal to the General Counsel.

(3) The General Counsel shall have the authority to consider all appeals from decisions of the Freedom of Information Act Officer with respect to confidential treatment. All appeals taken under this section will be considered by the General Counsel as expeditiously as circumstances permit. Although other procedures may be employed, to the extent possible, the General Counsel will decide the matter on the basis of the affidavits and other documentary evidence submitted by the interested persons and such other information as is brought to the attention of the General Counsel in accordance with the provisions of § 201.28 of this chapter. The General Counsel shall also have the authority to enter and vacate stays under the circumstances set forth in paragraph (e)(5) of this section. In appropriate cases the General Counsel may, in his or her sole and unfettered discretion, refer appeals and questions concerning stays under paragraph (e)(5) of this section to the Commission for decision.

(4) If it is determined that confidential treatment is not warranted with respect to all or any part of the information in question, the person requesting confidential treatment will be so informed by telephone, if possible, with a telegram or express mail letter directed to the person's last known address. Disclosure of the information under the Freedom of Information Act will occur ten calendar days after notice to the person requesting confidential treatment, subject to any stay entered pursuant to paragraph (e) (5) of this section.

(5) If within that ten calendar day period the General Counsel has been notified that the person requesting confidential treatment has commenced an action in a Federal court concerning the determination to make

such information publicly available, the General Counsel will stay making the public disclosure of the information pending final judicial resolution of the matter. The General Counsel may vacate a stay under this section either on his or her own motion or at the request of a person seeking access to the information under the Freedom of Information Act. If the stay is vacated, the information will be released under the Freedom of Information Act ten calendar days after the person requesting confidential treatment is notified of this action by telephone, if possible, with a telegram or express mail letter sent to the person's last known address, unless the court orders otherwise.

(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(d)(6).

(g) Effect of no prior request for confidentiality. (1) If access is requested under the Freedom of Information Act to information which is submitted to the Commission on or after October 20, 1980 with respect to which no request for confidential treatment has been made pursuant to either paragraph (c)(1) or (c)(4) of this section, it will be presumed that the submitter of the information has waived any interest in asserting an exemption from disclosure under the Freedom of Information Act for reasons of personal privacy or business confidentiality, or for other reasons.

[blocks in formation]

Commission personnel to determine whether the person desires to make a request for confidential treatment. Any request for confidential treatment that is asserted in response to such inquiry shall be made in accordance with provisions of this section.

(h) Extensions of time limits. Any time limit under this section may be extended, in the discretion of the Commission, the Commission's General Counsel, or the Commission's Freedom of Information Act Officer, for good cause shown.

[45 FR 62421, Sept. 19, 1980, as amended at 47 FR 20289, May 12, 1982]

[blocks in formation]

The purpose of this subpart is to implement Part II of Executive Order 10925, which reaffirms the policy expressed in Executive Order No. 10590 of January 18, 1955, with respect to the exclusion and prohibition of discrimination against any employee or applicant for employment in the Federal Government because of race, color, religion, or national origin. This subpart applies to all positions in the Securities and Exchange Commission, whether or not in competitive service and supersedes the "Regulations and Procedures under Executive Order 10590" adopted by the Commission on August 17, 1955.

[blocks in formation]

(e) "Order" means Executive Order 10925 of March 6, 1961.

§ 200.92 Designation Policy Officer.

signed complaint within 90 days from the date of the alleged discrimination, unless such time is extended by the of Employment Employment Policy Officer or the Ex

The Employment Policy Officer of the Commission shall be designated by the Chairman. The Employment Policy Officer may designate, when appropriate, Deputy Employment Policy Officers for each of the regional offices of the Commission to assist the Employment Policy Officer. The positions of the Employment Policy Officer and Deputy Employment Policy Officer shall be established outside the office handling the personnel matters of the Commission unless prior approval is received from the Executive Vice Chairman. In the discharge of his functions, the Employment Policy Officer shall be under the immediate supervision of the Chairman. The name of each Employment Policy Officer, his official title, address and telephone number, and any changes made in his designation, shall be furnished to the Executive Vice Chairman.

§ 200.93 Duties of the Employment Policy Officer.

The Employment Policy Officer shall:

(a) Advise the Chairman with respect to the preparation of regulations, reports, and other matters dealing with the exclusion and prohibition of discrimination under the order.

(b) Process complaints of alleged discrimination in personnel matters within the Commission, and make recommendations to approve administrative officials for such corrective measures as he may deem necessary.

(c) Appraise the personnel operations of the department or agency at regular intervals to assure their continuing conformity to the policy expressed in the order of excluding and prohibiting discrimination.

§ 200.94 Who may file.

Any aggrieved employee of the Commission or qualified applicant for employment in the Commission who believes he has been discriminated against because of race, creed, color or national origin may file a written,

ecutive Vice Chairman for good cause shown. The complaint shall state specifically the action or personnel matter complained of and shall contain a full factual statement to support the allegations made.

§ 200.95 Where to file.

Complaints may be filed with the Employment Policy Officer or with the Committee. Those filed with the Committee may be referred to the appropriate Employment Policy Officer for consideration, or may be processed by the Committee pursuant to 5 CFR 401.22 (26 FR 6580). Where complaints are filed with the Employment Policy Officer or Deputy Employment Policy Officer, he shall transmit a copy of the complaint to the Executive Vice Chairman.

§ 200.96 Processing of complaints; time

limitation.

Within 30 days from receipt of a complaint by the Employment Policy Officer or within such additional time as may be allowed by the Executive Vice Chairman for good cause shown, the Employment Policy Officer shall process the complaint and submit to the Executive Vice Chairman a report on disposition of the complaint. Where the complainant requests a hearing, the report on the disposition of the complaint may be submitted to the Executive Vice Chairman within 60 days after the receipt thereof.

§ 200.97 Investigation.

The Employment Policy Officer shall institute a prompt investigation of each complaint, and shall be responsible for developing a complete case record, including an adequate transcript of agreed summary of any hearing, sufficient to dispose of all relevant issues. Whenever necessary or appropriate for a full development of the case, the investigation shall include an appraisal of employment practices in the organizational segment or unit in which the alleged discrimination occurred. In those in

stances where no discrimination is found, the complainant shall be advised of such finding, of the results of the investigation, and of his right to secure a review by the Executive Vice Chairman.

§ 200.98 Negotiation and settlement.

After completion of the investigation, if the Employment Policy Officer believes there is sufficient justification for the complaint to support an effort to dispose of the matter informally, an attempt should be made to resolve the matter by informal means.

§ 200.99 Opportunity for hearing and review.

(a) In any case not disposed of by informal means, the complainant shall be afforded an opportunity for an oral hearing before the Employment Policy Officer or someone designated by him, at a convenient time and place. At such hearing, the Commission shall produce any witnesses in its employ, upon a showing satisfactory to the hearing officer of reasonable necessity therefor, and the rights of confrontation and of cross-examination (insofar as may be necessary for a development of the facts), shall be preserved. Any requests for the attendance of necessary witnesses in the Commission's employ shall be made in writing of the complainant at least 10 days prior to the date of the hearing.

(b) The complainant shall have the right to inspect any investigative report except where the Executive Vice Chairman determines that any report or portions thereof shall not be disclosed for reasons of national security. The hearing shall be informal and the hearing officer shall make his proposed findings and recommend conclusions upon the basis of the record before him. Where a complainant fails to appear without good cause shown or fails within 60 days to furnish requested information or to otherwise process his complaint, such case may be closed. The Employment Policy Officer may refer cases to the Executive Vice Chairman for study and recommendation after the Employment Policy Officer has formulated his findings and recommendations

and prior to any decision by the Employment Policy Officer.

$ 200.100 Right to counsel.

Parties to proceedings under this regulation shall have the right to be accompanied, represented and advised by counsel, or by other qualified representative.

§ 200.101 Final decision.

The Employment Policy Officer shall make the final decision in the disposition of the case. Where the Employment Policy Officer has referred the case to the Executive Vice Chairman for review and advisory opinion, such final decision may be made only after receipt of the recommendations of the Executive Vice Chairman. Further such final decisions shall be reconsidered whenever reconsideration is recommended or ordered by the Executive Vice Chairman.

§ 200.102 Review of cases by Executive Vice Chairman.

The complainant may request the Employment Policy Officer to forward his case to the Executive Vice Chairman for review. Such request must be made by the complainant within 30 days of the date of final action by the Employment Policy Officer, unless the Executive Vice Chairman shall waive such time limitation upon good cause shown.

§ 200.103 Report of disposition of complaints.

The Employment Policy Officer shall submit to the Executive Vice Chairman a report of the final disposition of each complaint processed by him. The report shall contain the following:

(a) A copy of the complete case record, if requested by the Executive Vice Chairman.

(b) A summary of the complete case record, which shall include the following:

(1) The name and address of the complainant.

(2) The date on which the complaint was filed with or referred to the Employment Policy Officer.

(3) A summary of the complaint indicating the specific type or types of discrimination alleged.

(4) A summary of the results of any appraisal of employment practices and the significant facts disclosed by the investigation and any hearing.

(5) A statement describing disposition of the complaint. If the complaint was withdrawn, the reason for withdrawal should be included.

(6) The date of disposition of the complaint.

§ 200.104

Dissemination of information.

A copy of this subpart shall be posted on all employee bulletin boards and all bulletin boards which are used to announce Federal examinations and job opportunities in the Commission; where bulletin boards are not used, the regulations will be made available to all personnel. Similar publication shall be made of the name and address of the Employment Policy Officer and that of any Deputy Employment Policy Officers in the regional offices serviced by them. Information concerning the Commission's non-discrimination policy and procedures shall be published at least annually.

the

Subpart F-Code of Behavior Governing Ex Parte Communications Between Persons Outside Commission and Decisional Employees

AUTHORITY: Secs. 19, 23, 48 Stat. 85, 901, as amended, sec. 20, 49 Stat. 833, sec. 319, 53 Stat. 1173, secs. 38, 211, 54 Stat. 841, 855; 15 U.S.C. 77s, 78w, 79t, 77sss, 80a-37, 80b-11; sec. 4, Government in the Sunshine Act, Pub. L. 94-409, unless otherwise noted.

§ 200.110 Purpose.

This code is adopted in conformity with section 4 of the Government in the Sunshine Act, Pub. L. 94-409, and is designed to insulate the administrative process from improper influence. [42 FR 14690, Mar. 16, 1977]

§ 200.111 Prohibitions; application; definitions.

(a) Prohibited communications. In any agency proceeding which is subject to this subpart, except to the

extent required for the disposition of ex parte matters as authorized by law:

(1) No interested person outside the agency shall make or knowingly cause to be made to any member of the Commission or decisional employee an ex parte communication relevant to the merits of the proceeding; and

(2) No member of the Commission or decisional employee shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding.

(b) Proceedings to which prohibitions apply. This subpart shall apply to all proceedings subject to 5 U.S.C. 557(a), including suspension proceedings instituted pursuant to the provisions of Regulations A, B, E, and F of the Securities Act of 1933 (§ 230.251 et seq. of this chapter), all review proceedings instituted pursuant to section 19(g) of the Securities Exchange Act of 1934, and all other proceedings where an evidentiary hearing has been ordered pursuant to a statutory provision or rule of the Commission and where the action of the Commission must be taken on the basis of an evidentiary record. In addition, this subpart shall apply to any other proceeding in which the Commission SO orders.

(c) Period during which prohibitions apply. (1) The prohibitions in § 200.111 (a) shall begin to apply when the Commission issues an order for hearing; Provided,

(i) That in suspension proceedings pursuant to Regulations A, B, E and F of the Securities Act of 1933 (§ 230.251 et seq. of this chapter), these prohibitions shall commence when the Commission enters an order temporarily suspending the exemption; and

(ii) That in proceedings under section 19(d) of the Securities Exchange Act of 1934 these prohibitions shall commence from the time that a copy of an application for review has been served by the Secretary upon the selfregulatory organization; and

(iii) In no case shall the prohibitions in § 200.111(a) begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in

« AnteriorContinuar »