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(vi) The ease or difficulty of a com- Confidential Treatment Appeal.” The petitor's obtaining or compiling the appeal should be delivered or sent by commercial or financial information; mail to the General Counsel, with a

(vii) Whether the commercial or fi- copy to the Freedom of Information nancial information was voluntarily Act Officer. The person requesting submitted to the Commission and, if confidential treatment may supply adso, whether and how disclosure of the ditional substantiation of the request information would tend to impede the for confidential treatment in connecavailability of similar information to tion with the appeal to the General the Commission;

Counsel. (viii) The extent, if any, to which (3) The General Counsel shall have portions of the substantiation of the the authority to consider all appeals request for confidential treatment from decisions of the Freedom of Inshould be afforded confidential treat- formation Act Officer with respect to ment; and

confidential treatment. All appeals (ix) Such additional facts and such taken under this section will be considlegal and other authorities as the re- ered by the General Counsel as expequesting person may consider appro- ditiously as circumstances permit. Alpriate.

though other procedures may be em(e) Appeal from initial determina- ployed, to the extent possible, the tion that confidential treatment is not General Counsel will decide the warranted. (1) If it is determined by matter on the basis of the affidavits the Commission's Freedom of Infor- and other documentary evidence submation Act Officer that confidential mitted by the interested persons and treatment is not warranted with re- such other information as is brought spect to all or part of the information to the attention of the General Counin question, the person requesting sel in accordance with the provisions access to the information under the of $ 201.28 of this chapter. The GenerFreedom of Information Act and the al Counsel shall also have the authorperson requesting confidential treat- ity to enter and vacate stays under the ment will be so notified by telephone, circumstances set forth in paragraph telegram or express mail. The person (e)(5) of this section. In appropriate requesting confidential treatment will cases the General Counsel may, in his also be informed that any appeal of or her sole and unfettered discretion, such decision must be taken to the refer appeals and questions concerning Commission's General Counsel within stays under paragraph (e)(5) of this ten calendar days of the date of the section to the Commission for deci. notice. Information which is deter- sion. mined not to be entitled to confiden- (4) If it is determined that confidential treatment may be released under tial treatment is not warranted with the Freedom of Information Act ten respect to all or any part of the inforcalendar days after notice to the mation in question, the person reperson requesting confidential treat- questing confidential treatment will be ment. If within that ten calendar day so informed by telephone, if possible, period the General Counsel has actu- with a telegram or express mail letter ally received an appeal from the directed to the person's last known adperson requesting confidential treat- dress. Disclosure of the information ment, the person requesting access to under the Freedom of Information Act the information under the Freedom of will occur ten calendar days after Information Act will be informed of notice to the person requesting confithe pending appeal and that no disclo- dential treatment, subject to any stay sure of the information will be made entered pursuant to paragraph (e) (5) until the appeal is resolved.

of this section. (2) Any appeal of a denial of a re- (5) If within that ten calendar day quest for confidential treatment shall period the General Counsel has been be in writing, and shall be clearly and notified that the person requesting prominently identified on the enve- confidential treatment has lope or other cover and at the top of menced an action in a Federal court the first page by the legend “FOIA concerning the determination to make

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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)

Subpart E-Regulation Regarding Equal Employment Opportunity

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, 790, 77sss, 80a-37, 80b-11.

SOURCE: 26 FR 11290, Nov. 30, 1961, unless otherwise noted.

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.

(2) Notwithstanding paragraph (g)(1) of this section, in appropriate circumstances, any person who would be affected by the public disclosure of information under the Freedom of Information Act may be contacted by

$ 200.90 General statement.

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.

$ 200.91 Definitions.

(a) “Commission” means the Securities and Exchange Commission.

(b) “Committee" means the President's Committee on Equal Employment Opportunity.

(c) "Chairman” means the Chairman of the Securities and Exchange Commission.

(d) “Executive Vice Chairman” means the Executive Vice Chairman of the Committee.

(e) "Order" means Executive Order signed complaint within 90 days from 10925 of March 6, 1961.

the date of the alleged discrimination,

unless such time is extended by the 8 200.92 Designation of Employment Employment Policy Officer or the ExPolicy Officer.

ecutive Vice Chairman for good cause The Employment Policy Officer of shown. The complaint shall state spethe Commission shall be designated by cifically the action or personnel the Chairman. The Employment matter complained of and shall conPolicy Officer may designate, when tain a full factual statement to supappropriate, Deputy Employment port the allegations made. Policy Officers for each of the regional offices of the Commission to assist 8 200.95 Where to file. the Employment Policy Officer. The

Complaints may be filed with the positions of the Employment Policy Officer

Employment Policy Officer or with and Deputy Employment

the Committee. Those filed with the Policy Officer shall be established outside the office handling the personnel

Committee may be referred to the ap

propriate Employment Policy Officer matters of the Commission unless prior approval is received from the Ex

for consideration, or may be processed

by the Committee pursuant to 5 CFR ecutive Vice Chairman. In the dis

401.22 (26 FR 6580). Where complaints charge of his functions, the Employ

are filed with the Employment Policy ment Policy Officer shall be under the immediate supervision of the Chair

Officer or Deputy Employment Policy

Officer, he shall transmit a copy of man. The name of each Employment

the complaint to the Executive Vice Policy Officer, his official title, ad

Chairman. dress and telephone number, and any changes made in his designation, shall

$ 200.96 Processing of complaints; time be furnished to the Executive Vice

limitation. Chairman.

Within 30 days from receipt of a 8 200.93 Duties of the Employment Policy complaint by the Employment Policy Officer.

Officer or within such additional time The Employment Policy Officer as may be allowed by the Executive shall:

Vice Chairman for good cause shown, (a) Advise the Chairman with re

the Employment Policy Officer shall spect to the preparation of regula- process the complaint and submit to tions, reports, and other matters deal

the Executive Vice Chairman a report ing with the exclusion and prohibition

disposition of the complaint. of discrimination under the order.

Where the complainant requests a (b) Process complaints of alleged dis

hearing, the report on the disposition crimination in personnel matters

of the complaint may be submitted to within the Commission, and make rec

the Executive Vice Chairman within ommendations to approve administra

60 days after the receipt thereof. tive officials for such corrective measures as he may deem necessary.

$ 200.97 Investigation. (c) Appraise the personnel oper- The Employment Policy Officer ations of the department or agency at shall institute a prompt investigation regular intervals to assure their con- of each complaint, and shall be retinuing conformity to the policy ex- sponsible for developing a complete pressed in the order of excluding and case record, including an adequate prohibiting discrimination.

transcript of agreed summary of any

hearing, sufficient to dispose of all rel$ 200.94 Who may file.

evant issues. Whenever necessary or Any aggrieved employee of the Com- appropriate for a full development of mission or qualified applicant for em- the case, the investigation shall inployment in the Commission who be- clude an appraisal of employment lieves has been discriminated practices in the organizational segagainst because of race, creed, color or ment or unit in which the alleged disnational origin may file a written, crimination occurred. In those in

on

he

and prior to any decision by the Employment Policy Officer.

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.

$ 200.100 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.

$ 200.98 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.

$ 200.101 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.

$ 200.99 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

$ 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 com

plaints. 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.

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 provi. sions 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 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

SO

Subpart F-Code of Behavior Gov

erning Ex Parte Communications Between Persons Outside the 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. 77, 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; defini

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

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