SEC Release 33-6775

Release No. 33-6775

Release No. 34-25683

Release No. 35-24640

Release No. 39-2164

Release No. IA-1116

Release No. IC-16396

May 10, 1988

Delegation of Authority to the Office of General Counsel.

ACTION: Final rule.

SUMMARY: The General Counsel will be delegated authority to approve non-expert, non-privileged, factual staff testimony and the production of nonprivileged documents by Commission employees pursuant to validly issued subpoenas in private litigation.

EFFECTIVE DATE: (Upon publication in the Federal Register).

FOR FURTHER INFORMATION CONTACT: Richard Humes, Assistant General Counsel, 272-2454, Jeri Cohen, Attorney, 272-2453

SUPPLEMENTARY INFORMATION: The Commission finds in accordance with the Administrative Procedure Act 5 U.S.C. 553(b)(3)(A), that this revision relates solely to agency organization, procedures, or practices. It is therefore not subject to the provisions of the Administrative Procedure Act requiring notice and opportunity for comment. Accordingly, it is effective upon publication in the Federal Register.

TEXT OF AMENDMENTS

Title 17, Chapter II of the Code of Federal Regulations is hereby amended as follows:

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

1. The authority citation for Part 200, Subpart A continues to reads as follows:

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, unless otherwise noted. * * * §200.30-14 also issued under Pub. L. 94-29, 89 Stat. 163, Pub. L. 87-592, 76 Stat. 395, 15 U.S.C., 78d-1, 78d-2, 5 U.S.C. 552a(d)(2) (B)(ii).

2. A new paragraph (f) is added to §200.30-14 to read as follows:

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

* * * * *

(f) Approve non-expert, nonprivileged, factual staff testimony and the production of nonprivileged documents when validly subpoenaed in private litigation.

3. The authority citation for Part 200, subpart M continues to read as follows:

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, 79sss, 80a-37, 80b-11; E.D. 11222;3 CFR, 1964-65 Comp., 5 CFR 735.104, unless otherwise noted.

4. §200.735-3 is amended by revising paragraph (b)(7)(ii), and the last sentence of paragraph (b)(7)(iii) as follows:

§200.735-3 General provisions.

* * * * *

(b) * * *

(7)(i) * * *

(ii) Except where the General Counsel has previously granted approval or in relation to a Commission administrative proceeding or a judicial proceeding in which the Commission, or a present or former Commissioner, or present or former member of the staff, represented by Commission counsel, is a party, any officer, employee or former officer or employee who is served with a subpoena requiring the disclosure of confidential or non-public information or documents shall, unless the Commission or the General Counsel, pursuant to delegated authority, authorizes the disclosure of such information or documents, respectfully decline to disclose the information or produce the documents called for, basing his or her refusal on this paragraph.

(iii) * * *

The Commission or the General Counsel, pursuant to delegated authority, shall authorize the disclosure of nonprivileged information or documents.

* * * * *

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

5. The authority citation for Part 230 continues to read as follows:

Authority: Sections 230.100 to 230.174 issued under Sec. 19, 48 Stat. 85, as amended; 15 U.S.C. 77s, unless otherwise noted.

6. The second and fourth sentences of §230.122 are revised as follows:

§230.122. Non-disclosure of information obtained in the course of examinations and investigations.

* * * Except as provided by 17 CFR 203.2, officers and employees are hereby prohibited from making such confidential information or documents or any other non-public records of the Commission available to anyone other than a member, officer or employee of the Commission, unless the Commission or the General Counsel, pursuant to delegated authority, authorizes the disclosure of such information or the production of such documents as not being contrary to the public interest. * * * Any officer or employee who is served with such a subpoena, the nature of the information or documents sought, and any circumstances which may bear upon the desirability of making available such information or documents.

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

7. The authority citation for part 240 continues to read as follows:

Authority: Sec. 23, 48 Stat. 901, as amended; 15 U.S.C. 78w, unless otherwise noted.

8. The second and fourth sentences of §240.0-4 are revised as follows:

§240.0-4 Nondisclosure of information obtained in examinations and investigations.

* * * Except as provided by 17 CFR 203.2, officers and employees are hereby prohibited from making such confidential information or documents or any other non-public records of the Commission available to anyone other than a member, officer or employee of the Commission, unless the Commission or the General Counsel, pursuant to delegated authority, authorizes the disclosure of such information or the production of such documents as not being contrary to the public interest. * * * Any officer or employee who is served with such a subpoena shall promptly advise the General Counsel of the service of such subpoena, the nature of the information or documents sought, and any circumstances which may bear upon the desirability of making available such information or documents.

PART 250--GENERAL RULES AND REGULATIONS, PUBLIC UTILITY HOLDING COMPANY ACT OF 1935

9. The authority citation for part 250 continues to read as follows: Authority: 15 U.S.C. 79u, 79t.

10. §250.104 is amended by revising the second sentence of paragraph (c) and revising and designating the concluding paragraph as paragraph (d) as follows:

§250.104 Public disclosure of information and objections thereto.

* * * * *

* * *

(d) Any officer or employee who is served with such a subpoena, shall promptly advise the General Counsel of the service of such subpoena, the nature of the information or documents sought, and any circumstances which may bear upon the desirability of making available such information or documents.

PARTS 260--GENERAL RULES AND REGULATIONS, TRUST INDENTURE ACT OF 1939

11. The authority citation for Part 260 continues to read as follows:

Authority: Secs. 305, 307, 314, 319, 53 Stat. 1154, 1156, 1167, 1173; 15 U.S.C. 77eee, 77ggg, 77nnn, 77sss, unless otherwise noted.

12. The second and fourth sentences of §260.0-6 are revised as follows: §260.0-6. Non-disclosure of information obtained in the course of examinations and investigations.

* * * Except as provided by 17 CFR 203.2, officers and employees are hereby prohibited from making such confidential information or documents or any other non-public records of the Commission available to anyone other than a member, officer, or employee of the Commission, unless the Commission or the Office of the General Counsel, pursuant to delegated authority, authorizes the disclosure of such information or the production of such documents as not being contrary to the public interests. * * * Any officer or employee who is served with such a subpoena shall promptly advise the General Counsel of the service of such subpoena, the nature of the information or documents sought, and any circumstances which may bear upon the desirability of making available such information or documents.

By the Commission.

Jonathan G. Katz

Secretary

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Delegation of Authority to the Office of General Counsel.

ACTION: Final rule.