[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Proposed Rules]
[Pages 30048-30050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12694]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Part 200
[Release No. PA-45; File No. S7-19-11]
Privacy Act of 1974: Implementation and Amendment of Exemptions
AGENCY: Securities and Exchange Commission.
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Privacy Act of 1974, as amended, the
Securities and Exchange Commission (``Commission'' or ``SEC'') proposes
to exempt portions of three new systems of records from provisions of
the Privacy Act to the extent that the records contain investigatory
materials compiled for law enforcement purposes. Additionally, the
Commission proposes to make technical amendments to its Privacy Act
regulation exempting specific systems of records from certain
provisions of the Privacy Act. In a companion release published
elsewhere in this issue, the Commission is giving concurrent notice of
three new systems of records pursuant to the Privacy Act of 1974.
DATES: Comments must be received on or before June 23, 2011.
ADDRESSES: Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml); or
Send an e-mail to [email protected]. Please include
File Number S7-19-11 on the subject line; or
Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090. All submissions should refer to File Number
S7-19-11. This file number should be included on the subject line if e-
mail is used. To help us process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments are also available for Web site viewing
and printing in the Commission's Public Reference Room, 100 F Street,
NE., Washington, DC 20549, on official business days between the hours
of 10 a.m. and 3 p.m. All comments received will be posted without
change; we do not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly.
FOR FURTHER INFORMATION CONTACT: Cristal Perpignan, Acting Chief
Privacy Officer, Office of Information Technology, 202-551-7716.
SUPPLEMENTARY INFORMATION: Pursuant to, and limited by 5 U.S.C.
552a(k)(2), the Commission proposes to exempt systems of records,
``Tips, Complaints, and Referrals (TCR) Records (SEC-63)''; ``SEC
Security in the Workplace Incident Records (SEC-64)''; and ``Investor
Response Information System (IRIS) (SEC-65)'', from 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) and 17 CFR
200.303, 200.304, and 200.306, insofar as they contain investigatory
materials compiled for law enforcement purposes. The Privacy Act allows
Government agencies to exempt certain records from the notification,
access and amendment provisions. If an agency claims an exemption,
however, it must issue a rule to explain the reasons why a particular
exemption is claimed. The proposed exemption would be applicable except
under the circumstances set forth in the provisions of section (k)(2)
of the Privacy Act.\1\
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\1\ See 5 U.S.C. 552a(k)(2).
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The TCR Records (SEC-63) system of records contains records related
to tips, complaints, referrals of misconduct, or related information
about actual or potential violations of the federal securities laws;
investor harm; conduct of public companies; securities professionals;
regulated entities; and associated persons. This system of records may
include investigatory materials that were compiled in connection with
the Commission's enforcement responsibilities under the federal
securities laws. Such material may consist of unsolicited and often
unverified statements concerning individuals, information received from
confidential sources, as well as reports
[[Page 30049]]
from the Commission's investigators and other law enforcement
personnel. The disclosure of the existence of investigatory materials
could seriously undermine effective enforcement of the federal
securities laws by prematurely alerting individuals to the fact that
they are under investigation, by giving them access to the evidentiary
bases for a Commission enforcement action or seriously hampering the
Commission's case in court or before an administrative law judge.
The SEC Security in the Workplace Incident Records (SEC-64) system
of records contains records related to reports involving incidents of
assault, harassment, intimidation, bullying, weapons possession, or
threats at the SEC. This system of records may include investigatory
materials that were compiled in connection with inquiries or
investigation of potential or actual incidents of violence by and
against individuals at an SEC facility. The disclosure of information
as it relates to investigatory materials or the identity of sources of
information may seriously undermine the safety and security of
employees in the workplace. Access to such information could allow the
subject of an investigation or inquiry of an actual or potential
criminal or civil violation to interfere with and impede the
investigation, tamper with witnesses or evidence, and to avoid
detection or apprehension.
The IRIS (SEC-65) system of records contains records related to
complaints/inquiries/requests from members of the public and others.
This system of records may include investigatory materials that were
compiled in connection with the Commission's enforcement
responsibilities under the federal securities laws. Such material may
consist of unsolicited and often unverified statements concerning
individuals, information received from confidential sources, as well as
reports from the Commission's investigators and other law enforcement
personnel. The disclosure of the existence of investigatory materials
could seriously undermine effective enforcement of the federal
securities laws by prematurely alerting individuals to the fact that
they are under investigation, by giving them access to the evidentiary
bases for a commission enforcement action or seriously hampering the
Commission's case in court or before an administrative law judge.
The Commission also proposes to amend its inventory of exempted
systems of records by changing the name of the system of records
titled: ``Office of Personnel Code of Conduct and Employee Performance
Files (SEC-38)'' to ``Disciplinary and Adverse Actions, Employee
Conduct, and Labor Relations Files''. In a companion release the
Commission is publishing a Privacy Act system of records notice to make
technical amendments to this system of records to incorporate minor
corrective and administrative modifications that have occurred since
the notice was last published and will update the system name to more
accurately reflect the records contained in the system. The Commission
is amending its inventory of exempted systems of records reflect the
new title of this system of records.
Finally, the Commission is making a technical amendment to its
inventory of exempted systems of records by removing a reference to the
system of records titled: ``Personnel Security Files''. On August 8,
2000 (65 FR 49037), the Commission published notice to delete this
system of records as the records were duplicative of records in:
``Personnel Investigations Records (OPM/Central-9)'', published by the
United States Office of Personnel Management.
General Request for Comment
The Commission requests comment on the proposed amendments in this
release.
Paperwork Reduction Act
The proposed amendments do not contain a ``collection of
information'' requirement within the meaning of the Paperwork Reduction
Act of 1995.'' \2\ Accordingly, the Paperwork Reduction Act is not
applicable.
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\2\ 44 U.S.C. 3501 et seq.
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Cost-Benefit Analysis
The Commission is sensitive to the costs and benefits that result
from its rules. This proposal would exempt portions of three new
systems of records from provisions of the Privacy Act in so far as the
records contain investigatory materials compiled for law enforcement
purposes. As more fully described above, the TCR Records system of
records, the SEC Security in the Workplace Incident Reports system of
records and the IRIS system of records may include investigatory
materials compiled in connection with the Commission's enforcement of
the federal securities laws, in connection with potential or actual
incidents of workplace violence, or in connection with public
complaints/inquiries/request. Access to or disclosure of the
investigatory materials in these systems of records could seriously
undermine the effective enforcement of the Federal securities laws, and
the safety and security of Commission employees in the workplace. We
recognize that our proposed amendments may impose costs on individuals
who may wish to obtain access to records that contain investigatory
materials in these systems of records. Congress seems to have
contemplated these costs in promulgating the exemption in 5 U.S.C.
552a(k)(2).
Regulatory Flexibility Act Certification
Section 3(a) of the Regulatory Flexibility Act of 1980 \3\
(``RFA'') requires the Commission to undertake an initial regulatory
flexibility analysis of the proposed rule amendments on small entities
unless the Commission certifies that the proposal, if adopted, would
not have a significant economic impact on a substantial number of small
entities.\4\ Pursuant to 5 U.S.C. 605(b), the Commission hereby
certifies that the proposed amendments to 17 CFR 200.312 would not, if
adopted, have a significant economic impact on a substantial number of
small entities. The proposed amendments would exempt portions of three
new systems of records from provisions of the Privacy Act in so far as
the records contain investigatory materials compiled for law
enforcement purposes. Because the proposed amendments would apply
solely to private individuals, the proposed amendments would not, if
adopted, have a significant economic impact on a substantial number of
``small entities,'' as defined by the RFA.\5\ We encourage written
comments regarding this certification.
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\3\ 5 U.S.C. 603(a).
\4\ 5 U.S.C. 605(b).
\5\ See 5 U.S.C. 601(6).
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Statutory Authority
The Commission is proposing amendments to 17 CFR 200.312 under the
authority in 5 U.S.C. 552a(k)(2) and 5 U.S.C. 552a(k)(5).
List of Subjects in 17 CFR Part 200
Administrative practice and procedure; Privacy.
Text of Proposed Amendments
For the reasons set out in the preamble, Title 17, Chapter II, of
the Code of Federal Regulations is proposed to be amended as follows:
[[Page 30050]]
PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND
REQUESTS
Subpart H--Regulations Pertaining to the Privacy of Individuals and
Systems of Records Maintained by the Commission
1. The authority citation for Part 200 is revised by adding
authority for Sec. 200.312 in numerical order to read as follows:
Authority: 15 U.S.C. 77o, 77s, 77sss, 78d, 78d-1, 78d-2, 78w,
78ll(d), 78mm, 80a-37, 80b-11, and 7202, unless otherwise noted.
* * * * *
Section 312 is also issued under 5 U.S.C. 552a(k).
2. Amend Sec. 200.312 by:
a. Removing ``and'' at the end of paragraph (a)(5);
b. Adding paragraphs (a)(7), (8), and (9); and
c. Revising paragraph (b); and
d. Removing the authority citation at the end of the section.
The revisions read as follows.
Sec. 200.312 Specific exemptions.
* * * * *
(a) * * *
(7) Tips, Complaints, and Referrals (TCR) Records;
(8) SEC Security in the Workplace Incident Records; and
(9) Investor Response Information System (IRIS).
(b) Pursuant to 5 U.S.C. 552a(k)(5), the system of records
containing the Commission's Disciplinary and Adverse Actions, Employee
Conduct, and Labor Relations Files shall be exempt from sections
(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) of the Privacy
Act, 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and
(e)(4)(I), and (f), and 17 CFR 200.303, 200.304, and 200.306 insofar as
they contain investigatory material compiled to determine an
individual's suitability, eligibility, and qualifications for federal
civilian employment or access to classified information, but only to
the extent that the disclosure of such material would reveal the
identity of a source who furnished information to the Government under
an express promise that the identity of the source would be held in
confidence, or, prior to September 27, 1975, under an implied promise
that the identity of the source would be held in confidence.
By the Commission.
Dated: May 18, 2011.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-12694 Filed 5-23-11; 8:45 am]
BILLING CODE 8011-01-P