83 FR 44465 - Delegation of Authority to General Counsel of the Commission

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 170 (August 31, 2018)

Page Range		44465-44467
FR Document		2018-18585
The Securities and Exchange Commission (``Commission'') is revising regulations with respect to the delegations of authority to the Commission's General Counsel. The revisions are a result of the Commission's experience with its existing rules and increase the efficiency of the adjudicatory process.
Federal Register, Volume 83 Issue 170 (Friday, August 31, 2018)
[Federal Register Volume 83, Number 170 (Friday, August 31, 2018)]
[Rules and Regulations]
[Pages 44465-44467]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-18585]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 200

[Release Nos. 33-10537; 34-83911; IA-4994; IC-33212]


Delegation of Authority to General Counsel of the Commission

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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

SUMMARY: The Securities and Exchange Commission (``Commission'') is 
revising regulations with respect to the delegations of authority to 
the Commission's General Counsel. The revisions are a result of the 
Commission's experience with its existing rules and increase the 
efficiency of the adjudicatory process.

DATES: This rule is effective August 31, 2018.

FOR FURTHER INFORMATION CONTACT: Brian J. Wong, Senior Counsel, and 
Benjamin L. Schiffrin, Associate General Counsel, Office of the General 
Counsel, (202) 551-5150, Securities and Exchange Commission, 100 F 
Street NE, Washington, DC 20549.

SUPPLEMENTARY INFORMATION:

I. Background

    The Commission is revising the delegations of authority to its 
General Counsel as a result of the Commission's experience with its 
existing rules and to increase the efficiency of the adjudicatory 
process. The changes make available to that process the resources of 
the Office of the General Counsel in timely disposing of procedural and 
other prehearing matters that are typically of a routine or non-
controversial nature. Congress has authorized such delegation by Public 
Law 87-592, 76 Stat. 394, 15 U.S.C. 78d-1(a), which provides that the 
Commission ``shall have the authority to delegate, by published rule or 
order, any of its functions to . . . an employee or employee board, 
including functions with respect to hearing, determining, ordering, 
certifying, reporting, or

[[Page 44466]]

otherwise acting as to any work, business or matter.''
    Accordingly, the Commission is amending its rules to delegate 
authority to the General Counsel to determine procedural requests and 
other non-dispositive, prehearing matters with respect to 
administrative proceedings conducted pursuant to the Securities Act of 
1933, 15 U.S.C. 77a et seq., the Securities Exchange Act of 1934, 15 
U.S.C. 78a et seq.; the Investment Company Act of 1940, 15 U.S.C. 80a-1 
et seq.; the Investment Advisers Act of 1940, 15 U.S.C. 80b-1 et seq.; 
and the provisions of Rule 102(e) of the Commission's Rules of 
Practice, 17 CFR 201.102(e), that have been set for hearing before the 
Commission. Under this delegation, the General Counsel (or, under his 
or her direction, such persons as might be designated from time to time 
by the Chairman of the Commission) would perform functions such as 
fixing times and places for hearings after a proceeding has been 
authorized; adjusting or cancelling hearing dates; setting or modifying 
briefing schedules; staying the proceeding pending a related criminal 
proceeding or the Commission's consideration of an offer of settlement; 
reducing or extending the time within which to file papers; modifying 
length limitations; denying or granting leave to file motions and other 
papers; resolving applications for confidential treatment or to 
maintain materials under seal; making rulings regarding the manner or 
timing of service or of the Division of Enforcement's production of its 
investigative file; directing that the parties meet for a prehearing 
conference and scheduling or cancelling such a conference; issuing an 
order to show cause if a party fails to answer, respond to a 
dispositive motion, or otherwise defend the proceeding within the time 
provided; striking procedurally deficient filings; and other similarly 
routine matters that arise in administrative proceedings.
    The Commission does not delegate to the General Counsel functions 
with respect to issuing subpoenas, authorizing depositions, ruling upon 
the admissibility of evidence or upon motions to quash or to compel, 
presiding over a hearing or the taking of testimony, sanctioning a 
party, acting upon a dispositive motion, declaring a default, disposing 
of a claim or defense, or otherwise resolving or terminating the 
proceeding on the merits. This rule also does not affect the delegation 
of functions with respect to administrative proceedings conducted 
before an administrative law judge or other hearing officer, 
proceedings in which an initial or recommended decision has been 
issued, or proceedings in which a final order of the Commission has 
been issued.
    With respect to any proceeding in which the Chairman or the General 
Counsel has determined that separation of functions requirements or 
other circumstances would make inappropriate the General Counsel's 
exercise of such functions, those functions are delegated to the 
Secretary of the Commission. Notwithstanding this delegation, the 
General Counsel may submit any matter he or she believes appropriate to 
the Commission. Furthermore, any action made by the General Counsel 
pursuant to delegated authority would be subject to Commission review 
as provided by Rules 430 and 431 of the Commission's Rules of Practice, 
17 CFR 201.430-201.431 and 15 U.S.C. 78d-1(b). Additionally, being of 
an inherently preliminary and interlocutory nature, any such action may 
be revisited by the Commission, on its own initiative or on request of 
a party, at any time before the Commission's issuance of a final order 
resolving the proceeding.

II. Administrative Law Matters

    The Commission finds, in accordance with the Administrative 
Procedure Act (``APA''), 5 U.S.C. 553(b)(3)(A), that these revisions 
relate solely to agency organization, procedures, or practice and do 
not constitute a substantive rule. Accordingly, the APA's provisions 
regarding notice of rulemaking, opportunity for public comment, and 
advance publication of the amendments prior to their effective date are 
not applicable. These changes are therefore effective on August 31, 
2018. For the same reason, and because these amendments do not affect 
the rights or obligations of non-agency parties, the provisions of the 
Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(3)(C), 
are not applicable. Additionally, the provisions of the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., which apply only when notice and 
comment are required by the APA or other law, are not applicable. These 
amendments do not contain any collection of information requirements as 
defined by the Paperwork Reduction Act of 1995, and in any event, 
agency information collections during the conduct of administrative 
proceedings are exempt from that Act. See 44 U.S.C. 3518(c)(1)(B)(ii); 
5 CFR 1320.4. Further, because the amendments impose no new burdens on 
private parties, the Commission does not believe that the amendments 
will have any impact on competition for purposes of Section 23(a)(2) of 
the Exchange Act.

III. Statutory Authority

    This rule is adopted pursuant to statutory authority granted to the 
Commission, including Section 19 of the Securities Act, 15 U.S.C. 77s; 
Sections 4A, 4B, and 23 of the Exchange Act, 15 U.S.C. 78d-1, 78d-2, 
and 78w; Section 38 of the Investment Company Act, 15 U.S.C. 80a-37; 
Section 211 of the Investment Advisers Act, 15 U.S.C. 80b-11; and 
Section 3 of the Sarbanes-Oxley Act of 2002, 15 U.S.C. 7202.

List of Subjects in 17 CFR Part 200

    Administrative practice and procedure, Authority delegations 
(government agencies).

Text of Amendments

    For the reasons set out in the preamble, the Commission is amending 
Title 17, Chapter II of the Code of Federal Regulations as follows:

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

Subpart A--Organization and Program Management

0
1. The authority citation for Part 200, Subpart A continues to read in 
part as follows:

    Authority: 15 U.S.C. 77c, 77o, 77s, 77z-3, 77sss, 78d, 78d-1, 
78d-2, 78o-4, 78w, 78ll(d), 78mm, 80a-37, 80b-11, 7202, and 7211 et 
seq., unless otherwise noted.
* * * * *

0
2. Section 200.30-7 is amended by:
0
a. Redesignating paragraph (d) as paragraph (e); and
0
b. Adding new paragraph (d) to read as follows:


Sec.  200.30-7   Delegation of authority to Secretary of the 
Commission.

* * * * *
    (d) The functions otherwise delegated to the General Counsel under 
Sec.  200.30-14(i), with respect to any proceeding in which the 
Chairman or the General Counsel has determined, pursuant to Sec.  
200.30-14(j), that separation of functions requirements or other 
circumstances would make inappropriate the General Counsel's exercise 
of such delegated functions.
* * * * *

0
3. Section 200.30-14 is amended by:
0
a. Redesignating paragraphs (i) through (m) as paragraphs (k) through 
(o);
0
b. Adding new paragraphs (i) and (j); and
0
c. Revising newly redesignated paragraph (k).

[[Page 44467]]

    The addition and revisions read as follows.


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

* * * * *
    (i)(1) With respect to a proceeding conducted pursuant to the 
Securities Act of 1933, 15 U.S.C. 77a et seq., the Securities Exchange 
Act of 1934, 15 U.S.C. 78a et seq.; the Investment Company Act of 1940, 
15 U.S.C. 80a-1 et seq.; the Investment Advisers Act of 1940, 15 U.S.C. 
80b-1 et seq.; and the provisions of Rule 102(e) of the Commission's 
Rules of Practice, 17 CFR 201.102(e), that has been set for hearing 
before the Commission pursuant to Rule 110 of the Commission's Rules of 
Practice, 17 CFR 201.110:
    (i) To determine procedural requests or similar prehearing matters; 
and
    (ii) To rule upon non-dispositive, prehearing motions.
    (2) Provided, however, that the General Counsel may not issue 
subpoenas, authorize depositions, rule upon the admissibility of 
evidence or upon motions to quash or to compel, preside over a hearing 
or the taking of testimony, sanction a party, act upon a dispositive 
motion, declare a default, dispose of a claim or defense, or otherwise 
resolve or terminate the proceeding on the merits.
    (j) Notwithstanding anything in paragraph (i) of this section, the 
functions described in paragraph (i) of this section are not delegated 
to the General Counsel with respect to proceedings in which the 
Chairman or the General Counsel determines that separation of functions 
requirements or other circumstances would make inappropriate the 
General Counsel's exercise of such delegated functions. With respect to 
such proceedings, such functions are delegated to the Secretary of the 
Commission pursuant to Sec.  200.30-7.
    (k) Notwithstanding anything in paragraphs (g) or (i) of this 
section, in any case described in paragraphs (g) or (i) of this section 
in which the General Counsel believes it appropriate, he or she may 
submit the matter to the Commission.
* * * * *

    By the Commission.

    Dated: August 22, 2018.
Brent J. Fields,
Secretary.
[FR Doc. 2018-18585 Filed 8-30-18; 8:45 am]
BILLING CODE 8011-01-P
44466 Federal Register / Vol. 83, No. 170 / Friday, August 31, 2018 / Rules and Regulations

otherwise acting as to any work, initial or recommended decision has competition for purposes of Section
business or matter.’’ been issued, or proceedings in which a 23(a)(2) of the Exchange Act.
Accordingly, the Commission is final order of the Commission has been
amending its rules to delegate authority III. Statutory Authority
issued.
to the General Counsel to determine With respect to any proceeding in This rule is adopted pursuant to
procedural requests and other non- which the Chairman or the General statutory authority granted to the
dispositive, prehearing matters with Counsel has determined that separation Commission, including Section 19 of
respect to administrative proceedings of functions requirements or other the Securities Act, 15 U.S.C. 77s;
conducted pursuant to the Securities circumstances would make Sections 4A, 4B, and 23 of the Exchange
Act of 1933, 15 U.S.C. 77a et seq., the inappropriate the General Counsel’s Act, 15 U.S.C. 78d–1, 78d–2, and 78w;
Securities Exchange Act of 1934, 15 exercise of such functions, those Section 38 of the Investment Company
U.S.C. 78a et seq.; the Investment functions are delegated to the Secretary Act, 15 U.S.C. 80a–37; Section 211 of
Company Act of 1940, 15 U.S.C. 80a–1 of the Commission. Notwithstanding the Investment Advisers Act, 15 U.S.C.
et seq.; the Investment Advisers Act of 80b–11; and Section 3 of the Sarbanes-
this delegation, the General Counsel
1940, 15 U.S.C. 80b–1 et seq.; and the Oxley Act of 2002, 15 U.S.C. 7202.
may submit any matter he or she
provisions of Rule 102(e) of the believes appropriate to the Commission. List of Subjects in 17 CFR Part 200
Commission’s Rules of Practice, 17 CFR Furthermore, any action made by the
201.102(e), that have been set for Administrative practice and
General Counsel pursuant to delegated procedure, Authority delegations
hearing before the Commission. Under authority would be subject to
this delegation, the General Counsel (or, (government agencies).
Commission review as provided by
under his or her direction, such persons Rules 430 and 431 of the Commission’s Text of Amendments
as might be designated from time to Rules of Practice, 17 CFR 201.430–
time by the Chairman of the For the reasons set out in the
201.431 and 15 U.S.C. 78d–1(b). preamble, the Commission is amending
Commission) would perform functions Additionally, being of an inherently
such as fixing times and places for Title 17, Chapter II of the Code of
preliminary and interlocutory nature, Federal Regulations as follows:
hearings after a proceeding has been
any such action may be revisited by the
authorized; adjusting or cancelling PART 200—ORGANIZATION;
Commission, on its own initiative or on
hearing dates; setting or modifying CONDUCT AND ETHICS; AND
request of a party, at any time before the
briefing schedules; staying the INFORMATION AND REQUESTS
Commission’s issuance of a final order
proceeding pending a related criminal
resolving the proceeding.
proceeding or the Commission’s Subpart A—Organization and Program
consideration of an offer of settlement; II. Administrative Law Matters Management
reducing or extending the time within
which to file papers; modifying length The Commission finds, in accordance ■ 1. The authority citation for Part 200,
limitations; denying or granting leave to with the Administrative Procedure Act Subpart A continues to read in part as
file motions and other papers; resolving (‘‘APA’’), 5 U.S.C. 553(b)(3)(A), that follows:
applications for confidential treatment these revisions relate solely to agency
Authority: 15 U.S.C. 77c, 77o, 77s, 77z–3,
or to maintain materials under seal; organization, procedures, or practice
77sss, 78d, 78d–1, 78d–2, 78o–4, 78w,
making rulings regarding the manner or and do not constitute a substantive rule. 78ll(d), 78mm, 80a–37, 80b–11, 7202, and
timing of service or of the Division of Accordingly, the APA’s provisions 7211 et seq., unless otherwise noted.
Enforcement’s production of its regarding notice of rulemaking, * * * * *
investigative file; directing that the opportunity for public comment, and
■ 2. Section 200.30–7 is amended by:
parties meet for a prehearing conference advance publication of the amendments ■ a. Redesignating paragraph (d) as
and scheduling or cancelling such a prior to their effective date are not paragraph (e); and
conference; issuing an order to show applicable. These changes are therefore ■ b. Adding new paragraph (d) to read
cause if a party fails to answer, respond effective on August 31, 2018. For the as follows:
to a dispositive motion, or otherwise same reason, and because these
defend the proceeding within the time amendments do not affect the rights or § 200.30–7 Delegation of authority to
obligations of non-agency parties, the Secretary of the Commission.
provided; striking procedurally
deficient filings; and other similarly provisions of the Small Business * * * * *
routine matters that arise in Regulatory Enforcement Fairness Act, 5 (d) The functions otherwise delegated
administrative proceedings. U.S.C. 804(3)(C), are not applicable. to the General Counsel under § 200.30–
The Commission does not delegate to Additionally, the provisions of the 14(i), with respect to any proceeding in
the General Counsel functions with Regulatory Flexibility Act, 5 U.S.C. 601 which the Chairman or the General
respect to issuing subpoenas, et seq., which apply only when notice Counsel has determined, pursuant to
authorizing depositions, ruling upon the and comment are required by the APA § 200.30–14(j), that separation of
admissibility of evidence or upon or other law, are not applicable. These functions requirements or other
motions to quash or to compel, amendments do not contain any circumstances would make
presiding over a hearing or the taking of collection of information requirements inappropriate the General Counsel’s
testimony, sanctioning a party, acting as defined by the Paperwork Reduction exercise of such delegated functions.
upon a dispositive motion, declaring a Act of 1995, and in any event, agency * * * * *
default, disposing of a claim or defense, information collections during the ■ 3. Section 200.30–14 is amended by:
conduct of administrative proceedings
daltland on DSKBBV9HB2PROD with RULES

or otherwise resolving or terminating ■ a. Redesignating paragraphs (i)
the proceeding on the merits. This rule are exempt from that Act. See 44 U.S.C. through (m) as paragraphs (k) through
also does not affect the delegation of 3518(c)(1)(B)(ii); 5 CFR 1320.4. Further, (o);
functions with respect to administrative because the amendments impose no ■ b. Adding new paragraphs (i) and (j);
proceedings conducted before an new burdens on private parties, the and
administrative law judge or other Commission does not believe that the ■ c. Revising newly redesignated
hearing officer, proceedings in which an amendments will have any impact on paragraph (k).

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Federal Register / Vol. 83, No. 170 / Friday, August 31, 2018 / Rules and Regulations 44467

The addition and revisions read as TENNESSEE VALLEY AUTHORITY nonnavigable structures such as floating
follows. cabins to be obstructions that require its
18 CFR Part 1304 approval. In addition, Section 9b of the
§ 200.30–14 Delegation of authority to the TVA Act provides that TVA ‘‘may
General Counsel. RIN 3316–AA23
establish regulations to prevent the
* * * * * Floating Cabin Regulation construction of new floating cabins.’’ 16
(i)(1) With respect to a proceeding U.S.C. 831h–3(e).
AGENCY: Tennessee Valley Authority.
conducted pursuant to the Securities Background and Proposed
Act of 1933, 15 U.S.C. 77a et seq., the ACTION: Final rule. Amendments
Securities Exchange Act of 1934, 15 SUMMARY: The Tennessee Valley TVA is a multi-purpose federal
U.S.C. 78a et seq.; the Investment Authority (TVA) is publishing a final agency that has been charged by
Company Act of 1940, 15 U.S.C. 80a–1 rule to amend its regulations that govern Congress with promoting the wise use
et seq.; the Investment Advisers Act of floating cabins located on the Tennessee and conservation of the resources of the
1940, 15 U.S.C. 80b–1 et seq.; and the River and its tributaries. The mooring of Tennessee Valley region, including the
provisions of Rule 102(e) of the floating cabins on the TVA reservoir Tennessee River System. In carrying out
Commission’s Rules of Practice, 17 CFR system has increased, and TVA has this mission, TVA operates a system of
201.102(e), that has been set for hearing determined that this poses an dams and reservoirs on the Tennessee
before the Commission pursuant to Rule unacceptable risk to navigation, safety, River and its tributaries for the purpose
110 of the Commission’s Rules of and the environment. Left unaddressed, of navigation, flood control, and power
Practice, 17 CFR 201.110: floating cabins convert the public waters production. Consistent with those
(i) To determine procedural requests under TVA’s management to private purposes, TVA uses the system to
or similar prehearing matters; and use. The amendments re-define improve water quality and water supply
nonnavigable houseboats and floating and to provide a wide range of public
(ii) To rule upon non-dispositive,
cabins using one term—‘‘floating benefits including recreation.
prehearing motions. To promote the unified development
cabins’’—and prohibit new floating
(2) Provided, however, that the cabins on TVA-managed reservoirs after and regulation of the Tennessee River
General Counsel may not issue December 16, 2016. The amendments System, Congress directed TVA to
subpoenas, authorize depositions, rule also include limited mooring standards, approve obstructions across, along, or in
upon the admissibility of evidence or limitations on expansions of floating the river system under Section 26a of
upon motions to quash or to compel, cabins, and requirements for owners to the TVA Act, as amended.
preside over a hearing or the taking of register their floating cabins. Additional ‘‘Obstruction’’ is a broad term that
testimony, sanction a party, act upon a health, safety, and environmental includes, by way of example, boat
dispositive motion, declare a default, standards for floating cabins will be docks, piers, boathouses, buoys, floats,
dispose of a claim or defense, or addressed in a later rulemaking once boat launching ramps, fills, water
otherwise resolve or terminate the TVA has had the opportunity to discuss intakes, devices for discharging
proceeding on the merits. such standards with various effluents, bridges, aerial cables, culverts,
stakeholders. pipelines, fish attractors, shoreline
(j) Notwithstanding anything in stabilization projects, channel
paragraph (i) of this section, the In addition, and separate from the
updated rule amendments for floating excavations, and nonnavigable
functions described in paragraph (i) of houseboats. TVA also owns, as agent for
this section are not delegated to the cabins, these amendments contain
minor changes to clarify when TVA will the United States, much of the shoreline
General Counsel with respect to and inundated land along and under its
proceedings in which the Chairman or allow some water-use facilities (e.g.,
docks) to be as large as 1800 square feet. reservoir system.
the General Counsel determines that Since 1971, TVA has used its
separation of functions requirements or DATES: This final rule is effective authority under Section 26a to prohibit
other circumstances would make October 1, 2018. the mooring on the Tennessee River
inappropriate the General Counsel’s FOR FURTHER INFORMATION CONTACT: System of new nonnavigable houseboats
exercise of such delegated functions. David B. Harrell, 865–632–1327; Email: that are used primarily for habitation or
With respect to such proceedings, such dbharrell@tva.gov or fc@tva.gov, Mail occupation and not for navigation or
functions are delegated to the Secretary address: Tennessee Valley Authority, water transportation. In particular, TVA
of the Commission pursuant to 400 West Summit Hill Drive, WT 11A– amended its regulations in 1971 to
§ 200.30–7. K, Knoxville, TN 37902. prohibit the mooring or anchoring of
(k) Notwithstanding anything in SUPPLEMENTARY INFORMATION: new nonnavigable houseboats except for
paragraphs (g) or (i) of this section, in those in existence before November 21,
Legal Authority 1971. Criteria were established then to
any case described in paragraphs (g) or
This final rule is promulgated under identify when a houseboat was
(i) of this section in which the General
the authority of the TVA Act, as considered ‘‘navigable’’ and the
Counsel believes it appropriate, he or
amended, 16 U.S.C. 831–831ee, Title V conditions under which existing
she may submit the matter to the
of the Independent Offices nonnavigable houseboats would be
Commission.
Appropriations Act of 1955, 31 U.S.C. allowed to remain. These criteria were
* * * * * 9701, and OMB Circular No. A–25. characteristics that TVA determined
Under Section 26a of the TVA Act, no were indicative of real watercraft; i.e.,
daltland on DSKBBV9HB2PROD with RULES

By the Commission.
Dated: August 22, 2018. obstructions affecting navigation, flood boats or vessels that are designed and
control, or public lands or reservations used primarily to traverse water. Since
Brent J. Fields,
shall be constructed, operated, or 1971, TVA has made minor changes to
Secretary. maintained across, along, or in the its regulations affecting nonnavigable
[FR Doc. 2018–18585 Filed 8–30–18; 8:45 am] Tennessee River System without TVA’s houseboats, most notably in 1978 when
BILLING CODE 8011–01–P approval. TVA has long considered TVA updated the prohibited mooring of

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Document Created: 2018-08-31 00:53:49
Document Modified: 2018-08-31 00:53:49
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This rule is effective August 31, 2018.
Contact		Brian J. Wong, Senior Counsel, and Benjamin L. Schiffrin, Associate General Counsel, Office of the General Counsel, (202) 551-5150, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
FR Citation		83 FR 44465
CFR Associated		Administrative Practice and Procedure and Authority Delegations (government Agencies)