17 CFR Part 202 Explained: SEC Informal Procedures, Interpretive Advice, Enforcement Activities, Cooperation, Criminal Referrals, and PCAOB Review
Executive Summary
17 CFR Part 202contains the SEC’s rules and policy statements on informal and other procedures. It covers how the SEC provides pre-filing assistance and interpretive advice, how filings are processed, how administrative hearings may be facilitated, how enforcement activities are conducted, how rules are adopted or revised, how small entity compliance and penalty policies work, how subpoenas to members of the news media are handled, how individual cooperation may be considered in investigations, how Investment Company Act applications may be handled informally, how agency referrals for potential criminal enforcement may be made, and how certain Public Company Accounting Oversight Board matters are reviewed.
For clients, 17 CFR Part 202 matters because it sits between ordinary regulatory compliance and formal litigation. It helps explain how regulated entities, issuers, advisers, broker-dealers, funds, accounting firms, public companies, fintech companies, digital asset businesses, and individuals may interact with the SEC before or alongside formal proceedings.
If Part 200 explains the SEC’s structure, and Part 201 explains the SEC’s Rules of Practice for administrative proceedings, Part 202 explains many of the SEC’s informal procedures and policy statements, including the procedures that can matter before a matter becomes a contested proceeding.
1. What Is 17 CFR Part 202?
17 CFR Part 202 is titled “Informal and Other Procedures.” It is codified at 17 CFR §§ 202.1 through 202.190 and includes rules and policy statements addressing several important aspects of SEC practice.
The eCFR table of contents identifies Part 202 as covering:
general informal procedures;
pre-filing assistance and interpretive advice;
processing of filings;
filing fee instructions;
facilitation of administrative hearings;
enforcement activities;
adoption, revision, and rescission of SEC rules;
submittals;
small entity compliance guides;
small entity enforcement penalty reduction policy;
subpoenas to members of the news media;
cooperation by individuals in investigations and related enforcement actions;
informal procedures for Investment Company Act applications;
agency referrals for potential criminal enforcement; and
certain PCAOB-related procedures under Regulation P.
In plain English, Part 202 is a procedural and policy roadmap for how the SEC handles certain matters outside the more formal Rules of Practice in Part 201. It answers questions like:
How can market participants seek SEC staff guidance?
How does the SEC process certain filings?
How does the SEC describe its enforcement activities?
What does the SEC say about cooperation by individuals?
How does the SEC approach subpoenas to the news media?
How does the SEC handle certain Investment Company Act applications?
How does the SEC address referrals for potential criminal enforcement?
How does the SEC review certain PCAOB inspection reports, rules, hearing officer issues, and budget matters?
2. Why 17 CFR Part 202 Matters
Part 202 matters because much of SEC practice happens before a case becomes a formal administrative proceeding or federal court action.
A company may be preparing a filing. A fund may be considering an application. A fintech company may need interpretive guidance. An adviser may be weighing whether to approach SEC staff. A public company may be evaluating a disclosure issue. A broker-dealer may be responding to a regulatory question. An individual may be deciding whether and how to cooperate in an investigation. A regulated entity may be dealing with a referral risk that could involve both civil and criminal authorities. Part 202 helps frame those interactions.
It is especially relevant to clients dealing with:
SEC staff questions;
pre-filing discussions;
interpretive advice;
SEC enforcement inquiries;
cooperation considerations;
potential criminal referrals;
Investment Company Act applications;
accounting firm and PCAOB-related issues;
SEC rulemaking and policy processes;
small entity enforcement penalty issues; and
informal communications with SEC staff.
This is one of the reasons SEC practice is not only about statutes and liability standards. It is also about process, posture, and judgment.
3. Where Part 202 Fits in the SEC Framework
Part 202 follows naturally after Parts 200 and 201.
17 CFR Part 200 SEC organization, authority, divisions, delegations, conduct, ethics, information, and requests
17 CFR Part 201 SEC Rules of Practice for administrative proceedings, hearings, appeals, sanctions, penalties, and Fair Funds
17 CFR Part 202 SEC informal procedures, interpretive advice, filing processing, enforcement policy, cooperation, criminal referrals, and PCAOB-related procedures.
Part 202 is important because many regulatory matters live in a gray area before they become formal. A filing issue may be resolved informally. A staff question may be answered through interpretive engagement. An investigation may never result in an enforcement action. Cooperation may affect how staff views an individual’s conduct. A referral to criminal authorities may change the stakes entirely.
Understanding Part 202 helps clients understand that the SEC process has stages. Not every interaction is litigation. Not every staff question is an accusation. But every interaction should be handled carefully.
4. Structure of 17 CFR Part 202
General Informal Procedures
Part 202 begins with general provisions and includes rules on pre-filing assistance and interpretive advice, processing of filings, filing fee instructions, and facilitating administrative hearings.
These provisions matter because regulated entities often need to interact with SEC staff before filing, while filing, or while trying to resolve procedural questions.
Enforcement Activities
One of the most important provisions in Part 202 is § 202.5, Enforcement activities. The table of contents identifies this rule as part of Part 202’s informal and other procedures.
For clients, this is a key rule because it relates to how the SEC describes aspects of its enforcement process. Any business or individual dealing with an SEC inquiry, investigation, subpoena, Wells process, settlement discussion, or enforcement risk should understand that SEC enforcement has both formal and informal procedural dimensions.
Rulemaking and Submittals
Part 202 also addresses the adoption, revision, and rescission of rules and regulations of general application, as well as submittals. That matters for companies and industry participants that submit comments, seek rule changes, participate in policy discussions, or monitor SEC rulemaking developments.
Small Entity Compliance and Penalty Policies
Part 202 includes provisions for small entity compliance guides and a small entity enforcement penalty reduction policy. These provisions are relevant to smaller businesses, startups, emerging managers, small advisers, and other entities that may need to understand how SEC rules apply to smaller market participants.
News Media Subpoenas
Part 202 includes a policy statement concerning subpoenas to members of the news media. This is a narrower provision, but it reflects the SEC’s internal policy approach to certain sensitive subpoena contexts.
Cooperation by Individuals
Part 202 includes a policy statement concerning cooperation by individuals in SEC investigations and related enforcement actions. This is one of the most practically important pieces of Part 202 for individuals. Cooperation can become a major strategic issue in SEC investigations, particularly where multiple individuals, a company, and regulators may have overlapping but different interests.
Criminal Referrals
Part 202 includes a policy statement concerning agency referrals for potential criminal enforcement. This matters because SEC investigations can sometimes run parallel to, precede, or lead to criminal investigations. Clients need to understand when a matter has potential criminal exposure and how that changes the strategy.
PCAOB-Related Procedures
Part 202 also includes Subpart A, Public Company Accounting Oversight Board (Regulation P), which covers interim Commission review of PCAOB inspection reports, Commission approval of appointment or removal of PCAOB hearing officers, initiation of disapproval proceedings for PCAOB proposed rules, and the PCAOB budget approval process. This matters for public accounting firms, auditors, public companies, audit committees, and others affected by PCAOB oversight.
5. Key Rules in 17 CFR Part 202
17 CFR § 202.1: General
Section 202.1 is the general starting point for Part 202. In practical terms, the rule introduces the SEC’s informal and other procedures. It helps frame Part 202 as a set of rules and policy statements that do not fit neatly into the adjudicatory Rules of Practice in Part 201, but still matter in SEC practice.
17 CFR § 202.2: Pre-Filing Assistance and Interpretive Advice
Section 202.2 addresses pre-filing assistance and interpretive advice. This is important because many regulated entities and market participants want to understand the SEC staff’s view before taking action. That may involve a filing question, disclosure issue, registration question, exemptive issue, interpretive question, or proposed transaction.
In practice, pre-filing assistance and interpretive advice can be valuable when a company is trying to avoid regulatory missteps before they occur. For clients, the key point is that questions asked early are often easier to manage than questions asked after a product launches, a filing is made, or a transaction closes.
17 CFR § 202.3: Processing of Filings
Section 202.3 addresses processing of filings. This matters for issuers, public companies, funds, advisers, broker-dealers, and other registrants that file materials with the SEC. Filing issues can include timing, completeness, staff review, comments, amendments, effectiveness, withdrawal, and procedural handling. For public companies and issuers, filing process can be central to capital formation, disclosure obligations, compliance, and transaction execution.
17 CFR § 202.3a: Instructions for Filing Fees
Section 202.3a addresses filing fee instructions. Filing fees may seem administrative, but mistakes can delay filings or create unnecessary complications. For securities offerings, registration statements, tender offers, proxy matters, and other filings, mechanics matter.
17 CFR § 202.4: Facilitating Administrative Hearings
Section 202.4 relates to facilitating administrative hearings. This connects Part 202 to the more formal administrative proceeding structure in Part 201. It is a reminder that SEC matters may involve both informal procedures and formal adjudicatory processes.
17 CFR § 202.5: Enforcement Activities
Section 202.5 is one of the most important rules in Part 202. It concerns SEC enforcement activities. For companies and individuals dealing with an SEC investigation, this rule is important because it reflects how the SEC describes aspects of its enforcement process.
Enforcement activities may involve:
informal inquiries;
formal investigations;
subpoenas;
document requests;
testimony;
Wells notices;
settlement discussions;
recommendations to the Commission;
administrative proceedings;
federal court actions;
referrals to criminal authorities; and
coordination with other regulators.
For clients, the most important point is that SEC enforcement is a process. It often develops over time. How a company or individual responds early can influence the path of the matter.
17 CFR § 202.6: Adoption, Revision, and Rescission of Rules
Section 202.6 relates to adoption, revision, and rescission of SEC rules and regulations of general application. This matters for companies, investors, industry associations, and regulated entities that follow SEC rulemaking or submit comments.
Rulemaking can reshape entire business models. Broker-dealers, advisers, funds, public companies, digital asset businesses, and fintech platforms all need to monitor rules that may affect their operations.
17 CFR § 202.8: Small Entity Compliance Guides
Section 202.8 addresses small entity compliance guides. This matters for smaller companies and regulated entities because the SEC may provide compliance guides to help small entities understand new or amended rules. For startups, emerging managers, smaller advisers, and early-stage fintech companies, small entity guidance can be useful, but it should not be treated as a substitute for legal advice.
17 CFR § 202.9: Small Entity Enforcement Penalty Reduction Policy
Section 202.9 addresses the SEC’s small entity enforcement penalty reduction policy. The eCFR identifies § 202.9 as separately authorized under section 223 of a 1996 statute. This provision matters because civil penalties can be especially burdensome for smaller entities. The existence of a policy does not mean penalties disappear, but it can be relevant in enforcement strategy.
17 CFR § 202.10: Subpoenas to Members of the News Media
Section 202.10 is a policy statement concerning subpoenas to members of the news media. This is more specialized, but it reflects the SEC’s recognition that some subpoena contexts raise sensitive policy concerns.
17 CFR § 202.12: Cooperation by Individuals
Section 202.12 is a policy statement concerning cooperation by individuals in SEC investigations and related enforcement actions. This is a critical topic in SEC defense.
Individuals may face difficult strategic decisions about whether and how to cooperate. Cooperation can include providing information, explaining documents, identifying misconduct, testifying, producing materials, agreeing to interviews, or assisting staff in understanding complex facts. But cooperation decisions should be made carefully. The interests of the company, executives, employees, founders, investors, and individuals may diverge. Cooperation can affect settlement posture, charging decisions, remedies, credibility, collateral consequences, and, in some cases, parallel criminal exposure.
17 CFR § 202.13: Informal Procedure for Investment Company Act Applications
Section 202.13 concerns informal procedure with respect to applications under the Investment Company Act of 1940.
This matters for registered funds, private funds, advisers, fund sponsors, and entities seeking exemptive relief or staff engagement on Investment Company Act issues. The Investment Company Act is highly technical. Informal process can matter in structuring applications, identifying issues, and managing expectations before formal action.
17 CFR § 202.14: Criminal Referrals
Section 202.14 is a policy statement concerning agency referrals for potential criminal enforcement. This is one of the most serious areas of Part 202. The SEC is a civil enforcement agency, but some facts may be referred to criminal authorities. When a matter may involve potential criminal exposure, the strategy changes immediately.
Clients need to think about:
Fifth Amendment issues;
parallel proceedings;
document productions;
testimony;
internal investigations;
employee interviews;
privilege;
joint defense arrangements;
indemnification;
insurance;
cooperation;
public statements;
settlement timing; and
coordination with criminal defense counsel where appropriate.
6. PCAOB Procedures Under Regulation P
Subpart A of Part 202 is titled Public Company Accounting Oversight Board (Regulation P).
The table of contents identifies four provisions:
§ 202.140: Interim Commission review of PCAOB inspection reports;
§ 202.150: Commission approval of appointment or removal from office of PCAOB hearing officers;
§ 202.170: Initiation of disapproval proceedings for PCAOB proposed rules; and
§ 202.190: PCAOB budget approval process.
This part of the rule is especially relevant to public accounting firms, auditors, public companies, audit committees, and those involved in PCAOB inspection, enforcement, and oversight matters. For public companies and accounting firms, PCAOB oversight is not separate from securities regulation. Audit quality, inspection findings, auditor independence, financial reporting, internal controls, and SEC disclosure obligations are often connected.
7. How I See Part 202 Come Up in Practice
I see Part 202 issues most often in the gray zone before a matter becomes fully formal.
A company may want to know whether to approach SEC staff before filing.
A founder may want to understand whether a fintech product creates a registration issue.
An adviser may be deciding how to respond to an exam deficiency or whether a response could create enforcement risk.
An individual may be considering whether to cooperate in an investigation.
A regulated entity may be trying to understand whether a matter could be referred to criminal authorities.
A fund sponsor may need to think through an Investment Company Act application or exemption.
A public company or accounting firm may be dealing with audit, PCAOB, financial reporting, or internal control issues.
These are process questions as much as legal questions. The substantive law matters, but so does the forum, the posture, the staff involved, the timing, the record, and the strategic objective. Part 202 is helpful because it captures some of the SEC’s informal and policy-based procedures that sit behind those decisions.
8. Common Mistakes
Mistake 1: Waiting Too Long to Ask for Interpretive Guidance
Some questions are easier to address before the company acts. Once a product launches, a filing is made, or a transaction closes, the facts are harder to change.
Mistake 2: Treating Informal SEC Communications Too Casually
Informal does not mean unimportant. Communications with SEC staff should be accurate, consistent, and strategic.
Mistake 3: Underestimating Enforcement Posture
A matter may begin as a question, exam, or inquiry and later become an enforcement issue. Clients should be careful about creating a record that may later be reviewed by Enforcement.
Mistake 4: Cooperating Without a Strategy
Cooperation can be valuable, but it should be thoughtful. Individuals and companies should understand the risks, benefits, and potential collateral consequences before making cooperation decisions.
Mistake 5: Ignoring Criminal Referral Risk
Some SEC matters have potential criminal dimensions. When that risk exists, the matter should be handled differently from the beginning.
Mistake 6: Treating Small Entity Status as a Shield
Small entity policies can matter, but being small does not exempt a company from compliance. Startups, emerging managers, and smaller regulated entities still need to understand their obligations.
Mistake 7: Missing PCAOB and Audit-Related Consequences
For public companies and accounting firms, PCAOB and SEC issues can overlap. Audit, financial reporting, internal controls, and disclosure issues should be analyzed together.
9. Frequently Asked Questions
What is 17 CFR Part 202?
17 CFR Part 202 contains SEC rules and policy statements on informal and other procedures, including pre-filing assistance, interpretive advice, filing processing, enforcement activities, cooperation by individuals, criminal referrals, Investment Company Act application procedures, and certain PCAOB-related procedures.
What is SEC pre-filing assistance?
SEC pre-filing assistance refers to interactions with SEC staff before a filing is made. It may help issuers, funds, advisers, and other market participants understand staff views on filing, disclosure, registration, or interpretive issues.
What is SEC interpretive advice?
SEC interpretive advice refers to staff guidance or views on how securities laws, rules, or regulations may apply to particular facts. Interpretive advice can be useful when a company is considering a transaction, product, filing, or compliance approach.
What does 17 CFR § 202.5 cover?
17 CFR § 202.5 concerns SEC enforcement activities. It is part of the SEC’s informal and other procedures and relates to the enforcement process, including how matters may be investigated, resolved, or pursued.
What is cooperation in an SEC investigation?
Cooperation in an SEC investigation can include providing information, documents, testimony, explanations, or other assistance to SEC staff. Cooperation may affect how staff evaluates the matter, but it should be approached carefully, especially where individuals, companies, and criminal authorities may have overlapping interests.
What is a criminal referral by the SEC?
A criminal referral occurs when the SEC refers information to criminal authorities for potential criminal enforcement. The SEC is a civil agency, but securities-related misconduct can also raise criminal issues.
Does an SEC investigation mean there will be criminal charges?
No. Many SEC investigations remain civil. But some matters may involve potential criminal exposure depending on the facts, conduct, intent, documents, witness testimony, investor harm, and involvement of other agencies.
What are small entity compliance guides?
Small entity compliance guides are materials intended to help small entities understand and comply with certain SEC rules. They can be useful, but they do not replace legal advice.
What is Regulation P under Part 202?
Regulation P in Part 202 addresses certain Public Company Accounting Oversight Board procedures, including Commission review of PCAOB inspection reports, hearing officer appointment or removal, proposed PCAOB rules, and budget approval.
Why does 17 CFR Part 202 matter for fintech companies?
Part 202 can matter for fintech companies because fintech businesses may need interpretive guidance, pre-filing engagement, enforcement strategy, cooperation analysis, or regulatory process advice when launching products, raising capital, responding to inquiries, or dealing with SEC staff.
10. How I Help Clients
I advise clients on SEC investigations, enforcement strategy, financial regulatory law, broker-dealer and investment adviser issues, fintech, digital assets, private funds, capital formation, internal investigations, PCAOB-related issues, and regulatory response.
In matters involving Part 202, that work may include:
advising on pre-filing strategy;
preparing requests for interpretive guidance or staff engagement;
evaluating whether and how to communicate with SEC staff;
responding to SEC inquiries and informal requests;
advising on enforcement posture and investigation strategy;
representing companies and individuals in SEC investigations;
advising individuals on cooperation considerations;
evaluating potential criminal referral risk;
advising on Investment Company Act applications and exemptive issues;
counseling public companies, audit committees, and accounting firms on PCAOB-adjacent issues;
reviewing filings, disclosures, investor materials, and regulatory submissions;
conducting internal investigations before or during regulatory interactions; and
helping clients manage the transition from informal inquiry to formal enforcement process when necessary.
The core point is practical: informal procedure is still procedure. How a client engages with SEC staff before a formal proceeding can shape the outcome of the matter.
