# Conformed to Federal Register Version > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Asec%3A907059aa63842804 ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text Conformed to Federal Register Version SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 202, 229, 230, 232, 239, 240, 270, and 274 [Release Nos. 33-10997; 34-93285; IC-34396; File No. S7-20-19] RIN 3235-AL96 Filing Fee Disclosure and Payment Methods Modernization AGENCY: Securities and Exchange Commission. ACTION: Final rule. SUMMARY: We are adopting amendments that will modernize filing fee disclosure and payment methods. We are amending most fee-bearing forms, schedules, statements, and related rules to require each filing fee table and accompanying disclosure to include all required information for fee calculation in a structured format. The amendments will add options for fee payment via Automated Clearing House (“ACH”) and debit and credit cards, and eliminate options for fee payment via paper checks and money orders. The amendments are intended to improve filing fee preparation and payment processing by facilitating both enhanced validation through filing fee structuring and lower-cost, easily routable payments through the ACH and debit and credit card payment options. Finally, the Commission is adopting other amendments to enhance the efficiency of the fee process. DATES: Effective dates: The final rules are effective on January 31, 2022, except for amendments to 17 CFR 202.3a, 17 CFR 230.111, 17 CFR 240.0-9, and 17 CFR 270.0-8, which are effective on May 31, 2022. Compliance dates: See Section II.A.6 for further information on transitioning to the final rules. FOR FURTHER INFORMATION CONTACT: Luba Dinits, Senior Accountant, Office of Financial Management, at (202) 551-3839, Mark W. Green, Senior Special Counsel, Division of Corporation Finance, at (202) 551-3430; Amanda Hollander Wagner, Branch Chief, or Amy Miller, Senior Counsel, Division of Investment Management, at (202) 551-6792; or R. Michael Willis, Associate Director, Office of Data Science and Innovation, Division of Economic and Risk Analysis, at (202) 551-6600. SUPPLEMENTARY INFORMATION: We are adopting amendments to: CFR Citation (17 CFR) Commission Reference Informal and other Procedures Regulation S-K Regulation S-T Securities Act of 19331 (“Securities Act”) Securities Exchange Act of 19342 (“Exchange Act”) Investment Company Act of 19403 (“Investment Company Act”) Securities Act and Investment Company Act Rule 3a Item 601 Rule 13 Rule 405 Rule 408 § 202.3a § 229.601 § 232.13 § 232.405 § 232.408 Rule 111 Rule 415 Rule 424 Rule 456 Rule 457 Rule 473 Form S-1 Form S-3 Form S-8 Form S-11 Form N-14 Form S-4 Form F-1 Form F-3 Form F-4 Form F-10 Form SF-1 Form SF-3 § 230.111 § 230.415 § 230.424 § 230.456 § 230.457 § 230.473 § 239.11 § 239.13 § 239.16b § 239.18 § 239.23 § 239.25 § 239.31 § 239.33 § 239.34 § 239.40 § 239.44 § 239.45 Rule 0-9 Rule 0-11 § 240.0-9 § 240.0-11 Rule 13e-1 § 240.13e-1 Schedule 13E-3 § 240.13e-100 Schedule 13E-4F § 240.13e-102 Schedule 14A § 240.14a-101 Schedule 14C § 240.14c-101 Schedule TO § 240.14d-100 Schedule 14D-1F § 240.14d-102 Rule 0-8 § 270.0-8 Form 24F-2 § 274.24 §§ 239.14 and 274.11a-1 Form N-2 2 15 U.S.C. 77a et seq. 15 U.S.C. 78a et seq. 3 15 U.S.C. 80a-1 et seq. 1 2 3 TABLE OF CONTENTS INTRODUCTION AND BACKGROUND FINAL AMENDMENTS A. Fee-Bearing Form Content and Structuring 1. Overview of the Amendments 2. Affected Forms 3. Content and Location of Filing Fee Information 4. Structuring of Filing Fee-Related Information 5. Scope of Proposed Amendments 6. Transition Period B. Fee Payment Process 1. Proposed Amendments 2. Comments on the Proposed Amendments 3. Final Amendments C. Fee Offset Amendment 1. Proposed Amendment 2. Comments on the Proposed Amendment 3. Final Amendment D. Technical and Other Clarifying Amendments 1. Proposed Amendments 2. Comments on the Proposed Amendments 3. Final Amendments III. OTHER MATTERS IV. ECONOMIC ANALYSIS A. Economic Baseline B. Economic Impacts, Including Effects on Efficiency, Competition, and Capital Formation 1. Structuring Filing Fee-Related Information 2. Updating Payment Options 3. Fee Offset Amendments 4. Anticipated Effects on Efficiency, Competition, and Capital Formation C. Reasonable Alternatives V. PAPERWORK REDUCTION ACT A. Background B. Summary of Comment Letters and the Amendments’ Effects on the Collections of Information C. Incremental and Aggregate Burden and Cost Estimates for the Amendments VI. FINAL REGULATORY FLEXIBILITY ACT ANALYSIS A. Need for, and Objectives of, the Final Amendments B. Significant Issues Raised by Public Comment C. Small Entities Subject to the Final Amendments D. Projected Reporting, Recordkeeping, and Other Compliance Requirements E. Agency Action to Minimize Effect on Small Entities VII. STATUTORY AUTHORITY Text of Final Rule and Form Amendments I. II. 4 I. INTRODUCTION AND BACKGROUND On October 24, 2019, the Commission proposed amendments to modernize filing fee disclosure and payment methods. 1 Specifically, the Commission proposed to amend most feebearing forms, schedules, statements, and related rules to require each filing fee table and accompanying disclosure to include all required information for filing fee calculation in a structured format. The Commission also proposed to add an option for filing fee payment via ACH and eliminate the options for filing fee payment via paper checks and money orders. The proposed amendments were intended to improve filing fee preparation and payment processing by facilitating both enhanced validation through filing fee structuring and lower-cost, easily routable payments through the ACH payment option. Finally, the Commission proposed other amendments to enhance the efficiency of the filing fee process. 2 Commenters generally supported the proposed structuring and payment option amendments but some had related observations and suggestions. 3 After reviewing and See Filing Fee Disclosure and Payment Methods Modernization, Release No. 33-10720 (Oct. 24, 2019) [84 FR 71580 (Dec. 27, 2019)] (“Proposing Release”). 1 The Commission assesses filing fees pursuant to Section 6(b) of the Securities Act [15 U.S.C. 77f(a)(b)] and Sections 13(e) and 14(g) of the Exchange Act [15 U.S.C 78m(e) and 78n(g)]. The filing fees are assessed on companies’ filing documents related to transactions, including registered securities offerings, tender offers and merger or acquisition transactions. 2 The Commission also assesses registration fees for registered offerings by investment companies (“funds”), with fees assessed on an annual basis for open-end funds and unit investment trusts (“UITs”). Pursuant to Section 24(f)(2) of the Investment Company Act [15 U.S.C. 80a-24(f)(2)], open-end funds and UITs must file information about the computation of these registration fees and other information on Form 24F-2. Effective August 1, 2021, registered closed-end funds that operate as “interval funds” are also required to file registration fee information on Form 24F-2, and as of February 1, 2022, all Form 24F-2 filers (interval funds, as well as open-end funds and UITs) will be required to submit Form 24F-2 to the Commission in a structured eXtensible Markup Language (“XML”) format. See Securities Offering Reform for Closed-End Investment Companies, Investment Company Act Release No. 33-10771 (Apr. 8, 2020) [85 FR 33290 (June 1, 2020)] (“Closed-End Fund Offering Reform Adopting Release”). An “interval fund” is a type of registered closed-end fund or business development company (“BDC”) that makes periodic repurchase offers pursuant to Investment Company Act Rule 23c-3. Additionally, registered closed-end funds and BDCs that are not interval funds, as well as small business investment companies (“SBICs”) that register securities under the Securities Act, generally must pay registration fees at the time of filing a registration statement. See Section 6(b)(1) of the Securities Act; see also Closed-End Fund Offering Reform Adopting Release, supra note 2, at 73, n.198. SBICs are privately-owned and -managed investment companies that are licensed and regulated by the Small Business Administration (“SBA”). 3 One commenter also supported the proposed centralization of filing fee information. Commenters did not address 5 considering the public comments and recommendations, we are adopting the amendments largely as proposed. As we discuss further below, in certain cases we are adopting the proposed rules with modifications that are intended to address comments received or otherwise improve upon the proposals. The current methods by which filers and the Commission staff process and validate EDGAR 4 filing fee information within the filing are highly manual and labor-intensive. 5 Filingfee related information is generally not machine-readable and the underlying components used for the calculation are not always required to be reported. 6 Filing fee calculation can be difficult and result in errors when transactions are complex or a filer is engaged in a number of transactions or attempts to use previously paid filing fees to offset the amount due or carry forward previously registered securities to a new registration statement. Other errors can occur because the filer must manually enter certain data elements relevant to the filing fee calculation in the body of the filing and, during the course of preparing the filing for EDGAR submission, the filing’s “header.” 7 The filing fee-related data is thus present in the EDGAR header, the body of the document being filed, or both. The manual process of entering the same data elements in more than one place increases the possibility of filer errors, such as re-keying errors or errors the other proposed amendments. Comment letters related to the Proposing Release are available at https://www.sec.gov/comments/s7-20-19/s72019.htm. The Commission receives filings through its Electronic Data Gathering, Analysis, and Retrieval (“EDGAR”) system. 4 Validation is the process of checking for conformance with certain requirements. Under the final rules, once filers structure their filing fee information, we expect the EDGAR system to automatically validate a filing fee based on the number of shares registered and maximum offering price per share by multiplying those amounts by each other and the applicable filing fee rate. 5 For example, as further discussed below, in connection with a business combination, filing fee-specific disclosures of the market value of securities to be received by a registrant or cash to be paid or received by the registrant are not expressly required to be disclosed even though they affect the filing fee calculation. See infra note 30. 6 Filings are submitted on EDGAR through the EDGARLink Online tool that is made available by the Commission to assemble, validate and submit filings on EDGAR. As part of submitting the filing, the registrant enters submission data that becomes part of that filing’s header. 7 6 where information is modified in one location but not the other. Correcting errors or reconciling inconsistencies in filing fee calculations can increase burdens on both the filer and the Commission staff. Currently, the Commission staff conducts a manual review of the filing fee information for every fee-bearing filing that is filed with the Commission. When there are discrepancies between filing fee information appearing in the header and in the filing fee table on the cover page of the filing, the staff must resolve the discrepancy and often has to contact the filer to do so. We expect the final amendments will make the filing fee payment validation process faster and more efficient by enabling the staff to use automated tools to help validate payment information with respect to complicated situations. We also expect that improvements in the payment validation process made possible by the tagging of the filing fee table and accompanying information with pre-submission validation by the filer will provide more certainty to registrants that the proper filing fee has been calculated and paid. We are amending most fee-bearing forms, schedules and statements 8 to provide that each filing’s calculation of filing fee tables, together with related explanatory notes to the filing fee tables, include all required information for filing fee calculation in a structured format using Inline eXtensible Business Reporting Language (“XBRL”). 9 Presenting filing fee-related information in a structured format will enable: • Efficient automated access to and processing of, information relevant to filing fee calculation; and • Eliminating both the need to enter duplicate filing fee information in the header and the possibility of inconsistent filing fee information between the header and the body 8 See Section II.A.5 regarding the fee-bearing forms we are amending and those we are not amending. Structured data is data that is tagged to make it machine-readable, facilitating its use by investors and other market participants, such as data aggregators (i.e., entities that, in general, collect, package, and resell data). 9 7 of the filing. 10 These amendments will improve the filing fee preparation, disclosure, validation, assessment, and collection processes. We also are adding options for filing fee payment via ACH and debit and credit cards, which offer more efficient and accurate filing fee payment processing than checks and money orders through standardized filing fee payment identification fields, and eliminating the options for filing fee payment via paper checks and money orders. These amendments will modernize filing fee payment methods and increase efficiency in processing filing fee payments. II. FINAL AMENDMENTS A. Fee-Bearing Form Content and Structuring 1. Overview of the Amendments The Commission proposed to require filers to include all required information for filing fee calculation in a structured format. 11 In this regard, the Commission observed that the preparation, disclosure, validation, assessment, and collection process would be more effectively automated by facilitating access to and processing of a broad range of filing fee calculationrelated information, saving filers and the Commission resources by reducing the need to manually access the relevant data or confirm it with filers. 12 The elimination of duplicate entries of information in the header and body of the filing will not be immediate. It will occur over time as filers become subject to the requirement to present filing fee-related information in a structured format and we program EDGAR accordingly. 10 This would include information that today is included in a text-only format, and some information prepared by filers but the disclosure of which is currently optional. 11 12 As part of submitting the filing, the EDGARLink Online program requires filers to manually enter a limited number of basic filing fee calculation components such as amount being registered, proposed maximum offering price per unit or in the aggregate and, where applicable, offset amount, which become part of the filing’s header. EDGARLink Online then performs a filing fee rate calculation based on that information. EDGAR’s filing fee applications will perform similar calculations using the filing fee-related information that we are requiring to be tagged in Inline XBRL. Eventually, this structured information may be used in these filing fee applications to confirm that a claimed filing fee offset is available based on the amount of remaining unsold securities registered on a prior filing. 8 The Commission proposed to require the use of Inline XBRL for the structured data. 13 The Commission noted that this format would result in machine-readable data that could then be used to more effectively automate the filing fee preparation, disclosure, assessment, and verification processes. We are adopting the filing fee-bearing form content and structuring amendments substantially as proposed with the following principal modifications: • To streamline the presentation of filing fee-related information and potentially facilitate any future changes in the structuring technology applied to it, the amendments move the filing fee-related information to a separate exhibit document (“filing fee exhibit”) rather than requiring it on the filing’s cover page as proposed and make related conforming changes; • To facilitate filing fee determination, information presentation, capacity tracking, and structuring and EDGAR validation, the final rules will require more detailed tabular disclosure of certain information that, under the proposal, registrants would have presented in narrative format or in the header information for a filing. The final rules will include tabular disclosure of any fee offsets claimed by the registrant and tabular In 2009, the Commission adopted rules requiring operating company financial statements and mutual fund risk/return summaries to be submitted in XBRL entirely within an exhibit to a filing. Interactive Data to Improve Financial Reporting, Release No. 33-9002 (Jan. 30, 2009) [74 FR 6776 (Feb. 10, 2009)] as corrected by Release No. 33-9002A (Apr. 1, 2009) [74 FR 15666 (Apr. 7, 2009)] (“Operating Company Financial Statement Tagging Release”). In 2018, the Commission refined the requirement by requiring, on a phased-in basis, operating company and mutual fund filers to submit this information using Inline XBRL, which embeds the tagged information in the document itself, rather than in an exhibit. See Inline XBRL Filing of Tagged Data, Release No. 33-10514 (June 28, 2018) [83 FR 40846 (Aug. 16, 2018)] (“Inline XBRL Release”). 13 Last year, the Commission adopted structured data reporting requirements for variable annuity and variable life insurance contracts, registered closed-end funds, and BDCs. See Updated Disclosure Requirements and Summary Prospectus for Variable Annuity and Variable Life Insurance Contracts, Investment Company Act Release No. 33814 (Mar. 11, 2020) [85 FR 25964 (May 1, 2020)] (“Variable Contract Summary Prospectus Adopting Release”) (requiring variable contracts to use Inline XBRL to submit certain required prospectus disclosures); Closed-End Fund Offering Reform Adopting Release, supra note 2 (requiring BDCs to submit financial statement information, and registered closed-end funds and BDCs to tag registration statement cover page information and specified prospectus disclosures using Inline XBRL). 9 disclosure if the registrant is filing a single prospectus that relates to two or more registration statements; • To take into account recent amendments made to Rule 424 and Forms S-1, S-3, F-1 and F-3 that enable certain issuers of exchange-traded vehicle securities to register an indeterminate amount of those securities and pay filing fees on an annual net basis, 14 revise these and, as appropriate, other provisions to conform to the other filing fee disclosure and payment methods amendments; • To facilitate filing fee determination, information presentation, and capacity tracking, revise Forms SF-1 and SF-3 to conform their filing fee content and presentation requirements, as applicable, to those of other fee-bearing forms we are amending and permit (but not require) filers to submit the filing fee-related information in Inline XBRL; and • For consistency with our proposed approach regarding certain Securities Act forms that require filing fee disclosures, but which are filed relatively infrequently by issuers that may not otherwise be subject to Commission structuring requirements, we are not adopting the proposed content or structuring amendments for Form N-5. The specific proposed and final form, schedule and related changes, along with our consideration of public comments, are discussed in detail below. 2. Affected Forms a. Proposed Amendments The Commission proposed to amend Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, F-4, and F- 14 See Closed-End Fund Offering Reform Adopting Release, supra note 2. 10 10 under the Securities Act 15 and Schedules 13E-3, 16 13E-4F, 17 14A, 18 14C, 19 TO, 20 and 14D1F 21 under the Exchange Act (collectively, the “Affected Securities Act and Exchange Act Forms and Schedules”) and Exchange Act Rule 13e-1 22 to require disclosure, and structuring of all information necessary to calculate the filing fee. The Commission also proposed to amend Forms N-2, 23 N-5, 24 and N-14 25 to require filers to submit their filing fee information in a These forms are used by operating companies to register offers and sales of securities under the Securities Act. They differ primarily in regard to issuer and transaction eligibility requirements, and location and nature of disclosure required. 15 16 Section 240.13e-3 (Rule 13e-3 under the Exchange Act) requires an issuer or affiliate to file a Schedule 13E-3 when either plans to engage in a transaction that could cause the loss of a reporting obligation under the Exchange Act or loss of a national securities exchange listing with respect to a class of the issuer’s equity securities. Schedule 13E-4F may be filed instead of Schedule TO in order to comply with § 240.13e-4 (Rule 13e-4 under the Exchange Act) where a Canadian operating company issuer meeting specified requirements is subject to Exchange Act reporting requirements and the issuer or, in limited circumstances, an affiliate makes a tender offer related to a class of the issuer’s equity securities. 17 18 Schedule 14A is required to be filed by an issuer or other person or entity that solicits proxy authority with respect to securities registered under Section 12 of the Exchange Act to comply with Exchange Act Rules 14a-3 and 14a-6. Schedule 14C is required to be filed by issuers to comply with §§ 240.14c-2 and 240.14c-5 (Exchange Act Rules 14c-2 and 14c-5) in connection with corporate actions to be authorized by holders of securities registered under Section 12 of the Exchange Act where no proxy authorization or consent is solicited on behalf of the issuer for the corporate action to be taken. 19 20 Schedule TO is required to be filed by Exchange Act Rule 13e-4 and § 240.14d-3 (Exchange Act Rule 14d-3) in connection with a tender offer for a class of an issuer’s equity securities registered under Section 12 of the Exchange Act (if the tender offer involves a going-private transaction, a combined Schedule TO and Schedule 13E-3 may be filed with the Commission under cover of Schedule TO). Schedule 14D-1F can be used to satisfy requirements otherwise applicable under Regulations 14D and 14E pursuant to § 240.14d-1(b) (Exchange Act Rule 14d-1(b)) with respect to specified Canadian operating company tender offer subjects. 21 Rule 13e-1 provides that an issuer that has received a notice that it is the subject of a tender offer is prohibited from purchasing any of its equity securities during the tender offer unless the issuer first files a statement with the Commission disclosing specified information related to the planned purchases and pays a specified filing fee. 22 Form N-2 is used by closed-end management investment companies to register under the Investment Company Act and to offer their shares under the Securities Act. Form N-2 is also used by BDCs to offer their shares under the Securities Act. A BDC is a type of closed-end fund that does not register under the Investment Company Act, but elects to be subject to the provisions of Sections 55 through 65 of the Investment Company Act. See Section 2(a)(48) of the Investment Company Act. 23 Form N-5 is used by SBICs to register under the Investment Company Act and to offer their shares under the Securities Act. 24 Form N-14 is used by management investment companies and BDCs to register securities to be issued in certain types of transactions, including certain fund mergers, under the Securities Act. See General Instruction A to Form N-14 for a list of the transactions for which the securities to be issued must be registered on Form N-14. 25 11 structured data format. Specifically, the Commission proposed to require filers to structure the filing fee-related information in the Affected Securities Act and Exchange Act Forms and Schedules and Forms N-2, N-5, and N-14 in Inline XBRL. b. Comments on the Proposed Amendments As further discussed below, 26 one commenter addressed the scope of fee-bearing documents the Commission proposed to revise. 27 The commenter stated that the Commission should structure all fee-bearing documents’ filing fee information to enable consistency of preparation and usage. c. Final Amendments We are adopting the amendments substantially as proposed but with several modifications. Consistent with the proposal, we are amending the Affected Securities Act and Exchange Act Forms and Schedules, Rule 13e-1, and Forms N-2 and N-14 to require disclosure and structuring of all information necessary to calculate the filing fee. In a change from the proposal, we are extending the content and location amendments, but not the structuring amendments, to Forms SF-1 and SF-3. 28 In another change, for reasons similar to those for not applying the amended filing fee disclosure and new structured data requirements to certain other Securities Act forms, we are not adopting the proposed amendments to Form N-5. 29 We further discuss this modification and the comment regarding the scope of the fee-bearing document amendments in Section II.A.5. 26 See Section II.A.5 regarding the scope of the filing fee bearing document proposed and final amendments. See letter from XBRL US (Feb. 25, 2020) (“XBRL US”). The commenter states that its members “include accounting firms, public companies, software, data and service providers, as well as other nonprofits and standards organizations.” 27 We are, however, permitting filers of Forms SF-1 and SF-3 to submit filing fee-related information in Inline XBRL. See Section II.A.5 and Item 601(b)(107) of Regulation S-K, as adopted. 28 29 See Section II.A.5 regarding the scope of the fee bearing document proposed and final amendments. 12 3. Content and Location of Filing Fee Information a. Proposed Amendments Currently, filing fee-related information is presented primarily on the cover page of feebearing filings, but also appears in a submission header. Regardless of where it appears, however, the information currently required to be disclosed does not always include all components needed to calculate the filing fee and, as a result, the Commission staff may need to contact the filer for more information. 30 The Commission proposed to require the cover page of fee-bearing filings to include all of the information necessary to calculate the filing fee, 31 which would expedite staff review of filing fee calculations, provide more certainty to filers that the proper filing fee has been paid and reduce burdens on filers that otherwise would need to respond to staff inquiries. As more fully described in the Proposing Release, the proposed amendments would further these objectives by: • Revising and adding filing fee tables; • Adding, clarifying and otherwise revising instructions regarding filing fee table presentation, calculations and related disclosure content and presentation; • Revising Rule 424(g) 32 regarding the completeness and location of filing fee-related As previously noted, EDGARLink Online requires filers to manually enter basic filing fee calculation components and then performs a filing fee rate calculation on that basis. The basic filing fee calculation components, however, may themselves be based on calculations using information that is not disclosed. For example, current Securities Act Rule 457(f) generally requires a business combination transaction filing fee to be based on, as applicable, (1) the market value of the securities to be received by the registrant or cancelled in the transaction as established by one of multiple specified methods; (2) cash to be received by the registrant in connection with the transaction (the amount to be added to the value of the securities to be received by the registrant or cancelled); and (3) cash to be paid by the registrant in connection with the exchange or transaction (the amount to be deducted from the value of the securities to be received by the registrant in connection with the transaction). Yet, neither Rule 457 nor, for example, Form S4, commonly used to register business combination transactions, expressly requires filing fee calculation-specific disclosure beyond the title of each class of securities to be registered, the amount to be registered, the proposed maximum offering price per unit, and the amount of the filing fee. 30 For Rule 424, however, the Commission proposed to permit this filing fee-related information to appear together anywhere within a filing made pursuant to the rule. 31 Rule 424 specifies when an issuer must file a form of prospectus in connection with a securities offering. Rule 424(g) states that when that filing requirement applies and the form of prospectus operates to reflect the payment of filing fees for an offering under Rule 456(b) [17 CFR 230.456(b)] of the Securities Act, the form of prospectus must 32 13 information in specified forms of prospectus; 33 • Revising the instructions to Forms S-3 34 and F-3 35 to provide that: o Information specified by the proposed term “General Interactive Data File,” described below, must appear in a prospectus filed under Rule 424(b) or posteffective amendment rather than a periodic report that is incorporated by reference into the registration statement to avoid extending the filing fee structured information requirements to periodic and current reports; 36 o Each post-effective amendment or final prospectus filed pursuant to Rule 424(b) to provide required information about a specific transaction must include the maximum aggregate amount or maximum aggregate offering price of the securities to which the post-effective amendment or prospectus relates and each such prospectus must indicate that it is a final prospectus for the related offering to assist in calculation of the amount of securities sold; include on its cover page the calculation of filing fee table reflecting the payment of those fees. Rule 456(b), in turn, provides that under specified conditions a well-known seasoned issuer that registers securities on an automatic shelf registration statement may defer a filing fee payment until it is required to file the related prospectus supplement under Rule 424(b). Proposed instructions to each filing fee table required by Rule 424(g) could have required the filer to disclose explanatory information to accompany the filing fee table, such as cash paid or received by a registrant in connection with a business combination transaction that is relevant to filing fee calculation. As a result, the Commission proposed to revise Rule 424(g) to require the filing to include the filing fee table and information required by the form instructions to the filing fee table, and to require all of this information in a structured format. This proposed requirement could have caused more information to be required on the prospectus cover page and, as a result, displace information that is more appropriate for the cover page. For this reason, the Commission also proposed to revise Rule 424(g) to permit the filing fee-related information to appear anywhere within the prospectus as long as it appears together. 33 34 General Instruction II.F of Form S-3. 35 General Instruction II.G of Form F-3. An issuer otherwise could continue to include transaction-specific information in a periodic or current report to the same extent it can do so under current provisions. 36 14 • Revising the instructions to Forms S-4 37 and F-4 38 to provide that: o Each post-effective amendment or, if permitted, final prospectus supplement filed under Rule 424(b) to provide required information about a specific transaction and particular company being acquired, must include the maximum aggregate amount or maximum aggregate offering price of the securities to which the post-effective amendment or prospectus relates; o Each such prospectus must indicate that it is a final prospectus for the related offering to assist in calculation of the amount of securities sold; and • Revising the proposed instructions related to reliance on Securities Act Rule 415(a)(6), 39 § 230.429 (Securities Act Rule 429), 40 and Securities Act Rules 457(b) 41 and 457(p), 42 and Exchange Act Rule 0-11(a)(2) 43 to require disclosure related to, General Instruction H of Form S-4. We also proposed to revise the first sentence of General Instruction H to conform it to the second sentence and General Instruction F of Form F-4 by replacing the word “or” with the word “and” where the sentence currently refers to “required information about the type of contemplated transaction or the company to be acquired.” 37 38 General Instruction F of Form F-4. Rule 415(a)(6) provides, in general, that under specified circumstances an issuer may include on a new registration statement (i.e., carry forward) unsold securities covered by its earlier registration statement and the offering of securities on the earlier registration statement will be deemed terminated as of the effectiveness of the new registration statement. Any filing fee paid in connection with such unsold securities will continue to be applied to such unsold securities on the new registration statement. 39 40 Rule 429 provides that where a registrant has filed two or more registration statements, it may file a single prospectus in its latest registration statement to satisfy applicable requirements for that offering and any other offering(s) registered on the earlier registration statement(s). Rule 429 also provides that where a registrant does so, the registration statement containing the combined prospectus shall act, upon effectiveness, as a post-effective amendment to any earlier registration statement whose prospectus has been combined in the latest registration statement. Finally, Rule 429 states that the registrant must identify any earlier registration statement to which the combined prospectus relates by setting forth the Commission file number at the bottom of the facing page of the latest registration statement. 41 Rule 457(b) relates to crediting filing fees paid under one filing fee provision against those due under another filing fee provision for the same transaction. Rule 457(p) provides that where all or some of the securities offered under a registration statement remain unsold after the offering’s completion or termination, or withdrawal of the registration statement, the aggregate total dollar amount of the filing fee associated with those unsold securities may be offset against the total filing fee due for a later registration statement or registration statements subject to specified conditions. 42 43 Rule 0-11(a)(2) also relates to crediting filing fees paid under one filing fee provision against those due under 15 among other things, prior filing identification, unsold securities, maximum aggregate offering amount, and previously paid filing fees, as applicable. The Commission believed that this information, which was also proposed to be subject to structuring requirements, would enable filers and the Commission staff to better track permitted fee offsets and the amount of securities sold for which filing fees have been paid. 44 b. Comments on the Proposed Amendments A commenter stated that centralizing the filing fee information would reduce the number of places the Commission would need to look for the information and as a result, facilitate automated review and, because the filer would need to enter the information only once, likely improve the accuracy of the information and its preparation speed. 45 The commenter also stated that automated review could improve the validity and timeliness of analysis. No commenters opposed the proposed amendments regarding the content and location of fee information. c. Final Amendments i. Summary of Amendments We are adopting the amendments substantially as proposed with modifications to enhance their operation. Consistent with the Commission’s prior view, we believe that requiring certain fee-bearing filings to include all of the information necessary to calculate the filing fee, will expedite staff review of filing fee calculations, provide more certainty to filers that the another filing fee provision for the same transaction. Relatedly, Rule 457(p) requires that a filer claiming an offset from a previous registration statement add a note to the later registration statement’s filing fee table stating the dollar amount of the filing fee previously paid that is offset, the file number of the earlier registration statement from which the filing fee is offset, and the name of the registrant appearing on, and the initial filing date of, the earlier registration statement. To help assure that the amount of offset the filer seeks to apply is available from the earlier registration statement, the Commission proposed that, in addition, the note would have to disclose the amount of unsold securities or unsold aggregate offering amount from the prior registration statement associated with the claimed offset. Finally, the Commission proposed to require the note to state that the registrant has withdrawn the prior registration statement or terminated or completed any offering that included the unsold securities associated with the claimed offset under the earlier registration statement so that it is clear that these conditions have been met. 44 45 See letter from XBRL US. 16 proper filing fee has been paid and reduce burdens on filers that otherwise would need to respond to staff inquiries. After further consideration, however, we believe that it would be better to require the filing fee-related information in a separate filing fee exhibit rather than on the cover page. 46 We believe this approach will streamline presentation of the information and potentially facilitate future changes in structuring technology that may be applied to it. 47 Specifically, the final amendments, substantially similar to the proposals except where noted, will make the following changes, as applicable: 48 • Require filing fee-related information to appear in a filing fee exhibit rather than on the cover page of each of the Affected Securities Act and Exchange Act Forms and Schedules, Rule 13e-1, Forms SF-1 and SF-3, 49 and Forms N-2 and N-14. • To facilitate filing fee determination, information presentation, capacity tracking, and structuring and EDGAR validation, add columns to the basic filing fee table for Rule 424(g) requires that a prospectus filed under Rule 424 include any filing fee-related information on the cover page. The Commission proposed, however, to amend Rule 424 to permit this filing fee-related information to appear together anywhere within a filing made pursuant to the rule. As further discussed in Section II.A.3, the revision we are adopting to Rule 424(g) to require this filing fee-related information in an exhibit to the prospectus, obviates the need for this proposal. 46 It may be easier for the Commission to change the structuring technology applicable to a separate exhibit than to a main document to which one or more other technologies may continue to apply because of the greater simplicity of having a single format to consider and address. 47 48 Some of the final amendments will not affect all of the fee-bearing filings within the scope of this release. For example, final amendments related to Rule 457(f) will not apply to Form S-8, which is used for employee benefit plan-related securities offerings, or to Form N-2, because these forms do not involve business combination or other transactions, which Rule 457(f) addresses. Although fee-bearing filings under the Securities Act and Exchange Act are used for different types of offerings and transactions, under the final amendments, consistent with the proposals, they will all contain some of the same or highly similar filing fee table categories to facilitate comparisons and structuring. In a change from the proposal, the affected fee-bearing documents under the Exchange Act will not expressly require tabular disclosure of the title of each class of securities to which the related transaction applies. Additional tailored disclosure will still be required as applicable. Likewise, amended Forms N-2 and N-14 will also contain, with some modifications, the same filing fee-related content requirements we are adopting for the Affected Securities Act and Exchange Act Forms and Schedules. For the reasons discussed in Section II.A.5 regarding the scope of the amendments, in a change from the proposal, we are revising the filing fee-related information content and location requirements of Forms SF-1 and SF-3 similar to the way we are revising the Affected Securities Act and Exchange Act Forms and Schedules, but not subjecting the filing fee-related information to structuring requirements except at the filer’s option. 49 17 registration forms 50 to indicate: the type of security being newly registered or carried forward; 51 the registration form type, file number, and initial effective date of one or more previously filed registration statements associated with any unsold securities that the registrant is carrying forward; fees paid in connection with amendments; and entries for total offering amounts, the total amount of fee offsets and the total fee due net of fee offsets and any previously paid amounts; • To require most of the filing fee calculation information to be presented in tabular rather than narrative format, add new tables 52 to provide disclosure regarding any fee offsets claimed by the registrant that are derived under Rule 457(b) and (p) and Rule 0-11(a)(2) and disclosure related to any reliance on Rule 429 to file a single prospectus that relates to two or more registration statements; • Add a “fee rate” column to the filing fee table of the Affected Securities Act and Exchange Act Forms and Schedules, as well as to Forms SF-1 and SF-3 and Forms N-2 and N-14; • Revise filing fee tables in Schedules 13E-3 and TO and add filing fee tables to Schedules 13E-4F, 14A, 14C, and 14D-1F to require filers to present basic filing fee calculation information in a table, and, in a change from the proposal, information about any claimed offsets in a separate table; 53 See in the relevant forms, Table 1: Newly Registered and Carry Forward Securities. These columns and related instructions are being added in a change from the proposal further discussed below. 50 The instructions to the filing fee tables specify the following security types: asset-backed securities, debt, debt convertible into equity, equity, exchange-traded vehicle securities; face amount certificates; limited partnership interests, mortgage-backed securities, non-convertible debt, other, or unallocated (universal) shelf. 51 See in the relevant forms, Table 2: Fee Offset Claims and Sources, and Table 3: Combined Prospectuses. The tables are being added in a change from the proposal further discussed below. 52 As amended, the filing fee tables for Schedules 13E-3, 13E-4F, TO, and 14D-1F will have the column headings “Transaction Valuation,” “Fee rate,” and “Amount of filing fee” and columns to differentiate between previously paid fees and fees being paid in connection with the current filing. Also as amended, the filing fee tables for Schedules 14A and 14C will have similar column headings. 53 18 • Add or clarify instructions regarding filing fee table presentation, calculations and related disclosure content and presentation 54 in general 55 and, in particular, associated with Rule 415(a)(6), Rule 429, Rule 457(a), (b), (f), 56 (h), (o), (p), 57 and (u), 58 Rule 011(a)(2), and transaction valuation, as applicable, in regard to the Affected Securities Act and Exchange Act Forms and Schedules as well as Forms SF-1, SF-3, 59 N-2 and All of the Affected Securities Act and Exchange Act Forms and Schedules and Forms N-2 and N-14, as amended, will include a new filing fee table instruction that will require all filing fee-related disclosure required by the filing fee table instructions, but not included in the filing fee table, to immediately follow the filing fee table to which it corresponds. See, e.g., Instruction 1.D to the Calculation of Filing Fee Tables in Item 16(c) of Form S-1. 54 For example, the final amendments will add two instructions to the Securities Act forms and Forms N-2 and N-14 subject to the location and content amendments, as applicable, that address pre-effective amendments. In a change from the proposal, one will provide that when a registrant increases the amount of securities of any class to be registered, it must continue to disclose in Table 1 the information it previously disclosed in a separate category to effectively distinguish the newly added securities. See, e.g., Instruction 2.A.i to the Calculation of Filing Fee Tables in Item 16(c) of Form S-1 and Instruction 2.A.i to Item 25.2.s of Form N-2. As proposed, the registrant would have been required to disclose some of that information in narrative format. As further discussed in Section II.C, the other will provide that when a registrant files a pre-effective amendment to concurrently (i) increase the amount of securities of one or more registered classes or add one or more new classes of securities; and (ii) decrease the amount of securities of one or more registered classes, it may, unless it previously relied on Rule 457(o) to calculate the fee, reflect any such increase and decrease in the filing fee table, recalculate the total filing fee due for the registration statement in its entirety and claim an offset pursuant to Rule 457(b) in the amount of the filing fee previously paid in connection with the registration statement. See, e.g., Instruction 2.A.iv to the Calculation of Filing Fee Tables in Item 16(c) of Form S-1 and Instruction 2.A.iv of Item 25.2.s of Form N-2. 55 56 We are adopting a modified version of proposed Instruction 1 to the Instructions to the “Calculation of Registration Fee” Table and Related Disclosure of Forms S-1, S-4, S-11, F-1, F-4, and N-14 to conform it more closely to Rule 457(f). See, e.g., Instruction 2.A.ii.b to the Calculation of Filing Fee Tables in Item 16(c) of Form S1. In a change from the proposed filing fee table instructions relating to Rule 457(p), we refer to the filing fee previously paid for unsold securities under an earlier filed, rather than effective, registration statement to be consistent with the term used in the rule. 57 We are adopting modified versions of the proposals related to each of Forms S-1, S-3, F-1 and F-3 to add a new instruction regarding filing fee-related disclosure in connection with offerings of an indeterminate amount of exchange-traded vehicle securities, as that term is defined in Securities Act Rule 405 (17 CFR 230.405), and net deferred filing fee payment. In the Closed-End Fund Offering Reform Adopting Release, the Commission adopted amendments to, among other things, permit issuers to elect under Securities Act Rule 456(d) to register an offering of an indeterminate amount of exchange-traded vehicle securities and pay registration fees for the offering on an annual net basis no later than 90 days after the end of the fiscal year. Concurrently, the Commission adopted Securities Act Rule 457(u), which sets forth the calculation method for paying registration fees in this manner. At the same time, the Commission adopted amendments to the fee table notes to Forms S-1, S-3, F-1, and F-3 to require specified disclosure for an offering made in reliance on Rules 456(d) and 457(u). The additions of Rules 456(d) and 457(u) and the related form text became effective on August 1, 2021. We are including this new form text by adding Instruction 2.A.ii.d to the Calculation of Filing Fee Tables in Item 16(c) of Form S-1, Item 16(b) of Form S3, Item 8(c) of Form F-1, and Item 9(b) of Form F-3. 58 59 Compared to the other fee-bearing documents providing for Rule 457(p)-based filing fee offset claims, Forms SF1 and SF-3 contemplate such claims by a broader range of registrants that were not the registrant under the earlier 19 N-14, 60 or involving business combination or employee benefit plan filing fee calculations. • Add filing fee tables and calculation disclosure requirements to Exchange Act Rule 13e-1; 61 • Revise Rule 424(g) so that the form of prospectus that reflects the amount of a payas-you-go registration fee under Rule 456(b) 62 or, in relation to Form SF-3, Rule 456(c), 63 also includes all filing fee information needed for filing fee calculation and registration statement. New Note 2 to Instructions 3.C.i to the Calculation of Filing Fee Tables in Item 14(b) of Forms SF-1 and SF-3, respectively, also provide for a claim by an “other registrant eligible to claim a filing fee offset.” The broader language reflects the Commission’s previous statement that “ABS issuers opting to pay the required registration fees with each takedown could rely upon Rule 457(p) to apply a portion of the fee associated with the unsold securities under a previously-filed registration statement as an offset against the filing fee due at the time of the preliminary prospectus filing by the same depositor or affiliates of the depositor across asset classes.” See Asset-Backed Securities (“ABS”) Release, infra note90. 60 All of the Affected Securities Act and Exchange Act Forms and Schedules other than Form F-10, as well as Forms N-2 and N-14, currently are subject to Rule 457, in the case of forms under the Securities Act, or Rule 0-11, in the case of schedules under the Exchange Act. General Instruction II.B of Form F-10, provides, however, that the rules comprising Regulation C under the Securities Act, including Rule 457, do not apply to filings on the form unless expressly referenced. Form F-10 does not expressly reference Rule 457. Instead, it presents its own filing fee calculation provisions in General Instructions II.G – II.I. These instructions require payment at the same rate applicable under Rule 457 and set forth how to calculate the filing fee in connection with an exchange offer or business combination. From time to time, filings on Form F-10 have raised filing fee issues that are not addressed by these instructions. In those cases, the staff typically has resolved these issues by applying principles derived from otherwise applicable provisions of Rule 457. Consistent with that historic approach, the final amendments will revise General Instruction II.G to make all but paragraph (f) of Rule 457 expressly applicable to filings on Form F10. Consistent with the changes being made to the other Securities Act forms that require specified information underlying a Rule 457(f) fee calculation, the Commission is adding Instructions 2.A.ii.b and c to the Calculation of Filing Fee Tables in paragraph (107) to Part II of Form F-10 to require analogous information underlying a filing fee calculation under General Instructions II.H and II.I, respectively. In a change from the proposal, to further conform new paragraphs 2.A.ii.b and c to the analogous provisions of the other Securities Act forms and clarify the information required, we have added to both instructions the requirement that the valuation explanation include the value per share of the securities that may be received by the registrant or cancelled upon the issuance of securities registered on the form or the value per share of the equity securities of the predecessor companies held by U.S. residents being offered the registrant’s securities, as applicable. In addition, the final amendments more closely conform the language of new paragraphs 2.A.ii.b and c to General Instructions II.H and II.I, respectively. As adopted, the filing fee tables and related instructions to be added to Rule 13e-1 will be substantially similar to the filing fee tables and related instructions that will be present in Schedules 13E-3, 13E-4F, TO, and 14D-1F as amended. 61 Rule 456(b) permits a well-known seasoned issuer that registers securities offerings on an automatic shelf registration statement, or registers additional securities or classes of securities thereon, to defer payment of all or any part of the registration fee to the Commission if the registrant satisfies the conditions specified in Rule 456(b)(1)(i) and (ii). 62 63 Rule 456(c) permits an ABS issuer that registers ABS on Form SF-3 to defer payment of all or any part of the registration fee to the Commission if the registrant satisfies the conditions specified in Rule 456(c)(1)(i) and (ii). 20 not just the currently required registration fee table, and to require all of this information to be located in a filing fee exhibit rather than, as proposed, on the prospectus cover page or anywhere else in the filing so long as it is kept together; 64 • Revise the General Instructions to Forms S-3, 65 F-3, 66 and SF-3 67 to provide that: o Information specified by each form’s filing fee exhibit requirements or Rule 424(g) related to a specific transaction must appear in a filing fee exhibit to a post-effective amendment or prospectus filed under Rule 424(b) or (h), 68 as applicable, rather than a periodic report that is incorporated by reference into the registration statement; and o Each post-effective amendment or final prospectus filed pursuant to Rule 424(b) to provide required information about a specific transaction must include in a filing fee exhibit the maximum aggregate amount or maximum aggregate offering price of the securities to which the post-effective amendment or prospectus relates and each such prospectus must indicate in We are adopting a modified version of the proposed revision to Rule 424(g) by adding a reference to Rule 456(c) consistent with the modification of Form SF-3 to conform its content and presentation requirements to those of similar forms this adopting release addresses. 64 We also are revising Rule 456(b) and (c) to conform them to Rule 424(g) as amended. Rule 456(b)(1)(ii) provides that in connection with a deferred filing fee payment, a filer must place an updated filing fee table in a post-effective amendment or on the cover page of a prospectus filed under Rule 424(b). Similarly, Rule 456(c)(1)(ii) provides that in connection with a deferred filing fee payment, a filer must place an updated filing fee table on the cover page of a prospectus filed under 424(h). As revised, Rule 456(b)(1)(ii) and (c)(1)(ii) will instead require a filer placing the updated filing fee table in a prospectus to do so in the manner Rule 424(g) specifies. 65 General Instruction II.F of Form S-3. 66 General Instruction II.G of Form F-3. 67 General Instruction II.D of Form SF-3. A filing fee exhibit to a prospectus will be a part of the prospectus for liability and other purposes just as deferred fee filing information is today when provided pursuant to Rule 456(b) or (c). The filing fee exhibit to a prospectus, however, will be required to be submitted as an attachment for EDGAR filing purposes as will be further specified in the EDGAR Filer Manual. 68 21 the exhibit that it is a final prospectus for the related offering to assist in calculation of the amount of securities being sold; • Revise the General Instructions to Form N-2 69 to provide that: o Funds that register securities under the Securities Act on Form N-2 must include a filing fee exhibit, except interval funds, which are required to pay registration fees on Form 24F-2; 70 o Where securities are being registered pursuant to General Instruction A.2, information specified by Item 25.2.s of Form N-2 or Rule 424(g) related to a specific transaction must appear in a filing fee exhibit to a post-effective amendment or prospectus filed under Rule 424(b); 71 and o Each post-effective amendment or final prospectus filed pursuant to Rule 424(b) to provide required information about a specific transaction must include in a filing fee exhibit the maximum aggregate amount or maximum aggregate offering price of the securities to which the post-effective amendment or prospectus relates, and each such prospectus must indicate in the exhibit that it is a final prospectus for the related offering; • Revise the General Instruction to Form N-14 72 to provide that funds must include a filing fee exhibit, except funds that pay registration fees on an annual net basis pursuant to Rule 24f-2 under the Investment Company Act, which are required to pay registration fees on Form 24F-2; and 69 General Instruction C of Form N-2. 70 General Instruction C.1 of Form N-2. 71 General Instruction C.2 of Form N-2. 72 General Instruction B of Form N-14. 22 • Revise the General Instructions to Forms S-4 73 and F-4 74 to provide that each posteffective amendment or, if permitted, final prospectus supplement filed under Rule 424(b) to provide required information about a specific transaction and particular company being acquired, must include in a filing fee exhibit the maximum aggregate amount or maximum aggregate offering price of the securities to which the posteffective amendment or prospectus relates and each such prospectus must indicate in a filing fee exhibit that it is a final prospectus for the related offering. ii. Filing Fee Exhibit Requirements As noted above, in a change from the proposal, we are moving the filing fee-related information from a filing’s cover page to an exhibit to the filing because we believe this approach will streamline presentation of the information and potentially facilitate future changes in structuring technology applied to it. 75 For the Securities Act forms that refer to the exhibit requirements in Item 601 of 73 General Instruction H of Form S-4. We also are revising the first sentence of General Instruction H to conform it to the second sentence and General Instruction F of Form F-4 by replacing the word “or” with the word “and” where the sentence currently refers to “required information about the type of contemplated transaction or the company to be acquired.” 74 General Instruction F of Form F-4. We have made corresponding revisions to several rule provisions that were premised in the proposing release on filing fee-related information appearing on the cover page of a registration statement. Securities Act Rule 415(a)(6) provides that, when a filer carries forward securities to a new registration statement, it must identify on the bottom of the cover page of the new registration statement or the latest amendment to it, the amount of securities carried forward and any filing fee paid in connection with those securities. We are revising Rule 415(a)(6) to provide that such information must appear on the cover unless expressly required elsewhere in the filing. Securities Act Rule 473(a), in general, specifies a form of amendment that delays the effectiveness of a registration statement until the registrant files a specified further amendment or the Commission declares the registration statement effective. Rule 473(c) requires a filer that includes such a delaying amendment to place it on the cover of the registration statement following the fee-related information. As a result of moving the filing fee-related information from the cover page to an exhibit of most fee-bearing Securities Act forms, we are revising Rule 473(c) to permit the delaying amendment to appear anywhere on the cover page. In addition, we are adopting revisions to fee-bearing form instructions that permit filers registering additional securities under § 230.462(b) (Securities Act Rule 462(b)) to file an abbreviated format registration statement that includes a cover page and certain other specified information. We are revising these instructions to include filing-fee related information. See General Instruction V of Form S-1, General Instruction IV.A of Form S-3, General Instruction G of Form S-11, General Instruction K of Form S-4, General Instruction V of Form F-1, General Instruction IV.A of Form F-3, General Instruction H of Form F-4, and General Instruction III of Forms SF-1 and SF-3. 75 23 Regulation S-K, the filing fee-related information exhibit requirement will be established by a combination of a new Item 601(b)(107) of Regulation S-K and the following new provisions: Item 16(c) of Form S-1, Item 16(b) of Form S-3, Item 8(b) of Form S-8, Item 36(c) of Form S11, Item 21(d) of Form S-4, Item 8.c of Form F-1, Item 9(b) of Form F-3, Item 21(d) of Form F4, Item 14(b) of Form SF-1, and Item 14(b) of Form SF-3. Since Form F-10 does not refer to Item 601, the filing fee-related information exhibit requirement will appear in new paragraph (107) of Part II of that form. 76 The Exchange Act schedules and Rule 13e-1 will require the filing fee exhibit through the following new provisions: Item 16(b) of Schedule 13E-3, paragraph (4) of Part II of Schedule 13E-4F, Item 25(b) of Schedule 14A, Item 12(b) of Schedule TO, paragraph (4) of Part II of Schedule 14D-1F and Rule 13e-1(a)(7). 77 Because the Schedule 14A filing fee information requirement will appear in a new item of that schedule and Item 1 of Schedule 14C generally requires compliance with relevant items of Schedule 14A, we are revising Schedule 14C to replace the current detailed filing fee-related information requirements with a cross-reference to Item 25(b) of Schedule 14A. iii. Changes to Forms N-2 and N-14 In a change from the proposal, we are modifying certain aspects of the content and As further discussed below, the Commission proposed to add a row (107) to the exhibit table in Item 601(a) of Regulation S-K and a paragraph (107) to Item 601(b) to require Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, and F-4 to include a General Interactive Data File and, as a result, require each form to include its filing fee-related information in structured format. Similarly, the Commission proposed to add a new paragraph (107) to Part II – Information Not Required to be Delivered to Offerees or Purchasers of Form F-10 to require a General Interactive Data File. 76 In changes from these proposals discussed below, we are directly imposing the structuring requirement on these forms’ filing fee exhibits’ contents, other than Form F-10’s, through Item 601(b)(107) and on Form F-10’s through paragraph (107) to Part II – Information Not Required to be Delivered to Offerees or Purchasers of Form F-10. This change removes the reason for the proposal to require structuring by reference to the new term “General Interactive Data File”. Consequently, we are not revising Rule 11 of Regulation S-T to add that term. See Section II.A.4 regarding adoption of the structuring requirement. These provisions also will directly impose a structuring requirement on filing fee exhibits’ contents rather than, as proposed, require filing fee-related information structuring by reference to the term “General Interactive Data File.” See Section II.A.4. 77 24 location requirements for Forms N-2 and N-14. We solicited comment on whether the proposed requirements were sufficient to centralize relevant information, or whether there were other ways we could facilitate the fee process for filers. We also asked whether we should apply the proposed filing fee content and structuring requirements to the proposed filing types, or whether the scope should include more or less types of filings. In response, we received a comment stating that we should structure all fee-bearing documents’ fee information to enable consistency of preparation and usage. 78 Consistent with our overarching goal of enabling more efficient automated access to, and processing of, information relevant to fee calculation, in a change from the proposal we are adopting amendments to Forms N-2 and N-14 that generally mirror, as applicable, the centralized filing fee table presentation, calculation and related disclosure requirements that were proposed for the Affected Securities Act and Exchange Act Forms and Schedules. We believe this approach will promote consistency of presentation and usage of affected fee-bearing forms, and provide greater clarity to fund registrants regarding how to comply with the filing fee-related content requirements without adding new substantive requirements. In another change from the proposal, amended Forms N-12 and N-14 also will require the filing fee exhibit, which will be implemented through revisions to the General Instructions for Registration Fees in both of these forms, 79 and the addition of the following provisions: Item 25.2.s of Form N-2, and paragraph 18 of Item 16 of Form N-14. Not all fund registrants will be required to provide the new filing fee exhibits. For example, certain investment companies, including mutual funds, exchange-traded funds, unit investment trusts—and most recently, interval funds— are deemed to have registered an 78 See letter from XBRL US. 79 General Instruction C of Form N-2; General Instruction B of Form N-14. 25 indefinite number of securities under Section 24(f) of the Investment Company Act and required by Rule 24f-2 to pay registration fees on an annual net basis using Form 24F-2. 80 Forms N-2 and N-14 currently do not require such registrants to provide Calculation of Filing Fee tables in their registration statements. 81 Consistent with this approach, registrants that pay registration fees using Form 24F-2 will not be required to provide the filing fee exhibit for Forms N-2 or N14. While SBICs may register securities under the Securities Act on Form N-14, based on their filing history, we do not expect to see many, if any, such filings. 82 Accordingly, we believe that registered closed-end funds (that are not interval funds) and BDCs are the only types of funds likely to be subject to the Form N-2 and N-14 filing fee exhibit requirements at this time. iv. Other Changes to Rules and Instructions A new instruction relating to Rule 429 reliance will require an issuer relying on that rule to disclose in a combined prospectus table the file number(s) of the earlier effective registration statement(s), the form type(s) and initial effective date(s), the amount or maximum aggregate offering price of unsold securities registered on the earlier registration statement(s) that may be offered and sold using the combined prospectus and the securities’ type and class title. 83 We believe that requiring this information, which will also be subject to structuring requirements, 80 The Commission recently expanded the group of issuers subject to filing on Form 24F-2 to include interval funds. See Closed-End Fund Offering Reform Adopting Release, supra note 2. Unlike Form N-2, Form N-14 currently requires funds that pay registration fees on Form 24F-2 to “provide the Title of Securities Being Registered and state that no filing fee is due because of reliance on Section 24(f).” Because the EDGAR Filer Manual already requires funds to disclose their status as Form 24F-2 filers in the header for Form N-2 and Form N-14, and to harmonize the forms, we are eliminating this instruction from Form N-14. 81 82 Based on staff review of Commission filings, a SBIC has not filed on Form N-14 for at least 20 years. Because funds can also rely on Rule 429, in a change from the proposal we are amending Forms N-2 and N-14 to mirror the parallel instruction we are adopting for the Affected Securities Act and Exchange Act Forms and Schedules. See Instruction 4 to Item 25.2.s of Form N-2; Instruction 4 to paragraph 18 of Item 16 of Form N-14. In a related change, we are also making a technical correction to General Instruction B of Form N-14 to clarify that all form registrants, not just open-end management companies, as currently stated, may rely on Rule 429. In another change from the proposal, we are adding the requirements for form type, initial effective date and the securities type and class title. 83 26 will enable filers and the Commission staff to better track the amount of securities sold for which filing fees have been paid. For the same reason, we are amending the Affected Securities Act and Exchange Act Forms and Schedules for which Rule 415(a)(6) is potentially available, as proposed, as well as Forms SF-3 and N-2, to require that a filer relying on that rule disclose the number of securities, or, if the related filing fee was calculated in reliance on Rule 457(o), the maximum aggregate offering amount; the file number of the earlier registration statement; the initial effective date of the earlier registration statement; and the filing fee previously paid in connection with the unsold securities being carried forward. 84 Also for the same reason, the amendments will require those filing Affected Securities Act and Exchange Act Forms and Schedules, statements under Rule 13e-1, and Forms SF-1, SF3, N-2 and N-14 that rely on Rule 457(b) or Rule 0-11(a)(2) to disclose the dollar amount of the filing fee to be offset, the type of filing or form type, file number, and initial filing date of the earlier registration statement or Exchange Act filing from which the filing fee offset is claimed. 85 If the filer is claiming an offset from an earlier Securities Act registration statement, the amendments also will require the filer to provide a detailed explanation regarding the claimed offset. 86 In a change from the proposal, this fee offset claim information will be required in 84 Rule 415(a)(6) currently requires that a filer using the rule identify on the bottom of the facing page of the later registration statement the amount of unsold securities being included and any filing fee paid in connection with those securities. We are amending the current reference to information that must appear on the cover page, as discussed above. See supra note 75. Although an instruction referencing Rule 415(a)(6) was not proposed with respect to Form N-2, certain Form N-2 registrants can rely on Rule 415(a)(6) so we are adding an instruction to the Form N-2 filing fee exhibit that parallels the new instruction referencing Rule 415(a)(6) in similar forms. See Instruction 2.B to Item 25.2.s of Form N-2. In a modification to the proposal to better enable tracking, the filer also will be required to disclose the form type of the earlier registration statement and the securities’ type and class title. We are adopting these amendments largely as proposed, except with respect to Forms SF-1, SF-3, N-2 and N-14, for which parallel modifications were not proposed but we are adopting to conform these forms to similar forms being amended. See, e.g., Instruction 3 to Item 16 of Form S-1; Instruction 3 to Item 25.2.s of Form N-2. 85 This disclosure will be required when a filer claims an offset from a Securities Act registration statement under Rule 457(b) or Rule 0-11(a)(2) because the transaction linkage between the document being filed and the Securities Act registration statement may be less readily apparent than when an offset is claimed from a transactional Exchange Act filing. 86 27 Table 2, which also will require information about the original sources (“fee offset sources”) to which the fee offsets claimed can be traced. 87 The fee offset source requirements in Table 2 for Rule 457(b) and 0-11(a) fee offset claims are registrant or filer name, form or filing type, file number, filing date and fee paid with fee offset source. 88 Rule 457(p) generally requires that a filer claiming an offset from a previous registration statement add a note to the later registration statement’s filing fee table stating the dollar amount of the filing fee offset claim against the currently due filing fee, the file number of the earlier registration statement from which the filing fee offset is claimed, and the name of the registrant appearing on, and the initial filing date of, the earlier registration statement. To help assure that the amount a filer claims as an offset from a previous registration statement is available, we are amending Rule 457(p) to require disclosure of the amount of unsold securities or unsold aggregate offering amount from the prior registration statement associated with the claimed offset, as proposed. 89 In addition, consistent with the proposal, the amendments will require the note to state that the registrant has withdrawn the prior registration statement or terminated or completed any offering that included the unsold securities associated with the claimed offset under the earlier registration statement so that it is clear that these conditions have been met. 90 For example, if a filer on Schedule TO claims an offset under Rule 0-11(a)(2) from a Form S-4 it filed, and the filer did not make a contemporaneous fee payment when it filed the Form S-4 because it claimed a fee offset under Rule 457(p) from a Form S-3 it filed that went effective as initially filed and with which it made a contemporaneous payment, the filer would cite to the Form S-3 filing as the fee offset source. More detailed discussion and examples of fee offset source identification will be located in the affected fee-bearing forms and schedules. See, e.g., Instruction 3 to the Calculation of Filing Fee Tables in Item 16(c) of Form S-1. 87 Fee offset source information currently is required in a header when a filer claims a fee offset. When a filer claims a fee offset under Rule 457(b) or (p) or Rule 0-11(a)(2), it is required to provide in the header the following information about the fee offset source: the Central Index Key (“CIK”) of the filer, form type, file number, filing date, and amount of fee contemporaneously paid. 88 89 Final Rule 457(p)(2). Final Rule 457(p)(5). The adopted changes will not affect the Commission’s position that asset-backed securities issuers could apply unused filing fees in connection with a preliminary prospectus filing toward a future takedown off the same registration statement. See Asset-Backed Securities Disclosure and Registration, Release No. 33-9638 (Sept. 4, 2014) [79 FR 57184 (Sept. 24, 2014)] as corrected by Release No. 33-9638A (Nov. 3, 2014) [79 FR 66607 90 28 As proposed, the parallel disclosure requirement will appear in the filing fee table instructions of the Affected Securities Act and Exchange Act Forms and Schedules, as well as Forms SF-1, SF3, N-2 and N-14, 91 and the resulting disclosure will have to be presented in the Inline XBRL structured format as applicable. 92 In a change from the proposal further discussed below, the filing fee table instructions of these forms and schedules will, however, require in tabular format and a note to a new fee offset claim table the resulting disclosure and all disclosure currently required by Rule 457(p). 93 For this reason, we are also amending Rule 457(p) to provide that the information it requires in connection with a fee offset claim must be provided in a note as currently required unless expressly required in another part of the registration statement. General Instructions II.F, II.G, and II.D of Forms S-3, F-3, and SF-3, respectively, currently require that, when information is omitted from certain shelf registration statements at the time of initial effectiveness, the issuer must provide information about a specific transaction in a prospectus filed under Rule 424(b) or (h), post-effective amendment or periodic or current report incorporated by reference into the registration statement, as applicable. Registered closedend funds and BDCs that file a short-form shelf registration statement on Form N-2 are subject to the same requirement pursuant to General Instruction A.2 of Form N-2. In a change from the proposal, the filing fee exhibit requirements that pertain to the forms will specify the filing fee- (Nov. 10, 2014)]. Although though not specifically proposed with respect to Forms N-2 and N-14, we are amending these forms to include the new instruction for issuers that seek to rely on Rule 457(p) for conformance with similar forms being amended. See Instruction 3.C to Item 25.2.s of Form N-2; Instruction 3.C to paragraph 18 of Item 16 of Form N-14. 91 As previously noted, we are not extending the structuring requirements to Forms SF-1 and SF-3 but will permit filers on these forms to structure their filing fee-related information. See Item 601(b)(107) of Regulation S-K. 92 93 In a further change from the proposal, the affected forms and schedules will require in tabular format slightly more information about Rule 457(p) fee offset claims and the same fee offset source information that will be required in connection with a Rule 457(b) or 0-11(a)(2) fee offset claim as described above. The tables will also require the form or filing type of the earlier registration statement from which the fee offset is claimed and the type and title of the unsold securities or unsold aggregate offering amount associated with the fee offset claimed. We believe this additional information will help validate the fee offset claims. 29 related information that a filer must structure. 94 Similarly, the amendments revise Forms S-3 and F-3 to require that in relation to a specific transaction, an issuer include any information specified by (i) Item 16(b) of Form S-3 or Rule 424(g); or (ii) Item 9(b) of Form F-3 or Rule 424(g), 95 respectively, in a prospectus filed under Rule 424(b), or post-effective amendment, as applicable, to avoid extending the filing fee structured information requirements to periodic and current reports, 96 as proposed. For the same reason, we are further modifying the proposals by adopting similar amendments to Forms SF-3 and N-2. 97 In another change from the proposal, for the reasons stated at the outset of this section, the amendments also specify that the information must be in a filing fee exhibit. Consistent with the proposal, the amendments revise the same instructions to Form S-3 and F-3 to require each post-effective amendment or final prospectus that is filed pursuant to Rule 424(b) in order to provide required information about a specific transaction to include in a filing fee exhibit the maximum aggregate amount or maximum aggregate offering price of the securities to which the post-effective amendment or prospectus relates, and to require each such prospectus to indicate that it is a final prospectus for the related offering. 98 To ensure As proposed, the information to be structured would have been specified by reference to the term “General Interactive Data File.” 94 The references to these items and Rule 424(g) equate to and replace the proposed references to the superseded term “General Interactive Data File” and do not otherwise constitute a change from the proposal. 95 The specified provisions set forth filing fee exhibit content requirements. An issuer otherwise can continue to include transaction-specific information in a periodic or current report to the same extent it can do so under current provisions. 96 Form N-2 was recently amended to allow eligible registered closed-end funds and BDCs to file a short-form shelf registration statement consistent with the approach available to operating companies that file on Form S-3. See Closed-End Fund Offering Reform Adopting Release, supra note 2. To avoid having to mirror in Form N-2 all of the language in Form S-3 needed for the preparation and filing of automatic and non-automatic shelf registration statements, Form N-2 provides cross-references to the relevant provisions of Form S-3, including General Instruction II.F, which apply, as applicable, to funds that seek to file a short-form shelf registration statement. See Notes to General Instructions A.2 and B of Form N-2. To clarify that Form N-2 filers are subject to the same filing fee-related disclosure obligations we are requiring for issuers that file on Form S-3, we are adding General Instruction C.2. 97 98 To expressly require this maximum aggregate amount or maximum aggregate offering price information in the filing fee-related exhibit of a post-effective amendment, in a change from the proposal, we are adding Instruction 30 consistency, we are adopting similar amendments to Forms SF-3 99 and N-2. 100 We believe that requiring this information, which will also be subject to the new structuring requirements, except as to Form SF-3, 101 will enable issuers and the Commission to better track the amount of securities sold under a registration statement. Such information will make it easier to determine amounts of unsold securities available to bring forward to a new registration statement under Rule 415(a)(6) and the amount of filing fees available for offsets under Rules 457(p) and 0-11. We also believe requiring registrants to indicate that a prospectus is final in a filing fee exhibit subject to the new structuring requirements will help issuers and the Commission identify the latest date by which filing fees deferred under Rule 456(b) can be paid in compliance with the rule. General Instructions H and F of Forms S-4 and F-4, respectively, currently require that when securities are offered in connection with a business combination under Rule 415(a)(1)(viii) 102 and information is omitted at the time of initial effectiveness because it is 1.D to the Calculation of Filing Fee Tables in Item 16(b) of Form S-3 and Item 9(b) of Form F-3. To expressly require this maximum aggregate amount or maximum aggregate offering price and final prospectus information in the filing fee-related exhibit of a final prospectus, we are revising Rule 424(g). See General Instruction II.D of Form SF-3. To expressly require this maximum aggregate amount or maximum aggregate offering price information in the filing fee-related exhibit of a post-effective amendment, we are adding Instruction 1.D to the Calculation of Filing Fee Tables in Item 14(b) of Form SF-3. As noted above, revised Rule 424(g) will expressly require this maximum aggregate amount or maximum aggregate offering price and final prospectus information in the filing fee-related exhibit of a final prospectus. 99 100 See General Instruction C.2 of Form N-2. Consequently, even if a filer previously filed and structured filing fee-related information on Form S-3, F-3 or N2, such as a full filing fee table and explanatory material in an initial filing, pre-effective amendment, or filing under paragraph (b) of Rule 424, as applicable, it still will need to present and structure this maximum aggregate amount or maximum aggregate offering price and final prospectus information, as applicable, in a filing fee-related exhibit of such a post-effective amendment or final prospectus. Similarly, even if a filer previously filed fee-related information on Form SF-3, such as a full filing fee table and explanatory material in an initial filing, pre-effective amendment, or filing under paragraph (h) of Rule 424, it still will need to present this maximum aggregate amount or maximum aggregate offering price and final prospectus information, as applicable, in a filing fee-related exhibit of such a post-effective amendment or final prospectus. 101 Rule 415(a)(1)(viii) permits an issuer to register a delayed or continuous offering of securities to be issued in connection with business combination transactions. 102 31 impractical to provide, the issuer must provide information about the specific transaction and company acquired in the prospectus through a post-effective amendment except that, in the case of Form S-4, under specified circumstances, the issuer could instead use a prospectus supplement. We are revising these instructions, consistent with the proposal, to provide that each post-effective amendment or final prospectus supplement filed to provide required information about a specific transaction and particular company being acquired must include in a filing fee exhibit the maximum aggregate amount or maximum aggregate offering price of the securities to which the post-effective amendment or prospectus relates, and each such prospectus must indicate that it is a final prospectus for the related offering. 103 As with the analogous amendments adopted for Forms S-3 and F-3, we believe that requiring this information, which will also be subject to the new structuring requirements, will help issuers and the Commission better track the amount of securities sold under a registration statement. New instructions to each filing fee table required by Rule 424(g) may require the filer to disclose explanatory information to accompany the filing fee table, such as cash paid or received by a registrant in connection with a business combination transaction that is relevant to filing fee calculation. As a result, we are revising Rule 424(g) to require the filing to include the filing fee table and information required by the form instructions to the filing fee table, and to require all of this information in a structured format, as proposed. We are also revising Rule 424(g) to replace the current requirement to place the filing fee table on the cover page of the prospectus with a requirement to place the filing fee table and related disclosure in a separate filing fee exhibit. 104 103 To expressly require this maximum aggregate amount or maximum aggregate offering price information in the filing fee-related exhibit of a post-effective amendment, we are adding Instruction 1.D to the Calculation of Filing Fee Tables in Item 21(d) of Forms S-4 and F-4 and renumbering the instructions that follow accordingly. To expressly require this maximum aggregate amount or maximum aggregate offering price and final prospectus information in the filing fee-related exhibit of a prospectus, we are revising Rule 424(g). This amendment to Rule 424(g) obviates the part of the proposal that would have permitted this filing fee-related information to appear together anywhere within the prospectus. 104 32 d. Changes to the Proposed Filing Fee Tables and Instructions We have made several changes to the proposed filing fee tables and instructions to require filers to provide additional detail about their filing fee calculations in tabular format. The additional detail generally consists of readily available information that filers already provide under current header requirements and/or information that the filer would already need to determine in order to calculate its fee. Presentation of this information in tabular format will centralize filing fee disclosure and facilitate providing, structuring and analyzing filing fee data. For example, we proposed to include a single registration fee table in Form S-1 to require disclosure of the following: • Title of each class of securities to be registered; • Amount of securities to be registered; • Proposed maximum offering price per unit; • Proposed maximum aggregate offering price; • Fee rate; • Amount of registration fee; and • The fee calculation-related rule or rules relied upon by the registrant. We are adopting an expanded version of that table, now called “Table 1: Newly Registered and Carry Forward Securities,” in addition to two other tables, to disclose the additional detail needed to calculate the filing fee in a centralized and more readily identifiable format. Table 1, the first and most basic fee table, continues to include the proposed disclosures about securities that the registrant is newly registering but also calls for similar disclosures regarding securities the registrant is carrying forward from one or more previously filed registration statements. Table 1 requires additional disclosure of the type of security being newly registered and carried forward and the type and class of security being carried forward, to the extent applicable. Table 1 also requires disclosure of the registration form type, file number, 33 and initial effective date of one or more previously filed registration statements associated with any unsold securities that the registrant is carrying forward and the filing fee previously paid in connection with those unsold securities. Finally, Table 1 adds entries for newly registered securities for which fees were previously paid in connection with the initial filing or a preeffective amendment, total offering amounts, total fees previously paid for newly registered securities, total fee offsets and total fee due net of previously paid fees for newly registered securities and fee offsets. We are adding a new “Table 2: Fee Offset Claims and Sources” to provide more detail regarding any fee offsets claimed by the registrant that are derived under Rule 457(b) and (p) and Rule 0-11(a)(2). We proposed to require most of the information regarding the carry forward securities and fee offsets in narrative format, but upon further consideration, we believe that the disclosure will be easier to provide, structure and analyze if it is instead presented in tabular format. The tabular format should better enable filers to understand what is required and provide it in an organized manner that is more conducive to structuring than narrative disclosure. It should be easier to analyze the resulting information in human-readable form because it will be more organized than in narrative form and generally consistent across fee-bearing documents. We also are adding a new “Table 3: Combined Prospectuses” that a registrant will need to include if relying on Rule 429 to file a single prospectus that relates to two or more registration statements. We proposed to require the Table 3 information in narrative format, but upon further consideration, we believe that tabular disclosure is preferable for Table 3 for the same reasons it will be preferable for Table 1. We have reorganized and added instructions to the tables to assist registrants in completing the fee tables. Forms S-3, S-4, S-8, S-11, F-1, F-3, F-4, F-10, N-2, and N-14 include these same three fee tables. In a change from the proposal, we also have made some changes to the Exchange Act forms and schedules to provide the disclosure in an improved format. For example, we have 34 added to the basic fee table, Table 1, entries to differentiate between the transaction valuation associated with fees previously paid and fees to be paid in connection with the current filing. Another change is to require Table 1 to include certain totals such as the transaction valuation, fee amounts, fees previously paid, fee offsets claimed and the fee due net of fee offsets and fees paid with an initial filing or previous amendments. 105 We are adding a new Table 2 to provide the same type of detail as the Securities Act forms regarding any fee offsets claimed by the filer that are derived under Rule 0-11(a)(2) in lieu of proposed narrative disclosure requirements. 4. Structuring of Filing Fee-Related Information a. Proposed Amendments To facilitate the filing fee process, we proposed to require structuring of all the filing feerelated information that would be required on the cover page of the Affected Securities Act and Exchange Act Forms and Schedules and statements under Rule 13e-1. 106 We believed that structuring the relevant data would greatly enhance the ability of filers and Commission staff to quickly identify and correct errors, as EDGAR’s validation functionality would automatically check the structured filing fee-related information for internal consistency, including prior to submission of a live filing. 107 As proposed, this information would be structured in Inline XBRL for all affected filings. The Proposing Release noted that Inline XBRL would be a particularly useful method of structuring filing fee-related information because: it eliminates the need to tag a copy of the information in a separate document, as under traditional XBRL; 108 Inline XBRL is We proposed that the Exchange Act fee-bearing documents other than Schedules 14A and 14C include the title of each class of securities to which the transaction applies but upon further consideration, we believe that information is not necessary. 105 Filing fee-related information in prospectuses filed under Rule 424 and related to a registration statement under the Securities Act subject to the structuring requirements also would be required to be structured in Inline XBRL. 106 107 As detailed below, as implemented, EDGAR will validate certain live filings prior to submission. Inline XBRL allows filers to embed XBRL data directly into a HyperText Markup Language (“HTML”) document, eliminating the need to tag a copy of the information in a separate XBRL exhibit. 108 35 consistent with the underlying format of all of the fee-bearing forms the Commission proposed to structure; and it enables automated analytical tools to extract the information sought wherever it may be located within a filing. 109 As proposed, the structured information would include each filing fee table in the Affected Securities Act and Exchange Act Forms and Schedules and statements under Rule 13e1, together with accompanying explanatory disclosure, as well as other information specified by the proposed Rule 11 definition of “General Interactive Data File.” We proposed to define that term as the machine-readable computer code that presents fee-related information required by the applicable rule provision or particular form, statement or schedule, in Inline XBRL in the manner provided by the EDGAR Filer Manual. As more fully described in the Proposing Release, we proposed to implement the structuring requirement for these forms, schedules and statements through a new Item 601(b)(107) of Regulation S-K, the terms of these forms, schedules and statements and a new Rule 424(i). As proposed, the provisions would require these documents to include a General Interactive Data File, and, as a result, require filing of filing fee-related information in structured format. Additionally, the Commission proposed to require structuring of the information in each filing fee table of Forms N-2, N-5, and N-14. We proposed to implement this requirement through amendments to Rule 405 of Regulation S-T 110 and the General Instructions in these forms. b. Comments on the Proposed Amendments Commenters expressed general support for the proposal to present all filing fee-related 109 See Proposing Release, supra note 1, at Section II.A. 110 See proposed Rules 405(b)(3), (4), and (5) of Regulation S-T. 36 information in a structured format. 111 They cited, among other reasons, the following: • Improved accuracy and disclosure; 112 • Increased confidence of registrants in the accuracy of their calculated filing fees; 113 • Easier management by the Commission staff and filers of complex calculations due to automation; 114 and • Expected improved efficiencies in preparation, processing and analysis. 115 Two commenters addressed several specific aspects of the proposal 116 and one of those commenters provided both its own views and the views of XBRL preparation vendors it surveyed. 117 These two commenters expressed the following views on specific aspects of the proposal: 118 • Information to be Structured – o All filing fee information should be structured as proposed to enable ease of validation. • Structuring Format – o Inline XBRL structuring should be required for all filing fee information as proposed because, among other reasons, it is machine-readable and searchable See letters from Brittany Jones (Nov. 4, 2019) (“Jones”), Dominique Martinez (Nov. 7, 2019) (“Martinez”), XBRL US, and XBRL US Regulatory Modernization Working Group (Oct. 8, 2020) (“XBRL US WG”). 111 112 See letter from Jones. 113 See letter from XBRL US. 114 See letter from XBRL US WG. See letter from XBRL US. The commenter cited several reasons for expecting improved efficiencies, including eliminating the need for the staff to manually review filing fee calculations. We believe that the final amendments will reduce the need for the staff to manually review filing fee calculations. 115 116 See letters from XBRL US and XBRL US WG. 117 See letter from XBRL US. Unless otherwise indicated, the views noted in the remainder of this section were expressed in the letter from XBRL US. 118 37 (in both cases, clearly and consistently), human readable, continually adapted to changing technology, able to be generated in multiple forms (e.g., XML and HTML), and superior to XML because XML would require the creation of additional structure to consistently handle filing fee characteristics already included within the Inline XBRL standard and a Commission-developed non-standard structured data language would add to costs of preparation, collection and analysis; o Forms N-2, N-5, and N-14 should be structured in Inline XBRL, as proposed, for essentially the same reasons; and o The commenter cautioned that, while the Commission should remain open to the possibility that a standard that improves upon XBRL or Inline XBRL may be developed in the future, a switch to a different standard could result in market uncertainty and uncertainty about how data may need to be reported, and could increase the cost of tools and data access. • Pilot Structuring Program – o A pilot structuring program would be helpful. Most vendors agreed, citing possible aid to program testing, gaining filing fee tagging knowledge and making process changes, but a minority did not agree, noting that XBRL requirements already are in place and a pilot would delay the anticipated benefits; 119 and Commenters also made specific suggestions about the timing of a possible pilot program and vendor access to an EDGAR stage level system for user acceptance testing, among other suggestions. See letters from XBRL US and XBRL US WG. In a subsequent letter dated Aug. 30, 2021, XBRL U.S. suggested that the Commission staff publish the taxonomy to be used in conjunction with the proposed structuring requirements as soon as possible. 119 38 • Guidance – o The Commission should issue clear and consistent guidance for filers and vendors to address all possible scenarios. For example, the Commission should provide guidance on how to prepare a footnote when there is an offset. If the Commission does not provide guidance, then matters are likely to be handled in different ways. • Additional Recommendations and Considerations o With filing fee information in structured format, the Commission could add more features to improve the accuracy of the calculation and facilitate the process and, as a result, the Commission should consider the following suggestions: • Prompt filers to provide additional required information based on the rule reliance checkbox selected; • Provide a mechanism through which a filer can run automatic validation against filing fee calculation so it could correct issues before submission; and • Clarify how EDGAR will handle dual submission types (i.e., Inline XBRL structured filing fee information coupled with non-Inline XBRL other information in the same filing). c. Final Amendments We are adopting the amendments largely as proposed with the changes noted below that we believe will enhance their operation. 120 We continue to believe that structuring the relevant data will greatly enhance the ability of filers and Commission staff to quickly identify and correct errors, as EDGAR’s validation functionality will automatically check the structured filing As noted above, we are adopting a modified version of the proposals to permit filers of Forms SF-1 and SF-3 to submit filing fee-related information in Inline XBRL. See Item 601(b)(107) of Regulation S-K and Section II.A.5. 120 39 fee-related information for internal consistency. Filers that use the Commission-provided option discussed below to construct structured filing fee-related information within EDGAR generally will receive validation and resulting error and warning messages before they submit both test and live filings. 121 Filers that construct this structured information outside of EDGAR, however, will receive validation and resulting error and warning messages after they submit both test and live filings. 122 While EDGAR will automatically compute the filing fee due using the structured data and validate the information submitted by the filer, validation failures caused by incorrect or incomplete structured filing fee-related information generally will result in a warning to filers and a flag for staff follow-up, but EDGAR will accept the filing. However, approximately three months after all filers are required to comply with the structured data requirement, the Commission will suspend filings rather than issue warnings for incorrect or incomplete structured filing fee-related information. Commission staff will provide advance notice of the specific date of the change to filers. This approach largely mirrors the current practice, where, for example, if certain information such as the filing fee due is not provided, the filing is suspended. Although we are extending this approach to more information (i.e., any tagging errors or data omissions/errors in the filing fee exhibit will trigger a suspension), we believe that delaying suspensions until approximately three months after the last compliance date will give filers an opportunity to gain experience with the new tagging requirements and that—coupled with the availability of the new filing fee tool—will increase accuracy and thus minimize suspensions. We also believe that Inline XBRL will be a particularly useful method of Validations that require access to information within the EDGAR system and outside the filing, such as validations relating to carry forwards and fee offsets, will not occur until after filing. 121 122 The ability to validate the filing fee calculation is consistent with one commenter’s suggestion to provide such a mechanism through which a filer could run an automatic validation against its filing fee calculation to enable it to correct issues before submission. See letter from XBRL US. A filer constructing structured information outside of EDGAR generally can obtain pre-live submission error and warning messages by first submitting a test filing. As noted in regard to filers that use the Commission-provided option to construct the structured information, validations that require access to information within the EDGAR system and outside the filing, such as validations relating to carry forwards and fee offsets, may not occur until after the test filing. 40 structuring filing fee-related information because it eliminates the need to tag a copy of the disclosed information in a separate exhibit (as would be the case under traditional XBRL), and because Inline XBRL is consistent with the underlying format of the Affected Securities Act Forms and Schedules and statements under Rule 13e-1, as well as Forms N-2 and N-14. To facilitate the filing fee process, the amendments require structuring of all filing feerelated information in an exhibit to each of the Affected Securities Act and Exchange Act Forms and Schedules and statements under Rule 13e-1, as well as Forms N-2 and N-14. 123 As proposed, the structuring for all of these filings will be done in Inline XBRL. The structured information will include each filing fee table in the Affected Securities Act and Exchange Act Forms and Schedules and statements under Rule 13e-1 and Forms N-2 and N-14, together with accompanying explanatory disclosure as well as other information specified by the final filing fee exhibit requirements. 124 As previously noted in discussing the content and location amendments, in a change from the proposal, the structuring requirements will apply to the contents of the filing fee exhibits rather than to information specified by the term “General Interactive Data File.” 125 We proposed to structure the filing fee-related information by reference to the term “General Interactive Data File” because the term swept in information that could be dispersed throughout the body of a filing and we believed the term provided a useful reference for an exhibit that would contain solely contextual information about the structured filing fee-related information. 126 The change Filing fee-related information in exhibits to prospectuses filed under Rule 424 and related to a registration statement under the Securities Act also will be required to be structured in Inline XBRL. 123 As discussed below, we are adopting a modified version of the proposed approach by requiring Forms N-2 and N-14 to use the same structured data tagging requirements that we are adopting for similar Affected Securities Act and Exchange Act Forms and Schedules. 124 125 See Section II.A.3. 126 Contextual information includes, for example, a tagged amount’s related fiscal period. 41 from the proposal to centralize filing fee-related information in the filing fee exhibit enables us to impose the structuring requirement directly on the filing fee exhibit’s content and, as a result, obviates the need for the term “General Interactive Data File” to specify that information. Based on the planned method of implementing the structuring framework, there will be no need for contextual information. Consequently, we are not revising § 232.11 (Rule 11 of Regulation S-T) to define the term “General Interactive Data File.” 127 New Item 601(b)(107) of Regulation S-K, as adopted, will require filers of Forms S-1, S3, S-4, S-8, S-11, F-1, F-3, and F-4 to structure their filing fee exhibits by submitting them as required by new Rule 408 of Regulation S-T. Rule 408, in turn, requires the filing fee exhibit to be submitted in Inline XBRL as provided by the EDGAR Filer Manual. As adopted, the same requirement will apply to the following by their terms or, in the case of prospectuses containing specified filing fee-related information, by final Rules 424(g) and (i): 128 • Form F-10; 129 • Prospectuses filed pursuant to Rule 424 containing filing fee-related information for In another change to the proposals, Item 601(b)(107) will permit but not require filing fee exhibits in Forms SF-1 and SF-3 to be structured in Inline XBRL. See Section II.A.5. 127 In a conforming change from the proposal, we are not adopting proposed Rule 424(i) because it would have imposed a structuring requirement on filings pursuant to Rule 424(b) through the term “General Interactive Data File”. In a further modification, we are instead adopting a revision to Rule 424(g) that will impose filing fee information exhibit requirements on filings pursuant to Rule 424 that reflect the payment of deferred fees under Rule 456(b) or (c) or include the maximum aggregate amount or maximum aggregate offering price of the securities to which the prospectus relates and final prospectus status as required by General Instruction II.F of Form S-3, General Instruction II.G of Form F-3, General Instruction II.D of Form SF-3, and General Instruction H of Form S-4. Revised Rule 424(g) also will impose structuring requirements on all of these filings except for those related to Form SF-3, which it will permit but not require to be structured. 128 After the Commission issued the Proposing Release, it adopted a new Rule 424(i), effective Aug. 1, 2020, in the Closed-End Fund Offering Reform Adopting Release. Effective Aug. 1, 2021, Rule 456(d) requires issuers that rely on Rule 456(d) to elect to register an offering of an indeterminate amount of exchange-traded vehicle securities to file a prospectus in accordance with final Rule 424(i). Rule 424(i) will require issuers to disclose specified information about filing fees they deferred in reliance on Securities Act Rule 456(d). In a conforming change, we are revising Rule 424(i) to require the filing fee information it specifies appear in an exhibit and be structured. See paragraph (107) to Part II—Information Not Required to be Delivered to Offerees or Purchasers of Form F10. 129 42 an offering under Rule 456(b) or (c) or the maximum aggregate amount or maximum aggregate offering price and final prospectus status information that the final amendments will require in connection with certain Forms S-3, F-3, S-4, F-4, and N-2 regardless of whether a filing fee payment is due, or the prospectus contains a filing fee table; 130 • Prospectuses filed in accordance with Rule 424(i); • Statements under Rule 13e-1; 131 • Schedules 13E-3, 132 13E-4F, 133 TO, 134 and 14D-1F; 135 • Fee-bearing Schedules 14A 136 and 14C; 137 and • Forms N-2 and N-14. Companies that file these documents often already will have experience structuring Commission documents in Inline XBRL. Issuers that file Forms S-1, S-3, S-4, S-8, S-11, F-1, F3, F-4, F-10, N-2, and N-14 138 generally are or will be, as a result of the phase-in of various 130 Filings related to Forms SF-3 that contain the specified information will be permitted but not required to structure the filing fee exhibit. 131 See paragraph (c) to Rule 13e-1. 132 See paragraph B of the General Instructions of Schedule 13E-3. 133 See paragraph A(1) of Part II (Filing Instructions and Fees) of the General Instructions of Schedule 13E-4F. 134 See Instruction 1.D to the Calculation of Filing Fee Tables in new Item 12(b) of Schedule TO. See Instruction 1.E to the Calculation of Filing Fee Tables in new paragraph (4) under Part II-Information Not Required To Be Sent To Shareholders of Schedule 14D-1F. 135 136 See Instruction 1.D to the Calculation of Filing Fee Tables in new Item 25(b) of Schedule 14A. 137 See Item 1 of Schedule 14C. The Commission proposed to revise the cover page of Schedule 14C to expressly require the filing fee-related information that proposed Item 25(b) of Schedule 14A would require. This proposed revision is unnecessary because Item 1 of Schedule 14C requires compliance with relevant items of Schedule 14A, as applicable. We are, however, revising the Schedule 14C cover page to replace the checkbox text reference to a filing fee computed on the “table below” per the applicable Exchange Act filing fee rules with a reference to a filing fee computed on the table in the exhibit required by Item 25(b) of Schedule 14A per Item 1 of Schedule 14C and the applicable Exchange Act fee rules. 138 We anticipate that registered closed-end funds (that are not interval funds) and BDCs will be the only Form N-14 filers required to provide, and thus tag, the filing fee exhibit. The vast majority of investment companies that file on 43 Inline XBRL requirements or, in some cases, the need to file Exchange Act periodic and current reports, required to file their financial statements in Inline XBRL. For example, annual reports on Forms 10-K, 20-F, and 40-F, quarterly reports on Form 10-Q, current reports on Form 8-K, and reports on Form 6-K under the Exchange Act are or will be subject to financial statement Inline XBRL tagging requirements. 139 All of these Exchange Act reports, other than Form 6-K, as well as Form N-2, also are, or will be, subject to cover page structuring requirements. 140 In some instances, entities that file fee-bearing documents that do not currently require Inline XBRL already will have experience filing their financial statements and Exchange Act cover page information in Inline XBRL. 141 Additionally, we are adopting amendments that will, as proposed, require investment companies to use Inline XBRL to structure the filing fee-related information required in Forms N-2 and N-14. No commenter specifically addressed the proposed approach for implementing the filing fee structured data requirement for funds, other than to recommend that we require funds to use Inline XBRL to tag all filing fee-related information, as proposed. 142 However, we believe that requiring a consistent approach to the data tagging requirements for similar forms Form N-14 pay registration fees on Form 24F-2 and will not be subject to these requirements. For a general discussion of the financial statement tagging requirements applicable to Securities Act and Exchange Act forms, see Operating Company Financial Statement Tagging Release and the Inline XBRL Release, supra note 13. The Commission recently adopted amendments that, among other things, required BDCs to tag their financial statements using Inline XBRL. See Closed-End Fund Offering Reform, supra note 2. 139 For a general discussion of the Exchange Act report cover page tagging requirements, see FAST Act Modernization and Simplification of Regulation S-K, Release No. 33-10618 (Mar. 20, 2019) [84 FR 12674 (Apr. 2, 2019)] (“FAST Act Adopting Release”) as corrected at 84 FR 13796 (Apr. 8, 2019) and FAST Act Modernization and Simplification of Regulation S-K; Correction, Release No. 33-10618A (Aug. 6, 2019) [84 FR 39966 (Aug. 13, 2019)] (collectively, “FAST Act Release”). Registered closed-end funds and BDCs are also subject to Form N-2’s cover page tagging requirements. See Closed-End Fund Offering Reform, supra note 2. 140 For example, an issuer filing a Schedule 13E-3 with regard to itself already would be subject to reporting obligations under the Exchange Act and, as a result, very likely already be subject to Inline XBRL financial statement and cover page structuring requirements. Similarly, a registered closed-end fund or BDC that files a registration statement on Form N-14 will already be subject to Inline XBRL prospectus disclosure and cover page structuring requirements. 141 142 See letter from XBRL US. 44 with the same or similar disclosures will reduce confusion and simplify the process for filers and Commission staff. Accordingly, in a change from the proposal, we are not adopting the proposed amendments to Rule 405 or Forms N-2 and N-14. 143 Instead, we are conforming the structured data requirements for Forms N-2 and N-14 to largely mirror the approach we are adopting for the Affected Securities Act and Exchange Act Forms and Schedules. Specifically, we are amending the General Instructions in Forms N-2 and N-14 to require the specified filing fee exhibits to be submitted as structured data in the manner provided by Rule 408 of Regulation S-T. 144 Consistent with the views of commenters 145 and the XBRL vendors that one of them surveyed 146 favoring a pilot program and vendor access to an EDGAR stage-level system for user acceptance testing, the amendments will permit all filers to file their filing fee-related information structured in Inline XBRL prior to the compliance date for each category of filers 147 and we will make available a separate filing agent test system, respectively. 148 Filers will be able to file under the amendments once the EDGAR system has been modified to accept filing feerelated information in Inline XBRL for all fee-bearing documents subject to the amendments, which is anticipated to be approximately six months before the earliest compliance date. 149 In a change from the proposal, and to facilitate the relocation of the filing fee table from the cover page to an exhibit, we are amending Rule 405(b)(3)(ii) to remove the reference to “the Calculation of the Registration Fee table.” 143 144 General Instruction I.4 of Form N-2; General Instruction H.1 of Form N-14. 145 See letters from XBRL US and XBRL US WG. 146 See letter from XBRL US. 147 A filer that voluntarily chooses to structure a filing fee exhibit before its compliance date, will still be free to structure or not structure its filing fee exhibits until its compliance date. Filing agents that are enrolled in the EDGAR Testing Program will have the ability to access a separate system dedicated to testing the filing fee exhibit submission requirements. We expect this test system to be available no later than six months prior to the compliance date for large accelerated filers. 148 149 One commenter suggested a pilot program of at least six months before the first compliance date, during which time the EDGAR system is able to successfully accept filings, to identify and resolve unanticipated problems as 45 Commission staff plans to make the taxonomy for the structured data available close to the time that the filer agent system is opened for testing. Notice of EDGAR system readiness to accept filing fee-related information in Inline XBRL will be provided in a manner similar to notices of taxonomy updates and EDGAR Filer Manual updates. 150 We believe that offering filers the option to file filing fee-related information using Inline XBRL before the compliance date will enable filers that are ready to transition to Inline XBRL to begin realizing the benefits of doing so sooner. We also believe that this option and the filing agent test system will enable vendors and filing agents 151 used by early adopters to gain valuable expertise that may help facilitate the transition for filers that transition at a later time. While neither the early compliance option nor the filing agent test system is a formal pilot program, they should serve much the same purpose of providing an opportunity to filers, filing agents and the Commission to gain experience with the technical aspects of the new rules. Filers that do not choose to file filing fee-related information using Inline XBRL prior to the applicable compliance date will continue to be required to submit the filing fee-related information in compliance with the then applicable content and location requirements in the same format as they do currently. 152 We acknowledge a commenter’s recommendation that we issue guidance for filers and vendors to address all possible scenarios to avoid having filers handle them in different ways. 153 early adopters make submissions. See letter from XBRL US WG. Another commenter stated that the vendors it surveyed suggested a pilot program of three to 12 months. See letter from XBRL US. See EDGAR News & Announcements at https://www.sec.gov/filergroup/announcements (retrieved Sept. 25, 2021). 150 151 Some of the vendors surveyed may also be what we refer to as filing agents. See letter from XBRL US. 152 As further discussed in Section II.A.6.c, compliance with the amended filing fee-related information content and location requirements will be required before compliance with the structuring requirements. See letter from XBRL US. The commenter asked, in particular, that we clarify how EDGAR will handle submissions in which some information is structured in Inline XBRL and other information is not. EDGAR will continue to be able to process submissions with multiple permitted formats. We note in this regard that filing feerelated information currently is not permitted to be submitted in XBRL (whether or not the tags appear separate from the HTML information as in traditional XBRL or the tags are embedded in the HTML as in Inline XBRL). We also note that under the final amendments filers will not be permitted to submit filing fee-related information in 153 46 We believe the amendments, as adopted, provide sufficient details to enable filers to provide the information in a consistent format. We plan, however, to monitor implementation and may issue guidance or take other action as needed. Currently, most types of EDGAR filings, including all of those subject to the filing fee-related information structuring requirements, are formed outside of Commission filer websites. Some EDGAR filings, however, such as ownership reports on Forms 3, 154 4, 155 and 5 156 and notices of exempt offerings of securities on Form D 157 may be filed using a Commission filer website within which the filer can construct and submit these forms. The Commission will provide filers the option to construct structured filing fee-related information within EDGAR using a filing fee ta [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Asec%3A907059aa63842804. Public record. Not legal advice.