Rulemaking for the EDGAR System
Federal RegisterDec 12, 1996
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SUMMARY: The Securities and Exchange Commission (``Commission'') today
is proposing minor and technical amendments to its rules governing the
submission of filings and other documents through the Electronic Data
Gathering, Analysis, and Retrieval (``EDGAR'') system. These rule
proposals follow, and in some cases reflect, the recent completion of
the process whereby domestic issuers and third parties filing with
respect to those issuers have become subject to mandated electronic
filing.
DATES: Comments should be received on or before January 13, 1997.
ADDRESSES: Comments should be submitted in triplicate to Jonathan G.
Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street,
NW., Washington, DC 20549. Comments also may be submitted
electronically at the following E-mail address: [email protected].
All comment letters should refer to File No. S7-28-96; this file number
should be included in the subject line if E-mail is used. Comment
letters will be available for inspection and copying in the
Commission's Public Reference Room, 450 Fifth Street, NW., Washington,
DC 20549. Electronically submitted comment letters will be posted on
the Commission's Internet Web Site (http://www.sec.gov).
FOR FURTHER INFORMATION CONTACT: James R. Budge, Division of
Corporation Finance at (202) 942-2950, or Ruth Armfield Sanders,
Division of Investment Management at (202) 942-0633, Securities and
Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549.
SUPPLEMENTARY INFORMATION: The Commission today is proposing for public
comment amendments to the following rules relating to electronic filing
on the EDGAR system: Rule 200.30-1,1 Rule 200.30-5,2 Item
601(c) of Regulation S-B and Regulation S-K,3 Rule 405 of
Regulation C,4 Rules 10,5 11,6 13,7 101,8
102,9 201,10 202,11 303,12 304,13 307 14
and 311 15 of Regulation S-T,16 Forms S-2,17 S-3,18
S-8,19 F-2 20 and F-3 21 under the Securities Act of
1933 (``Securities Act''),22 Rule 0-1,23 Rule 12b-25,24
Rule 13d-2,25 Rule 13e-4,26 Schedule 14A,27 Rule 14e-
1,28 and Form 12b-25 29 under the Securities Exchange Act of
1934 (``Exchange Act''),30 and Rule 0-2 31 under the Trust
Indenture Act of 1939.32 The proposals also would add new Rules
14, 100 and 601 to Regulation S-T, create a new Form DF, and eliminate
the EDGAR transition rules found in Rules 901, 902 and 903 of
Regulation S-T.33
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\1\ 17 CFR 200.30-1.
\2\ 17 CFR 200.30-5.
\3\ 17 CFR 228.601(c) and 229.601(c), respectively.
\4\ 17 CFR 230.405.
\5\ 17 CFR 232.10.
\6\ 17 CFR 232.11.
\7\ 17 CFR 232.13.
\8\ 17 CFR 232.101.
\9\ 17 CFR 232.102.
\10\ 17 CFR 232.201.
\11\ 17 CFR 232.202.
\12\ 17 CFR 232.303.
\13\ 17 CFR 232.304.
\14\ 17 CFR 232.307.
\15\ 17 CFR 232.311.
\16\ 17 CFR Part 232.
\17\ 17 CFR 239.12.
\18\ 17 CFR 239.13.
\19\ 17 CFR 239.16b.
\20\ 17 CFR 239.32.
\21\ 17 CFR 239.33.
\22\ 15 U.S.C. 77a et seq.
\23\ 17 CFR 240.0-1.
\24\ 17 CFR 240.12b-25.
\25\ 17 CFR 240.13d-2.
\26\ 17 CFR 240.13e-4.
\27\ 17 CFR 240.14a-101.
\28\ 17 CFR 240.14e-1.
\29\ 17 CFR 249.322.
\30\ 15 U.S.C. 78a et seq.
\31\ 17 CFR 260.0-2.
\32\ 15 U.S.C. 77aaa, et. seq.
\33\ 17 CFR 232.901, 232.902 and 232.903, respectively.
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I. Background
Beginning April 26, 1993, the Commission has required many of the
documents filed with it pursuant to the federal securities laws to be
submitted electronically via the EDGAR system.34 Domestic
registrants were scheduled to become subject to mandated electronic
filing in a series of discrete phase-in groups. Following the
completion of a congressionally-mandated test period, which included
electronic filing by several phase-in groups, the Commission certified
that the system satisfied all statutory requirements and announced a
schedule for the completion of the transition to mandated electronic
filing for all domestic registrants and persons filing with respect to
those registrants.35 On May 6, 1996, the last group of domestic
registrants became subject to mandated electronic filing requirements.
The Commission has determined to review its rules governing electronic
filing and update them, as needed, both to recognize the completion of
the transition from a paper to an electronic filing system, and to
reflect the experience gained with electronic filing over the last
several years.
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\34\ The rules initiating mandated electronic filing were
adopted as interim rules in: Release No. 33-6977 (February 23, 1993)
(58 FR 14628) (containing a general description of the EDGAR system,
Regulation S-T (the electronic filing regulation), and the rules
applicable to filings processed by the Division of Corporation
Finance); Release No. IC-19284 (February 23, 1993) (58 FR 14848)
(relating to rules specific to investment companies and
institutional investment managers); and Release No. 35-25746
(February 23, 1993) (58 FR 14999) (relating to rules specific to
public utility holding companies).
\35\ Release No. 33-7122 (December 19, 1994) (59 FR 67752).
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II. Proposed Rule Changes
The Commission is proposing for public comment a number of minor
and technical changes to its rules governing electronic filing on the
EDGAR system. These proposals are explained in detail below. Comment is
solicited with respect to each proposal. Commenters should address
whether the proposed changes are necessary and whether there are any
alternatives to the proposed approaches that would better address the
issues raised.
A. Elimination of EDGAR Transition Rules
Rules 901, 902 and 903 of Regulation S-T were adopted primarily to
govern the phase-in of registrants and provide guidance in situations
where one party to a transaction was a phased-in electronic filer and
another party was a paper filer. With the end of the phase-in period,
however, these transition rules are no longer needed, since all
domestic registrants and persons filing with respect to them are now
required to file electronically.36 The Commission therefore
proposes to eliminate these rules, retaining in other rules in
Regulation S-T the provisions outlining who is subject to mandated
electronic filing, as well as the paper copy submission
requirements.37
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\36\ For transactions involving a foreign private issuer and a
domestic registrant, see the discussion below relating to foreign
private issuers.
\37\ See proposed Rule 100 of Regulation S-T and the proposed
changes to Rule 101 of Regulation S-T. The definition of
``electronic filer'' in Rule 11 of Regulation S-T, Rule 405 of
Regulation C, Exchange Act Rule 0-1, and Trust Indenture Act Rule 0-
1 would be updated to reflect these changes.
The note currently found in Rule 901 of Regulation S-T that
explains that domestic electronic filers cannot electronically file
beneficial ownership reports with respect to foreign private issuers
would be retained in revised Rule 101 of Regulation S-T. The
provisions delegating authority to the Division of Corporation
Finance and the Division of Investment Management to change phase-in
dates are also being eliminated.
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[[Page 65441]]
B. New Rule 601 of Regulation S-T Governing Foreign Private Issuers
Foreign private issuers and foreign governments are not subject to
mandated electronic filing requirements, unless they are acting in
concert with, or as a third party filer with respect to, a domestic
registrant. Foreign private issuers' electronic filing responsibilities
currently are outlined in Rule 901, which, as stated above, has been
proposed to be eliminated. Thus, a new rule is being proposed that will
outline the electronic filing obligations of foreign private issuers
and foreign governments.38 The rule would indicate that these
entities generally are not required to file electronically, unless they
are filing jointly with a domestic registrant or acting as a third
party filer with respect to such a registrant.
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\38\ Proposed Rule 601 of Regulation S-T.
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The new rule also would provide that these entities may choose to
file electronically in most situations where electronic filing is not
required. Some types of documents filed by foreign private issuers
currently are not supported by the EDGAR system, including filings made
in connection with the multi-jurisdictional disclosure system. The
staff has undertaken a review of documents not yet available for
electronic filing with the intention of recommending enhancement of
form processing capabilities where appropriate. Should EDGAR be
programmed to accept all types of filings made by foreign private
issuers? Are some more important than others for inclusion in the
database?
Notwithstanding the requirement to file electronically when filing
in connection with a domestic registrant, the proposed rule would
codify a staff interpretation that where a foreign private issuer
engages in an exchange offer, merger or other business combination
transaction with a domestic registrant and the foreign private issuer
files a registration statement under the Securities Act with respect to
the transaction, the registration statement and other documents
relating to the transaction may be filed in paper, provided that the
domestic registrant will not be a reporting entity at the conclusion of
the transaction. Comment is solicited specifically with respect to this
codification. Should these types of transactions be required to be
filed in electronic format? Are there other transactions involving
foreign private issuers that should qualify for this treatment, such as
tender offers made by such issuers with respect to a domestic
electronic registrant?
C. Rule 10 of Regulation S-T
Current Rule 10(b) of Regulation S-T 39 includes a note that
strongly urges persons about to become subject to mandated electronic
filing to submit a Form ID to obtain EDGAR access and security codes
between three and six months prior to their first required electronic
filing. This instruction is proposed to be amended to emphasize that
issuers making initial public offerings, as well as third parties with
newly-arising filing obligations, should submit a Form ID early to be
ready to make their initial filing in electronic format.
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\39\ 17 CFR 232.10(b).
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D. Rule 11 of Regulation S-T
Rule 11(m) of Regulation S-T 40 provides a definition of
``official filing'' for purposes of the electronic filing regulation.
That definition states that an ``official filing'' is the microfiche
copy, prepared in compliance with the Commission's administrative
regulations and other requirements, of filings made with the
Commission, regardless of filing medium. The Commission recently has
changed its practice of making microfiche copies of electronic filings,
and therefore it is desirable to change the definition to reflect
current practices. For purposes of Regulation S-T, it is proposed that
the term ``official filing'' mean any filing that has been received and
accepted by the Commission, regardless of filing medium.
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\40\ 17 CFR 232.11(m).
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E. Rule 13 of Regulation S-T
In 1994, the Commission adopted an amendment to Rule 13 41 to
address concerns raised about the ability of paper filers to comply
with filing requirements by mailing for filing on a Saturday, Sunday or
holiday, while electronic filers were constrained to file on days when
the Commission was open for business.42 The rule states that
``[w]here the Commission's rules, schedules and forms provide that a
document may be 'mailed for filing with the Commission' at the same
time it is published, furnished, sent or given to security holders or
others, an electronic filer may file the document with the Commission
electronically before or on the date the document is published,
furnished, sent or given, or if such publication or distribution does
not occur on a business day of the Commission, as soon as practicable
on the next business day.''
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\41\ The amendment added paragraph (d) to Rule 13. Rule 13 is
proposed to be reorganized, with paragraph (d) being redesignated,
as revised, as paragraph (a)(4).
\42\ Release No. 33-7122.
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The staff has interpreted this language to allow issuers and others
to electronically file with the Commission proxy materials promptly on
the next business day following distribution to security holders where
it is impracticable to file electronically such materials on the same
business day of the Commission (between the hours of 8 a.m. and 5:30
p.m.) on which the distribution first occurs.43 While this
provision would provide relief to filers in all time zones, it is of
particular value to proxy contest participants (and/or their counsel)
based on the West Coast because it allows them to file proxy materials
promptly on the next business day where material is prepared too late
in the afternoon to effect an electronic transmission before the 5:30
p.m. Eastern time deadline on the day the materials are first
distributed to security holders. The Commission proposes to amend Rule
13 to codify this interpretation. Is there any reason why this
interpretation should not be codified? What interests, if any, would be
adversely affected by this change?
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\43\ See Henry Lesser (November 28, 1995).
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F. Proposed New Rule 14 of Regulation S-T--Notification of Delayed
Filing
While electronic filing has in many ways given filers more control
over the timing of their filings, the EDGAR rules recognize that
circumstances beyond a filer's control sometimes will prevent the
timely electronic filing of a document. The temporary hardship
exemption set out in Rule 201 and the filing date adjustment provisions
of Rule 13 were designed to aid filers experiencing such electronic
filing difficulties. The filing date adjustment mechanism has been more
widely used.
In order to reduce the burden on the staff and filers associated
with filing date adjustments, the Commission is proposing to add a new
provision whereby filers may preserve the timeliness of certain filings
without staff intervention.44 Proposed new Rule 14 of Regulation
S-T would provide that where an electronic filer in good faith attempts
to file in a timely manner a report or schedule pursuant to sections
13(a), 13(d), 13(g), 15(d) or 16(a) of the
[[Page 65442]]
Exchange Act,45 but is unable to do so because of unanticipated
technical difficulties beyond the filer's control,46 the report or
schedule would be deemed timely filed if two conditions were met.
First, the report or schedule would be required to be filed
electronically no later than two business days following the applicable
due date, and second, a new Form DF (for Delayed Filing) would be
required to be filed electronically no later than the date the report
or schedule is filed.47 The new procedure would operate similarly
to Rule and Form 12b-25,48 which provide for the delayed filing of
Exchange Act reports for reasons not related to technical
difficulties.49 Use of Form DF would not effect a filing date
adjustment; rather, as with Form 12b-25, a filing made pursuant to this
procedure would be deemed timely even though not filed until after its
due date.50
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\44\ This was a recommendation in the report of the Task Force
on Disclosure Simplification, issued March 5, 1996.
\45\ 15 U.S.C. 78m(a), 78m(d), 78m(g), 78o(d) and 78p(a),
respectively. This new procedure would be available only to filers
whose documents are subject to review by the Division of Corporation
Finance.
\46\ In order to qualify for this proposed procedure, the filing
difficulties experienced by the filer must be technical in nature,
unanticipated and beyond the filer's control. Consequently, this
standard would not be satisfied where a document is late because a
filing agent made an error as to when a document should be filed or
because a filer failed to build into its planning schedule
sufficient time to convert a document to an electronic format. If
adopted, the staff would monitor the use of this procedure, and if
abused, its availability could be restricted or discontinued.
\47\ It is anticipated that most registrants would file the Form
DF at the same time they filed the underlying report electronically.
However, a filer could file the Form DF earlier to notify the public
that its report shortly would be filed in electronic format, serving
a function similar to Form 12b-25 (17 CFR 249.322).
\48\ Rule 12b-25 is found at 17 CFR 240.12b-25.
\49\ Form 12b-25 would continue not to be available for use
where the reason for the delay related to the preparation and
transmission of an electronic filing. Pertinent provisions of Rule
12b-25 (17 CFR 240.12b-25) and Form 12b-25 would be amended to
reflect the addition of this new procedure.
The proposal also would include a provision similar to that
found in Rule 12b-25 indicating that registrants would not be
eligible to use any registration statement form under the Securities
Act, the use of which is predicated on timely filed reports, until
the report and Form DF were filed electronically in compliance with
Rule 14 of Regulation S-T.
\50\ It is anticipated that if this procedure is adopted, filing
date adjustments will be granted more sparingly.
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Proposed new Form DF would be a one page document that identifies
the filer, the filer's Central Index Key (``CIK'') number, the document
that could not be timely filed, and the Commission file number for the
filing, if one is available. It also would include a short statement
setting out the nature of the difficulty 51 and a certification to
the effect that notwithstanding good faith efforts, the filer was
prevented from making a timely filing because of technical difficulties
beyond its control. Form DF would be required to be filed
electronically and made public in order to provide information to users
as to the nature of the delay.
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\51\ This requirement would be similar to those found in Form TH
and Form 12b-25 and would provide the staff the means to monitor the
use of the proposed procedure.
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This procedure could be used only in connection with Exchange Act
periodic and annual reports, Schedules 13D 52 and 13G,53 and
Section 16 reports submitted voluntarily on the EDGAR system. While
filing date adjustments would continue to be available on a case-by-
case basis, they would be much less frequently granted with respect to
these documents under the proposed scheme. The procedure would not be
available for Securities Act filings and other transactional filings,
such as tender offer documents; 54 the temporary and continuing
hardship exemptions would still be available for such filings where the
enumerated standards are satisfied.
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\52\ 17 CFR 240.13d-101.
\53\ 17 CFR 240.13d-102.
\54\ It generally is staff policy not to grant filing date
adjustments for Securities Act registration statements or other
transactional filings because shareholder rights may be affected.
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For the proposals to work as contemplated, filers would need to be
vigilant as to the status of their filings. The Commission reiterates
that it is the filer's responsibility to determine whether its filings
have been appropriately prepared, transmitted and accepted by the
Commission.55 Under the proposals, a filer would have two business
days to act to preserve the timeliness of its filings. If it appears in
advance that two business days would be insufficient to complete the
electronic filing process, the filer should consider obtaining relief
pursuant to a temporary or continuing hardship exemption rather than
using the proposed procedure. If a filer began to rely on this
procedure but could not meet the two business day deadline because of
continuing electronic difficulties, it might wish to consult the staff
with regard to the possibility of a continuing hardship exemption to
afford it more time, under Rule 202(d) of Regulation S-T.56
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\55\ See Release No. 33-7122, Section III.
\56\ If a filer submitted a report in paper under cover of Form
TH later than one business day following its due date, the
timeliness of the document would not be preserved.
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Comment is specifically solicited as to whether this procedure
would be workable for filers and provide an appropriate measure of
relief without impairing the information needs of the investing public.
Should the procedure be limited to the types of filings enumerated
above, or should it be broadened to cover other types of documents,
such as a prospectus filed pursuant to Rule 424 57 or Form 144
58 under the Securities Act? Is the two business day time period
the one that should be used, or should it be longer (three or four
business days) or shorter (one business day or the due date)? Should
the time that the Form DF should be filed be fixed as proposed, or
should a different timetable be established, such as requiring the form
to be filed no later than the business day following the underlying
document's due date or requiring it to be filed no earlier than the
associated report's due date and no later than the date the report is
filed. Does the proposed approach to allow filing of Form DF until, but
no later than, the time the related report is filed provide adequate
flexibility? Should filers be able to file Form DF after the related
filing is made, so long as it is filed no later than one or two
business days following the related filing's due date?
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\57\ 17 CFR 230.424.
\58\ 17 CFR 239.144.
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G. Rule 101 of Regulation S-T
1. Exemption for Form 10-K as First Electronic Filing
During the phase-in period, issuers were given an automatic
exemption from electronic filing for their first required filing after
becoming electronic filers if that document was a Form 10-K 59 or
10-KSB.60 Now that all domestic issuers have become subject to the
electronic filing requirements, this provision no longer is needed,
since reporting entities will already have had the advantage of the
one-time exemption and any new issuer's first filing will not be an
annual report on either of these forms. Consequently, the Commission
proposes to eliminate this provision. Comment is solicited as to
whether there is any continued need for this exemption.
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\59\ 17 CFR 249.310.
\60\ 17 CFR 249.310b. This exemption is found in Rule
101(a)(1)(iii) of Regulation S-T (17 CFR 232.101(a)(1)(iii)).
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2. Proxy Materials and Annual Reports to Security Holders Furnished by
Registrants Subject to Reporting Obligations Under Section 15(d) of the
Exchange Act
Form 10-K and Form 10-KSB both require issuers reporting under
section
[[Page 65443]]
15(d) of the Exchange Act to furnish to the Commission for its
information any annual report to security holders covering the
registrant's last fiscal year and every proxy statement, form of proxy
or other proxy soliciting material sent to more than ten of the
registrant's security holders with respect to any annual or other
meeting of security holders. This information is not deemed filed
unless it is being incorporated by reference into the Exchange Act
report itself.
These submission requirements were intended to be covered under
Rule 101 of Regulation S-T, but they are not specifically addressed in
that rule. As is true for proxy materials submitted by companies
registered under section 12, the proxy soliciting materials submitted
pursuant to these provisions should be submitted electronically. This
should be done by submitting them using the same EDGAR form type as
used for other definitive proxy statements, DEF 14A, or DEFA14A for
definitive additional materials, as outlined in the EDGAR Filer Manual.
No fee will be charged for these proxy filings. Consistent with the
requirements to furnish annual reports to security holders under the
proxy rules, registrants have the option to submit their annual report
to security holders pursuant to these provisions either in paper or in
electronic format.61 If electronic submission is chosen, the
document should be sent using the ARS form type. The Commission
proposes to amend Rule 101(a) and 101(b) to clarify the electronic
treatment of these documents. Commenters should address whether this
information should be treated in the same manner as comparable
materials submitted by section 12 reporting companies, as proposed, or
whether they should be treated differently, such as allowing the proxy
materials to be furnished in paper? Commenters should provide reasons
for any special treatment that might be afforded these documents.
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\61\ Investment companies currently are required to file
electronically with the Commission copies of their annual, semi-
annual and other periodic reports to security holders. See Rule
101(a)(iv) of Regulation S-T (17 CFR 232.101(a)(iv)) and Investment
Company Act Rule 30b2-1 (17 CFR 270.30b2-1).
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3. Schedules 13D and 13G
Current rules require that the first electronic amendment to a
paper-filed Schedule 13D or Schedule 13G restate the entire text of the
schedule.62 The purpose of this requirement is to ensure that a
complete and current copy of these schedules is placed on the
electronic database so that financial observers do not need to refer to
paper filings for a complete version of the filings. However, it has
been the staff's position that if the first electronic amendment is to
report a reduction in beneficial ownership that relieves the filer from
further reporting obligations, the amendment needs not include a
restatement of the entire text of the schedule, but only the amended
portions. The Commission proposes to codify this position. A
restatement requirement in connection with this type of amendment is
burdensome to filers and provides little benefit to those who follow
beneficial ownership transactions because the filer's reporting
obligation terminates upon filing the amendment. Comment is sought as
to whether restatement in these cases is necessary and whether the
requirement to restate should be retained.
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\62\ Rule 101(a)(2)(ii) of Regulation S-T (17 CFR
232.101(a)(2)(ii)) and Rule 13d-2(c) (17 CFR 240.13d-2(c)).
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4. Certain Material Filed Pursuant to Exchange Act Rule 16b-3(b)(2)(ii)
Rule 16b-3(b)(2)(ii) 63 has required an issuer to furnish in
writing to the holders of record of the securities entitled to vote for
an employee benefit plan, and file with the Commission, substantially
the same information concerning the plan that would be required by the
rules and regulations in effect under Section 14(a) of the Exchange Act
64 at the time, where votes or consents were not solicited in a
manner substantially in compliance with the Commission's proxy rules.
These filings have been required to be made in paper pursuant to Rule
101(c) of Regulation S-T. Since this filing requirement recently has
been eliminated by the Commission, effective August 15, 1996,65
the corresponding Regulation S-T provision is proposed to be eliminated
as well.66
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\63\ 17 CFR 240.16b-3(b)(2)(ii).
\64\ 15 U.S.C. 78n(a).
\65\ See Release No. 34-37260 (May 31, 1996) (61 FR 30376).
\66\ Technical amendments to citations in paragraphs (a)(1)(ii)
and (c)(6) of Rule 101 also are being proposed.
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5. Filings Made in Connection With Securities Act Exemptions
The Commission recently eliminated Regulations B and F,67
which provided for exemptions under the Securities Act. Consequently,
references in Rule 101(c) of Regulation S-T to filings made pursuant to
those regulations are proposed to be removed.
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\67\ Regulation B and Regulation F were eliminated in Release
No. 33-7300 (May 31, 1996).
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6. Certain Material Filed Pursuant to Investment Company Act Sections
23(c), 24(e) and 24(f)
The Regulation S-T list of mandated electronic submissions does not
expressly include documents filed with the Commission pursuant to
sections 23(c), 24(e), and 24(f) of the Investment Company Act,
although these submission requirements were intended to be covered
under Rule 101 of Regulation S-T. The Commission proposes to clarify
that, pursuant to Regulation S-T, submissions under Sections 23(c),
24(e) and 24(f) 68 of the Act must be made electronically.69
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\68\ While Form 24F-2 (17 CFR 274.24) is among the filings which
must be submitted electronically, filers should be aware that there
is no need to replicate electronically items such as boxes and
vertical lines appearing in the paper version of this form.
\69\ See proposed change to Rule 101(a)(1)(iv) of Regulation S-T
(17 CFR 232.101(a)(1)(iv)).
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H. Hardship Exemptions
1. Confirming Copy Legends
Rule 202 of Regulation S-T provides for exemptions from electronic
filing, pursuant to delegated authority, for documents, portions of
documents, or groups of documents where the electronic filer would
incur undue burden and expense to convert the material to an electronic
format. Paragraph (d) of that rule allows the staff to grant such
exemptions for a limited period of time premised on an undertaking to
submit an electronic version of the material at the end of the stated
period. However, unlike Rule 201 (for temporary hardship exemptions),
Rule 202(d) does not include a requirement that the electronic version
be identified as a confirming electronic copy of what was filed in
paper pursuant to the exemption by including a legend to that effect on
the first page of the document. The Commission proposes to add such a
requirement to be consistent with other similar provisions and to alert
users of the information to the fact that the information previously
had been filed in paper.
2. Sanctions
The Commission also is proposing to modify the language found in
Rule 202(d) of Regulation S-T and in the instructions to Forms S-2, S-
3, S-8, F-2 and F-3 70 to reflect the fact that failure to submit
a confirming electronic copy pursuant to a Rule 202(d) hardship
exemption renders the registrant ineligible to use the form. Rule 303
of Regulation S-T also would be revised
[[Page 65444]]
by broadening its language to provide that documents filed in paper
under Rule 202(d) could not be incorporated by reference if a required
confirming electronic copy is not submitted with respect to that
document. Similarly, the tender offer rules would be amended to
indicate that tender offer periods would be tolled so long as all
required confirming electronic copies have not been submitted to the
Commission.71 These changes are consistent with the treatment
associated with temporary hardship exemption requirements and codify
current staff interpretation.
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\70\ 17 CFR 239.12, 239.13, 239.16b, 239.32 and 239.33,
respectively.
\71\ See proposed changes to Rule 13e-4 and Rule 14e-1.
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3. Exhibits
a. Exhibit Index. Rule 102 of Regulation S-T and Item 601 of
Regulations S-K and S-B currently require filers to indicate in a
filing's exhibit index whether a confirming electronic copy of a paper-
filed exhibit has been submitted by placing the letters ``CE'' next to
the item in the index. The language in the rules is limited to
confirming electronic copies submitted pursuant to a temporary hardship
exemption, but should encompass any document originally filed in paper
pursuant to any type of hardship exemption for which a required
confirming electronic copy has been submitted. The Commission proposes
to amend these rules accordingly.
b. Technical Procedures. The electronic filing rules contemplate
under certain circumstances paper filing of exhibits in connection with
an otherwise electronic filing. Filers may do this pursuant to either a
temporary hardship exemption or a continuing hardship exemption,
depending on the type of hardship involved. In every case involving a
temporary hardship exemption, the filer is required within six business
days following the paper filing to submit a confirming electronic copy
of the material filed in paper. 72 Persons making filings in paper
pursuant to a continuing hardship exemption may be required to file a
confirming electronic copy of the paper-filed material after a
designated period of time.73 Confirming electronic copies
generally correspond to entire filings that were made in paper pursuant
to a hardship exemption and are submitted complete, identified to the
electronic system as only a copy of a previously-filed paper document.
Where the subject of the hardship exemption is an exhibit only, the
standard protocol cannot be followed because exhibits cannot be filed
standing alone--they must be a part of a filing.
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\72\ Rule 201(b) of Regulation S-T [17 CFR 232.201(b)].
\73\ Rule 202(d) of Regulation S-T.
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Persons who have an obligation to submit electronic confirming
copies of an exhibit filed in paper pursuant to a hardship exemption
must submit the exhibit electronically by filing an amendment to the
document to which the exhibit relates. The CONFIRMING-COPY tag should
not be used in the submission header. A statement should be included in
the amendment explaining that the amendment is solely to submit an
electronic copy of an exhibit previously filed in paper pursuant to a
hardship exemption. It is proposed that this be codified in the rules
by adding an instruction to Rule 201 and Rule 202 of Regulation S-T.
I. Proxy Statement Performance Graph
Electronic filers subject to the requirement to furnish a stock
performance comparison graph in their proxy statements pursuant to Item
402(l) of Regulation S-K 74 are required to satisfy that
obligation in their electronic filings in the same manner as applicable
to other types of omitted charts or graphs, that is, by describing the
graph in tabular form.75 Filers also are required to
supplementally furnish a copy of the graph to the staff. In order to
reduce the burden on proxy filers, the Commission is proposing to
eliminate the requirement that the graph be supplementally sent to the
staff. Of course, registrants would continue to be required to produce
a copy of the graph, as sent to security holders, upon staff request,
pursuant to Rule 304(c).76
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\74\ 17 CFR 229.402(l).
\75\ Rule 304(d) of Regulation S-T [17 CFR 232.304(d)].
\76\ 17 CFR 232.304(c). Paragraph (b)(2) also is proposed to be
amended to conform its language with the changes made to Rule 304 in
Release 33-7289 (May 9, 1996) [61 FR 24652], relating to use of
electronic media for delivery purposes.
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The staff of the Division of Investment Management has encouraged
investment company filers to follow the provisions of Rule 304(d) in
their preparation of the line graph required by Item 5A of Form N-
1A.77 Therefore, the Commission also is proposing to revise Rule
304(d) so that it expressly applies to these investment company
registrants.
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\77\ 17 CFR 274.11A.
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J. Annual Report Provisions Inapplicable to Investment Companies
Currently, Rule 303(b) of Regulation S-T 78 does not expressly
state whether its requirements concerning incorporation by reference to
reports to security holders apply to investment companies. The
Commission proposes to revise the rule to make it clear that the rule
does not apply to investment company filers, codifying staff
interpretation.
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\78\ 17 CFR 232.303(b).
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Also, the Commission is proposing a clarifying amendment to
Schedule 14A. The Schedule would be revised to make it clear that
investment companies need not submit electronically annual or quarterly
reports to security holders, or any portion thereof, incorporated by
reference into a proxy statement, if the report was filed
electronically.79 This revision also would codify staff
interpretation.
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\79\ See proposed amendment to Note D.4 to Schedule 14A.
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K. Computational Materials To Be Filed Under Cover of Form SE
Certain issuers of asset-backed securities file large amounts of
computational materials with a Form 8-K, pursuant to two no-action
letters. 80 These materials often are voluminous and difficult to
convert to an acceptable electronic format. Typically, filers of such
materials have been granted hardship exemptions from filing them
electronically. In order to reduce compliance costs both to the issuers
and the staff, the Commission proposes to amend Rule 311 of Regulation
S-T to add this type of supporting documentation to the list of items
that may be filed in paper under cover of Form SE without the need for
staff action. The Form 8-K itself, as well as any required term sheets,
should be filed electronically. The Commission solicits comment as to
whether it would be useful to the public to have computational
materials on the EDGAR database and whether there is any feasible
method available or under development for converting this information
into an acceptable EDGAR format.
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\80\ Distribution of Certain Written Materials Relating to
Asset-Backed Securities, (February 17, 1995) and Mortgage and Asset-
Back Securities--Furnishing Information to Customers, (May 20,
1994).
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L. Financial Data Schedules
The Commission is proposing to codify the principles outlined in
two staff interpretive positions relating to Financial Data Schedules.
First, a note would be added stating that issuers of asset-backed
securities (as defined in Form S-3, except that the securities need not
be investment grade) that are not required to file financial statements
with the Commission in their Securities Act registration statements or
their reports filed pursuant to sections 13(a)
[[Page 65445]]
or 15(d) of the Exchange Act are not required to submit a Financial
Data Schedule in connection with those filings.81 This is
consistent with the existing requirement that Financial Data Schedules
be submitted only when updated financial statements are filed. Comment
is solicited as to whether this note should be expanded to cover
issuers of asset-backed securities that do not satisfy the definition
of asset-backed securities for technical reasons. A second note would
be added to the effect that a registrant is not required to restate
prior Financial Data Schedules for a recapitalization that is in the
form of a stock split or reverse stock split, provided that the
tag in the Financial Data Schedule for the period in which the stock
split occurs includes a footnote that indicates that a stock split has
occurred and its effective date, and that prior Financial Data
Schedules have not been restated for the recapitalization.82
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\81\ See Ford Motor Credit Company (April 14, 1995).
\82\ See AFLAC/AFLAC Incorporated (April 10, 1996).
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In addition, the rules governing the submission of Financial Data
Schedules provide that where a filer submits a document in paper
pursuant to a temporary hardship exemption, and the document would have
been accompanied by a Financial Data Schedule if filed in electronic
format, the filer must submit the Financial Data Schedule with the
confirming electronic copy of the filing. Since documents may be filed
in paper pursuant to a continuing hardship exemption on the condition
that the issuer file an electronic version within a stated time
period,83 the Commission is proposing to amend its rules to
reflect its position that registrants must submit a Financial Data
Schedule with the required confirming electronic copy of a document
filed in paper pursuant to any hardship exemption where the underlying
document would have included the schedule had it been filed originally
in electronic format.
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\83\ Rule 202(d) of Regulation S-T.
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M. Red Ink Requirements
The Commission recently eliminated its requirements to print
designated information in red ink.84 Consequently, it is proposed
that Rule 307 of Regulation S-T be revised to reflect this change.
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\84\ Release No. 33-7300.
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III. Other Electronic Submission, Processing and Retrieval Issues
A. Expansion of Current System
While most documents required to be submitted to the Commission now
must be sent electronically, certain filings and other types of
communications still are required to be provided in paper format. Now
that the EDGAR system has been fully implemented, as initially
conceived, the Commission also seeks comment as to whether it may be
appropriate to expand the system to require, or permit, electronic
filing of any of the other documents currently excluded from the system
pursuant to Rule 101(c) of Regulation S-T. Three examples of such
submissions are requests for confidential treatment, no-action and
interpretive requests, and filings made in connection with exempt
offerings.
1. Confidential Treatment Requests
Requests for confidential treatment were not initially considered
for electronic submission because of their special processing
requirements, as well as a desire to minimize the risk that
confidential information might be inadvertently disseminated publicly
as a result of filer error. A specially secured internal database would
be required to ensure that the submissions were not made available to
the public. Comment is solicited as to whether filers would find it
advantageous to be able to submit confidential treatment material in
electronic format.
2. Internet Access to No-Action and Interpretive Letters
Questions have been raised about whether there are better ways to
afford the public electronic access to no-action and interpretive
letters. Correspondence with the staff relating to no-action and
interpretive requests generally is not made public until final
disposition. Upon disposition, however, these documents are made public
and can be found electronically through commercial services, but they
are not available on EDGAR or the Commission's Internet Web Site.
Comment is requested about whether it would be useful to filers and to
the public to make no-action and interpretive letters available on
EDGAR or the Commission's Internet Web Site. This, of course, would
require the submission of correspondence to the staff in some
electronic format, either through the EDGAR system or in a word
processing or ASCII format on diskette, depending on the medium chosen.
Confidentiality concerns similar to those discussed in connection with
confidential treatment requests would need to be addressed for
correspondence received by the Commission prior to final disposition.
What benefits would accrue to persons submitting no-action and
interpretive requests if an electronic medium for submission were
developed? If an electronic method for processing no-action and
interpretive requests were created, should it be voluntary or
mandatory?
3. Exempt offerings
Filings made pursuant to exempt offerings, such as offering
statements 85 filed under Regulation A,86 have not been
required to be filed electronically, in part because many of the
filings were sent to the Commission's regional offices, which do not
receive filings via the EDGAR system, and in part to relieve small
issuers of the compliance costs associated with electronic filings.
Comment is sought, from the perspective of filers and users of the
information, about whether Regulation A documents should be required,
or permitted, to be filed electronically.
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\85\ Form 1-A [17 CFR 239.90].
\86\ 17 CFR 230.251-230.263.
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Comment is solicited as to whether other documents currently
excluded from electronic filing, such as shareholder proposal
correspondence, applications for relief from periodic reporting
requirements under Exchange Act section 12(h) or promotional and sales
material, should be permitted or mandated to be submitted
electronically. In addition, are there any documents currently allowed
to be filed electronically on a voluntary basis that should be made
mandated electronic filings, such as the annual report to security
holders or Forms 3, 4 and 5? While no action mandating electronic
filing of the documents outlined in Rule 101(c) is being proposed at
this time, the Commission will take any comments into consideration as
it plans future enhancements to the EDGAR system. Systems allowing
voluntary submission of certain documents may be developed if supported
by commenters. Of course, the Commission will not mandate electronic
filing of any these documents without first issuing specific proposals
to that effect.
B. Identification of Information in Submission Headers
The Commission recently has issued a release proposing amendments
to its rules and Form S-3 87 and F-3 88 that would include
non-voting as well as
[[Page 65446]]
voting common equity in the computation of the required $75 million
aggregate market value of common equity held by non-affiliates of the
registrant.89 During the course of that rulemaking process, it
became apparent that it would be desirable to identify the ``public
float'' of Exchange Act reporting companies electronically so that the
staff and the public could readily search such companies by that
criterion. The Commission solicits comment on whether the EDGAR system
should be modified to include a tag in the submission header
used in connection with Exchange Act annual reports filed by domestic
issuers.90 Are there any other items of information whose
identification in submission headers would benefit the public? This
change would be effected in connection with a future upgrade of the
EDGAR system and the adoption of a revised EDGAR Filer Manual.
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\87\ 17 CFR 239.13.
\88\ 17 CFR 239.33.
\89\ Release No. 33-7326 (August 30, 1996) (61 FR 47706).
\90\ The public float currently is required to be disclosed in
the body of the annual report itself. If this programming change
were effected, a registrant only would be required to restate that
figure in the submission header of the filing.
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IV. General Request for Comment
Comment is solicited with respect to each of the foregoing
proposals from the perspective both of filers and of public users of
information filed with the Commission. Interested persons should submit
comment letters in triplicate to Jonathan G. Katz, Secretary, U.S.
Securities and Exchange Commission, 450 Fifth Street, NW., Washington,
DC., 20549. Comments also may be submitted electronically at the
following E-mail address: [email protected]. All comment letters
should refer to File Number S7-28-96. This file number should be
included on the subject line if E-mail is used. Comment is requested
with respect to any competitive burdens that might result from the
adoption of any of the rule proposals. All comments will be considered
by the Commission in complying with its responsibility under section
23(a) of the Exchange Act.91 Comments received will be available
for inspection and copying in the Commission's public reference room,
450 Fifth Street, NW., Washington, DC. 20549. Electronically submitted
comment letters will be posted on the Commission's Internet web site
(http://www.sec.gov).
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\91\ 15 U.S.C. 78w(a).
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V. Cost-Benefit Analysis
Commenters are requested to address the costs and benefits of the
rule proposals, and to provide any available support for such views, in
order to aid the Commission in its own evaluation of their costs and
benefits. It is anticipated that the proposed rule changes will not
impose significant costs on filers, since the proposals generally are
codifications and/or clarifications of current filing practices. The
benefit of the proposals would be to clarify existing rules and make
the filing community at large more aware of current practices and
interpretations.
VI. Summary of Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Chairman of the Commission has certified that the
amendments proposed herein would not, if adopted, have a significant
economic impact on a substantial number of small entities. This
certification, including a statement of the factual basis therefor, is
attached to this release as Appendix A.
VII. Paperwork Reduction Act
The staff has consulted with the Office of Management and Budget
(``OMB'') and has submitted the proposals for review in accordance with
the Paperwork Reduction Act of 1995 (``the Act'')(44 U.S.C. 3501 et
seq.). It is anticipated that the proposals would add 100 burden hours
annually, attributable to the information collection requirements of
proposed Form DF.92 These burden hours would be derived from 500
respondents per year dedicating two-tenths of an hour to prepare each
response on the form.
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\92\ The information collection will be entitled ``Form DF.''
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The Commission solicits comment: Concerning whether the proposed
information collection on Form DF is necessary; on the accuracy of the
Commission's estimates of the burden of proposed Form DF; on the
quality, utility and clarity of the information to be collected; on how
the burden of collection of information on those who are to respond,
including through the use of automated collection techniques or other
forms of information technology, may be minimized.
Persons desiring to submit comments on the collection of
information requirements should direct them to the Office of Management
and Budget, Attention: Desk Officer for the Securities and Exchange
Commission, Office of Information and Regulatory Affairs, Washington,
DC 20503, and should also send a copy of their comments to Jonathan G.
Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street,
N.W., Washington, DC 20549, with reference to File No. S7-6-96. the
Office of Management and Budget is required to make a decision
concerning the collection of information between 30 and 60 days after
publication, so a comment to OMB is best assured of having its full
effect if OMB receives it within 30 days of publication.
VIII. Statutory Basis
The rule amendments outlined above are proposed pursuant to
sections 6, 7, 8, 10 and 19(a) of the Securities Act, Sections 3, 12,
13, 14, 15(d), 23(a) and 35(A) of the Exchange Act, sections 3, 5, 6,
7, 10, 12, 13, 14, 17 and 20 of the Public Utility Holding Company Act
of 1935,93 Section 319 of the Trust Indenture Act of 1939,94
and Sections 8, 30, 31 and 38 of the Investment Company Act of
1940.95
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\93\ 15 U.S.C. 79a et seq.
\94\ 15 U.S.C. 77aaa et seq.
\95\ 15 U.S.C. 80a-1 et seq.
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List of Subjects in 17 CFR Parts 200, 228, 229, 230, 232, 239, 240,
and 249
Registration requirements, Reporting and recordkeeping
requirements, Securities.
Text of the Proposals
In accordance with the foregoing, Title 17, Chapter II of the Code
of Federal Regulations is proposed to be amended as follows:
PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND
REQUESTS
1. The authority citation for Part 200 continues to read as
follows:
Authority: 15 U.S.C. 77s, 78d-1, 78d-2, 78w, 78ll(d), 79t,
77sss, 80a-37, 80b-11, unless otherwise noted.
* * * * *
Sec. 200.30-1 [Amended]
2. By amending Sec. 200.30-1 by removing paragraph (m).
Sec. 200.30-5 [Amended]
3. By amending Sec. 200.30-5 by removing paragraph (j) and by
redesignating paragraphs (k) and (l) as paragraphs (j) and (k).
PART 228--INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS ISSUERS
4. The authority citation for Part 228 continues to read as
follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s,
77aa(25), 77aa(26) 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 77sss,
78l, 78m, 78n, 78o, 78w, 78ll, 80a-8, 80a-29, 80a-30, 80a-37, 80b-
11, unless otherwise noted.
[[Page 65447]]
5. By amending Sec. 228.601 by revising the second sentence of
instruction 3 to paragraph (a), by designating the note to paragraph
(c)(1)(ii) as ``Note 1 to paragraph (c)(1)(ii)'', by adding Note 2 to
paragraph (c)(1)(ii), by revising paragraph (c)(1)(v), and by adding a
note to paragraph (c)(2)(iii) to read as follows:
Sec. 228.601 (Item 601) Exhibits.
(a) * * *
Instructions to Item 601(a)
* * * * *
(3) * * * Whenever an electronic confirming copy of an exhibit
is filed pursuant to a hardship exemption (Sec. 232.201 or
Sec. 232.202(d) of this chapter), the exhibit index should specify
where the confirming electronic copy can be located; in addition,
the designation ``CE'' (confirming electronic) should be placed next
to the listed exhibit in the exhibit index.
(c) Financial Data Schedule (1) General. * * *
(ii) * * *
Note 2 to paragraph (c)(1)(ii): Issuers of asset-backed
securities (as that term is defined in the general instructions to
Form S-3 (Sec. 239.13 of this chapter), except that they need not be
investment grade) that are not required to file financial statements
with the Commission in their Securities Act registration statements
or their reports filed pursuant to sections 13(a) or 15(d) of the
Exchange Act are not required to submit a Financial Data Schedule in
connection with those filings.
* * * * *
(v) A Financial Data Schedule shall be submitted only in electronic
format. Where a registrant submits a filing, otherwise required to
include a Financial Data Schedule, in paper pursuant to a hardship
exemption under Rule 201 or Rule 202(d) of Regulation S-T (Sec. 232.201
or Sec. 232.202(d) of this chapter, respectively), the Financial Data
Schedule shall not be included with the paper filing, but shall be
included with the required confirming electronic copy.
* * * * *
(2) Format and presentation of Financial Data Schedule. * * *
(iii) * * *
Note to paragraph (c)(2)(iii): A registrant is not required to
restate prior Financial Data Schedules for a recapitalization that
is in the form of a stock split or reverse stock split, provided
that the tag for the period in which the stock split occurs
includes a footnote indicating that a stock split has occurred and
its effective date, and that prior Financial Data Schedules have not
been restated for the recapitalization.
* * * * *
PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER THE
SECURITIES ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY
POLICY AND CONSERVATION ACT OF 1975--REGULATION S-K
6. The authority citation for part 229 continues to read in part as
follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s,
77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn,
77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79e, 79n,
79t, 80a-8, 80a-29, 80a-30, 80a-37, 80b-11, unless otherwise noted.
* * * * *
7. By amending Sec. 229.601 by revising the second sentence of
instruction 4 of ``Instructions to Item 601'', by designating the note
to paragraph (c)(1)(ii) as ``Note 1 to paragraph (c)(1)(ii)'', by
adding Note 2 to paragraph (c)(1)(ii), by revising paragraph (c)(1)(v),
and by adding a note to paragraph (c)(2)(iii) to read as follows:
Sec. 229.601 (Item 601) Exhibits.
(a) * * *
Instructions to Item 601
* * * * *
(4) * * * Whenever an electronic confirming copy of an exhibit
is filed pursuant to a hardship exemption (Sec. 232.201 or
Sec. 232.202(d) of this chapter), the exhibit index should specify
where the confirming electronic copy can be located; in addition,
the designation ``CE'' (confirming electronic) should be placed next
to the listed exhibit in the exhibit index.
* * * * *
(c) Financial Data Schedule (1) General. * * *
(ii) * * *
Note 2 to paragraph (c)(1)(ii): Issuers of asset-backed
securities (as that term is defined in the general instructions to
Form S-3 (Sec. 239.13 of this chapter), except that they need not be
investment grade) that are not required to file financial statements
with the Commission in their Securities Act registration statements
or their reports filed pursuant to sections 13(a) or 15(d) of the
Exchange Act are not required to submit a Financial Data Schedule in
connection with those filings.
* * * * *
(v) A Financial Data Schedule shall be submitted only in electronic
format. Where a registrant submits a filing, otherwise required to
include a Financial Data Schedule, in paper pursuant to a hardship
exemption under Rule 201 or Rule 202(d) of Regulation S-T (Sec. 232.201
or Sec. 232.202(d) of this chapter, respectively), the Financial Data
Schedule shall not be included with the paper filing, but shall be
included with the required confirming electronic copy.
* * * * *
(2) Format and presentation of financial data schedule. * * *
(iii) * * *
Note to paragraph (c)(2)(iii): A registrant is not required to
restate prior Financial Data Schedules for a recapitalization that
is in the form of a stock split or reverse stock split, provided
that the tag for the period in which the stock split occurs
includes a footnote indicating that a stock split has occurred and
its effective date, and that prior Financial Data Schedules have not
been restated for the recapitalization.
* * * * *
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
8. The authority citation for part 230 continues to read in part as
follows:
Authority: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, 77s, 77sss, 78c,
78d, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-29, 80a-30,
and 80a-37, unless otherwise noted.
* * * * *
9. By amending Sec. 230.405 by revising the definition of
``electronic filer'' to read as follows:
Sec. 230.405 Definitions of terms.
* * * * *
Electronic filer. The term electronic filer means a person or an
entity that submits filings electronically pursuant to Rules 100 and
101 of Regulation S-T (Secs. 232.100 and 232.101 of this chapter,
respectively).
* * * * *
PART 232--REGULATION S-T--GENERAL RULES AND REGULATIONS FOR
ELECTRONIC FILINGS
10. The authority citation for Part 232 continues to read as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a),
78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 79t(a), 80a-8, 80a-
29, 80a-30 and 80a-37.
11. By amending Sec. 232.10 by revising the note following
paragraph (b) to read as follows:
Sec. 232.10 Application of Part 232.
* * * * *
Note: The Commission strongly urges any person or entity about
to become subject to the disclosure and filing requirements of the
federal securities laws to submit a Form ID well in advance of the
first required filing, including a registration statement relating
to an initial public offering, in order to facilitate electronic
filing on a timely basis.
12. By amending Sec. 232.11 by revising paragraphs (e) and (m) to
read as follows:
[[Page 65448]]
Sec. 232.11 Definition of terms used in part 232.
* * * * *
(e) Electronic filer. The term electronic filer means a person or
an entity that submits filings electronically pursuant to Rules 100 and
101 of Regulation S-T (Secs. 232.100 and 232.101, respectively).
* * * * *
(m) Official filing. The term official filing means any filing that
is received and accepted by the Commission, regardless of filing
medium.
* * * * *
13. By amending Sec. 232.13 by revising the introductory text of
paragraph (a)(1), by adding paragraph (a)(4) before the Note, by
redesignating correct paragraphs (b) and (c) as paragraphs (c) and (b),
and by removing paragraph (d) to read as follows:
Sec. 232.13 Date of filing; adjustment of filing date.
(a) General. (1) Unless otherwise provided in this section or in
Rule 14 of Regulation S-T (Sec. 232.14 of this chapter), the business
day on which a filing is received by the Commission shall be the date
of filing thereof, if:
* * * * *
(4) Where the Commission's rules, schedules and forms provide that
a document may be ``mailed for filing with the Commission'' at the same
time it is published, furnished, sent or given to security holders or
others, an electronic filer shall file the document with the Commission
before or on the date the document is first published, furnished, sent
or given to security holders and others; provided, however, that if it
is impracticable to file such materials electronically between the
hours of 8 a.m. and 5:30 p.m. Eastern time on a business day of the
Commission, the electronic filer may file as soon as reasonably
practicable, but no later than 5:30 p.m. Eastern time, on the next
business day. Any associated time periods shall be calculated on the
basis of the publication or distribution date (as applicable) and not
on the basis of the date of filing.
* * * * *
14. By adding Sec. 232.14 to read as follows:
Sec. 232.14 Notification of delayed filing.
(a) Notification of delayed filing. Where an electronic filer in
good faith attempts to file in a timely manner a report or schedule
pursuant to sections 13(a), 13(d), 13(g), 15(d) or 16(a) of the
Exchange Act (15 U.S.C. 78m(a), 78m(d), 78m(g), 78o(d) or 78p(a)), but
is unable to do so because of unanticipated technical difficulties
beyond the filer's control, the report or schedule shall be deemed
timely filed if:
(1) It is filed electronically no later than two business days
following the applicable due date; and
(2) A Form DF (Sec. 249.448 of this chapter) is filed
electronically no later than the date the report or schedule is filed.
(b) Form DF shall be filed only in electronic format and may not be
filed in paper pursuant to a hardship exemption under Sec. 232.201 or
Sec. 232.202.
(c) A registrant will not be eligible to use any registration
statement form under the Securities Act the use of which is predicated
on timely filed reports until the subject report and Form DF are
electronically filed pursuant to paragraph (a) of this section.
15. By adding Sec. 232.100, following the undesignated heading
``Electronic Filing Requirements'' to read as follows:
Sec. 232.100 Persons and entities subject to mandated electronic
filing.
The following persons or entities shall be subject to the
electronic filing requirements of this Part 232:
(a) Registrants whose filings are subject to review by the Division
of Corporation Finance, except for foreign private issuers and foreign
governments;
(b) Registrants whose filings are subject to review by the Division
of Investment Management; and
(c) Any party (including natural persons, foreign private issuers
and foreign governments) that files a document jointly with, or as a
third party filer with respect to, a registrant that is subject to
mandated electronic filing requirements.
16. By amending Sec. 232.101 by revising paragraphs (a)(1)(ii),
(a)(1)(iii), (a)(1)(iv), (a)(2)(ii), (b)(1), (c)(6) and (c)(8), by
removing paragraph (c)(20), and by adding paragraph (d) to read as
follows:
Sec. 232.101 Mandated electronic submissions and exceptions.
(a) Mandated electronic submissions. (1) * * *
(ii) Statements and applications filed with the Commission pursuant
to the Trust Indenture Act (15 U.S.C. 77aaa, et seq.), other than
applications for exemptive relief filed pursuant to section 304 (15
U.S.C. 77ddd) and Section 310 (15 U.S.C. 77jjj) of that Act;
(iii) Statements, reports and schedules filed with the Commission
pursuant to Sections 13, 14, or 15(d) of the Exchange Act (15 U.S.C.
78m, 78n and 78o(d)), except Form 13F (Sec. 249.325 of this chapter),
and proxy materials required to be furnished for the information of the
Commission in connection with annual reports on Form 10-K (Sec. 249.310
of this chapter) or Form 10-KSB (Sec. 249.310b of this chapter) filed
pursuant to section 15(d) of the Exchange Act.
Note to paragraph (a)(1)(iii). Domestic electronic filers are
restricted from filing Schedules 13D and 13G with respect to foreign
private issuers because EDGAR requires an IRS tax identification
number to be inserted for the subject company as a prerequisite to
acceptance of the filing. Such filings should be made in paper
pending future system enhancements.
(iv) Documents filed with the Commission pursuant to sections 8,
17, 20, 23(c), 24(e), 24(f), and 30 of the Investment Company Act (15
U.S.C. 80a-8, 80a-17, 80a-20, 80a-23(c), 80a-24(e), 80a-24(f) and 80a-
29); provided, however, that submissions under section 6(c), 8(f) or
17(g) of that Act (15 U.S.C. 80a-6(c), 80a-8(f) or 80a-17(g), or
documents related to applications for exemptive relief under any
section of that Act, shall not be made in electronic format; and
* * * * *
(2) * * *
(ii) The first electronic amendment to a paper format Schedule 13D
(Sec. 240.13d-101 of this chapter) or Schedule 13G (Sec. 240.13d-102 of
this chapter), shall restate the entire text of the Schedule 13D or
13G, but previously filed paper exhibits to such Schedules are not
required to be restated electronically. See Rule 102 (Sec. 232.102)
regarding amendments to exhibits previously filed in paper format.
Notwithstanding the foregoing, if the sole purpose of filing the first
electronic Schedule 13D or 13G amendment is to report a change in
beneficial ownership that would terminate the filer's obligation to
report, the amendment need not include a restatement of the entire text
of the Schedule being amended.
* * * * *
(b) * * *
(1) Annual reports to security holders furnished for the
information of the Commission pursuant to Rule 14a-3(c) (Sec. 240.14a-
3(c) of this chapter) or Rule 14c-3(b) (Sec. 240.14c-3(b) of this
chapter), or pursuant to the requirements of Form 10-K or Form 10-KSB
filed by registrants pursuant to section 15(d) of the Exchange Act.
* * * * *
(c) * * *
(6) Applications for exemptive relief filed pursuant to Sections
304 and 310 of the Trust Indenture Act.
* * * * *
[[Page 65449]]
(8) Filings relating to offerings exempt from registration under
the Securities Act, including filings made pursuant to Regulation A
(Secs. 230.251-230.263 of this chapter), Regulation D (Secs. 230.501-
230.506 of this chapter) and Regulation E (Secs. 230.601-230.610a of
this chapter), as well as filings on Form 144 (Sec. 239.144 of this
chapter) where the issuer of the securities is not subject to the
reporting requirements of section 13 or 15(d) of the Exchange Act (15
U.S.C. 78m or 78o(d), respectively).
* * * * *
(d) Paper Copies of Electronic Filings. Electronic filers,
including third party filers, shall submit to the Commission a paper
copy of their first electronic filing, as follows:
(1) The paper copy shall be either a document that meets the
requirements of the applicable Commission rules and regulations for
paper filings or a paper printout of the electronic filing. If the copy
being submitted is the paper printout of the electronic filing, the
header information specified in the EDGAR Filer Manual shall be omitted
or blanked out to ensure that confidential information contained in the
header remains non-public.
(2) The paper copy shall be sent to the following address: OFIS
Filer Support, SEC Operations Center, 6432 General Green Way,
Alexandria, VA 22312-2413. The paper copy shall be received by the
Commission no later than six business days after the electronic filing.
The following legend shall be typed, printed or stamped in capital
letters at the top of the cover page of the paper copy:
THIS PAPER DOCUMENT IS BEING SUBMITTED PURSUANT TO RULE 101(d) OF
REGULATION S-T.
(3) Signatures are not required for paper format documents
submitted pursuant to paragraph (d) of this section.
17. By amending Sec. 232.102 by revising the last sentence of
paragraph (d) to read as follows:
Sec. 232.102 Exhibits.
* * * * *
(d) * * * Whenever an electronic confirming copy of an exhibit is
filed pursuant to a hardship exemption (Sec. 232.201 or
Sec. 232.202(d)), the exhibit index should specify where the confirming
electronic copy can be located; in addition, the designation ``CE''
(confirming electronic) should be placed next to the listed exhibit in
the exhibit index.
* * * * *
18. By amending Sec. 232.201 by designating the note following
paragraph (b) as Note 1 and by adding Note 2 to read as follows:
Sec. 232.201 Temporary hardship exemption.
* * * * *
(b) * * *
Note 2. If the exemption relates to an exhibit only, the
requirement to submit a confirming electronic copy shall be
satisfied by refiling the exhibit in electronic format in an
amendment to the filing to which it relates. The amendment should
note that the purpose of the amendment is to add an electronic copy
of an exhibit previously filed in paper pursuant to a temporary
hardship exemption.
19. By amending Sec. 232.202 by revising paragraph (d) before the
note, designating the note as Note 1 and adding Note 2 and Note 3 to
read as follows:
Sec. 232.202 Continuing hardship exemption.
* * * * *
(d) If a continuing hardship exemption is granted for a limited
time period, the grant may be conditioned upon the filing of the
document or group of documents that is the subject of the exemption in
electronic format upon the expiration of the period for which the
exemption is granted. The electronic format version shall contain the
following statement in capital letters at the top of the first page of
the document:
THIS DOCUMENT IS A COPY OF THE (SPECIFY DOCUMENT) FILED ON (DATE)
PURSUANT TO A RULE 202(d) CONTINUING HARDSHIP EXEMPTION
* * * * *
Note 2. If the exemption relates to an exhibit only and a
confirming electronic copy of the exhibit is required to be
submitted, the exhibit should be refiled in electronic format in an
amendment to the filing to which it relates. The amendment should
note that the purpose of the amendment is to add an electronic copy
of an exhibit previously filed in paper pursuant to a continuing
hardship exemption.
Note 3. Failure to submit a required confirming electronic copy
of a paper filing made in reliance on a continuing hardship
exemption granted pursuant to paragraph (d) of this section will
result in ineligibility to use Forms S-2, S-3, S-8, F-2 and F-3
(see, Secs. 239.12, 239.13, 239.16b, 239.32 and 239.33,
respectively), restrict incorporation by reference of the document
submitted in paper (see Rule 303 of Regulation S-T (Sec. 232.303),
and toll certain time periods associated with tender offers (see
Rule 13e-4(f)(12) (Sec. 240.13e-4(f)(12)) and Rule 14e-1(e)
(240.14e-1(e))).
20. By amending Sec. 232.303 by revising paragraph (a)(2) and
paragraph (b) to read as follows:
Sec. 232.303 Incorporation by reference.
(a) * * *
(2) Any document filed in paper pursuant to a hardship exemption
for which a required confirming electronic copy has not been submitted.
* * * * *
(b) If any portion of the annual or quarterly report to security
holders is incorporated by reference into any electronic filing, such
portion of the annual or quarterly report to security holders shall be
filed in electronic format as an exhibit to the filing, as required by
Item 601(b)(13) of Regulation S-K and Item 601(b)(13) of Regulation S-
B. This requirement shall not apply to incorporation by reference by an
investment company from an annual or quarterly report to security
holders.
21. By amending Sec. 232.304 by revising paragraph (b)(2) and
paragraph (d), to read as follows:
Sec. 232.304 Graphic, image and audio information.
* * * * *
(b)(1) * * *
(2) Narrative descriptions, tabular representations or transcripts
of graphic, image and audio material included in an electronic filing
or appendix thereto also shall be deemed part of the filing. However,
to the extent such descriptions, representations or transcripts
represent a good faith effort to fairly and accurately describe omitted
graphic, image or audio material, they shall not be subject to the
liability and anti-fraud provisions of the federal securities laws.
* * * * *
(d) The performance graph that is to appear in registrant proxy and
information statements relating to annual meetings of security holders
(or special meetings or written consents in lieu of such meetings) at
which directors will be elected, as required by Item 402(l) of
Regulation S-K (Sec. 229.402(l) of this chapter), and the line graph
that is to appear in registrant annual reports to security holders or
prospectuses, as required by paragraph (b) of Item 5A of Form N-1A
(Sec. 274.11A of this chapter), shall be furnished to the Commission in
connection with an electronic filing by presenting the data in tabular
or chart form within the electronic filing, in compliance with
paragraph (a) of this section and the formatting requirements of the
EDGAR Filer Manual.
22. By revising Sec. 232.307 and its section heading to read as
follows:
Sec. 232.307 Bold face type.
Provisions requiring presentation of information in bold face type
shall be satisfied in an electronic format
[[Page 65450]]
document by presenting such information in capital letters.
23. By amending Sec. 232.311 by adding paragraph (i) to read as
follows:
Sec. 232.311 Documents submitted in paper under cover of Form SE.
* * * * *
(i) Computational materials filed as an exhibit to Form 8-K
(Sec. 249.308) by issuers of an ``asset-backed security,'' as that term
is defined in General Instruction I.B.5 of Form S-3 (Sec. 239.13 of
this chapter).
24. By adding an undesignated heading and Sec. 232.601, to read as
follows:
FOREIGN PRIVATE ISSUERS AND FOREIGN GOVERNMENTS
Sec. 232.601 Foreign private issuers and foreign governments.
(a) Foreign private issuers and foreign governments shall not be
subject to the mandated electronic filing requirements of this part
232, except that a document filed either jointly with, or with respect
to, a registrant that is subject to mandated electronic filing shall be
filed in electronic format. See Rule 100 of Regulation S-T
(Sec. 232.100).
(b) Foreign private issuers and foreign governments may choose to
file electronically any document not required to be so filed to the
extent that an appropriate form type is available, as identified by the
EDGAR Filer Manual.
(c) Notwithstanding any provision of this part 232, if a foreign
private issuer engages in an exchange offer, merger or other business
combination transaction with a domestic registrant and the foreign
private issuer files a Securities Act registration statement with
respect to the transaction, the registration statement and all other
documents relating to the transaction may be filed in paper, provided
that the domestic registrant will not be subject to the reporting
requirements of the Exchange Act at the conclusion of the transaction.
Secs. 232.901, 232.902 and 232.903 and Undesignated heading [Removed
and renewed
25. By removing and reserving Secs. 232.901, 232.902 and 232.903
and the undesignated heading ``Transition to Electronic Filing''.
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
26. The authority citation for part 239 continues to read in part
as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77sss, 78c, 78l,
78m, 78n, 78o(d), 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, 79m,
79n, 79q, 79t, 80a-8, 80a-29, 80a-30 and 80a-37, unless otherwise
noted.
* * * * *
27. By amending Form S-2 (referenced in Sec. 239.12) by revising
general instruction I.H.(1) to read as follows:
Note: The text of Form S-2 does not, and the amendment thereto
will not, appear in the Code of Federal Regulations
FORM S-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
GENERAL INSTRUCTIONS
* * * * *
I. Eligibility Requirements for Use of Form S-2
* * * * *
H. Electronic filings. * * *
(1) all required electronic filings, including confirming
electronic copies of documents submitted in paper pursuant to a
hardship exemption as provided by Rule 201 or Rule 202(d) of
Regulation S-T (Sec. 232.201 or Sec. 232.202(d) of this chapter);
and,
* * * * *
28. By amending Form S-3 (referenced in Sec. 239.13) by revising
general instruction I.A.8.(1) to read as follows:
Note: The text of Form S-3 does not, and the amendment thereto
will not, appear in the Code of Federal Regulations
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GENERAL INSTRUCTIONS
* * * * *
I. Eligibility Requirements for Use of Form S-3
* * * * *
A. Registrant Requirements. * * *
8. Electronic filings. * * *
(1) all required electronic filings, including confirming
electronic copies of documents submitted in paper pursuant to a
hardship exemption as provided by Rule 201 or Rule 202(d) of
Regulation S-T (Sec. 232.201 or Sec. 232.202(d) of this chapter);
and,
* * * * *
29. By amending Form S-8 (referenced in Sec. 239.16b) by revising
general instruction A.3.(1) to read as follows:
Note: The text of Form S-8 does not, and the amendment thereto
will not, appear in the Code of Federal Regulations
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
A. Rule as to Use of Form S-8. * * *
3. Electronic filings. * * *
(1) all required electronic filings, including confirming
electronic copies of documents submitted in paper pursuant to a
hardship exemption as provided by Rule 201 or Rule 202(d) of
Regulation S-T (Sec. 232.201 or Sec. 232.202(d) of this chapter);
and,
30. By amending Form F-2 (referenced in Sec. 239.32) by revising
general instruction I.H to read as follows:
Note: The text of Form F-2 does not, and the amendment thereto
will not, appear in the Code of Federal Regulations
FORM F-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
A. Eligibility Requirements for Use of Form F-2 * * *
H. Electronic filings. In addition to satisfying the foregoing
conditions, a registrant subject to the electronic filing
requirements of Rule 101 of Regulation S-T (Secs. 232.101 of this
chapter) shall have filed with the Commission all required
electronic filings, including confirming electronic copies of
documents submitted in paper pursuant to a hardship exemption as
provided by Rule 201 or Rule 202(d) of Regulation S-T (Sec. 232.201
or Sec. 232.202(d) of this chapter).
* * * * *
31. By amending Form F-3 (referenced in Sec. 239.33) by revising
general instruction I.A.6 to read as follows:
Note: The text of Form F-3 does not, and the amendment thereto
will not, appear in the Code of Federal Regulations
FORM F-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
I. Eligibility Requirements for Use of Form F-3 * * *
A. Registrant requirements * * *
6. Electronic filings. In addition to satisfying the foregoing
conditions, a registrant subject to the electronic filing
requirements of Rule 101 of Regulation S-T (Secs. 232.101 of this
chapter) shall have filed with the Commission all required
electronic filings, including confirming electronic copies of
documents submitted in paper pursuant to a hardship exemption as
provided by Rule 201 or Rule 202(d) of Regulation S-T (Sec. 232.201
or Sec. 232.202(d) of this chapter).
* * * * *
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
32. The authority citation for Part 240 continues to read in part
as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77eee, 77ggg,
77nnn, 77sss, 77ttt, 78c, 78d, 78f, 78i, 78j, 78k, 78k-1, 78l, 78m,
78n, 78o, 78p, 78q, 78s, 78w, 78x, 78ll(d), 79q,
[[Page 65451]]
79t, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4 and 80b-11, unless
otherwise noted.
* * * * *
33. By amending Sec. 240.0-1 by revising paragraph (a)(5) to read
as follows:
Sec. 240.0-1 Definitions.
(a) * * *
(5) The term electronic filer means a person or an entity that
submits filings electronically pursuant to Rules 100 and 101 of
Regulation S-T (Secs. 232.100 and 232.101 of this chapter,
respectively).
* * * * *
34. By amending Sec. 240.12b-25 by revising the section heading and
last sentence of paragraph (g) to read as follows:
Sec. 240.12b-25 Notification of inability to timely file all or any
required portion of a Form 10-K, 10-KSB, 10-Q, 10-QSB, 20-F, 11-K, or
N-SAR.
* * * * *
(g) * * * Filers unable to submit a report in electronic format
within the time period prescribed solely due to difficulties with
electronic filing should comply with Rule 14 (Sec. 232.14 of this
chapter), Rule 201 or Rule 202 of Regulation S-T (Sec. 232.201 and
Sec. 232.202 of this chapter), or apply for an adjustment of filing
date pursuant to Rule 13(c) of Regulation S-T (Sec. 232.13(c) of this
chapter).
35. By amending Sec. 240.13d-2 by revising paragraph (c) to read as
follows:
Sec. 240.13d-2 Filing of amendments to Schedules 13D or 13G.
* * * * *
(c) The first electronic amendment to a paper format Schedule 13D
(Sec. 240.13d-101 of this chapter) or Schedule 13G (Sec. 240.13d-102 of
this chapter) shall restate the entire text of the Schedule 13D or 13G,
but previously filed paper exhibits to such Schedules are not required
to be restated electronically. See Rule 102 of Regulation S-T
(Sec. 232.102 of this chapter) regarding amendments to exhibits
previously filed in paper format. Notwithstanding the foregoing, if the
sole purpose of filing the first electronic Schedule 13D or 13G
amendment is to report a change in beneficial ownership that would
terminate the filer's obligation to report, the amendment need not
include a restatement of the entire text of the Schedule being amended.
36. By amending Sec. 240.13e-4 by revising the last sentence of
paragraph (f)(12) to read as follows:
Sec. 240.13e-4 Tender offers by issuers.
* * * * *
(f) * * *
(12) * * * If such documents were filed in paper pursuant to a
hardship exemption (see Sec. 232.201 and Sec. 232.202 of this chapter),
the minimum offering periods shall be tolled for any period during
which a required confirming electronic copy of such Schedule and tender
offer material is delinquent.
* * * * *
37. By amending Sec. 240.14e-1 by revising the last sentence of
paragraph (e) to read as follows:
Sec. 240.14e-1 Unlawful tender offer practices.
* * * * *
(e) * * * If such documents were filed in paper pursuant to a
hardship exemption (see Sec. 232.201 and Sec. 232.202 of this chapter),
the minimum offering periods shall be tolled for any period during
which a required confirming electronic copy of such Schedule and tender
offer material is delinquent.
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
38. The authority citation for part 249 continues to read in part
as follows:
Authority: 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
39. By amending Form 12b-25 (referenced in Sec. 249.322) by
revising general instruction 5 to read as follows:
Form 12b-25
NOTIFICATION OF LATE FILING
* * * * *
GENERAL INSTRUCTIONS
* * * * *
5. Electronic Filers. This form shall not be used by electronic
filers unable to timely file a report solely due to electronic
difficulties. Filers unable to submit a report in electronic format
within the time period prescribed solely due to difficulties with
electronic filing should comply with Rule 14 (Sec. 232.14 of this
chapter), Rule 201 or Rule 202 of Regulation S-T (Sec. 232.201 and
Sec. 232.202 of this chapter), or apply for an adjustment of filing
date pursuant to Rule 13(c) of Regulation S-T (Sec. 232.13(c) of
this chapter).
40. By adding Sec. 249.448 to Subpart D to read as follows:
Sec. 249.448 Form DF--Notification of delayed filing pursuant to Rule
13(d) of Regulation S-T
This form shall be filed in connection with a delayed electronic
filing, as provided by Rule 13(d) of Regulation S-T (Sec. 232.13(d) of
this chapter), to preserve the timeliness of filing of reports or
schedules filed pursuant to sections 13(a), 13(d), 13(g), 15(d) and
16(a) of the Exchange Act (15 U.S.C. 78m(a), 78m(d), 78m(g), 78o(d) or
78p(a)), which, notwithstanding good faith efforts, are not filed in a
timely manner because of technical difficulties beyond the electronic
filer's control.
41. By adding Form DF (referenced in Sec. 249.448), to read as
follows:
Note: The text of Form DF will not appear in the Code of Federal
Regulations
FORM DF
NOTIFICATION OF DELAYED FILING PURSUANT TO RULE 14 OF REGULATION S-T
----------------------------------------------------------------------
Exact name of registrant as specified in charter
----------------------------------------------------------------------
Registrant CIK Number
----------------------------------------------------------------------
Report or schedule with respect to which this form is being filed
(include period of report)
----------------------------------------------------------------------
SEC File Number, if available
----------------------------------------------------------------------
Name of person filing the document (if other than the registrant)
Reasons for the delay:-------------------------------------------------
----------------------------------------------------------------------
The registrant (or person filing the report or schedule if other
than the registrant) hereby certifies that it made good faith
attempts to electronically file the document identified above in a
timely manner, but that the filing was delayed due to technical
difficulties beyond its control. The registrant undertakes to file
the document electronically no later than two business days
following the applicable due date.
SIGNATURES
Filings made by the registrant:
The registrant has duly caused this form to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of
____________, state of ________, Dated ________, 19______.
----------------------------------------------------------------------
(Registrant)
By:--------------------------------------------------------------------
(Name and title)
Filings made by person other than the registrant:
After reasonable inquiry and to the best of my knowledge and
belief, I certify on ______, 19____, that the information set forth
in this statement is true and complete.
By:--------------------------------------------------------------------
(Name and title)
GENERAL INSTRUCTIONS TO FORM DF
I. Use of Form DF
This form may be filed in connection with a report or schedule
filed pursuant to Section 13(a), 13(d), 13(g), 15(d) or 16(a) of the
Securities Exchange Act of 1934 which, despite good faith efforts,
could not be submitted electronically in a timely manner because of
technical difficulties beyond the control of the filer. Rule 14 of
Regulation S-T (17 CFR
[[Page 65452]]
232.13(d) of this chapter). Form DF shall be filed only in electronic
format. The report or schedule will be deemed timely filed if it is
filed electronically no later than two business days following the
applicable due date and this Form DF is filed electronically no later
than the date the report or schedule is filed. If either of these
conditions are not satisfied, the report or schedule will not be deemed
timely filed.
II. Preparation and filing of Form DF
Form DF should be submitted electronically as a separate filing, as
outlined in the EDGAR Filer Manual, and not as a cover sheet to the
report or schedule.
Potential persons who are to respond to the collection of
information contained in this form are not required to respond unless
the form displays a currently valid OMB control number.
PART 260--GENERAL RULES AND REGULATIONS, TRUST INDENTURE ACT OF
1939
42. The authority citation for Part 260 continues to read as
follows:
Authority: 15 U.S.C. 77eee, 77ggg, 77nnn, 77sss, 78ll(d), 80b-3,
80b-4, and 80b-11.
43. By amending Sec. 260.0-2 by revising paragraph (g) to read as
follows:
Sec. 260.0-2 Definitions of terms used in the rules and regulations.
* * * * *
(g) Electronic filer. The term electronic filer means a person or
an entity that submits filings electronically pursuant to Rules 100 and
101 of Regulation S-T (Secs. 232.100 and 232.101 of this chapter,
respectively).
* * * * *
Dated: December 6, 1996.
By the Commission.
Margaret H. McFarland,
Deputy Secretary.
Appendix A
[Note: This appendix will not appear in the Code of Federal
Regulations
Regulatory Flexibility Act Certification
I, Arthur Levitt, Chairman of the Securities and Exchange
Commission, hereby certify, pursuant to 5 U.S.C. 605(b), that the
proposed amendments to Rule 200.30-1, Rule 200.30-5, Item 601(c) of
Regulation S-B and Regulation S-K, Rule 405 of Regulation C, Rules
10, 11, 13, 101, 102, 201, 202, 303, 304, 307 and 311 of Regulation
S-T, Forms S-2, S-3, S-8, F-2 and F-3 under the Securities Act of
1933 (``Securities Act''), Rule 0-1, Rule 12b-25, Rule 13d-2, Rule
13e-4, Schedule 14A, Rule 14e-1, and Form 12b-25 under the
Securities Exchange Act of 1934 (``Exchange Act''), and Rule 0-2
under the Trust Indenture Act of 1939, the addition of new Rules 14,
100 and 601 to Regulation S-T, and new Form DF, and the elimination
of the electronic filing transition rules found in Rules 901, 902
and 903 of Regulation S-T, as set forth in Securities Act Release
Number 7369, if adopted, would not have a significant economic
impact on a substantial number of small entities.
The proposed rule amendments generally would have no economic
impact on small entities because they would codify existing
interpretations and practices relating to the preparation, filing
and processing of electronic documents via the Commission's
Electronic Data Gathering, Analysis and Retrieval (``EDGAR'')
system. Other changes would effect only technical corrections to
current rules and similarly would not result in an economic impact
on small entities.
One noteworthy proposed change is the addition of Form DF and
related rules that would allow electronic filers to act on their own
to preserve the timeliness of certain Exchange Act reports that are
electronically filed late because of unanticipated technical
difficulties beyond their control. Currently, if electronic
documents are filed late under such circumstances, filers must
petition the staff in writing for a filing date adjustment. This
petition generally takes the form of a letter to the staff
explaining the factual and legal basis in support of the request.
The staff then processes the application and grants or denies the
request pursuant to delegated authority. In the first eight months
of 1996, approximately 24 Exchange Act reporting companies with
assets of $5 million or less applied for and received a filing date
adjustment for a late Exchange Act report. The proposals would
eliminate the need for staff intervention in most similar cases in
the future, resulting in greater certainty of treatment for filers
and time savings for the staff. However, while the burden of
consultation with the staff would be eliminated, a one-page document
would still need to be prepared and filed with the Commission. The
estimated time required to prepare this document is 10 to 15
minutes. In sum, while both filers and the staff would benefit from
the adoption of this procedure, the economic impact of the proposed
procedure would be roughly equivalent to the current practice.
Dated: December 5, 1996.
Arthur Levitt,
Chairman.
[FR Doc. 96-31499 Filed 12-11-96; 8:45 am]
BILLING CODE 8010-01-P
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.