[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17104]
[[Page Unknown]]
[Federal Register: July 15, 1994]
SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 228, 229, 230, 232, 239, 240, 249, 250, 259, 260, 269, 270
and 274
[Release Nos. 33-7074; 34-34332; 35-26081; 39-2321; IC-20390. File No.
S7-20-94]
RIN 3235-AG10
Rulemaking for EDGAR System
AGENCY: Securities and Exchange Commission.
ACTION: Proposed Rules.
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SUMMARY: The Securities and Exchange Commission (``Commission'') is
proposing minor and technical changes to its rules governing electronic
filing on the Electronic Data Gathering, Analysis, and Retrieval
(``EDGAR'') system, and also is providing guidance on avoiding errors
in the EDGAR filing process.
DATES: Comments must be submitted on or before August 15, 1994.
ADDRESSES: Comments should be submitted in triplicate to Jonathan G.
Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street,
NW., Washington, DC 20549. Comment letters should refer to File No. S7-
20-94. All comments received will be available for public inspection
and copying in the Commission's Public Reference Room, 450 Fifth
Street, NW., Washington, DC 20549.
FOR FURTHER INFORMATION CONTACT: For Corporation Finance filings,
Barbara C. Jacobs, James R. Budge or Joseph P. Babits, Office of
Disclosure Policy, Division of Corporation Finance, Mail Stop 3-12, 450
Fifth Street, NW., Washington, DC 20549, at (202) 942-2910. For
Division of Investment Management filings, Anthony A. Vertuno or Ruth
Armfield Sanders, EDGAR IM Project, at (202) 942-0591. For filings
under the Public Utility Holding Company Act of 1935, Richard T.
Miller, Office of Public Utility Regulation, at (202) 942-0545.
SUPPLEMENTARY INFORMATION: The Commission today requests public comment
on a number of minor and technical changes to the rules governing the
submission of documents filed via the EDGAR system. These proposals
reflect the experience of the staff since the rules implementing the
EDGAR system were adopted in February 1993.\1\ The changes, if adopted,
will affect Regulation S-B,\2\ Regulation S-K,\3\ the Rules and
Regulations\4\ under the Securities Act of 1933 (``Securities
Act''),\5\ Regulation S-T, the Forms under the Securities Act,\6\ the
Rules, Regulations and Schedules\7\ under the Securities Exchange Act
of 1934 (``Exchange Act''),\8\ the Forms under the Exchange Act,\9\ the
Rules\10\ and Forms\11\ under the Public Utility Holding Company Act of
1935 (``Public Utility Act''),\12\ the Rules\13\ under the Trust
Indenture Act of 1939 (``Trust Indenture Act'')\14\, and the Rules\14\,
and the Rules\15\ under the Investment Company Act of 1940
(``Investment Company Act'').\16\ Guidance also is provided in Part III
of this Release to assist in preventing errors when making EDGAR
filings.
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\1\The EDGAR rules were adopted in four releases: 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) (17 CFR part 232), 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); Release No. 35-25746 (February 23, 1993) (58 FR 14999)
(relating to rules specific to public utility holding companies);
and Release No. 33-6980 (February 23, 1993) (58 FR 15009)
(instructions for filing fees).
\2\17 CFR part 228.
\3\17 CFR part 229.
\4\17 CFR part 230.
\5\15 U.S.C. 77a et seq.
\6\17 CFR part 239.
\7\17 CFR part 240.
\8\15 U.S.C. 78a et seq.
\9\17 CFR part 249.
\10\17 CFR part 250.
\11\17 CFR part 259.
\12\15 U.S.C. 79a et seq.
\13\17 CFR part 260.
\14\15 U.S.C. 77aaa et seq.
\15\17 CFR part 270.
\16\15 U.S.C. 80a-1 et seq.
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I. Background and Proposed Amendments
In February 1993, the Commission adopted Regulation S-T, governing
mandated electronic filing, and a number of amendments to its rules,
schedules and forms, to begin implementation of the EDGAR system,
whereby most registrants whose filings are processed by the Division of
Corporation Finance and the Division of Investment Management will make
their submissions electronically. Phase-in to mandated electronic
filing began on April 26, 1993, the date on which the interim rules
became effective.\17\ On December 6, 1993, the last group of
approximately 3,400 filers chosen to participate in a Congressionally-
mandated significant test group was phased in, commencing a six-month
hiatus from further phase-in. As of June 17, 1994, over 59,000 live
filings and 48,000 test filings had been submitted on the EDGAR system.
Both system development and staff training on EDGAR are continuing.
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\17\The Financial Data Schedule provisions will be implemented
on September 1, 1994. See Release No. 33-7072 (July 8, 1994).
Financial Data Schedules are exhibits that contain financial
information extracted or derived from financial data within a filing
that is marked to allow electronic manipulation of such information.
For a complete discussion of Financial Data Schedules, see Release
No. 33-7072, Section IV.D of Release No. 33-6977, Section IV.D of
Release No. IC-19284, and Section IV of Release No. 35-25746.
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The electronic filing system currently is being evaluated to
determine whether the Commission should, as planned, make the interim
rules final and applicable to all registrants, including those in the
significant test group, and proceed with the phase-in process. This
determination is anticipated to be announced by the Commission later
this summer.
The staff has gained substantial experience with the EDGAR system
and its implementing regulations since the first mandated filings were
made in April 1993 and has determined that certain refinements to the
rules would be desirable. Most of the proposals are minor amendments
that would affect substantive filing requirements (several of which
represent codifications of rule interpretations), or that would clarify
language in the current requirements in an effort to enhance filers'
understanding of their electronic filing obligations. Others consist of
matters involving Commission procedures and practices as well as
technical corrections to the rules adopted previously. The specific
proposals are set forth below.
Several of the following proposals would change in minor ways the
manner in which an electronic filer complies with its filing
obligations with the Commission. Others would codify interpretations of
current EDGAR rules and otherwise clarify existing filing
requirements.\18\ Comment is solicited on the need for each proposed
change and whether there are any alternatives to each proposal.
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\18\A number of proposals involving incorrect cross-references,
typographical errors and other technical changes are not discussed
individually here but are set forth in the text of the proposed
rules, below.
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A. Changes to Regulation S-T
Regulation S-T, which controls the preparation and submission of
electronic filings to the Commission, would be amended as described
below.
Rule 12(b) of Regulation S-T. Regulation S-T would be
amended to codify that electronic filers are permitted to submit
filings on diskette and magnetic tape to the Commission's Operations
Center in Alexandria, Virginia. Filers who file on diskette and
magnetic tape may prefer to send them directly to the Operations Center
to expedite acceptance processing of their submissions, since diskettes
and tapes sent to the Commission's headquarters must be forwarded to
the Operations Center for processing.
Proposed Rule 13(d) of Regulation S-T. Exchange Act Rule
14a-6(b) provides that definitive proxy statements may be ``filed with,
or mailed for filing to, the Commission not later than the date such
material is first sent or given to any security holder.''\19\ Similar
provisions are found in other Commission rules.\20\ Although electronic
filers could mail diskettes or magnetic tapes, those choosing to file
by direct transmission do not have this option. Instead, they must file
before or on the date the paper counterpart is mailed to investors;
such filing date must be a business day of the Commission. Paper filers
(or those using diskettes or magnetic tape) have more flexibility,
because not only can they satisfy their filing obligations by putting
copies in the mail to the Commission at the time of distribution (thus
allowing the actual filing to occur after the distribution), they also
can satisfy their filing obligation by mailing on Saturday or Sunday,
an option not available to direct transmission filers. To place
electronic filers on the same footing with paper filers with respect to
these filing requirements, a new provision would be added to Regulation
S-T allowing electronic filers to file their definitive proxy materials
(or other documents, as applicable) before or on the date the paper
distribution is made, or if the distribution does not occur on a
business day of the Commission, as soon as practicable on the next
business day.
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\19\17 CFR 240.14a-6(b).
\20\See, 17 CFR 240.14a-6(c) (relating to personal soliciting
materials); 17 CFR 240.14a-11(c) (relating to information delivered
to investors prior to sending a required proxy statement in an
election contest); 17 CFR 240.14a-12(b) (relating to delivery of
soliciting materials prior to sending a required proxy statement in
circumstances other than election contests); 17 CFR 240.14c-5(b)
(relating to definitive information statements); and 17 CFR 240.16b-
3(b)(2)(ii) (relating to employee benefit plan information to be
furnished to investors prior to a vote on changes to the plan).
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Rule 101(a)(1)(i) of Regulation S-T. The Regulation S-T
list of mandated electronic submissions would be revised to
specifically include prospectuses filed under the Securities Act.\21\
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\21\This would make it clear that prospectus filings pursuant to
Securities Act Rules 424 (17 CFR 230.424) and 497 (17 CFR 230.497)
are to be filed electronically. For investment company filings, Rule
101(a)(1)(i) would include statements of additional information and,
where required to be filed with the Commission, prospectuses
submitted under Securities Act Rule 482 (17 CFR 230.482). See
proposed amendments to paragraphs (a) and (e) of Rule 902 of
Regulation S-T, which would codify a limited exception to the
electronic filing requirements for Securities Act Rule 497 filings.
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Rule 101(a)(1)(iii) of Regulation S-T. The Regulation S-T
list of mandated electronic submissions would be revised to
specifically exclude Form 13F\22\ from the list of mandated electronic
filings, consistent with other rule provisions and codifying current
staff interpretations.\23\
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\22\17 CFR 249.325.
\23\See Rule 903(a)(3) of Regulation S-T (17 CFR 232.903(a)(3)).
See also Section V. of Release No. IC-19284.
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Proposed Rule 101(b)(3) of Regulation S-T. Employee
benefit plans would be permitted to file their entire annual report on
Form 11-K 24 in paper or in electronic format.\25\ Currently,
Regulation S-T requires Forms 11-K to be filed electronically,\26\ but
registrants may choose to file any financial statements and schedules
prepared in accordance with the financial reporting requirements of the
Employee Retirement Income Security Act of 1974 (``ERISA'')\27\ in
paper under cover of Form SE. \28\ While this proposal would allow all
Forms 11-K to be filed in paper, comment is requested as to whether
this option should be available only to plans including ERISA financial
statements and schedules. If commenters believe that Form 11-K should
remain a required electronic filing, comment is solicited on whether
the rules and forms should be amended to specify that only ERISA
financial documents prepared on pre-printed forms filed with the
Department of Labor or the Internal Revenue Service should be allowed
to be filed under cover of Form SE. This would more clearly reflect the
Commission's original intention in adopting the Form SE procedure
applicable to these reports, which was to provide filers a way to avoid
undue burden and expense in converting documents filed with other
government agencies into a format compatible with EDGAR. If registrants
prepare financial statements and schedules in a format readily
convertible to a format acceptable to EDGAR, arguably such financial
information should be included in electronic format, even if prepared
in accordance with the financial reporting requirements of ERISA.
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\24\17 CFR 249.311.
\25\Of course, the same would be true for employee benefit plan
annual reports filed as amendments to Forms 10-K (17 CFR 249.310) or
10-KSB (17 CFR 249.310b), as permitted by Exchange Act Rule 15d-21
(17 CFR 240.15d-21).
\26\Rule 101(a)(1)(iii) of Regulation S-T (17 CFR
232.101(a)(1)(iii)).
\27\Pub. L. No 93-406 (codified at 29 U.S.C. 1001 et seq.).
\28\17 CFR 232.311(c) and General Instruction E of Form 11-K.
Form SE is found at 17 CFR 239.64, 249.444, 259.603, 269.8, and
274.403.
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Proposed Rules 101(b) (4) and (5) of Regulation S-T. The
following filings would be explicitly included among those allowed to
be submitted in electronic format, consistent with other rule
provisions and codifying current staff interpretations: Reports on Form
13F, filed with the Commission by institutional investment managers as
required by section 13(f)(1)\29\ of, and Rule 13f-1\30\ under, the
Exchange Act, on magnetic tape in the format described in Form 13F-
E;\31\ and
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\29\15 U.S.C. 78m(f)(1).
\30\17 CFR 240.13f-1.
\31\17 CFR 249.326. See Rule 903(a)(3) of Regulation S-T (17 CFR
232.903(a)(3)).
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Exhibits to Form N-SAR,\32\ except that the Financial Data Schedule
required under Rule 483 under the Securities Act\33\ must be filed in
electronic format.\34\
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\32\17 CFR 274.101.
\33\17 CFR 230.483.
\34\See Rule 903(a)(1) of Regulation S-T (17 CFR 232.903(a)(1)).
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Rule 101(c) of Regulation S-T. The following filings would
be required to be filed in paper rather than electronically, codifying
current staff interpretations:
Form F-6, for registration under the Securities Act of depositary
shares represented by American Depositary Receipts.\35\ Comment is
solicited as to whether Form F-6 should be an optional electronic
filing rather than one required to be filed in paper;
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\35\17 CFR 239.36. Proposed Rule 101(c)(18) of Regulation S-T.
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Annual reports filed with the Commission by indenture trustees
pursuant to the Trust Indenture Act;36
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\3\6See section 313(d) of the Trust Indenture Act (15 U.S.C.
77mmm(d)). Proposed Rule 101(c)(19) of Regulation S-T. Section 313
of the Trust Indenture Act requires indenture trustees to mail to
all registered holders of indenture securities at stated intervals
no less than 12 months a brief report with respect to any of several
enumerated events set forth in the statute. Indenture trustees are
required to file a copy of such reports with each stock exchange
upon which the indenture securities are listed, and also with the
Commission, at the time the report is mailed to security holders.
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Applications for an exemption from Exchange Act reporting
obligations filed pursuant to Section 12(h) of the Exchange Act;37
and,
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\3\715 U.S.C. 78l(h). Proposed Rule 101(c)(20) of Regulation S-
T.
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Information relating to employee benefit plan transactions required
to be filed pursuant to Rule 16b-3(b)(2)(ii)38 under section 16 of
the Exchange PAct.39
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\3\817 CFR 240.16b-3(b)(2)(ii).
\3\915 U.S.C. 78p. Proposed Rule 101(c)(21) of Regulation S-T.
Rule 16b-3(2)(b)(ii) requires 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
(15 U.S.C. 78n(a)) at the time, where consents are not solicited in
a manner that is substantially in compliance with the Commission's
proxy rules.
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Rule 101(c)(2) of Regulation S-T. The rules governing the
submission of supplemental information would be revised to specify that
such information should be furnished in paper only if the submitter
requests that the information be returned after staff review and where
the information is of the type typically returned by the staff pursuant
to Rule 418(b) of Regulation C or Rule 12b-4 of Regulation 12B. 40
This proposal would not affect the current provision requiring that
supplemental information submitted in connection with a confidential
treatment request be submitted in paper.
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\4\017 CFR 230.418(b) and 17 CFR 240.12b-4, respectively. These
rules permit the return of supplemental information where the
request for the return of the information is made at the time of
submission and where such return is consistent with the protection
of investors and with the provisions of the Freedom of Information
Act (5 U.S.C. 552).
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Rule 101(c)(3) of Regulation S-T. The provision exempting
shareholder proposal submissions from electronic filing would be
clarified to state that all correspondence relating to shareholder
proposals submitted to the staff pursuant to Exchange Act Rule 14a-
841 should be filed in paper.
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\4\117 CFR 240.14a-8.
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Rule 101(c)(8) of Regulation S-T. A reference to the
Commission's regional offices would be amended to reflect current
nomenclature.
Rule 101(c)(10) of Regulation S-T. The exclusion from
electronic filing afforded to promotional material and sales literature
would be expanded to include all such materials supplementally
furnished to the staff of the Division of Corporation Finance. The
exclusion is currently limited to materials submitted pursuant to
Securities Act Industry Guide 5.42 The exclusion also would be
expanded to specify the exclusion of sales literature submitted under
Rule 24b-2 of the Investment Company Act,43 consistent with that
rule.44
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\4\217 CFR 229.801(e).
\4\317 CFR 270.24b-2.
\4\4See Section III.C of Release No. IC-19284.
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Rule 102(a) of Regulation S-T. Current Rule 102(a) of
Regulation S-T states that ``[e]xhibits to an electronic filing that
have been filed previously in paper may, but shall not be required to
be, restated in electronic format.''45 That language would be
clarified under the proposals by stating that exhibits incorporated by
reference from filings previously made in paper (either before becoming
subject to mandated electronic filing requirements or pursuant to a
hardship exemption) may, but are not required to be, refiled in
electronic format.46
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\4\517 CFR 232.102(a).
\4\6See discussion of proposed Rule 311(b) of Regulation S-T,
below, for treatment of exhibits to schedules filed pursuant to
section 13 or 14(d) of the Exchange Act (15 U.S.C. 78(m) and
(n)(d)).
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Rule 102(e) of Regulation S-T. Current Rule 102(e) of
Regulation S-T would be amended to clarify the requirement that, after
a date three years after its phase-in date, a registered investment
company or business development company may incorporate by reference
only documents filed electronically. Specifically, the proposals would
make it clear that the exemption in the rule for documents filed in
paper pursuant to a hardship exemption would be applicable only if any
required confirming copy has been submitted. The proposals would also
provide that an exhibit, filed in paper, to Form N-SAR47 may be
incorporated by reference into another Form N-SAR filing.
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\4\717 CFR 274.101.
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Rule 302(b) of Regulation S-T. The requirement to retain a
manually signed signature page or other signature authentication
document would be clarified to specifically require a manual signature
with respect to each signatory to the electronic filing.
Proposed Rule 302(c) of Regulation S-T. Commission rules
no longer would require manual signatures on the paper copies of
electronic filings required to be furnished by registrants to national
securities exchanges and national securities associations.48
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\4\8For example, Exchange Act Rule 12b-11 (17 CFR 240.12b-11)
requires that a manually signed copy of Exchange Act reports be
filed with each exchange upon which the registrant's securities are
registered. This manual signature requirement would be superseded by
the proposed Regulation S-T requirement for electronically filed
reports.
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Proposed Rules 303(a)(3) and (4) of Regulation S-T. The
following would be added to the list of documents which may not be
incorporated by reference, consistent with other rule provisions49
and codifying current staff interpretations:
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\4\9See Rule 102(e) of Regulation S-T (17 CFR 232.102(e)) and
proposed revisions thereto.
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For a registered investment company or a business development
company making electronic submissions more than three years after its
phase-in date, a document which has not been filed in electronic
format, unless the document has been filed in paper pursuant to a
hardship exemption and any required confirming copy has been submitted
or the document is an exhibit, filed in paper, to Form N-SAR, and is
being incorporated by reference into another Form N-SAR filing.
For investment company filings, any Financial Data Schedule
required under Securities Act Rule 483.50
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\5\017 CFR 230.483.
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Rule 304(a) of Regulation S-T. Descriptions of omitted
graphic and image material would be allowed to be placed either in the
text of an electronic filing where the omission occurs or in an
appendix thereto, at the option of the filer. Registrants no longer
would be required to list all omitted material in an appendix to the
filing. Descriptions could be provided in narrative or tabular format,
as appropriate.
Rule 304(d) of Regulation S-T. 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-K51
would be required to satisfy that obligation in their electronic filing
in the same manner as applicable to other types of omitted charts or
graphs, that is, by describing the omitted performance graph by
presenting the graph's data points in tabular form.52 The
requirement to furnish a paper copy of the performance graph to the
Branch Chief in the Division of Corporation Finance responsible for the
review of the registrant's filings would be retained, in order to allow
the staff to continue monitoring information as it is distributed to
investors.53 The current option to file the graph in paper under
cover of Form SE54 would be eliminated, as it can result in an
electronic presentation that is incomplete to the reader without
reference to the Form SE.
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\5\117 CFR 229.402l.
\5\2See letter from Mauri L. Osheroff, Associate Director,
Regulatory Policy, Division of Corporation Finance, dated November
16, 1993, for an example of how the performance graph may be
presented in tabular form in the proxy statement. This letter is
available through the EDGAR Bulletin Board.
\5\3The current requirement is found in Rule 304(d)(2) of
Regulation S-T (17 CFR 232.304(d)(2)). It is proposed to be
incorporated into paragraph (d) of that section.
\5\4Rule 304(d)(1) of Regulation S-T (17 CFR 232.304(d)(1)).
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Proposed Rule 311(b) of Regulation S-T. The rule governing
filing of exhibits in paper under cover of Form SE would be amended to
provide that exhibits to a Commission schedule filed pursuant to
Section 13 or 14(d) of the Exchange Act55 may be filed in paper
under cover of Form SE where such exhibits previously were filed in
paper (either before becoming subject to mandated electronic filing or
pursuant to a hardship exemption) and are required to be refiled
pursuant to the schedule's general instructions. Currently, such
documents must be filed in electronic format along with the schedule to
which they relate, absent a hardship exemption.56
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\5\515 U.S.C. 78m and 78n(d).
\5\6For example, where an issuer delivers its Form 10-K with its
Schedule 13E-4 (17 CFR 240.13e-101) in connection with its issuer
tender offer proposal, the Form 10-K must be filed as an exhibit to
the schedule, notwithstanding the fact that it previously had been
filed with the Commission. See Item 9 of Schedule 13E-4. Under
current rules, the Form 10-K would be required to be filed
electronically as an exhibit, even if it originally had been filed
in paper. Under the proposed rules, the exhibit would continue to be
required, but it could be filed in paper under cover of Form SE if
it originally had been filed in paper.
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Proposed Rule 311(c) of Regulation S-T. Insurance
companies that file information included in their annual statements
provided to state insurance regulators (i.e., Schedules O and P)57
as exhibits to their Forms 10-K would be allowed to file such documents
in paper under cover of Form SE because of difficulties in translating
them into a format compatible with EDGAR.58
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\5\7See Item 601(b)(28) of Regulations S-K and S-B (17 CFR
229.601(b)(28) and 228.601(b)(28), respectively).
\5\8Since April 1993, the staff, via delegated authority, has
granted requests for continuing hardship exemptions for this type of
document for a period of one year from the date of the grant of the
exemption.
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Rule 311(d) of Regulation S-T. The proposed revisions
would codify the staff's interpretation that a Financial Data Schedule
is not among those exhibits to Form N-SAR that an investment company
may submit in paper under cover of Form SE.
Rules 901(a) and 902(a) of Regulation S-T. A note would be
added to Rules 901 and 902 of Regulation S-T to make it clear that
registrants become subject to mandated electronic filing upon their
phase-in date and all subsequent filings must be made electronically,
even filings made with respect to transactions that commenced prior to,
and are in process, at the time a company is phased in.59 The
proposed note to Rule 902(a) would clarify the limited exception for
definitive filings by investment companies under Rule 497 under the
Securities Act.
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\5\9Of course, under Rule 101(a)(1)(iii) a registrant may file
its Form 10-K or Form 10-KSB in paper if it is the first document
filed with the Commission following its phase-in date.
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Rule 901(c)(4) of Regulation S-T. A note would be added to
Rule 901 of Regulation S-T explaining that while companies subject to
mandated electronic filing generally may choose to electronically file
Schedules 13D60 and 13G61 with respect to a paper filer,
domestic electronic filers are restricted from doing so with respect to
foreign private issuers because EDGAR currently requires an IRS tax
identification number to be inserted for the subject company as a
prerequisite to acceptance of the filing. It is anticipated that the
EDGAR system will be modified in the future to process such filings,
but until such time, they must be filed in paper.
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\6\017 CFR 240.13d-101.
\6\117 CFR 240.13d-102.
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Rules 901(d) and 902(g) of Regulation S-T. The statutory
requirement62 to furnish the Commission with a paper copy of each
electronic filing for a period of one year following a registrant's
phase-in date would be modified to require new electronic filers to
furnish to the Commission one paper copy of their first electronic
filing only.63 Filers have characterized the requirement as
burdensome, and the Commission believes the need for a paper copy could
be reduced to a minimum. This change will be effected only after the
Commission makes a finding, as required by statute, that the EDGAR
system is reliable, provides a suitable alternative to written and
printed filings, and provides information as effectively and
efficiently for filers, users and disseminators as the written or
printed counterpart.64 Comment also is solicited on whether the
current due date for receipt of the paper copy (six business days after
the electronic filing is made) should be extended, for example to ten
or 15 business days after the date of electronic filing.
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\6\2See Section 35A(d)(3) of the Exchange Act (15 U.S.C.
78ll(d)(3)).
\6\3The current requirement to place a legend on the top of the
paper copy would be modified and retained; the rules also would be
modified to require the copy to be sent to the Commission's
Operations Center in Alexandria, Virginia, as is currently the
practice. If these provisions are adopted, all filers that have
submitted a paper copy of at least one electronic filing would be
relieved of any obligation to furnish such copies after the
effective date of the amendment.
\6\4See Exchange Act section 35A(d)(3)(B) (15 U.S.C.
78ll(d)(3)(B)).
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Rule 902(e) of Regulation S-T. The proposed amendments
would clarify the limited exception, currently contained in Rule 902(e)
of Regulation S-T65 for definitive filings by investment companies
under Rule 497 of the Securities Act, to mandated electronic filing.
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\6\517 CFR 232.902(e).
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B. Changes to Item 601 of Regulations S-K and S-B
The following proposals would amend Item 601 of Regulations S-K and
S-B, which govern the submission of exhibits, including the new
Financial Data Schedule.
The exhibit tables of Regulations S-K and S-B would be
amended to indicate that charter documents are to be filed with
quarterly reports on Forms 10-Q66 and 10-QSB67 pursuant to
paragraph (b)(3) of Regulations S-K68 and S-B69 if such
documents had been amended during the reporting period, thereby
reflecting the requirements of Item 601(a)(4) of Regulations S-B and S-
K.70
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\6\617 CFR 249.308a.
\6\717 CFR 249.308b.
\6\817 CFR 229.601(b)(3).
\6\917 CFR 228.601(b)(3).
\7\017 CFR 228.601(a)(4) and 17 CFR 229.601(a)(4). Proposed
revisions to the exhibit table of Item 601 of Regulations S-K and S-
B.
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Item 601 of Regulations S-K and S-B would be amended to
state that if an instrument defining the rights of security holders is
in the form of a certificate, the text appearing on the certificate
must be reproduced in an electronic filing, together with a description
of any other graphic and image material appearing on the
certificate.71
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\7\1Proposed instruction to Item 601(b)(4) of Regulations S-K
and S-B [17 CFR 229.601(b)(4) and 17 CFR 228.601(b)(4),
respectively].
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Item 601(b)(10) of Regulations S-K and S-B would be
amended to clarify that a material contract that becomes effective or
that is executed during the reporting period reflected by an annual or
quarterly report must be filed as an exhibit to the periodic report
filed for the corresponding period.72
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\7\2Proposed Instruction 2 to Item 601(b)(10) to Regulations S-K
and S-B (17 CFR 229.601(b)(10) and 17 CFR 228.601(b)(10),
respectively).
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Applications filed for the purpose of determining the
eligibility of a person designated as trustee for debt securities
registered under the Securities Act that are eligible to be issued,
offered, or sold on a delayed basis by or on behalf of the registrant,
pursuant to section 305(b)(2) of the Trust Indenture Act,73 would
be required to be filed separately in the manner prescribed by the
EDGAR Filer Manual.74 Currently, such filings must be filed as an
exhibit to a post-effective amendment to the registration statement to
which the application relates. This change is intended to provide
expedited processing of such filings, inasmuch as such filings could
become automatically effective without staff intervention, a process
not available with post-effective amendments. Of course, the general
procedure requiring all other trust indenture eligibility applications
on Form T-1 and T-275 to be submitted as an exhibit to the
registration statement would remain intact.76
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\7\315 U.S.C. 77eee(b)(2).
\7\4Proposed revision of Item 601(b)(25)(ii) of Regulations S-K
and S-B (17 CFR 229.601(b)(25)(ii) and 17 CFR 228.601(b)(25)(ii),
respectively). A new electronic form type 305B2 will be added in
future EDGAR programming to accommodate this type of filing.
\7\517 CFR 269.1 and 17 CFR 269.2, respectively.
\7\6See Item 601(b)(25)(ii) of Regulations S-K and S-B (17 CFR
229.601(b)(25)(ii) and 228.601(b)(25)(ii), respectively).
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Item 601 also would be amended to clarify that earnings
statements ``made generally available'' pursuant to Sec. 11(a) of the
Securities Act77 should be filed as an exhibit to Exchange Act
periodic reports only where the statement was made available using
methods other than including the information in another filing with the
Commission, as provided by Securities Act Rule.78
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\7\715 U.S.C. 77k(a).
\7\817 CFR 230.158. Proposed revision of Item 601(b)(99)(iii) of
Regulation S-K (17 CFR 229.601(b)(99)(iii)) and Item 601(b)(99)(ii)
of Regulation S-B (17 CFR 228.601(b)(99)(ii)).
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Financial Data Schedules would not be required to be filed
in connection with registration statements on Form S-879 (for
registration of securities issued pursuant to employee benefit plans),
since updated financial information is rarely included in such
filings.80
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\7\917 CFR 239.16b.
\8\0Proposed revision of note to Item 601(c)(1) of Regulations
S-K and S-B. This would be a revision to the note adopted in
connection with the implementation of Financial Data Schedules,
which indicates that no Financial Data Schedule is required for Form
11-K. See Release No. 33-7072.
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A note would be added to Item 601(c) of Regulations S-K
and S-B, providing that the paper copy of an electronic filing sent to
the Commission's Operations Center in Alexandria, Virginia pursuant to
Rule 901(d) of Regulation S-T need not contain any Financial Data
Schedule included in that filing. Similarly, registrants would not be
required to furnish paper versions of their Financial Data Schedules
with the paper copies sent to national securities exchanges and
national securities associations pursuant to Commission rules.81
Both provisions are consistent with the Commission's position, also
codified in the proposed note, that paper copies of the Schedule are
not required with filings made in paper pursuant to a hardship
exemption because the Schedule merely reflects information found
elsewhere in the filing, and thus, it is only useful in electronic
filings.82 However, comment is solicited as to whether there would
be some purpose served by requiring the provision of paper versions of
the Financial Data Schedules to the national securities exchanges,
national securities associations, their listed companies and the public
and whether such a requirement should be adopted.
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\8\1Proposed note 2 to paragraph (c)(1) of Item 601 of
Regulations S-K and S-B.
\8\2See n. 287 in Release No. 33-6977.
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C. Changes to Securities Act Rule 483, Form S-6 and Investment Company
Rule 20a-4
The following proposals would amend rules and forms under the
Securities and Investment Company Acts in connection with Financial
Data Schedule requirements:
A note would be added to Securities Act Rule 483(e)
indicating that paper copies of Financial Data Schedules are not
required to be furnished to the Commission or to national securities
exchanges or national securities associations.83
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\8\3Proposed note 2 to paragraph (e)(1) of Securities Act Rule
483. See proposed note 2 to Item 601(c) of Regulations S-K and S-B,
discussed above.
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Form S-684 would be amended to make it clear that a
Financial Data Schedule is required only upon the filing of an
amendment to a registration statement on that form.
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\8\417 CFR 239.16.
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Investment Company Act Rule 20a-485 would be amended
to clarify that the Financial Data Schedule, required to be submitted
by investment companies with certain proxy material, would be submitted
as an exhibit.
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\8\517 CFR 270.20a-4.
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D. Changes to Public Utility Act Rules and Forms
The following proposals would amend the Public Utility Act Rules
and Forms:
Forms U5B,86 U5S,87 and U-188 under the
Public Utility Act would be amended to state that if an instrument
defining the rights of security holders is in the form of a
certificate, the text appearing on the certificate must be reproduced
in an electronic filing.89
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\8\617 CFR 259.5b.
\8\717 CFR 259.5s.
\8\817 CFR 259.101.
\8\9Proposed Instructions for Exhibits B to Forms U5B and U5S
and Instruction A to Instructions as to Exhibits to Form U-1. This
proposal parallels the proposed changes to Item 601(b)(4) of
Regulations S-K and S-B, discussed above.
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E. Other Changes
Other proposed amendments are listed below.
Exchange Act Rule 12b-1590 would be amended to
specify the number of copies required to be filed in connection with
amendments to Exchange Act filings made in paper.
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\9\017 CFR 240.12b-15.
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An electronic filing provision of Regulation 13D relating
to electronic amendments to Schedules 13D and 13G would be amended to
track its parallel provision in Regulation S-T.91
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\9\1Proposed revision of Exchange Act Rule 13d-2(c) (17 CFR
240.13d-2(c)).
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A note to Exchange Act Rule 14a-492 would codify the
Commission's position that proxy cards should be filed as appendices at
the end of proxy statements filed in electronic format, and not as
separate documents within the electronic submission.93 In a
similar vein, Instruction 3 to Item 10 of Schedule 14A94 would
instruct electronic filers to file employee benefit plan documents
required to accompany the proxy statement as appendices to the proxy
statement. As is currently true, filers would not be required to
deliver the plan documents to shareholders unless they are a part of
the proxy statement.
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\9\217 CFR 240.14a-4.
\9\3See section IV.F.5 of Release No. 33-6977.
\9\417 CFR 240.14a-101.
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Technical revisions would be made to the cover pages of
proxy and information statements95 to make them easier to
understand and expedite processing. The rules would be revised to
clarify that the cover page is for the use of the Commission and is not
required to be distributed to security holders.96 Further, a
change would be made to Schedule 14A to ensure that the approximate
date on which the proxy statement and form of proxy are first sent or
given to security holders would be printed on the first page of the
proxy statement sent to investors, and not on the cover sheet.97
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\9\5For example, a box would be added for filers of definitive
material to check if the fee had previously been paid with
preliminary materials and a reference to Investment Company Act Rule
20a-1(c) (17 CFR 270.20a-1) would be added to the ``Payment of
Filing Fee'' section. Schedule 14C, setting forth the requirements
for information statements, is found at 17 CFR 240.14c-101.
\9\6Proposed revisions to Rule 14a-6(m) (17 CFR 240.14a-6(m))
and Rule 14c-5(h) (17 CFR 240.14c-5(h)).
\9\7Proposed amendment to paragraph (b) of Item 1 of Schedule
14A.
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The tender offer rules would be amended to clarify that
tender offer periods are tolled because of failure to file required
documents in electronic format only when the bidder is required to file
electronically or, if applicable, after it has elected to do so by
filing the Tender Offer Statement in electronic form.98
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\9\8Proposed revision of Rule 14e-1(e) (17 CFR 240.14e-1(e)).
For example, if the bidder is an electronic filer and the target
company is also an electronic company, and the bidder files its
Tender Offer Statement in paper in violation of the electronic
filing rules, the time periods will be tolled with respect to the
tender offer until a confirming electronic copy of the Statement is
submitted. Where the bidder is an electronic filer and the target is
a paper filer, if the bidder elects to file in paper under Rule
901(c)(1) of Regulation S-T (17 CFR 232.901(c)(1)), it may do so
without tolling the tender offer periods, because paper filing is
specifically allowed that provision. However, if the electronic
bidder elects to electronically file its Tender Offer Statement with
respect to a paper company, as permitted by Regulation S-T, any
subsequent filing in paper by the bidder with respect to the
transaction will cause the tender offer periods to be tolled until
confirming electronic copies of these documents are submitted.
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The number of paper copies of Form SE99 (for use with
documents filed in paper pursuant to a hardship exemption or other
specified purposes) and Form TH100 (used in connection with paper
filings pursuant to a temporary hardship exemption) required to be
filed would be increased from three to four, to facilitate processing
by the staff. As currently required, three paper copies of the exhibits
or other documents submitted under cover of these forms would be
required.
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\9\917 CFR 239.64, 249.444, 259.603, 269.8, and 274.403.
\1\0017 CFR 239.65, 249.447, 259.604, 269.10, and 274.404.
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II. General Request for Comment
Comment is solicited with regard to each proposal respecting the
viewpoints of both the filers and the users of information filed via
EDGAR. Commenters should address any alternatives to these proposals
they deem appropriate. Other suggestions relating to EDGAR and
associated rules outside of these proposals will be considered in
connection with the Commission's ongoing evaluation of the system. The
Commission also requests comment on whether the proposals, if adopted,
would have an adverse effect on competition that is neither necessary
nor appropriate in furthering the purposes of the Exchange Act.
Comments will be considered by the Commission in complying with its
responsibilities under Section 23(a) of the Exchange Act.101
Comments should be addressed to Jonathan G. Katz, Secretary, Securities
and Exchange Commission, 450 Fifth Street, NW., Washington DC 20549,
and should refer to File No. S7-20-94.
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\1\0115 U.S.C. 78w(a).
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III. Common Mistakes Made by EDGAR Filers
Since the adoption of the interim rules in February 1993, the
Commission staff has been working with electronic filers to help them
satisfy their electronic filing obligations. The staff has identified a
number of items of information that have proven useful to electronic
filers and should be conveyed to the electronic filing community at
large. To that end, the staff has compiled the following list of
suggestions to help electronic filers avoid some of the more common
errors associated with electronic filing.
A. Review Documents in EDGAR Format and Use EDGARLink's Error Checking
Features Prior to Filing
Filers should run their filing through EDGARLink's error checking
process and review the entire document after conversion to electronic
format, including the information in the submission and document
headers before transmitting the filing to the Commission. Electronic
filers that plan ahead and carefully error check and proofread
documents prior to filing will generally have success in making their
filings with the Commission. Some examples of errors that easily could
have been avoided by error checking and reviewing the document prior to
transmission are:
1. Inaccurate ASCII conversion resulting in table columns that do
not line up correctly;102
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\1\02The EDGAR system requires all documents to be prepared in
ASCII format. ASCII stands for ``American Standard Code for
Information Interchange,'' and represents letters, numbers, blank
spaces, and a limited number of symbols. When properly translated to
ASCII, word processing codes for features such as underlining and
bold-face are removed and codes indicating indentation and tabbing
are replaced by the appropriate number of spaces on a line.
Improperly translated tables will not necessarily cause a filing to
be suspended, but if the numbers within the column do not appear in
their appropriate place within the filing, the information becomes
difficult, if not impossible, for persons looking at the filing to
read and understand.
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2. Including too many characters on a line;
3. Failure to place the text of the filing between the and
tags, resulting in an accepted filing that appears to have no
text (this usually occurs when the filer is not using EDGARLink to
prepare the submission);
4. Filing draft versions of documents instead of the final version,
as intended;
5. Including incorrect Central Index Key (``CIK'')103 and IRS
identification numbers in the submission header, resulting either in
the suspension of the filing, or in the case of filings using a subject
company tagging scheme, in a filing being accepted with the wrong
company being recorded as the subject company. Filers that hold more
than one CIK and CIK Confirmation Code (``CCC'') number,104
because of affiliates that are also subject to electronic filing rules
or because they act as filing agents, have sometimes inadvertently used
the wrong CIK and CCC numbers in a submission header, thereby
indicating that the filer was someone other than the intended filer,
and resulting in the intended filer not having made its filing;
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\1\03CIK numbers are unique public identification numbers
assigned by the Commission to each filer, filing agent and training
agent.
\1\04CCC numbers are identification codes chosen by the
electronic filer and known by the EDGAR system which are matched
against the filer's CIK number to identify the filing as one
authorized by the filer.
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6. Using the wrong EDGAR submission type for the intended purpose.
For example, if an Exchange Act reporting company marks the box on the
cover of its Form 10-K to indicate that it includes no disclosure
relating to delinquent reports required to be filed by its insiders
pursuant to Section 16(a) of the Exchange Act,105 the correct form
type is 10-K405, not 10-K. The latter form type should be used only
when the Item 405 box is not checked.106
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\1\0515 U.S.C. 78p(a).
\1\0610-K405 is a new form type found in the EDGAR Filer Manual,
adopted in Release No. 33-7073 (July 8, 1994).
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B. Appropriate Use of the Tag
Filers should ensure prior to transmission that a document intended
to be a live filing does not include a tag in the submission
header and that the transmission is being done in a live transmission
session. If a document intended to be an official filing with the
Commission is actually sent as a test, it will be treated as though no
filing were made. The filing will not appear on the Commission's
records and it will not be disseminated to the public. Conversely, if a
submission intended to be a test is not transmitted during a test
session or does not include a tag in the header in a live
transmission session, the test document will be considered an official
filing and will be disseminated to the public, usually in a matter of
minutes. While testing is encouraged, so is extra caution to ensure
that the result intended is the result achieved.
C. Appropriate Use of the Tag
Confirming electronic copies of filings made in paper are required
in three instances. First, if a filing is made in paper pursuant to a
temporary hardship exemption pursuant to Rule 201 of Regulation S-
T,107 a copy of the paper filing must be submitted in electronic
format within six business days. Second, if a filing is made in paper
in violation of the electronic filing requirements, a confirming
electronic copy of that filing must be placed on the EDGAR database in
order to avoid the sanctions imposed as a result of the electronic
filing violation.108 Third, confirming copies must be filed where
a continuing hardship exemption has been granted to allow a filing to
be made in paper upon the condition that it be followed up
electronically within a specified period of time.109 Confirming
copies are not official filings, but rather, are copies of official
filings previously made in paper. Some filers have inadvertently
included a tag in what they intended to be an
official filing and failed to notice or appreciate the significance of
the statement in their acceptance message that the document was
received as a confirming electronic copy. At a later time, they are
alerted to the fact that the Commission's records do not reflect their
filing as an official document. The only course of remedial action is
to refile the document as an official filing.
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\1\0717 CFR 232.201.
\1\08Registrants who file documents in paper in violation of the
electronic filing rules lose their eligibility to use Forms S-2 (17
CFR 239.12), S-3 (17 CFR 239.13), S-8, F-2 (17 CFR 239.32) and F-3
(17 CFR 239.33). In addition, documents filed in violation of the
electronic filing rules may not be incorporated by reference into
other filings. Finally, in certain circumstances, tender offer
periods will be tolled until the electronic filing violation has
been cured. See generally the note to paragraph (a) of Rule 101 of
Regulation S-T (17 CFR 232.101(a)).
\1\09See Rule 202(d) of Regulation S-T (17 CFR 232.202(d)).
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D. Timing Considerations
1. Filing Fees
Filers should follow precisely the guidelines on how to submit
filing fees to the Commission's lockbox at Mellon Bank in Pittsburgh,
Pennsylvania, including the provisions requiring the filer's filing fee
account number to accompany the payment.110 This is particularly
important in the case of ``good money'' filings that require
confirmation of the fee prior to automatic acceptance by the EDGAR
system, e.g., Securities Act registration statements. Filers also
should plan ahead and follow up with respect to their wire transfer
arrangements with their banks, to ensure that the money is sent as
instructed. EDGAR cannot verify a fee that has not reached the lockbox
because a bank has not wired the money to the Commission's account, or
because the wire transfer process took longer than anticipated.
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\1\10See Rule 3a of the Commission's informal and other
procedures (17 CFR 202.3a). See also the Filing Fees Account System
Handbook, published by the Commission's Office of Filings and
Information Services.
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2. Last Minute Filing
Filers should avoid waiting until late in the day on which a filing
must be made before attempting to commence an electronic transmission
of the filing. Even if the submission has no errors that would cause
its suspension, delay until shortly before 5:30 p.m. on the desired
filing date may result in missing that filing date.111 Before a
direct transmission begins using EDGARLink, the submission file is
compressed (which takes an average of about one minute for a 40-80 page
document if the filer is using a personal computer with a 386
processing chip), a dial-up and handshake with the EDGAR host system
occurs, and an EDGARLink verification protocol must be completed.
Further, the time assigned to the receipt of the first byte of
information from the submission is established by EDGAR's clock, not
the internal clock of the filer's computer. For the foregoing reasons,
there can be no assurance that the filing will receive that day's
filing date if a filer delays transmission until minutes before 5:30
p.m.
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\1\11Rule 13(a)(2) of Regulation S-T (17 CFR 232.13(a)(2))
provides that where a direct transmission of a filing commences on
or before 5:30 p.m., the filing will receive that day's filing date
if all of the conditions of acceptance are satisfied, even if
acceptance processing is not complete until after 5:30 p.m. If a
direct transmission of a filing is commenced after 5:30 p.m., the
filing will receive the next day's filing date.
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3. Adjustments to Filing Dates
Rule 13(b) of Regulation S-T allows electronic filers to request an
adjustment to a filing date for an electronic filing if the filer, in
good faith, attempts to file a document in a timely manner but the
filing is delayed due to technical difficulties beyond the electronic
filer's control.\112\ This may occur when a filing is delayed beyond
its due date because of technical problems, or a filing is made but
contains errors causing its suspension.
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\112\17 CFR 232.13(b).
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It is not the staff's policy to grant filing date adjustments for
Securities Act registration statements or other transactional filings,
since shareholders' rights may be affected.\113\ In contrast,
reasonable requests for an adjustment to the filing date of an Exchange
Act report will be granted if the filing is made (or re-submitted)
promptly. However, filers have an obligation to confirm the status of
their filings and must read the related acceptance or suspension
messages carefully to determine if the filing was successfully made.
For example, if a filing inadvertently was submitted as a test or a
confirming electronic copy, and was therefore not considered an
official filing, a new filing must be made immediately and the staff
must be notified, if the second transmission was after the due date of
the filing and an adjustment is desired. It is not the policy of the
staff to grant adjustments backdating a filing over an extended period
of time.
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\113\See Section III.E.4 of Release No. 33-6977.
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IV. Cost-Benefit Analysis
To assist the Commission in its evaluation of the costs and
benefits that may result from the proposed changes contained in this
release, commenters are requested to provide their views and data
relating to any costs and benefits associated with these proposals. It
is anticipated that these proposals will not affect significantly the
costs and burdens associated with filing requirements generally, or
specifically with respect to electronic filing.
V. Summary of Initial Regulatory Flexibility Analysis
An initial regulatory flexibility analysis has been prepared in
accordance with 5 U.S.C. 603 concerning the proposed amendments. The
analysis notes that the amendments are to make minor revisions to the
rules implementing the EDGAR system.
As discussed more fully in the analysis, the proposals would affect
persons that are small entities, as defined by the Commission's rules.
It is not expected that increased reporting, recordkeeping and
compliance burdens would result from the changes. The analysis also
indicates that there are no current federal rules that duplicate,
overlap or conflict with the electronic filing requirements to be
amended.
As stated in the analysis, several possible significant
alternatives to the proposals were considered, including, among others,
establishing different compliance or reporting requirements for small
entities or exempting them from all or part of the proposed
requirements. As discussed more fully in the analysis, the nature of
these amendments do not lend themselves to separate treatment, nor
would they impose additional burdens on small business issuers.
Written comments are encouraged with respect to any aspect of the
analysis. Such comments will be considered in the preparation of the
Final Regulatory Flexibility Analysis if the proposed amendments are
adopted. A copy of the analysis may be obtained by contacting James R.
Budge, Office of Disclosure Policy, Division of Corporation Finance,
Mail Stop 3-12, 450 Fifth Street, NW., Washington, DC 20549.
VI. Statutory Basis
The foregoing amendments 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 35A of the Exchange Act, sections 3, 5, 6, 7, 10, 12, 13, 14,
17 and 20 of the Public Utility Act, section 319 of the Trust Indenture
Act, and sections 8, 30, 31 and 38 of the Investment Company Act.
List of Subjects in 17 CFR Parts 228, 229, 230, 232, 239, 240, 249,
250, 259, 260 and 270
Accountants, Confidential business information, Investment
companies, Reporting and recordkeeping requirements, Securities,
Utilities.
Text of the Proposed Amendments
In accordance with the foregoing, it is proposed that title 17,
chapter II of the Code of Federal Regulations be amended as follows:
PART 228--INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS ISSUERS
1. 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.
2. By amending Sec. 228.601 in the exhibit table, by adding an
``x'' corresponding to exhibits (3)(i) and (ii) under the caption ``10-
QSB'' and removing the ``x'' corresponding to exhibit (27) under the
caption ``S-8,'' by adding an instruction following paragraph
(b)(4)(iii), redesignating the Instruction to Item 601(b)(10) as
Instruction 1 and adding Instruction 2, revising the second sentence of
paragraph (b)(25)(ii), revising paragraph (b)(28)(iv), revising
paragraph (b)(99)(ii), revising the note to paragraph (c)(1)(ii),
redesignating the note following paragraph (c)(1)(vi) as Note 1 and
adding Note 2, to read as follows:
Sec. 228.601 (Item 601) Exhibits.
* * * * *
(b) * * *
(4) Instruments defining the rights of security holders, including
indentures. * * *
(iii) * * *
Instruction for electronic filings. If the instrument defining
the rights of security holders is in the form of a certificate, the
text appearing on the certificate shall be reproduced in an
electronic filing together with a description of any other graphic
and image material appearing on the certificate, as provided in Rule
304 of Regulation S-T (Sec. 232.304 of this chapter).
* * * * *
(10) Material Contracts. (i) * * *
Instruction 1 to Item 601(b)(10). * * *
Instruction 2 to Item 601(b)(10). If a material contract is
executed or becomes effective during the reporting period reflected
by a Form 10-QSB or Form 10-KSB, it shall be filed as an exhibit to
the Form 10-QSB or Form 10-KSB filed for the corresponding period.
See paragraph (a)(3) of this Item.
* * * * *
(25) Statement of eligibility of trustee.
* * * * *
(ii) * * * Rather, such statements must be submitted as exhibits in
the same electronic submission as the registration statement to which
they relate, or in an amendment thereto, except that electronic filers
that rely on Trust Indenture Act Section 305(b)(2) for determining the
eligibility of the trustee under indentures for securities to be
issued, offered or sold on a delayed basis by or on behalf of the
registrant shall file such statements separately in the manner
prescribed by Sec. 260.5b-1 through Sec. 260.5b-3 of this chapter and
by the EDGAR Filer Manual.
* * * * *
(28) Information from reports furnished to state insurance
regulatory authorities. * * *
(iv) If ending reserves in paragraphs (b)(28)(ii)(A) and
(b)(28)(ii)(B) of this Item or the proportionate share of the small
business issuer and its other subsidiaries in paragraph (b)(28)(ii)(C)
of this Item are less that 5% of the total ending reserves in
paragraphs (b)(28)(ii)(A) and (b)(28)(ii)(B) of this Item, and the
proportionate share of (b)(28)(ii)(C) of this Item, small business
issuers may omit that category and note that fact. If the amount of the
reserves attributable to fifty percent-or-less-owned equity investees
that file this information as companies in their own right exceeds 95%
of the total in paragraph (b)(28)(ii)(C) of this Item, small business
issuers do not need to provide reserves information for the other fifty
percent-or-less-owned equity investees.
* * * * *
(99) Additional Exhibits
* * * * *
(ii) If pursuant to Section 11(a) of the Securities Act (15 U.S.C.
77k(a)) an issuer makes generally available to its security holders an
earnings statement covering a period of at least 12 months beginning
after the effective date of the registration statement, and if such
earnings statement is made available by ``other methods'' than those
specified in paragraphs (a) or (b) of Sec. 230.158 of this chapter, it
must be filed as an exhibit to the Form 10-QSB or the Form 10-KSB, as
appropriate, covering the period in which the earnings statement was
released.
(c) Financial Data Schedule--(1) * * *
(ii) * * *
Note: Financial Data Schedules are not required in connection
with registration statements on Form S-8 (Sec. 239.16b of this
chapter) or annual reports on Form 11-K (Sec. 249.311 of this
chapter), for employee stock purchase, savings and similar plans.
* * * * *
(vi) * * *
Note 1: * * *
Note 2: Paper copies of the Financial Data Schedule are not
required to be furnished with the paper copy sent to the
Commission's Operations Center in Alexandria, Virginia pursuant to
Rule 901(d) of Regulation S-T (Sec. 232.901(d) of this chapter), or
with the paper copies of filings required by the Commission rules to
be furnished to the national securities exchange or national
securities association upon which the registrant's securities are
listed. Similarly, no paper copy of a Financial Data Schedule is
required with filings made in paper pursuant to a hardship
exemption; however, any required electronic confirming copy of such
filing should be accompanied by a Financial Data Schedule, where
appropriate pursuant to paragraph (c)(1)(ii) of this section.
* * * * *
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
3. 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.
* * * * *
4. By amending Sec. 229.601 in the exhibit table, by adding an
``x'' corresponding to exhibits (3)(i) and (ii) under the caption ``10-
Q'' and removing the ``x'' corresponding to exhibit (27) under the
caption ``S-8'', by designating the current instruction at the end of
paragraph (b)(4) as Instruction 1 and adding Instruction 2, designating
the current instruction at the end of paragraph (b)(10) as Instruction
1 and adding Instruction 2, revising the second sentence of paragraph
(b)(25)(ii), by revising paragraph (b)(99)(iii), revising the note to
paragraph (c)(1)(ii), redesignating the note following paragraph
(c)(1)(vi) as Note 1 and adding Note 2 thereafter, adding a ``)''
before the period at the end of paragraph (c)(3)(ii), to read as
follows:
Sec. 229.601 (Item 601) Exhibits.
* * * * *
(b) * * *
(4) Instruments defining the rights of security holders, including
indentures.
* * * * *
Instruction 1. * * *
Instruction 2 (for electronic filings). If the instrument
defining the rights of security holders is in the form of a
certificate, the text appearing on the certificate shall be
reproduced in an electronic filing together with a description of
any other graphic and image material appearing on the certificate,
as provided in Rule 304 of Regulation S-T (Sec. 232.304 of this
chapter).
* * * * *
(10) Material Contracts. (i) * * *
Instruction 1. * * *
Instruction 2. If a material contract is executed or becomes
effective during the reporting period reflected by a Form 10-Q or
Form 10-K, it shall be filed as an exhibit to the Form 10-Q or Form
10-K filed for the corresponding period. See paragraph (a)(4) of
this Item.
* * * * *
(25) Statement of eligibility of trustee.
* * * * *
(ii) Electronic filings. * * * Rather, such statements must be
submitted as exhibits in the same electronic submission as the
registration statement to which they relate, or in an amendment
thereto, except that electronic filers that rely on Trust Indenture Act
Section 305(b)(2) for determining the eligibility of the trustee under
indentures for securities to be issued, offered or sold on a delayed
basis by or on behalf of the registrant shall file such statements
separately in the manner prescribed by Sec. 260.5b-1 through
Sec. 260.5b-3 of this chapter and by the EDGAR Filer Manual.
* * * * *
(99) Additional Exhibits
* * * * *
(iii) If pursuant to Section 11(a) of the Securities Act (15 U.S.C.
77k(a)) an issuer makes generally available to its security holders an
earnings statement covering a period of at least 12 months beginning
after the effective date of the registration statement, and if such
earnings statement is made available by ``other methods'' than those
specified in paragraphs (a) or (b) of Sec. 230.158 of this chapter, it
must be filed as an exhibit to the Form 10-Q or the Form 10-K, as
appropriate, covering the period in which the earnings statement was
released.
(c) Financial Data Schedule--(1) * * *
(ii) * * *
Note: Financial Data Schedules are not required in connection
with registration statements on Form S-8 (Sec. 239.16b of this
chapter) or annual reports on Form 11-K (Sec. 249.311 of this
chapter), for employee stock purchase, savings and similar plans.
* * * * *
(iv) * * *
Note 1: * * *
Note 2: Paper copies of the Financial Data Schedule are not
required to be furnished with the paper copy sent to the
Commission's Operations Center in Alexandria, Virginia pursuant to
Rule 901(d) of Regulation S-T (Sec. 232.901(d) of this chapter), or
with the paper copies of filings required by the Commission rules to
be furnished to the national securities exchange or national
securities association upon which the registrant's securities are
listed. Similarly, no paper copy of a Financial Data Schedule is
required with filings made in paper pursuant to a hardship
exemption; however, any required electronic confirming copy of such
filing should be accompanied by a Financial Data Schedule, where
appropriate pursuant to paragraph (c)(1)(ii) of this section.
* * * * *
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
5. 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,
78l, 78m, 78n, 79o, 78w, 78ll(d), 79t, 80a-8, 80a-29, 80a-30, and
80a-37, unless otherwise noted.
* * * * *
Sec. 230.405 [Amended]
6. By amending Sec. 230.405 by revising the term ``Graphic
communications'' to read ``Graphic communication'' each time it appears
in that definition.
7. By amending Sec. 230.483 by redesignating the note following
paragraph (e)(1)(iv) as Note 1 and adding Note 2 thereafter to read as
follows:
Sec. 230.483 Exhibits for Certain Registration Statements, Financial
Data Schedule.
* * * * *
(e) Financial Data Schedule.
(1) General.
* * * * *
(iv) * * *
Note 1: * * *
Note 2: Paper copies of the Financial Data Schedule are not
required to be furnished with the paper copy sent to the
Commission's Operations Center in Alexandria, Virginia pursuant to
Rule 902(g) of Regulation S-T (Sec. 232.902(g) of this chapter), or
with the paper copies of filings required by the Commission rules to
be furnished to the national securities exchange or national
securities association upon which the registrant's securities are
listed. Similarly, no paper copy of a Financial Data Schedule is
required with filings made in paper pursuant to a hardship
exemption; however, any required electronic confirming copy of such
filing should be accompanied by a Financial Data Schedule, where
required by the applicable form.
* * * * *
Sec. 230.488 [Amended]
8. By amending Sec. 230.488 by removing paragraph (c)(2) and by
redesignating paragraph (c)(1) as paragraph (c).
PART 232--REGULATION S-T--GENERAL RULES AND REGULATIONS FOR
ELECTRONIC FILINGS
9. 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.
10. By amending Sec. 232.12 by adding a sentence at the end of
paragraph (b) to read as follows:
Sec. 232.12 Business hours of the Commission.
* * * * *
(b) * * * Submissions on magnetic tape or diskette may be filed
either at the address indicated in paragraph (a) of this section, or at
the Commission's Operations Center, 6432 General Green Way, Alexandria,
VA 22312-2413.
* * * * *
11. By amending Sec. 232.13 by adding paragraph (d) following the
note, to read as follows:
Sec. 232.13 Date of filing; adjustment of filing date.
* * * * *
(d) 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 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. 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.
12. By amending Sec. 232.101 by revising paragraphs (a)(1)(i),
(a)(1)(iii), (c)(2), (c)(3), (c)(8), and (c)(10), by revising the
heading of paragraph (c), by removing the word ``and'' following the
semicolon in paragraph (c)(16), and by adding paragraphs (b)(3),
(b)(4), (b)(5), (c)(18), (c)(19), (c)(20), and (c)(21), to read as
follows:
Sec. 232.101 Mandated electronic submissions and exceptions.
(a) Mandated electronic submissions. (1) * * *
(i) Registration statements and prospectuses filed pursuant to the
Securities Act (15 U.S.C. 77a, et seq.) or registration statements
filed pursuant to Sections 12(b) or 12(g) of the Exchange Act (15
U.S.C. 78l(b) or (g));
* * * * *
(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, n, and o(d)), except Form 13F (Sec. 249.325 of this chapter),
provided that if a registrant's first mandated electronic filing would
be an annual report on Form 10-K (Sec. 249.310 of this chapter) or Form
10-KSB (Sec. 249.310b of this chapter) such annual report may, at the
option of the registrant, be submitted in paper format;
* * * * *
(b) * * *
(3) Form 11-K (Sec. 249.311 of this chapter), if financial
statements and schedules prepared in accordance with the requirements
of ERISA are filed pursuant to Instruction 4 of that form. Registrants
who satisfy their Form 11-K filing obligations by filing amendments to
Forms 10-K or 10-KSB, as provided by Rule 15d-21 (Sec. 240.15d-21 of
this chapter), also may choose to file such amendments in paper or
electronic format;
(4) Reports on Form 13F (Sec. 249.325 of this chapter), filed with
the Commission by institutional investment managers as required by
Section 13(f)(1) (15 U.S.C. 78m(f)(1)) of, and Rule 13f-1
(Sec. 240.13f-1 of this chapter) under, the Exchange Act on magnetic
tape in the format described in Form 13F-E (Sec. 249.326 of this
chapter); and
(5) Exhibits to Form N-SAR (Sec. 274.101 of this chapter), except
that the Financial Data Schedule required under Rule 483 under the
Securities Act of 1933 (Sec. 230.483 of this chapter) shall be filed in
electronic format.
(c) Documents to be submitted in paper only.
* * * * *
(2) Supplemental information, if the submitter requests that the
information be protected from public disclosure under the Freedom of
Information Act (5 U.S.C. 552) pursuant to a request for confidential
treatment under Rule 83 (Sec. 200.83 of this chapter) or if the
submitter requests that the information be returned after staff review
and the information is of the type typically returned by the staff
pursuant to Rule 418(b) of Regulation C (Sec. 230.418(b) of this
chapter) or Rule 12b-4 of Regulation 12B (Sec. 240.12b-4 of this
chapter);
(3) Shareholder proposals and all related correspondence submitted
pursuant to Rule 14a-8 of the Exchange Act (Sec. 240.14a-8 of this
chapter);
* * * * *
(8) Filings made with the Commission's Regional or District
Offices;
* * * * *
(10) Promotional and Sales Material submitted pursuant to
Securities Act Industry Guide 5 (Sec. 229.801(e) of this chapter) or
otherwise supplementally furnished for review by the staff of the
Division of Corporation Finance; and sales literature submitted under
Rule 24b-2 of the Investment Company Act (Sec. 270.24b-2 of this
chapter);
* * * * *
(18) Form F-6 (Sec. 239.36 of this chapter);
(19) Annual reports filed with the Commission by indenture trustees
pursuant to Section 313 of the Trust Indenture Act (15 U.S.C. 77mmm);
(20) Applications for an exemption from Exchange Act reporting
obligations filed pursuant to Section 12(h) of the Exchange Act (15
U.S.C. 78l(h)); and
(21) Written information concerning employee benefit plans required
to be filed with the Commission pursuant to Rule 16b-3(b)(2)(ii) of the
Exchange Act (Sec. 240.16b-3(b)(2)(ii) of this chapter).
13. By amending Sec. 232.102 by revising paragraphs (a) and (e), to
read as follows:
Sec. 232.102 Exhibits.
(a) Exhibits to an electronic filing that have not previously been
filed with the Commission shall be filed in electronic format, absent a
hardship exemption. Previously filed exhibits, whether in paper or
electronic format, may be incorporated by reference into an electronic
filing to the extent permitted by Rule 24 of the Commission's Rules of
Practice (Sec. 201.24 of this chapter), Rule 411 under the Securities
Act (Sec. 230.411 of this chapter), Rule 12b-23 or 12b-32 under the
Exchange Act (Sec. 240.12b-23 or Sec. 240.12b-32 of this chapter), Rule
22 under the Public Utility Holding Company Act (Sec. 250.22 of this
chapter), Rules 0-4, 8b-23, and 8b-32 under the Investment Company Act
(Sec. 270.0-4, Sec. 270.8b-23 and Sec. 270.8b-32 of this chapter) and
Rule 303 of Regulation S-T (Sec. 232.303). An electronic filer may, at
its option, restate in electronic format an exhibit incorporated by
reference that originally was filed in paper format.
Note: Exhibits to a Commission schedule filed pursuant to
Section 13 or 14(d) of the Exchange Act may be filed in paper under
cover of Form SE where such exhibits previously were filed in paper
(prior to a registrant's becoming subject to mandated electronic
filing or pursuant to a hardship exemption) and are required to be
refiled pursuant to the schedule's general instructions. See Rule
311(b) of Regulation S-T (17 CFR 232.311(b)).
* * * * *
(e) Notwithstanding the provisions of paragraphs (a) through (d) of
this section, after the date which is three years following a
registrant's phase-in date, any incorporation by reference by a
registered investment company or a business development company shall
relate only to documents which have been filed in electronic format,
unless
(1) The document has been filed in paper pursuant to a hardship
exemption (Secs. 232.201 and 232.202 of this chapter) and any required
confirming copy has been submitted or
(2) The document is an exhibit, filed in paper in accordance with
applicable rules, to Form N-SAR being incorporated by reference only
into another Form N-SAR filing.
* * * * *
14. By amending Sec. 232.302 by revising paragraph (b) and adding
paragraph (c), to read as follows:
Sec. 232.302 Signatures.
(a) * * *
(b) Each signatory to an electronic filing shall manually sign a
signature page or other document authenticating, acknowledging or
otherwise adopting his or her signature that appears in typed form
within the electronic filing. Such document shall be executed before or
at the time the electronic filing is made and shall be retained by the
filer for a period of five years. Upon request, an electronic filer
shall furnish to the Commission or its staff a copy of any or all
documents retained pursuant to this section.
(c) Where the Commission's rules require a registrant to furnish to
a national securities exchange or national securities association paper
copies of a document filed with the Commission in electronic format,
signatures to such paper copies may be in typed form.
15. By amending Sec. 232.303 by adding paragraphs (a)(3) and (a)(4)
to read as follows:
Sec. 232.303 Incorporation by reference.
(a) * * *
(3) For a registered investment company or a business development
company making an electronic submission more than three years after its
phase-in date, documents that have not been filed in electronic format,
unless:
(i) The document has been filed in paper pursuant to a hardship
exemption (Secs. 232.201 and 232.202 of this chapter) and any required
confirming copy has been submitted or
(ii) The document is an exhibit, filed in paper in accordance with
applicable rules, to Form N-SAR being incorporated by reference into
another Form N-SAR filing.
(4) Any Financial Data Schedule required under Rule 483 under the
Securities Act of 1933 (Sec. 230.483 of this chapter).
* * * * *
16. By amending Sec. 232.304 by revising paragraphs (a) and (d) to
read as follows:
Sec. 232.304 Graphic and image material.
(a) If an electronic filing omits graphic or image material
included in the paper version of the document, the electronic version
shall include a fair and accurate narrative description or tabular
representation of the omitted material. Such descriptions or
representations may be included in the text of the electronic filing
where the graphic or image material appears in the paper version, or
they may be listed in an appendix to the electronic filing. Differences
between the electronic and paper versions of the document such as
pagination, color, type size or style, or corporate logo need not be
described.
* * * * *
(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), 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 the formatting requirements of the EDGAR Filer Manual.
Registrants also shall submit supplementally a paper copy of the
performance graph to their Branch Chief in the Division of Corporation
Finance.
17. By amending Sec. 232.306 by revising the first sentence of the
note following paragraph (a), to read as follows:
Sec. 232.306 Foreign language documents and symbols.
* * * * *
Note: With respect to submission of an electronic filer's latest
annual budget required to be filed as Exhibit B in Form 18
(Sec. 249.218 of this chapter) or as Exhibit (c) in Form 18-K
(Sec. 249.318 of this chapter), for foreign governments and
political subdivisions thereof, if an English version of such
filer's last annual budget as presented to its legislative body has
been prepared, it shall be filed electronically. * * *
* * * * *
18. By amending Sec. 232.311 by revising paragraphs (b), (c), and
(d) and in paragraphs (e), (f) and (g), by replacing the references to
``Form S-E'' with references to ``Form SE'', and in paragraph (h)(2),
by revising the reference ``paragraphs (a) through (c)'' to read
``paragraphs (a) through (g)'' to read as follows:
Sec. 232.311 Documents submitted in paper under cover of Form SE.
* * * * *
(b) Exhibits to a Commission schedule filed pursuant to Section 13
or 14(d) of the Exchange Act may be filed in paper under cover of Form
SE where such exhibits previously were filed in paper (prior to a
registrant's becoming subject to mandated electronic filing or pursuant
to a hardship exemption) and are required to be refiled pursuant to the
schedule's general instructions.
(c) Exhibits consisting of all or portions of an annual statement
provided to state insurance regulators (e.g., Schedules O and P),
required to be filed pursuant to Item 601(b)(28) of Regulation S-B or
Regulation S-K (Sec. 228.601(b)(28) or Sec. 229.601(b)(28) of this
chapter, respectively), may be filed in paper under cover of Form SE.
(d) Exhibits to Form N-SAR (Sec. 274.101 of this chapter), other
than the Financial Data Schedule required under Rule 483 under the
Securities Act of 1933 (Sec. 230.483 of this chapter), may be filed in
paper under cover of Form SE.
* * * * *
19. By amending Sec. 232.901 by adding a note following the
introductory text of paragraph (a), by adding a note following
paragraph (c)(4), by revising the heading and introductory text of
paragraph (d), and by revising paragraph (d)(2), to read as follows:
Sec. 232.901 Division of Corporation Finance EDGAR Transition.
(a) * * *
Note: Registrants become subject to mandated electronic filing
on their phase-in date. Consequently, all documents required to be
filed in electronic format pursuant to Rule 101 of Regulation S-T
(Sec. 232.101) filed on or after a registrant's phase-in date must
be filed electronically, absent a hardship exemption, even if the
transaction to which a filing relates was commenced in paper before
the phase-in date and is still in process on the registrant's phase-
in date. See Rule 101(a)(1)(iii) of Regulation S-T, that provides
for optional paper filing of a Form 10-K or 10-KSB if it is the
first document filed after a registrant's phase-in date.
* * * * *
(c) * * *
(4) * * *
Note: While companies subject to mandated electronic filing
generally may choose to electronically file Schedules 13D and 13G
with respect to a paper filer, domestic electronic filers are
restricted from doing so with respect to foreign private issuers
because EDGAR currently requires an IRS tax identification number to
be inserted for the subject company as a prerequisite to acceptance
of the filing. Such filings must be made in paper until the EDGAR
system is modified to process them electronically.
* * * * *
(d) Paper Copies of Electronic Filings. Electronic filers shall
submit to the Commission a paper copy of their first electronic filing,
as follows:
(1) * * *
(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 901(d) OF
REGULATION S-T
* * * * *
20. By amending Sec. 232.902 by adding a note following paragraph
(a), by revising the heading and introductory text of paragraph (g),
and by revising paragraphs (e) and (g)(2), to read as follows:
Sec. 232.902 Division of Investment Management EDGAR Transition.
(a) * * *
Note: Registrants become subject to mandated electronic filing
on their phase-in date. Consequently, all documents required to be
filed in electronic format pursuant to Rule 101 of Regulation S-T
(Sec. 232.101) filed on or after a registrant's phase-in date must
be filed electronically, absent a hardship exemption, even if the
transaction to which a filing relates was commenced in paper before
the phase-in date and is still in process on the registrant's phase-
in date. See paragraph (e) of this section that provides for
optional paper filing of certain filings under Rule 497 under the
Securities Act of 1933 (Sec. 230.497 of this chapter).
* * * * *
(e) Required electronic filing for Phased-in Filers. A registrant
that is phased in, under either the mandatory electronic filing
provisions of paragraphs (a), (b), or (c) or by reassignment under
paragraph (d) of this section, shall file electronically all filings
which are mandated electronic submissions under Rule 101 of Regulation
S-T (Sec. 232.101 of this chapter) and which are made on or after a
registrant's phase-in date, Provided, however, that a registrant need
not file electronically a filing, after the Registrant's phase-in date,
under Rule 497 under the Securities Act of 1933 (Sec. 230.497 of this
chapter) that relates solely to a registration statement or post-
effective amendment filed prior to the registrant's phase-in date and
is submitted for the purpose of filing the definitive prospectus and/or
statement of additional information for that registration statement or
amendment. A registrant submitting electronically a Rule 497 filing for
the purpose of ``stickering'' its prospectus and/or statement of
additional information need not submit electronically the prospectus
and/or statement of additional information to which the ``sticker''
relates, provided that the text of the prospectus and/or statement of
additional information has already been filed electronically as a
public document.
* * * * *
(g) Paper Copies of Electronic Filings. Electronic filers shall
submit to the Commission a paper copy of their first electronic filing,
as follows:
(1) * * *
(2) The paper copy shall be sent to the following address: OFIS
Filer Support, SEC Operations Center, 6432 General Green Way,
Alexandria, Virginia 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 902(g) OF
REGULATION S-T
* * * * *
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
21. 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.
* * * * *
Note: The text of the following form does not and the amendments
will not appear in the Code of Federal Regulations.
22. By amending Form S-6 (referenced in Sec. 239.16) by revising
Instruction 5 to Instructions as to Exhibits to read as follows:
Instructions and Form
Form S-6
For Registration Under the Securities Act of 1933 of Securities
of Unit Investment Trusts Registered on Form N-8B-2.
* * * * *
INSTRUCTIONS AS TO EXHIBITS
* * * * *
5. When any amendment to a registration statement on this form
is filed by an electronic filer, a Financial Data Schedule meeting
the requirements of Rule 483 under the Securities Act of 1933
(Sec. 230.483 of this chapter).
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
23. 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, 78i, 78j, 78l, 78m, 78n, 78o, 78p,
78s, 78w, 78x, 78ll(d), 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-37,
80b-3, 80b-4 and 80b-11, unless otherwise noted.
* * * * *
24. By amending Sec. 240.12b-15 by adding three sentences at the
end of the section, to read as follows:
Sec. 240.12b-15 Amendments.
* * * The requirements of the form being amended shall govern the
number of copies to be filed in connection with a paper format
amendment. Electronic filers satisfy the provisions dictating the
number of copies by filing one copy of the amendment in electronic
format. See Rule 309 of Regulation S-T (Sec. 232.309 of this chapter).
Sec. 240.12b-25 [Amended]
25. By amending Sec. 240.12b-25 by removing the parenthetical
phrase ``(required to be filed on Form 8)'' from paragraph (e)(2).
26. 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) or Schedule 13G (Sec. 240.13d-102) shall restate the
entire text of the Schedule 13D or Schedule 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 filed in electronic format.
* * * * *
27. By amending Sec. 240.14a-4 by adding a note following paragraph
(a)(3), to read as follows:
Sec. 240.14a-4 Requirements as to proxy.
(a) * * *
(3) * * *
Note to electronic filers: Electronic filers shall satisfy the
filing requirements of Rule 14a-6(a) or (b) (Sec. 240.14a-6 (a) or
(b)) with respect to the form of proxy by filing the form of proxy
as an appendix at the end of the proxy statement. Forms of proxy
shall not be filed as exhibits or separate documents within an
electronic submission.
* * * * *
28. By amending Sec. 240.14a-6 by adding a sentence to the end of
paragraph (m), to read as follows:
Sec. 240.14a-6 Filing requirements.
* * * * *
(m) * * * The cover page required by this paragraph need not be
distributed to security holders.
29. By amending Sec. 240.14a-101 by revising the cover page after
the section heading and before the notes, and by revising paragraph (b)
of Item 1 and adding a sentence to the end of Instruction 3 to Item 10,
to read as follows:
Sec. 240.14a-101 Schedule 14A. Information required in proxy
statement.
Schedule 14A Information
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange
Act of 1934 (Amendment No. )
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted
by Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Sec. 240.14a-11(c) or
Sec. 240.14a-12
----------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
----------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the
Registrant)
Payment of Filing Fee (Check the appropriate box):
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1),
14a-6(i)(2) or Investment Company Act Rule 20a-1(c).
[ ] $500 per each party to the controversy pursuant to
Exchange Act Rule 14a-6(i)(3).
[ ] Fee computed on table below per Exchange Act Rules 14a-
6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction
applies:
----------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
----------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on
which the filing fee is calculated and state how it was determined):
----------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
----------------------------------------------------------------------
(5) Total fee paid:
----------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
of its filing.
(1) Amount Previously Paid:
----------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
----------------------------------------------------------------------
(3) Filing Party:
----------------------------------------------------------------------
(4) Date Filed:
Notes:
* * * * *
Item 1. Date, time and place information.
* * * * *
(b) On the first page of the proxy statement, as delivered to
security holders, state the approximate date on which the proxy
statement and form of proxy are first sent or given to security
holders.
* * * * *
Item 10. Compensation Plans.
* * * * *
Instructions
* * * * *
3. * * * Electronic filers shall file with the Commission a copy
of such written plan document in electronic format as an appendix to
the proxy statement. It need not be provided to security holders
unless it is a part of the proxy statement.
* * * * *
Sec. 240.14c-3 [Amended]
30. By amending Sec. 240.14c-3 by removing the note following
paragraph (b).
31. By amending Sec. 240.14c-5 by adding a sentence at the end of
paragraph (h), to read as follows:
Sec. 240.14c-5 Filing requirements.
* * * * *
(h) * * * The cover page required by this paragraph need not be
distributed to security holders.
32. By amending Sec. 240.14c-101 by revising the cover page after
the section heading and before the note to read as follows:
Sec. 240.14c-101 Schedule 14C. Information required in information
statement.
Schedule 14C Information
Information Statement Pursuant to Section 14(c) of the Securities
Exchange Act of 1934 (Amendment No. )
Check the appropriate box:
[ ] Preliminary Information Statement
[ ] Confidential, for Use of the Commission Only (as permitted
by Rule 14c-5(d)(2))
[ ] Definitive Information Statement
----------------------------------------------------------------------
(Name of Registrant As Specified In Charter)
Payment of Filing Fee (Check the appropriate box):
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), or 14c-5(g).
[ ] Fee computed on table below per Exchange Act Rules 14c-
5(g) and 0-11.
(1) Title of each class of securities to which transaction
applies:
----------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
----------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on
which the filing fee is calculated and state how it was determined):
----------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
----------------------------------------------------------------------
(5) Total fee paid:
----------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
of its filing.
(1) Amount Previously Paid:
----------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
----------------------------------------------------------------------
(3) Filing Party:
----------------------------------------------------------------------
(4) Date Filed:
----------------------------------------------------------------------
Note:
* * * * *
33. By amending Sec. 240.14e-1 by revising the first sentence of
paragraph (e), to read as follows:
Sec. 240.14e-1 Unlawful tender offer practices.
* * * * *
(e) Electronic filings. If a bidder is required (or elects to file
its tender offer documents in electronic format as provided by Rule
901(c)(1) of Regulation S-T (Sec. 232.901(c)(1) of this chapter)), the
periods of time required by paragraphs (a) and (b) of this section
shall be tolled for any period during which it has failed to file in
electronic format, absent a hardship exemption (Secs. 232.201 and
232.202 of this chapter), the Schedule 14D-1 Tender Offer Statement
[Sec. 240.14d-100 of this chapter], any tender offer material specified
in paragraph (a) of Item 11 of that Schedule, and any amendments
thereto. * * *
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
34. The authority citation for Part 249 continues to read in part
as follows:
Authority: 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
Sec. 249.208a [Amended]
35. By amending Form 8-A (referenced in Sec. 249.208a), Instruction
II.2 of Instructions as to Exhibits by revising the phrase ``pursuant
to Instruction I above,'' to read ``pursuant to Instruction 3,
above,''.
Note: The text of Form 8-A is not and the amendment will not
appear in the Code of Federal Regulations.
Sec. 240.308 [Amended]
36. By amending Form 8-K (referenced in Sec. 240.308) by revising
the first sentence of paragraph (a)(4)(iv) of Item 7, to read as
follows:
Note: The text of Form 8-K is not and the amendment will not
appear in the Code of Federal Regulations.
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934.
* * * * *
Item 7. Financial Statements and Exhibits.
* * * * *
(a) * * *
(4) * * *
(iv) file the required financial statements for an acquired
business as an amendment to this Form as soon as practicable, but
not later than 60 days after the report on Form 8-K must be filed.
* * *
* * * * *
37. By amending Sec. 249.310 by revising the section heading and by
removing the last sentence of the section, to read as follows:
Sec. 249.310 Form 10-K, for annual and transition reports pursuant to
sections 13 or 15(d) of the Securities Exchange Act of 1934.
* * * * *
Sec. 249.310 [Amended]
38. By amending Form 10-K (referenced in Sec. 249.310) by removing
the last sentence of General Instruction A and by revising the second
sentence of General Instruction G.(3), to read as follows:
Note: The text of Form 10-K is not and the amendment will not
appear in the Code of Federal Regulations.
Form 10-K
Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
General Instructions
* * * * *
G. Information to be Incorporated by Reference.
* * * * *
(3) * * * However, if such definitive proxy statement or
information statement is not filed with the Commission in the 120-
day period or is not required to be filed with the Commission by
virtue of Rule 3a12-3(b) under the Exchange Act, the Items
comprising the Part III information must be filed as part of the
Form 10-K, or as an amendment to the Form 10-K, not later than the
end of the 120-day period. * * *
* * * * *
Sec. 249.310 [Amended]
39. By amending Form 10-KSB (referenced in Sec. 249.310b) by
revising the last sentence of General Instruction E.3, to read as
follows:
Note: The text of Form 10-KSB is not and the amendment will not
appear in the Code of Federal Regulations.
Form 10-KSB
* * * * *
General Instructions
* * * * *
E. * * *
3. * * * If the definitive proxy or information statement is not
filed within the 120-day period, the information called for in Part
III information must be filed as part of the Form 10-KSB, or as an
amendment to the Form 10-KSB, not later than the end of the 120-day
period.
* * * * *
Sec. 249.311 [Amended]
40. By amending Form 11-K (referenced in Sec. 249.311) by revising
General Instruction E to read as follows:
Note: The text of Form 11-K is not and the amendment will not
appear in the Code of Federal Regulations.
Form 11-K
For Annual Reports of Employee Stock Purchase, Savings and Similar
Plans Pursuant to Section 15(d) of the Securities Exchange Act of
1934
General Instructions
* * * * *
E. Electronic Filers.
(a) Plans subject to ERISA that file plan financial statements
and schedules prepared in accordance with the financial reporting
requirements of ERISA may file the Form 11-K either in paper or in
electronic format, at the filer's option. See Rule 101(b)(3) of
Regulation S-T (Sec. 232.101(b)(3) of this chapter).
(b) Financial Data Schedules are not required to be submitted in
connection with annual reports on this form. See Item 601(c)(1) of
Regulations S-K and S-B (Sec. 229.601(c)(1) and Sec. 228.601(c)(1),
respectively).
Sec. 249.322 [Amended]
41. By amending Form 12b-25 (referenced in Sec. 249.322 of this
chapter) by amending the second sentence of Instruction 5 by revising
the parenthetical phrase ``(Sec. 232.12(b) of this chapter)'' to read
``(Sec. 232.13(b) of this chapter)''.
PART 250--GENERAL RULES AND REGULATIONS, PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935
42. The authority citation for part 250 continues to read as
follows:
Authority: 15 U.S.C. 79c, 79f(b), 79i(c)(3), 79t unless
otherwise noted.
Sec. 250.111 [Removed]
43. By removing Sec. 250.111.
PART 259--FORMS PRESCRIBED UNDER THE PUBLIC UTILITY HOLDING COMPANY
ACT OF 1935
44. The authority citation for part 259 continues to read as
follows:
Authority: 15 U.S.C. 79e, 79f, 79g, 79j, 79l, 79m, 79n, 79q,
79t.
Sec. 259.56 [Amended]
45. By amending Form U5B (referenced in Sec. 259.5b) by revising
Instructions for Exhibit B, to read as follows:
Note: The text of Form U5B is not and the amendment will not
appear in the Code of Federal Regulations.
Instructions and Form
Form U5B
Registration Statement Filed Pursuant to Section 5 of the Public
Utility Holding Company Act of 1935
* * * * *
Exhibits
* * * * *
Instructions
* * * * *
Exhibit B. With respect to the registrant and each subsidiary
company thereof, furnish a copy of the charter, articles of
incorporation, trust agreement, voting trust agreement, or other
fundamental document of organization, and a copy of its by-laws,
rules and regulations, or other instruments corresponding thereto.
If such documents do not set forth fully the rights, priorities and
preferences of the holders of each class of capital stock described
in the answer to Item 8(b) and those of the holders of any warrants,
options or other securities described in the answer to Item 8(d),
and of any limitations on such rights, there shall also be included
the text appearing on each certificate or a copy of each resolution
or other document establishing or defining such rights and
limitations. The text of each such document shall be in the amended
form effective at the date of filing the registration statement or
shall be accompanied by copies of any amendments to it then in
effect.
* * * * *
Sec. 259.5s [Amended]
46. By amending Form U5S (referenced in Sec. 259.5s) by revising
Exhibit B, to read as follows:
Note: The text of Form U5S is not and the amendment will not
appear in the Code of Federal Regulations.
Instructions and Form
Form U5S
Annual Report
* * * * *
General Instructions
* * * * *
Exhibits
* * * * *
Exhibit B. With respect to the parent holding company and each
subsidiary company thereof, a copy of the charter, articles of
incorporation, trust agreement, voting trust agreement, or other
fundamental document of organization, and a copy of its bylaws,
rules and regulations, or other instruments corresponding thereto.
If such documents do not set forth fully the rights, priorities and
preferences of the holders of each outstanding class of capital
stock and those of the holders of any warrants, options or other
rights to acquire capital stock, and of any limitations on such
rights, there shall also be included the text appearing on each
certificate or a copy of each resolution or other document
establishing or defining such rights and limitations. The text of
each such document shall be in the amended form effective at the
date of filing of the report or shall be accompanied by the text of
any amendments to it then in effect.
* * * * *
Sec. 259.101 [Amended]
47. By amending Form U-1 (referenced in Sec. 259.101) by revising
Instruction A to Instructions as to Exhibits, to read as follows:
Note: The text of Form U-1 is not and the amendment will not
appear in the Code of Federal Regulations.
Instructions and Form
Form U-1
Application or Declaration Under the Public Utility Holding Company Act
of 1935
* * * * *
Instructions as to Exhibits
* * * * *
A. The constituent instruments, or in the case of certificates,
the text appearing on the constituent instrument, defining or
limiting the rights of the holders of each class of securities
proposed to be issued, sold, acquired, guaranteed, assumed, or
modified, including any amendments thereto presently proposed. The
text of tentative drafts, as a minimum, shall be filed with the
original statement.
* * * * *
PART 260--GENERAL RULES AND REGULATIONS, TRUST INDENTURE ACT OF
1939
48. 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.
Sec. 260.0-12 [Removed]
49. Section 260.0-12 is removed.
PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940
50. The general authority citation for part 270 continues to read
as follows:
Authority: 15 U.S.C. 80a-1 et seq., 80a-37, 80a-39, unless
otherwise noted;
51. By revising section 270.20a-4 to read as follows:
Sec. 270.20a-4 Exhibit Required for Certain Transactions: Electronic
Filings.
If action is to be taken with respect to any transaction described
in Items 11, 12, or 14 of Schedule 14A (Sec. 240.14a-101), and the
statement on Schedule 14A or Schedule 14C (Sec. 240.14c-101) is filed
electronically, a Financial Data Schedule meeting the requirements of
Rule 483 under the Securities Act of 1933 (Sec. 230.483 of this
chapter) shall be included as an exhibit.
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
PART 259--FORMS PRESCRIBED UNDER THE PUBLIC UTILITY HOLDING COMPANY
ACT OF 1935
PART 269--FORMS PRESCRIBED UNDER THE TRUST INDENTURE ACT OF 1939
PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1940
52. The authority citation for part 269 continues to read as
folllows:
Authority: 15 U.S.C. 77ddd(c), 77eee, 77ggg, 77hhh, 77iii,
77jjj, 77sss, 78ll(d), unless otherwise noted.
53. The authority citation for part 274 continues to read as
follows:
Authority: 15 U.S.C. 80a-1, et seq., unless otherwise noted.
Secs. 239.64, 249.444, 259.603, 269.8 and 274.403 [Amended]
54. By amending Form SE (referenced in Secs. 239.64, 249.444,
259.603, 269.8, and 274.403 of this chapter) by revising General
Instruction II.A to read as follows:
Note: The text of Form SE is not and the amendment will not
appear in the Code of Federal Regulations.
Form SE
Form For Submission of Paper Format Exhibits By Electronic Filers
* * * * *
General Instructions to Form SE
* * * * *
II. Preparation and Filing of Form
A. Four complete copies of Form SE and three complete copies of
exhibits filed thereunder shall be submitted in paper format.
* * * * *
Secs. 239.65, 249.447, 259.604, 269.10 and 274.404 [Amended]
55. By amending Form TH (referenced in Secs. 239.65, 249.447,
259.604, 269.10, and 274.404 of this chapter) by revising General
Instruction 2, to read as follows:
Note: The text of Form TH is not and the amendment will not
appear in the Code of Federal Regulations.
Form TH
Notification of Reliance on Temporary Hardship Exemption
* * * * *
General Instructions
* * * * *
2. Four signed copies of this form shall accompany the paper
format document and shall be filed within one business day after the
date upon which the document filed in paper originally was to be
filed electronically.
* * * * *
Dated: July 8, 1994.
By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-17104 Filed 7-14-94; 8:45 am]
BILLING CODE 8010-01-P