[Federal Register Volume 59, Number 163 (Wednesday, August 24, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-20624] [[Page Unknown]] [Federal Register: August 24, 1994] ======================================================================= ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 200, 230, 239, 270 AND 274 [Release Nos. 33-7083; IC-20486; File No. S7-26-93] RIN 3235-AF96 Post-Effective Amendments to Investment Company Registration Statements AGENCY: Securities and Exchange Commission. ACTION: Final rule and form amendments; rescission of rule. ----------------------------------------------------------------------- SUMMARY: The Commission is adopting rule and form amendments to revise the procedures by which investment companies, including insurance company separate accounts, file post-effective amendments to registration statements. The Commission also is adopting a rule providing procedures by which closed-end interval companies file post- effective amendments and subsequent registration statements. The amendments simplify the operation of the current rules and expand the conditions under which post-effective amendments filed by investment companies are permitted to become effective automatically. EFFECTIVE DATE: The amendments will become effective on October 11, 1994. FOR FURTHER INFORMATION CONTACT: Janice M. Bishop, Attorney, or Kenneth J. Berman, Deputy Office Chief, (202) 942-0721, Office of Disclosure and Adviser Regulation, Division of Investment Management, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549. SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission (``Commission'') today is adopting: (1) amendments to rule 485 [17 CFR 230.485] under the Securities Act of 1933 [15 U.S.C. 77a et seq.] (``Securities Act''), the rule under which post-effective amendments to registration statements filed by open-end management investment companies (``mutual funds'') and unit investment trusts (``UITs'') (collectively, ``funds'') become effective automatically; (2) rule 486 [17 CFR 230.486], which establishes procedures similar to rule 485 for closed-end interval funds;1 (3) conforming amendments to Form N-1A [17 CFR 239.15A, 274.11A], Form N-2 [17 CFR 239.14, 274.11a-1], Form N- 3 [17 CFR 274.11b and 239.17a], and Form N-4 [17 CFR 274.11c and 239.17b], the forms used by mutual funds, closed-end management investment companies and insurance company separate accounts that offer variable annuity contracts, to satisfy the registration statement requirements of the Investment Company Act of 1940 [15 U.S.C. 80a-1 et seq.] (``1940 Act'') and to register securities under the Securities Act, and Form S-6 [17 CFR 239.16], the form used by UITs to register securities under the Securities Act; and (4) technical and conforming amendments to rule 6e-3(T) under the 1940 Act [17 CFR 270.6e-3(T)], rule 487 under the Securities Act [17 CFR 230.487], and rule 30-5 of the Commission's Rules of Practice and Investigations [17 CFR 200.30- 5]. --------------------------------------------------------------------------- \1\Current rule 486, which is the counterpart to rule 485 for post-effective amendments filed by insurance company separate accounts that issue variable annuity and variable life insurance contracts, is being rescinded. These separate accounts are eligible to use rule 485, as amended. New rule 486 was originally proposed as rule 485a in Investment Company Act Release No. 19391 (Apr. 7, 1993) [58 FR 19361 (Apr. 14, 1993)]. The Commission is adopting separately a related amendment to rule 415 under the Securities Act that will permit closed-end interval funds to offer securities on a delayed or continuous basis. See Investment Company Act Rel. No. 20487. --------------------------------------------------------------------------- I. Executive Summary The Commission is amending rule 485 under the Securities Act. Rule 485 permits post-effective amendments to registration statements filed by mutual funds and UITs to become effective automatically (i.e., without Commission or staff action). The amendments simplify the operation of the current rules and expand the conditions under which post-effective amendments filed under paragraph (b) of rule 485 by mutual funds and UITs are permitted to become effective immediately (``B-Amendments''). The amendments to rule 485 permit funds to file B-Amendments for seven additional purposes--four purposes as originally proposed by the Commission and three purposes as suggested by commenters. These purposes include delaying the effective date of a previously-filed post-effective amendment, updating the fund's discussion of its performance, revising portfolio manager disclosure, and adding interim financial statements. The Commission may suspend the ability of a fund to file B-Amendments for a specified time if the fund has filed a B- Amendment under circumstances in which paragraph (b) is not available. In addition, the Commission is amending rule 485 to provide that a post-effective amendment filed pursuant to paragraph (a) (``A- Amendment'') that adds a new series will not become effective until the seventy-fifth day after filing. Finally, the Commission is adopting new rule 486 to permit closed- end management investment companies and business development companies that periodically repurchase their shares in accordance with rule 23c-3 under the 1940 Act [17 CFR 270.23c-3] to file certain post-effective amendments and registration statements that become effective automatically. II. Background On September 21, 1993, the Commission issued a release proposing for public comment amendments to rule 485 under the Securities Act (``Proposing Release'').2 Rule 485 permits post-effective amendments to registration statements filed by mutual funds and UITs to become effective automatically (i.e., without Commission or staff action). Post-effective amendments eligible to be filed under paragraph (b) of rule 485 (``B-Amendments''), which only may be for one or more of the four purposes specified by the rule,3 may become effective immediately upon filing or, at the option of the fund, up to 20 days after filing. All other post-effective amendments are filed under paragraph (a) of rule 485 (``A-Amendments''), and become effective 60 days after filing or, at the option of the fund, up to 80 days after filing. The 60-day period provides the staff of the Division of Investment Management (``Division'') with time to review and comment on the post-effective amendments. The amendments will simplify the operation of the current rules and expand the conditions under which post-effective amendments filed by mutual funds and UITs are permitted to become effective immediately. --------------------------------------------------------------------------- \2\Investment Company Act Rel. No. 19722 (Sept. 21, 1993) [58 FR 50291 (Sept. 27, 1993)]. \3\These purposes include: increasing the amount of securities offered; registering an indefinite amount of securities as permitted by section 24(f) of the 1940 Act [15 U.S.C. 80a-24(f)]; updating financial statements within four to six months after the effective date of the registration statement; and amending the registration statement to update financial statements ``and other information'' as required by section 10(a)(3) of the Securities Act and ``in conjunction therewith'' to make ``such other non-material changes as the registrant deems appropriate.'' --------------------------------------------------------------------------- The Commission received 15 comment letters on the proposed amendments.4 In general, the commenters supported the adoption of the proposed amendments and stated that the revisions would improve the process by which mutual funds file post-effective amendments. Most of the commenters, however, believed that certain aspects of the proposal should be modified or eliminated. The Commission is adopting the proposed amendments and related form changes, modified to reflect many of the comments received. --------------------------------------------------------------------------- \4\All comment letters, including a summary of the comments prepared by the staff, have been placed in Public Comment File No. S7-26-93. --------------------------------------------------------------------------- III. Discussion A. Additional Purposes for Filing B-Amendments Under rule 485, as amended, a fund may file a B-Amendment for seven additional purposes. The first four purposes, which are being adopted substantially as proposed, were supported by most of the commenters. The remaining purposes were recommended by commenters in response to the Commission's request for comment on additional purposes for which B-Amendments would be appropriate. 1. Delaying the Effective Date of a Post-Effective Amendment Under Paragraph (a) The Commission is adopting new paragraph (b)(1)(v) to permit funds to use a B-Amendment to delay the effective date of an A-Amendment for up to 30 days (rather than 20 days, as proposed). Previously, a fund had to file another A-Amendment to delay the effectiveness of an A- Amendment beyond the 60- to 80-day period and then had to request that the staff accelerate the effective date of the second A-Amendment if the desired delay was for less than 60 days.5 --------------------------------------------------------------------------- \5\A new note to rule 485 clarifies how to determine the date of automatic effectiveness. The note explains that funds should count the day following the filing date as the first date of the time period. For example, an A-Amendment filed on November 1 would become effective on December 31. --------------------------------------------------------------------------- 2. Disclosure in Response to Item 5A of Form N-1A The Commission is adopting paragraph (b)(1)(vi), as proposed, to allow funds to file a B-Amendment to include a description of, or changes to, the management's discussion of fund performance provided in response to Item 5A of Form N-1A. The information provided in response to this item will change every year, and permitting these changes to be made pursuant to a B-Amendment will alleviate administrative burdens on both funds and the Commission.6 --------------------------------------------------------------------------- \6\The information required by Item 5A may be omitted from the prospectus if it is included in the fund's annual report. --------------------------------------------------------------------------- 3. Non-Material Changes to the Registration Statement The Commission is adopting paragraph (b)(1)(vii), as proposed, to permit B-Amendments to be filed to make any non-material change to the registration statement at any time. Previously, rule 485 only permitted certain non-material changes to be made in conjunction with an annual update of the registration statement. The Commission solicited comment whether the ``materiality'' standard has proved workable for funds and whether a different standard would provide greater certainty while facilitating staff review of post-effective amendments that may raise legal or disclosure issues. Several commenters stated that the materiality standard has proved workable and that funds and their counsel are accustomed to making determinations as to materiality when drafting disclosure for prospectuses and statements of additional information. One commenter asked whether, under the materiality standard, rule 485 permits use of a B-Amendment for the purpose of converting a single prospectus that relates to several series funds to multiple prospectuses each of which relates to one or more series.7 The Commission believes that the changes made in such a post-effective amendment (or in a post-effective amendment that combines several series that are being sold pursuant to separate prospectuses into one prospectus) generally would not be material and that the post-effective amendment could be filed as a B- Amendment.8 --------------------------------------------------------------------------- \7\Mutual funds often organize themselves as series companies and offer investors an opportunity to invest in one or more ``portfolios,'' each of which has a specific investment objective. The mutual fund will offer a series or class of shares that represents an interest in the portfolio in which the investor desires to participate. \8\Of course, other revised disclosure may be included in such a post-effective amendment that would be material and preclude the use of a B-Amendment. --------------------------------------------------------------------------- 4. Discretionary Authority to Permit Automatic Effectiveness The Commission is adopting paragraph (b)(1)(ix), as proposed, to allow the Commission, on a discretionary basis, to permit certain types of post-effective amendments not otherwise eligible to be filed as B- Amendments to become effective automatically without opportunity for staff review. Requests for permission to file post-effective amendments under this new paragraph should be made by a letter to the Division of Investment Management.9 --------------------------------------------------------------------------- \9\As discussed in the Proposing Release, exercise of this authority would permit, for example, substantially identical revisions contained in post-effective amendments filed by a number of funds in a fund complex to become effective upon filing without Division review if the Division had previously had an opportunity to review one of them. Four commenters suggested codifying this standard as an additional purpose for filing a B-Amendment. The Commission believes that it is preferable to address these situations on a case-by-case basis since revised language in the prospectus of one type of a fund may not constitute full disclosure in a prospectus of another type of fund. --------------------------------------------------------------------------- 5. Adding Interim Financial Statements As suggested by two commenters, the Commission is amending paragraph (b)(1)(iii) to allow a fund to file a B-Amendment for the purpose of amending the registration statement to add interim financial statements as required by applicable accounting rules.10 Rule 3-18 of Regulation S-X [17 CFR 210.3-18] requires a fund to add interim financial statements if the fund files a post-effective amendment under rule 485(a) that it expects to become effective more than 245 days after the date of the fund's balance sheet.11 Under new paragraph (b)(1)(iii), a post-effective amendment otherwise eligible to be filed as a B-Amendment would not lose its eligibility because it contains interim financial statements. --------------------------------------------------------------------------- \1\0Previously, paragraph (b)(1)(iii) only allowed a fund to file a B-Amendment to bring annual financial statements up to date under section 10(a)(3) of the Securities Act [15 U.S.C. 77j(a)(3)]. \1\1In addition, a UIT could file a post-effective amendment under rule 485(a) that it expects to become effective more than 135 days after the date of the UIT's balance sheet. Rule 3-12 of Regulation S-X [17 CFR 210.3-12] requires the UIT to include interim financial statements in such an amendment. --------------------------------------------------------------------------- 6. Disclosing a Change in Portfolio Manager As suggested by one commenter, the Commission is amending proposed paragraph (b)(1)(vi) to permit a fund to file a B-Amendment to reflect a change in portfolio managers.12 --------------------------------------------------------------------------- \1\2Item 5(c) of Form N-1A requires funds (except money market funds and index funds) to disclose the name and title of the person or persons employed by or associated with the fund or its adviser ``who are primarily responsible for the day-to-day management of the fund's portfolio.'' A fund would generally inform investors of a change in the portfolio manager by means of a ``sticker'' to the fund's prospectus. The sticker would be filed with the Commission in accordance with rule 497 under the Securities Act [17 CFR 270.497]; a post-effective amendment to the registration statement would not be necessary at that time. Investment Company Act Rel. No. 19382 (Apr. 6, 1993) [58 FR 68 (Apr. 12, 1993)] at 7. The change would typically be reflected in the next post-effective amendment filed by the fund. --------------------------------------------------------------------------- 7. Separate Account UITs As suggested by two commenters, the Commission is adding a new paragraph (b)(1)(viii) to permit certain separate accounts to file B- Amendments in certain additional circumstances. A separate account offering variable insurance products may be organized as a UIT (``trust account'') investing all of its assets in an open-end management investment company (``underlying fund''). The trust account prospectus discloses information about the separate account and the insurance contracts being offered and also contains summary information about the underlying fund. Paragraph (b)(1)(viii) permits a trust account to amend disclosure pursuant to a B-Amendment to reflect amendments to the registration statement of an underlying fund. For example, a trust account could file a B-Amendment to add summary disclosure about an additional sub-account that would hold the shares of a new underlying fund. In such instance, the staff would have had the opportunity to review the A-Amendment filed by the underlying fund. B. Conditions for Filing B-Amendments As proposed, the Commission is deleting the list of events in paragraph (b)(2) that preclude the filing of a B-Amendment. Funds will continue to be required to represent that no material event requiring disclosure in the prospectus has occurred (other than one of the events specified in paragraph (b)(1)).13 Commenters agreed that the list of events has rarely, if ever, been relevant to determining whether a filing could be made under paragraph (b), since the events described would clearly result in material changes. --------------------------------------------------------------------------- \1\3As under the current rule, if counsel prepares or reviews the B-Amendment, counsel must furnish a written representation that the amendment does not contain disclosure that would render it ineligible to become effective under paragraph (b) of this section. Paragraph (b)(5) of rule 485. --------------------------------------------------------------------------- One of the proposed amendments would have precluded a fund from filing a B-Amendment if the fund had failed to file a report on Form N- SAR for the most recent period for which a filing is required. This proposal was criticized as unnecessary and potentially unfair to funds. The Commission was urged to use enforcement remedies to punish late filers rather than condition rule 485, as proposed. Upon reconsideration, the Commission has decided not to adopt the proposed limitation on use of paragraph (b). Funds are reminded that failure to timely file Form N-SAR is a violation of Section 30 of the 1940 Act [15 USC 80a-30] for which penalties are prescribed.14 --------------------------------------------------------------------------- \1\4See Section 42 of the 1940 Act [15 U.S.C. 80a-41]. --------------------------------------------------------------------------- C. Extending Time Period for B-Amendments As suggested by several commenters, the Commission is amending paragraph (b) of the rule to permit B-Amendments to become effective up to 30 days (rather than 20 days, as proposed) after filing. D. Suspension of Use of 485(b) The Commission is adopting, as proposed, a new provision that will permit the Commission to suspend a fund's ability to use paragraph (b) if a fund designates an amendment as a B-Amendment when it is not eligible to use that paragraph.15 The amendment is intended to deter misuse of paragraph (b) and is similar to a provision in rule 487 under which registration statements of UITs may become effective automatically.16 --------------------------------------------------------------------------- \1\5Paragraph (c)(2). The Commission is also amending the Rule 30-5 of the Rules of Organization and Program Management to delegate to the Division Director the authority to issue suspensions. \1\6Paragraph (c)(2) of rule 487. --------------------------------------------------------------------------- Two commenters opposed the provision, one of which asserted that misuse of rule 485 stems from uncertainty over the availability of paragraph (b). The amendments to paragraph (b) (discussed above) that are being adopted today should clarify the requirements for filing B- Amendments. Funds and their counsel who are unsure whether a particular amendment might preclude use of paragraph (b) are encouraged to contact the Division staff prior to filing the amendment.17 --------------------------------------------------------------------------- \1\7B-Amendments are generally not reviewed by the staff and the misuse of paragraph (b) may not be discovered for some time after the B-Amendment has become effective. Under paragraph (c)(2) of rule 485, as amended, the suspension would become effective on, and the period of the suspension measured from, the date on which the Commission furnishes written notice of the suspension and not on the date on which the improper B-Amendment was filed. Paragraph (c)(2) of rule 485, as amended. --------------------------------------------------------------------------- E. Post-Effective Amendments Adding Series The Commission is amending rule 485 to provide that an A-Amendment adding a new series will not become effective until 75 days after filing. Previously, A-Amendments became effective 60 days after filing or, at the option of the fund, up to 80 days after filing. The Commission proposed an amendment to rule 485 to prohibit funds from using rule 485 for amendments that add a new series to an existing open-end investment company. Under the proposal, a post-effective amendment that added a series would not become effective automatically, but would, under section 8(c) of the Securities Act [15 U.S.C. 77h(c)], become effective only when the Division declared it effective pursuant to delegated authority. The Commission proposed this amendment because the staff and funds have often found that, due to the significance of the disclosure issues presented, the 60-day period for an A-Amendment to become automatically effective often did not provide an adequate opportunity to complete the disclosure review process.18 --------------------------------------------------------------------------- \1\8Although it is the policy of the staff to provide comments on post-effective amendments within 45 days of filings, funds often find it difficult to respond to the staff's comments prior to the 60th day after filing. --------------------------------------------------------------------------- Nearly all of the commenters opposed the proposed amendment. Several commenters noted that the new disclosure in a post-effective amendment adding a new series usually is limited to the discussion of investment objectives, policies and risks of investment in the new series and thus such an amendment is not the equivalent of a new registration statement as suggested in the Proposing Release. All the commenters agreed that the level of certainty in the effective date of a post-effective amendment is important for controlling the costs of printing prospectuses and to the successful launch of a new series. After balancing the commenters' concern for certainty in the effective date of a post-effective amendment with the need for sufficient time to review post-effective amendments adding a new series, the Commission is amending paragraph (a) to provide that post- effective amendments adding a new series become effective 75 days after filing.19 This amendment would provide funds with a greater degree of certainty concerning when their registration statement will become effective, yet provide sufficient time for comments to be resolved.20 --------------------------------------------------------------------------- \1\9Paragraph (a)(2) of rule 485 as amended. A fund may designate a longer period--up to 95 days--before the registration statement becomes effective. The Commission expects that a fund will designate a longer period if it believes that the filing raises issues that will require more than 75 days to resolve. In addition, a fund could file a B-Amendment pursuant to new paragraph (b)(1)(v) to extend the time period by up to 30 days. See Section II.A. of this Release. \2\0The Division intends to continue to seek to provide comments on post-effective amendments that add a new series within 45 days of filing. --------------------------------------------------------------------------- F. Rule 486 The Commission is adopting new rule 486 substantially as reproposed in the Proposing Release, with minor changes to conform to those made in rule 485. Rule 486 permits closed-end management investment companies and business development companies that periodically repurchase their shares in accordance with rule 23c-3 under the 1940 Act (``closed-end interval funds'') to file certain post-effective amendments and registration statements that become effective automatically.21 The initial proposal of rule 486 recognized that closed-end interval funds may need continuously effective registration statements and would benefit if certain filings could become effective automatically.22 Most comments on the original proposal supported the rule.23 The Proposing Release reproposed the rule to conform to proposed changes in rule 485.24 Comments on the Proposing Release did not address rule 486. --------------------------------------------------------------------------- \2\1Like rule 23c-3, rule 486 originated in a recommendation of the Division of Investment Management. Division of Investment Management, SEC, Protecting Investors: A Half Century of Investment Company Regulation at 453 (1992) (discussion of the possibility of subjecting closed-end companies that make repurchase offers to registration requirements like those applicable to open-end funds). \2\2Investment Company Act Rel. No. 19391, supra note 1. \2\3Several commenters urged the Commission to extend the proposed rule to all closed-end funds that repurchase their own securities, not just those making periodic repurchase offers under rule 23c-3, or to all closed-end funds. None of the commenters, however, identified any other group of closed-end funds with a clear need for automatically effective amendments. In the absence of a showing of such a need, the Commission has retained the proposed limitation of the rule to interval funds. \2\4As reproposed, rule 486 generally expanded the permissible use of B-Amendments, subject to certain contingencies, including prior effectiveness of a related registration statement or post- effective amendment within the prior two years. Some changes in rule 485 were not proposed for rule 486, such as revisions concerning financial statements for a new fund, investment performance information, and adding a new series or portfolio. --------------------------------------------------------------------------- G. Technical and Conforming Changes The Commission is adopting revisions to the cover page of Forms N- 1A, N-2, N-3, N-4 and S-6 to provide additional boxes for the fund to indicate the paragraph of rule 485 or rule 486 on which it is relying. The Commission also is adding a new paragraph 4 of Instruction E of Form N-2 which explains that closed-end interval funds may file automatically effective post-effective amendments or registration statements under rule 486, that rule 429 under the Securities Act [17 CFR 230.429] permits the use of a combined prospectus when filing a new registration statement to register additional shares, and that the filing fee for such a statement extends only to additional shares registered. IV. Effective Date The amendments will become effective on October 11, 1994 as to post-effective amendments (or, in the case of closed-end interval funds, new registration statements registering additional shares) filed on or after that date with the Commission. V. Regulatory Flexibility Act Analysis A summary of the Initial Regulatory Flexibility Analysis, which was prepared in accordance with 5 U.S.C. 603, was published in Investment Company Act Rel. No. 19722. No comments were received on this analysis. The Commission has prepared a Final Regulatory Flexibility Analysis, a copy of which may be obtained by contacting Janice M. Bishop, Division of Investment Management, Securities and Exchange Commission, 450 Fifth Street NW., Washington, DC 20549. List of Subjects in 17 CFR Parts 200, 230, 239, 270 and 274 Administrative practice and procedure; Authority delegations (Government agencies); Investment companies; Reports and recordkeeping requirements; Securities. Text of Final Rule and Form Amendments In accordance with the foregoing, Chapter II, Title 17 of the Code of Federal Regulations is amended as follows: PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND REQUESTS 1. The authority citation for Subpart A continues to read in part as follows: Authority: 15 U.S.C. 77s, 78d-1, 78d-2, 78w, 78ll(d), 79t, 77sss, 80a-37, 80b-11, unless otherwise noted. * * * * * 2. The authority citation for Subpart M is revised to read as follows: Authority: 15 U.S.C. 77s, 78w, 79t, 77sss, 80a-37, 80b-11; E.O. 11222, 3 CFR, 1964-1965 Comp.; 5 CFR 735.104 unless otherwise noted. 3. Section 200.30-5 is amended by revising paragraph (b-2) introductory text and paragraph (b-2)(1); by redesignating paragraphs (b-3) and (b-4) as paragraphs (b-4) and (b-5); and by adding a new paragraph (b-3) to read as follows: Sec. 200.30-5 Delegation of authority to Director of Division of Investment Management. * * * * * (b-2) With respect to post-effective amendments filed pursuant to Sec. 230.485(a) or Sec. 230.486(a) of this chapter: (1) To suspend the operation of paragraph (a) of such sections and to issue written notices to registrants of such suspensions; * * * * * (b-3) With respect to post-effective amendments filed pursuant to Sec. 230.485(b) or Sec. 230.486(b) of this chapter: (1) To approve additional purposes for post-effective amendments which shall be eligible for immediate effectiveness pursuant to paragraph (b) of such sections. (2) To suspend the operation of paragraph (b) of such sections and to issue written notices to registrants of such suspensions. * * * * * 4. By amending paragraph (e)(1)(ii) of Sec. 200.735-5 by revising the reference ``17 CFR 230.486(b)'' to read ``17 CFR 230.485(b)''. PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933 5. The authority citation 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, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-29, 80a-30, and 80a-37, unless otherwise noted. * * * * * 6. By revising Sec. 230.485 to read as follows: Sec. 230.485 Effective date of post-effective amendments filed by certain registered investment companies. (a) Automatic Effectiveness. (1) Except as otherwise provided in this section, a post-effective amendment to a registration statement filed by a registered open-end management investment company, unit investment trust or separate account as defined in section 2(a)(37) of the Investment Company Act of 1940 [15 USC 80a-2(a)(37)] shall become effective on the sixtieth day after the filing thereof, or a later date designated by the registrant on the facing sheet of the amendment, which date shall be no later than eighty days after the date on which the amendment is filed. (2) A post-effective amendment filed by a registered open-end management investment company for the purpose of adding a series shall become effective on the seventy-fifth day after the filing thereof or a later date designated by the registrant on the facing sheet of the amendment, which date shall be no later than ninety-five days after the date on which the amendment is filed. (3) The Commission, having due regard to the public interest and the protection of investors, may declare an amendment filed under this paragraph (a) effective on an earlier date. (b) Immediate Effectiveness. Except as otherwise provided in this section, a post-effective amendment to a registration statement filed by a registered open-end management investment company, unit investment trust or separate account as defined in section 2(a)(37) of the Investment Company Act of 1940 [15 USC 80a-2(a)(37)] shall become effective on the date upon which it is filed with the Commission, or a later date designated by the registrant on the facing sheet of the amendment, which date shall be not later than thirty days after the date on which the amendment is filed, except that a post-effective amendment including a designation of a new effective date pursuant to paragraph (b)(1)(v) of this section shall become effective on the new effective date designated therein, Provided, that the following conditions are met: (1) It is filed for no purpose other than one or more of the following: (i) Increasing the number or amount of securities proposed to be offered under section 24(e)(1) of the Investment Company Act of 1940 [15 U.S.C. 80a-24(e)(1)]; (ii) Registering an indefinite number or amount of securities under section 24(f) of the Investment Company Act of 1940 [15 U.S.C. 80a- 24(f)] and Sec. 270.24f-2 of this chapter; (iii) Bringing the financial statements up to date under section 10(a)(3) of the Securities Act of 1933 [15 U.S.C. 77j(a)(3)] or Rules 3-12 or 3-18 of Regulation S-X [17 CFR 210.3-12 and 210.3-18]; (iv) Complying with an undertaking to file an amendment containing financial statements, which may be unaudited, within four to six months after the effective date of the registrant's registration statement under the Securities Act of 1933 [15 U.S.C. 77a et seq.]; (v) Designating a new effective date for a previously filed post- effective amendment pursuant to paragraph (a) of this section, which has not yet become effective, Provided, that the new effective date shall be no earlier than the effective date designated in the previously filed amendment under paragraph (a) of this section and no later than thirty days after that date; (vi) Disclosing or updating the information required by Items 5(c) or 5A of Form N-1A [17 CFR 239.15A and 274.11A]; (vii) Making any non-material changes which the registrant deems appropriate; (viii) In the case of a separate account registered as a unit investment trust, to make changes in the disclosure in the unit investment trust's registration statement to reflect changes to disclosure in the registration statement of the investment company in which the unit investment trust invests all of its assets; and (ix) Any other purpose which the Commission shall approve. (2) The registrant represents that the amendment is filed solely for one or more of the purposes specified in paragraph (b)(1) of this section and that no material event requiring disclosure in the prospectus, other than one listed in paragraph (b)(1) of this section or one for which the Commission has approved a filing under paragraph (b)(1)(ix) of this section, has occurred since the latest of the following three dates: (i) the effective date of the registrant's registration statement; (ii) the effective date of its most recent post-effective amendment to its registration statement which included a prospectus; or (iii) the filing date of a post-effective amendment filed under paragraph (a) of this section which has not become effective. (3) The amendment recites on its facing sheet that the registrant proposes that the amendment will become effective under paragraph (b) of this section. (4) The representations of the registrant referred to in paragraph (b)(2) of this section shall be made by certification on the signature page of the post-effective amendment that the amendment meets all the requirements for effectiveness under paragraph (b) of this section. If counsel prepared or reviewed the post-effective amendment filed under paragraph (b) of this section, counsel shall furnish to the Commission at the time the amendment is filed a written representation that the amendment does not contain disclosures that would render it ineligible to become effective under paragraph (b) of this section. (c) Incomplete or Inaccurate Amendments; Suspension of Use of Paragraph (b) of this section. (1) No amendment shall become effective under paragraph (a) of this section if, prior to the effective date of the amendment, it should appear to the Commission that the amendment may be incomplete or inaccurate in any material respect, and the Commission furnishes to the registrant written notice that the effective date of the amendment is to be suspended. Following such action by the Commission, the registrant may file with the Commission at any time a petition for review of the suspension. The Commission will order a hearing on the matter if a request for such a hearing is included in the petition. If the Commission has suspended the effective date of an amendment, the amendment shall become effective on such date as the Commission may determine, having due regard to the public interest and the protection of investors. (2) The Commission may, in the manner and under the circumstances set forth in this paragraph (c)(2), suspend the ability of registrant to file a post-effective amendment under paragraph (b) of this section. The notice of such suspension shall be in writing and shall specify the period for which such suspension shall remain in effect. The Commission may issue a suspension if it appears to the Commission that a registrant which files a post-effective amendment under paragraph (b) of this section has not complied with the conditions of that paragraph. Any suspension under this paragraph (c)(2) shall become effective at such time as the Commission furnishes written notice thereof to the registrant. Any such suspension, so long as it is in effect, shall apply to any post-effective amendment that has been filed but has not, at the time of such suspension, become effective, and to any post- effective amendment that may be filed after the suspension. Any suspension shall apply only to the ability to file a post-effective amendment pursuant to paragraph (b) of this section and shall not otherwise affect any post-effective amendment. Following this action by the Commission the registrant may file with the Commission at any time a petition for review of the suspension. The Commission will order a hearing on the matter if a request for a hearing is included in the petition. (d) Subsequent Amendments. (1) Except as provided in paragraph (d)(2) of this section, a post-effective amendment that includes a prospectus shall not become effective under paragraph (a) of this section if a subsequent post-effective amendment relating to the prospectus is filed before such amendment becomes effective. (2) A post-effective amendment that includes a prospectus shall become effective under paragraph (a) of this section notwithstanding the filing of a subsequent post-effective amendment relating to the prospectus, Provided, that the following conditions are met: (i) the subsequent amendment is filed under paragraph (b) of this section; and (ii) the subsequent amendment designates as its effective date either: (A) the date on which the prior post-effective amendment was to become effective under paragraph (a) of this section; or (B) a new effective date designated under paragraph (b)(1)(v) of this section. In this case the prior post-effective amendment filed under paragraph (a) of this section and any prior post-effective amendment filed under paragraph (b) of this section shall also become effective on the new effective date designated under paragraph (b)(1)(v) of this section. (3) Notwithstanding paragraphs (d)(1) and (d)(2) of this section, if another post-effective amendment relating to the same prospectus is filed under paragraph (a) of this section before the prior amendments filed pursuant to paragraphs (a) and (b) of this section have become effective, none of such prior amendments shall become effective under this section. (e) Certain Separate Accounts. For purposes of this section, a post-effective amendment to a registration statement for an offering of securities by a registered open-end management investment company or unit investment trust as those terms are used in paragraphs (a), (b), and (e) of this section and as such amendments are referred to in paragraphs (c) and (d) of this section, shall include a post-effective amendment to an offering of securities by an insurance company funded through a separate account, as defined in section 2(a)(37) of the Investment Company Act of 1940 [15 U.S.C. 80a-2(a)(37)], where the separate account need not register under the Investment Company Act of 1940 under section 3(c)(11) thereof [15 U.S.C. 80a-3(c)(11)]. (f) Electronic Filers. (1) When ascertaining the date of filing, electronic filers should not presume a registration statement has been accepted until notice of acceptance has been received from the Commission. (2) Attention is directed to the requirements of the relevant registration statement form and Sec. 230.483 concerning certain items of financial information (the Financial Data Schedule) that may be required. Note: To determine the date of automatic effectiveness, the day following the filing date is the first day of the time period. For example, a post-effective amendment filed under paragraph (a) of this section on November 1 would become effective on December 31. 7. By revising Sec. 230.486 to read as follows: Sec. 230.486 Effective date of post-effective amendments and registration statements filed by certain closed-end management investment companies. (a) Automatic Effectiveness. Except as otherwise provided in this section, a post-effective amendment to a registration statement, or a registration statement filed for the purpose of registering additional shares of common stock for which a registration statement filed on Form N-2 (Secs. 239.14 and 274.11a-1 of this chapter) is effective, filed by a registered closed-end management investment company or business development company which makes periodic repurchase offers under Sec. 270.23c-3 of this chapter, shall become effective on the sixtieth day after the filing thereof, or a later date designated by the registrant on the facing sheet of the amendment or registration statement, which date shall not be later than eighty days after the date on which the amendment or registration statement is filed, Provided, that the Commission, having due regard to the public interest and the protection of investors, may declare an amendment or registration statement filed under this paragraph (a) effective on an earlier date. (b) Immediate Effectiveness. Except as otherwise provided in this section, a post-effective amendment to a registration statement, or a registration statement for additional shares of common stock, filed by a registered closed-end management investment company or business development company which makes periodic repurchase offers under Sec. 270.23c-3 of this chapter, shall become effective on the date on which it is filed with the Commission, or a later date designated by the registrant on the facing sheet of the amendment or registration statement, which date shall be not later than thirty days after the date on which the amendment or registration statement is filed, except that a post-effective amendment including a designation of a new effective date under paragraph (b)(1)(iii) of this section shall become effective on the new effective date designated therein, Provided, that the following conditions are met: (1) It is filed for no purpose other than one or more of the following: (i) Registering additional shares of common stock for which a registration statement filed on Form N-2 (Secs. 239.14 and 274.11a-1 of this chapter) is effective; (ii) Bringing the financial statements up to date under section 10(a)(3) of the Act [15 U.S.C. 77j(a)(3)] or rule 3-18 of Regulation S- X [17 CFR 210.3-18]; (iii) Designating a new effective date for a previously filed post- effective amendment or registration statement for additional shares under paragraph (a) of this section, which has not yet become effective, Provided, that the new effective date shall be no earlier than the effective date designated in the previously filed amendment or registration statement under paragraph (a) of this section and no later than thirty days after that date; (iv) Disclosing or updating the information required by Item 9c of Form N-2 [17 CFR 239.14 and 274.11a-1]; (v) Making any non-material changes which the registrant deems appropriate; and (vi) Any other purpose which the Commission shall approve. (2) The registrant represents that the amendment is filed solely for one or more of the purposes specified in paragraph (b)(1) of this section and that no material event requiring disclosure in the prospectus, other than one listed in paragraph (b)(1) or one for which the Commission has approved a filing under paragraph (b)(1)(vi) of this section, has occurred since the latest of the following three dates: (i) the effective date of the registrant's registration statement; (ii) the effective date of its most recent post-effective amendment to its registration statement which included a prospectus; or (iii) the filing date of a post-effective amendment or registration statement filed under paragraph (a) of this section which has not become effective; and (3) The amendment or registration statement recites on the facing sheet thereof that the registrant proposes that the amendment or registration statement will become effective under paragraph (b) of this section. (4) The representations of the registrant referred to in paragraph (b)(2) of this section shall be made by certification on the signature page of the post-effective amendment or registration statement that the amendment or registration statement meets all of the requirements for effectiveness under paragraph (b) of this section. If counsel prepared or reviewed the post-effective amendment or registration statement filed under paragraph (b) of this section, counsel shall furnish to the Commission at the time the amendment or registration statement is filed a written representation that the amendment or registration statement does not contain disclosure which would render it ineligible to become effective under paragraph (b) of this section. (c) Incomplete or Inaccurate Amendments; Suspension of Use of Paragraph (b) of this section. (1) No amendment or registration statement shall become effective under paragraph (a) of this section if, prior to the effective date of the amendment or registration statement, it should appear to the Commission that the amendment or registration statement may be incomplete or inaccurate in any material respect, and the Commission furnishes to the registrant written notice that the effective date of the amendment or registration statement is to be suspended. Following such action by the Commission, the registrant may file with the Commission at any time a petition for review of the suspension. The Commission will order a hearing on the matter if a request for such a hearing is included in the petition. If the Commission has suspended the effective date of an amendment or registration statement, the amendment or registration statement shall become effective on such date as the Commission may determine, having due regard to the public interest and the protection of investors. (2) The Commission may, in the manner and under the circumstances set forth in this paragraph (c)(2), suspend the ability of a registrant to file a post-effective amendment or registration statement under paragraph (b) of this section. The notice of such suspension shall be in writing and shall specify the period for which such suspension shall remain in effect. The Commission may issue a suspension if it appears to the Commission that a registrant which files a post-effective amendment under paragraph (b) of this section has not complied with the conditions of that paragraph. Any suspension under this paragraph shall become effective at such time as the Commission furnishes written notice thereof to the company. Any such suspension, so long as it is in effect, shall apply to any post-effective amendment or registration statement that has been filed but has not, at the time of such suspension, become effective, and to any post-effective amendment or registration statement that may be filed after the suspension. Any suspension shall apply only to the ability to file a post-effective amendment or registration statement under paragraph (b) of this section and shall not otherwise affect any post-effective amendment or registration statement. Following this action by the Commission, the registrant may file with the Commission at any time a petition for review of the suspension. The Commission will order a hearing on the matter if a request for a hearing is included in the petition. (d) Subsequent Amendments. (1) Except as provided in paragraph (d)(2) of this section, a post-effective amendment or registration statement which includes a prospectus shall not become effective under paragraph (a) of this section if a subsequent post-effective amendment or registration statement relating to the prospectus is filed before such amendment or registration statement becomes effective. (2) A post-effective amendment or registration statement which includes a prospectus shall become effective under paragraph (a) of this section notwithstanding the filing of a subsequent post-effective amendment or registration statement relating to the prospectus, Provided, that the following conditions are met: (i) the subsequent amendment or registration statement is filed under paragraph (b) of this section; and (ii) the subsequent amendment or registration statement designates as its effective date either: (A) the date on which the prior post-effective amendment or registration statement was to become effective under paragraph (a) of this section or (B) a new effective date designated under paragraph (b)(1)(iii) of this section. In this case the prior post-effective amendment or registration statement filed under paragraph (a) of this section and any prior post- effective amendment or registration statement filed under paragraph (b) of this section shall also become effective on the new effective date designated under paragraph (b)(1)(iii) of this section. (3) Notwithstanding paragraphs (d)(1) and (d)(2) of this section, if another post-effective amendment or registration statement relating to the same prospectus is filed under paragraph (a) of this section before the prior amendments or registration statements filed under paragraphs (a) and (b) of this section have become effective, none of such prior amendments or registration statements shall become effective under this section. (e) Condition to Use of Paragraphs (a) or (b). A post-effective amendment or new registration statement shall not become effective under paragraphs (a) or (b) of this section unless within two years prior to the filing thereof a post-effective amendment or registration statement relating to the common stock of the registrant has become effective. (f) Electronic Filers. (1) When ascertaining the date of filing, electronic filers should not presume a registration statement has been accepted until notice of acceptance has been received from the Commission. (2) Attention is directed to the requirements of the relevant registration statement form and Sec. 230.483 concerning certain items of financial information (the Financial Data Schedule) that may be required. Note: To determine the date of automatic effectiveness, the day following the filing date is the first day of the time period. For example, a post-effective amendment filed under paragraph (a) of this section on November 1 would become effective on December 31. 8. By revising paragraph (c) of Sec. 230.487 to read as follows: Sec. 230.487 Effectiveness of registration statements filed by certain unit investment trusts. * * * * * (c)(1) The Commission may, in the manner and under the circumstances set forth in paragraph (c)(2) of this section, suspend the ability of a unit investment trust to designate the date and time of effectiveness of a series of such trust. Any such suspension, so long as it is in effect, shall apply to any registration statement that has been filed but has not, at the time of such suspension, become effective, and to any registration statement with respect to any series of such trust that may be filed after such suspension. Any suspension shall apply only to the ability to designate the date and time of effectiveness pursuant to paragraph (a) of this section and shall not otherwise affect any registration statement. (2) Any suspension pursuant to paragraph (c)(1) of this section shall become effective at such time as the Commission furnishes written notice thereof to the company or the sponsor of the unit investment trust. The notice of such suspension shall be in writing and shall specify the period for which such suspension shall remain in effect. The Commission may issue such suspension if it appears to the Commission that any registration statement containing a designation pursuant to this section is incomplete or inaccurate in any material respect, whether or not such registration statement has become effective, or that the registrant has not complied with the conditions of this section. Following such action by the Commission, the registrant may file with the Commission at any time a petition for review of the suspension. The Commission will order a hearing on the matter if a request for a hearing is included in the petition. * * * * * PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940 9. The authority citation for Part 270 continues to read in part as follows: Authority: 15 U.S.C. 80a-1 et seq., 80a-37, 80a-39 unless otherwise noted. * * * * * 10. By amending the undesignated paragraph following paragraph (b)(13)(iii)(F)(4)(ii)(B) of Sec. 270.6e-3(T) by revising the reference ``Rule 486 [17 CFR 230.486] to read ``Rule 485 [17 CFR 230.485]''. PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933 PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1940 11. 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. * * * * * 12. The authority citation for Part 274 is revised to read as follows: Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l, 78m, 78n, 78o(d), 80a-8, 80a-24, and 80a-29, unless otherwise noted. Note: Forms N-1A, N-2, N-3, N-4 and S-6 do not and the amendments will not appear in the Code of Federal Regulations. 13. In Form S-6 (referenced in Sec. 239.16) the reference to ``rule (485 or 486)'' on the facing sheet is revised to read ``rule 485,'' the references to ``paragraph (a)'' are revised to read ``paragraph (a)(i)'' (two places), and the reference to ``rule (485(b) or 486(b))'' in the Signature block is revised to read ``rule 485(b)'', the period is removed following ``(485 or 486)'' on the facing sheet and the following is added on the facing after section D.: ``If appropriate, check the following box: {time} this post-effective amendment designates a new effective date for a previously filed post-effective amendment.'' 14. Form N-1A (referenced in Secs. 239.15A and 274.11A) is amended by revising the facing sheet before the heading ``Calculation of Registration Fee under the Securities Act of 1933'' to read as follows: FORM N-1A * * * * * It is proposed that this filing will become effective (check appropriate box): {time} immediately upon filing pursuant to paragraph (b) {time} on (date) pursuant to paragraph (b) {time} 60 days after filing pursuant to paragraph (a)(i) {time} on (date) pursuant to paragraph (a)(i) {time} 75 days after filing pursuant to paragraph (a)(ii) {time} on (date) pursuant to paragraph (a)(ii) of rule 485. If appropriate, check the following box: {time} this post-effective amendment designates a new effective date for a previously filed post-effective amendment. * * * * * 15. Form N-2 (referenced in Secs. 239.14 and 274.11a-1) is amended by revising the facing sheet before the heading ``Calculation of Registration Fee under the Securities Act of 1933'' and by adding Instruction E.4 to the General Instructions to read as follows: FORM N-2 * * * * * It is proposed that this filing will become effective (check appropriate box): {time} when declared effective pursuant to section 8(c) The following boxes should only be included and completed if the registrant is a registered closed-end management investment company or business development company which makes periodic repurchase offers under Rule 23c-3 under the Investment Company Act and is making this filing in accordance with Rule 486 under the Securities Act: {time} immediately upon filing pursuant to paragraph (b) {time} on (date) pursuant to paragraph (b) {time} 60 days after filing pursuant to paragraph (a) {time} on (date) pursuant to paragraph (a) If appropriate, check the following box: {time} this [post-effective] amendment designates a new effective date for a previously filed [post-effective amendment][registration statement]. * * * * * General Instructions * * * * * E. Amendments * * * * * 4. A post-effective amendment to a registration statement on this Form, or a registration statement filed for the purpose of registering additional shares of common stock for which a registration statement filed on this Form is effective, filed on behalf of a Registrant which makes periodic repurchase offers pursuant to Rule 23c-3 under the Investment Company Act [17 CFR 270.23c-3] may become effective automatically in accordance with Rule 486 under the Securities Act [17 CFR 230.486]. In accordance with Rule 429 under the Securities Act [17 CFR 230.429], a Registrant filing a new registration statement for the purpose of registering additional shares of common stock may use a prospectus with respect to the additional shares also in connection with the shares covered by earlier registration statements if such prospectus includes all of the information which would currently be required in a prospectus relating to the securities covered by the earlier statements. The filing fee required by the Act and Rule 457 under the Securities Act [17 CFR 230.457] shall be paid with respect to the additional shares only. 16. In Form N-3 (referenced in Secs. 239.17a and 274.11b) all references to ``Rule 486'' are revised to read ``Rule 485'' on the facing sheet (four places), General Instruction H.5. (one place) and the Signature block (one place) and the reference ``[17 CFR 230.486]'' is revised to read ``[17 CFR 230.485]'' in General Instruction H.5. (one place) and by revising the facing sheet before the heading ``Calculation of Registration Fee under the Securities Act of 1933'' to read as follows: FORM N-3 * * * * * It is proposed that this filing will become effective (check appropriate box): {time} immediately upon filing pursuant to paragraph (b) {time} on (date) pursuant to paragraph (b) {time} 60 days after filing pursuant to paragraph (a)(i) {time} on (date) pursuant to paragraph (a)(i) {time} 75 days after filing pursuant to paragraph (a)(ii) {time} on (date) pursuant to paragraph (a)(ii) of rule 485. If appropriate, check the following box: {time} this post-effective amendment designates a new effective date for a previously filed post-effective amendment. * * * * * 17. In Form N-4 (referenced in Secs. 239.17b and 274.11c) all references to ``Rule 486'' are revised to read ``Rule 485'' on the facing sheet (four places), General Instruction H.5. (one place) and the Signature block (one place) and the reference ``[17 CFR 230.486]'' is revised to read ``[17 CFR 230.485]'' in General Instruction H.5. (one place) and by revising the facing sheet before the heading ``Calculation of Registration Fee under the Securities Act of 1933'' to read as follows: FORM N-4 * * * * * It is proposed that this filing will become effective (check appropriate box): {time} immediately upon filing pursuant to paragraph (b) {time} on (date) pursuant to paragraph (b) {time} 60 days after filing pursuant to paragraph (a)(i) {time} on (date) pursuant to paragraph (a)(i) {time} 75 days after filing pursuant to paragraph (a)(ii) {time} on (date) pursuant to paragraph (a)(ii) of rule 485. If appropriate, check the following box: {time} this post-effective amendment designates a new effective date for a previously filed post-effective amendment. * * * * * By the Commission. Dated: August 17, 1994. Margaret H. McFarland, Deputy Secretary. [FR Doc. 94-20624 Filed 8-23-94; 8:45 am] BILLING CODE 8010-01-P