[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]
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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.
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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].
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\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.
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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.
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\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.''
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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.
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\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.
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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
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\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.
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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
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\6\The information required by Item 5A may be omitted from the
prospectus if it is included in the fund's annual report.
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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
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\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.
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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
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\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.
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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.
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\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.
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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
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\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.
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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.
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\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.
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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
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\1\4See Section 42 of the 1940 Act [15 U.S.C. 80a-41].
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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
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\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.
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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
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\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.
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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
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\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.
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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
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\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.
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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.
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\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.
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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