[Federal Register Volume 69, Number 80 (Monday, April 26, 2004)]
[Rules and Regulations]
[Pages 22704-22715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9422]



[[Page 22703]]

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Part V





Securities and Exchange Commission





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17 CFR Parts 232, 239, et al.



Mandated Electronic Filing for Form ID; Final Rule

  Federal Register / Vol. 69, No. 80 / Monday, April 26, 2004 / Rules 
and Regulations  

[[Page 22704]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 232, 239, 249, 259, 269 and 274

[Release Nos. 33-8410, 34-49585, 35-27837, 39-2420, IC-26421; File No. 
S7-14-04]
RIN 3235-AJ09


Mandated Electronic Filing for Form ID

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: We are adopting rule and form amendments to mandate the 
electronic filing of Form ID on a new on-line system. Form ID is the 
application for access codes to file on EDGAR. The intended effect of 
the amendments is to facilitate the more efficient transmission and 
processing of the information Form ID requires in a manner that will 
benefit investors, filers and the Commission.

DATES: Effective Date: April 26, 2004.

FOR FURTHER INFORMATION CONTACT: For assistance with questions about 
the rule and form amendments in general, contact Mark W. Green, Senior 
Special Counsel (Regulatory Policy), at (202) 942-1940, Division of 
Corporation Finance, Securities and Exchange Commission, 450 Fifth 
Street, NW., Washington, DC 20459-0301. For assistance with technical 
questions about EDGAR, call the EDGAR Filer Support Office at (202) 
942-8900.

SUPPLEMENTARY INFORMATION: We are adopting \1\ amendments that will 
revise Rules 10,\2\ 101,\3\ 104,\4\ 201 \5\ and 202 \6\ under 
Regulation S-T \7\ and Form ID.\8\
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    \1\ The amendments were proposed in Release No. 33-8399 (Mar. 
15, 2004) [69 FR 13426 (Mar. 22, 2004)] (``Proposing Release''). The 
Commission has posted comments on the Proposing Release on the 
Commission's Internet Web site (http://www.sec.gov). Comments also 
are available for public inspection and copying in the Commission's 
Public Reference Room, 450 Fifth Street, NW., Washington, DC 20549.
    \2\ 17 CFR 232.10.
    \3\ 17 CFR 232.101.
    \4\ 17 CFR 232.104.
    \5\ 17 CFR 232.201.
    \6\ 17 CFR 232.202.
    \7\ 17 CFR 232.10 et seq.
    \8\ 17 CFR 239.63, 249.446, 259.602, 269.7 and 274.402.
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I. Background and New Filing System

    Before the effective date of the amendments adopted by this 
release, new issuers and other applicants applying for access codes to 
file on the Commission's Electronic Data Gathering, Analysis and 
Retrieval System (``EDGAR'') must file a Form ID in paper \9\ by 
fax.\10\ When we initially launched the EDGAR system, we required 
applicants \11\ to file Form ID in paper by mail. In November 2001, 
however, we began to require that applicants file Form ID solely by 
fax.\12\ The electronic filing of Form ID will facilitate the more 
efficient transmission and processing of the information Form ID 
requires in a manner that will benefit investors, filers and the 
Commission. The information will be transmitted in a speedy, secure and 
reliable manner and will directly enter the Commission's records rather 
than having to be keyed in by Commission personnel.
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    \9\ Rule 10(b) of Regulation S-T [17 CFR 232.10(b)].
    \10\ Section 1.3.1 of EDGAR Release 8.6 EDGARLink Filer Manual 
(Volume I) and Onlineforms Filer Manual (Volume III). In some 
instances, applicants can acquire replacement codes through our 
EDGAR website without use of a Form ID. Applicants will be able to 
continue this practice under specified circumstances.
    \11\ The three categories of individuals or entities that apply 
for access codes are ``filers'', ``filing agents'' and ``training 
agents'' (collectively, ``applicants''). A filer is an individual or 
entity on whose behalf an electronic filing is made. A filing agent 
is an individual or entity that uses access codes to send all or 
part of a filing on behalf of a filer. A training agent is an 
individual or entity that will be sending only test filings in 
connection with training others.
    \12\ The former requirement to file by mail still is reflected 
in Part V of the General Instructions to Form ID. This requirement, 
however, has been superseded by the fax requirement in the Filer 
Manual.
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    By the time the rules requiring electronic filing of Forms ID are 
effective, a related new on-line filing system accessed through an 
EDGAR Filer Management website will be completed.\13\
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    \13\ An on-line filing system currently is available for Forms 3 
[17 CFR 249.103 and 274.202], 4 [17 CFR 249.104 and 274.203] and 5 
[249.105] filed under Section 16(a) of the Securities Exchange Act 
of 1934 (``Exchange Act'') [15 U.S.C. 78p(a)].
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    New issuers and other applicants who are new filers will be 
required to file Forms ID.\14\ Applicants will be required to access 
the EDGAR Filer Management website to fill out and submit the forms, as 
EDGARLink filing will not be available for submission of these forms. 
Other types of filers (i.e., those who are not new filers) that wish to 
obtain access codes will be able to do so through the EDGAR Filer 
Management website or, in generally the same manner as available today, 
the current EDGAR Filer or Online Forms websites, in all cases without 
filing a Form ID.
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    \14\ ``New filers'' fall within two categories. The first 
category contains applicants that have not previously filed with the 
Commission or have filed only paper Forms 3, 4 or 5 (all required to 
be filed electronically since June 30, 2003) or paper Forms 144 [17 
CFR 239.144], under the Securities Act of 1933 (``Securities Act'') 
[15 U.S.C. 77a et seq.], and, as a result, have not been assigned by 
the Commission a Central Index Key (CIK) code. The CIK code is a 
unique publicly available identifier and EDGAR access code. The 
second category consists of applicants that have received a CIK code 
for use in connection with their activities as one type of applicant 
(filer, filing agent or training agent) but wish to act as another 
type of applicant. A person or entity should have and use a separate 
CIK code as to each capacity (filer, filing agent or training agent) 
in which it acts.
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    To access and file Forms ID through our EDGAR Filer Management 
website, each applicant must have available all the information Form ID 
requires when the applicant accesses the website because the system 
will not provide a way to save an incomplete form on-line from session 
to session. A time-out that ends the session will occur one hour 
following the user's last activity on the system. We expect that there 
will be more than enough time to prepare, review and submit a Form ID 
given the nature and quantity of information required. Unlike the 
current system, only one applicant per Form ID will be permitted. The 
system will validate for data type and required fields as many fields 
as possible during the submission process. Applicants will have the 
chance to correct errors and verify the accuracy of the information 
before submission. An on-line help function will be available. The 
applicant will be able to add attachments before submission and print 
the information submitted after submission.
    Modifications to EDGAR in connection with establishing the EDGAR 
Filer Management website will require not only applicants who file Form 
ID, but also users who log onto EDGAR for filing for the first time on 
or after April 26, to choose a passphrase.\15\ A passphrase will enable 
a user to change its access codes easily.\16\
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    \15\ Because only users that log onto EDGAR are required to 
select a passphrase, a filing agent that logs onto EDGAR in order to 
file on behalf of a client would be required to select a passphrase 
only for itself. The filing agent could file on behalf of the client 
regardless of whether the client had a passphrase.
    \16\ The passphrase system will provide advantages over the 
current system for changing access codes. In the current system, 
users often forget the access code needed to change another access 
code and have greater difficulty changing a code that has expired. 
Under the new system, users should remember their passphrase more 
easily since they choose it. An access code's expiration will not 
affect the passphrase. A passphrase remains valid unless and until 
the user changes it. Further details about passphrases and access 
codes are being provided in revisions to the EDGAR Filer Manual.
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II. The Amendments

A. Required Electronic Filing of Form ID

    We are adopting with minor revisions the proposed amendments to 
Regulation

[[Page 22705]]

S-T \17\ to require applicants who are new filers to file Forms ID with 
us electronically. As noted above, Rule 10 of Regulation S-T currently 
requires Forms ID to be filed in paper.\18\ The amendments revise 
subparagraph (b) of Rule 10 by replacing the paper filing requirement 
with an electronic filing requirement.\19\ For clarity and ease of 
reference, the amendments also revise subparagraph (a)(1) of Rule 101 
of Regulation S-T \20\ to add a new subparagraph (ix) to add Form ID to 
the rule's list of documents required to be filed electronically.\21\
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    \17\ Regulation S-T is the general regulation governing 
electronic filing. In addition to complying with Regulation S-T, 
filers must submit electronic documents in accordance with the 
instructions in the EDGAR Filer Manual. We also are amending the 
EDGAR Filer Manual to reflect the new electronic filing system.
    \18\ As also noted above, currently, the EDGAR Filer Manual 
requires Form ID to be filed by fax and Form ID contains a 
superseded instruction to file Form ID by mail.
    \19\ We are adopting as proposed the amendment to Rule 104(a) of 
Regulation S-T that makes it clear that unofficial PDF copy 
submissions are unavailable to Form ID.
    \20\ 17 CFR 232.101(a)(1).
    \21\ Rule 101(a)(1) also requires the electronic submission of 
any related correspondence and supplemental information pertaining 
to a document that is the subject of mandated electronic filing 
``except as otherwise provided.'' As proposed, adopted Rule 
101(a)(1)(ix) will prohibit electronic submission of the notarized 
authenticating document described in Section II.B of this release. 
As proposed, the rule also would have prohibited electronic 
submission of related correspondence and supplemental information 
submitted after electronic filing of Form ID and before the 
Commission assigns access codes to the applicant to file on EDGAR. 
As adopted, however, to facilitate Commission processing, the rule 
prohibits indefinitely electronic submission of related 
correspondence and supplemental information submitted after 
electronic filing of Form ID. This material should be provided by 
fax if submitted after electronic filing of Form ID. Otherwise, it 
should be submitted as an attachment to the electronically filed 
Form ID.
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    The commenters generally expressed support for requiring Forms ID 
to be filed electronically. Two commenters, however, expressed the view 
that not all persons and entities required to file have access to 
computers and the Internet and one commenter asserted that not all 
natural person filers have the computer skills to fill out on-line 
forms.\22\
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    \22\ All persons and entities required to file will need direct 
or indirect access to computers and the Internet regardless of 
whether Form ID must be filed electronically in order to file on 
EDGAR. Natural persons will, we expect, predominantly consist of 
filers of Forms 3, 4 and 5. As to those natural persons in 
particular, we believe many will have help from issuers, and those 
who do not will find it relatively easy and straightforward to fill 
in the few simple fields required to complete Form ID. See Section 
IV.B of this release for a discussion of expected costs.
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    We are adopting as proposed the amendments to Regulation S-T to 
make hardship exemptions unavailable to Forms ID. The amendments revise 
subparagraph (a) of Rules 201 \23\ and 202 \24\ by excluding Form ID 
from the filings for which hardship exemptions are available. Several 
commenters suggested that we retain a hardship exemption for 
circumstances in which a filer cannot immediately file electronically. 
They cited, among other circumstances, situations where Internet access 
is unavailable.
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    \23\ 17 CFR 232.201(a).
    \24\ 17 CFR 232.202(a).
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    Having considered these comments, we continue to believe, however, 
that hardship exemptions should not be available to Forms ID because a 
filer unable to file electronically a Form ID also, presumably, would 
be unable to file on EDGAR even with the access codes obtained in 
response to a Form ID filing. Even if the EDGAR Filer Management 
website is unavailable but EDGAR itself is functioning, providing a 
hardship exemption would not speed up the receipt of codes because the 
new system will not enable the staff to generate EDGAR access codes 
manually.\25\ Consequently it appears that there would be no practical 
need for a hardship exemption, and granting the exemption could 
undermine the purposes of mandated electronic filing of Forms ID.\26\
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    \25\ If a filer is unable to receive access codes timely because 
of technical difficulties with the EDGAR Filer Management website, 
and as a result the filing for which the access codes are needed is 
made late, generally a filing date adjustment would be available. 
See Rule 13 of Regulation S-T [17 CFR 232.13].
    \26\ See the note to Rule 10 of Regulation S-T [17 CFR 232.10] 
(``The Commission strongly urges any person or entity about to 
become subject to the disclosure and filing requirements of the 
federal securities laws to submit a Form ID well in advance of the 
first required filing, including a registration statement relating 
to an initial public offering, in order to facilitate electronic 
filing on a timely basis.'').
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B. Required Faxing of Document Authenticating Form ID

    In the Proposing Release, we stated that ``[b]ecause only new 
filers will file the electronic Form ID, we believe the form should be 
supplemented with additional verification to help ensure the security 
of the system.'' Accordingly, we proposed an amendment to Regulation S-
T to require these applicants to file in paper by fax within two 
business days before or after electronically filing Form ID a notarized 
document, manually signed by the applicant over its typed signature, 
that includes the information contained in the Form ID filed or to be 
filed and confirms the authenticity \27\ of the Form ID.\28\ We also 
stated that ``[t]he purpose of this requirement is to help assure that 
the Form ID is authentic.'' Finally, we stated that ``[w]e expect that 
eventually we will replace this procedure with a requirement that 
applicants use a certificate from a certification authority to 
authenticate their Form ID filings.'' \29\
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    \27\ An applicant could confirm the authenticity of a Form ID 
by, for example, stating that ``I [name of applicant] hereby confirm 
the authenticity of the Form ID [filed on] [to be filed on] [specify 
date] containing the information contained in this document.''
    \28\ The proposed amendment also would revise subparagraph (b) 
of Rule 10 of Regulation S-T to add this requirement. One way to 
satisfy the authenticating document requirement, although only after 
electronic filing, would be to use a print-out of the Form ID 
application acknowledgment generated by the EDGAR Filer Management 
website. To use the print-out to satisfy the requirement, the 
applicant must notarize the print-out and add an authenticity 
confirming statement. Before faxing the print-out, the applicant 
also should make illegible the passphrase that appears on it. The 
passphrase should be made illegible because, as a code that enables 
the acquisition of new EDGAR access codes, it should be kept highly 
confidential.
    \29\ A certification authority issues a certificate that works 
like an electronic ``pass card'' that verifies the holder's identity 
when filing. The certification authority's digital signature would 
allow us to verify that the certificate is authentic. Certificates 
currently are optional for filing on EDGAR. They may be purchased 
from Verisign, the current certification authority for EDGAR.
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    The commenters opposed the requirement to fax a notarized 
authenticating document and urged us to streamline the process by 
eliminating this requirement. More than one commenter objected to the 
notarization requirement as inconsistent with past practice, 
ineffective and time-consuming. Several commenters claimed that the 
notarization requirement would be especially problematic for foreign 
applicants. One of these commenters suggested that if we keep the 
notarization requirement for foreign applicants we clarify that, as to 
those persons, notarization ``is limited to verifying the signature and 
identity of the signatory and that any method sufficient to 
authenticate a signature in the home jurisdiction should be 
sufficient.'' The staff will apply this approach as an interpretive 
matter subject to adjustment in the future should our experience so 
require.
    After considering these comments, we have nonetheless decided to 
amend Regulation S-T to require new filers to file an authenticating 
fax substantially as proposed.\30\ While our rules do not currently 
require notarization, human intervention in the current non-

[[Page 22706]]

automated process helps to assure authenticity. The degree and type of 
human intervention and the related procedures involved in the current 
process will change with electronic Form ID filing in a way that could 
offer less assurance of authenticity.\31\ Based on our prior experience 
with the application of human intervention and verification procedures, 
we believe the fax filing requirement will provide a degree of 
assurance the benefits of which will justify the costs of a less 
streamlined process that requires applicants to spend the time needed 
to obtain notarization.
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    \30\ The adopted amendment, unlike the proposed, also includes a 
requirement to place in the notarized authenticating document the 
accession number of the related electronic Form ID filing when 
electronic filing occurs first.
    \31\ Some of the commenters suggested that the authenticating 
document appear as a PDF (Portable Document Format) attachment to 
the electronic Form ID. We believe a PDF attachment approach would 
not provide a level of assurance materially greater than that 
provided with no authenticating document and would not provide a 
level of assurance as high as that provided by the fax requirement 
coupled with our planned related procedures. In addition, it will 
not be possible to upload a PDF attachment to a Form ID at the time 
the new on-line system becomes operative. Other authentication 
devices suggested involved e-mail or internet address tracing or 
verification, use of signature guarantees or certificates or 
identity vouching by regular participants in the filing process. As 
noted above, we plan to replace the fax procedure with a certificate 
requirement. We believe, however, that neither the certificate 
device, nor the other devices suggested are both effective and 
feasible at the present time.
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C. Form ID

    We are adopting with minor revisions the proposed amendments to 
Form ID to facilitate the electronic filing provisions, as follows:
    1. Amend the section immediately above the heading for Part I to 
delete the phrase ``Applicant's CIK (if known)'', the checkboxes and 
the checkboxes' related labels ``Initial Application'' and 
``Amendment.'' A new filer would not have a CIK or have filed a Form ID 
to amend. Information previously reported on Form ID will continue to 
be able to be corrected or updated through the EDGAR Filer or EDGAR 
Online Forms website. As a result, applicants will not need to amend 
Forms ID.
    2. Amend Part I of Form ID to
     Refer consistently to ``applicant'' rather than 
``registrant'';
     Clarify how to present an individual's name;
     Delete the subsection regarding former name as 
unnecessary;
     Clarify that a foreign address must include the 
name of the foreign country rather than the name of a state;
     Clarify that a foreign telephone number must 
include a country code in addition to an area code; \32\
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    \32\ The described amendments to clarify what foreign addresses 
and telephone numbers must include also are proposed as to Parts II, 
III and IV of Form ID.
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     Add an applicant type checkbox for individual 
applicants that is to be marked by applicants, as applicable, in 
addition to one of the three types (filer, filing agent and training 
agent) currently on the form;\33\ and
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    \33\ Unlike the proposed amendments relating directly to 
applicant type, the adopted amendments to Part I of Form ID and Part 
I of the General Instructions do not include a checkbox for, or 
reference to, foreign private issuers, respectively. We believe that 
we do not currently need that type of information.
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     Delete the last three subsections of the part 
relating to the superseded concepts of initial and amended 
applications.
    3. Amend Part II of Form ID to
     Revise the heading of the part to clarify that 
it applies only to filers that are not individuals;
     Delete the subsection asking whether the 
applicant currently files with the Commission and, if so, what at least 
one of the applicant's Commission file numbers is (this information no 
longer is necessary);
     Refer consistently to ``filer'' rather than 
``registrant'';
     Add subsections for the name under which the 
filer does business and, for foreign issuer \34\ filers, the name of 
the filer in any language other than English, if applicable;\35\ and
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    \34\ The term ``foreign issuer'' as used in this release is 
defined in Securities Act Rule 405 [17 CFR 230.405] and Exchange Act 
Rule 3b-4(b) [17 CFR 240.3b-4(b)].
    \35\ Unlike the proposed amendments to Part II of Form ID and 
Part II of the General Instructions, the adopted amendments refer to 
foreign issuers rather than foreign private issuers to cover 
additional types of filers that may have foreign language names. 
Also unlike the proposed amendments, the adopted amendments clarify 
that a foreign name entry is required only where applicable.
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     Clarify that a Social Security number must not 
be entered as the filer's tax or federal identification number.
    4. Amend Part III of Form ID to delete the subsection regarding the 
EDGAR Private Mail system that no longer exists.
    5. Amend Part V of Form ID to add a warning regarding federal 
criminal liability for misstatements or omissions.
    6. Amend the statutory authority section immediately below Part V 
of Form ID to make two authority citations more precise and to correct 
a typographical error in another citation.
    7. Amend the introductory section of the General Instructions to 
Form ID to
     Delete the superseded reference to amendments;
     Delete the language cautioning that an 
incomplete form may delay codes because a complete form will be 
necessary to obtain codes;
     Add descriptions of the requirements to file 
Form ID electronically and fax to the Commission a notarized document, 
manually signed by the applicant over a typed signature, that confirms 
the authenticity of the Form ID;\36\ and
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    \36\ The adopted amendment, unlike the proposal, also includes 
in the description the requirement to place in the notarized 
authenticating document the accession number of the related 
electronic Form ID filing when electronic filing occurs first. This 
will assist in processing.
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     Add contact information for questions.
    8. Amend Part I of the General Instructions to Form ID to
     Add and define the applicant type 
``Individual'';
     Place the applicant type definitions in bullet 
format;
     Add the requirement that the applicant's 
individual status be indicated, as applicable; and
     Delete all the text after the applicant type 
definitions because that text addresses the superseded notions of 
initial and amended Form ID filings.
    9. Amend Part II of the General Instructions to Form ID to
     Clarify in the parenthetical in the heading that 
Part II of Form ID only should be completed by filers that are not 
individuals;
     Refer consistently to ``filer'' rather than 
``registrant'';
     Clarify in the text that Part II of Form ID does 
not apply to individuals and that, accordingly, a Social Security 
number must not be entered as a tax or federal identification number;
     Clarify that if an investment company filer is 
organized as a series company, the investment company may use the tax 
or federal identification number of any one of its constituent series;
     Clarify that issuers that have applied for but 
not yet received their tax or federal identification number must 
include all zeroes;
     Provide that foreign issuers that do not have a 
tax or federal identification number must include all zeroes;
     Define the term ``foreign issuer'';
     Provide that foreign issuers should include 
their country of organization;
     Provide that a foreign issuer must provide its 
``doing business as'' name in the language of the name under which it 
does business and must provide its foreign language name, if any;
     Provide that if the filer's fiscal year does not 
end on the same date each year (e.g., falls on the last Saturday in 
December), the filer must enter the date the current fiscal year will 
end; and
     Delete the sentence regarding individuals' 
providing state of incorporation or organization information or fiscal 
year end since

[[Page 22707]]

individuals no longer will be filling in Part II of Form ID.
    10. Amend Part III of the General Instructions to Form ID to 
replace all the text, after the first sentence, regarding the EDGAR 
Private Mail system and Internet e-mail with text that omits reference 
to the now defunct EDGAR Private Mail system and instead provides 
guidance regarding default and additional per filing e-mail contact 
addresses.
    11. Amend Part IV of the General Instructions to Form ID to add a 
sentence directing applicants to advise us through the EDGAR filing Web 
site of changed address information to help assure that account 
statements reach the specified contact person.
    12. Amend Part V of the General Instructions to Form ID to add 
guidance on how to sign the form.

III. Paperwork Reduction Act

    The amendments will affect one form, Form ID, that contains 
``collection of information'' requirements within the meaning of the 
Paperwork Reduction Act of 1995.\37\ We published a notice requesting 
comment on the collection of information requirements relating to the 
Proposing Release in general. We solicited comment on, in particular, 
the accuracy of our estimate that no additional burden would result 
from the proposed amendments. We did not receive any comments on the 
Paperwork Reduction Act analysis contained in the Proposing 
Release.\38\
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    \37\ 44 U.S.C. 3501 et seq.
    \38\ We estimate that a total of 196,800 respondents file Form 
ID (OMB Control Number 3235-0328) each year at an estimated .15 
hours per response for a total annual burden of 29,520 hours.
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    Compliance with the adopted amendments will be mandatory. The 
information required by the amendments will be kept confidential by the 
Commission, subject to a request under the Freedom of Information 
Act.\39\
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    \39\ 5 U.S.C. 552. The Commission's regulations that implement 
the Act are at 17 CFR 200.80 et seq.
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    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid control number. The title of the affected information 
collection is the EDGAR Form ID. We expect that the adopted amendments 
will obligate applicants to disclose on Form ID essentially the same 
information they are required to disclose today.\40\
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    \40\ The addition of a requirement to provide in an 
authenticating document the accession number of the related 
electronic Form ID filing, where applicable, creates an additional 
burden so small it is not quantifiable. The other changes related to 
Form ID are minor and do not add any collection of information 
burden.
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IV. Cost-Benefit Analysis

    We expect that the adopted amendments will benefit investors, 
applicants and the Commission.

A. Benefits

    The adopted amendments should benefit investors, applicants and the 
Commission because the information contained in Form ID should be 
transmitted in a speedy, secure and reliable manner and would directly 
enter the Commission's records rather than be keyed in by Commission 
personnel, which currently must be done. This should improve the speed 
and accuracy of the process that leads to applicants' receipt of the 
codes needed to file on EDGAR. This improvement should enable 
applicants to disseminate information sooner to investors.

B. Expected Costs

    We expect that the adopted amendments will result in some costs to 
applicants. However, we expect that many applicants will not bear the 
full range of costs resulting from the adoption of these amendments for 
the reasons described below.
    As noted above, we expect that the adopted amendments will obligate 
applicants to disclose on Form ID essentially the same information that 
they are required to disclose today. We therefore believe that the 
overall information collection burden of Form ID will remain 
approximately the same. As a result, the cost of collecting the 
information will remain approximately the same.
    The expected costs of mandated electronic filing of Form ID consist 
of both initial and ongoing costs. Initial costs include those 
associated with learning about the electronic filing system, obtaining 
access to a computer, placing the filing data in electronic format for 
the initial electronic filing and subscribing to an Internet service 
provider. Ongoing costs are those associated with maintaining the 
framework developed through the initial costs by updating information 
required by Form ID.
    We expect that most applicants will need to incur few, if any, 
additional costs from electronic filing. Applicants who are new filers 
likely will be prepared to become electronic filers and, accordingly, 
will be prepared to access the EDGAR Filer Management Web site.
    To the extent applicants who file Forms ID are officers or 
directors, we understand that many issuers will help them or make their 
filings for them. To the extent officers and directors do not receive 
this help, we believe many already will have the computer equipment and 
Internet access to enable them to file using the EDGAR Filer Management 
Web site.
    Even issuers that file Form ID electronically on their own behalf 
or help their officers or directors, whether to a greater or lesser 
extent, to file electronically are not likely to incur additional 
costs. Issuers are required to file on EDGAR and generally have the 
needed computer equipment and Internet service provider access to 
enable them to file or facilitate filing using the EDGAR Filer 
Management Web site.
    Finally, we believe that faxing a notarized authenticating document 
will result in negligible additional costs. An applicant currently must 
incur the cost of faxing a Form ID, and the information in the 
authenticating document would be no more extensive than would be needed 
for the Form ID itself.\41\ Based on what appear to be common practices 
at Washington, DC area banks, we believe that banks generally will 
notarize customer documents for no additional fee and that those banks 
that notarize for non-customers generally will notarize a document for 
less than ten dollars.
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    \41\ A minor exception is that the notarized authenticating 
document would need to include the accession number of the related 
electronic Form ID filing when electronic filing occurs first.
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    As noted above, two commenters expressed the view that not all 
persons and entities required to file have access to computers and the 
Internet and one commenter asserted that not all natural person filers 
have the computer skills to fill out on-line forms. All persons and 
entities required to file will need direct or indirect access to 
computers and the Internet regardless whether Form ID must be filed 
electronically in order to file on EDGAR. As to natural persons in 
particular, we believe many will have help from issuers, and those who 
do not will find it relatively easy and straightforward to fill in the 
few simple fields required to complete Form ID.
    Also as noted above, some commenters objected to the notarization 
requirement as time consuming and costly (at least insofar as the value 
of the time required) especially for foreign applicants. We acknowledge 
these objections but believe the vast majority of applicants will have 
ready access to a notary and will be able to make arrangements in 
advance of signing to minimize the time required for notarization.

[[Page 22708]]

V. Effect on Efficiency, Competition and Capital Formation

    Section 23(a)(2) of the Exchange Act \42\ requires us, when 
adopting rules under the Exchange Act, to consider the impact that any 
new rule would have on competition. In addition, Section 23(a)(2) 
prohibits us from adopting any rule that would impose a burden on 
competition not necessary or appropriate in furtherance of the purposes 
of the Exchange Act. Furthermore, Section 2(b) of the Securities Act 
\43\ and Section 3(f) of the Exchange Act \44\ require us, when 
engaging in rulemaking where we are required to consider or determine 
whether an action is necessary or appropriate in the public interest, 
to consider, in addition to the protection of investors, whether the 
action will promote efficiency, competition, and capital formation.
---------------------------------------------------------------------------

    \42\ 15 U.S.C. 78w(a)(2).
    \43\ 15 U.S.C. 77b(b).
    \44\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    The adopted amendments regarding mandated electronic filing of Form 
ID are intended to facilitate the more efficient transmission and 
processing of the information that Form ID requires. This should 
improve the speed and accuracy of the process that leads to applicants' 
receipt of the codes needed to file on EDGAR. This improvement would 
enable applicants to disseminate information sooner to investors. As a 
result, the amendments should improve investors' ability to make 
informed investment and voting decisions. Informed investor decisions 
generally promote market efficiency and capital formation. We believe 
the adopted amendments will not impose a burden on competition.
    In the Proposing Release, we considered the amendments in light of 
the standards set forth in the above statutory sections. We solicited 
comment on whether, if adopted, the proposed amendments would impose a 
burden on competition. We also requested comment on whether, if 
adopted, the proposed amendments would promote efficiency, competition 
and capital formation. Finally, we requested commenters to provide 
empirical data and other factual support for their views if possible. 
No commenter addressed anti-competitive effects.\45\
---------------------------------------------------------------------------

    \45\ We note and address comments regarding streamlining and the 
cost of the Form ID filing process in Sections II.B and IV.B of this 
release
---------------------------------------------------------------------------

VI. Final Regulatory Flexibility Analysis

    This Final Regulatory Flexibility Analysis or FRFA has been 
prepared in accordance with the Regulatory Flexibility Act.\46\ This 
FRFA relates to amendments regarding mandated electronic filing of Form 
ID.
---------------------------------------------------------------------------

    \46\ 5 U.S.C. 603.
---------------------------------------------------------------------------

A. Reasons for the Proposed Action

    An applicant uses Form ID to apply for the access codes required to 
file electronically on EDGAR. We believe the adopted amendments will 
benefit investors, applicants and the Commission.

B. Significant Issues Raised by Public Comment

    The Initial Regulatory Flexibility Analysis (``IRFA'') appeared in 
the Proposing Release. We requested comment on any aspect of the IRFA, 
including the number of small entities that would be effected by the 
proposals, the nature of the impact, and how to quantify the impact of 
the proposals. We received no comment letters specifically responding 
to the request.

C. Small Entities Subject to the Proposed Revisions

    The amendments will affect small entities that are applicants that 
are not natural persons. Exchange Act Rule 0-10(a) \47\ defines an 
entity, other than an investment company, to be a ``small business'' or 
``small organization'' if it had total assets of $5 million or less on 
the last day of its most recent fiscal year. For purposes of the 
Regulatory Flexibility Act, an investment company is a small entity if 
it, together with other investment companies in the same group of 
related investment companies, has net assets of $50 million or less as 
of the end of its most recent fiscal year. The adopted amendments will 
apply to all small entities that are new issuers or other applicants.
---------------------------------------------------------------------------

    \47\ 17 CFR 240.0-10(a).
---------------------------------------------------------------------------

D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    Before the effective date of the rule and form amendments adopted 
in this release, applicants must file Forms ID in paper by fax. The 
adopted amendments will require applicants to file these forms 
electronically and fax to the Commission a notarized authenticating 
document containing at least the information the Form ID contains. 
Because applicants already file Forms ID in paper by fax, the only 
additional professional skills applicants will need will be those 
required to file electronically. We expect that filing electronically 
will increase costs incurred by some small entities. However, we expect 
that many small entities will not bear the full range of costs 
resulting from the adoption of these amendments for the reasons 
described below.
    The expected costs of mandated electronic filing consist of both 
initial and ongoing costs. Initial costs include those associated with 
learning about the electronic filing system, obtaining access to a 
computer, placing the filing data in electronic format for the initial 
electronic filing and subscribing to an Internet service provider. 
Ongoing costs are those associated with maintaining the framework 
developed through the initial costs by updating information required by 
Form ID.
    We expect that many small entity applicants will need to incur few, 
if any, additional costs for electronic filing. Some issuers may help 
related small entity applicants (such as subsidiaries) or make the 
related small entity applicants' filings for them. To the extent small 
entity applicants do not receive this help, we believe many already 
will have the computer equipment and Internet access to enable them to 
file using the EDGAR Filer Management website.
    Even small entity issuers that file Form ID electronically on their 
own behalf or help other small entity applicants, whether to a greater 
or lesser extent, to file electronically are not likely to incur 
additional costs. Small entity issuers are required to file on EDGAR 
and generally have the needed computer equipment and Internet service 
provider access to enable them to file or facilitate filing using the 
EDGAR Filer Management Web site.
    Finally, we believe that faxing a notarized authenticating document 
will result in negligible additional costs. A small entity applicant 
currently must incur the cost of faxing a Form ID and the information 
in the authenticating document would be no more extensive than would be 
needed for the Form ID itself.\48\ Based on what appear to be common 
practices at Washington, DC area banks, we believe that banks generally 
will notarize customer documents for no additional fee and that those 
banks that notarize for non-customers generally will notarize a 
document for less than ten dollars.\49\
---------------------------------------------------------------------------

    \48\ A minor exception is that the notarized authenticating 
document would need to include the accession number of the related 
electronic Form ID filing when electronic filing occurs first.
    \49\ One commenter claimed that the time required for 
notarization would be especially burdensome for small businesses 
because they are less likely to have a notary on the premises. We 
acknowledge this concern, but believe the vast majority of small 
business applicants will have reasonable access to a notary and will 
be able to make arrangements in advance of signing to minimize the 
time required for notarization.

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[[Page 22709]]

E. Agency Action to Minimize Effect on Small Entities

    The Regulatory Flexibility Act directs the Commission to consider 
significant alternatives that would accomplish our stated objectives, 
while minimizing any significant adverse impact on small entities. In 
connection with the amendments, we considered the following 
alternatives:
     The establishment of differing compliance or 
reporting requirements or timetables that take into account the 
resources available to small entities;
     The clarification, consolidation, or 
simplification of filing requirements;
     The use of performance rather than design 
standards; and
     An exemption from the electronic filing 
requirements, or any part of them, for small entities.
    We believe that differing compliance or reporting requirements or 
timetables for small entities (or a partial or complete exemption) 
would be inconsistent with the more efficient transmission and 
processing of the information Form ID requires in a manner that will 
benefit investors, applicants and the Commission. We did not receive 
any response to our solicitation of comment on whether differing 
compliance or reporting requirements or timetables for small entities 
would be consistent with the described goals. We believe that the 
adopted electronic filing requirements are clear and straightforward. 
We have attempted to design an electronic filing system for Forms ID 
that will be simple for all filers to use. Therefore, it does not seem 
necessary to develop separate requirements for small entities. We have 
used design rather than performance standards in connection with the 
electronic filing requirements because we want the Commission to be 
able to process readily the information involved. We do not believe 
that performance standards for small entities would be consistent with 
the purpose of the amendments.

VII. Administrative Procedure Act

    The Administrative Procedure Act generally requires that an agency 
publish an adopted rule in the Federal Register 30 days before it 
becomes effective.\50\ This requirement, however, does not apply if the 
agency finds good cause for making the rule effective sooner.\51\
---------------------------------------------------------------------------

    \50\ See U.S.C. 553(d).
    \51\ See U.S.C. 553(d).
---------------------------------------------------------------------------

    The Commission finds good cause to make the changes to Form ID 
effective on April 26, 2004.\52\ The changes to Form ID are 
interrelated with other programming changes being made to EDGAR. These 
other programming changes must be implemented by April 26, 2004 to 
avoid significant system operating problems and cost overruns. 
Moreover, the Form ID changes are not voluminous or substantive and 
should not create any hardship for those who seek to access the new 
system.
---------------------------------------------------------------------------

    \52\ This finding also satisfies the requirements of 5 U.S.C. 
808(2), allowing rules to become effective ``at such time as the 
Federal agency promulgating the rule determines'' if the agency 
``for good cause'' finds that notice is impractical, unnecessary, or 
contrary to the public interest.
---------------------------------------------------------------------------

    Finally, we stated in the Proposing Release that the changes would 
likely be effective in late April possibly without much notice, and no 
commenter suggested there would be any hardship associated with this 
time frame. In the unlikely event that an applicant experiences any 
unanticipated hardship caused by the shortened notice period, the 
Commission staff will use reasonable efforts to assist the applicant to 
obtain access codes on a timely basis.

VIII. Statutory Basis

    We are adopting the amendments to Regulation S-T and Form ID under 
the authority in Section 19(a) \53\ of the Securities Act, Sections 
3(b),\54\ 13(a),\55\ 23(a) \56\ and 35A \57\ of the Exchange Act, 
Section 20 \58\ of the Public Utility Holding Company Act, Section 319 
\59\ of the Trust Indenture Act of 1939 and Sections 30 \60\ and 38 
\61\ of the Investment Company Act of 1940.
---------------------------------------------------------------------------

    \53\ 15 U.S.C. 77s(a).
    \54\ 15 U.S.C. 78c(b).
    \55\ 15 U.S.C. 78m(a).
    \56\ 15 U.S.C. 78w(a).
    \57\ 15 U.S.C. 78ll.
    \58\ 15 U.S.C. 79t.
    \59\ 15 U.S.C. 77sss.
    \60\ 15 U.S.C. 80a-29.
    \61\ 15 U.S.C. 80a-37.
---------------------------------------------------------------------------

Text of Rule Amendments

List of Subjects in 17 CFR Parts 232, 239, 249, 259, 269 and 274

    Reporting and recordkeeping requirements, Securities.


0
For the reasons set forth above, we amend title 17, chapter II of the 
Code of Federal Regulations as follows.

PART 232--REGULATION S-T--GENERAL RULES AND REGULATIONS FOR 
ELECTRONIC FILINGS

0
1. The authority citation for part 232 continues to read in part as 
follows:

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a), 
78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 79t(a), 80a-8, 80a-
29, 80a-30 and 80a-37.
* * * * *

0
2. Amend Sec.  232.10 by revising paragraph (b) to read as follows:


Sec.  232.10  Application of part 232.

* * * * *
    (b) Each registrant, third party filer, or agent to whom the 
Commission previously has not assigned a Central Index Key (CIK) code, 
must, before filing on EDGAR:
    (1) File electronically a Form ID (Sec. Sec.  239.63, 249.446, 
259.602, 269.7 and 274.402 of this chapter), the uniform application 
for access codes to file on EDGAR, and
    (2) File in paper by fax, within two business days before or after 
electronically filing the Form ID, a notarized document, manually 
signed by the applicant over the applicant's typed signature, that 
includes the information contained in the Form ID, confirms the 
authenticity of the Form ID and, if filed after electronically filing 
the Form ID, includes the accession number assigned to the 
electronically filed Form ID as a result of its filing.
* * * * *

0
3. Amend Sec.  232.101 by adding paragraph (a)(1)(ix) to read as 
follows:


Sec.  232.101  Mandated electronic submissions and exceptions.

    (a) * * *
    (1) * * *
    (ix) Form ID (Sec. Sec.  239.63, 249.446, 259.602, 269.7 and 
274.402 of this chapter), except that the authenticating document 
required by Rule 10(b) of Regulation S-T (Sec.  232.10(b)) shall not be 
filed in electronic format, and related correspondence and supplemental 
information submitted after filing Form ID shall not be submitted in 
electronic format.
* * * * *

0
4. Amend Sec.  232.104 by revising paragraph (a) to read as follows:


Sec.  232.104  Unofficial PDF copies included in an electronic 
submission.

    (a) An electronic submission, other than a Form 3 (Sec.  249.103 of 
this chapter), a Form 4 (Sec.  249.104 of this chapter), a Form 5 
(Sec.  249.105 of this chapter) or a Form ID (Sec. Sec.  239.63, 
249.446, 259.602, 269.7 and 274.402 of this chapter), may include one

[[Page 22710]]

unofficial PDF copy of each electronic document contained within that 
submission, tagged in the format required by the EDGAR filer manual.
* * * * *

0
5. Amend Sec.  232.201 by revising paragraph (a) introductory text to 
read as follows:


Sec.  232.201  Temporary hardship exemption.

    (a) If an electronic filer experiences unanticipated technical 
difficulties preventing the timely preparation and submission of an 
electronic filing, other than a Form 3 (Sec.  249.103 of this chapter), 
a Form 4 (Sec.  249.104 of this chapter), a Form 5 (Sec.  249.105 of 
this chapter) or a Form ID (Sec. Sec.  239.63, 249.446, 259.602, 269.7 
and 274.402 of this chapter), the electronic filer may file the subject 
filing, under cover of Form TH (Sec. Sec.  239.65, 249.447, 259.604, 
269.10 and 274.404 of this chapter), in paper format no later than one 
business day after the date on which the filing was to be made.
* * * * *

0
6. Amend Sec.  232.202 by revising paragraph (a) introductory text to 
read as follows:


Sec.  232.202  Continuing hardship exemption.

    (a) An electronic filer may apply in writing for a continuing 
hardship exemption if all or part of a filing or group of filings, 
other than a Form ID (Sec. Sec.  239.63, 249.446, 259.602, 269.7 and 
274.402 of this chapter), otherwise to be filed in electronic format 
cannot be so filed without undue burden or expense. Such written 
application shall be made at least ten business days prior to the 
required due date of the filing(s) or the proposed filing date, as 
appropriate, or within such shorter period as may be permitted. The 
written application shall contain the information set forth in 
paragraph (b) of this section.
* * * * *

PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

0
7. The authority citation for Part 239 continues to read in part as 
follows:

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77sss, 78c, 
78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 79(e), 79f, 79g, 79j, 
79l, 79m, 79n, 79q, 79t, 80a-8, 80a-24, 80a-26, 80a-29, 80a-30 and 
80a-37, unless otherwise noted.
* * * * *

0
8. Revise Sec.  239.63 to read as follows:


Sec.  239.63  Form ID, uniform application for access codes to file on 
EDGAR.

    Form ID must be filed by registrants, third party filers, or their 
agents, to whom the Commission previously has not assigned a Central 
Index Key (CIK) code, to request the following access codes to permit 
filing on EDGAR:
    (a) Central Index Key (CIK)--uniquely identifies each filer, filing 
agent, and training agent.
    (b) CIK Confirmation Code (CCC)--used in the header of a filing in 
conjunction with the CIK of the filer to ensure that the filing has 
been authorized by the filer.
    (c) Password (PW)--allows a filer, filing agent or training agent 
to log on to the EDGAR system, submit filings, and change its CCC.
    (d) Password Modification Authorization Code (PMAC)--allows a 
filer, filing agent or training agent to change its Password.

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

0
9. The authority citation for Part 249 continues to read in part as 
follows:

    Authority: 15 U.S.C. 78a et seq. and 7201 et seq.; and 18 U.S.C. 
1350, unless otherwise noted.

0
10. Revise Sec.  249.446 to read as follows:


Sec.  249.446  Form ID, uniform application for access codes to file on 
EDGAR.

    Form ID must be filed by registrants, third party filers, or their 
agents, to whom the Commission previously has not assigned a Central 
Index Key (CIK) code, to request the following access codes to permit 
filing on EDGAR:
    (a) Central Index Key (CIK)--uniquely identifies each filer, filing 
agent, and training agent.
    (b) CIK Confirmation Code (CCC)--used in the header of a filing in 
conjunction with the CIK of the filer to ensure that the filing has 
been authorized by the filer.
    (c) Password (PW)--allows a filer, filing agent or training agent 
to log on to the EDGAR system, submit filings, and change its CCC.
    (d) Password Modification Authorization Code (PMAC)--allows a 
filer, filing agent or training agent to change its Password.

PART 259--FORMS PRESCRIBED UNDER THE PUBLIC UTILITY HOLDING COMPANY 
ACT OF 1935

0
11. The authority citation for Part 259 continues to read as follows:

    Authority: 15 U.S.C. 79e, 79f, 79g, 79j, 79l, 79m, 79n, 79q, 
79t.

0
12. Revise Sec.  259.602 to read as follows:


Sec.  259.602  Form ID, uniform application for access codes to file on 
EDGAR.

    Form ID must be filed by registrants, third party filers, or their 
agents, to whom the Commission previously has not assigned a Central 
Index Key (CIK) code, to request the following access codes to permit 
filing on EDGAR:
    (a) Central Index Key (CIK)--uniquely identifies each filer, filing 
agent, and training agent.
    (b) CIK Confirmation Code (CCC)--used in the header of a filing in 
conjunction with the CIK of the filer to ensure that the filing has 
been authorized by the filer.
    (c) Password (PW)--allows a filer, filing agent or training agent 
to log on to the EDGAR system, submit filings, and change its CCC.
    (d) Password Modification Authorization Code (PMAC)--allows a 
filer, filing agent or training agent to change its Password.

PART 269--FORMS PRESCRIBED UNDER THE TRUST INDENTURE ACT OF 1939

0
13. The authority citation for Part 269 continues to read as follows:

    Authority: 15 U.S.C. 77ddd(c), 77eee, 77ggg, 77hhh, 77iii, 
77jjj, 77sss, 78ll(d), unless otherwise noted.


0
14. Revise Sec.  269.7 to read as follows:


Sec.  269.7  Form ID, uniform application for access codes to file on 
EDGAR.

    Form ID must be filed by registrants, third party filers, or their 
agents, to whom the Commission previously has not assigned a Central 
Index Key (CIK) code, to request the following access codes to permit 
filing on EDGAR:
    (a) Central Index Key (CIK)--uniquely identifies each filer, filing 
agent, and training agent.
    (b) CIK Confirmation Code (CCC)--used in the header of a filing in 
conjunction with the CIK of the filer to ensure that the filing has 
been authorized by the filer.
    (c) Password (PW)--allows a filer, filing agent or training agent 
to log on to the EDGAR system, submit filings, and change its CCC.
    (d) Password Modification Authorization Code (PMAC)--allows a 
filer, filing agent or training agent to change its Password.

PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1940

0
15. The authority citation for Part 274 continues to read in part as 
follows:


[[Page 22711]]


    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l, 78m, 
78n, 78o(d), 80a-8, 80a-24, 80a-26, and 80a-29, unless otherwise 
noted.
* * * * *

0
16. Revise Sec.  274.402 to read as follows:


Sec.  274.402  Form ID, uniform application for access codes to file on 
EDGAR.

    Form ID must be filed by registrants, third party filers, or their 
agents, to whom the Commission previously has not assigned a Central 
Index Key (CIK) code, to request the following access codes to permit 
filing on EDGAR:
    (a) Central Index Key (CIK)--uniquely identifies each filer, filing 
agent, and training agent.
    (b) CIK Confirmation Code (CCC)--used in the header of a filing in 
conjunction with the CIK of the filer to ensure that the filing has 
been authorized by the filer.
    (c) Password (PW)--allows a filer, filing agent or training agent 
to log on to the EDGAR system, submit filings, and change its CCC.
    (d) Password Modification Authorization Code (PMAC)--allows a 
filer, filing agent or training agent to change its Password.

0
17. Revise Form ID (referenced in Sec.  239.63, Sec.  249.446, Sec.  
259.602, Sec.  269.7 and Sec.  274.402) to read as follows:

    Note: The text of Form ID does not and this amendment will not 
appear in the Code of Federal Regulations.

Form ID Uniform Application for Access Codes to File on EDGAR

Form ID
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[[Page 22712]]


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[[Page 22713]]


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[[Page 22714]]


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[[Page 22715]]


[GRAPHIC] [TIFF OMITTED] TR26AP04.040


    By the Commission.

    Dated: April 21, 2004.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 04-9422 Filed 4-21-04; 2:31 pm]
BILLING CODE 8010-01-C