[Federal Register Volume 74, Number 48 (Friday, March 13, 2009)]
[Rules and Regulations]
[Pages 10836-10839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5377]
=======================================================================
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 232, 239, 249, 269 and 274
[Release Nos. 33-9013, 34-59536, 39-2463, IC-28642]
Attaching Authenticating Documents to Online Form ID Applications
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are adopting rule and form amendments that allow applicants
for EDGAR access codes using Form ID to submit their authenticating
documents by attaching them to their online Form ID applications in
Portable Document Format (PDF) as an alternative to submitting the
documents by fax.
DATES: Effective Date: March 16, 2009.
FOR FURTHER INFORMATION CONTACT: Corey Jennings, Special Counsel, at
(202) 551-3258, for information on legal issues, or Cecile Peters,
Chief, Information Technology Office, (202) 551-3600, for information
on technical issues, Division of Corporation Finance, U.S. Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20459-3628.
SUPPLEMENTARY INFORMATION: We are adopting amendments that will revise
Rules 10 \1\ and 101 \2\ under Regulation S-T \3\ and Form ID.\4\
---------------------------------------------------------------------------
\1\ 17 CFR 232.10.
\2\ 17 CFR 232.101.
\3\ 17 CFR 232.10 et seq.
\4\ 17 CFR 239.63, 249.446, 269.7 and 274.402.
---------------------------------------------------------------------------
I. Background
Form ID is used to apply for access codes to file information
electronically through the Commission's Electronic Data Gathering,
Analysis and Retrieval or ``EDGAR'' system. EDGAR access codes include
a CIK (Central Index Key) number, which serves as a permanent, public
filer identification number, as well as confidential security codes.
Applicants submitting Form ID applications must submit them online.
They also must fax to the Commission a notarized document containing
the same information as contained in the Form ID application. The
additional document is called an ``authenticating document.''
Commission staff matches applicants' online submissions with their
faxed authenticating documents before approving the Form ID application
and allowing applicants to generate their EDGAR access codes.\5\
---------------------------------------------------------------------------
\5\ We approved this process in Release No. 33-8410 (Apr. 21,
2004) [69 FR 22704 (Apr. 26, 2004)], available at http://www.sec.gov/rules/final/33-8410.htm.
---------------------------------------------------------------------------
Today, we adopt amendments that allow Form ID applicants to submit
their authenticating documents as PDF attachments to their online Form
ID applications. This provides an alternative method to submitting the
authenticating documents by fax. The use of a PDF attachment may
provide a simpler and easier method for some applicants to submit their
authenticating documents. Filers can use a fillable PDF version of Form
ID available on the Commission's Web site to create and print the
document. For Form ID applications with the authenticating documents
attached, Commission staff will no longer have to match faxed
authenticating documents manually with online submissions. This
alternative method should enhance the processing efficiency of these
Form ID applications. The amendments do not impose any new burdens or
requirements on Form ID applicants or others.
The effective date of the new rules, March 16, 2009, coincides with
the effective date of our new rules requiring that Form D filings be
made online, through the Internet, using the EDGAR system.\6\ At the
time we adopted the new Form D rules, we estimated they would result in
an increase of approximately 20,000, or 40%, in the number of Form ID
applications that we receive annually.\7\ Although many Form ID
applicants will be applying for EDGAR access codes to make filings
other than Form D filings, the increased efficiency in use of
Commission staff resources will benefit all applicants. We expect
adoption of the Form ID amendments should assist the staff in better
managing the expected increase in Form ID applications resulting from
the Form D amendments.
---------------------------------------------------------------------------
\6\ We adopted the rules requiring online filing of Form D
information in Release No. 33-8891 (Feb. 6, 2008) [73 FR 10592 (Feb.
27, 2008)], available at http://www.sec.gov/rules/final/2008/33-8891.pdf.
\7\ See id. at 70 [73 FR 10610]. We expect an increase because
Form D filings previously were made only in paper format, and no
Form ID filings were required because filers do not need EDGAR
access codes to make paper filings.
---------------------------------------------------------------------------
At the time we adopted the Form D amendments, we acknowledged
concern over the burdens of the Form ID authentication process,
particularly in the context of mandating Form D online filing.\8\ We
stated that we planned to consider ways to simplify the Form ID
authentication process before Form D online filing became mandatory on
March 16, 2009.\9\ The Form ID amendments we adopt today address
concerns over the burdens of the Form ID authentication process. They
make the process simpler and easier for some applicants. We are hopeful
that the increased Commission staff efficiency in processing Form ID
applications with attached authenticating documents will allow Form ID
applicants to get their EDGAR access codes more quickly. However, we
continue to study ways to further streamline the process.
---------------------------------------------------------------------------
\8\ Id. at 58 [73 FR 10607].
\9\ Id. at 59-60 [73 FR 10607-10608].
---------------------------------------------------------------------------
II. Discussion of the Amendments
A. Optional Attachment of Authenticating Document to Online Form ID
Application
We are adopting minor revisions to Regulation S-T \10\ to allow
applicants for EDGAR access codes using Form ID to attach their
required authenticating document electronically as a PDF document to
their online Form ID
[[Page 10837]]
application.\11\ The authenticating document is a paper version of the
online Form ID submission that has been notarized. It contains the same
information, but is manually signed and witnessed by a notary public.
Rule 10 of Regulation S-T currently requires that an applicant fax its
authenticating document to the Commission within two days before or
after submitting its online Form ID application.\12\ The amendments
revise subparagraph (b) of Rule 10 by supplementing the faxing
requirement with the option of electronically attaching a PDF version
of the authenticating document to an applicant's online Form ID
application.\13\ The amendments also revise subparagraph (a)(1)(ix) of
Rule 101 of Regulation S-T \14\ to reflect that the authenticating
document required by Rule 10(b) of Regulation S-T may be filed either
by fax or electronically as an uploaded PDF attachment to an
applicant's online Form ID application.\15\
---------------------------------------------------------------------------
\10\ Regulation S-T is the general regulation governing
electronic filing of information with the Commission. In addition to
complying with Regulation S-T, filers must submit electronic filings
in accordance with the instructions in the Commission's EDGAR Filer
Manual. We also are amending the EDGAR Filer Manual to reflect a
Form ID filer's ability to attach a PDF copy of its authenticating
document to its online Form ID application.
\11\ Filers that previously have been assigned a CIK number are
not eligible to use Form ID. This category includes filers that
previously have made paper filings with the Commission, such as Form
D filings since 1986 that have been assigned CIK numbers by the
Commission staff. These filers need to obtain confidential security
codes to file using the EDGAR system, even though they already have
a CIK number. Prior paper filers that have a CIK number but need
security access codes may obtain the codes by using the ``Convert
Paper Only Filer to Electronic Filer'' function on the EDGAR Filer
Management Web site at https://www.filermanagement.edgarfiling.sec.gov and submit their
authenticating documents by fax. For details, see EDGAR Filer
Manual--Volume I, available at http://www.sec.gov/info/edgar/edmanuals.htm.
\12\ To assist Form ID applicants in preparing their
authenticating documents, the Commission maintains a fillable PDF
version of Form ID for them to use on its Web site at http://www.sec.gov/about/forms/formid.pdf. Using this or another version of
Form ID that they may have available, applicants can choose to
prepare the authenticating document, including having it notarized,
before they go online to make their online Form ID submission. Upon
the effectiveness of today's amendments, applicants will be able to
choose to continue faxing their authenticating document or
electronically attach a PDF version of the document at the time of
the actual submission. If they do not have the authenticating
document prepared before they make their online Form ID submission,
they may print out the information they submit on the EDGAR Web
site, have the printout notarized, and fax the notarized document as
their authenticating document. This latter alternative avoids the
necessity of entering the information twice, once on the pre-
prepared authenticating document and again during the online
submission itself. As noted above, however, faxing the document
increases staff processing steps and likely will result in less
timely assignment of EDGAR access codes.
\13\ When we adopted the current rules, we stated that we did
not believe that electronically attaching a PDF copy of the
authenticating document would provide a level of assurance
materially greater than having no authenticating document and that
it would not provide a level of assurance as high as the fax
requirement coupled with our planned human intervention and
verification procedures. We also stated that it was not possible to
upload a PDF attachment to an online Form ID application in our
online system at that time. Release No. 33-8410, at n.31 (Apr. 21,
2004) [69 FR 22704, 27706 n.31 (Apr. 26, 2004)]. Improvements to the
EDGAR system and advancements in PDF technology now make it possible
to upload a PDF attachment to an online Form ID application. We have
used PDF technology internally to upload and disseminate comment
letters onto the EDGAR system. The procedures we will use to process
authenticating documents attached as PDF files will be identical to
our existing human intervention verification procedures. These
factors have led us to conclude that attaching a PDF copy of the
authenticating document provides assurance comparable to that
provided by a faxed document.
\14\ 17 CFR 232.101(a)(1).
\15\ Rule 101(a)(1)(ix) currently provides that the
authenticating document required by Rule 10(b) of Regulation S-T
must be submitted by fax transmission. 17 CFR 232.101(a)(1)(ix).
---------------------------------------------------------------------------
B. Form ID
We are adopting minor revisions to the General Instructions to Form
ID to clarify that applicants may also fulfill the authenticating
document requirement of Rule 10 of Regulation S-T by electronically
attaching a PDF version of the document to their online Form ID
application. Currently, the instructions to Form ID follow Rule 10 of
Regulation S-T, which provides that an applicant may only fax its
authenticating document to the Commission within two days before or
after submitting its electronic Form ID application. We are also
adopting revisions to the General Instructions to Form ID to update the
Commission contact information on the current form.
III. Paperwork Reduction Act
The amendments do not impose any new ``collection of information''
within the meaning of the Paperwork Reduction Act of 1995, nor do they
create any new filing, reporting, recordkeeping, or disclosure
reporting requirements for Form ID filers. Compliance with the adopted
amendments will be optional. The Commission previously obtained a
control number from the Office of Management and Budget (``OMB'') for
this collection of information.\16\
---------------------------------------------------------------------------
\16\ OMB Control No. 3235-0328
---------------------------------------------------------------------------
IV. Cost-Benefit Analysis
We expect that the adopted amendments will neither significantly
benefit Form ID applicants, nor will they impose additional costs on
them, since electronically attaching a PDF copy of their notarized
authenticating document to their electronic Form ID application will be
optional only. We expect that there will be some benefit to investors,
applicants and the Commission because the optional method of
transmitting the authenticating document required of Form ID applicants
may be easier for some applicants. To the extent filers attach the
authenticating document as a PDF file rather than sending a faxed
document, the Commission staff will be able to avoid sorting through
faxes and matching them to online Form ID applications. If many filers
choose this option, we can improve the speed and accuracy of the
process that leads to receipt of EDGAR access codes.
Form ID applicants that choose to transmit their authenticating
documents as PDF attachments will need access to the technology that
allows them to scan their notarized document and electronically attach
it to their online Form ID application. Since this method is optional
and a scanning feature is now quite widely available on many computer
printers, and because the existing process requires access to fax
transmission facilities, we do not feel applicants that choose the
optional PDF attachment method will incur greater costs. Indeed, we
assume filers will choose the option that is least costly.
V. Effect on Efficiency, Competition and Capital Formation
Section 23(a)(2) of the Securities Exchange Act \17\ 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. The amendments we adopt today merely provide an
optional method that allows an applicant to electronically attach a PDF
copy of a notarized Form ID authenticating document to its online Form
ID application. The method will be voluntary and not required. We
believe the amendments will not impose a burden on competition.
---------------------------------------------------------------------------
\17\ 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------
Section 2(b) of the Securities Act \18\ and Section 3(f) of the
Exchange Act \19\ 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. We believe the amendments will have
a negligible impact on efficiency, competition or capital formation.
---------------------------------------------------------------------------
\18\ 15 U.S.C. 77b(b).
\19\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------
[[Page 10838]]
VI. Certain Findings
Under the Administrative Procedure Act (``APA''), notice of
proposed rulemaking is not required when an agency, for good cause,
finds ``that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' \20\ The changes we
are adopting today do not impose new burdens and merely provide an
optional method for applicants to fulfill the authentication
requirements of the Form ID submission process. They do not change the
basic content of the form. In making these changes, we also have
updated certain contact information for Commission staff in the
instructions to Form ID. We therefore believe that publication for
public comment is unnecessary. Accordingly, we find that publishing a
proposed rulemaking notice of these amendments is likewise
unnecessary.\21\
---------------------------------------------------------------------------
\20\ See 5 U.S.C. 553(b)(3)(B).
\21\ For similar reasons, the amendments do not require analysis
under the Regulatory Flexibility Act or a report to Congress under
the Small Business Regulatory Fairness Act. See 5 U.S.C. 601(2) (for
purposes of a Regulatory Flexibility Act analysis, the term ``rule''
means any rule for which the agency publishes a general notice of
proposed rulemaking) and 5 U.S.C. 804(3)(C) (for purposes of
Congressional review of agency rulemaking, the term ``rule'' does
not include any rule of agency organization, procedure or practice
that does not substantially affect the rights or obligations of non-
agency parties).
---------------------------------------------------------------------------
The APA generally requires that an agency publish an adopted rule
in the Federal Register 30 days before it becomes effective.\22\ This
requirement, however, does not apply if the agency finds good cause for
making the rule effective sooner.\23\ The Commission finds good cause
to make the changes to the Form ID application process effective on
March 16, 2009. The changes to the Form ID application process are
optional and therefore do not impose any new burdens on applicants.
They are related to changes being made to our EDGAR system in
expectation of March 16, 2009, when mandatory electronic filing of Form
D information becomes effective and when we expect to begin
experiencing a substantial increase in the number of new Form ID
applications per year. We see no reason to delay the effectiveness of
the amendments for 30 days after these rule changes are published in
the Federal Register. We believe Form ID applicants, investors and the
Commission should be able to enjoy the limited benefits of these
changes as soon as practicable and find there is good cause for the
amendments to take effect on March 16, 2009.
---------------------------------------------------------------------------
\22\ 5 U.S.C. 553(d).
\23\ Id.
---------------------------------------------------------------------------
VII. Statutory Basis and Text of Rule Amendments
We are adopting the amendments to Regulation S-T and Form ID under
the authority in Section 19(a) \24\ of the Securities Act, Sections
3(b),\25\ 13(a),\26\ 23(a) \27\ and 35A \28\ of the Exchange Act,
Section 319 \29\ of the Trust Indenture Act of 1939 and Sections 30
\30\ and 38 \31\ of the Investment Company Act of 1940.
---------------------------------------------------------------------------
\24\ 15 U.S.C. 77s(a).
\25\ 15 U.S.C. 78c(b).
\26\ 15 U.S.C. 78m(a).
\27\ 15 U.S.C. 78w(a).
\28\ 15 U.S.C. 78ll.
\29\ 15 U.S.C. 77sss.
\30\ 15 U.S.C. 80a-29.
\31\ 15 U.S.C. 80a-37.
---------------------------------------------------------------------------
Text of Rule Amendments
List of Subjects in 17 CFR Parts 232, 239, 249, 269 and 274
Reporting and recordkeeping requirements, Securities.
Text of the Rules and Amendments
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), 80a-6(c), 80a-8,
80a-29, 80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350.
* * * * *
0
2. Amend Sec. 232.10 by revising paragraph (b) and the heading of the
note following 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 the information required by Form ID
(Sec. Sec. 239.63, 249.446, 269.7 and 274.402 of this chapter), the
uniform application form for access codes to file on EDGAR, and
(2) File, by uploading as a Portable Document Format (PDF)
attachment to the Form ID filing or by faxing to (202) 504-2474 or
(703) 914-4240 within two business days before or after the electronic
Form ID filing, a notarized document, manually signed by the applicant
over the applicant's typed signature, that includes the information
required to be included in the Form ID filing, confirms the
authenticity of the Form ID filing and, if filed by fax after the
electronic Form D filing, includes the accession number assigned to the
electronic Form ID filing.
Note to Sec. 232.10:
* * * * *
0
3. Amend Sec. 232.101 by revising 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, 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)) may be filed either in
electronic format as an uploaded Portable Document Format (PDF)
attachment to the Form ID filing or by fax as provided in that rule,
and other related correspondence and supplemental information submitted
after the Form ID filing shall not be submitted in electronic format;
* * * * *
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
PART 269--FORMS PRESCRIBED UNDER THE TRUST INDENTURE ACT OF 1939
PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1940
0
17. Revise the two paragraphs appearing immediately after the bullets
in the General Instructions of Form ID (referenced in Sec. 239.63,
Sec. 249.446, Sec. 269.7 and Sec. 274.402) to read as three
paragraphs 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
* * * * *
General Instructions
* * * * *
An applicant must file the information required by this form in
electronic format via the Commission's EDGAR Filer Management Web site.
[[Page 10839]]
Please see Regulation S-T (17 CFR Part 232) and the EDGAR Filer Manual
for instructions on how to file electronically, including how to use
the access codes.
The applicant must complete the Form ID electronic filing by also
submitting to the Commission a copy of a notarized paper
``authenticating'' document. The authenticating document must include
the information required to be included in the Form ID filing, be
manually signed by the applicant over the applicant's typed signature,
and confirm the authenticity of the Form ID filing. Applicants may
fulfill the authenticating document requirement by making a copy of the
applicant's electronic Form ID filing, adding the necessary confirming
language, signing it, and having the signature notarized.
If the applicant has prepared the authenticating document before
making its electronic Form ID filing, it may submit the document as an
uploaded Portable Document Format (PDF) attachment to the electronic
filing. An applicant also may submit the authenticating document by
faxing it to the Commission at (202) 504-2474 or (703) 914-4240 within
two business days before or after its electronic Form ID filing. If
submitted by fax after the electronic Form ID filing, the
authenticating document must contain the accession number assigned to
the electronic Form ID filing. If the fax is not received timely, the
Form ID filing and application for access codes will not be processed,
and the applicant will receive an e-mail message at the contact e-mail
address included in the Form ID filing informing the applicant of the
failure to process and providing further guidance. The message will
state why the application was not processed.
For assistance with technical questions about electronic filing,
call Filer Support at (202) 551-8900. For assistance with questions
about the EDGAR rules, Division of Corporation Finance filers may call
the Office of Information Technology at (202) 551-3600; and Division of
Investment Management filers may call the IM EDGAR Inquiry Line at
(202) 551-6989.
* * * * *
Dated: March 9, 2009.
By the Commission.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-5377 Filed 3-12-09; 8:45 am]
BILLING CODE 8011-01-P