[Federal Register Volume 84, Number 63 (Tuesday, April 2, 2019)]
[Rules and Regulations]
[Pages 12674-12738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05695]



[[Page 12673]]

Vol. 84

Tuesday,

No. 63

April 2, 2019

Part II





 Securities and Exchange Commission





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17 CFR Parts 229, 230, 232, et al.





FAST Act Modernization and Simplification of Regulation S-K; Final Rule

  Federal Register / Vol. 84 , No. 63 / Tuesday, April 2, 2019 / Rules 
and Regulations  

[[Page 12674]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 229, 230, 232, 239, 240, 249, 270, 274, and 275

[Release No. 33-10618; 34-85381; IA-5206; IC-33426; File No. S7-08-17]
RIN 3235-AM00


FAST Act Modernization and Simplification of Regulation S-K

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: We are adopting amendments to modernize and simplify certain 
disclosure requirements in Regulation S-K, and related rules and forms, 
in a manner that reduces the costs and burdens on registrants while 
continuing to provide all material information to investors. The 
amendments are also intended to improve the readability and 
navigability of disclosure documents and discourage repetition and 
disclosure of immaterial information. To provide for a consistent set 
of rules to govern incorporating information by reference and 
hyperlinking, we are also adopting parallel amendments to several rules 
and forms applicable to investment companies and investment advisers, 
including amendments that would require certain investment company 
filings to be submitted in HyperText Markup Language format.

DATES: The final rules are effective May 2, 2019, except for the 
amendments to 17 CFR 229.601(b)(2) and (b)(10)(iv); paragraph 4(a) of 
Instructions as to Exhibits of 17 CFR 249.220f; Instruction 6 to Item 
1.01 of 17 CFR 249.308; Instruction 4 to Item 28 of 17 CFR 239.15A and 
274.11A; Instruction 6 to Item 25.2 of 17 CFR 239.14 and 274.11a-1; 
Instruction 5 to Item 29(b) of 17 CFR 239.17a and 274.11b; Instruction 
5 to Item 24(b) of 17 CFR 239.17b and 274.11c; Instruction 3 of 
Instructions as to Exhibits of 17 CFR 239.24 and 274.5; new Instruction 
3 to Item 26 of 17 CFR 239.17c and 274.11d; Instruction 3 to Item 16 of 
17 CFR 239.23; Additional Instruction 3 to the Instructions as to 
Exhibits of 17 CFR 239.16; and Instruction 3 to IX. Exhibits of 17 CFR 
274.12, which are effective April 2, 2019. For more information, see 
Section III (Other Matters).
    Compliance dates: See Section IV (Transition Matters) and Section V 
(Compliance Dates).

FOR FURTHER INFORMATION CONTACT: Daniel Greenspan, Office of 
Rulemaking, Division of Corporation Finance, at (202) 551-3430; Michael 
C. Pawluk or Sean Harrison, Investment Company Rulemaking Office, 
Division of Investment Management, at (202) 551-6792; U.S. Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549.

SUPPLEMENTARY INFORMATION: We are adopting amendments to:

----------------------------------------------------------------------------------------------------------------
                 Commission reference                                     CFR citation (17 CFR)
----------------------------------------------------------------------------------------------------------------
Regulation S-K........................................                     Sec.  Sec.   229.10 through 229.1305.
    Item 10...........................................                                            Sec.   229.10.
    Item 102..........................................                                           Sec.   229.102.
    tem 202...........................................                                           Sec.   229.202.
    Item 303..........................................                                           Sec.   229.303.
    Item 401..........................................                                           Sec.   229.401.
    Item 405..........................................                                           Sec.   229.405.
    Item 407..........................................                                           Sec.   229.407.
    Item 501..........................................                                           Sec.   229.501.
    Item 503..........................................                                           Sec.   229.503.
    Item 512..........................................                                           Sec.   229.512.
    Item 601..........................................                                           Sec.   229.601.
Regulation M-A........................................                   Sec.  Sec.   229.1000 through 229.1016.
    Item 1016.........................................                                          Sec.   229.1016.
Regulation AB.........................................                   Sec.  Sec.   229.1100 through 229.1125.
    Item 1100.........................................                                          Sec.   229.1100.
Regulation S-T........................................                      Sec.  Sec.   232.10 through 232.903.
    Rule 11...........................................                                            Sec.   232.11.
    Rule 102..........................................                                           Sec.   232.102.
    Rule 105..........................................                                           Sec.   232.105.
    Rule 303..........................................                                           Sec.   232.303.
    Rule 312..........................................                                           Sec.   232.312.
    Rule 406..........................................                                           Sec.   232.406.
Securities Act of 1933 \1\ (``Securities Act''):                                                 Sec.   230.405.
    Rule 405..........................................
    Rule 411..........................................                                           Sec.   230.411.
    Rule 491..........................................                                           Sec.   230.491.
    Form S-1..........................................                                            Sec.   239.11.
    Form S-3..........................................                                            Sec.   239.13.
    Form S-6..........................................                                            Sec.   239.16.
    Form S-11.........................................                                            Sec.   239.18.
    Form N-14.........................................                                            Sec.   239.23.
    Form S-4..........................................                                            Sec.   239.25.
    Form F-1..........................................                                            Sec.   239.31.
    Form F-3..........................................                                            Sec.   239.33.
    Form F-4..........................................                                            Sec.   239.34.
    Form F-7..........................................                                            Sec.   239.37.
    Form F-8..........................................                                            Sec.   239.38.
    Form F-10.........................................                                            Sec.   239.40.
    Form F-80.........................................                                            Sec.   239.41.
    Form SF-1.........................................                                            Sec.   239.44.
    Form SF-3.........................................                                            Sec.   239.45.
Securities Exchange Act of 1934 \2\ (``Exchange                                               Sec.   240.12b-23.
 Act''):
    Rule 12b-23.......................................

[[Page 12675]]

 
    Schedule 14A......................................                                       Sec.   240.14a-101.
    Rule 16a-3........................................                                         Sec.   240.16a-3.
    Form 3............................................                                           Sec.   249.103.
    Form 4............................................                                           Sec.   249.104.
    Form 5............................................                                           Sec.   249.105.
    Form 8-A..........................................                                          Sec.   249.208a.
    Form 10...........................................                                           Sec.   249.210.
    Form 20-F.........................................                                           Sec.   249.218.
    Form 40-F.........................................                                          Sec.   249.240f.
    Form 8-K..........................................                                           Sec.   249.308.
    Form 10-Q.........................................                                          Sec.   249.308a.
    Form 10-K.........................................                                           Sec.   249.310.
    Form 10-D.........................................                                           Sec.   249.312.
Investment Company Act of 1940 \3\ (``Investment                                                 Sec.   270.0-4.
 Company Act''):
    Rule 0-4..........................................
    Form N-8B-2.......................................                                            Sec.   274.12.
Securities Act and Investment Company Act:                                     Sec.  Sec.   239.15A and 274.11A.
    Form N-1A.........................................
    Form N-2..........................................                        Sec.  Sec.   239.14 and 274.11a-1.
    Form N-3..........................................                         Sec.  Sec.   239.17a and 274.11b.
    Form N-4..........................................                         Sec.  Sec.   239.17b and 274.11c.
    Form N-5..........................................                            Sec.  Sec.   239.24 and 274.5.
    Form N-6..........................................                         Sec.  Sec.   239.17c and 274.11d.
Exchange Act and Investment Company Act:
    Form N-CSR Sec.  Sec.   249.331 and 274.128.......
Investment Advisers Act of 1940 \4\ (``Investment                                                Sec.   275.0-6.
 Advisers Act''):
    Rule 0-6 Sec.   275.0-6...........................
----------------------------------------------------------------------------------------------------------------

    We are also adopting 17 CFR 229.105 (new ``Item 105'') to 
Regulation S-K) and rescinding the following:
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    \1\ 15 U.S.C. 77a et seq.
    \2\ 15 U.S.C. 78a et seq.
    \3\ 15 U.S.C. 80a-1 et seq.
    \4\ 15 U.S.C. 80b-1 et seq.

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              Commission reference                 CFR citation (17 CFR)
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Exchange Act:
    Rule 12b-32.................................  Sec.   240.12b-32.
Investment Company Act:
    Rule 8b-23..................................  Sec.   270.8b-23.
    Rule 8b-24..................................  Sec.   270.8b-24.
    Rule 8b-32..................................  Sec.   270.8b-32.
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Table of Contents

I. Introduction
II. Final Amendments
    A. Adoption of Proposals with Modifications
    1. Management's Discussion and Analysis of Financial Condition 
and Results of Operations (Item 303)
    2. Redaction of Confidential Information in Material Contract 
Exhibits
    3. Financial Statements: Incorporation by Reference and Cross-
Reference of Information
    B. Adoption of Amendments as Proposed
    1. Description of Property (Item 102)
    2. Management, Security Holders, and Corporate Governance
    3. Corporate Governance (Item 407)
    4. Registration Statement and Prospectus Provisions
    5. Exhibits
    6. Incorporation by Reference
    7. Manner of Delivery
    C. Proposed Amendments Not Being Adopted
    1. Forms--Captions and Item Numbers
    2. Subsidiaries of the Registrant and Entity Identifiers
    D. Removal of Outdated Requirement
III. Other Matters
IV. Transition Matters
V. Compliance Dates
VI. Economic Analysis
    A. Baseline
    B. Economic Analysis of the Amendments: General Assessment, 
Including Impact on Efficiency, Competition, and Capital Formation
    C. Economic Analysis of the Specific Amendments: Amendments That 
Clarify, Streamline, or Update Existing Rules
    1. Amendments That Clarify or Streamline a Rule's Requirements
    2. Amendments To Update Rules To Account for Subsequent 
Developments
    D. Economic Analysis of the Specific Amendments: Amendments That 
Simplify the Disclosure Process or Eliminate Disclosures
    1. Management's Discussion and Analysis (Item 303 and Item 5 of 
Form 20-F)
    2. Information Omitted From Exhibits
    E. Economic Analysis of the Specific Amendments: Amendments That 
Require More Disclosure or the Incorporation of New Technology
    1. Description of Registrant's Securities (Item 601(b)(4))
    2. Tagging Cover Page Data
    3. Amendments for Additional Disclosure With Minimal Additional 
Costs to Registrants
    F. Economic Analysis of HTML and Hyperlinking Requirements of 
Forms Under the Investment Company Act
VII. Paperwork Reduction Act
    A. Background
    B. Summary of Comment Letters and Revisions to PRA Estimates
    C. Summary of the Amendments' Impact on Collections of 
Information

[[Page 12676]]

    1. Amendments Expected To Decrease Burdens
    2. Amendments Expected To Increase Burdens
    3. Amendments Not Expected to Meaningfully Affect Burdens
    D. Burden and Cost Estimates to the Amendments
    1. Form 10-K and Form 10-Q; Schedule 14A and Schedule 14C
    2. Form S-1, Form S-3, Form S-4, Form F-3, Form F-4, Form SF-1, 
Form SF-3, Form 10, and Form 20-F
    3. Form 8-A, Form 10-D, Form 40-F, Form F-7, Form F-8, Form F-
10, and Form F-80
    4. Form S-6, Form N-1A, Form N-2, Form N-3, Form N-4, Form N-5, 
Form N-6, Form N-14, Form N-8B-2, and Form N-CSR
VIII. Final Regulatory Flexibility Act Analysis
    A. Need for, and Objectives of, the Amendments
    B. Significant Issues Raised by Public Comments
    C. Small Entities Subject to the Amendments
    D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    E. Agency Action to Minimize Effect on Small Entities
IX. Statutory Authority

I. Introduction

    On October 11, 2017, the Commission proposed amendments to 
modernize and simplify certain disclosure requirements in Regulation S-
K and related rules and forms,\5\ as mandated by the 2015 Fixing 
America's Surface Transportation Act (the ``FAST Act'').\6\ The 
proposals were based on the Commission's report to Congress, published 
on November 23, 2016 (the ``FAST Act Report''),\7\ which contained 
``specific and detailed recommendations on modernizing and simplifying 
the requirements in Regulation S-K in a manner that reduces the costs 
and burdens on companies while still providing all material 
information'' and ``[recommendations] on ways to improve the 
readability and navigability of disclosure and to discourage repetition 
and the disclosure of immaterial information.'' \8\ The proposals were 
also informed by the Commission's experience with Regulation S-K 
arising from the Division of Corporation Finance's disclosure review 
program and our staff's broader review of the Commission's disclosure 
regime.\9\ In addition, the Commission proposed parallel amendments to 
several rules and forms applicable to investment companies and 
investment advisers to provide for a consistent set of rules governing 
incorporation by reference and hyperlinking, including proposed 
amendments that would require certain investment company filings to be 
submitted in HyperText Markup Language (``HTML'') format.\10\
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    \5\ See Fast Act Modernization and Simplification of Regulation 
S-K, Release No. 33-10425 (Oct. 11, 2017) [82 FR 50998 (Nov. 2, 
2017)] (``Proposing Release'').
    \6\ Public Law 114-94, Sec. 72003, 129 Stat. 1312 (2015).
    \7\ See Report on Modernization and Simplification of Regulation 
S-K (Nov. 23, 2016), available at https://www.sec.gov/reportspubs/sec-fast-act-report-2016.pdf (the ``FAST Act Report'').
    \8\ See FAST Act section 72003(c). Section 72003(c) required the 
Commission to issue the FAST Act Report and Section 72003(d) 
required the Commission to issue a proposed rule to implement the 
recommendations contained in the FAST Act Report.
    \9\ See the Proposing Release, supra note 5, at 50989. We are 
continuing to consider additional changes to our disclosure regime 
in connection with recent rule releases and requests for comment. 
See, e.g., Request for Comment on Possible Changes to Industry Guide 
3 (Statistical Disclosure by Bank Holding Companies), Release No. 
33-10321 (Mar. 1, 2017) [82 FR 12757 (Mar. 7, 2017)]; Business and 
Financial Disclosure Required by Regulation S-K, Release No. 33-
10064 (Apr. 13, 2016) [81 FR 23916 (Apr. 22, 2016)] (the ``Concept 
Release''); and Request for Comment on Subpart 400 of Regulation S-K 
Disclosure Requirements Relating to Management, Certain Security 
Holders and Corporate Governance Matters, Release No. 33-10198 (Aug. 
25, 2016) [81 FR 59927 (Aug. 31, 2016)] (the ``Regulation S-K 
Subpart 400 Release'').
    \10\ The Commission has adopted requirements for exhibit 
hyperlinks and HTML format for operating companies. See Exhibit 
Hyperlinks and HTML Format, Release No. 33-10322 (Mar. 1, 2017) [82 
FR 14130 (Mar. 17, 2017)] (the ``Exhibit Hyperlinks Adopting 
Release'') (adopting amendments to require registrants to hyperlink 
to each exhibit listed in the exhibit index and, to enable the 
inclusion of hyperlinks, requiring registrants to submit all such 
filings in HTML format).
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    Commenters on the Proposing Release generally supported the 
proposed amendments and the Commission's efforts to improve and 
modernize the disclosure requirements of Regulation S-K.\11\ While 
commenters were largely supportive of the proposals, we also received a 
number of suggestions for modifying the amendments in ways that 
commenters believed would clarify the revised disclosure requirements, 
simplify compliance, or more consistently reflect the policy objectives 
cited in the Proposing Release.
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    \11\ Comment letters related to the Proposing Release are 
available at https://www.sec.gov/comments/s7-08-17/s70817.htm. 
Unless otherwise indicated, comment letters cited in this release 
are to the Proposing Release.
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    After taking into consideration the public comments, we are 
adopting the majority of the amendments as proposed. As we discuss 
further below, in certain cases we are adopting amendments with 
modifications from those proposed and, in other cases, we have chosen 
not to adopt the proposed amendments. In the discussion that follows, 
we first address the proposals we are adopting with modifications from 
those proposed, then the amendments we are adopting as proposed, and, 
finally, the proposed amendments we have elected not to adopt.
    The changes we are adopting, consistent with the Commission's 
mandate under the FAST Act, are intended to improve the quality and 
accessibility of disclosure in filings by simplifying and modernizing 
our requirements. The amendments also clarify ambiguous disclosure 
requirements, remove redundancies, and further leverage the use of 
technology. Taken together, we believe these rule changes should result 
in significant savings of time and money for registrants. We also 
believe they will increase investor access to information without 
reducing the availability of material information.
    The following table highlights some of the changes we are adopting, 
as described more fully in Section II (Final Amendments) and elsewhere 
in this release:

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                                      Summary description of                                 Discussed below in
               Rule                     amended rules \12\          Principal objective            section
----------------------------------------------------------------------------------------------------------------
Regulation S-K, Item 303 and Form   Registrants will generally  Simplify disclosure         II.A.1.
 20-F.                               be able to exclude          requirements to reduce
                                     discussion of the           repetition, reduce costs
                                     earliest of three years     and burdens to
                                     in MD&A if they have        registrants, focus
                                     already included the        disclosure on material
                                     discussion in a prior       information and improve
                                     filing.                     readability.

[[Page 12677]]

 
Regulation S-K, Items 601(b)(10)    Registrants will be able    Substantially reduce the    II.A.2.
 and 601(b)(2) and investment        to omit confidential        burden borne by
 company registration forms.         information in material     registrants in preparing
                                     contracts and certain       and responding to
                                     other exhibits without      confidential treatment
                                     submitting a confidential   requests while still
                                     treatment request to the    providing all material
                                     Commission, so long as      information to investors.
                                     the information is (i)
                                     not material and (ii)
                                     would likely cause
                                     competitive harm to the
                                     registrant if publicly
                                     disclosed.
Regulation S-K, Item 601(b)(10)...  Only newly reporting        Eliminate duplicative and   II.B.5.c.
                                     registrants will be         unnecessary disclosure
                                     required to file material   and reduce costs and
                                     contracts that were         burdens to registrants
                                     entered within two years    while still providing all
                                     of the applicable           material information to
                                     registration statement or   investors.
                                     report.
Regulation S-K, Item 601(a)(5) and  Registrants will not be     Reduce costs and burdens    II.B.5.b.i.
 investment company forms.           required to file            to registrants while
                                     attachments to their        still providing all
                                     material agreements if      material information to
                                     such attachments do not     investors.
                                     contain material
                                     information or were not
                                     otherwise disclosed.
Regulation S-K, Item 102..........  Registrants will need to    Clarify and simplify the    II.B.1.
                                     provide disclosure about    disclosure requirement to
                                     a physical property only    reduce costs and burdens
                                     to the extent that it is    to registrants, while
                                     material to the             focusing on material
                                     registrant.                 information.
Forms 8-K, 10-Q, 10-K, 20-F and 40- Registrants will be         Improve investors' efforts  II.B.4.a.iii. &
 F..                                 required to disclose on     to search news websites     II.B.7.a.
                                     the form cover page the     and stock market
                                     national exchange or        databases for information
                                     principal U.S. market for   about registrants and
                                     their securities, the       distinguish among
                                     trading symbol, and title   similarly named companies.
                                     of each class of
                                     securities.
Securities Act Rule-411(b)(4);      Registrants will no longer  Improve readability and     II.B.6.i, &
 Exchange Act Rules 12b-23(a)(3),    be required to file as an   navigability of             II.B.6.b.ii.
 and 12b-32; Investment Company      exhibit any document or     disclosure documents and
 Act Rule 0-4; and Regulation S-T    part thereof that is        discourage repetition.
 Rules 102 and 105.                  incorporated by reference
                                     in a filing, but instead
                                     will be required to
                                     provide hyperlinks to
                                     documents incorporated by
                                     reference.
Forms 10-K, 10-Q, 8-K, 20-F and 40- Registrants will be         Further enhance investors'  II.B.7.a.
 F..                                 required to tag all cover   use of interactive data
                                     page data in Inline XBRL.   to identify, count, sort,
                                                                 compare, and analyze
                                                                 registrants and their
                                                                 disclosures.
Regulation S-T Rules 102 105, 201,  Investment companies will   Improve navigability of     II.B.7.b.
 202 and 311; Form N-CSR; and        be required to file         disclosure.
 investment company registration     reports on Form N-CSR and
 forms.                              registration statements
                                     and amendments thereto in
                                     HTML format and provide
                                     hyperlinks to exhibits
                                     and other information
                                     incorporated by reference.
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II. Final Amendments
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    \12\ The information in this chart is not comprehensive and is 
intended only to highlight some of the more significant aspects of 
the final amendments. It does not reflect all of the amendments or 
all of the rules and forms that are affected. All changes are 
discussed in their entirety below. As such, this table should be 
read together with the referenced sections and the complete text of 
this release.
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A. Adoption of Proposals With Modifications

1. Management's Discussion and Analysis of Financial Condition and 
Results of Operations (Item 303)
a. Year-to-Year Comparisons (Instruction 1 to Item 303(a))
i. Proposed Amendments
    Item 303(a) requires registrants to discuss their financial 
condition, changes in financial condition, and results of 
operations.\13\ Instruction 1 to Item 303(a) states that the discussion 
and analysis shall be of the financial statements and other statistical 
data that the registrant believes will enhance a reader's understanding 
of its financial condition, changes in financial condition, and results 
of operations. This instruction also provides that, generally, the 
discussion shall cover the three-year period covered by the financial 
statements and either use year-to-year comparisons or any other format 
that in the registrant's judgment would enhance a reader's 
understanding. The instruction states that reference to the five-year 
selected financial data may be necessary where trend information is 
relevant.
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    \13\ 17 CFR 229.303(a).
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    The Commission proposed to amend Item 303 to clarify that 
discussion of the earliest year would not be required in certain 
situations.\14\ Specifically, when financial statements included in a 
filing cover three years,\15\ discussion about the earliest year would 
not have been required under the proposed amendments if (i) that 
discussion was

[[Page 12678]]

not material to an understanding of the registrant's financial 
condition, changes in financial condition, and results of operations, 
and (ii) the registrant had filed its prior year Form 10-K \16\ on 
EDGAR and that Form 10-K included in its Management's Discussion and 
Analysis (``MD&A'') a discussion of the earliest of the three years 
included in the financial statements of the current filing. By allowing 
registrants to eliminate MD&A disclosure about the earliest year in 
these situations, the proposal was intended to discourage repetition of 
disclosure that is no longer material, which we believe would further 
our mandate under the FAST Act to modernize and simplify Regulation S-K 
in a manner that reduces costs and burdens on companies while still 
providing all material information.
---------------------------------------------------------------------------

    \14\ See Proposing Release, supra note 5, Section II.B.1., n. 46 
through 53. See also FAST Act Report, supra note 7, at 
Recommendation C.1.
    \15\ The proposed amendments to Item 303(a)(3) would not affect 
smaller reporting companies, as smaller reporting companies may 
limit their disclosure to the two-year period covered by their 
financial statements. See Instruction 1 to Item 303(a) of Regulation 
S-K. See also Rule 12b-2 under the Exchange Act and Rule 405 under 
the Securities Act. Similarly, the proposed amendments would not 
affect emerging growth companies that provide two years of audited 
financial statements. Emerging growth companies are only required to 
provide two years of audited financial statements in an initial 
public offering of common equity securities and may limit their MD&A 
to only those audited periods presented in the financial statements. 
Pub. L. 112-106, Sec. 102(b)-(c), 126 Stat. 306 (2012). See also 
Instruction 1 to Item 303(a) of Regulation S-K.
    \16\ 17 CFR 249.310.
---------------------------------------------------------------------------

    For the reasons discussed in the Proposing Release, the Commission 
also proposed to eliminate the reference to five-year selected 
financial data in Instruction 1 to Item 303(a).\17\ In addition, the 
Commission proposed to simplify Instruction 1 to Item 303(a) to 
emphasize that registrants may use any presentation that, in the 
registrant's judgment, would enhance a reader's understanding.\18\
---------------------------------------------------------------------------

    \17\ See Proposing Release, supra note 5, Section II.B.1., at 
50993.
    \18\ Id.
---------------------------------------------------------------------------

ii. Comments
    The proposal generated a wide range of responses among commenters. 
While some commenters supported the amendments as proposed,\19\ many 
commenters sought revisions or clarifications to the proposed rule. In 
particular, several commenters focused their remarks on the proposed 
conditions by which registrants could omit discussion of the earliest 
of the three years of financial statements covered by a filing. One 
commenter opposed the amendments to Item 303, asserting that retaining 
the discussion of the earliest year would help investors ``understand 
the validity of analysis'' in the MD&A where a company's circumstances 
have changed.\20\
---------------------------------------------------------------------------

    \19\ See letters from American Fuel and Petrochemical 
Manufacturers (``American Fuel''), Center for Capital Markets 
Competitiveness (``CCMC''), Davis Polk & Wardwell (``Davis Polk''), 
FedEx Corporation (``FedEx''), Fenwick & West LLP (``Fenwick''), 
Nasdaq, Inc. (``Nasdaq''), and UnitedHealth Group 
(``UnitedHealth'').
    \20\ See letter from Public Citizen.
---------------------------------------------------------------------------

    A number of commenters found the first proposed condition to be 
problematic, largely due to uncertainty over the phrase ``material to 
an understanding.'' \21\ While many of these commenters supported the 
concept underlying the proposal, they advocated that the Commission 
first refine or clarify the materiality condition to ensure that its 
implementation would have the effect the Commission intended.\22\ These 
commenters questioned how the ``material to an understanding'' 
condition would be applied in practice and were uncertain how it 
differed, if at all, from the standard of materiality registrants 
already use to fulfill their disclosure obligations.\23\ Several 
commenters advised that without further clarification registrants would 
be unlikely to omit the discussion of the earliest year for fear that 
their judgment would be challenged.\24\ Along these lines, one 
commenter predicted that, because of litigation risk, registrants would 
find it much easier to simply repeat the disclosure made in the prior 
year rather than expose their assessment of materiality to second-
guessing.\25\
---------------------------------------------------------------------------

    \21\ See, e.g., letter from Ernst & Young LLP (``E&Y'') (noting 
that the proposed standard ``could be challenging to apply in 
practice . . . registrants could struggle to consistently evaluate 
whether discussion of the earliest of the three years is `material 
to an understanding'. . .'').
    \22\ See, e.g., letters from E&Y (raising a series of 
interpretive questions about the proposal) and Deloitte & Touche LLP 
(``Deloitte'') (questioning whether the phrase ``material to an 
understanding'' was intended to convey any special considerations 
beyond a registrant's customary assessment of materiality).
    \23\ See, e.g., letter from E&Y (noting the abundance of 
instances in Regulation S-K where the disclosure requirements 
reference some variation of materiality, creating a lack of clarity 
in many cases about whether the Commission intended registrants to 
evaluate materiality in a different context than its general 
application under federal securities law).
    \24\ See, e.g., letters from BDO USA, LLP (``BDO''), CNA 
Financial Corporation (``CNA''), Cravath, Swaine & Moore LLP 
(``Cravath''), Institute of Management Accountants (``IMA''), KPMG 
LLP (``KPMG''), Piercy Bowler Taylor and Kern, CPAs (``Piercy 
Bowler''), and Society for Corporate Governance (``Society for Corp. 
Gov.'').
    \25\ See letter from IMA. See also letter from Society for Corp. 
Gov. (suggesting that modifying the default requirement of Item 303 
from ``disclosure of the earliest year's discussion, unless not 
material'' to ``omission of the earliest year's discussion, unless 
material'' may more effectively accomplish the Commission's 
objective of reducing the amount of immaterial and repetitive 
disclosure).
---------------------------------------------------------------------------

    To mitigate these concerns and add more certainty to the process, 
some commenters favored revising the proposal to make the condition 
less subjective,\26\ while others suggested adding conditions that 
would preclude registrants from omitting disclosure of the earliest 
year in certain specified situations.\27\ Other commenters favored 
removing the materiality condition altogether because they believed it 
was unnecessary and would only create confusion.\28\ These commenters 
stated that registrants should be permitted to omit the discussion of 
the earliest year covered by the financial statement in a filing based 
solely on the condition that the disclosure was already included in a 
previous filing. One such commenter noted that it is unnecessary to 
embed an explicit materiality reference within the proposed rule 
because materiality is already the overarching principle for a 
registrant's disclosure and has been well defined by federal securities 
law.\29\ The commenter went on to state that, as such, materiality is 
always a factor in disclosure, whether or not the proposed revision 
makes explicit reference to it. In this context, another commenter 
asserted that adding an additional materiality assessment would only 
add ambiguity and complexity to the registrant's decision whether to 
include a discussion of the earliest period presented.\30\
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    \26\ See, e.g., letter from Financial Executive International 
(``Financial Executives'') (requesting that the rule be revised to 
permit the omission of the discussion about the earliest year unless 
there has been a material change to the previous disclosures).
    \27\ See, e.g., letter from Council of Institutional Investors 
(``CII'') (suggesting that registrants not be allowed to exclude 
discussion of the earliest year if there has been a material change 
to either of the two earlier years due to a restatement or a 
retrospective adoption of a new accounting principle).
    \28\ See, e.g., letters from BDO, Center for Audit Quality 
(``CAQ''), and Northrop Grumman Corporation (``Grumman'').
    \29\ See letter from CAQ.
    \30\ See letter from BDO.
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    Several commenters supported expanding the second of the two 
proposed conditions for omission of the earliest year's discussion to 
allow registrants to use filings other than the prior year's Form 10-K 
as the reference document.\31\ These commenters recommended that any 
filing available on EDGAR (e.g., Form S-1, Form S-4, Form 8-K, Form 10, 
etc.) that contains the relevant MD&A discussion should suffice.\32\
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    \31\ See letters from BDO, Cravath, Deloitte, E&Y, KPMG, Piercy 
Bowler, and Sullivan & Cromwell LLP (``Sullivan'').
    \32\ Id.
---------------------------------------------------------------------------

    Finally, several commenters expressed support for the proposal to 
eliminate the reference to five-year selected financial data in 
Instruction 1 to Item 303(a), and no commenters opposed it.\33\
---------------------------------------------------------------------------

    \33\ See letters from CAQ, CCMC, CNA, Cravath, Davis Polk, 
Fenwick, Financial Executives, Securities Industry and Financial 
Markets Association (``SIFMA''), and Sullivan.
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iii. Final Amendments
    We are adopting amendments to Item 303 in substantially the form 
proposed, but with modifications in response to

[[Page 12679]]

comments received. We are adopting as proposed the revision to 
Instruction 1 of Item 303 that eliminates the reference to year-to-year 
comparisons. Instruction 1 will now state that registrants may use any 
presentation that in the registrant's judgment enhances a reader's 
understanding of the registrant's financial condition, changes in 
financial condition, and results of operations, without suggesting that 
any one mode of presentation is preferable to another. We anticipate 
that many registrants will continue to provide year-to-year 
comparisons, as this is a familiar and, in many cases, appropriate 
method of presentation. However, we recognize that this presentation 
may not always be the most effective format, depending on the unique 
circumstances of a particular registrant. Also, as proposed, we are 
deleting the reference to five-year selected financial data in 
Instruction 1 to Item 303(a). Item 303(a)(3)(ii) already requires 
disclosure of known trends and uncertainties, so we do not anticipate 
that the removal of similar wording from Instruction 1 will discourage 
trend disclosure or otherwise reduce disclosure of material 
information.
    We are revising Instruction 1 to Item 303(a) to allow registrants 
who are providing financial statements covering three years in a filing 
to omit discussion of the earliest of the three years if such 
discussion was already included in any other of the registrant's prior 
filings on EDGAR that required disclosure in compliance with Item 303 
of Regulation S-K.\34\ Registrants electing not to include a discussion 
of the earliest year in reliance on this instruction must, however, 
identify the location in the prior filing where the omitted discussion 
may be found. These amendments reflect two changes from the proposal.
---------------------------------------------------------------------------

    \34\ Instruction 1 to Item 303(a), as revised. Amended Form 20-F 
will include analogous wording in new Instruction 6 to Item 5. See 
infra Section II.A.1.b. of this release.
---------------------------------------------------------------------------

    First, we are expanding the condition regarding the earliest year 
discussion to allow registrants to rely on any prior EDGAR filings that 
include such discussion. We agree with commenters who recommended 
expanding this condition to encompass MD&A of the earliest year 
included in filings other than Form 10-K.\35\ We do not believe it is 
necessary to designate the registrant's prior Form 10-K as the only 
filing that may serve as the location of the omitted disclosure, so 
long as the registrant clearly identifies the prior filing that 
includes the relevant discussion.
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    \35\ See supra note 31.
---------------------------------------------------------------------------

    Second, we are not adopting, as an explicit condition, that the 
omitted discussion must not be ``material to an understanding'' of the 
registrant's financial condition, changes in financial condition, and 
results of operations. This is not to suggest, however, that 
materiality is not relevant to management's judgment about what 
disclosure is provided in MD&A. Materiality remains, as always, the 
primary consideration. Rather, this change recognizes that the language 
of the proposed condition was superfluous and never intended to modify, 
supplement, or alter the overarching materiality analysis that 
management must undertake with respect to the information it provides 
investors in MD&A. As several commenters pointed out, this superfluous 
language may serve to create confusion for registrants and discourage 
them from tailoring their disclosure in a manner that is most useful 
for investors.\36\
---------------------------------------------------------------------------

    \36\ See supra note 21. For similar reasons, we are not adopting 
different or additional conditions on the omission of the earliest 
year discussion as suggested by several commenters. See supra notes 
26 and 27.
---------------------------------------------------------------------------

    Although a discussion of the earliest year of the financials could 
in some circumstances be material, in many cases the entirety of the 
discussion of the earliest year that was presented in the MD&A of a 
prior filing would not need to be reiterated if, in management's view, 
that discussion is not necessary to understand the financial condition, 
changes in financial condition, and results of operations.\37\ This is 
the standard that applies to all of MD&A,\38\ and our amendments do not 
change that standard. A registrant's obligation is to provide investors 
with all material information, customized in light of the company's 
particular circumstances, and presented in a manner that best reflects 
the discussion and analysis of the business as seen through the eyes of 
those who manage that business.\39\ We continue to encourage 
registrants to take the opportunity to reevaluate their disclosure in 
light of these amendments and determine whether a discussion of the 
earliest year's information remains material.\40\ We believe these 
amendments underscore the continuing relevance of the Commission's 
guidance in the 2003 MD&A Release that ``it is increasingly important 
for companies to focus their MD&A on material information. In preparing 
MD&A, companies should evaluate issues presented in previous periods 
and consider reducing or omitting discussion of those that may no 
longer be material or helpful, or revise discussions where a revision 
would make the continuing relevance of an issue more apparent.'' \41\
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    \37\ For investors who find the earliest year discussion useful 
in understanding the MD&A, this information will remain readily 
available from prior filings on EDGAR. See supra note 20.
    \38\ See Item 303(a): ``The discussion . . . shall provide such 
other information that the registrant believes to be necessary to an 
understanding of its financial condition, changes in financial 
condition and results of operations.''
    \39\ See Commission Guidance Regarding Management's Discussion 
and Analysis of Financial Condition and Results of Operation, 
Release No. 33-8350 (Dec. 19, 2003) [68 FR 75056 (Dec. 29,2003)] 
(``2003 MD&A Interpretive Release''), Sections I.B and III.B.2. See 
also Concept Release on Management's Discussion and Analysis of 
Financial Condition and Operations, Release No. 6711 (Apr. 17, 1987) 
[52 FR 13715, 13717] (Apr. 23, 1987)] (``MD&A Concept Release'') 
(``an opportunity to look at the company through the eyes of 
management by providing both a short and long-term analysis of the 
business of the company'').
    \40\ See 2003 MD&A Interpretive Release, Sections I.B. and 
III.B.2.; and see Proposing Release, supra note 5, at 50993.
    \41\ See 2003 MD&A Release, Section III.B.2.
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    We believe the revisions to Item 303 that we are adopting give 
registrants the flexibility to tailor their presentation in MD&A in a 
manner that is most suitable for their varying circumstances, while at 
the same time continuing to require that they provide all of the 
information necessary to an understanding of their financial condition, 
changes in financial condition and results of operations. In that 
respect, we view the elimination of references to year-to-year 
comparisons and the new language in Instruction 1 of Item 303 allowing 
registrants to omit discussion of the earliest of the three years 
covered by the financial statements as complementary.
b. Application to Foreign Private Issuers
i. Proposed Amendments
    The disclosure requirements for Item 5 of Form 20-F (Operating and 
Financial Review and Prospects) are substantively comparable to the 
MD&A requirements under Item 303 of Regulation S-K.\42\ To maintain a 
consistent approach to MD&A for domestic registrants and foreign 
private issuers, the Commission proposed changes to Form 20-F to 
conform with the proposed amendments to Instruction 1 to Item 
303(a).\43\
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    \42\ When the Commission revised the wording of Item 5 of Form 
20-F in 1999, the adopting release noted that the requirements 
correspond with Item 303 of Regulation S-K. See International 
Disclosure Standards, Release No. 33-7745 (Sept. 28, 1999) [64 FR 
53900 (Oct. 5, 1999)], at 53904.
    \43\ The Commission did not propose similar changes to Form 40-
F. Form 40-F generally permits Canadian issuers to use Canadian 
disclosure documents to satisfy the Commission's registration and 
disclosure requirements. As a result, the MD&A contained in Form 40-
F is largely prepared in accordance with Canadian disclosure 
standards.

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[[Page 12680]]

ii. Comments
    Several commenters supported the proposal to make conforming 
changes to Form 20-F, and no commenters opposed.\44\
---------------------------------------------------------------------------

    \44\ See letters from BDO, CAQ, Cravath, E&Y, 
PricewaterhouseCoopers (``PWC''), and Sullivan.
---------------------------------------------------------------------------

iii. Final Amendments
    We are adopting the proposed revisions to Item 5 of Form 20-F, as 
modified to be consistent with the amendments to Item 303. In its 
amended form, Item 5 of Form 20-F will provide that, when a filing 
includes financial statements covering three years, discussion about 
the earliest year may be omitted if such discussion was already 
included in the registrant's prior year Form 20-F filed on EDGAR or in 
any other of the registrant's prior filings on EDGAR that required 
disclosure in compliance with Item 5 of Form 20-F or with Item 303 of 
Regulation S-K. Registrants electing not to include a discussion of the 
earliest year must, however, include a statement that identifies the 
location in the prior filing where the omitted discussion may be found. 
Similar to revised Item 303, we are revising the instructions to Item 5 
to emphasize that registrants may use any presentation that, in the 
registrant's judgment, would enhance a reader's understanding.
2. Redaction of Confidential Information in Material Contract Exhibits
a. Proposed Amendment
    As a general matter, current Item 601(b)(10) requires registrants 
to file as an exhibit to their applicable disclosure document each of 
their material contracts entered into within the preceding two years or 
which is to be performed, at least in part, in the future. It is not 
unusual for some of the information contained in such exhibits to be 
highly sensitive, most often for competitive reasons. If such 
information is not material and is covered by an exemption from the 
Freedom of Information Act,\45\ a registrant may request confidential 
treatment which, if granted by the Commission, would allow the 
registrant to redact specific information from the material contract 
exhibit that it files publicly on EDGAR.
---------------------------------------------------------------------------

    \45\ 5 U.S.C. 552 (``FOIA''). Rule 80 [17 CFR 200.80 et seq.], 
the Commission's rule adopted under FOIA, incorporates the criteria 
for permissible non-disclosure set forth in FOIA. Of the list of 
available FOIA disclosure exemptions provided in Section 552(b), 
most applicants for confidential treatment rely on paragraph (b)(4), 
which exempts certain trade secrets or privileged or confidential 
commercial or financial information.
---------------------------------------------------------------------------

    Exchange Act Rule 24b-2 and Securities Act Rule 406 set forth the 
exclusive procedures for obtaining confidential treatment in regard to 
exhibits filed under the Exchange Act and Securities Act. Registrants 
who wish to avail themselves of these rules must submit a detailed 
application to the Commission that identifies the particular text for 
which confidential treatment is sought, a statement of the legal 
grounds for the exemption,\46\ and an explanation of why, based on the 
facts and circumstances of the particular case, disclosure of the 
information is unnecessary for the protection of investors.\47\ Upon 
receipt of the application, known as a ``confidential treatment 
request'' or ``CTR,'' Commission staff will evaluate whether the 
request appears appropriate and whether to issue comments on the 
application.
---------------------------------------------------------------------------

    \46\ Exchange Act Rule 24b-2 and Securities Act 406 require that 
applicants for confidential treatment justify their nondisclosure on 
the basis of the applicable exemption(s) from disclosure under Rule 
80.
    \47\ The Division has published procedural and substantive 
guidance on how to prepare and submit confidential treatment 
requests in Staff Legal Bulletins 1 and 1A, available on the 
Commission's website at https://www.sec.gov/interps/legal/slbcf1.txt 
and https://www.sec.gov/interps/legal/slbcf1r.htm.
---------------------------------------------------------------------------

    The Commission proposed revisions to Item 601(b)(10) that would 
permit registrants to omit confidential information from material 
contracts filed pursuant to that item without the need to submit a CTR, 
if the information (i) is not material and (ii) would be competitively 
harmful if publicly disclosed. Although registrants would not be 
required to file a confidential treatment request in accordance with 
Rule 406 or Rule 24b-2 in connection with the redacted exhibit, the 
responsibility of a registrant to determine whether all material 
information has been disclosed and whether it may redact the 
information under the proposed rules would remain unchanged.\48\ 
Redactions made in accordance with revised Item 601(b)(10) should 
include no more information than necessary to prevent competitive harm 
to the registrant.
---------------------------------------------------------------------------

    \48\ See Rule 12b-20 [17 CFR 240.12b-20], Rule 408(a) [17 CFR 
230.408(a)], and proposed Item 601(b)(10)(iv).
---------------------------------------------------------------------------

    Under the proposal, the requirements for marking exhibits subject 
to confidential treatment would remain in place as well. Just as 
registrants must do under the current rules, the proposed amendments 
would require registrants to:
     Mark the exhibit index to indicate that portions of the 
exhibit or exhibits have been omitted;
     include a prominent statement on the first page of the 
redacted exhibit that certain identified information has been excluded 
from the exhibit because it is both (i) not material and (ii) would be 
competitively harmful if publicly disclosed; and
     indicate with brackets where the information has been 
omitted from the filed version of the exhibit.
    Under the proposed revisions, the Commission staff would continue 
its selective review of registrant filings and would selectively assess 
whether redactions from exhibits appear to be limited to information 
that is not material and that would cause competitive harm if publicly 
disclosed. Upon request, registrants would be expected to promptly 
provide supplemental materials to the staff similar to those currently 
required in a CTR, including an unredacted copy of the exhibit and an 
analysis of why the redacted information is both (i) not material and 
(ii) would be competitively harmful if publicly disclosed.\49\ Pursuant 
to Rule 83, registrants may request confidential treatment of this 
supplemental information while it is in the staff's possession. If the 
registrant's supplemental materials do not support its redactions, the 
staff may request that the registrant file an amendment that includes 
some, or all, of the previously redacted information, similar to the 
process the staff currently follows for confidential treatment requests 
under Rule 406 and Rule 24b-2. After completing its review of the 
supplemental materials, the Commission or its staff would return or 
destroy them at the request of the registrant if the registrant 
complies with the procedures outlined in Rule 418 under the Securities 
Act or Rule 12b-4 under the Exchange Act, as applicable.
---------------------------------------------------------------------------

    \49\ This analysis would be substantially the same as is 
currently required in confidential treatment requests.
---------------------------------------------------------------------------

b. Comments
    Many commenters favored this proposal.\50\ Several commenters that 
supported the proposal stated that the current rules impose a 
significant burden on registrants and that reducing the significant 
cost and time expended to prepare and process confidential treatment 
requests would provide much needed relief without diminishing the 
quality of information available to

[[Page 12681]]

investors.\51\ Along these lines, commenters indicated the proposed 
revisions to Item 601(b)(10) would effectively change only the 
confidential treatment process, not the substance of registrants' 
disclosure.\52\ For example, two commenters noted that published 
guidance, such as Staff Legal Bulletins 1 and 1A, is readily available 
to registrants and sets forth the staff's long established views on 
appropriate redactions of confidential information in accordance with 
Rules 406 and 24b-2.\53\ Commenters also observed that the staff would 
retain the ability to review any of the information redacted by 
registrants from their filings, as necessary on a case-by-case basis. 
Several commenters noted that the prospect of staff review and request 
for further information would continue to act as a safeguard for 
investors, much as the staff's selective review process of filings 
generally operates today.\54\
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    \50\ See, e.g., letters from Eversheds Sutherland (US) LLP, on 
behalf of the Committee of Annuity Insurers (``Comm. of Annuity 
Insurers''), CCMC, Cravath, Davis Polk, FedEx, Fenwick, Financial 
Executives, Grumman, IMA, Reed Smith LLP (``Reed Smith''), SIFMA, 
Society for Corp. Gov., and Sullivan (supporting the proposal). But 
see, letters from CII and Public Citizen (opposing the proposal).
    \51\ See letters from Comm. of Annuity Insurers, Cravath, Davis 
Polk, FedEx, IMA, Reed Smith, Society for Corp. Gov., and Sullivan. 
See also letter from Reed Smith (stating that the current 
requirements for confidential treatment disproportionately burden 
smaller reporting companies).
    \52\ See, e.g., letters from Cravath, Davis Polk, and Society 
for Corp. Gov.
    \53\ See letters from Cravath and Davis Polk.
    \54\ See letters from Comm. of Annuity Insurers, Cravath, 
Fenwick, Reed Smith, SIFMA, and Society for Corp. Gov.
---------------------------------------------------------------------------

    However, not all commenters supported the proposal. In particular, 
two commenters expressed concern that if registrants were no longer 
required to formally request confidential treatment of redactions in 
their exhibits, they may be motivated to err on the side of redacting 
much more information than would likely be afforded confidential 
treatment under the current system.\55\
---------------------------------------------------------------------------

    \55\ See letters from CII and Public Citizen.
---------------------------------------------------------------------------

    In the Proposing Release, the Commission asked whether to extend 
the proposal beyond Item 601 to reach:
     Exhibits required by other subsections of Item 601, 
including Item 601(b)(2);
     Exhibits required by certain of the Commission's 
disclosure forms to which the exhibit requirements of Item 601 do not 
specifically apply;\56\ and
---------------------------------------------------------------------------

    \56\ For example, Form 20-F, for use by foreign private issuers, 
has its own exhibit requirements that do not reference Item 601 of 
Regulation S-K. See Item 19 of Form 20-F.
---------------------------------------------------------------------------

     Exhibits required by certain of the Commission's 
disclosure forms related to investment companies.\57\
---------------------------------------------------------------------------

    \57\ See Proposing Release, supra note 5, Section II.E.2.c, at 
51004.
---------------------------------------------------------------------------

    Several commenters supported expanding the proposed accommodation 
to exhibits filed pursuant to Item 601(b)(2), which requires 
registrants to file as exhibits any plans of acquisition, 
reorganization, arrangement, liquidation, or succession.\58\ One such 
commenter stated that including Item 601(b)(2) within the coverage of 
the proposed amendments was a sensible approach given that Item 
601(b)(2) exhibits are substantively a subset of 601(b)(10) exhibits. 
However, this commenter also suggested initially limiting the proposed 
amendments to Item 601(b)(2) and 601(b)(10) and revisiting potential 
expanded applicability at a future date.\59\
---------------------------------------------------------------------------

    \58\ See letters from Cravath, Fenwick, SIFMA, and Sullivan.
    \59\ See letter from Cravath.
---------------------------------------------------------------------------

    By contrast, a few commenters favored immediately expanding the 
proposal beyond 601(b)(2) and 601(b)(10), specifically to underwriting 
agreements required by Item 601(b)(1) \60\ or generally to all exhibits 
filed pursuant to Item 601.\61\ These commenters reasoned that, for 
purposes of the proposed rule change, there was no meaningful basis to 
distinguish these additional exhibits from material contracts filed 
under Item 601(b)(10). One such commenter noted that broadening the 
rule change to all Item 601 exhibits would promote a more consistent 
approach to confidential treatment overall.\62\
---------------------------------------------------------------------------

    \60\ See letter from SIFMA.
    \61\ See letter from Society for Corp. Gov.
    \62\ Id.
---------------------------------------------------------------------------

    None of the commenters that supported the proposal objected to an 
analogous change to the exhibit requirements of Commission disclosure 
forms for which Item 601(b)(10) does not apply. In addition, two 
commenters recommended that the proposals should be expanded to provide 
similar accommodations to investment companies.\63\
---------------------------------------------------------------------------

    \63\ See letters from Comm. of Annuity Issuers and Investment 
Company Institute (``ICI'').
---------------------------------------------------------------------------

c. Final Amendment
    We are adopting the amendment to Item 601(b)(10) as proposed. We 
have, however, slightly revised the language of the amendment to refer 
to information that ``would likely cause competitive harm'' to more 
closely track the standard under FOIA.\64\ In addition, we are amending 
Item 601(b)(2) in a similar manner to allow registrants to redact 
immaterial provisions or terms from agreements filed under that item 
that would likely cause them competitive harm if publicly 
disclosed.\65\ To facilitate consistency across our exhibit 
requirements, we are also expanding the proposal to certain exhibit 
related requirements in specified disclosure forms for which Item 
601(b)(10) does not apply.\66\
---------------------------------------------------------------------------

    \64\ See new paragraph (iv) to Item 601(b)(10).
    \65\ Additional amendments to the exhibit requirements of Item 
601 that will allow registrants to omit (i) schedules, appendices 
and attachments to exhibits that are not material and (ii) 
personally identifiable information are discussed infra at Section 
II.B.5.b.i. and ii.
    \66\ See amendments to Form 20-F (Instructions as to Exhibits), 
Form 8-K (Instructions 4-6 to Item 1.01), Form N-1A (new Instruction 
4 to Item 28), Form N-2 (new Instruction 6 to Item 25.2), Form N-3 
(new Instruction 5 to Item 29(b)), Form N-4 (new Instruction 5 to 
Item 24(b)), Form N-5 (new Instruction 3 of Instructions as to 
Exhibits), Form N-6 (new Instruction 3 to Item 26), Form N-14 (new 
Instruction 3 to Item 16), Form S-6 (new Additional Instruction 3 to 
the Instructions as to Exhibits), and Form N-8B-2 (new Instruction 3 
to IX. Exhibits).
---------------------------------------------------------------------------

    We believe that these amendments will substantially reduce the 
burden currently borne by registrants in preparing and processing 
requests for confidential treatment while still providing all material 
information to investors. As such, we believe these amendments are in 
keeping with our mandate under the FAST Act. In our view, the sizeable 
costs to registrants, in terms of financial expenditures, staff time, 
and potential transactional delays resulting because of time spent on 
confidential treatment request applications, justifies such an approach 
where, as here, any corresponding negative impact on investors is 
expected to be minimal. The amendments to Item 601 do not substantively 
alter registrant disclosure requirements--they do not affect the 
principles of what a registrant may or may not permissibly redact from 
its disclosure for reasons of confidentiality, nor do they change the 
fundamental disclosure obligations a registrant owes its shareholders 
under the federal securities laws. Rather, the amendments recognize 
that the administrative process by which registrants currently are 
permitted to protect confidential information in certain exhibits is 
not the most efficient way to serve investors' interests. In response 
to commenters who expressed concern that registrants would err on the 
side of redacting much more information than would likely be afforded 
confidential treatment under the current system, we note that these 
procedural revisions do not limit the Commission or its staff's 
prerogative to scrutinize the appropriateness of a registrant's 
omissions of information from its exhibits. In this regard, we 
emphasize that the amended rules retain the requirement that exhibits 
be clearly marked to indicate where immaterial and competitively 
harmful information

[[Page 12682]]

has been omitted \67\ and that any redactions will remain subject to 
review and comment at the staff's discretion.\68\
---------------------------------------------------------------------------

    \67\ Both Item 601(b)(2)(ii) and new Item 601(b)(10)(iv) require 
the registrant to mark the exhibit index to indicate that portions 
of the exhibit or exhibits have been omitted and include a prominent 
statement on the first page of the redacted exhibit that certain 
identified information has been excluded from the exhibit because it 
is both (i) not material and (ii) would likely cause competitive 
harm to the registrant if publicly disclosed. The registrant also 
must indicate by brackets where the information is omitted from the 
filed version of the exhibit.
    \68\ Where applicable, the staff may request that a registrant 
file an amendment that includes some, or all, of the information 
previously redacted from an exhibit. We note that the rule, as 
revised, does not require a registrant to include an explanatory 
note in its amendment describing why the amendment was necessary. In 
the Proposing Release, the Commission asked whether it should impose 
such a requirement. No commenters advocated in favor of such a 
requirement and, after consideration, we do not think it necessary. 
This is consistent with the Commission's approach to filing 
amendments generally, whereby registrants are not required to 
annotate their changes to documents. We also are mindful that such 
explanations could, by drawing the attention of the reader, 
overemphasize the importance of the amended information. See letters 
from Reed Smith and Society for Corp. Gov.
---------------------------------------------------------------------------

    As noted, consistent with several commenters' suggestions, we are 
adopting revisions to Item 601(b)(2) that will conform to the treatment 
of exhibits in amended Item 601(b)(10). We agree with those commenters 
who stated that these exhibits are generally a subset of the material 
agreements filed under Item 601(b)(10) and should be treated the same 
way.
    At this time, we are not expanding this approach to other exhibits 
required by Item 601, given the specialized subject matter and specific 
considerations relevant to each exhibit. For example, we believe it 
would be a very rare case that a company would appropriately be able to 
exclude portions of other exhibits such as the articles of 
incorporation, bylaws, legal or tax opinions, and codes of ethics. 
Moreover, by a significant margin, the vast majority of confidential 
treatment requests handled by the Commission is made in connection with 
exhibits filed pursuant to Item 601(b)(10).\69\
---------------------------------------------------------------------------

    \69\ For example, in the fiscal year ended 2018, out of 1,239 
requests for confidential treatment 1,130 related to exhibits filed 
pursuant to Item 601(b)(10). Similarly, of the 1,188 CTRs granted by 
the Commission that year, 1,086 related to exhibits filed pursuant 
to Item 601(b)(10).
---------------------------------------------------------------------------

    Finally, to facilitate the consistency of our exhibit requirements 
across different forms, we are adopting a parallel approach to 
information omitted from exhibits required by certain other forms and 
rules for which the exhibit requirements of Item 601 do not apply. For 
example, as we discuss below, we are adopting amendments to Form 20-F 
\70\ to maintain a consistent approach to the exhibit filing 
requirements for domestic registrants and foreign private issuers. We 
are also amending Item 1.01 of Form 8-K to conform to the revisions to 
Item 601(b)(10)(iv). Item 1.01 of Form 8-K requires the disclosure of 
material definitive agreements that are not made in the ordinary course 
of business. The item parallels Item 601(b)(10) of Regulation S-K with 
regard to the types of agreements that are material to a company, but 
it does not require that the material agreements themselves be filed as 
exhibits to the Form 8-K. In 2004, when Item 1.01 was added to Form 8-
K, the Commission considered mandating an Item 1.01 exhibit filing 
requirement but ultimately chose not to do so after considering the 
views of commenters.\71\ Commenters expressed concern that the short 
Form 8-K filing period would make it too difficult to prepare and 
submit requests for confidential treatment of sensitive terms of the 
agreements in a timely manner.\72\ Instead, the Commission retained the 
rule that material agreements disclosed on Form 8-K do not need to be 
filed until the company's next periodic report or registration 
statement, but encouraged companies to file such agreements with the 
Form 8-K to the extent practicable.\73\ Accordingly, although the 
language of Item 1.01 and its instructions reference Item 601(b)(10) of 
Regulation S-K for purposes of determining which agreements must be 
reported under this Form 8-K item, they do not specifically incorporate 
the exhibit filing requirements of Item 601(b)(10). We are therefore 
adopting changes to Form 8-K to clarify that the accommodations to the 
exhibit filing requirements extend to Item 1.01 of Form 8-K as well, to 
the extent such exhibits are filed with the intention of being 
incorporated into future filings in satisfaction of Item 601(b)(10).
---------------------------------------------------------------------------

    \70\ Unlike the exhibit requirements of Form 20-F, which are 
separate from and do not reference Item 601 of Regulation S-K, the 
registration statement Forms F-1, F-3, F-4 for foreign private 
issuers all require registrants to comply with the exhibit 
requirements of Item 601.
    \71\ See Additional Form 8-K Disclosure Requirements and 
Acceleration of Filing Date, Release No. 33-8400 (Mar. 16, 2004) [69 
FR 15593] (``2004 8-K Release''), at 15996-7.
    \72\ Id.
    \73\ Id. at 15597.
---------------------------------------------------------------------------

    For policy reasons similar to those described above, we are 
adopting parallel amendments to the registration forms used by 
investment companies to allow them to redact immaterial provisions or 
terms from exhibits filed as ``other material contracts'' that would 
likely cause the registrant competitive harm if publicly disclosed.\74\ 
We are also extending this treatment to information in reinsurance 
agreements required to be filed as exhibits under Forms N-3, N-4, and 
N-6.\75\ Staff of the Division of Investment Management has routinely 
granted confidential treatment as to information in reinsurance 
agreements in the past. We believe that extending this relief to these 
specific categories of exhibits will substantially reduce the burden 
currently borne by registrants in preparing and processing requests for 
confidential treatment, while still providing all material information 
to investors holding those contracts.
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    \74\ See new Instruction 4 to Item 28 of Form N-1A; new 
Instruction 6 to Item 25.2 of Form N-2; new Instruction 5 to Item 
29(b) of Form N-3; new Instruction 5 to Item 24(b) of Form N-4; new 
Instruction 3 of Instructions as to Exhibits of Form N-5; new 
Instruction 3 to Item 26 of Form N-6; new Instruction 3 to Item 16 
of Form N-14; new Additional Instruction 3 to the Instructions as to 
Exhibits of Form S-6; and new Instruction 3 to IX. Exhibits of Form 
N-8B-2.
    \75\ See new Instruction 5 to Item 29(b) of Form N-3, new 
Instruction 5 to Item 24(b) of Form N-4, and new Instruction 3 to 
Item 26 of Form N-6. Reinsurance agreements are required to be filed 
as separate and distinct exhibits within the list of exhibit items 
required by Forms N-3, N-4, and N-6. Registrants often seek 
confidential treatment of the negotiated terms and of proprietary 
information about how they operate their insurance business that is 
included in these agreements.
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3. Financial Statements: Incorporation by Reference and Cross-Reference 
of Information \76\
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    \76\ For a discussion of other amendments we are adopting that 
also pertain to our rules regarding incorporation by reference, see 
Section II.B.6 infra.
---------------------------------------------------------------------------

a. Proposed Amendments
    Having financial statements cross-reference to disclosure in other 
parts of a filing or incorporate information by reference from other 
filings can raise questions as to the scope of an auditor's 
responsibilities.\77\ To address this concern, the Commission proposed 
amendments to our rules and forms that would prohibit such 
incorporation by reference or cross-referencing.\78\ The proposed 
amendments did not, however, prohibit cross-references to other parts 
of a filing when otherwise specifically permitted by our rules. The 
proposed amendments also did not prohibit incorporating financial

[[Page 12683]]

information from other filings to satisfy financial reporting 
requirements when otherwise permitted or required.\79\ In addition, for 
consistency with both current and proposed Rule 411 and Rule 12b-23, we 
also proposed an additional amendment to Rule 0-4 providing 
restrictions on the incorporation of financial information required to 
be given in comparative form for two or more fiscal years or 
periods.\80\
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    \77\ See Proposing Release, supra note 5, Section II.F.2.c. at 
51010.
    \78\ The Commission proposed amendments to Rule 411, Rule 12b-
23, and Rule 0-4 and Securities Act Forms S-1, S-3, S-11, and F-1. 
Because Rule 0-6 governs incorporation by reference only for 
applications filed under the Investment Advisers Act, the Commission 
did not propose to make similar amendments to that rule, but did 
request comment on whether the final amendments should include this 
provision. We received no comments regarding extending similar 
amendments to Rule 0-6.
    \79\ For example, registrants using Form S-3 would continue to 
be permitted to incorporate financial statements filed with a Form 
8-K that reports the acquisition of a significant business. Also, 
registrants using Form S-4 to report a merger with another 
registrant would continue to be able to incorporate the financial 
statements of the registrant filed on Form 10-K and Form 10-Q. 
Similarly, investment company registrants using, for example, Form 
N-1A would continue to be permitted to incorporate financial 
statements included as part of reports to shareholders that are 
filed on Form N-CSR.
    \80\ See proposed Rule 0-4(b).
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b. Comments
    Several commenters supported the proposed amendments,\81\ while one 
commenter opposed.\82\ Although this commenter shared the concern over 
the need to define the scope of the auditor's responsibilities, it 
stated that prohibiting incorporation by reference or cross-referencing 
of information into the financial statements was a significant lost 
opportunity to improve the delivery of information to investors by 
improving the technology platform on which the Commission collects and 
disseminates that information. A number of commenters suggested that 
the final rule permit foreign private issuers on Form 20-F to cross-
reference outside the financial statements when expressly permitted by 
applicable accounting standards, such as IFRS or by law, regulation or 
by the primary securities regulator in the registrant's home country 
jurisdiction or market.\83\ A few commenters requested confirmation 
that the proposal would not affect financial reporting for certain 
investment company ``fund of funds'' arrangements, such as a master/
feeder arrangement.\84\
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    \81\ See letters from BDO, CAQ, Deloitte, E&Y, Grant Thornton 
LLP (``Grant Thornton''), Piercy Bowler, PWC, and ICI.
    \82\ See letter from Sullivan.
    \83\ See letters from CAQ, Deloitte, E&Y, KPMG, and PWC.
    \84\ See letters from CAQ, KPMG, and PWC. Feeder funds typically 
invest their assets solely in another investment company (a master 
fund), and provide financial statements of the master fund together 
with the feeder fund's financial statements. Generally, the staff of 
the Division of Investment Management has taken the position that 
the financial presentation that is most meaningful in the feeder 
fund context is unconsolidated, provided that, among other things, 
the feeder fund attaches the financial statements of the master fund 
to its financial statements. See Investment Management Guidance 
Update No. 2014-11, Investment Company Consolidation, available at 
http://www.sec.gov/investment/imguidance-2014-11.pdf; and SEC Staff 
Generic Comment Letter for Investment Company CFOs (Dec. 30, 1998), 
available at https://www.sec.gov/divisions/investment/imlr1230.htm. 
The amendments we are adopting today would not change the staff 
interpretation that the master fund's financial statements should be 
attached to the feeder fund's financial statements and not 
incorporated by reference.
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c. Final Amendments
    We are adopting the amendments as proposed, with the following 
modification. In response to commenters who were concerned that the 
proposed amendments may create uncertainty regarding cross-references 
and incorporation by reference in the financial statements when 
expressly permitted by applicable accounting standards, such as IFRS, 
our amendments explicitly provide that incorporating by reference, or 
cross-referencing to, information outside of the financial statements 
is not permitted unless otherwise specifically permitted or required by 
the Commission's rules or by U.S. Generally Accepted Accounting 
Principles or International Financial Reporting Standards as issued by 
the International Accounting Standards Board, whichever is 
applicable.\85\
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    \85\ See, as amended, Rule 411, Rule 12b-23, Rule 0-4, and Forms 
S-1, S-3, S-11, and F-1.
---------------------------------------------------------------------------

    While the use of cross-references and incorporation by reference to 
present information can help investors access information, navigate 
disclosure and focus on key information, we believe it is necessary to 
place restrictions on the ability of registrants to cross-reference and 
incorporate by reference information into the financial statements. By 
generally prohibiting this practice, with certain exceptions as noted 
above, the amendments address concerns that referencing information 
outside the audited financial statements to satisfy financial statement 
disclosure requirements could create confusion about which financial 
information has been audited or reviewed by the independent 
auditor.\86\ We think these changes will reduce potential confusion and 
make it less cumbersome for investors to determine what pieces of 
financial information form a set of audited or reviewed financial 
statements. While we appreciate the views of the commenter who opposed 
the amendments on the grounds that they represented a missed 
opportunity to improve the technology platform on which the Commission 
collects and disseminates information to investors, broader changes to 
the Commission's EDGAR system are outside the scope of this rulemaking 
and we do not agree that adoption of this change would pre-condition 
the Commission's approach in any future technology changes.
---------------------------------------------------------------------------

    \86\ See letter from Deloitte.
---------------------------------------------------------------------------

B. Adoption of Amendments as Proposed

1. Description of Property (Item 102)
a. Proposed Amendments
    Item 102 of Regulation S-K requires that registrants disclose ``the 
location and general character of the principal plants, mines, and 
other materially important physical properties of the registrant and 
its subsidiaries.'' The instructions to Item 102 further clarify the 
type of information required, specifying that registrants:
     Must disclose such information as reasonably will inform 
investors as to the suitability, adequacy, productive capacity, and 
extent of the registrant's utilization of the facilities; \87\ and
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    \87\ See Instruction 1 to Item 102 of Regulation S-K. Detailed 
descriptions of the physical characteristics of individual 
properties or legal descriptions by metes and bounds are not 
required.
---------------------------------------------------------------------------

     should take into account both quantitative and qualitative 
factors when determining whether properties should be described.\88\
---------------------------------------------------------------------------

    \88\ See Instruction 2 to Item 102 of Regulation S-K. Disclosure 
specific to the mining, oil and gas, and real estate industries is 
outside the scope of this rulemaking. Instruction 3 of Item 102 
applies to the mining industry. The Commission has separately 
adopted revisions to the property disclosure requirements for mining 
registrants. See Modernization of Property Disclosures for Mining 
Registrants, Release No. 33-10570 (Oct. 31, 2018) [83 FR 66344 (Dec. 
26, 2018)] (``Modernization for Mining Registrants Release''). 
Instructions 4, 5, and 6 of Item 102 apply to the oil and gas 
industry. The Commission considered disclosure specific to the oil 
and gas industry in 2008. See Modernization of Oil and Gas 
Reporting, Release No. 33-8995 (Dec. 31, 2008) [74 FR 2158 (Jan. 14, 
2009)]. Instruction 9 of Item 102 applies to the real estate 
industry.
---------------------------------------------------------------------------

    Despite existing language in Item 102 that limits the required 
information to properties that are ``materially important'' to the 
registrant and its subsidiaries, the disclosure elicited in response to 
this item may not have been consistently material.\89\ For many 
companies, the only physical properties held may be their headquarters, 
office space, or ancillary facilities, a description of which is likely 
to be unimportant to an investor's evaluation of an investment in the 
company. Even where a description of the registrant's physical 
properties is more likely to be salient to investors, such as with 
manufacturing companies, data centers,

[[Page 12684]]

or casinos, the language of Item 102 may not provide sufficient clarity 
to registrants for determining which of their properties must be 
described. For example, commenters have pointed out that Item 102 
contains a mixture of different disclosure triggers, such as references 
to ``principal'' plants and mines, ``materially important'' physical 
properties, and ``major'' encumbrances, which together in the same 
disclosure requirement may create unnecessary ambiguity.\90\ In 
addition, while Instruction 2 of Item 102 incorporates the materiality 
concepts of Instruction 1 to Item 101 of Regulation S-K, Instruction 1 
of Item 102 provides no such materiality overlay. This lack of harmony 
in Item 102 has created uncertainty about the scope of the rule and has 
likely contributed to the disclosure of immaterial information.
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    \89\ See the Proposing Release, supra note 5, at nn. 21 through 
23 and see generally Section II.A. of the Proposing Release, supra 
note 5. See also Fast Act Report, supra note 7, at Section IV.B.1, 
and Concept Release, supra note 9, at Section IV.A.6.b.
    \90\ See Section II.A. of the Proposing Release, supra note 5, 
and note 28 of that release (citing to the American Bar 
Association's comment letter of March 6, 2015 with respect to the 
Commission's Disclosure Effectiveness initiative).
---------------------------------------------------------------------------

    To address this issue, the Commission proposed revising Item 102 to 
emphasize materiality, which was consistent with several commenters' 
suggestions and the staff's recommendation in the FAST Act Report.\91\ 
The Commission proposed to amend Item 102 to require disclosure to the 
extent physical properties are material to the registrant, which would 
include those properties that are material to the registrant's 
business.\92\ The proposal was also intended to harmonize the various 
non-industry-specific triggers \93\ for disclosure in Item 102 by 
replacing them with a consistent materiality threshold that would 
facilitate its application. The Commission also proposed to clarify 
that the disclosure required under Item 102 may be provided on a 
collective basis, if appropriate.
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    \91\ See FAST Act Report, supra note 7, at Recommendation B.1.
    \92\ In the Proposing Release, the Commission stated the belief 
that this approach would not inadvertently omit disclosures that 
would be material to the registrant, but not its ongoing business, 
such as properties that have value that is material to the 
registrant but are no longer important to its operations. See 
Proposing Release, supra note 5, Section II.A., at 50991.
    \93\ In light of the particular significance of this disclosure 
for registrants in the mining, real estate, and oil and gas 
industries, the Commission did not propose to modify any of the 
instructions of Item 102 specific to those industries. Instructions 
3 through 7 to Item 102 are industry-specific. For example, 
Instruction 3 of Item 102 requires that registrants engaged in 
mining operations must refer to, and if required, provide the 
disclosure under Sec. Sec.  229.1300 through 229.1305 (subpart 1300) 
of Regulation S-K, in addition to any disclosure required by Item 
102. See supra note 88.
---------------------------------------------------------------------------

b. Comments
    Many commenters supported the proposal to focus the required 
disclosure on material physical properties, with several of these 
commenters stating that the proposed amendments would help reduce 
unnecessary disclosure.\94\ Several commenters suggested different 
formulations of the rule. For example, one commenter recommended that 
Item 102 be subsumed into the disclosure objectives of Item 101 and 
specific references to ``material'' and ``materiality'' in the item be 
omitted in favor of a more precisely articulated disclosure 
objective.\95\ Another commenter suggested that the rule require 
disclosure only of properties that present specific risks to the 
registrant, which might mitigate the use of boilerplate disclosure.\96\ 
A third commenter supported the proposed amendment but recommended that 
it apply uniformly to all issuers regardless of industry, including the 
real estate and extractive industries.\97\
---------------------------------------------------------------------------

    \94\ See letters from American Fuel (supporting the revision 
because it ``would help reduce disclosure of immaterial information 
and therefore alleviate the possibility of disclosure overload''), 
Business Roundtable (stating generally that a focus on materiality 
``helps filter unnecessary information out of disclosures, providing 
investors a clearer picture of a company's business and financial 
profile'') and Cravath (stating that the proposed amendments 
``should enhance [Item 102] disclosure where appropriate or 
eliminate it where not material''), CCMC, CNA, Davis Polk, E&Y, 
FedEx, Fenwick, Financial Executives, Grumman, IMA, Lark Research, 
Nasdaq, Reed Smith, SIFMA, Society for Corp. Gov., and Sullivan.
    \95\ See letter from E&Y, recommending that the disclosure 
objective for properties should be ``to identify assets that 
contribute significantly to enterprise value, that are unique or 
provide competitive advantage, that could not be readily replaced or 
that present a significant risk to the enterprise if the registrant 
loses [its] use or access to them.''
    \96\ See letter from IMA (providing as an example the risk of 
expropriation of an oil and gas facility by an unstable government).
    \97\ See letter from CCMC (acknowledging that while physical 
properties will often be material to companies in the real estate 
and extractive industries, there are many situations where 
individual properties or groups of related properties are not 
material to particular issuers in these industries).
---------------------------------------------------------------------------

    In the Proposing Release, the Commission also requested comment on 
whether to further amend Item 102 to require additional disclosure 
about material properties, such as uncertainties in connection with 
these properties. A number of commenters responded that requiring such 
additional disclosure would only duplicate existing requirements, such 
as those in Items 101, 103, 303, and 503(c) of Regulation S-K and 
Exchange Act Rule 12b-20, as well as the financial statement 
footnotes.\98\
---------------------------------------------------------------------------

    \98\ See letters from American Fuel, Cravath, Davis Polk, 
Fenwick, Reed Smith, SIFMA, Society for Corp. Gov., and Sullivan.
---------------------------------------------------------------------------

    Finally, some commenters favored removing Item 102 as a separate 
disclosure item and incorporating it into the description of business 
required by Item 101,\99\ an approach that the staff previously put 
forward in the FAST Act Report.\100\
---------------------------------------------------------------------------

    \99\ See letters from E&Y and Sullivan.
    \100\ See letters from E&Y and Sullivan. See also FAST Act 
Report, supra note 7, at Recommendation B.1.
---------------------------------------------------------------------------

c. Final Amendment
    We are adopting the amendment to Item 102 as proposed.\101\ The 
revised item makes clear that, unless otherwise specified, disclosure 
need only be provided about a physical property to the extent that it 
is material to the registrant. The final rules provide a uniform 
standard of disclosure based on materiality for non-industry specific 
properties. Because determinations of materiality are fact-specific and 
encompass a wide range of possible considerations, we do not think it 
is appropriate to further limit the criteria for Item 102 disclosure by 
focusing only on certain specific risks or other narrowly defined 
measures of materiality. We believe that registrants are best suited to 
determine which, if any, of their physical properties warrant 
discussion based on what is material to them in light of their 
particular circumstances. Under this approach, some physical properties 
held by a registrant may not be material. In some cases, application of 
this analysis may result in a description of property on an individual 
basis or on a collective basis, or may result in no disclosure.
---------------------------------------------------------------------------

    \101\ See revised Item 102.
---------------------------------------------------------------------------

    We have not modified any of the instructions to Item 102 that 
relate to specific industries. As stated in the Proposing Release, the 
particular significance and unique considerations of property 
disclosure for registrants in the mining, real estate, and oil and gas 
industries weigh in favor of separate consideration.\102\
---------------------------------------------------------------------------

    \102\ See supra note 88, noting that the Commission has 
separately adopted revisions to the property disclosure requirements 
for mining registrants.
---------------------------------------------------------------------------

    We are also not opting to combine Item 102 with Item 101, as some 
commenters recommended. We continue to believe any effort to combine 
these requirements should be in the context of a broader inquiry into 
the purpose and function of a registrant's disclosure of its business 
operations, which was outside of the scope of this rulemaking.

[[Page 12685]]

2. Management, Security Holders, and Corporate Governance
a. Amendment to Item 401 of Regulation S-K (Directors, Executive 
Officers, Promoters, and Control Persons)
    Item 401 of Regulation S-K sets forth disclosure requirements about 
the identity and background information of a registrant's directors, 
executive officers, and significant employees.\103\ Form 10-K, which is 
one of several forms that calls for such disclosure, allows registrants 
to incorporate this information (and all other information required by 
Part III of Form 10-K) by reference to their definitive proxy or 
information statement.\104\ As an alternative to incorporating this 
information by reference to a definitive proxy or information 
statement, Instruction 3 to Item 401(b) allows registrants to include 
required information about their executive officers in Part I of Form 
10-K. If a registrant chooses this alternative, Instruction 3 states 
that the registrant is not required to repeat that information in its 
definitive proxy or information statement.
---------------------------------------------------------------------------

    \103\ Item 401 was adopted in 1982 as part of the Commission's 
integrated disclosure initiative, although similar requirements can 
be traced back to Schedule A of the Securities Act. See Adoption of 
Integrated Disclosure System, Release No. 33-6383 (Mar. 3, 1982) [47 
FR 11380 (Mar. 16, 1982)] (the ``Integrated Disclosure System 
Adopting Release''). See also Securities Act, Schedule A, Paragraph 
4 [15 U.S.C. 77aa(4)].
    \104\ General Instruction G.3 of Form 10-K. This instruction 
allows the information required by Item 401, along with other items 
required by Part III of Form 10-K, to be incorporated by reference 
from the registrant's definitive proxy or information statement 
(prepared in accordance with Schedule 14A) if the statement is filed 
with the Commission within 120 days after the end of the fiscal year 
covered by the Form 10-K. If the definitive proxy statement or 
information statement is not filed within the 120-day period or is 
not required to be filed with the Commission, the Part III 
information must be filed as part of the Form 10-K, or an amended 
Form 10-K, no later than the end of the 120-day period.
---------------------------------------------------------------------------

    To make clear that Instruction 3 applies to any executive officer 
disclosure required by Item 401, and therefore registrants need not 
duplicate such disclosure in their definitive proxy or information 
statement if they have already provided it in their Form 10-K, the 
Commission proposed to clarify the scope of the instruction by moving 
it from Item 401(b) and making it a general instruction to Item 401. 
The Commission also proposed to revise the required caption for the 
disclosure if it is included in Part I of Form 10-K to reflect a 
``plain English'' approach. The required caption would be ``Information 
about our Executive Officers'' instead of ``Executive officers of the 
registrant.''
    Several commenters supported the amendments to Item 401 as 
proposed, and no commenters opposed.\105\ One commenter suggested 
further expanding the instruction in Item 401 to allow registrants to 
omit additional disclosure from their definitive proxy or information 
statement if the disclosure was previously filed on Form 10-K.\106\
---------------------------------------------------------------------------

    \105\ See letters from CCMC, Cravath, FedEx, Fenwick, Nasdaq, 
and Society for Corp. Gov.
    \106\ See letter from Cravath (regarding previously filed Item 
404 disclosure). But see letter from Society for Corp. Gov. (arguing 
against expanding the instruction to Item 404 and other disclosure 
items relating to executive officers).
---------------------------------------------------------------------------

    We are adopting the amendment to Item 401, as proposed, to 
eliminate any confusion arising from the current location of the 
instruction.\107\ We are not expanding this amendment to cover other 
Part III disclosure about executive officers, such as Item 404 
disclosure about related-party transactions, because doing so could 
result in bifurcating Part III disclosure between the Form 10-K and a 
separate proxy or information statement based on whether a party is an 
executive officer of the registrant. We think it is preferable to have 
the disclosure required by the Item in one filing.
---------------------------------------------------------------------------

    \107\ New Instruction to Item 401 of Regulation S-K.
---------------------------------------------------------------------------

b. Compliance With Section 16(a) of the Exchange Act (Item 405)
    Section 16(a) of the Exchange Act requires officers, directors, and 
specified types of security holders to report their beneficial 
ownership of a registrant's equity securities using forms prescribed by 
the Commission,\108\ which must be filed electronically on EDGAR.\109\ 
Item 405 requires registrants to disclose each reporting person \110\ 
who failed to file Section 16 reports on a timely basis during the most 
recent fiscal year or prior fiscal years.\111\ The disclosure is 
required under the caption ``Section 16(a) Beneficial Ownership 
Reporting Compliance.'' Rule 16a-3(e) currently requires reporting 
persons to furnish a duplicate of those Section 16 reports to the 
registrant.\112\ Registrants are instructed under Item 405(a) to 
provide the required disclosure relying solely on their review of such 
furnished reports and any written representation provided by such 
persons that no Form 5 is required.\113\
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    \108\ See Form 3, Form 4, and Form 5.
    \109\ Reporting persons have been required to file their Section 
16 reports on EDGAR since 2003. See Mandated Electronic Filing and 
website Posting for Forms 3, 4 and 5, Release No. 33-8230 (May 7, 
2003) [68 FR 25788 (May 13, 2003)] (``Section 16 Mandatory 
Electronic Filing Release''). In addition, all registrants who 
maintain a corporate website are required to post any Section 16 
reports relating to the equity securities of the registrant on such 
website pursuant to Rule 16a-3(k) of the Exchange Act [17 CFR 
240.16a-3(k)], and many registrants satisfy this requirement by 
providing hyperlinks directly to the electronic filings once they 
are made on EDGAR. The Commission has noted that any concerns a 
registrant may have about obtaining an electronic copy of the filing 
from a Section 16 reporting person in order to satisfy the web 
posting requirement ``would not arise for issuers that rely on a 
hyperlink (for example, to EDGAR) instead of, or in addition to, 
direct website posting.'' Id. at 25790.
    \110\ Item 405(a)(1) of Regulation S-K [17 CFR 229.405(a)(1)] 
defines a ``reporting person'' as ``each person who, at any time 
during the fiscal year, was a director, officer, beneficial owner of 
more than ten percent of any class of equity securities of the 
registrant registered pursuant to Section 12 of the Exchange Act, or 
any other person subject to Section 16 of the Exchange Act with 
respect to the registrant because of the requirements of Section 30 
of the Investment Company Act.''
    \111\ Item 405 was initially proposed in 1988 in an attempt to 
reduce the high delinquency rate for Section 16 reports. See 
Ownership Reports and Trading by Officers, Directors and Principal 
Stockholders, Release No. 34-26333 (Dec. 2, 1988) [53 FR 49997 (Dec. 
13, 1988)] and Ownership Reports and Trading by Officers, Directors 
and Principal Security Holders, Release No. 34-27148 (Aug. 18, 1989) 
[54 FR 35667 (Aug. 29, 1989)] (re-proposing Item 405 in response to 
comments on the 1988 proposing release).
    \112\ See 17 CFR 240.16a-3(e).
    \113\ See Item 405(a) and (b)(1).
---------------------------------------------------------------------------

    As described in the Proposing Release, the Commission proposed the 
following changes: \114\
---------------------------------------------------------------------------

    \114\ See Proposing Release, supra note 5, Section II.C.2 at 
50995-6. These proposed amendments were based on staff 
recommendations in the FAST Act Report, which called for revisions 
to Item 405 and Rule 16a-3(e) in light of the availability of 
Section 16 reports on EDGAR. See FAST Act Report, supra note 7, at 
Recommendation D.2. See also Section 16 Mandatory Electronic Filing 
Release, supra note 109, at 25790.
---------------------------------------------------------------------------

     Eliminate the requirement in Rule 16a-3(e) that reporting 
persons furnish Section 16 reports to the registrant.
     Amend Item 405 to:

[cir] Clarify that registrants may, but are not required, to rely only 
on Section 16 reports that have been filed on EDGAR (as well as any 
written representations from the reporting persons) to assess whether 
there are any Section 16 delinquencies to disclose.\115\
---------------------------------------------------------------------------

    \115\ Proposed Item 405(b).
---------------------------------------------------------------------------

[cir] Change the disclosure heading required by Item 405(a)(1) from 
``Section 16(a) Beneficial Ownership Reporting Compliance'' to the more 
specific ``Delinquent Section 16(a) Reports'' and encourage registrants 
to exclude this heading altogether when they have no Section 16(a) 
delinquencies to report.


[[Page 12686]]


     Eliminate the checkbox on the cover page of Form 10-K (and 
the related instruction in Item 10 of Form 10-K) whereby the registrant 
indicates that there is no disclosure of delinquent filers in the Form 
10-K and, to the best of the registrant's knowledge, will not be 
included in a definitive proxy or information statement incorporated by 
reference.
    We received several comments on the proposed amendments,\116\ all 
of which generally supported the revisions, with some commenters 
recommending slight modifications to the rules as proposed.\117\
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    \116\ See letters from CCMC, Cravath, FedEx, Fenwick, and 
Society for Corp. Gov.
    \117\ See letter from Society for Corp. Gov. (suggesting that 
changing the caption to ``Delinquent Section 16(a) Reports'' was 
unnecessary) and letter from Cravath (suggesting that there may be 
some value in requiring affiliates, other than officers and 
directors, to provide registrants with electronic notice of 
delinquent Section 16 reports).
---------------------------------------------------------------------------

    We are adopting the amendments to Item 405, Section 16a-3(e), and 
the cover page of Form 10-K, as proposed. We believe these amendments, 
taken together, will improve the Section 16 disclosure regime for the 
benefit of both registrants and investors by making the rules more 
straightforward, compliance less burdensome, and the disclosure itself 
more streamlined.
    Rule 405, as amended, will allow registrants to leverage the 
availability of Section 16 reports on EDGAR to perform their diligence 
for Item 405 disclosures more efficiently and with a greater degree of 
confidence in the results.\118\ By shifting the focus of a registrant's 
inquiry to Section 16 reports filed electronically on EDGAR, revised 
Item 405 modernizes and simplifies the registrant's compliance with 
Item 405 while still providing all material information. However, 
registrants are not restricted to only these documents and may, but are 
not required, to expand the scope of their inquiry.\119\ Consistent 
with this shift away from furnished reports, as proposed, we are also 
removing the provision in Rule 16a-3(e) that requires Section 16 
reporting persons to provide a duplicate copy of their reports to the 
registrant. This provision, which predates EDGAR and the requirement 
that all reporting persons electronically file their Section 16 
reports, has become unnecessary.\120\
---------------------------------------------------------------------------

    \118\ See revised Item 405(b) [17 CFR 229.405(b)]. Revised Item 
405(b) permits registrants to rely on a review of Section reports 
filed electronically with the Commission during the registrant's 
most recent fiscal year and any written representations from 
reporting persons that no Form 5 is required.
    \119\ Item 405 previously provided that the registrant ``shall'' 
make its disclosure ``based solely upon'' the Section 16 reports 
furnished to it pursuant to Rule 16a-3(e) and any written 
representation from a reporting person that no Form 5 is required. 
As stated in the Proposing Release, this language could be read to 
suggest that registrants may not rely on information outside of the 
Section 16 reports furnished to the registrant pursuant to Rule 16a-
3(e). Therefore, revised Item 405(b) provides that registrants 
``may'' rely only on the Section 16 reports and the written 
representation. As a result, if a registrant were aware that 
information in a Section 16 report submitted on EDGAR was not 
complete or accurate, or that a reporting person failed to file a 
required report, it could provide appropriate disclosure pursuant to 
Item 405, as revised. See Proposing Release, supra note 5, at 50995.
    \120\ For the same reason, we are not amending our rules to 
require that reporting persons provide notice to the registrant when 
they file a Section 16 report on EDGAR. We believe such a notice 
requirement is not only unnecessary, but contrary to the objectives 
of this rulemaking to streamline our disclosure rules and make them 
less burdensome.
---------------------------------------------------------------------------

    We are also changing the required caption in Item 405(a)(1) from 
``Section 16(a) Beneficial Ownership Reporting Compliance'' to 
``Delinquent Section 16(a) Reports'' and including an instruction to 
this item to clarify that registrants are encouraged not to provide 
this caption if there are no delinquencies to report, as proposed. This 
revision is intended to minimize unnecessary disclosure and, at the 
same time, facilitate the ability of investors to identify and monitor 
Section 16 delinquencies.
    Finally, we are modifying the cover page of Form 10-K, as proposed, 
to eliminate the checkbox indicating the absence of Item 405 disclosure 
in a registrant's Form 10-K and its definitive proxy or information 
statement incorporated by reference. We believe the value of this cover 
page disclosure has outlived its usefulness as a tool to facilitate the 
staff's processing and review of the form.\121\
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    \121\ See Proposing Release, supra note 5, Section II.C.2 at 
50995-6.
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3. Corporate Governance (Item 407)
    Several disclosure requirements related to corporate governance are 
consolidated in Item 407.\122\ The Commission proposed amendments to 
update a reference to an outdated auditing standard in Item 
407(d)(3)(i)(B) and proposed to revise Item 407(e)(5) to clarify that 
emerging growth companies (``EGCs'') are not required to provide a 
compensation committee report.\123\ We are adopting these amendments as 
proposed, as further discussed below.
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    \122\ 17 CFR 229.407. Item 407 was adopted in 2006 to 
consolidate various corporate governance requirements under a single 
disclosure item. See Executive Compensation and Related Person 
Disclosure, Release No. 33-8732A (Aug. 29, 2006) [71 FR 53158 (Sept. 
8, 2006)].
    \123\ See FAST Act Report, supra note 7, at Recommendations D.4 
and D.5.
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a. Audit Committee Discussions With Independent Auditor (Item 
407(d)(3)(i)(B))
    Under existing Item 407(d)(3)(i)(B), when a registrant files a 
proxy or information statement relating to an annual or special meeting 
of security holders at which directors are elected or written consents 
are provided in lieu of a meeting, a registrant's audit committee must 
state whether it has discussed with the independent auditor the matters 
required by AU section 380, Communication with Audit Committees (``AU 
sec. 380'').\124\ As described in the Proposing Release, the reference 
to AU sec. 380 has become outdated.\125\ As such, the Commission 
proposed to update the reference to AU sec. 380 in Item 407(d)(3)(i)(B) 
by referring more broadly to ``the applicable requirements of'' the 
Public Company Accounting Oversight Board (``PCAOB'') and the 
Commission.\126\ Several commenters supported the proposed amendments, 
and no commenters opposed.\127\ We are therefore adopting the 
amendments to Item 407(d)(3)(i)(B) as proposed. We believe this 
language will more easily accommodate any future changes to audit 
committee communication requirements.
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    \124\ See Instruction 3 to Item 407(d) of Regulation S-K.
    \125\ See Proposing Release, supra note 5, Section II.C.3.a. at 
50996.
    \126\ See Auditing Standard No. 1301, Communications with Audit 
Committees (``AS 1301''), including Appendix B to AS 1301; Section 
10A(k) of the Exchange Act [15 U.S.C. 78j-1(k)]; Rule 2-07 of 
Regulation S-X [17 CFR 210.2-07]; and Exchange Act Rule 10A-3 [17 
CFR 240.10A-3].
    \127\ See letters from BDO, CAQ, CCMC, Cravath, Deloitte, E&Y, 
FedEx, Fenwick, Nasdaq, PWC, Society for Corp. Gov., and Sullivan. 
Two of these commenters also encouraged the staff to publish 
guidance that catalogs the specific PCAOB and Commission rules that 
are covered by revised Item 407(d)(3)(i)(B) at the time to avoid 
confusion and provide clarity to registrants. See letters from 
Cravath and Society for Corp. Gov. The staff will consider the 
necessity of such additional guidance.
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b. Compensation Committee Report (Item 407(e)(5))
    Item 407(e)(5) \128\ requires a registrant's compensation committee 
to state whether it has reviewed and discussed the Compensation 
Discussion and Analysis (``CD&A'') required by Item 402(b).\129\ Based 
on this review and discussion, Item 407(e)(5) requires that the 
compensation committee state whether it recommended to the board of 
directors that the CD&A be included in the registrant's annual report, 
proxy statement, or information statement. The Commission proposed to 
amend

[[Page 12687]]

Item 407 to explicitly exclude EGCs from the Item 407(e)(5) requirement 
because they are not subject to a requirement to include a CD&A in 
their public disclosures.\130\ Specifically, the proposed amendment 
added a reference to EGCs in Item 407(g), which currently excludes 
smaller reporting companies from Item 407(e)(5), among other provisions 
of Item 407. Several commenters supported the proposed amendments, and 
no commenters opposed.\131\ Accordingly, we are adopting the amendments 
to Item 407(e)(5) as proposed.
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    \128\ 17 CFR 229.407(e)(5).
    \129\ 17 CFR 229.402(b).
    \130\ See Item 402(l) of Regulation S-K.
    \131\ See letters from CAQ, Cravath, FedEx, Fenwick, Nasdaq, 
Society for Corp. Gov., and CCMC.
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4. Registration Statement and Prospectus Provisions
a. Outside Front Cover Page of the Prospectus (Item 501(b))
    Item 501(b) \132\ sets forth disclosure requirements related to the 
outside front cover page of prospectuses.\133\ The proposed amendments 
were intended to streamline these requirements and to provide 
registrants with greater flexibility in designing a cover page tailored 
to their business and the particular offering. We are adopting these 
amendments as proposed, as discussed below.
---------------------------------------------------------------------------

    \132\ 17 CFR 229.501(b).
    \133\ See FAST Act Report, supra note 7, at Recommendations E.1-
5.
---------------------------------------------------------------------------

i. Name (Item 501(b)(1))
    Item 501(b)(1) requires disclosure of a registrant's name, 
including an English translation of the name of foreign registrants. 
The instruction to Item 501(b)(1) states that if a registrant's name is 
the same as that of a ``well known'' company, or if the name leads to a 
misleading inference about the registrant's line of business, the 
registrant must include information to eliminate any possible confusion 
with the other company. If disclosure is insufficient to eliminate the 
confusion, the instruction indicates that the registrant may be 
required to change its name. The instruction provides an exception, 
however, if the registrant is an ``established company,'' the character 
of the registrant's business has changed, and the ``investing public is 
generally aware of the change and the character of [the registrant's] 
current business.'' \134\
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    \134\ This policy reflected in Item 501(b)(1) with regard to 
misleading company names was first articulated by the Commission in 
1969 in response to an increase in the number of registrants using 
names that the staff considered to be misleading. At the time, the 
Commission noted that registrants were using words such as 
``nuclear,'' ``missile,'' ``space,'' ``nucleonics,'' and 
``electronics'' in their names when they were not engaged in 
activity normally associated with those words, or were engaged to a 
limited extent. See Guide for Preparation and Filing of Registration 
Statements; Misleading Names of Registrants, Release No. 33-4959 
(Apr. 16, 1969) [34 FR 6575 (Apr. 17, 1969)]. This policy was 
contained in Guide 53 of the Commission's Guides for Preparation and 
Filing of Registration Statements before being moved into Item 501 
in 1982. See Integrated Disclosure System Adopting Release, supra 
note 103; Rescission of Guides and Redesignation of Industry Guides, 
Release No. 33-6384 (Mar. 3, 1982) [47 FR 11476 (Mar. 16, 1982)].
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    As discussed in the Proposing Release, in an effort to streamline 
Item 501(b)(1), the Commission proposed to eliminate the portion of the 
instruction to Item 501(b) that discusses when a name change may be 
required and the exception to that requirement.\135\
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    \135\ See Proposing Release, supra note 5, Section II.D.1.a. at 
50997.
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    A few commenters supported the proposed amendment to Instruction 1 
of Item 501(b)(1),\136\ while some opposed it.\137\ One commenter 
encouraged the Commission to eliminate the language about a registrant 
being required to change its name because this subject matter is 
already addressed by state law, as well as common law and federal 
trademark law.\138\ The commenter asserted that the Commission's 
resources should not be devoted to matters ``outside its core mission 
of investor protection that are already addressed by other regulators 
and non-securities laws.'' \139\ However, one of the commenters who 
objected to the proposal stated that the Commission should be 
developing and expanding guidance on misleading names, not reducing it, 
noting that this issue continues to raise investor protection 
concerns.\140\
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    \136\ See letters from K. Bishop, CCMC, and Fenwick.
    \137\ See letters from Cravath and Sullivan.
    \138\ See letter from K. Bishop.
    \139\ Id.
    \140\ See letter from Sullivan.
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    After considering these comments, we have decided to adopt the 
amendment as proposed. Our intent is to streamline the instruction to 
Item 501(b) in accordance with the objectives of this rulemaking to 
modernize and simplify our disclosure requirements, not to signal a 
change in Commission policy with respect to the use of potentially 
misleading company names. We continue to believe that a registrant's 
name could mislead investors under some circumstances. However, these 
situations can typically be addressed by the addition of clarifying 
disclosure and exercise of the Commission's discretion to take 
registration statements effective commensurate with the public interest 
and the protection of investors.\141\
---------------------------------------------------------------------------

    \141\ 15 U.S.C. 77h.
---------------------------------------------------------------------------

ii. Offering Price of the Securities (Item 501(b)(3))
    Item 501(b)(3) requires disclosure on the prospectus front cover 
page of the price of the securities being offered, the underwriter's 
discounts and commissions, and the net proceeds that the registrant and 
any selling security holders will receive.\142\ The disclosure must be 
provided on an aggregate and per share basis, but registrants may 
present the required information in any format that fits the design of 
the cover page and is clear, easily read, and not misleading.
---------------------------------------------------------------------------

    \142\ 17 CFR 229.501(b)(3). Item 501(b)(3) also includes 
specific disclosure requirements for offerings being made on a 
minimum/maximum basis.
---------------------------------------------------------------------------

    In situations where it is not practicable to provide a price for 
the securities, Instruction 2 to Item 501(b)(1)(3) permits registrants 
to explain the method by which the price is to be determined.\143\ The 
Commission proposed to amend Instruction 2 to explicitly allow 
registrants to include a clear statement on the cover page, when 
applicable, that the offering price will be determined by a particular 
method or formula that is more fully explained in the prospectus. This 
proposal was based on the belief that investors may be better served if 
registrants were given the option to provide a full explanation of the 
pricing method in the body of the prospectus, with a reference to this 
more fulsome disclosure displayed prominently on the prospectus cover 
page.
---------------------------------------------------------------------------

    \143\ The instruction also provides that if the securities are 
to be offered at the market price, or if the offering price is to be 
determined by a formula relating to the market price, the registrant 
should indicate the market and market price of the securities as of 
the latest practicable date. The Commission did not propose any 
change to this portion of the instruction.
---------------------------------------------------------------------------

    After considering the responses from a number of commenters who 
supported this proposal,\144\ with no commenters opposed, we are 
adopting the amendment to Item 501(b)(3). We continue to believe that 
requiring a detailed explanation of the pricing method on the outside 
front cover page of the prospectus could reduce the impact of other 
significant disclosures and is unnecessary so long as the cover page 
clearly directs investors to the location in the prospectus where the 
disclosure is provided in full.
---------------------------------------------------------------------------

    \144\ See letters from Cravath, Fenwick, Sullivan, and CCMC.
---------------------------------------------------------------------------

iii. Market for the Securities (Item 501(b)(4))
    Item 501(b)(4) requires a registrant to disclose on the prospectus 
cover page the name of any national securities

[[Page 12688]]

exchanges that list the securities being offered and the trading 
symbols for those securities. A ``national securities exchange'' is 
defined in the Exchange Act as a securities exchange that has 
registered with the Commission under Section 6 of the Exchange 
Act.\145\ Item 501(b)(4) is specific to ``national securities 
exchanges'' and does not, under its terms, require registrants to 
identify markets that are not national securities exchanges.\146\
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    \145\ See Section 6 of the Securities Exchange Act of 1934 [15 
U.S.C. 78f].
    \146\ Item 501(b)(4) requires registrants whose securities are 
listed on ``any national securities exchange or the Nasdaq Stock 
Market'' to identify the market(s) and trading symbol(s) for the 
securities. The Nasdaq Stock Market became operational as a 
registered national securities exchange on August 1, 2006, following 
the Commission's approval of its application for registration on 
January 13, 2006. A list of registered national exchanges is 
available on the Commission's website at https://www.sec.gov/fast-answers/divisionsmarketregmrexchangesshtml.html.
---------------------------------------------------------------------------

    The Commission proposed to amend Item 501(b)(4) to require 
disclosure on the prospectus cover page of the principal United States 
market or markets for the securities being offered and the 
corresponding trading symbols based on the premise that the information 
required by Item 501(b)(4) could be important to investors even as to 
markets that are not ``national securities exchanges.'' \147\ The 
Commission proposed to expand the scope of the item only to the 
principal United States markets where the registrant, through the 
engagement of a registered broker-dealer, has actively sought and 
achieved quotation. By limiting the proposal in this way, the 
Commission acknowledged that registrants cannot always control whether 
their securities are quoted on an over-the-counter market and should 
not be burdened with making that determination.
---------------------------------------------------------------------------

    \147\ The proposed changes to Item 501(b)(4) align with recent 
amendments to Item 201(a) [17 CFR 229.201(a)]. See Disclosure Update 
and Simplification, Release No. 33-10532 (Aug.17, 2018) [83 FR 50148 
(Oct. 4, 2018)] (the ``Disclosure Update and Simplification 
Release'') at 51688.
---------------------------------------------------------------------------

    Several commenters supported the proposal,\148\ and only one 
commenter opposed it.\149\ The commenter that opposed expanding the 
cover page disclosure of applicable securities markets stated that the 
identification of trading markets other than national securities 
exchanges on the prospectus cover page may confuse investors by 
suggesting that the markets were equivalent to national exchanges.\150\
---------------------------------------------------------------------------

    \148\ See letters from CCMC, Cravath (noting that in connection 
with the implementation of the European Union Market Abuse 
Regulation, many registrants have discovered that it is possible for 
third parties--without any participation by or even notice to the 
registrant--to list the registrant's securities on a securities 
exchange), Fenwick, and Sullivan.
    \149\ See letter from Nasdaq.
    \150\ Id. The commenter pointed out that national securities 
exchanges are registered under Section 6(b) of the Exchange Act and 
therefore subject to more rigorous requirements than non-registered 
domestic exchanges. Cover page disclosure of these other exchanges 
might, in the commenter's view, give them the ``imprimatur'' of a 
national securities exchange, thus complicating the disclosure 
rather than streamlining it.
---------------------------------------------------------------------------

    We are adopting amended Item 501(b)(4), as proposed. We continue to 
believe, as stated in the Proposing Release, that investors would 
benefit from the addition of this information.\151\ In adopting this 
disclosure requirement, we considered the concern that the presentation 
of this information on the prospectus cover page might suggest to some 
investors that the registrant's principal United States market, while 
not a national securities exchange, carries the imprimatur of an 
exchange registered under Section 6(b) of the Exchange Act. It is not 
clear, however, that providing the name of the principal market on the 
prospectus cover page, in and of itself, is sufficient to create an 
inference about the quality of the market, or that such identification 
carries any implication about the market that would not already be 
produced by identification of the market under the existing prospectus 
disclosure requirements of Item 202 and Item 508 of Regulation S-
K.\152\ Therefore, we do not think that there is a significant risk 
that investors will equate the principal market or markets listed on 
the cover page with a national stock exchange.
---------------------------------------------------------------------------

    \151\ See Proposing Release, supra note 5, Section II.D.1.c. at 
50998.
    \152\ Item 202 [17 CFR 229.202] requires a description of the 
registrant's securities, including relevant market information. Item 
508 [17 CFR 229.508] pertains to disclosure about the plan of 
distribution of the securities offering, including identification of 
the exchange, if any, on which the securities are to be offered.
---------------------------------------------------------------------------

iv. Prospectus ``Subject to Completion'' Legend (Item 501(b)(10))
    Item 501(b)(10) requires a registrant that is using a preliminary 
prospectus to include a legend advising readers that the information 
will be amended or completed. The legend also must include a statement 
that the prospectus is not an offer to sell or a solicitation of an 
offer to buy securities in any state where the offer or sale is not 
permitted. The latter statement was introduced in 1958 to harmonize the 
legend with what was required by state securities administrators at the 
time.\153\
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    \153\ See Amendment of Rules 134 and 433, Release No. 33-3885 
(Jan. 7, 1958) [23 FR 184 (Jan. 10, 1958)]. This requirement was 
originally in Rule 433, a predecessor to the current requirement.
---------------------------------------------------------------------------

    The legend requirement has remained mostly unchanged since 1958, 
even after the National Securities Markets Improvement Act (``NSMIA'') 
allowed for preemption of state blue sky laws in many offerings.\154\ 
The Commission proposed to amend Item 501(b)(10) to permit registrants 
to exclude from the prospectus the portion of the legend relating to 
state law for offerings that are not prohibited by state blue sky laws. 
This change would allow for a more tailored prospectus cover page in 
recognition of the changes to securities law brought by NSMIA.
---------------------------------------------------------------------------

    \154\ Public Law 104-290, 110 Stat. 3416 (1996).
---------------------------------------------------------------------------

    The Commission also proposed to streamline Item 501(b) by 
consolidating existing Item 501(b)(11), regarding the use of Rule 430A, 
into Item 501(b)(10) for the sake of simplicity without substantive 
change.
    A number of commenters supported the amendments to Item 501(b)(10) 
that would simplify the ``subject to completion'' legend on preliminary 
prospectuses, and no commenters opposed these amendments.\155\ 
Therefore, and for the reasons noted in the Proposing Release, we are 
adopting the revisions to Item 501(b)(10) as proposed.
---------------------------------------------------------------------------

    \155\ See letters from CCMC, Cravath, Fenwick, and Sullivan.
---------------------------------------------------------------------------

b. Risk Factors (Item 503(c))
    Item 503(c) requires disclosure of the most significant factors 
that make an offering speculative or risky.\156\ This risk factor 
disclosure was initially called for only in the offering context,\157\ 
but in 2005 the risk factor disclosure requirements were extended to 
periodic reports and registration statements on Form 10.\158\ 
Consistent with this change, the Commission proposed to relocate Item 
503(c) to new Item 105, as Subpart 100 covers a broad category of 
business information and is not limited to offering-related 
disclosure.\159\
---------------------------------------------------------------------------

    \156\ 17 CFR 229.503(c).
    \157\ See Guides for Preparation and Filing of Registration 
Statements, Release No. 33-4666 (Feb. 7, 1964) [29 FR 2490 (Feb. 15, 
1964)] and Guides for Preparation and Filing of Registration 
Statements, Release No. 33-4936 (Dec. 9, 1968) [33 FR 18617 (Dec. 
17, 1968)].
    \158\ See Securities Offering Reform, Release No. 33-8591 (July 
19, 2005) [70 FR 44722 (Aug. 3, 2005)] (``Securities Offering Reform 
Adopting Release'').
    \159\ Additionally, the proposed amendments use the term 
``registrant'' instead of ``issuer.'' Use of and reference to 
``registrant'' instead of ``issuer'' was intended to better reflect 
the application of risk factor disclosure outside of the offering 
context. The term ``registrant'' is defined under both the Exchange 
Act and Securities Act. See Rule 12b-2 [17 CFR 240.12b-2] and Rule 
405 [17 CFR 230.405]. The Commission also proposed amendments to 
several Commission forms that require risk factor disclosure and 
reference Item 503(c). The proposed amendments would revise 
references to Item 503 to specify new Item 105. A number of forms 
that require risk factor disclosure do not reference Item 503(c). 
The proposed amendments did not include revisions to these forms. 
For example, Forms 10-Q and 20-F require risk factor disclosure but 
do not reference item 503(c).

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[[Page 12689]]

    The Commission also proposed amendments that would eliminate the 
specific risk factor examples that are currently enumerated in Item 
503(c). Although Item 503(c) is principles-based, and the Commission 
has eschewed ``boiler plate'' risk factors that are not tailored to the 
unique circumstances of each registrant, the following examples of 
factors that may make an offering speculative or risky have remained 
unchanged since the Commission first published guidance on risk factor 
disclosure in 1964: \160\
---------------------------------------------------------------------------

    \160\ See Guides for Preparation and Filing of Registration 
Statements, Release No. 33-4666 (Feb. 7, 1964) [29 FR 2490 (Feb. 15, 
1964)].
---------------------------------------------------------------------------

     A registrant's lack of an operating history;
     a registrant's lack of profitable operations in recent 
periods;
     a registrant's financial position;
     a registrant's business or proposed business; and
     the lack of a market for a registrant's common equity 
securities or securities convertible into or exercisable for common 
equity securities.
    As discussed in the Proposing Release, the Commission's principles-
based approach to risk factor disclosure is not consonant with the 
item's list of examples of material risks.\161\ These examples may not 
apply to all registrants and may not correspond to the material risks 
of any particular registrant. In addition, the inclusion of these 
examples could suggest that a registrant must address each one in its 
risk factor disclosures, regardless of the significance to its 
business. Finally, the Commission was concerned that the inclusion of 
any examples in Item 503(c), whether to illustrate the specific kinds 
of risks that should be disclosed or generic risks that should be 
avoided, could anchor or skew the registrant's risk analysis in the 
direction of the examples.\162\
---------------------------------------------------------------------------

    \161\ See Proposing Release, supra note 5, Section II.D.2. at 
50998-10.
    \162\ See Proposing Release, supra note 5, at n. 145.
---------------------------------------------------------------------------

    Numerous commenters supported the proposed amendments to relocate 
the risk factor disclosure requirements from Item 503(c) to new Item 
105 and eliminate the examples of risk factors that currently appear in 
the rule.\163\ Commenters generally agreed that the examples are not 
helpful because they are written generically and, as such, are not well 
suited to the particular circumstances and material risks of individual 
registrants. Some commenters pointed out that the examples may even 
prompt registrants to include risk factors that address the risks 
highlighted in the examples even if they are not material to their 
business.\164\ One commenter opposed the elimination of examples in 
Item 503(c) because, in its view, the examples are helpful guidance 
that brings focus to the risk factor disclosures.\165\ The commenter 
suggested that eliminating the examples may not further the 
Commission's objective of eliciting more specific and relevant risk 
factor disclosure.
---------------------------------------------------------------------------

    \163\ See letters from American Fuel, BDO, CAQ, Cravath, Edison 
Electric Institute & American Gas Association, E&Y, Fenwick, 
Financial Executives, PNC Financial Services Group (``PNC''), Reed 
Smith, SIFMA, Sullivan, and UnitedHealth.
    \164\ See, e.g., letters from Reed Smith and SIMFA.
    \165\ See letter from CII.
---------------------------------------------------------------------------

    We are adopting the amendments as proposed. With respect to the 
elimination of the specific examples of material risks currently found 
in Item 503(c), we continue to think that retaining these examples, 
which have remained unchanged since they were first articulated in 
1964, would be inconsistent with the Commission's emphasis on 
principles-based requirements that encourage registrants to provide 
risk disclosure that is more precisely calibrated to their particular 
circumstances and therefore more meaningful to investors. By removing 
this language from the risk factor disclosure rules, we seek to 
encourage registrants to focus on their own risk identification 
processes.
c. Plan of Distribution (Item 508)
    Item 508 requires disclosure about the plan of distribution for 
securities in an offering, including information about underwriters. 
Paragraph (a) requires disclosure about the principal underwriters and 
any underwriters that have a material relationship with the registrant, 
while paragraph (h) requires disclosure of the discounts and 
commissions to be allowed or paid to dealers. If a dealer is paid any 
additional discounts or commissions for acting as a ``sub-
underwriter,'' paragraph (h) allows the registrant to include a general 
statement to that effect without giving the additional amounts to be 
sold.
    ``Sub-underwriter'' is not a defined term, and its application may 
be unclear. ``Principal underwriter,'' however, is defined in 
Regulation C as ``an underwriter in privity of contract with the issuer 
of the securities as to which he is an underwriter.'' \166\ The 
Commission accordingly proposed to amend Rule 405 to define the term 
``sub-underwriter'' as a dealer that is participating as an underwriter 
in an offering by committing to purchase securities from a principal 
underwriter for the securities but is not itself in privity of contract 
with the issuer of the securities.\167\
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    \166\ Rule 405.
    \167\ The only other use of the term ``sub-underwriter'' or 
``subunderwriter'' in Regulation S-K, the Securities Act rules, or 
the Exchange Act rules is in Rule 491. The Commission proposed to 
amend Rule 491 to reference ``sub-underwriter,'' consistent with the 
proposed amendments to Rule 405. The proposed definition of sub-
underwriter would not change the meaning of that term in Rule 491.
---------------------------------------------------------------------------

    A number of commenters supported the proposed amendments to Rule 
405 and no commenters opposed them.\168\ We are therefore adopting the 
amendment to add the definition of ``sub-underwriter'' to Rule 405, as 
proposed.
---------------------------------------------------------------------------

    \168\ See letters from CCMC, Cravath, and Sullivan.
---------------------------------------------------------------------------

d. Undertakings (Item 512)
    Item 512 provides undertakings that a registrant must include in 
Part II of its registration statement, depending on the type of 
offering. As further described in the Proposing Release, the Commission 
proposed the following amendments to eliminate undertakings that are 
duplicative of other rules or that have become unnecessary due to 
developments since their adoption.\169\ Specifically, the Commission 
proposed to eliminate Item 512(c) \170\ in its entirety because it is 
no longer necessary,\171\ and proposed to eliminate the Item 512(d), 
Item 512(e), and Item 512(f) undertakings, because they are 
obsolete.\172\
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    \169\ See Proposing Release, supra note 5, Section II.D.4. at 
51000-1.
    \170\ 17 CFR 229.512(c).
    \171\ See Proposing Release, supra note 5, Section II.D.4. at 
51000. Item 512(c) sets forth undertakings that a registrant must 
include if it registers a warrant or rights offering to existing 
security holders and the securities not purchased by those security 
holders will be reoffered to the public. The Item requires a 
registrant to supplement the prospectus to disclose the results of 
the subscription offer and the terms of any subsequent reoffer to 
the public. If any public reoffer is made on different terms than 
the offer to existing security holders, the registrant must 
undertake to file a post-effective amendment. The purpose of the 
undertaking is to provide current information about warrants or 
rights offerings. See FAST ACT Report, supra note 7, at 
Recommendation E.8. Given that the registrant would already have to 
register and disclose the offering to existing security holders, as 
well as the reoffering to the public, the undertaking is duplicative 
and unnecessary. Furthermore, disclosure of material changes in the 
terms of the offering would also be required as part of the Item 
512(a)(1) undertaking, thus obviating the need for Item 512(c).
    \172\ Id. at 51000-1. Item 512(d) is applicable when the 
securities to be registered are to be offered at competitive 
bidding. Item 512(e) sets forth undertakings that are required if 
the registration statement incorporates by reference in the 
prospectus all or any part of the annual report to security holders 
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the 
Exchange Act. Item 512(f) pertains to equity offerings of 
registrants that are not subject to the reporting requirements of 
Section 13(a) or 15(d) of the Exchange Act. Each of these items is 
no longer necessary because of prior changes in our rules, as 
described in the Proposing Release. For example, the undertaking in 
Item 512(d) arose from a requirement in the Public Utility Holding 
Company Act of 1935 (``PUHCA'') that public utility company 
securities be sold through competitive bidding. That requirement was 
rescinded in 1994 and PUHCA was repealed by Congress in 2005.

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[[Page 12690]]

    A number of commenters supported the proposed amendments to the 
undertakings and no commenters opposed them.\173\ Accordingly, and for 
the reasons noted in the Proposing Release, we are amending Item 512 to 
remove the undertakings in paragraphs 512(c), (d), (e), and (f), as 
proposed.
---------------------------------------------------------------------------

    \173\ See letters from Cravath, FedEx, Nasdaq, Sullivan, and 
CCMC.
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5. Exhibits
a. Description of Registrant's Securities (Item 601(b)(4))
    Item 202 requires registrants to provide a brief description of 
their registered capital stock, debt securities, warrants, rights, 
American Depositary Receipts, and other securities.\174\ Registrants 
provide Item 202 disclosure about registered securities in their 
registration statements,\175\ but are not required to provide this 
disclosure in their Form 10-K or Form 10-Q.\176\
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    \174\ Items 202(a)-(d) and (f) [17 CFR 229.202(a)-(d) and (f)]. 
Item 202(e), ``Market information for securities other than common 
equity,'' is outside the scope of this rulemaking; it requires that 
if securities other than common stock are to be registered and there 
is an established trading market for such securities, registrants 
are required to provide market information for such securities 
comparable to that required by Item 201(a) of Regulation S-K.
    \175\ Item 202 disclosure is often incorporated by reference 
into a registration statement on Form 8-A from a prior registration 
statement on Form S-1. See Concept Release, supra note 9, at Section 
IV.D.2.
    \176\ Registrants are required to file complete copies of their 
articles and bylaws as exhibits to Form 10-K, but they are not 
required to provide the descriptions called for by Item 202. See 
Item 601(b)(3) [17 CFR 229.601(b)(3)]. Also, under Accounting 
Standards Codification (``ASC'') Topic 505-10-50-3, registrants are 
required to summarize the ``pertinent rights and privileges of the 
various securities outstanding'' in the notes to their financial 
statements. ASC Topic 470-10-50-5 requires the same information for 
debt securities. While the date of sale is not required, registrants 
usually include it in their discussions of the rights and privileges 
of securities sold.
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    The Commission proposed to amend Item 601(b)(4) \177\ to require 
registrants to provide the information required by Item 202(a)-(d) and 
(f) as an exhibit to Form 10-K, rather than limiting this disclosure to 
registration statements.\178\ The proposed amendments were intended to 
be in addition to the current requirement to file a complete copy of 
the amended articles of incorporation or bylaws under Item 601(b)(3) 
\179\ in order to increase investors' ease of access to information 
about the rights and obligations of each class of securities 
registered.\180\
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    \177\ 17 CFR 229.601(b)(4).
    \178\ To the extent that a registrant has previously filed an 
exhibit to a Form 10-K containing Item 202 disclosure, under the 
proposal it could incorporate that exhibit by reference and 
hyperlink to the previously filed exhibit in future Form 10-K 
filings, assuming that the information contained therein remains 
unchanged. See Instruction 3 to proposed Item 601(b)(4)(vi).
    \179\ See Item 601(b)(3) of Regulation S-K [17 CFR 
229.601(b)(3)]. The Commission proposed to amend Item 601(b)(4) 
instead of Item 601(b)(3) because (b)(4) is consistent with Item 
202's requirement to provide a description of capital stock that is 
registered, while (b)(3) is specific to the articles of 
incorporation and bylaws.
    \180\ Proposed Item 601(b)(4)(vi) would require Item 202 
disclosure only for securities that are registered under Section 12 
of the Exchange Act. Because Item 202(e) requires Item 201(a) market 
information for securities other than common equity where there is 
an established trading market for those securities, proposed Item 
601(b)(4)(vi) did not include Item 202(e).
---------------------------------------------------------------------------

    We received responses from a number of commenters on the proposal 
to require Item 202 information as an exhibit to Form 10-K.\181\ 
Several commenters supported the Commission's proposal to consolidate 
into one exhibit the description of a registrant's securities, but 
emphasized that the ability of registrants to incorporate the required 
information by reference to prior filings was essential to minimizing 
the registrants' compliance burden.\182\ One commenter acknowledged the 
initial, one-time burden required to comply with the new exhibit 
requirement, but thought this cost was outweighed by the benefit to 
investors from making the information easier to locate.\183\ This 
commenter stated that the effect of the requirement would be to ``put 
all registrants on a level playing field.'' \184\ In contrast, some 
commenters opposed the proposal because, in their view, the information 
required by new Item 601(b)(4)(vi) would be duplicative of information 
already readily available to investors on EDGAR.\185\
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    \181\ See letters from Ball Corporation (``Ball''), CCMC, CII, 
Cravath, Davis Polk, Fenwick, Financial Executives, Reed Smith, 
SIFMA, Soc. For Corp Gov., and Sullivan.
    \182\ See, e.g., letters from Davis Polk, Fenwick, Society for 
Corp. Gov., and Sullivan. One commenter indicated that without the 
option to incorporate by reference, preparation of new exhibits with 
multiple classes of registered debt securities would exceed the 
associated 0.5 hour paperwork burden estimated in the Proposing 
Release because of the time needed to prepare the disclosure and 
have it reviewed by outside counsel. See letter from Davis Polk.
    \183\ See letter from SIFMA.
    \184\ Id.
    \185\ See letters from Ball, Cravath, and Financial Executives 
(noting obligations under Form 8-K and Schedule 14A). See also 
Proposing Release, supra note 5 at Section II.E.1. at nn. 180 and 
181.
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    We are adopting amendments to Item 601(b)(4) as proposed. Although 
the information required by this item will necessarily overlap with 
disclosure that may already be found in a registrant's publicly 
available registration statements, we think that providing all of this 
information in one location is a better alternative for investors than 
requiring them to search for and piece together the information they 
need from multiple documents that may span many years. By virtue of new 
601(b)(4)(vi), investors will be able to easily locate an updated 
description of their rights as security holders by referring to the 
registrant's most recent annual report. We believe this will facilitate 
investors' access to information without imposing significant 
additional costs on registrants, particularly given the registrant's 
ability to incorporate the information by reference \186\ and the 
existing requirement to hyperlink exhibits that are incorporated by 
reference.\187\
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    \186\ See Instruction 3 to new Item 601(b)(4)(vi).
    \187\ See Item 601(a)(2) of Regulation S-K.
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    We note that these amendments do not change existing disclosure 
obligations under Form 8-K and Schedule 14A, which require registrants 
to disclose certain modifications to the rights of their security 
holders and amendments to their articles of incorporation or 
bylaws.\188\ Under new Item 601(b)(4)(vi), any modifications and 
amendments during a fiscal year should also be reflected in the Item 
202 disclosure provided in an exhibit to the

[[Page 12691]]

registrant's annual report for such year.\189\
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    \188\ Item 3.03 of Form 8-K requires disclosure of material 
modifications to rights of security holders while Item 5.03 requires 
disclosure of amendments to the articles of incorporation or bylaws 
for amendments not disclosed in a proxy or information statement. 
Item 5.03 of Form 8-K also requires disclosure of changes in fiscal 
year other than by means of a submission to a vote of security 
holders through the solicitation of proxies (or otherwise) or an 
amendment to the articles of incorporation or bylaws.
    Item 12 of Schedule 14A requires disclosure if action is to be 
taken regarding the modification of any class of securities of the 
registrant, or the issuance or authorization for issuance of 
securities of the registrant in exchange for outstanding securities. 
Section (b) of Item 12 requires disclosure of any material 
differences between the outstanding securities and the modified or 
new securities in respect to any of the matters concerning which 
information would be required in the description of the securities 
in Item 202 of Regulation S-K. Item 19 of Schedule 14A requires 
disclosure of amendments to the registrant's charter, bylaws, or 
other documents.
    \189\ Over the course of a given fiscal year, it is possible 
that a registrant may make various non-material changes to the 
rights and privileges of its securities that do not require separate 
disclosure on Form 8-K. However, if any changes are made, whether 
material or non-material, new Item 601(b)(4)(vi) requires a 
registrant to update the description of securities in the exhibit 
filed with its Form 10-K.
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b. Additional Information Omitted From Exhibits (Item 601 and 
Investment Company Forms) \190\
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    \190\ See supra at Section II.A.2. for a discussion of our 
amendment to the exhibit requirements in Item 601(b)(10) pertaining 
to material contracts.
---------------------------------------------------------------------------

i. Schedules and Attachments to Exhibits
    Under existing rules in Item 601 of Regulation S-K, registrants 
generally must file complete copies of any required exhibits. Very 
often, these exhibits include a number of schedules, appendices, and 
other similar attachments which can be quite lengthy but not 
necessarily material to investors. Except for paragraph (b)(2) of Item 
601,\191\ which applies only to material plans of acquisition, 
reorganization, arrangement, liquidation, or succession, registrants 
must file every required exhibit under Item 601 in its entirety, 
irrespective of the materiality of particular information in the 
exhibits. Because the information in certain schedules or similar 
attachments to the exhibits may not be material to investors, a uniform 
filing requirement for this information is not commensurate with the 
corresponding costs and burden imposed on registrants, particularly 
when the schedules, appendices, and other attachments contain 
proprietary or otherwise sensitive information.
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    \191\ Item 601(b)(2) states that registrants shall not file 
schedules or similar attachments to material plans of acquisition, 
reorganization, arrangement, liquidation, or succession unless they 
contain information material to an investment decision and unless 
that information is not otherwise disclosed in the agreement or the 
disclosure document.
---------------------------------------------------------------------------

    Consequently, the Commission proposed Item 601(a)(5) to expand the 
existing accommodation in Item 601(b)(2) to include all exhibits filed 
under Item 601. Similar to current Item 601(b)(2), proposed Item 
601(a)(5) would permit registrants to omit entire schedules and similar 
attachments to required exhibits, provided: (i) They did not contain 
material information and (ii) were not otherwise disclosed in the 
exhibit or the disclosure document. Just as with Item 601(b)(2), 
proposed Item 601(a)(5) was qualified by the requirement that the filed 
exhibit must contain a list briefly identifying the contents of any 
omitted schedules and attachments.\192\ The Commission also requested 
comment on whether it should apply the proposed amendments to forms 
that contain their exhibit requirements in the form and do not 
separately reference Item 601 of Regulation S-K. The Commission 
similarly requested comment on whether it should amend the investment 
company rules or forms to permit investment companies to omit entire 
schedules and attachments to required exhibits on similar terms.
---------------------------------------------------------------------------

    \192\ See proposed Item 601(a)(5) of Regulation S-K. Unlike the 
current version of Item 601(b)(2), proposed Item 601(a)(5) would not 
require registrants to include with their list of omitted schedules 
an explicit agreement to furnish a supplemental copy of any omitted 
schedule to the Commission upon request. Nonetheless, registrants 
may be required to provide a copy of any omitted schedule to the 
Commission staff upon request. Securities Act Rule 418 [17 CFR 
230.418] states that the Commission or its staff may, where it is 
deemed appropriate, request supplemental information concerning the 
registrant or a registration statement, among other things. Exchange 
Act Rule 12b-4 [17 CFR 240.12b-4] similarly indicates that the 
Commission or its staff may, where it is deemed appropriate, request 
supplemental information concerning the registrant, a registration 
statement, and a periodic or other report filed under the Exchange 
Act.
---------------------------------------------------------------------------

    Commenters generally supported the proposal, with several noting 
the excessive burden on registrants under the current rules without a 
corresponding benefit to investors.\193\ One commenter stated that the 
rationale for the proposed amendments to Item 601 of Regulation S-K was 
applicable to other forms,\194\ while another favored expanding the 
scope of the proposal specifically to include rules and forms under the 
Investment Company Act.\195\ Another commenter stated that the required 
list identifying any omitted schedules or attachments was unnecessary 
if a comparable list already exists in the exhibit.\196\
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    \193\ See letters from Business Roundtable, CCMC, Cravath, Davis 
Polk, FedEx, Fenwick, Financial Executives, Grumman, PNC, SIFMA, 
Society for Corp. Gov., Sullivan, and UnitedHealth.
    \194\ See letter from Society for Corp. Gov.
    \195\ See letter from ICI.
    \196\ See letter from Cravath.
---------------------------------------------------------------------------

    We are adopting new Item 601(a)(5) as proposed. When the Commission 
first adopted Item 601(b)(2) in 1980, it noted that many of the 
schedules then received by the staff were ``not material for investor 
information or protection and are unnecessary for Commission review 
purposes.'' \197\ The same reasoning provides the basis for expanding 
the accommodation in Item 601(b)(2) to other exhibits filed pursuant to 
Item 601. For similar reasons, we are adding comparable provisions to 
the exhibit requirements of Item 1016 of Regulation M-A,\198\ our 
investment company registration forms, and Form N-CSR.\199\ As 
discussed, each exhibit that includes omitted schedules or other 
attachments in reliance on these new provisions must contain a list 
briefly identifying the contents of each such schedule or attachment, 
which is a requirement that mirrors the language in Item 601(b)(2). 
However, in response to one commenter's suggestion, we are clarifying 
that the amendments do not require that registrants prepare a separate 
list if that information is already included within the exhibit in a 
manner that conveys the subject matter of the omitted schedules and 
attachments.
---------------------------------------------------------------------------

    \197\ Amendments Regarding Exhibit Requirements, Release No. 33-
6230 (Aug. 27, 1980) [45 FR 58822 (Sept. 5, 1980)], at 5.
    \198\ See new Instruction 1 to Item 1016.
    \199\ See new Instruction 2 to Item 28 of Form N-1A; new 
Instruction 4 to Item 25.2 of Form N-2; new Instruction 3 to Item 
29(b) of Form N-3; new Instruction 3 to Item 24(b) of Form N-4; new 
Instruction 1 of Instructions as to Exhibits of Form N-5; new 
Instruction 1 to Item 26 of Form N-6; new Instruction 1 to Item 16 
of Form N-14; new Additional Instruction 1 to the Instructions as to 
Exhibits of Form S-6; new Instruction 1 to IX. Exhibits of Form N-
8B-2; and new Instruction 2 to Item 13 of Form N-CSR.
---------------------------------------------------------------------------

ii. Personally Identifiable Information \200\
---------------------------------------------------------------------------

    \200\ See supra at Section II.A.2. for a discussion of our 
amendments to the exhibit requirements in Item 601(b)(10) pertaining 
to material contracts.
---------------------------------------------------------------------------

    The Commission generally does not publish or make available 
information that ``would constitute a clearly unwarranted invasion of 
personal privacy.'' \201\ Exhibits filed pursuant to Item 601 may 
include sensitive personally identifiable information, such as bank 
account numbers, social security numbers, home addresses, and similar 
information (``PII'').
---------------------------------------------------------------------------

    \201\ 17 CFR 200.80(b)(6) (exempting personnel and medical files 
and similar files the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy).
---------------------------------------------------------------------------

    As a matter of practice, the staff generally does not object where 
a registrant omits PII from exhibits without also submitting a 
confidential treatment request under Rule 406 or Rule 24b-2. To codify 
this current staff practice, the Commission proposed new Item 601(a)(6) 
to allow registrants to omit PII from their required Item 601 exhibits 
without submitting a confidential treatment request for the 
information. In proposing this amendment, the Commission also 
anticipated the added benefit of better safeguarding PII by limiting 
its dissemination. In the Proposing Release, the Commission asked 
whether similar amendments should be made to forms that contain their 
exhibit requirements in the form and do not separately

[[Page 12692]]

reference Item 601 of Regulation S-K, as well as investment company 
forms.
    Several commenters supported the proposed amendment to Item 601, 
and no commenters opposed.\202\ In addition, one commenter indicated 
that the same rationale applied to other forms \203\ and two other 
commenters specifically recommended that a similar accommodation be 
extended to investment companies.\204\
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    \202\ See, e.g., letters from American Fuel, CCMC, Cravath, 
Davis Polk, FedEx, Grumman, ICI, PNC, and Society for Corp. Gov.
    \203\ See supra note 194.
    \204\ See letters from ICI and Society for Corp. Gov.
---------------------------------------------------------------------------

    We are adopting new Item 601(a)(6) as proposed. For the same policy 
reasons as discussed above, we are also adding comparable provisions to 
the exhibit requirements of Item 1016 of Regulation M-A,\205\ our 
investment company registration forms, and Form N-CSR.\206\ Under the 
amendments, registrants may redact information if disclosure of such 
information would constitute a clearly unwarranted invasion of personal 
privacy. Registrants who choose to avail themselves of this 
accommodation may provide their exhibit with appropriate redactions and 
need not include an analysis supporting the redactions at the time of 
filing.
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    \205\ See new Instruction 2 to Item 1016.
    \206\ See new Instruction 3 to Item 28 of Form N-1A; new 
Instruction 5 to Item 25.2 of Form N-2; new Instruction 4 to Item 
29(b) of Form N-3; new Instruction 4 to Item 24(b) of Form N-4; new 
Instruction 2 of Instructions as to Exhibits of Form N-5; new 
Instruction 2 to Item 26 of Form N-6; new Instruction 2 to Item 16 
of Form N-14, new Additional Instruction 2 to the Instructions as to 
Exhibits of Form S-6; new Instruction 2 to IX. Exhibits of Form N-
8B-2; and new Instruction 3 to Item 13 of Form N-CSR.
---------------------------------------------------------------------------

c. Material Contracts (Item 601(b)(10)(i))
    Item 601(b)(10)(i) requires registrants to file every material 
contract not made in the ordinary course of business, provided that one 
of two tests is met: (i) The contract must be performed in whole or in 
part at or after the filing of the registration statement or report, or 
(ii) the contract was entered into not more than two years before that 
filing.\207\ The first test captures contracts that have not been fully 
performed prior to the filing date. The second test--the two-year look 
back--captures material contracts that were fully performed before the 
filing date.\208\
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    \207\ Item 601(b)(10)(i) of Regulation S-K [17 CFR 
229.601(b)(10)(i)].
    \208\ The two-year look back is included in Schedule A of the 
Securities Act [15 U.S.C. 77aa(24)] and serves as a ``cutoff 
period'' so registrants would not have to file material contracts 
that may have been fully performed many years prior to registration. 
When Section 12(g) was added to the Exchange Act in 1964, the 
Commission was authorized to issue rules requiring such material 
contracts to be filed with Exchange Act reports. See Section 
12(b)(1)(I) of the Exchange Act; H.R. Rep. No. 88-1418, 83rd Cong., 
2nd Sess., 1964. Prior to the enactment of Section 12(g), the 
Exchange Act reporting requirements were applicable only to listed 
companies.
---------------------------------------------------------------------------

    The Commission proposed amendments to Item 601(b)(10)(i) that would 
limit the two-year look back test to ``newly reporting registrants,'' 
as that term was defined in the proposed revision to Instruction 1 of 
Item 601(b)(10). The proposal required registrants meeting this 
definition to file material agreements for the two-year look back 
period. The proposed amendments were intended to help ensure that 
investors receive access to agreements containing material information, 
including agreements entered into by newly reporting registrants up to 
two years prior to the commencement of their reporting obligations. 
Registrants with established reporting histories, however, would no 
longer be subject to the two-year look back requirement because 
investors would continue to have access to any material agreements 
previously filed on EDGAR. As such, the amendments were proposed to 
streamline reporting obligations while maintaining investor 
protections.
    A number of commenters supported the proposed amendments, and no 
commenters opposed them.\209\ Accordingly, we are adopting amendments 
to Item 601(b)(10)(i) and Instruction 1 of Item 601(b)(10) as proposed. 
We believe restricting the two-year look back to newly-reporting 
registrants is consistent with the original objective of the disclosure 
requirement and will help to eliminate unnecessary disclosures without 
impairing investor information or protection. Accordingly, under the 
revised item all registrants are required to file as an exhibit every 
contract not made in the ordinary course of business that is material 
to the registrant and is to be performed in whole or in part at or 
after the filing of the registration statement or report. In addition, 
newly reporting registrants are also required to file every contract 
that was not made in the ordinary course of business that is material 
to the registrant and that was entered into not more than two years 
before.\210\
---------------------------------------------------------------------------

    \209\ See letters from CCMC, Cravath, Fenwick, SIFMA, and 
Sullivan.
    \210\ Item 601(b)(10)(i), as revised.
---------------------------------------------------------------------------

    As proposed, we are adopting a definition of ``newly reporting 
registrant'' that includes:
     Registrants that are not subject to the reporting 
requirements of Section 13(a) or 15(d) of the Exchange Act at the time 
of filing;
     registrants that have not filed an annual report since the 
revival of a previously suspended reporting obligation; \211\ and
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    \211\ In the case of a registrant with a suspended reporting 
obligation that, less than two years later, is revived, the 
requirement to file material agreements for the two-year look back 
period may be satisfied by incorporating by reference and 
hyperlinking to agreements previously filed on EDGAR and filing any 
material agreements entered into while the registrant was not 
reporting. See Exhibit Hyperlinks Adopting Release, supra note 10, 
at 14135.
---------------------------------------------------------------------------

     any registrant that (a) was a shell company, other than a 
business combination related shell company, as defined in Rule 12b-2 
under the Exchange Act (17 CFR 240.12b-2), immediately before 
completing a transaction that has the effect of causing it to cease 
being a shell company and (b) has not filed a registration statement or 
Form 8-K as required by Items 2.01 and 5.06 of that form, since the 
completion of such transaction (or, in the case of foreign private 
issuers, has not filed a Form 20-F since the completion of the 
transaction).\212\
---------------------------------------------------------------------------

    \212\ The definition of ``newly reporting registrant'' does not 
include reporting companies completing merger transactions with 
business combination-related shell companies.
---------------------------------------------------------------------------

d. Application to Foreign Private Issuers
    The Commission previously adopted amendments to conform the exhibit 
requirements in Form 20-F to the requirements in Item 601.\213\ To 
maintain a consistent approach to the exhibit requirements for domestic 
registrants and foreign private issuers, the Commission proposed 
amendments to require foreign private issuers to provide information in 
exhibit filings comparable to the information provided by domestic 
registrants under the proposed amendments to Item 601. Specifically, 
the Commission proposed to amend the ``Instructions to Exhibits'' in 
Form 20-F to include revised language comparable to Items 601(a)(5), 
Item 601(a)(6), Item 601(b)(4)(vi), Item 601(b)(10)(i), Item 
601(b)(10)(iv), and Item 601(b)(21) of Regulation S-K.
---------------------------------------------------------------------------

    \213\ See International Disclosure Standards Release, Release 
No. 33-7637 (Feb. 2, 1999) [64 FR 6261 (Feb. 9, 1999)] (expressing 
the Commission's intention ``to conform the exhibit requirements for 
Form 20-F with the exhibit requirements for registration statements 
filed by U.S. issuers under the Exchange Act'' and stating that all 
of the Form 20-F exhibit requirements ``are required for domestic 
issuers filing a registration statement on Form 10 or an annual 
report on Form 10-K'').
---------------------------------------------------------------------------

    In the Proposing Release, the Commission asked whether it should 
amend the exhibit requirements of Form 20-F so that they are consistent 
with the requirements under Item 601. A few

[[Page 12693]]

commenters supported the proposal,\214\ and no commenters opposed.
---------------------------------------------------------------------------

    \214\ See letters from Cravath and Sullivan.
---------------------------------------------------------------------------

    Accordingly, and for the reasons noted in the Proposing Release, we 
are adopting amendments to Form 20-F to align the exhibit requirements 
of the form with similar amendments we are adopting today that are 
applicable to domestic registrants. In each case, we believe that the 
justifications for the proposed amendments to Item 601 are equally 
applicable to Form 20-F.\215\
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    \215\ The Commission did not propose similar changes to the 
exhibit requirements of Form 40-F. Form 40-F generally permits 
Canadian issuers to use Canadian disclosure documents to satisfy the 
Commission's registration and disclosure requirements. As a result, 
the exhibit requirements in Form 40-F are largely in accordance with 
Canadian disclosure standards.
---------------------------------------------------------------------------

6. Incorporation by Reference \216\
---------------------------------------------------------------------------

    \216\ For a discussion of our amendments that impact the ability 
to incorporate by reference or cross-reference information into the 
financial statements, see Section II.A.3 supra.
---------------------------------------------------------------------------

    To reduce duplicative disclosure, registrants have been permitted 
to incorporate previously filed information into their filings since 
the enactment of the Securities Act and the Exchange Act.\217\ 
Initially, incorporation by reference was limited to exhibits, but over 
time the Commission has increasingly permitted incorporation by 
reference in other contexts. The rules and instructions governing 
incorporation by reference are now found in a variety of regulations, 
including Regulation S-K, Regulation C, Regulation 12B, and many of the 
Commission's forms.
---------------------------------------------------------------------------

    \217\ See Federal Trade Commission Release No. 33-47 (Sept. 22, 
1933) (allowing for incorporation by reference of exhibits filed 
with registration statements); Release No. 34-51 (Nov. 27, 1934) 
(allowing for incorporation by reference of exhibits filed with the 
Commission under the Exchange Act or filed with an exchange).
---------------------------------------------------------------------------

    Consistent with our mandate under the FAST Act, the Commission 
proposed amendments to revise Item 10(d), Rule 411, Rule 12b-23, and a 
number of our forms to simplify and modernize these rules while still 
providing all material information. The Commission also proposed to 
rescind Rule 12b-32. In addition, to provide for a consistent set of 
incorporation by reference rules for investment companies and 
investment advisers, the Commission proposed parallel amendments to 
Rule 0-4 and a number of forms under the Investment Company Act, 
certain conforming amendments to Rule 0-6 under the Investment Advisers 
Act, and the rescission of Rules 8b-23, 8b-24, and 8b-32 under the 
Investment Company Act (certain provisions of which would be 
consolidated into the amendments to Rule 0-4).
    The proposed amendments were intended to streamline the 
requirements associated with incorporation by reference and facilitate 
investor access to incorporated documents through the use of 
hyperlinks. The proposed amendments were also consistent with the 
Commission's longstanding acceptance of incorporation by reference in 
the interests of encouraging registrants to eliminate duplicative 
disclosures.
a. Item 10(d)
    Item 10 of Regulation S-K contains general requirements on the 
application of Regulation S-K and Item 10(d) focuses on incorporation 
by reference.\218\ Item 10(d) states that where rules, regulations, or 
instructions to the forms permit incorporation by reference, a document 
may be incorporated by reference to the specific document and to the 
prior filing or submission in which that document was physically filed 
or submitted. Item 10(d) generally prevents registrants from 
incorporating by reference a portion of a document that itself also 
incorporates pertinent information by reference.\219\ It also prohibits 
incorporating documents by reference if they have been on file with the 
Commission for more than five years and do not fall within one of the 
exceptions provided in the rule.\220\
---------------------------------------------------------------------------

    \218\ 17 CFR 229.10(d).
    \219\ Indirect incorporation by reference is permitted when the 
registrant is expressly required to incorporate a document by 
reference and, in the case of asset-backed issuers, under Item 
1100(c) of Regulation AB [17 CFR 229.1100(c)]. See Item 10(d).
    \220\ See Proposing Release, supra note 5, Section II.F.1.a. at 
51007-8.
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    As discussed in the Proposing Release, the Commission proposed to 
eliminate the five-year limit in Item 10(d).\221\ Given the broad 
exceptions to the rule and the current practice of retaining documents 
electronically, we believe the five-year limit now serves little 
purpose and may lead to confusion about which documents may be 
incorporated by reference.\222\ Under the proposed amendments, a 
registrant would not be permitted to incorporate by reference to a 
destroyed document because it would render its disclosure incomplete, 
unclear, or confusing.\223\
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    \221\ Id. Without the provisions relating to the five-year 
limit, little substance remains in Item 10(d). Therefore, to 
simplify the requirements, the Commission proposed to move the 
remaining provision in Item 10(d) prohibiting indirect incorporation 
by reference into the other rules governing incorporation by 
reference.
    \222\ We believe that it is very unlikely that a registrant 
would attempt to incorporate by reference to a document that was 
filed with the Commission but is no longer available because it was 
not submitted on EDGAR and has been destroyed pursuant to the 
Records Control Schedule. For example, the Commission retains 
Securities Act and Exchange Act registration statements, reports, 
and proxy materials that have not been filed on EDGAR for 30 years. 
See Records Control Schedule [17 CFR 200.80f].
    \223\ See, e.g., proposed Rule 411(e) and Rule 12b-23(e).
---------------------------------------------------------------------------

    Several commenters supported the proposal, and no commenters 
opposed.\224\ Therefore, and for the reasons noted in the Proposing 
Release, we are adopting these amendments as proposed.
---------------------------------------------------------------------------

    \224\ See letters from Chamber, Cravath, Fenwick, Financial 
Executives, Nasdaq, Society for Corp. Gov., Sullivan, UnitedHealth, 
and ICI.
---------------------------------------------------------------------------

b. Securities Act Rule 411, Exchange Act Rule 12b-23 and Rule 12b-32, 
and Related Rules Under the Investment Company Act and Investment 
Advisers Act
    Rule 12b-23 governs incorporation by reference for registration 
statements filed pursuant to Sections 12(b) and 12(g) of the Exchange 
Act and reports filed pursuant to Sections 13 and 15(d) of the Exchange 
Act.\225\ Rule 12b-23 broadly allows for incorporation by reference in 
answer, or partial answer, to any item of an Exchange Act registration 
statement or report. Rule 12b-32 governs incorporation by reference for 
exhibits filed with registration statements and reports. Rule 411 
governs incorporation by reference for registration statements filed 
under the Securities Act, including exhibits thereto.\226\ Rule 411 
restricts incorporation by reference in a prospectus unless otherwise 
provided in the appropriate form but allows for incorporation by 
reference similar to Rule 12b-23 for the non-prospectus portions of a 
registration statement.\227\
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    \225\ See Rule 12b-1 [17 CFR 240.12b-1] (setting forth the scope 
of Regulation 12B).
    \226\ See Rule 400 [17 CFR 230.400] (setting forth the scope of 
Regulation C).
    \227\ See Integrated Disclosure System Adopting Release, supra 
note 103; Proposed Revision of Regulation C, Registration and 
Regulation 12B, Registration and Reporting, Release No. 33-6333 
(Aug. 6, 1981) [46 FR 41971 (Aug. 18, 1981)] (``While it is 
generally proper to prevent prospectuses from incorporating exhibits 
which are not delivered, the Commission does not believe it is 
necessary to impose such limits in connection with Exchange Act 
reports which are not actually delivered in registered public 
offerings of securities.'').
---------------------------------------------------------------------------

    Rule 0-4 provides general incorporation by reference rules for 
investment company registration statements, applications, and reports 
filed with the Commission. Rule 8b-23 (additional incorporation by 
reference rules for registration statements and reports), Rule 8b-24 
(rules regarding summaries or outlines of documents), and Rule 8b-32 
(incorporation of exhibits by reference) provide

[[Page 12694]]

additional incorporation by reference rules for investment company 
registration statements and reports. Rule 0-6 governs incorporation by 
reference for investment adviser applications for Commission orders 
under the Investment Advisers Act other than applications for 
registration as an investment adviser.
i. Exhibit and Other Filing Requirements
    Rule 12b-23(a)(3) under the Exchange Act requires that copies of 
any information incorporated by reference must be filed as an exhibit, 
with limited exceptions.\228\ Rule 411(b)(4) under the Securities Act, 
which is more limited and pertains to non-prospectus information that 
is incorporated by reference, requires that the incorporated 
information be filed as an exhibit if it does not comply with the five-
year limit in Item 10(d). Rule 8b-23 generally requires investment 
company registrants to file with a registration statement or report a 
copy of any registration statement, report, or prospectus from which 
information is incorporated by reference, except in cases where the 
registration statement, report, or prospectus is filed 
electronically.\229\
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    \228\ See Rule 12b-23(a)(3) [17 CFR 240.12b-23(a)(3)] (providing 
exceptions for a proxy or information statement incorporated by 
reference in response to Part III of Form 10-K, a form of prospectus 
filed pursuant to Rule 424(b) [17 CFR 230.424(b)] incorporated by 
reference in response to Item 1 of Form 8-A, and information filed 
on Form 8-K). This provision was introduced in 1971 so that then-
existing microfiche technology for the public dissemination of 
reports and documents filed with the Commission could function 
properly. See Registration and Reporting and Form for Annual Reports 
of Employee Stock Purchase Plans, Release No. 34-9048 (Jan. 4, 1971) 
[36 FR 4483 (Mar. 6, 1971)] (``In order that the microfiche system 
for the public dissemination of reports and documents filed with 
[the] Commission may work, the amended rule requires that copies of 
information or financial statements incorporated by reference, or 
copies of the pertinent pages of any document containing such 
information or statement, be filed with the registration statement 
or report in which it is so incorporated.'').
    \229\ See Rule 8b-23(a) [17 CFR 270.8b-23(a)]. In addition, Rule 
0-4 and Rule 0-6 permit the incorporation by reference as an exhibit 
in any registration statement, application or report (in the case of 
Rule 0-4) or in any application (in the case of Rule 0-6) any 
document or part thereof previously or concurrently filed with the 
Commission. Both rules also permit the incorporation by reference of 
financial statements (or parts thereof), although Rule 0-6 specifies 
that the financial statements (or parts thereof) that are 
incorporated are to be filed as exhibits. For consistent rules under 
both Acts, the Commission proposed amendments to Rule 0-4 to specify 
that financial statements may be filed as exhibits to investment 
company applications, as Rule 0-6 currently specifies with respect 
to applications filed under the Investment Advisers Act.
    Furthermore, if the number of copies of any document from which 
information is incorporated by reference is less than the number of 
copies required to be filed with a registration statement, 
application, or report, Rule 0-4 and Rule 0-6 require an investment 
company or applicant, respectively, to file as many additional 
copies of the document incorporated by reference as may be necessary 
to meet the requirements of the registration statement, application, 
or report. See Rule 0-4(a), Rule 0-6(a). The Commission proposed to 
eliminate the requirement to file additional copies from Rule 0-4 
because most investment company filings are available on EDGAR. 
Although investment adviser applications are filed in paper format, 
in the staff's experience, those applications rarely incorporate by 
reference information as permitted by Rule 0-6. For our regulatory 
purposes, we do not believe that the number of copies specified in 
current Rule 0-6 is needed. Thus, for the foregoing reasons and for 
consistency purposes, the Commission similarly proposed to eliminate 
the requirement to file additional copies from Rule 0-6.
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    The Commission proposed to eliminate these requirements to make the 
rules for incorporation by reference more consistent, and to apply 
consistent requirements for incorporation by reference under the 
Investment Company Act and Investment Advisers Act. We no longer 
believe that these requirements are necessary, as most Exchange Act 
filings are made publicly available on EDGAR, and as we generally do 
not have similar exhibit filing requirements for Securities Act 
registration statements.\230\
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    \230\ Investment advisers register and submit some filings to 
the Commission electronically through the Investment Adviser 
Registration Depository (``IARD'').
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    The Commission also proposed to eliminate the corresponding exhibit 
requirement in Item 601(b)(99)(ii) of Regulation S-K, which was adopted 
in connection with Rule 12b-23(a) and Rule 411(b)(4).\231\ In addition 
to Item 601(b)(99), other provisions in Item 601 require documents to 
be filed as exhibits only when they are incorporated by reference into 
a filing. For example, Item 601(b)(13) requires a registrant to file an 
annual report to security holders, Form 10-Q, or quarterly report to 
security holders as an exhibit when the registrant incorporates all or 
a portion of such a report by reference. Although annual reports to 
security holders are readily available to investors and the staff 
outside of EDGAR, we believe it is appropriate to retain the exhibit 
requirement in these circumstances because some registrants satisfy 
their disclosure requirements by incorporating a significant amount of 
disclosure from these reports. The Commission did not propose to 
eliminate these other exhibit filing requirements in Item 601. 
Nonetheless, the Commission did propose to eliminate the requirement in 
Item 601(b)(13) to file a Form 10-Q as an exhibit when it is 
specifically incorporated by reference into a prospectus. This 
provision will no longer be necessary because, under the rules we are 
adopting, a registrant will be required to include a hyperlink to any 
information that is incorporated by reference to a document available 
on EDGAR.\232\
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    \231\ See Integrated Disclosure System Adopting Release, supra 
note 103 (adopting Item 601(b)(28)(ii), which is now found in Item 
601(b)(99)(ii)) and Proposed Revision of Regulation S-K and Proposed 
Rescission of Guides for the Preparation and Filing of Registration 
Statements and Reports, Release No. 33-6332 (Aug. 6, 1981) [46 FR 
41925 (Aug. 18, 1981)].
    \232\ See infra Section II.B.6.b.ii.
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    Several commenters supported the proposal and no commenters opposed 
it.\233\ Therefore, and for the reasons noted in the Proposing Release, 
we are adopting the amendments, as proposed.
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    \233\ See letters from American Fuel, CAQ, Chamber, Cravath, 
Davis Polk, E&Y, Fenwick, Piercy Bowler, PNC, Reed Smith, Society 
for Corp. Gov., Sullivan, and ICI.
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ii. Hyperlinks
    The Commission proposed to facilitate greater investor access to 
disclosure by amending Rule 411, Rule 12b-23, and Rule 0-4 to require 
hyperlinks to information that is incorporated by reference if that 
information is available on EDGAR.\234\ The Commission recently adopted 
rules requiring hyperlinks to most exhibits filed pursuant to Item 601, 
Form F-10,\235\ or Form 20-F.\236\ To accommodate hyperlinks, those 
filings must be made in HTML format.\237\ Accordingly, the Commission 
proposed to expand the requirement to file documents in HTML to include 
filings that are subject to the hyperlinking requirements proposed in 
Rule 411, Rule 12b-23, and Rule 0-4.
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    \234\ The Commission did not propose similar amendments to Rule 
0-6 because applications under the Investment Advisers Act filed 
pursuant to that rule are not required to be filed electronically. 
In addition, applications filed pursuant to Rule 0-6 may incorporate 
information that may not be filed on EDGAR.
    \235\ 17 CFR 239.40.
    \236\ See Exhibit Hyperlinks Adopting Release, supra note 10, at 
14130.
    \237\ See id. at 14130. The rules adopted by the Commission at 
that time did not generally apply to investment companies. However, 
as discussed below, we are adopting similar requirements to certain 
filings by investment companies in this release. See infra Section 
II.B.7.b.
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    Commenters generally supported the proposals,\238\ although some 
thought it would be helpful for the Commission to provide further 
clarification on some aspects of the rule.\239\ One commenter suggested 
that the Commission make

[[Page 12695]]

clear that incorporating only a portion of a document filed on EDGAR is 
permissible,\240\ while another commenter recommended that the 
Commission provide instructions for registrants to clarify which 
hyperlinks and cross-references relate to information incorporated by 
reference in the current filing and which are provided only for reader 
convenience and navigability.\241\ Other commenters thought the 
Commission should consider allowing exceptions to the rule in certain 
situations.\242\ Specifically, one commenter believed hyperlinks to 
Forms 10-K, 10-Q, and 8-K and definitive proxy statements should not be 
required, as they can be easily located by investors.\243\ Another 
commenter believed hyperlinks should not be required in filings that 
also incorporated by reference to subsequently filed documents.\244\ In 
addition, another commenter suggested that the Commission allow 
registrants and the staff to develop more experience with the recently 
adopted exhibit hyperlinking requirements prior to requiring additional 
hyperlinking.\245\
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    \238\ See letters from CAQ, Davis Polk, E&Y, Fenwick, Grant 
Thornton, Grumman, KPMG, Piercy Bowler, Public Citizen, Reed Smith, 
Society for Corp. Gov., ICI, and Morningstar, Inc. 
(``Morningstar'').
    \239\ See letters from Davis Polk and E&Y.
    \240\ See letter from Davis Polk.
    \241\ See letter from E&Y (noting that this clarification would 
benefit the PCAOB's work regarding the scope of an auditor's 
responsibility for information in a filing subject to the 
requirements of AS 2710, Other Information in Documents Containing 
Audited Financial Statements).
    \242\ See letters from Fenwick and Reed Smith.
    \243\ See letter from Fenwick.
    \244\ See letter from Reed Smith (stating that the use of 
hyperlinks, particularly in connection with shelf registration 
statements, could direct readers to stale or superseded 
information).
    \245\ See letter from Cravath.
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    We are adopting the amendments to Rule 411, Rule 12b-23, and Rule 
0-4 as proposed. By requiring an active hyperlink to information on 
EDGAR if it has been incorporated by reference into a registration 
statement or prospectus, we believe these amendments will improve the 
readability and navigability of disclosure documents and discourage 
repetition, consistent with our FAST Act mandate.
    We do not believe that additional clarification in the new rules 
regarding the ability to incorporate portions of a previous filing by 
reference is necessary because existing rules regarding incorporation 
by reference already allow for this, and the new hyperlinking 
requirement does not change the substance of these rules.\246\ Nor have 
we excluded hyperlinks to Forms 10-K, 10-Q, 8-K and definitive proxy 
statements when those forms are incorporated by reference, as suggested 
by one commenter.\247\ Such a restriction would reduce investors' ease 
of access to information and, therefore, the utility of the amendments. 
Moreover, as this commenter noted, the requirement is not anticipated 
to be a significant compliance burden for registrants.
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    \246\ See Securities Act Rule 411 and Exchange Act Rule 12b-23, 
which state that ``where only certain pages of a document are 
incorporated by reference . . . , the document from which the 
[information or material] is taken shall be clearly identified in 
the reference.''
    \247\ See letter from Fenwick.
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    With respect to one commenter's suggestion that we provide an 
exception to the hyperlinking requirement where a registration 
statement incorporates by reference subsequently filed documents,\248\ 
we do not believe that this circumstance warrants a change to the rule. 
In the case of a shelf registration statement on Form S-3, for example, 
while it is correct that documents incorporated by reference under Item 
12 of that form may become stale over time, the item requires the 
registrant to clearly state that the prospectus also incorporates by 
reference ``all documents subsequently filed under Sections 13(a), 
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the 
offering.'' Accordingly, we do not believe that the existence of 
hyperlinks to the previously filed information will cause confusion 
among investors regarding the scope of information incorporated by 
reference or cause investors to disregard subsequently filed reports.
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    \248\ See letter from Reed Smith.
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    We are also not adopting instructions, as suggested by one 
commenter, which would require registrants to differentiate between 
hyperlinked information incorporated by reference in the current filing 
and hyperlinks provided only for reader convenience and 
navigability.\249\ The new rules are solely meant to introduce a 
navigation feature and do not impose additional or modified 
requirements regarding what information may be incorporated by 
reference.
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    \249\ See letter from E&Y.
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    Finally, we are not delaying compliance with the new hyperlinking 
requirements, as suggested by one commenter, in the case of operating 
companies.\250\ Delaying compliance seems unnecessary given that the 
exhibit hyperlinking rules have been in effect for all operating 
companies since September 1, 2018 and our amendments in this rulemaking 
are only incremental to the current rules.\251\ Technologically, these 
new amendments requiring hyperlinks for information incorporated by 
reference are no different than existing hyperlink disclosure 
requirements. Therefore, we anticipate any additional compliance burden 
for operating companies will not be significant. However, as outlined 
below in Section V.2, we are adopting a transition period for 
investment companies that is intended to provide them with time to 
prepare filings to include hyperlinks to exhibits and to information 
incorporated by reference, as well as help mitigate the cost burdens 
related to switching to HTML format for investment companies currently 
submitting filings in ASCII.
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    \250\ See letter from Cravath.
    \251\ See Exhibit Hyperlinks Adopting Release, supra note 10.
---------------------------------------------------------------------------

    Under the amendments we are adopting, registrants are not required 
to file an amendment to a document solely to correct an inaccurate 
hyperlink, unless that hyperlink was included in a pre-effective 
registration statement, similar to the existing requirements for 
exhibit hyperlinking. An inaccurate hyperlink alone would neither 
render the filing materially deficient nor affect a registrant's 
eligibility to use Form S-3, Form SF-3, or Form F-3. In addition, 
registrants are not required to refile information that is incorporated 
by reference from a document that was previously filed with the 
Commission in paper. Similar to the Commission's reasoning in the 
Exhibit Hyperlinks Adopting Release, we believe such a requirement 
would have limited utility given that electronic filing has been 
required for over two decades and paper filings are currently made in 
very limited circumstances.\252\
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    \252\ See Exhibit Hyperlinks Adopting Release, supra note 10, at 
14131. See also FAST Act Report, supra note 7, at n. 31 and 
accompanying text.
---------------------------------------------------------------------------

    Unlike the requirements for exhibit hyperlinking, however, a 
registrant is not required to correct inaccurate hyperlinks to 
information incorporated by reference in an effective registration 
statement by including a corrected hyperlink in a subsequent periodic 
report or a post-effective amendment. We believe that it would result 
in more confusion than clarity if we were to require registrants to re-
file disclosure to correct a hyperlink or to include a section solely 
devoted to corrected hyperlinks in the body of a periodic report or 
post-effective amendment. This differs from exhibit hyperlinks where 
the corrected hyperlink would be unobtrusively located in the exhibit 
index with other exhibits. The requirement in amended Rule 411, Rule 
12b-23, and Rule 0-4 to describe the location of the information 
incorporated by reference should mitigate the impact of any inaccurate 
hyperlinks.

[[Page 12696]]

iii. Other Amendments
    As discussed in detail in the Proposing Release, the Commission 
proposed several non-substantive changes to Rule 411, Rule 12b-23, Rule 
0-4, and Rule 0-6 to streamline, clarify, and conform these rules.\253\
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    \253\ See Proposing Release, supra note 5, Section II.F.2.d. at 
51011-2.
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    Several commenters supported the proposal, and no commenters 
opposed.\254\ For the reasons noted in the Proposing Release, we are 
adopting the proposed amendments to Rule 411, Rule 12b-23, Rule 12b-32, 
Rule 0-4, and Rule 0-6, as proposed.
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    \254\ See letters from American Fuel, CAQ, CCMC, Cravath, Davis 
Polk, E&Y, Fenwick, Piercy Bowler, PNC, Reed Smith, Society for 
Corp. Gov., and Sullivan.
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7. Manner of Delivery
a. Tagging Cover Page Data
    Currently, operating company registrants \255\ are required to file 
their financial statements as an exhibit in a machine-readable format 
using eXtensible Business Reporting Language (``XBRL'').\256\ This 
disclosure is required as an exhibit to periodic reports and Securities 
Act registration statements, as well as reports on Form 8-K or Form 6-K 
that contain revised or updated financial statements. The Commission 
recently adopted rules requiring the use of Inline XBRL format, where 
XBRL data is embedded into the HTML document, instead of the 
traditional XBRL format \257\ for the submission of operating company 
financial statements and risk/return summary information for open-end 
management investment companies.\258\
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    \255\ As used in this context, operating companies do not 
include any investment company that is registered under the 
Investment Company Act, any business development company, as defined 
in Section 2(a)(48) of that Act [15 U.S.C. 80a-2(a)(48)], any entity 
that reports under the Exchange Act and prepares its financial 
statements in accordance with Article 6 of Regulation S-X [17 CFR 
210.6-01 through 210.6-10], or asset-backed issuers. See Interactive 
Data to Improve Financial Reporting, Release No. 33-9002 (Jan. 30, 
2009) [74 FR 6776 (Feb. 10, 2009)], as corrected by Release No. 33-
9002A (Apr. 1, 2009) [74 FR 15666 (Apr. 7, 2009)] (the ``XBRL 
Adopting Release''), at 6780-1, nn. 69 and 78 and accompanying text.
    \256\ For domestic disclosure forms, the XBRL data-tagging 
requirements are imposed through Item 601(b)(101) of Regulation S-K 
and Rule 405(b) of Regulation S-T. See Item 601(b)(101) of 
Regulation S-K and Rule 405(b) of Regulation S-T [17 CFR 
232.405(b)]. For foreign disclosure forms, analogous XBRL tagging 
requirements are included in the instructions to the relevant forms. 
See, e.g., paragraphs 100 and 101 of the Instructions to Exhibits to 
Form 20-F. XBRL data-tagging requirements do not apply to asset-
backed securities filings because issuer financial statements are 
generally not required or provided in filings made pursuant to 
Regulation AB (17 CFR 229.1100 et seq.). See the XBRL Adopting 
Release, supra note 255, at n. 78.
    \257\ In the traditional XBRL format for financial statements, 
which will be phased out as operating companies transition to Inline 
XBRL, as discussed infra at note 258, none of the registrant's XBRL 
data is embedded into an HTML document. Instead, an exhibit 
containing all XBRL data is filed with the relevant form. Inline 
XBRL allows filers to embed XBRL data directly into an HTML 
document, eliminating the need to tag a copy of the information in a 
separate document.
    \258\ See Inline XBRL Filing of Tagged Data, Release No. 33-
10514 (June 28, 2018) [83 FR 40846 (July 10, 2018)] (``Inline XBRL 
Adopting Release''). Operating companies that are currently required 
to submit financial statement information in XBRL and open-end 
management investment companies that are currently required to 
submit risk/return summary XBRL data will be required, on a phased-
in basis, to transition to Inline XBRL. The date of mandatory 
compliance with the Inline XBRL rules depends on the type of filer. 
See Section III.A.1.c. of the Inline XBRL Adopting Release.
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    Registrants must also tag in XBRL a specific group of data points 
that appears on the cover page of the filing. These specific data 
points, which are tagged according to Regulation S-T and the EDGAR 
Filer Manual, are known as document and entity identifier elements and 
include, among others, form type, company name, filer size, and public 
float.\259\ This information corresponds to some, but not all, of the 
information that registrants are required to include on the filing 
cover page. For example, the Form 10-K cover page contains 
approximately 25 data points. Less than half of those data points are 
currently required to be tagged in XBRL. The non-tagged data points 
include, among others, the exchange on which securities are registered 
and the state (or jurisdiction) of incorporation.
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    \259\ See Rule 405 of Regulation S-T [17 CFR 232.405]; See also 
XBRL Adopting Release (discussing the requirement to tag document 
and entity identifier elements, such as form type, company name, and 
public float, according to Regulation S-T and the EDGAR Filer 
Manual).
---------------------------------------------------------------------------

    The Commission proposed amendments to require all of the 
information on the cover pages of Form 10-K, Form 10-Q, Form 8-K, Form 
20-F, and Form 40-F to be tagged in Inline XBRL in accordance with the 
EDGAR Filer Manual.\260\ To implement the cover page tagging 
requirements, the Commission also proposed to add new Rule 406 to 
Regulation S-T, new Item 601(b)(104) to Regulation S-K, new paragraph 
104 to the ``Instructions as to Exhibits'' of Form 20-F, and new 
paragraph B.17 to the ``General Instructions'' of Form 40-F to require 
registrants to file with each of the specified forms a ``Cover Page 
Interactive Data File.'' \261\ The Commission also proposed to revise 
Rule 11 of Regulation S-T to add the term ``Cover Page Interactive Data 
File.'' The term would be defined as the machine readable computer code 
that presents the information required by Rule 406 of Regulation S-T in 
Inline XBRL format.
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    \260\ See Proposing Release, supra note 5, Section II.G.1. at 
51013-4.
    \261\ The Commission proposed that registrants filing Form 20-F 
and Form 40-F would be required to tag cover page data only when 
those forms are used as annual reports, not as registration 
statements. See Proposing Release, supra note 5, at 51014.
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    In addition, the Commission proposed amendments to the cover pages 
of these forms to include the trading symbol for each class of 
registered securities.\262\ Because the cover pages of Form 10-K, Form 
20-F, and Form 40-F already require disclosure of the title of each 
class of securities registered pursuant to Section 12(b) of the 
Exchange Act and each exchange on which they are registered, the 
Commission proposed amendments to these forms that would revise the 
cover page to include a corresponding field for the trading symbol. 
Unlike Form 10-K, Form 20-F, and Form 40-F, however, the cover pages of 
Form 10-Q and Form 8-K do not currently require disclosure of the title 
of each class of securities and each exchange on which they are 
registered. Accordingly, to ensure that registrants and their 
registered securities are identified in a consistent manner across 
forms, the Commission proposed to revise the cover pages of Form 10-Q 
and Form 8-K to include this disclosure in addition to the trading 
symbol.
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    \262\ In the Disclosure Update and Simplification Release, the 
Commission amended Item 201(a) to also require disclosure of the 
trading symbol(s) for each class of a registrant's common equity. 
See Disclosure Update and Simplification Release, supra note 147, at 
Section IV.C.1.(a).
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    Commenters were divided in their responses to the proposal. Several 
commenters believed that tagging cover page data would be useful and 
viewed XBRL generally as a benefit to investors in collecting and 
analyzing financial information.\263\ Some commenters further 
recommended expanding the proposal to require that additional 
information be tagged.\264\ By contrast, a

[[Page 12697]]

number of other commenters opposed the proposal, and were skeptical 
that the benefit of tagging cover page data justified the costs of 
compliance.\265\ Noting their concerns over the burdens already 
incurred by registrants to satisfy existing data-tagging obligations, 
some commenters urged that studies be undertaken to assess investor 
usage of XBRL information before expanding XBRL requirements any 
further.\266\
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    \263\ See letters from Calcbench, Inc. (``Calcbench''), Grumman, 
Merrill Corporation (``Merrill''), Morningstar, and XBRL US, Inc. 
(``XBRL US'').
    \264\ See, e.g., letters from Calcbench (supporting the 
expansion of XBRL tagging to MD&A), Merrill (recommending extending 
the proposed tagging requirements to Form 6-K), and XBRL US 
(recommending requiring XBRL tagging of additional forms, such as 
the Form 8-K earnings report). But see letter from Grumman 
(recommending that the proposal not be extended to MD&A, earnings 
releases, or proxy statements because the costs of compliance would 
outweigh the benefits). In the Proposing Release, the Commission 
asked whether there were any additional disclosures discussed in the 
release that should be required in machine-readable structured 
format, such as within Item 303(a) or any property disclosures under 
Item 102. See Proposing Release, supra note 5, at 51014. We are not 
adopting these additional tagging requirements at this time, several 
of which are beyond the scope of this rulemaking.
    \265\ See letters from CCMC, FedEx, Financial Executives, IMA, 
Society for Corp. Gov., and UnitedHealth.
    \266\ See letter from CCMC and IMA. We note that the Inline XBRL 
Adopting Release included a discussion of current XBRL usage levels 
indicating ``a wide range of XBRL data users, including investors, 
financial analysts, economic research firms, data aggregators, 
academic researchers, filers seeking information on their peers for 
benchmarking purposes, and Commission staff.'' See Inline XBRL 
Adopting Release, supra note 258, at 40850.
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    After considering the comments, we are adopting the amendments as 
proposed.\267\ By increasing the capacity for automation of the data 
gathering process, we believe these amendments will further enhance 
investors' use of interactive data to identify, count, sort, compare, 
and analyze registrants and their disclosures.\268\ For example, an 
investor will be able to more readily and accurately identify 
registrants that are listed on a specific exchange and that identified 
themselves as well known seasoned issuers in their last annual report. 
Similarly, the Inline XBRL tagging of the new ticker symbol disclosure 
requirement will make it easier to relate/link a specific security to 
the underlying registrant. In addition, the amendments will allow the 
Commission to make enhancements to the EDGAR system to enable investors 
to search for filings with these specific criteria. The new filing 
requirements will also be of benefit to the Commission, as the 
Commission and its staff will be able to more readily sort and analyze 
filings to, among other things, improve data and analysis for 
rulemaking initiatives.
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    \267\ As proposed, the amendments apply to Form 20-F or Form 40-
F only when those forms are used as annual reports, not registration 
statements. See new paragraph 104 to Instructions as to Exhibits of 
Form 20-F and new paragraph B.17 of General Instructions to Form 40-
F.
    \268\ See the Recommendations of the Investor Advisory Committee 
Regarding the SEC and the Need for the Cost Effective Retrieval of 
Information by Investors (Jul. 25, 2013), available at http://www.sec.gov/spotlight/investor-advisory-committee-2012/data-tagging-resolution-72513.pdf (recommending, among other things, that the 
Commission promote the use of machine-readable data tagging formats 
in filings with the Commission).
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    We do not expect the incremental compliance burden associated with 
tagging the additional cover page information to be significant, given 
that registrants already are required to tag some of this information 
as well as information in their financial statements. The amendments 
will also facilitate future enhancements to the EDGAR system by 
utilizing the tagged information to reduce duplicative entry of 
information into both the filing and the submission header at the time 
of filing.
b. Exhibit Hyperlinks and HTML Format for Investment Companies
    As discussed above, the Commission recently adopted rules requiring 
hyperlinks to most exhibits filed pursuant to Item 601, Form F-10, and 
Form 20-F, and, to accommodate hyperlinking, those filings are required 
to be made in HTML.\269\ The Commission proposed parallel amendments to 
Regulation S-T Rules 102 and 105 and certain of our registration and 
reporting forms that are used by investment companies that would apply 
similar exhibit hyperlinking and HTML submission requirements in those 
forms to facilitate access to exhibits by investors and other users of 
the information. Specifically, the proposed amendments would require an 
investment company filing a registration statement on Forms S-6, N-1A, 
N-2, N-3, N-4, N-5, N-6, and N-14, or reports on Form N-CSR, to include 
a hyperlink to each exhibit identified in that filing's exhibit index, 
unless the exhibit is filed in paper pursuant to an exemption under 
Rule 201, Rule 202, or Rule 311 of Regulation S-T.
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    \269\ See Exhibit Hyperlinks Adopting Release, supra note 10, at 
14130.
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    One commenter supported the proposed amendments to require exhibit 
hyperlinks and associated HTML submission requirements, stating that it 
would help investors' ability to navigate through EDGAR filings and 
advance investor protection.\270\ Another commenter requested 
clarification on how the proposed HTML submission requirement would 
affect filers on Form N-4 and Form N-6 who use type 1 modules under 
EDGARLink\271\ to make these submissions because the type 1 modules are 
only supported by ASCII, and not HTML.\272\
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    \270\ See letter from ICI.
    \271\ EDGARLink is an application that is used by electronic 
filers to facilitate the preparation, validation, and transmission 
of electronic format documents to EDGAR. EDGARLink works 
interactively with EDGAR and is available for download from the 
Commission's website.
    \272\ See letter from G. Stanzione. Modules are partial or 
complete documents that are intended to be included in an electronic 
submission. In connection with our ongoing efforts to upgrade EDGAR, 
we are updating type 1 and type 2 modules to permit their use in 
connection with filings made in HTML. These updates are expected to 
be completed by June 2019.
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    After considering the comments, we are requiring, as proposed, 
investment companies filing registration statements on Forms S-6, N-14, 
N-5, N-1A, N-2, N-3, N-4, N-6, and reports on Form N-CSR, to include a 
hyperlink to each exhibit (other than an exhibit filed in XBRL) 
identified in the filing's exhibit index, unless the exhibit is filed 
in paper pursuant to a temporary or continuing hardship exemption under 
Rule 201 or Rule 202 of Regulation S-T, or pursuant to Rule 311 of 
Regulation S-T.\273\ In addition, we are extending similar exhibit 
hyperlinking and HTML filing requirements to filings on Form N-8B-
2.\274\ Consistent with our rules for operating companies, we are not 
requiring investment companies to refile electronically any exhibits 
previously filed in paper.\275\
---------------------------------------------------------------------------

    \273\ See Rule 102(d); Rule 105(d) of Regulation S-T.
    \274\ Form N-8B-2 is the form used by unit investment trusts 
other than separate accounts that are currently issuing securities 
to register under the Investment Company Act. The form requires the 
registration statement to include exhibits similar to those required 
under the Commission's other investment company registration forms. 
We believe extending similar exhibit hyperlinking and HTML filing 
requirements to filings on Form N-8B-2 would further achieve our 
objective of facilitating access to exhibits by investors and other 
users of the information.
    \275\ See Instruction 1 to paragraph (d) of Rule 105.
---------------------------------------------------------------------------

    A registered investment company will be required to correct an 
inaccurate or nonfunctioning link or hyperlink to an exhibit as 
follows. In the case of a registration statement that is not yet 
effective, the filer will be required to file an amendment to the 
registration statement containing the inaccurate or nonfunctioning link 
or hyperlink. In the case of a registration statement that has become 
effective, the filer will be required to correct an inaccurate or 
nonfunctioning link or hyperlink in the next post-effective amendment, 
if any, to the registration statement. \276\ In the case of a report on 
Form N-CSR, the filer will be required to correct the inaccurate or 
nonfunctioning link or

[[Page 12698]]

hyperlink in its next report on Form N-CSR.
---------------------------------------------------------------------------

    \276\ See Instruction 2 to paragraph (d) of Rule 105. We 
proposed to amend Instruction 2 to paragraph (d) of Rule 105 to 
include a new provision pertaining to an investment company 
registration statement that has become effective that contains an 
inaccurate or nonfunctioning link or hyperlink. That new provision 
would have required the filer to correct the link or hyperlink in 
the next post-effective amendment, if any, to the registration 
statement. We are not adopting the proposed amendment because the 
provision would be duplicative of the current provision of 
Instruction 2 to paragraph (d) of Rule 105.
---------------------------------------------------------------------------

    In connection with the exhibit hyperlinking requirements, we are 
also adopting an amendment to Regulation S-T Rule 105 to require 
filings on Forms S-6, N-14, N-5, N-1A, N-2, N-3, N-4, N-6, N-8B-2, and 
N-CSR be submitted in HTML format. Prior to this amendment, electronic 
filers were permitted to submit such filings in either the ASCII format 
or HTML format. Because the ASCII format does not support hyperlink 
functionality, the exhibit hyperlinking requirement is feasible only if 
documents are filed in HTML. Accordingly, electronic filers will now be 
required to file registration statements and reports on Form N-CSR (and 
any amendments thereto) in HTML format.\277\
---------------------------------------------------------------------------

    \277\ See amendments to Regulation S-T Rule 105(d). While the 
affected registration statements and reports will be required to be 
filed in HTML pursuant to the amendments to S-T Rule 105, 
registrants will continue to be permitted to file in ASCII any 
schedules or forms that are not subject to the exhibit filing 
requirements, such as proxy statements, or other documents included 
with a filing, such as an exhibit.
---------------------------------------------------------------------------

C. Proposed Amendments Not Being Adopted

1. Forms--Captions and Item Numbers
    The Commission proposed amendments to Form 10, Form 10-K, and Form 
20-F to allow registrants to exclude item numbers and captions or to 
create their own captions tailored to their disclosure.\278\ The 
proposed amendments did not affect captions that are expressly required 
by the forms or Regulation S-K.\279\ The proposed amendments were 
intended to reduce the use of unnecessary cross-references when 
information may be responsive to more than one disclosure item in the 
Exchange Act forms. The Commission stated its belief that increasing 
flexibility in this manner may reduce repetitive disclosure or 
unnecessary cross-references when information may be responsive to more 
than one item and thereby enhance the overall readability of required 
disclosures.
---------------------------------------------------------------------------

    \278\ Rule 12b-13 requires registrants to include the numbers 
and captions of all items in these forms. Although provisions in a 
form control when they cover the same subject matter as a rule in 
Regulation 12B, these forms do not contradict Rule 12b-13.
    \279\ For example, Form 10-K and Form 20-F require captions for 
``audit fees,'' ``audit-related fees,'' ``tax fees,'' and ``all 
other fees.'' Regulation S-K requires a caption for ``risk 
factors.''
---------------------------------------------------------------------------

    Of the commenters who addressed the issue, a majority opposed the 
proposal to amend Form 10, Form 10-K, and Form 20-F to eliminate the 
requirements to include most item numbers and captions.\280\ While they 
supported the Commission's intent to allow registrants greater 
flexibility over the presentation of their disclosure, these commenters 
cautioned that this change could make an investor's task more 
challenging. Commenters suggested that the required captions and item 
numbers help investors navigate filings, make it more easy to locate 
information important to them, and enhance their ability to compare 
information in different filings.
---------------------------------------------------------------------------

    \280\ See, e.g., letters from Fenwick and Reed Smith. But see 
letter from E&Y (supporting the proposal for providing registrants 
more flexibility in organizing disclosures and tailoring their 
presentation).
---------------------------------------------------------------------------

    In light of these comments, we have decided not to adopt the 
proposed changes to the item number and caption requirements of Form 
10, Form 10-K, and Form 20-F. Upon further review, we believe that any 
potential benefits from the amendments that would accrue to registrants 
and investors by permitting more variability in the presentation of 
disclosure could be outweighed by the risk that the changes could 
impair an investor's ability to use and navigate the information 
efficiently and effectively.
2. Subsidiaries of the Registrant and Entity Identifiers
    Item 601(b)(21)(i) requires a registrant to list as an exhibit all 
of its subsidiaries, the state or other jurisdiction of incorporation 
or organization of each, and the names under which those subsidiaries 
do business.\281\ The Commission proposed amendments to Item 
601(b)(21)(i) that would require registrants to also include in the 
exhibit the legal entity identifier (``LEI''), if one has been 
obtained, of the registrant and each subsidiary listed.
---------------------------------------------------------------------------

    \281\ Item 601(b)(21)(i) of Regulation S-K [17 CFR 
229.601(b)(21)(i)].
---------------------------------------------------------------------------

    Comments on the proposal were mixed. Commenters who were in favor 
of the proposal \282\ generally stated that LEIs will make it easier 
for investors, analysts, and regulators to understand relationships 
between interrelated companies and more accurately assess investment 
risk.\283\ Several commenters, however, expressed doubts about the 
benefits of the information \284\ or were concerned that it would be 
costly and time consuming to acquire and maintain LEIs, particularly 
for registrants with numerous subsidiaries or affiliates operating 
globally.\285\ In light of these comments, we have decided not to adopt 
the amendments to Item 601(b)(21)(i) as proposed.
---------------------------------------------------------------------------

    \282\ See letters from CII, The FACT Coalition, Merrill, 
Morningstar, and XBRL US.
    \283\ See, e.g., letters from CII, Morningstar, and XBRL US.
    \284\ See, e.g., letters from Cravath, Financial Executives 
(indicating that such rules may not be necessary outside the 
financial services industry), IMA, and UnitedHealth.
    \285\ See letter from Financial Executive. See also letters from 
Ball and CCMC.
---------------------------------------------------------------------------

D. Removal of Outdated Requirement

    Rule 312 of Regulation S-T permitted issuers of asset-backed 
securities, for their filings filed on or before June 30, 2012, to post 
static pool disclosures on an internet website under certain conditions 
in lieu of filing the information on EDGAR. This temporary 
accommodation lapsed on June 30, 2012, and in 2014, in the adopting 
release for revisions to disclosure requirements for asset-backed 
securities, the Commission reiterated that issuers are no longer able 
to use Rule 312 as a means to provide their static pool 
information.\286\ As stated in that release, the Commission did not 
remove Rule 312 at that time since asset-backed issuers that previously 
provided static pool information via a website were required to retain 
all versions of the information provided through the website for a 
period of not less than five years. Because the period for retention 
has now lapsed, the rule has become obsolete due to the passage of 
time, and therefore we are removing Rule 312 from Regulation S-T.\287\
---------------------------------------------------------------------------

    \286\ See Asset-Backed Securities Disclosure and Registration, 
Release No. 33-9638 (Sept. 4, 2014) [79 FR 57184 at 57258].
    \287\ We find that there is good cause to adopt the amendment 
without notice and comment. Because the amendment makes a technical 
change to eliminate an obsolete provision, notice and comment are 
unnecessary. See 5 U.S.C. 553(b)(B).
---------------------------------------------------------------------------

III. Other Matters

    If any of the provisions of these rules, or the application thereof 
to any person or circumstance, is held to be invalid, such invalidity 
shall not affect other provisions or application of such provisions to 
other persons or circumstances that can be given effect without the 
invalid provision or application.
    Section 553(d) of the Administrative Procedure Act generally 
requires an agency to publish an adopted rule in the Federal Register 
30 days before it becomes effective.\288\ This requirement does not 
apply, however, if the adopted rule is a ``substantive rule which 
grants or recognizes an exemption or relieves a restriction.'' \289\ We 
find that our amendments to the rules governing redaction of 
confidential information in material contracts, discussed in Section 
II.A.2. above, are substantive rules that

[[Page 12699]]

relieve a restriction. Specifically, these amendments relieve 
registrants of the requirement to prepare and process confidential 
treatment requests for information in their material contracts filed as 
exhibits, so long as the information is not material and is likely to 
cause competitive harm to the registrant if publicly disclosed.\290\ 
Accordingly, the following provisions are effective April 2, 2019: 
Amendments to Items 601(b)(2)(ii) and 601(b)(10)(iv) of Regulation S-K; 
paragraph 4(a) of Instructions as to Exhibits of Form 20-F; Instruction 
6 to Item 1.01 of Form 8-K; new Instruction 4 to Item 28 of Form N-1A; 
new Instruction 6 to Item 25.2 of Form N-2; new Instruction 5 to Item 
29(b) of Form N-3; new Instruction 5 to Item 24(b) of N-4; new 
Instruction 3 of Instructions as to Exhibits of Form N-5; new 
Instruction 3 to Item 26 of Form N-6; new Instruction 3 to Item 16 of 
Form N-14; new Additional Instruction 3 to the Instructions as to 
Exhibits of Form S-6; and new Instruction 3 to IX. Exhibits of Form N-
8B-2.\291\
---------------------------------------------------------------------------

    \288\ See 5 U.S.C. 553(d).
    \289\ See 5 U.S.C. 553(d)(1).
    \290\ See supra Section II.A.2.c.
    \291\ But see infra Section V.B. for a discussion of the 
compliance dates for the HTML filing and exhibit hyperlinking 
requirements.
---------------------------------------------------------------------------

IV. Transition Matters

    If a registrant has a confidential treatment request pending at the 
time the amended rules governing redaction of confidential information 
in material contracts become effective, the registrant may, but is not 
required to, withdraw its pending application. The Commission and its 
staff will continue to process pending CTR applications that are not 
withdrawn, following established procedures. Registrants who opt to 
withdraw their CTR applications in order to rely on the amended rules 
are advised to refile the exhibit or exhibits, in redacted form, in an 
amended filing with the Commission that conforms to the amended rules. 
Registrants should contact the Assistant Director office, or in the 
case of an investment company the Division of Investment Management's 
Disclosure Review and Accounting Office, responsible for reviewing 
their filings to coordinate the withdrawal of any confidential 
treatment application and the refiling of the exhibit or exhibits.

V. Compliance Dates

    Except as noted above in Section III (Other Matters) and below, 
registrants will be required to comply with these amendments beginning 
May 2, 2019.

A. Tagging of Cover Page Data

    We are adopting phased compliance dates for the requirements to tag 
data on the cover pages of Form 10-K, Form 10-Q, Form 8-K, Form 20-F, 
and Form 40-F in Inline XBRL. To mitigate the potential burden 
associated with the transition of filers and preparers to Inline XBRL 
generally, these dates are identical to the compliance dates for 
mandatory compliance with the Inline XBRL rules set forth in the Inline 
XBRL Adopting Release.\292\ The date of compliance depends on the type 
of filer, as follows:
---------------------------------------------------------------------------

    \292\ See supra note 258.

------------------------------------------------------------------------
            Operating companies                 Compliance date \293\
------------------------------------------------------------------------
Large accelerated filers that prepare       Reports for fiscal periods
 their financial statements in accordance    ending on or after June 15,
 with U.S. GAAP.                             2019.
Accelerated filers that prepare their       Reports for fiscal periods
 financial statements in accordance with     ending on or after June 15,
 U.S. GAAP.                                  2020.
All other filers..........................  Reports for fiscal periods
                                             ending on or after June 15,
                                             2021.
------------------------------------------------------------------------

    As illustrated, we are adopting a three-year phase-in whereby: (i) 
Large accelerated filers that prepare their financial statements in 
accordance with U.S. GAAP will be required to comply with the cover 
page tagging requirements in reports for fiscal periods ending on or 
after June 15, 2019; (ii) accelerated filers that prepare their 
financial statements in accordance with U.S. GAAP will be required to 
comply in reports for fiscal periods ending on or after June 15, 2020; 
and (iii) all other filers that are subject to the cover page tagging 
requirements, including foreign private issuers that prepare their 
financial statements in accordance with IFRS, will be required to 
comply in reports for fiscal periods ending on or after June 15, 2021. 
Domestic form filers \294\ will be required to comply beginning with 
their first Form 10-Q for a fiscal period ending on or after the 
applicable compliance date, as opposed to the first filing for a fiscal 
period ending on or after that date.\295\
---------------------------------------------------------------------------

    \293\ Form 10-Q filers will not become subject to the Inline 
XBRL requirements with respect to Form 10-K or any other form until 
after they have been required to comply with the Inline XBRL 
requirements for their first Form 10-Q for a fiscal period ending on 
or after the applicable compliance date for the respective category 
of filers.
    \294\ Form 20-F and 40-F filers do not have quarterly report 
filing obligations and are therefore not affected by this provision.
    \295\ As an example, a Form 10-Q filer in the first phase-in 
group with a calendar fiscal year end will be required to begin 
compliance with its Form 10-Q for the period ending June 30, 2019. 
As a further example, a Form 10-Q filer in the first phase-in group 
with a June 30 fiscal year end will be required to begin compliance 
with its Form 10-Q for the period ending September 30, 2019.
---------------------------------------------------------------------------

    To be consistent with existing Inline XBRL data-tagging 
requirements, these cover page tagging requirements only apply to 
electronic filers that file the specified forms and who are required to 
submit Interactive Data Files in Inline XBRL format under Regulation S-
T.\296\ Therefore, the requirements do not apply to non-operating 
companies such as any investment companies registered under the 
Investment Company Act, business development companies, as defined in 
Section 2(a)(48) of that Act,\297\ entities that report under the 
Exchange Act and prepare their financial statements in accordance with 
Article 6 of Regulation S-X,\298\ or asset-backed issuers.
---------------------------------------------------------------------------

    \296\ See new Rule 406 of Regulation S-T [17 CFR 232.406].
    \297\ 15 U.S.C. 80a-2(a)(48).
    \298\ 17 CFR 210.6-01 through 210.6-10.
---------------------------------------------------------------------------

B. Hyperlinks and HTML Format for Investment Companies

    We are adopting a transition period that is intended to provide 
investment company registrants time to prepare filings to include 
hyperlinks to exhibits and to information incorporated by reference, as 
well as help mitigate the cost burdens related to switching over to 
HTML format for registrants currently submitting filings in ASCII. All 
registration statement and Form N-CSR filings made on or after April 1, 
2020 must be made in HTML format and comply with the rule and form 
amendments pertaining to the use of hyperlinks. However, we welcome 
early compliance with the new filing requirements.

VI. Economic Analysis

    We are sensitive to the economic effects that may result from the 
amendments. Securities Act Section 2(b),\299\ Exchange Act Section 
3(f),\300\ and Investment Company Act Section 2(c) \301\ require us, 
when engaging in rulemaking that requires us to consider or determine 
whether an action is necessary or appropriate in (or, with respect to 
the Investment Company Act, consistent with) the public interest, to 
consider, in addition to the protection of investors, whether the 
action will promote efficiency, competition, and capital formation. 
Additionally, Exchange Act Section 23(a)(2) \302\ requires us, when 
adopting rules and

[[Page 12700]]

amendments under the Exchange Act, to consider the impact that any new 
rule will have on competition and not to adopt any rule or amendment 
that will impose a burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Exchange Act.
---------------------------------------------------------------------------

    \299\ 5 U.S.C. 77b(b).
    \300\ 15 U.S.C. 78c(f).
    \301\ 15 U.S.C. 80a-2(c).
    \302\ 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------

    The expected economic effects of the amendments, as well as 
possible alternatives to the amendments, are discussed in detail below. 
Where possible, we have sought to quantify the benefits, costs, and 
effects on efficiency, competition, and capital formation expected to 
result from the amendments. However, we are unable to reliably quantify 
many of the economic effects due to limitations on available data. 
Therefore, parts of the discussion below are qualitative in nature, 
although we try to describe, where possible, the direction of these 
effects.
    A disclosure regime that facilitates the disclosure of material, 
reliable information can reduce informational asymmetries between 
managers of companies and investors, which can enhance capital 
formation and the allocative efficiency of the capital markets. At the 
same time, there are potential drawbacks associated with disclosure 
requirements. For example, disclosure can be costly for registrants to 
produce and disclosure of sensitive information can result in 
competitive disadvantages. These general considerations help to frame 
our analysis of the potential economic effects of the amendments, as 
discussed in detail below.\303\
---------------------------------------------------------------------------

    \303\ See Proposing Release Section III.A. for detailed 
discussion of the benefits and costs of disclosure.
---------------------------------------------------------------------------

    In the economic analysis that follows, we first examine the current 
regulatory and economic landscape that forms the baseline for our 
analysis. We then analyze the likely economic effects arising from the 
rule amendments relative to that baseline. These economic effects 
include the costs and benefits and impact on efficiency, competition, 
and capital formation.

A. Baseline

    To assess the economic effect of the amendments, we are using as 
our baseline the current state of the Commission's filing and 
disclosure regime. In characterizing the baseline, it is useful to 
distinguish between operating companies and investment companies. 
Although both types of registrants are subject to registration and 
reporting requirements, there are differences in the specific rules and 
forms applicable to each. In particular, on March 1, 2017, the 
Commission adopted amendments requiring registrants that file 
registration statements and reports subject to the exhibit requirements 
under Item 601 of Regulation S-K or that file Form F-10 or Form 20-F 
(i.e., operating companies) to submit these filings in HTML format and 
to include a hyperlink to each exhibit listed in the exhibit index of 
these filings. In contrast, there is currently no comparable 
requirement for investment companies.
    For operating companies, the baseline includes the disclosure 
requirements in Regulation S-K and related rules and forms as well as 
existing guidance on the application of those requirements. Table 1 
below suggests that the amendments to Regulation S-K and related rules 
and forms will apply to a substantial number of operating companies. On 
average, about 7,400 different registrants per year have filed periodic 
reports on Form 10-K and Form 10-Q in recent years. As shown in the 
table below, approximately 800 foreign private issuers provided 
periodic information to investors in the U.S. capital markets using 
Form 20-F and Form 40-F. The number of registrants filing definitive 
proxy statements on Schedule 14A has exceeded 5,000 each year.\304\
---------------------------------------------------------------------------

    \304\ We note that, in addition to operating companies, 
registered investment companies file proxy materials as well.

                  Table 1--Number of Registrants Filing Various Disclosure Forms From 2014-2018
----------------------------------------------------------------------------------------------------------------
              Year                     10-K            10-Q            20-F            40-F           DEF 14A
----------------------------------------------------------------------------------------------------------------
2014............................           7,857           7,872             669             143           5,259
2015............................           7,767           7,676             687             131           5,390
2016............................           7,373           7,147             675             126           5,126
2017............................           7,074           6,816             658             129           5,104
2018............................           6,907           6,549             679             127           5,063
----------------------------------------------------------------------------------------------------------------

    As discussed above, investment companies making filings on certain 
forms required by the Commission will also be affected by the 
amendments. Table 2 below lists the number of filings filed by 
investment companies in calendar year 2018 using EDGAR submission types 
potentially affected by the amendments, broken out by the number of 
filings in HTML and ASCII format. From January 1, 2018 to December 31, 
2018, investment companies filed 64,470 filings using EDGAR submission 
types potentially affected by the amendments. Of these filings, the 
vast majority (58,137) were filed in HTML, while 10% (6,333) were filed 
in ASCII format. As shown in Table 2, in 2018, more filings were made 
in HTML than ASCII format, with the exception of filings on Form N-8B-2 
and Form S-6 where more filings were made in ASCII than HTML format.

 Table 2--Number of Potentially Affected Filings From January 1, 2018 to
                            December 31, 2018
------------------------------------------------------------------------
                                          Number of HTML     Number of
                                              filings      ASCII filings
------------------------------------------------------------------------
N-1A....................................          42,316             329
N-2.....................................           1,514              20
N-3.....................................              26               9
N-4.....................................           5,374             650
N-5.....................................               0               0
N-6.....................................           1,614             190
N-8B-2..................................               1               3
N-14....................................             271               0
N-CSR...................................           6,575             134
S-6.....................................             446           4,998
                                         -------------------------------
    Total...............................          58,137           6,333
------------------------------------------------------------------------

    The amendments will require registrants to include hyperlinks in 
the case of exhibits included with the forms and exhibits that are 
incorporated by reference from a previously filed document. To draw a 
baseline indicative of current disclosure practices, we selected a 
random sample

[[Page 12701]]

of 400 filings (347 in HTML and 53 in ASCII) submitted in 2017 that may 
be affected by the amendments. Table 3 below shows the average and 
median number of exhibits listed in the sampled filings by the type of 
exhibit (i.e., filed with the form vs. incorporated by reference).

                                                  Table 3--Number of Exhibits in Sampled Filings \305\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Number of exhibits listed in    Number of exhibits filed with        Number of exhibits
                                                     the index                      the filing               incorporated by reference       Number of
                                         ------------------------------------------------------------------------------------------------     sampled
                                              Average         Median          Average         Median          Average         Median          filings
--------------------------------------------------------------------------------------------------------------------------------------------------------
N-1A....................................            34.8               0             2.1               0            32.8               0             203
N-2.....................................            20.9              24             4.9               3              16              12               7
N-3.....................................           171.5           171.5              14              14           157.5           157.5               2
N-4.....................................            58.2            37.5             3.1               3            55.1              35              24
N-5.....................................              NA              NA              NA              NA              NA              NA               0
N-6.....................................             183             183              14              14             169             169               1
N-8B-2..................................              NA              NA              NA              NA              NA              NA               0
N-14....................................            19.5            19.5             8.5             8.5              11              11               2
N-CSR...................................             2.3               2             2.1               2             0.2               0             120
S-6.....................................             6.8               8               2               2             4.8               4              41
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Filings.............................            24.1               2             2.3               2            21.8               0             400
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 3 shows significant variation in the number of exhibits 
listed in the exhibit index across different types of filings. 
Registration statements on Form N-3, Form N-4, and Form N-6 typically 
contain a large number of exhibits and had more exhibits incorporated 
by reference than filings on other forms affected by the amendments. Of 
the 400 sampled filings, we found that none of them included 
hyperlinked indexes.
---------------------------------------------------------------------------

    \305\ Relative to the random sample in Table 3 of the Proposing 
Release, the random sample in Table 3 of this release excludes 
definitive materials filed under the Securities Act Rule 497 because 
these materials do not include exhibits.
    In counting the number of exhibits, we did not include the 
following exhibits: 101.INS XBRL Instance Taxonomy; 101.SCH XBRL 
Taxonomy Extension Schema Document; 101.CAL XBRL Taxonomy Extension 
Calculation Linkbase Document; 101.DEF XBRL Taxonomy Extension 
Definition Linkbase Document; 101.LAB XBRL Taxonomy Extension Labels 
Linkbase Document; and 101.PRE XBRL Taxonomy Extension Presentation 
Linkbase Document because XBRL exhibits are not covered by the 
amendments.
    The random sampling did not result in any Forms N-5 and N-8B-2 
being drawn.
---------------------------------------------------------------------------

    Disclosure requirements involve trade-offs between benefits to 
investors in terms of reducing information asymmetries and costs to 
registrants associated with producing disclosure. While the amendments 
will apply to all registrants subject to the regulation, the trade-offs 
between the costs and benefits of disclosure requirements will vary 
across different types of registrants. For example, because many of the 
costs associated with disclosure do not vary with firm size, smaller 
companies may have higher disclosure costs in proportion to their 
revenues. Smaller companies also may have relatively higher disclosure 
benefits.\306\ While the fixed costs of disclosure requirements 
typically constitute a higher percentage of revenues for smaller 
companies than for larger companies, the benefits of disclosure may be 
greater for smaller companies because information asymmetries between 
investors and managers of smaller companies are typically higher than 
for larger companies. The costs of disclosure requirements can be also 
higher for foreign registrants to the extent that the disclosure 
requirements in the United States are different from the disclosure 
requirements in their home countries.
---------------------------------------------------------------------------

    \306\ Based on a review of filings, the Commission observed in a 
recent rulemaking that approximately 39% of registrants qualified as 
smaller reporting companies. See Smaller Reporting Company 
Definition, Release No. 33-10513; 34-83550; File No. S7-12-16 (Sept. 
10, 2018), available at https://www.sec.gov/rules/final/2018/33-10513.pdf. Literature provides evidence consistent with the idea 
that the costs of disclosure requirements can be higher for smaller 
than larger firms. See, e.g., Engel, E., Hayes, R.M., & Wang, X., 
The Sarbanes-Oxley Act and firms' going private decisions. 44 J. of 
Acc. and Econ. 116, 116-145 (2007). Literature also provides some 
evidence that the benefits of disclosure requirements can be higher 
for smaller firms. See, e.g., Eleswarapu, V.R., Thompson, R., & 
Venkataraman, K., The Impact of Regulation Fair Disclosure: Trading 
Costs and Information Asymmetry. 39 J. of Fin. and Quant. Anal. 209, 
209-225 (2004).
---------------------------------------------------------------------------

B. Economic Analysis of the Amendments: General Assessment, Including 
Impact on Efficiency, Competition, and Capital Formation

    In this section, we evaluate the broad economic effects of the 
amendments, including a discussion of their impact on efficiency, 
competition, and capital formation. The amendments will discourage 
repetition and disclosure of information that is immaterial (see, e.g., 
amendments to Item 102 and Instruction 1 to Item 303(a)); will decrease 
investors' information processing costs (see, e.g., Rule 411, Rule 12b-
23, and Rule 0-4); and will decrease registrants' costs to prepare 
filing materials (see, e.g., amendment to Item 601(b)(10)). The 
amendments modify a well-established and robust disclosure regime that 
has existed for many years. As a result, we expect the aggregate impact 
of the amendments (in the form of more accurate share prices, better 
accountability of managers, and increased capital market liquidity) to 
be incremental to the effects that have already been realized from the 
existing disclosure regime.
    Disclosure provides benefits to participants in financial markets 
by reducing information asymmetries that exist between investors in a 
company and managers tasked with operating the company. Both 
registrants and investors alike should generally benefit from the 
amendments because they are designed to simplify the requirements and 
resulting content of existing disclosures while still providing all 
material information. We believe that changes to the requirements will 
result in improved presentation of information, which we expect to 
increase the usefulness of the disclosures for investors and generally 
lower the regulatory burden (and compliance costs) for registrants. In 
addition, we expect that improving the information environment with 
modernized and simplified disclosures for all filers will incrementally 
enhance capital formation and the allocative efficiency of the capital 
markets through more accurate share prices, better accountability of

[[Page 12702]]

managers, and increased capital market liquidity. We do not expect that 
the amendments will have a substantial effect on competition.
    We expect some of the amendments to entail modest initial 
implementation costs. However, we believe that the initial costs will 
be manageable for most registrants. Furthermore, those costs will be 
offset by future savings as a result of simplified and streamlined 
disclosure requirements, after implementation. Some of the amendments, 
such as those that impose new data tagging, hyperlinking, or disclosure 
requirements, will involve not only implementation costs but will also 
increase compliance costs for registrants going forward, although as 
discussed below, we do not expect these additional costs to be 
significant relative to current compliance costs.
    While the purpose of the proposed amendments is to simplify and 
modernize public company disclosure requirements without loss of 
material information, we acknowledge that the amendments could result 
in a loss of some information in certain cases, as discussed below. 
However, we believe the potential loss of information would be 
mitigated by the fact that registrants will continue to be required to 
provide material information, as may be necessary to make the required 
statements, in the light of the circumstances under which they are 
made, not misleading.\307\
---------------------------------------------------------------------------

    \307\ See Rule 12b-20 [17 CFR 240.12b-20] and Rule 408(a) [17 
CFR 230.408(a)].
---------------------------------------------------------------------------

C. Economic Analysis of the Specific Amendments: Amendments That 
Clarify, Streamline, or Update Existing Rules

1. Amendments That Clarify or Streamline a Rule's Requirements
a. Description of Property (Item 102)
    Item 102 requires disclosure of the location and general character 
of the principal plants, mines, and other materially important physical 
properties of the registrant and its subsidiaries. The staff has 
observed, however, that the item may elicit disclosure that is not 
material.\308\ The amendments to Item 102 will clarify that a 
description of property is required only to the extent physical 
properties are material to the registrant and will make other 
clarifying amendments.\309\ The amendments will not modify the Item 102 
requirements for companies in the mining, real estate, and oil and gas 
industries.
---------------------------------------------------------------------------

    \308\ See FAST Act Report, supra note 7, at Recommendation B.1. 
See also Concept Release, supra note 9, at Section IV.A.6.b and SEC 
Staff's Report of the Task Force on Disclosure Simplification (Mar. 
5, 1996) available at https://www.sec.gov/news/studies/smpl.htm.
    \309\ See supra Section II.B.1.
---------------------------------------------------------------------------

    The main benefit of the amendments will be to reduce the amount of 
disclosure that is not material by emphasizing materiality and 
harmonizing the rule's thresholds for disclosure. The amendments also 
can facilitate compliance and avoid any confusion associated with 
different disclosure standards. The reduction in regulatory burden due 
to the amendments to Item 102 may extend to approximately 6,300 
registrants.\310\
---------------------------------------------------------------------------

    \310\ We derive this number by taking the average number of 
registrants filing Forms 10-K between 2014 and 2018 as reported in 
Table 1 and excluding all companies in the mining, oil and natural 
gas, and real estate industries as of 2018. See infra Section 
VII.C.1.a. for a discussion of the estimated reduction in paperwork 
burden as a result of the amendments to Item 102.
---------------------------------------------------------------------------

    When Item 102 was originally adopted, registrants were more likely 
than they are today to maintain large physical properties and other 
assets, such as manufacturing plants.\311\ For example, today's 
technology firms and finance firms tend to hold substantially less real 
estate than manufacturing firms held in the 1980s. The amendment to 
Item 102 accounts for this change in the nature of enterprise by 
clarifying that disclosure about a physical property need only be 
provided to the extent that it is material to the registrant. The risk 
of loss of information important for investment and voting decisions 
under the amendment is mitigated by the fact that Item 102 explicitly 
requires disclosure of material information and the fact that 
registrants may continue to disclose relevant property information 
elsewhere in their filings, such as in response to Item 101 
(Description of Business).
---------------------------------------------------------------------------

    \311\ Since 1935, we have required disclosure similar to that 
required under Item 102. See Release No. 33-276 (Jan. 14, 1935) [not 
published in the Federal Register].
---------------------------------------------------------------------------

b. Management's Discussion and Analysis of Financial Condition and 
Results of Operations (Item 303 and Item 5 of Form 20-F)
    We are adopting a series of amendments to Item 303.\312\ In this 
section, we discuss all amendments to Item 303 that are intended to 
clarify the rule's requirements, while in Section IV.D.1. below, we 
discuss amendments to the content of MD&A. Instruction 1 to Item 303(a) 
provides that, generally, MD&A shall cover the three-year period 
covered by the financial statements and either use year-to-year 
comparisons or any other formats that in the registrant's judgment 
would enhance a reader's understanding. Additionally, the instruction 
states that reference to the five-year selected financial data may be 
necessary where trend information is relevant.
---------------------------------------------------------------------------

    \312\ See supra Section II.A.1.a.iii.
---------------------------------------------------------------------------

    We are adopting as proposed the revision to Instruction 1 of Item 
303 that eliminates the reference to year-to-year comparisons. 
Instruction 1 will now state that registrants may use any presentation 
that in the registrant's judgment enhances a reader's understanding of 
the registrant's financial condition, changes in financial condition, 
and results of operations, without suggesting that any one mode of 
presentation is preferable to another. We are also deleting the 
reference to five-year selected financial data in Instruction 1 to Item 
303(a) as proposed.
    These amendments emphasize the flexibility available to registrants 
with respect to the form of MD&A presentation. The major benefit of 
flexibility is that it allows registrants to frame the information in a 
way that emphasizes material information and allows registrants to omit 
information that is not material. One potential cost associated with 
this aspect of the amendment is that, to the extent the amendments lead 
to disclosure that varies more across firms and across a single firm's 
filings, they also may make disclosure less comparable across 
registrants and over time.
    To maintain a consistent approach to MD&A for domestic registrants 
and foreign private issuers, we are adopting changes to Form 20-F 
similar to the changes to Item 303(a).\313\ The disclosure requirements 
for Item 5 of Form 20-F are substantively comparable to the MD&A 
requirements under Item 303 of Regulation S-K. The economic effects of 
the amendments to Form 20-F are therefore similar to those for the 
amendments to Item 303(a) described above.
---------------------------------------------------------------------------

    \313\ See supra Section II.A.1.b.iii.
---------------------------------------------------------------------------

c. Risk Factors (Item 503(c))
    Item 503(c) requires disclosure of the most significant factors 
that make an offering speculative or risky. We are relocating Item 
503(c) from Subpart 500 to Subpart 100 of Regulation S-K.\314\ We 
believe that Subpart 100 is a more appropriate location for the risk 
factor disclosure requirements because it covers a broad category of 
business information and is not limited to offering-related disclosure. 
Additionally, our amendments will eliminate the risk factor examples 
that

[[Page 12703]]

are enumerated currently in Item 503(c).\315\
---------------------------------------------------------------------------

    \314\ See supra Section II.B.4.b.
    \315\ See id.
---------------------------------------------------------------------------

    We do not expect that relocating the disclosure requirement within 
Regulation S-K will pose any additional costs to registrants or 
investors because we are only changing the location of the requirement 
in Regulation S-K. The content of the requirement will not change.
    With respect to the elimination of the examples in Item 503(c), we 
believe that this may prompt registrants to more carefully evaluate and 
classify their risk exposures, which can ultimately benefit investors 
through more specific and relevant risk factor disclosures. In 
particular, the elimination of the examples in Item 503(c) can benefit 
investors because providing examples might anchor or skew the 
registrant's risk analysis in the direction of the examples.\316\
---------------------------------------------------------------------------

    \316\ There is extensive evidence in psychology and economics 
that individuals tend to rely too heavily on the first piece of 
information offered (the ``anchor'') when making decisions. See, 
e.g., Tversky, A. & Kahneman, D., Judgment under Uncertainty: 
Heuristics and Biases. 185 Science 1124. 1124-1131 (1974).
---------------------------------------------------------------------------

    An alternative to the amendments, as suggested by some commenters, 
would be to expand or update the list of examples or revise them to 
specify generic risks that should not be disclosed. While such an 
approach might lead to incremental improvements in existing 
disclosures, it would not eliminate the anchoring effect discussed 
above nor would it serve to discourage generic or ``boilerplate'' 
disclosures as effectively as the amendments. It is also possible that 
a list of generic risks could inadvertently be viewed as exhaustive. In 
addition, specifying a list of generic risks that should not be 
disclosed may create a rule that needs to be regularly updated.
d. Plan of Distribution (Item 508)
    Item 508 requires disclosure about the plan of distribution for 
securities in an offering, including information about underwriters. We 
are amending Rule 405 to define the term ``sub-underwriter'' to clarify 
its application in Item 508 of Regulation S-K.\317\ We believe that 
defining the term ``sub-underwriter'' will reduce compliance costs by 
helping registrants to more easily determine what disclosure is 
required under Item 508. We also believe that a defined term can help 
investors better understand the role of ``sub-underwriters'' in the 
offering process. Because the amendment merely clarifies an existing 
disclosure requirement, we believe any incremental costs would be 
nominal.\318\
---------------------------------------------------------------------------

    \317\ See supra Section II.B.4.c.
    \318\ See infra Section VII.C.3.a.
---------------------------------------------------------------------------

e. Material Contracts (Item 601(b)(10))
    Item 601(b)(10)(i) currently requires registrants to file every 
material contract not made in the ordinary course of business, provided 
that the contract meets one of two tests: (i) The contract must be 
performed in whole or in part at or after the filing of the 
registration statement or report, or (ii) the contract was entered into 
not more than two years before that filing. We are amending Item 
601(b)(10)(i) to limit the two-year look back test to ``newly reporting 
registrants,'' as that term is defined in the proposed revision to 
Instruction 1 of Item 601(b)(10).\319\
---------------------------------------------------------------------------

    \319\ See supra Section II.B.5.c.
---------------------------------------------------------------------------

    We expect that the amendments will streamline reporting obligations 
while maintaining investor protection. Although the two-year look back 
test captures material contracts that were fully performed before the 
filing date, this test does not provide any new information to the 
market for registrants with established reporting histories. Excluding 
these registrants from the two-year look back requirement will 
marginally reduce their compliance burdens because they will not need 
to re-file (or incorporate by reference) agreements that were 
previously filed and are no longer in effect.\320\ At the same time, 
investors will continue to have access to any material agreements that 
a registrant previously filed on EDGAR.
---------------------------------------------------------------------------

    \320\ See infra Section VII.C.1.d.ii. for a discussion of the 
estimated reduction in paperwork burden as a result of the amendment 
to Item 601(b)(10)(i).
---------------------------------------------------------------------------

f. Amendments With a Minor or No Effect on Disclosure
    The following amendments are expected to have minor impacts on the 
disclosure provided:
     Item 401--amendment will clarify what disclosure about 
executive officers does not need to be repeated in proxy or information 
statements if it is already included in Form 10-K.\321\
---------------------------------------------------------------------------

    \321\ See supra Section II.B.2.a. See also infra Section 
VII.C.1.c. for a discussion of the estimated reduction in paperwork 
burden as a result of the amendment to Item 401.
---------------------------------------------------------------------------

     Item 405--amendment will simplify the Section 16 reporting 
process by allowing registrants to rely on a review of Section 16 
reports submitted on EDGAR instead of gathering reports furnished to 
the registrant.\322\
---------------------------------------------------------------------------

    \322\ See supra Section II.B.2.b. The amendment will also 
eliminate the requirement for reporting persons to furnish Section 
16 reports to registrants, which could ease the compliance burden on 
reporting persons. See infra Section VII.C.1.c. for a discussion of 
the estimated reduction in paperwork burden as a result of the 
amendment to Item 405.
---------------------------------------------------------------------------

     Item 501(b)(1)--amendment will eliminate the portion of 
the item that discusses when a name change may be required and the 
exception to that requirement.\323\
---------------------------------------------------------------------------

    \323\ See supra Section II.B.4.a.i. The amendment to Item 
501(b)(1) is not expected to meaningfully affect paperwork burdens. 
See infra Section VII.C.3.a.
---------------------------------------------------------------------------

     Item 501(b)(3)--amendment will allow registrants to move 
details of an offering price method or formula from the prospectus 
cover page to another location in the prospectus; the amendment also 
will require registrants to state that the price will be more fully 
explained in the prospectus and accompany that statement with a cross-
reference to the more detailed offering price disclosure.\324\
---------------------------------------------------------------------------

    \324\ See supra Section II.B.4.a.ii. The amendment to Item 
501(b)(3) is not expected to meaningfully affect paperwork burdens. 
See infra Section VII.C.3.a.
---------------------------------------------------------------------------

     Item 501(b)(10)--amendment will streamline the prospectus 
legend requirements.\325\
---------------------------------------------------------------------------

    \325\ See supra Section II.B.4.a.iv. The amendment to Item 
501(b)(10) is not expected to meaningfully affect paperwork burdens. 
See infra Section VII.C.3.a.
---------------------------------------------------------------------------

     Incorporation by Reference--amendments will (i) provide 
clearer guidance on cross-referencing and (ii) consolidate the 
requirements for incorporation by reference in Securities Act Rule 411, 
Exchange Act Rule 12b-23, and related rules under the Investment 
Company Act and Investment Advisers Act to eliminate redundant or 
unnecessary requirements. With respect to cross-referencing or 
incorporating by reference to non-financial statement information from 
the financial statements, the amendments provide that incorporating by 
reference, or cross-referencing to, information outside of the 
financial statements is only permitted when permitted or required by 
the Commission's rules, U.S. GAAP, or IFRS.\326\
---------------------------------------------------------------------------

    \326\ See supra Sections II.A.3.c. and II.B.6. The amendments 
governing incorporation by reference are not expected to 
meaningfully affect paperwork burdens. See infra Section VII.C.3.b.
---------------------------------------------------------------------------

     Rule 312--amendment will not affect disclosure because the 
temporary accommodation that filers can post static pool disclosures on 
an internet website in lieu of filing the information on EDGAR lapsed 
in June 30, 2012. The amendment also will not affect recordkeeping 
costs because the requirement to retain all versions of the information 
provided through the website lapsed in June 30, 2017.\327\
---------------------------------------------------------------------------

    \327\ See supra Section II.D.
---------------------------------------------------------------------------

    We believe that the above amendments, which will alter existing

[[Page 12704]]

disclosure practices only to a minor degree, will allow registrants to 
improve the readability and navigability of disclosure documents and 
reduce repetition. Because the amendments do not significantly change 
the required disclosures and continue to elicit all material 
information, we do not envision any significant incremental costs 
associated as a result of the amendments.
    An alternative amendment that we considered was to allow 
registrants to exclude item numbers and captions or to create their own 
captions tailored to their disclosure in Form 10, Form 10-K, and Form 
20-F. The benefit of such an amendment would be that it potentially 
would reduce repetitive disclosure or unnecessary cross-references when 
information may be responsive to more than one item and thereby enhance 
the overall readability of required disclosures. Nevertheless, as noted 
by commenters, this amendment potentially would hamper the ability of 
investors to navigate filings, locate information important to them, 
and compare information across registrants.
    Another alternative that we considered was to require registrants 
to include in the exhibit of all of their subsidiaries the LEI, if one 
has been obtained, of the registrant and each subsidiary listed, and 
require the LEIs to be tagged using Inline XBRL. The benefits of such 
an amendment would be that it potentially would allow investors to use 
LEIs to more quickly and precisely identify registrants and their 
subsidiaries, and thus better understand relationships between 
interrelated companies and the associated risks.\328\ Nevertheless, as 
noted by some commenters, it would be costly and time consuming to 
acquire and maintain LEIs, particularly for registrants with numerous 
subsidiaries or affiliates operating globally, while at the same time 
LEIs may not provide additional material information to investors.\329\
---------------------------------------------------------------------------

    \328\ See supra notes 282 and 283.
    \329\ See supra notes 284 and 285.
---------------------------------------------------------------------------

2. Amendments To Update Rules to Account for Subsequent Developments
    The following amendments will update existing rules to account for 
subsequent developments and are expected to have minor impacts on the 
disclosure provided:
     Item 407(d)--amendment will update the outdated reference 
to AU sec. 380 in Item 407(d)(3)(i)(B).\330\
---------------------------------------------------------------------------

    \330\ See supra Section II.B.3.a. See also infra Section 
VII.C.1.c. for a discussion of the estimated reduction in paperwork 
burden as a result of the amendment to Item 407(d).
---------------------------------------------------------------------------

     Item 407(e)--amendment will update requirements for 
compensation committee disclosure to exclude EGCs because they are not 
required to include a CD&A.\331\
---------------------------------------------------------------------------

    \331\ See supra Section II.B.3.b. See also infra Section 
VII.C.1.c for a discussion of the estimated reduction in paperwork 
burden as a result of the amendment to Item 407(e).
---------------------------------------------------------------------------

     Item 512--amendment will eliminate certain undertakings 
that are redundant and obsolete.\332\
---------------------------------------------------------------------------

    \332\ See supra Section II.B.4.d. The amendment to Item 512 is 
not expected to meaningfully affect paperwork burdens. See infra 
Section VII.C.3.a.
---------------------------------------------------------------------------

    We believe that the amendments listed above will reduce potential 
confusion in applying our rules, result in more consistent disclosure 
practices, and ease compliance burdens for registrants, with a minimal 
impact on the information available to investors. We do not envision 
any significant incremental costs associated with the amendments 
because the substance of the rules will not change.

D. Economic Analysis of the Specific Amendments: Amendments That 
Simplify the Disclosure Process or Eliminate Disclosures

1. Management's Discussion and Analysis (Item 303 and Item 5 of Form 
20-F)
    We are revising Instruction 1 to Item 303(a) and Item 5 of Form 20-
F to allow registrants who are providing financial statements covering 
three years in a filing to omit discussion of the earliest of the three 
years if such discussion was already included in any other of the 
registrant's prior filings on EDGAR that required disclosure in 
compliance with Item 303 of Regulation S-K or Item 5 of Form 20-F; 
provided, that registrants electing not to include a discussion of the 
earliest year in reliance on this instruction identify the location in 
the prior filing where the omitted discussion may be found.\333\
---------------------------------------------------------------------------

    \333\ See supra Section II.A.1.a.iii.
---------------------------------------------------------------------------

    We believe that the main economic benefit of the amendments to Item 
303 and Item 5 of Form 20-F will be to simplify and modernize MD&A 
while still providing all material information. This is intended to 
facilitate a better understanding of the firm's financial prospects. 
Because MD&A is typically one of the most labor-intensive pieces of 
disclosure to produce, eliminating the requirement to discuss the 
earliest year financial statements in some circumstances can 
meaningfully reduce compliance costs for registrants.\334\
---------------------------------------------------------------------------

    \334\ See infra Section VII.C.1.b for a discussion of the 
estimated reduction in paperwork burden as a result of the 
amendments to Item 303(a) and Item 5 of Form 20-F.
---------------------------------------------------------------------------

    One potential cost of the amendments is that investors may receive 
less information about earlier period financial results within a 
filing. Although previously disclosed information can provide helpful 
context for the new information being disclosed, this information would 
have been incorporated into market prices of publicly traded firms when 
it was originally presented. In addition, registrants electing not to 
include a discussion of the earliest year in reliance on this 
instruction will be required to identify the location in the prior 
filing where the omitted discussion may be found, which will mitigate 
the omission of the discussion in the filing at issue.
2. Information Omitted From Exhibits
    Item 601(a)(5), as amended, will permit registrants to omit 
schedules and attachments to all exhibits under Item 601 unless they 
contain information material to an investment or voting decision and 
that information is not otherwise disclosed in the exhibit or the 
disclosure document.\335\ The amendments also will require registrants 
to provide with each exhibit a list briefly identifying the contents of 
all omitted schedules and attachments. In addition, registrants will be 
required to provide, on a supplemental basis, a copy of any of the 
omitted schedules or attachments to the Commission staff upon request. 
We are also adding comparable provisions to the exhibit requirements of 
Item 1016 of Regulation M-A, the investment company registration forms, 
and Form N-CSR.
---------------------------------------------------------------------------

    \335\ See supra Section II.B.5.b.i.
---------------------------------------------------------------------------

    Allowing registrants to omit schedules and attachments that are not 
material to all exhibits should lower their filing costs. The omission 
of schedules that are not material will also help investors more 
clearly focus on the material disclosures.
    We are unable to estimate the number of schedules and attachments 
that will be omitted as a result of the amendments of Item 601(a)(5), 
Item 1016 of Regulation M-A, and the investment company registration 
forms because we cannot determine whether a schedule and attachment 
contains material information without additional information from 
registrants.\336\ Nevertheless, we believe that the

[[Page 12705]]

number of schedules and attachments that will be omitted as a result of 
the amendments likely will be small. The reason is that Item 601(a)(5), 
Item 1016 of Regulation M-A, and the investment company registration 
forms only permit schedules and attachments that contain no material 
information to be omitted, and we believe that the majority of the 
schedules and attachments contain at least some material information 
and thus cannot be omitted. Consequently, while there will be some 
reductions in filing costs associated with the amendments, any such 
reductions likely will be small.
---------------------------------------------------------------------------

    \336\ See infra Section VII.C.1.d.i.2 for a discussion of the 
reduction in paperwork burden as a result of the amendments to Item 
601(a)(5), Item 1016 of Regulation M-A, and the investment company 
registration forms. While there will be some reduction in burden 
associated with these amendments, we do not believe the reduction 
will be significant enough to warrant an adjustment to our burden 
estimates.
---------------------------------------------------------------------------

    Item 601(a)(6), as amended, will permit registrants to omit PII 
without submitting a confidential treatment request under Rule 406 or 
Rule 24b-2.\337\ Under the amendment, registrants also will not be 
required to provide an analysis in order to redact PII from exhibits. 
We are also adding comparable provisions to the exhibit requirements of 
Item 1016 of Regulation M-A and the investment company registration 
forms. Since the amendments leave the decision about omission of PII 
entirely to the registrant, it could result in more liberal redactions. 
Thus, there is a tradeoff between reduced compliance costs and the 
potentially adverse effects of reduced disclosure. However, our 
analysis indicates that the Commission received very few confidential 
treatment requests in reliance on the FOIA exemption concerning PII. As 
an illustration, in fiscal year 2018, the Commission received 14 
confidential treatment requests pursuant to this FOIA exemption, out of 
which 10 were granted. Presumably, most registrants are currently 
taking advantage of the existing staff position that PII may be omitted 
without filing a confidential treatment request. As a result, we do not 
expect that codifying this accommodation will significantly alter 
existing disclosure practices or will significantly reduce the costs 
associated with preparing analysis and confidential treatment requests 
to omit PII.\338\
---------------------------------------------------------------------------

    \337\ See supra Section II.B.5.b.ii.
    \338\ See infra Section VII.C.1.d.i.3 for a discussion of the 
reduction in paperwork burden as a result of the amendments related 
to PII. We believe that the amendments will result in some 
incremental reduction in burden, although we do not believe the 
reduction will be significant enough to warrant an additional 
adjustment to our burden estimates.
---------------------------------------------------------------------------

    We are also amending 601(b)(10) and (2) and certain related 
requirements in specified disclosure forms for which Item 601(b)(10) 
does not apply to permit registrants to omit confidential information 
in material contract exhibits that is both (i) not material and (ii) 
would likely cause competitive harm to the registrant if publicly 
disclosed, without submitting a confidential treatment request.\339\ 
The disclosure forms for which Item 601(b)(10) does not apply and that 
will be affected by the amendment are Forms 20-F, 8-K, N-1A, N-2, N-3, 
N-4, N-5, N-6, N-8B-2, N-14, and S-6. Instead of requesting 
confidential treatment, registrants will be required to mark the 
exhibit index to indicate that portions of the exhibit or exhibits have 
been omitted and include a prominent statement on the first page of 
each redacted exhibit that certain information is omitted from the 
filed version of the exhibit. The registrant will also be required to 
indicate with brackets where the information is omitted from the filed 
version of the exhibit.
---------------------------------------------------------------------------

    \339\ See supra Section II.A.2.c.
---------------------------------------------------------------------------

    Registrants can be asked by the Commission staff to provide on a 
supplemental basis an unredacted copy of the exhibit. The staff also 
can request that the registrant provide an analysis of why the redacted 
information is both (i) not material and (ii) would likely cause it 
competitive harm if publicly disclosed. Registrants may request 
confidential treatment of this supplemental information pursuant to 
Rule 83 while it is in the possession of the staff.
    The amendment will significantly reduce the costs associated with 
preparing confidential treatment requests and expedite the filing 
process.\340\ The largest cost associated with the confidential 
treatment request process is the cost to prepare the letter and 
application for the request, which can require substantial legal 
analysis. The amendment of Items 601(b)(10) and (2) will eliminate the 
costs associated with preparing confidential treatment requests, except 
for cases when Commission staff asks the registrant to provide an 
analysis of why the redacted information is immaterial and would likely 
cause the registrant competitive harm if publicly disclosed.
---------------------------------------------------------------------------

    \340\ See infra Section VII.C.1.d.i.1 for a discussion of the 
estimated reduction in paperwork burden as a result of the 
amendments related to confidential information in material 
contracts.
---------------------------------------------------------------------------

    In this regard, one commenter on the Concept Release reviewed seven 
different confidential treatment requests on which it assisted clients 
since 2012 and found that legal fees alone ranged from approximately 
$35,000 to over $200,000.\341\ A commenter on the Proposing Release 
mentioned that ``[d]uring [its] 2017 fiscal year, [it] submitted 39 
confidential treatment requests, and [it] submitted a total of 17 
confidential treatment requests during the first two quarters of [its] 
2018 fiscal year. Attorneys and paralegals at [the] company spend an 
average of 80 hours each quarter preparing redacted exhibits and 
related confidential treatment requests.'' \342\ According to another 
commenter, any cost savings likely will be more pronounced for smaller 
companies ``because smaller reporting companies have a lower threshold 
for determining whether a contract is material and therefore required 
to be filed publicly in the first place'' and for companies in certain 
industries that require confidential treatment more frequently (e.g., 
biotechnology).\343\
---------------------------------------------------------------------------

    \341\ See letter from Fenwick.
    \342\ The 80-hour burden estimate provided by the commenter 
includes both time spent to prepare redacted exhibits and time spent 
to prepare confidential treatment requests. Under the amendments to 
Items 601(b)(10) and (2), registrants will continue to spend time 
preparing redacted exhibits to file with the Commission, regardless 
of whether they will submit a confidential treatment request for 
those exhibits. Hence the 80-hour burden estimate likely overstates 
any cost savings associated with removing the need to submit a 
confidential treatment request under the amendments to Items 
601(b)(10) and (2). See letter from FedEx Corporation.
    \343\ See letter from Reed Smith.
---------------------------------------------------------------------------

    Because more than 90% of the confidential treatment requests 
granted by the Commission in fiscal year 2018 were made in reliance on 
the FOIA exemption concerning competitive harm, the amendments to allow 
registrants to omit competitively harmful information that is not 
material without filing a confidential treatment request could 
correspondingly reduce the number and cost of confidential treatment 
requests pursuant to Rule 406 and Rule 24b-2 by over 90%. This cost 
reduction will be mitigated by the fact that registrants will continue 
to incur costs associated with preparing the redacted exhibits for 
filing and negotiating with counterparties over what terms of the 
agreement can be publicly disclosed. In addition, this cost reduction 
partially will be offset by the amendment's provision that the staff 
may request an analysis similar to the current competitive harm 
analysis. Registrants will incur costs to prepare and provide this 
analysis in response to any request from the staff.
    One potential cost of the amendments is that information may be 
redacted that would not otherwise be afforded confidential treatment by 
the staff. However, based on previous experience and a review of 
confidential treatment requests, we believe that such instances will be 
rare. Over the past two fiscal years, about 11% of the confidential 
treatment requests granted by the Commission were revised by the 
registrant in response to staff comments

[[Page 12706]]

to reduce and/or modify the requested redactions. In addition, over the 
past five fiscal years, very few confidential treatment requests were 
denied by the staff. Specifically, of the confidential treatment 
requests filed over the last five fiscal years, on average, 
approximately 1% were withdrawn because the staff determined that the 
information likely was material to investors.\344\ During this time, on 
average, approximately 95% of confidential treatment requests filed 
were granted, and requests were rarely denied.\345\ Also during the 
past five fiscal years, on average, approximately 11% of confidential 
treatment requests filed were revised prior to the request being 
granted to limit the number of terms redacted based on likely 
materiality or overly broad redactions.\346\ Under the amendments, the 
Commission staff will continue its selective review of registrant 
filings and will selectively assess whether redactions from exhibits 
appear to be limited to information that is not material and that would 
likely cause the registrant competitive harm if publicly disclosed. 
This selective review process will mitigate the risk that material 
information may be redacted from Commission filings as a result of the 
proposed amendments.
---------------------------------------------------------------------------

    \344\ The following confidential treatment requests were 
received and withdrawn for likely materiality during the last five 
fiscal years:
     2018: 1,239 received and approximately 2 withdrawn;
    2017: 1,226 received and approximately 4 withdrawn;
     2016: 1,271 received and approximately 7 withdrawn;
    2015: 1,369 received and approximately 14 withdrawn; and
    2014: 1,413 received and approximately 19 withdrawn.
    \345\ In fiscal years 2018, 2017, 2016, and 2015, no CTRs were 
denied. In fiscal year 2014, one CTR was denied. On average, during 
the last five fiscal years, approximately 95% of confidential 
treatment requests were granted and approximately 5% were withdrawn. 
In addition to withdrawals based on staff determinations that the 
information was likely material, other reasons confidential 
treatment requests are withdrawn include that the offering is no 
longer going forward, the information is already public, or the 
contract is no longer material.
    \346\ Confidential treatment requests revised based on 
materiality and/or overbroad redactions in fiscal years 2018, 2017, 
2016, 2015, and 2014 were approximately 133, 137, 119, 139, and 183, 
respectively.
---------------------------------------------------------------------------

E. Economic Analysis of the Specific Amendments: Amendments That 
Require More Disclosure or the Incorporation of New Technology

1. Description of Registrant's Securities (Item 601(b)(4))
    Item 202 requires registrants to provide a brief description of 
their registered capital stock, debt securities, warrants, rights, 
American Depositary Receipts, and other securities. We are amending 
Item 601(b)(4) to require registrants to provide Item 202 disclosure as 
an exhibit to Form 10-K for each class of securities that is registered 
under the Exchange Act, rather than limiting this disclosure to 
registration statements.\347\ The amendments will not change existing 
disclosure obligations under Form 8-K and Schedule 14A, which currently 
require registrants to disclose certain modifications to the rights of 
their security holders and amendments to their articles of 
incorporation or bylaws. Any modifications and amendments during a 
fiscal year to the information called for by Item 202 will now also be 
reflected in an exhibit to the registrant's next annual report.
---------------------------------------------------------------------------

    \347\ See supra Section II.B.5.a.
---------------------------------------------------------------------------

    Information about Exchange Act registered securities allows 
investors to assess the existing capital structure of registrants, 
which can help investors better understand their exposure to risks and 
their control rights. Currently, this information is not always easy to 
locate because it requires cross-referencing to the date of the 
original offering of each type of security, and in the cases of 
companies that have not issued new securities since Item 202 came into 
effect, this information may not be available.\348\ Requiring Item 202 
disclosure as an exhibit to annual reports will improve investors' 
access to information about their rights as security holders, thereby 
facilitating more informed investment and voting decisions. This 
requirement also will level the playing field across registrants 
because the same type of information will be available for all 
registrants' securities.\349\
---------------------------------------------------------------------------

    \348\ See letter from SIFMA.
    \349\ See id.
---------------------------------------------------------------------------

    The requirements will impose some incremental compliance costs for 
registrants to include the additional disclosure with their annual 
reports.\350\ Table 1 above shows that on average approximately 7,600 
registrants file Form 10-K each year and therefore will be subject to 
the new Item 601(b)(4) exhibit filing requirement. However, because 
registrants already prepare very similar disclosure to satisfy existing 
disclosure obligations under Form 8-K and Schedule 14A and will be able 
to incorporate by reference and hyperlink to prior disclosure, so long 
as there has not been any change to the information called for by Item 
202, we expect these incremental costs to be minimal.\351\
---------------------------------------------------------------------------

    \350\ See infra Section VII.C.2.b. for a discussion of the 
estimated increase in paperwork burden as a result of the amendment 
to Item 601(b)(4).
    \351\ One commenter suggested that without the option to 
incorporate by reference ``preparation of new exhibits by a 
registrant with multiple classes of registered debt securities would 
substantially exceed the 0.5 hours of paperwork burden estimated on 
page 158 of the proposing release, since exhibit preparation would 
require making conforming edits to the `Description of Notes' for 
each class of security and might also involve combining disclosure 
from a base prospectus and prospectus supplement into one narrative. 
We also anticipate that a registrant would request outside 
transaction counsel to review the exhibit, increasing the cost and 
preparation time.'' See letter from Davis Polk. Another commented, 
however, argued that ``[a]lthough there will be an initial burden 
(in drafting new disclosure or expanding old/existing disclosure) 
for issuers with securities that caused them to become subject to 
Section 12 before Item 202 came into effect, in those cases this 
burden will be a one-time event, and in all other cases registrants 
will only need to copy the Item 202 from the offering of each 
Section 12 registered security to the Item 202 annual report 
exhibit.'' See letter from SIFMA.
---------------------------------------------------------------------------

2. Tagging Cover Page Data
    We are requiring registrants to tag all of the information on the 
cover page of Form 10-K, Form 10-Q, Form 8-K, Form 20-F, and Form 40-F 
using Inline XBRL.\352\ To implement the cover page tagging 
requirements, we are adding new Rule 406 to Regulation S-T, new Item 
601(b)(104) to Regulation S-K, new paragraph 104 to the ``Instructions 
as to Exhibits'' of Form 20-F and new paragraph B.17 to the ``General 
Instructions'' of Form 40-F to require registrants to file with each of 
the specified forms a ``Cover Page Interactive Data File'' containing 
cover page data. We are also revising Rule 11 of Regulation S-T to add 
the term ``Cover Page Interactive Data File.'' In addition, we are 
amending the cover pages of these forms to include the trading symbol 
for each class of the registrant's registered securities.\353\
---------------------------------------------------------------------------

    \352\ See supra Section II.B.7.a.
    \353\ Because the cover pages of Form 10-K, Form 20-F, and Form 
40-F already require disclosure of the title of each class of 
securities registered pursuant to Section 12(b) of the Exchange Act 
and each exchange on which they are registered, the amendments to 
these forms revise the cover page to include a corresponding field 
for the trading symbol. Unlike these forms, however, the cover pages 
of Form 10-Q and Form 8-K do not currently require disclosure of the 
title of each class of securities and each exchange on which they 
are registered. Accordingly, to ensure that registrants and their 
registered securities are identified in a consistent manner across 
forms, we are revising the cover pages of Form 10-Q and Form 8-K to 
include this disclosure in addition to the trading symbol.
---------------------------------------------------------------------------

    Investment analysis increasingly relies on quantitative statistical 
methods. Machine-readable formats greatly facilitate quantitative 
analysis because they allow for the corresponding items to be imported 
directly into various platforms for data analysis. Thus, tagging all 
the data

[[Page 12707]]

points on the cover pages of Form 10-K, Form 10-Q, Form 8-K, Form 20-F, 
and Form 40-F can decrease the costs to investors for implementing 
quantitative data analysis. In addition, relevant information will be 
available more quickly, at a more granular level, with greater 
accuracy, and with greater efficiency.\354\ We acknowledge that the 
amendment will impose additional costs on registrants but expect the 
additional burden to be small, given that registrants already furnish a 
substantial amount of information contained in these forms in a 
structured format.\355\ The amendments will also facilitate future 
enhancements to the EDGAR system by utilizing the tagged information to 
reduce duplicative entry of information into both the filing and the 
submission header at the time of filing. One commenter stated that it 
would take 1-2 hours to complete tagging for a cover page, that tagging 
the cover page a second time would require less time, and that filers 
would be able to use their current XBRL tagging processes to perform 
the cover page tagging.\356\ The same commenter indicated that the 
biggest challenge with the tagging requirements is that the legal 
department may be required to prepare certain filings whereas the 
finance department is responsible for preparing other filings, but that 
this issue will only affect certain companies.
---------------------------------------------------------------------------

    \354\ See letter from XBRL US and Morningstar. See XBRL Adopting 
Release, supra note 255, for a discussion of the benefits of data 
tagging. See also Inline XBRL Filing of Tagged Data, Release No. 33-
10323 (Mar. 1, 2017) [82 FR 14282 (Mar. 17, 2017)], at n. 169 and 
Inline XBRL Adopting Release, supra note 258, at n. 71 for a 
discussion of academic research on the benefits of XBRL.
     Some commenters questioned the extent to which the cost of data 
tagging for registrants outweighs the potential value to investors. 
See letters from CCMC, Financial Executives International, IMA, 
Nasdaq, Society for Corp. Gov., and UnitedHealth.
    \355\ See infra Section VII.C.2.c. for a discussion of the 
estimated increase in paperwork burden as a result of the 
requirement to tag cover page data.
    \356\ See letter from XBRL US.
---------------------------------------------------------------------------

    An alternative to the Inline XBRL or traditional XBRL format is to 
specify an XML format for the cover pages of Form 8-K, Form 10-K, Form 
10-Q, Form 20-F, and Form 40-F. An XML format could have a variety of 
implementations ranging from filers submitting the data according to a 
designated technical framework to inputting the cover page information 
in a web-fillable format within EDGAR. We are not adopting this 
approach because the Inline XBRL format provides precise rules that 
facilitate consistent input and data validation by filers and enhance 
the analytical capabilities of data users. Moreover, the Inline XBRL 
and traditional XBRL format have more robust data validation 
capabilities, which will help to ensure better data quality for 
investors. Inline XBRL also does not suffer from possible data quality 
discrepancies that may occur from filers rekeying the information from 
their cover page for submission in XBRL or XML.\357\
---------------------------------------------------------------------------

    \357\ Registrants that use Inline XBRL would incur costs to 
switch to a newer technology, if such technology became available. 
Nevertheless, based on our experience with the Inline XBRL voluntary 
filing program--when filers switched from XBRL to Inline XBRL--we 
believe any such switching costs likely would be minimal. See Inline 
XBRL Adopting Release, supra note 258.
---------------------------------------------------------------------------

3. Amendments for Additional Disclosure With Minimal Additional Costs 
to Registrants
    The following amendments are expected to impose only limited 
compliance costs on registrants:
     Incorporation by Reference--amendment will require 
hyperlinks internal to EDGAR for documents incorporated by 
reference.\358\
---------------------------------------------------------------------------

    \358\ See supra Section II.B.6.b.ii. See infra Section 
VII.C.3.b. for a discussion of the effect on paperwork burdens as a 
result of this amendment.
---------------------------------------------------------------------------

     Item 501(b)(4)--amendment will require disclosure on the 
prospectus cover page of any national securities exchange where the 
securities being offered are listed or, if not listed, the principal 
United States market or markets for the securities being offered and 
the corresponding trading symbols, if any.\359\
---------------------------------------------------------------------------

    \359\ See supra Section II.B.4.a.iii. See infra Section 
VII.C.2.a. for a discussion of the estimated increase in paperwork 
burden as a result of the amendments to Item 501(b)(4).
---------------------------------------------------------------------------

    Requiring registrants to include hyperlinks to information that is 
incorporated by reference can improve the readability and navigability 
of disclosure documents by allowing users to be taken directly to the 
incorporated information by clicking on a link rather than having to 
locate the information on EDGAR. Although requiring the inclusion of 
hyperlinks and the updating of inaccurate hyperlinks for incorporated 
information will impose an additional compliance burden on 
registrants,\360\ we do not expect this burden to be significant given 
that hyperlinks are relatively easy to implement and involve minimal 
cost and because Commission rules already require registrants to be 
familiar with hyperlinking.\361\
---------------------------------------------------------------------------

    \360\ See infra Section II.B.6.b.ii for a discussion of 
hyperlinking requirements and the requirements to file an amendment 
to a document to correct an inaccurate hyperlink.
    \361\ See Exhibit Hyperlinks Adopting Release, supra note 10.
---------------------------------------------------------------------------

    In the case of Item 501(b)(4), expanding the existing requirements 
for trading market disclosure to encompass information about markets 
that are not ``national securities exchanges'' will benefit investors 
by helping them to better assess their trading costs. The disclosure 
will impose some additional disclosure costs on registrants. However, 
we do not expect these costs to be significant given that registrants 
should have ready access to this information. In this regard, we note 
that the required disclosure will be limited to the principal United 
States market or markets where the registrant, through the engagement 
of a registered broker-dealer, has actively sought and achieved 
quotation.

F. Economic Analysis of HTML and Hyperlinking Requirements of Forms 
Under the Investment Company Act

    As discussed above, we are adopting HTML and hyperlinks 
requirements for filers of certain forms under the Investment Company 
Act.\362\ Broadly speaking, we believe the amendments will reduce 
search costs for investors. In particular, we believe that exhibit 
hyperlinks will help investors and other users to access a particular 
exhibit more efficiently as they will not need to search within the 
filing or through different filings made over time to locate the 
exhibit. Requiring exhibit hyperlinks may make it easier for investors 
and other users to find and access a particular exhibit that was 
originally filed with a previous filing.
---------------------------------------------------------------------------

    \362\ See supra Sections II.B.6.b.ii and II.B.7.b.
---------------------------------------------------------------------------

    To the extent that hyperlinks ease the navigation process for 
investors and other users, hyperlinks may also facilitate a more 
thorough review of a registrant's registration statements, 
applications, and reports and encourage more effective monitoring over 
time. The potential reduction of search costs and the enhanced ability 
of investors to review a registrant's disclosure may result in more 
informed investment and voting decisions, potentially enhancing 
allocative efficiency, and capital formation by registrants.
    We expect that hyperlinks will be more beneficial in reducing 
search costs in the case of exhibits incorporated by reference than in 
the case of exhibits filed with the filing. In particular, we expect 
these benefits to be most pronounced in the case of incorporation by 
reference from a filing that was not recently filed because more recent 
filings are displayed first on the EDGAR search results page. Further, 
we expect hyperlinks will have greater benefits in the case of 
registrants that submit more filings.

[[Page 12708]]

    As a result of the amendments, we expect that both HTML and ASCII 
registrants will incur compliance costs to include hyperlinks in their 
exhibit indexes. While the average cost itself of inserting a hyperlink 
is minimal, the total hyperlinking costs for registrants will be a 
function of two main factors: (1) How many registration statements, 
applications and reports a registrant files that require an exhibit 
index; and (2) the number of exhibits filed or incorporated by 
reference in the filing.\363\
---------------------------------------------------------------------------

    \363\ See infra Section VII.C.2.c. for a discussion of the 
estimated increase in paperwork burden as a result of the 
requirements related to HTML and hyperlinks.
---------------------------------------------------------------------------

    Filers reporting in ASCII will incur costs to switch to HTML, in 
addition to the costs of including hyperlinks in their exhibit indexes. 
As Table 2 above shows, during calendar year 2018, approximately 10% of 
the filings that will be affected by the amendments were filed in 
ASCII. The limited use of ASCII indicates that the final amendments 
will affect only a limited number of registrants on a one-time basis. 
While the registrants that file forms in ASCII that will be affected by 
the amendment to require HTML are primarily small entities, we expect 
that the costs of switching to HTML will not be significant because the 
cost of software with built-in HTML and hyperlink features is minimal. 
In addition, the costs associated with the HTML and hyperlinking 
requirements will be mitigated by the adoption of a transition period 
that is intended to provide investment company registrants time to 
prepare filings to include hyperlinks and mitigate the cost burdens 
related to switching over to HTML format.\364\
---------------------------------------------------------------------------

    \364\ See supra Section V.
---------------------------------------------------------------------------

    Overall, given the modest costs involved, we do not expect that the 
amendments will have significant competitive effects for registrants.

VII. Paperwork Reduction Act

A. Background

    Certain provisions of our rules and forms that would be affected by 
the amendments contain ``collection of information'' requirements 
within the meaning of the Paperwork Reduction Act of 1995 
(``PRA'').\365\ We published a notice requesting comment on changes to 
these collection of information requirements in the Proposing Release 
and have submitted these requirements to the Office of Management and 
Budget (``OMB'') for review in accordance with the PRA.\366\ The hours 
and costs associated with preparing and filing the forms and reports 
constitute reporting and cost burdens imposed by each collection of 
information. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information requirement unless 
it displays a currently valid OMB control number. Compliance with the 
information collections is mandatory. Responses to the information 
collections are not kept confidential and there is no mandatory 
retention period for the information disclosed. The titles for the 
collections of information are:
---------------------------------------------------------------------------

    \365\ 44 U.S.C. 3501 et seq.
    \366\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
---------------------------------------------------------------------------

    ``Regulation S-K'' (OMB Control No. 3235-0071); \367\
---------------------------------------------------------------------------

    \367\ The paperwork burdens for Regulation S-K, Regulation S-T, 
Regulation C and Regulation 12B are imposed through the forms that 
are subject to the requirements in these regulations and are 
reflected in the analysis of those forms. To avoid a PRA inventory 
reflecting duplicative burdens and for administrative convenience, 
we assign a one-hour burden to each of these regulations.
---------------------------------------------------------------------------

    ``Regulation S-T'' (OMB Control No. 3235-0424);
    ``Regulation 12B'' (OMB Control No. 3235-0062);
    ``Regulation C'' (OMB Control No. 3235-0074);
    ``Family of rules under section 8(b) of the Investment Company Act 
of 1940'' (OMB Control No. 3235-0176);
    ``Form S-1'' (OMB Control No. 3235-0065);
    ``Form S-3'' (OMB Control No. 3235-0073);
    ``Form S-4'' (OMB Control No. 3235-0324);
    ``Form S-6'' (OMB Control No. 3235-0184);
    ``Form S-11'' (OMB Control No. 3235-0067);
    ``Form N-14'' (OMB Control No. 3235-0336);
    ``Form F-1'' (OMB Control No. 3235-0258);
    ``Form F-3'' (OMB Control No. 3235-0256);
    ``Form F-4'' (OMB Control No. 3235-0325);
    ``Form F-7'' (OMB Control No. 3235-0325);
    ``Form F-8'' (OMB Control No. 3235-0378);
    ``Form F-80'' (OMB Control No. 3235-0404);
    ``Form F-10'' (OMB Control No. 3235-0380);
    ``Form SF-1'' (OMB Control No. 3235-0707);
    ``Form SF-3'' (OMB Control No. 3235-0690);
    ``Form 10'' (OMB Control No. 3235-0064);
    ``Form 20-F'' (OMB Control No. 3235-0288);
    ``Form 40-F'' (OMB Control No. 3235-0381);
    ``Form 10-K'' (OMB Control No. 3235-0063);
    ``Form 10-Q'' (OMB Control No. 3235-0070);
    ``Form 8-A'' (OMB Control No. 3235-0056);
    ``Form 8-K'' (OMB Control No. 3235-0060);
    ``Form 10-D'' (OMB Control No. 3235-0604);
    ``Schedule 14A'' (OMB Control No. 3235-0059);
    ``Schedule 14C'' (OMB Control No. 3235-0057);
    ``Form N-1A'' (OMB Control No. 3235-0307);
    ``Form N-2'' (OMB Control No. 3235-0026);
    ``Form N-3'' (OMB Control No. 3235-0316);
    ``Form N-4'' (OMB Control No. 3235-0318);
    ``Form N-5'' (OMB Control. No. 3235-0169);
    ``Form N-6'' (OMB Control No. 3235-0503);
    ``Form N-8B-2'' (OMB Control No. 3235-0186); and
    ``Form N-CSR'' (OMB Control No. 3235-0570).
    The forms, reports, and regulations listed above were adopted under 
the Securities Act, the Exchange Act, and/or the Investment Company 
Act. The regulations, schedules, and forms set forth the disclosure 
requirements for registration statements, periodic and current reports, 
distribution reports and proxy and information statements filed by 
registrants to help investors make informed investment and voting 
decisions. Other forms and reports are filed by entities regulated by 
the Investment Company Act in connection with the Commission's 
oversight of these entities.
    As described in more detail above, we are adopting amendments to 
modernize and simplify certain disclosure requirements in Regulation S-
K and related rules and forms in a manner that reduces the costs and 
burdens on registrants while continuing to provide all material 
information to investors. The amendments are also intended to improve 
the readability and navigability of the Commission's disclosure 
documents and discourage repetition and disclosure of immaterial 
information. In addition, we are adopting parallel amendments to 
several rules and forms applicable to investment companies and 
investment advisers to provide for a consistent set of incorporation by 
reference and hyperlinking rules for these entities, including 
amendments that will require

[[Page 12709]]

certain investment company filings to be submitted in HTML format.

B. Summary of Comment Letters and Revisions to PRA Estimates

    In the Proposing Release, the Commission requested comment on the 
PRA burden hour and cost estimates and the analysis used to derive such 
estimates. We did not receive any comments that directly addressed the 
PRA analysis of the proposed amendments.\368\
---------------------------------------------------------------------------

    \368\ One commenter referenced the estimated increase of 0.5 
hours to the paperwork burden associated with Form 10-K and Form 20-
F expected to result from new Item 601(b)(4)(iv), but did not 
comment on the underlying analysis. See letter from Davis Polk.
---------------------------------------------------------------------------

    As discussed, we have made some changes to the proposed amendments 
as a result of comments received, but we do not expect any of those 
changes to meaningfully impact our assessment of the compliance burdens 
for purposes of the PRA. Accordingly, we have not revised the estimates 
from the Proposing Release of each amendment's impact on the per hour 
burden for each affected form. However, we have modified the overall 
burden estimates for each form to reflect the most current collections 
of information data from OMB and updated data on confidential treatment 
requests for the Commission's most recently completed fiscal year.

C. Summary of the Amendments' Impact on Collections of Information

    In this section, we summarize the amendments and their general 
impact on the paperwork burden associated with the forms listed above 
in Section V.A. In Section V.D. below, we provide revised burden 
estimates for each form.
1. Amendments Expected To Decrease Burdens
a. Description of Property (Item 102)
    The amendments to Item 102 of Regulation S-K make clarifying 
changes to the disclosure requirements of that item, including 
specifying that a description of property is only required to the 
extent physical properties are material to the registrant.\369\ The 
staff has observed that the current disclosure standard may lead 
registrants, in some instances, to devote resources to providing 
disclosure about properties that are not material. Although the 
amendments to Item 102 are expected to help registrants avoid 
unnecessary disclosure, the amendments clarify, but do not reduce, 
existing requirements and therefore we do not believe they would 
significantly affect the paperwork burden associated with affected 
forms. Accordingly, we estimate that the paperwork burden will be 
reduced by 0.5 hours for each form affected by the amendments. We 
expect that Form S-1, Form S-4, Form 10, and Form 10-K will be affected 
by this amendment.
---------------------------------------------------------------------------

    \369\ See supra Section II.B.1.
---------------------------------------------------------------------------

b. Management's Discussion and Analysis (Item 303 of S-K and Item 5 of 
Form 20-F)
    The amendments to Item 303 and Item 5 of Form 20-F allow 
registrants, in some circumstances, to omit discussion of the earliest 
year from the MD&A.\370\ The amendments also eliminate the reference to 
five-year selected financial data in Instruction 1 to Item 303(a) and 
clarify that registrants may use their discretion in selecting the best 
format for their MD&A presentation.\371\ The combined effects of these 
amendments will be to eliminate the burden on registrants to prepare 
and provide repetitive disclosure that is not material. The amendments 
are of particular significance because MD&A is typically one of the 
most labor-intensive sections of any form in which it is required. We 
anticipate that the amendments to simplify and clarify the MD&A 
requirements will reduce the paperwork burden associated with affected 
forms.
---------------------------------------------------------------------------

    \370\ See supra Section II.A.1.
    \371\ See id.
---------------------------------------------------------------------------

    We estimate that the aggregate impact of the amendments will be a 
four hour reduction in paperwork burden each time Item 303 information 
is required to be included in a form. We estimate that the aggregate 
impact of the corresponding amendments to Form 20-F will result in a 
four hour reduction each time information under Item 5 of that form is 
required. We expect that Form S-1, Form S-4, Form S-11, Form F-1, Form 
F-4, Form 10, Form 10-K, Form 10-Q, and Form 20-F will be affected by 
this amendment.
c. Directors, Executive Officers, Promoters and Control Persons (Item 
401, Item 405 and Item 407)
    The amendments to Item 401, Item 405, and Item 407 of Regulation S-
K simplify and modernize our executive officer, Section 16(a) 
compliance and corporate governance disclosure requirements. The 
amendments to Item 401 simplify the rules for determining what 
disclosure about executive officers may be included in Form 10-K when 
other disclosure in Part III of Form 10-K will be incorporated by 
reference to the registrant's definitive proxy or information 
statement.\372\ The amendments to Item 405 allow registrants to rely on 
a review of Section 16 reports submitted on EDGAR rather than reports 
furnished to the registrant when providing disclosure about Section 
16(a) compliance.\373\ Finally, the amendments to Item 407 clarify the 
applicable auditing standard and the disclosure requirements for the 
compensation committees of EGCs.\374\
---------------------------------------------------------------------------

    \372\ See supra Section II.B.2(a).
    \373\ See supra Section II.B.2(b).
    \374\ See supra Section II.B.3.
---------------------------------------------------------------------------

    The amendments to Item 401, Item 405, and Item 407 clarify and 
streamline existing disclosure requirements, and in that respect are 
expected to marginally reduce compliance costs for registrants. We 
estimate that the amendments will reduce the paperwork burden for each 
affected form by 0.5 hours. We expect that Form S-1, Form S-4, Form S-
11, Form 8-K, Form 10, Form 10-K, and Form 10-Q will be affected by 
this amendment.
d. Exhibits
i. Information Omitted From Exhibits
    We are adopting several amendments to Item 601 of Regulation S-K, 
as well as the exhibit requirements of certain of the Commission's 
disclosure forms to which Item 601 does not apply.\375\ This includes 
exhibits required by certain of the Commission's disclosure forms 
related to investment companies.\376\ Many of these amendments affect 
provisions related to the Commission's confidential treatment 
process.\377\ As discussed in more detail below, we expect the annual 
internal burden hours and professional costs devoted to the 
confidential treatment process to decrease each time exhibit 
information is omitted or redacted in reliance on the amendments.
---------------------------------------------------------------------------

    \375\ See supra Sections II.A.2. and II.B.5.
    \376\ See id.
    \377\ Id.
---------------------------------------------------------------------------

(1) Confidential Information in Material Contracts
    The amendments will, in most cases, eliminate the need for 
registrants to submit a CTR when they redact information from material 
contracts in reliance on the FOIA exemption for information that likely 
would result in competitive harm to the registrant if disclosed.\378\ 
Accordingly, our assumption is that implementation of the amendments 
will significantly reduce the number and corresponding costs of 
confidential treatment requests received by the Commission. However, it 
is difficult to predict with certainty the magnitude of the reduction 
because, as noted, the Commission and its staff will retain the 
discretion to comment on

[[Page 12710]]

a registrant's redactions from its exhibits and, where appropriate, 
request an analysis similar to the competitive harm analysis that is 
currently required as part of the existing CTR application 
process.\379\ If such a request is made, a registrant would incur costs 
to prepare and provide this analysis that may be on par with the costs 
typically associated with the existing CTR application process.\380\ 
Although such costs would somewhat offset the reduction in burden 
resulting from the amendments, we believe that, in the aggregate, the 
amendments will nevertheless result in significant savings in time and 
money.
---------------------------------------------------------------------------

    \378\ 5 U.S.C. 552(b)(4). See supra note 45.
    \379\ See supra Section II.A.2.
    \380\ We recognize that there will remain some burden associated 
with preparing redacted exhibits even if a CTR application is not 
required (for example, a registrant's determination of which terms 
in a material contract to redact involves time and effort, 
particularly if the registrant must negotiate with its counterparty 
to the contract regarding which terms to redact and which to make 
public; there may also be additional costs if outside legal advisors 
are involved). For that reason, when calculating the expected 
reduction in PRA burden, we did not make any adjustments to the 
burden associated with preparing redacted exhibits.
---------------------------------------------------------------------------

    For purposes of the PRA, we consider the time and cost to prepare 
and submit a confidential treatment request to be part of the paperwork 
burden associated with preparing and filing the related disclosure 
form. We estimate that the elimination of the need to prepare and 
submit a confidential treatment request in reliance on these amendments 
will reduce internal burden hours by ten hours per request for an 
estimated 20% of registrants that prepare the confidential treatment 
request without relying on outside counsel, and reduce external costs 
by $4,000 per request \381\ for an estimated 80% of registrants that 
retain outside counsel for this work.
---------------------------------------------------------------------------

    \381\ The $4,000 cost estimate is calculated as follows: 10 
hours x $400 per hour of outside counsel work = $4,000.
---------------------------------------------------------------------------

    In fiscal year 2018, over 90% of the CTR applications that were 
received by the Commission related to material contracts filed as 
exhibits requesting confidential treatment on the basis of FOIA 
exemption (b)(4),\382\ in the following proportions: 39% were filed for 
Form 10-Q, 22% for Form 10-K, 12% for Form 8-K, 12% for Form S-1, 0% 
for Form S-3, 1% for Form S-4, 0% for Form S-11, 3% for Form 20-F, 1% 
for Form 10, 2% for Form F-1, 0% for Form F-3, and 0% for Form F-4. We 
are therefore ascribing changes in paperwork burdens and costs to these 
forms in these same proportions.
---------------------------------------------------------------------------

    \382\ See supra note 378. Less than 1% of the CTR applications 
that were received in fiscal year 2018 were related to exhibits 
filed with Investment Company Act forms. Accordingly, while there 
will be some reduction in burden associated with the Investment 
Company Act forms, we do not believe the reduction will be 
significant enough to warrant an adjustment to our burden estimates.
---------------------------------------------------------------------------

(2) Schedules and Attachments to Exhibits
    The adoption of new Item 601(a)(5) in Regulation S-K \383\ will 
permit registrants to omit entire schedules and attachments to exhibits 
required by Item 601, so long as the omitted schedules and attachments 
contain no material information and the omitted information is not 
otherwise disclosed in the exhibit or the disclosure document. The 
threshold for omission under new Item 601(a)(5) is lower than for 
omission under the amendment to Item 601(b)(10) discussed above, 
because the omission of schedules and attachments to exhibits under 
Item 601(a)(5) is not conditioned on the risk of the registrant 
suffering competitive harm if the information were to be disclosed. In 
addition to new Item 601(a)(5), we are adopting analogous amendments to 
Item 1016 of Regulation M-A,\384\ Form 20-F,\385\ Item 1.01 of Form 8-
K,\386\ certain investment company registration forms,\387\ and Form N-
CSR,\388\ thereby allowing registrants to omit immaterial schedules and 
attachments to exhibits required by those other rules and forms.
---------------------------------------------------------------------------

    \383\ See supra Section II.B.5.b.i.
    \384\ See supra Section II.B.5.b.i., discussing the amended 
instructions to Item 1016 of Regulation M-A.
    \385\ See the Instructions to Exhibits in Form 20-F, as amended.
    \386\ See new Instruction 4 to Item 1.01 of Form 8-K.
    \387\ These are exhibits filed pursuant to Forms N-1A, N-2, N-3, 
N-4, N-5, N-6, N-14, N-8B-2, and S-6.
    \388\ See supra Section II.B.5.b.i.
---------------------------------------------------------------------------

    For purposes of the Paperwork Reduction Act, we assume these 
amendments will result in some reduction in burden associated with the 
omission of immaterial schedules and attachments to exhibits, where 
applicable. In order to calculate the impact of these amendments, we 
considered as a baseline all exhibits with schedules and attachments 
that are currently filed under Item 601 of Regulation S-K, Item 1016 of 
Regulation M-A, Form 20-F, Item 1.01 of Form 8-K, and applicable 
investment company forms.\389\ We did not include in this total, 
however, exhibits filed under Item 601(b)(2) of Regulation S-K, as that 
Item already permits registrants to omit immaterial schedules and 
attachments to required exhibits.
---------------------------------------------------------------------------

    \389\ Id.
---------------------------------------------------------------------------

    We then sought to estimate the percentage of all such schedules and 
attachments that contain no material information and for which the 
registrant has not otherwise disclosed such information elsewhere in 
the exhibit or disclosure filing. However, we are unable to reliably 
estimate the volume of schedules and attachments that could be omitted 
under these amendments, and therefore how many potential confidential 
treatment requests would be unnecessary, because this would depend, in 
part, on whether the schedules contain material information. As a 
result, there is no practicable way for us to determine with confidence 
which information in those attachments and schedules is immaterial and 
therefore eligible to be omitted. In any event, we believe the impact 
of the amendments on registrants' paperwork burden will be relatively 
minor, particularly in comparison to the impact of our amendments to 
601(b)(10)(iv) and parallel amendments to Form 20-F, Item 1.01 of Form 
8-K, and various investment company forms. Accordingly, while there 
will be some reduction in burden associated with these amendments, we 
do not believe the reduction will be significant enough to warrant an 
adjustment to our burden estimates. Consistent with the view stated in 
the Proposing Release, we believe this approach to be advisable in 
order to avoid overestimating the decrease in paperwork burden.
(3) Personally Identifiable Information
    The adoption of new Item 601(a)(6) in Regulation S-K will permit 
registrants to omit PII from their exhibits without submitting a 
confidential treatment request.\390\ In addition, we are adopting 
analogous amendments to Item 1016 of Regulation M-A,\391\ Form 20-
F,\392\ Item 1.01 of Form 8-K,\393\ certain investment company 
registration forms,\394\ and Form N-CSR.\395\
---------------------------------------------------------------------------

    \390\ See supra Section II.B.5.b.ii.
    \391\ See supra Section II.B.5.b.i., discussing the amended 
instructions to Item 1016 of Regulation M-A.
    \392\ See the Instructions to Exhibits in Form 20-F, as amended.
    \393\ See new Instruction 4 to Item 1.01 of Form 8-K.
    \394\ See supra note 387.
    \395\ See supra Section II.B.5.b.ii.
---------------------------------------------------------------------------

    For purposes of the Paperwork Reduction Act, we assume the 
amendments will result in some incremental reduction in burden, 
although we do not believe the reduction will be significant enough to 
warrant an additional adjustment to our burden estimates.
    The exemption in FOIA that corresponds most closely to PII is FOIA 
Exemption 6, which covers information that, if disclosed, ``would 
constitute a clearly unwarranted invasion of

[[Page 12711]]

personal privacy.'' \396\ In recent years, the Commission has issued 
very few confidential treatment orders in reliance on FOIA Exemption 6. 
For example, in fiscal year 2018, only 14 confidential treatment 
requests were received by the Commission, out of which 10 were granted 
for documents containing PII. Presumably, most registrants are 
currently taking advantage of the existing staff position that PII may 
be omitted without filing a confidential treatment request. As a 
result, we do not expect that codifying this accommodation will 
significantly alter existing disclosure practices.
---------------------------------------------------------------------------

    \396\ 5 U.S.C. 552(b)(6).
---------------------------------------------------------------------------

ii. Material Contracts Exhibits (Item 601(b)(10)(i))
    The amendment to Item 601(b)(10)(i) limits the two-year look back 
filing requirement for material contracts to newly reporting 
registrants.\397\ Registrants that are not newly reporting registrants 
will not be required to comply with this filing requirement and thus 
will incur reduced compliance burdens. However, we believe that the 
current burden associated with the two-year look back requirement is 
minimal. Therefore, the amendments are not expected to result in a 
significant reduction of the paperwork burden associated with the 
affected forms. We estimate that the paperwork burden will be reduced 
by 0.5 hours for each form affected by the amendment. We expect that 
Form 10, Form 10-K, Form 20-F, Form S-1, Form S-4, Form F-1, Form F-3, 
Form F-4, Form S-11, and Form SF-1 will be affected by this amendment.
---------------------------------------------------------------------------

    \397\ See supra Section II.B.5.c.
---------------------------------------------------------------------------

2. Amendments Expected To Increase Burdens
a. Registration Statement and Prospectus Provisions (Item 501(b))
    We are amending Item 501(b) to require disclosure on the cover page 
of the prospectus of any national securities exchange where the 
securities being offered are listed or, if not listed, the principal 
United States market or markets for the securities being offered and 
the corresponding trading symbols, if any.\398\ The amendments will 
incrementally increase the compliance burden on registrants by 
requiring them to provide disclosure about trading markets other than 
national exchanges. Because we are limiting the incremental disclosure 
to those trading markets where the registrant, through the engagement 
of a registered broker-dealer, has actively sought and achieved 
quotation, we believe this information should be readily available to 
registrants and impose only a minimal paperwork burden.
---------------------------------------------------------------------------

    \398\ See supra Section II.B.4.a.iii.
---------------------------------------------------------------------------

    Accordingly, we estimate that the amendment will slightly increase 
the paperwork burden associated with each affected form by 0.25 hours. 
We expect that Form S-1, Form S-3, Form S-4, Form S-11, Form F-1, Form 
F-3, Form F-4, Form SF-1, and Form SF-3 will be affected by this 
amendment.
b. Exhibits (Item 601(b)(4)(vi))
    New Item 601(b)(4)(vi) requires registrants to file an Item 202 
description of their Exchange Act registered securities as an exhibit 
to Form 10-K.\399\ Similarly, we are amending the instructions to 
exhibits in Form 20-F to provide a parallel requirement.\400\
---------------------------------------------------------------------------

    \399\ See supra Section II.B.5.a.
    \400\ See id.
---------------------------------------------------------------------------

    We expect that the new requirements under Item 601(b)(4)(vi) will 
slightly increase the paperwork burden on registrants because 
registrants will be required to provide a description of registered 
securities annually. However, registrants will be able to incorporate 
by reference and hyperlink to prior disclosure if the information 
called for by Item 202 remains unchanged from prior years, thus 
mitigating any increase in the anticipated burden. Accordingly, we 
estimate the amendments will increase the paperwork burden associated 
with Form 10-K and Form 20-F by 0.5 hours.
c. Manner of Delivery
    New Rule 406, new Item 601(b)(104), new paragraph 104 to 
``Instructions as to Exhibits'' of Form 20-F and new Instruction 17 to 
``Information To Be Filed on this Form'' of Form 40-F require 
registrants to tag every data point on the cover pages of Form 10-K, 
Form 10-Q, Form 8-K, Form 20-F, and Form 40-F using Inline XBRL, 
including certain new data points added pursuant to the 
amendments.\401\ Although expanded data tagging will result in an 
increase in the burden associated with related forms, we note that 
registrants are already required to tag certain cover page information 
as well as financial statement information. For this reason, we believe 
most registrants already have developed the internal resources or 
engaged outside professionals to assist them in complying with existing 
data tagging requirements.\402\ In this respect, we do not believe the 
cover page tagging requirement will result in significant additional 
burdens for registrants.
---------------------------------------------------------------------------

    \401\ See supra Section II.B.7.a.
    \402\ As discussed above, the Commission recently adopted rules 
requiring operating companies that are currently required to submit 
financial statement information in XBRL and open-end management 
investment companies that are currently required to submit risk/
return summary XBRL data to transition to Inline XBRL on a phased-in 
basis. The date of mandatory compliance with the Inline XBRL rules 
depends on the type of filer. See Inline XBRL Adopting Release, 
supra note 258. Because the Commission estimated the burden 
associated with the transition to Inline XBRL in that release, for 
purposes of this PRA analysis we only consider the incremental 
burden corresponding to our adoption of the amendments discussed in 
this release.
---------------------------------------------------------------------------

    Accordingly, we estimate that the requirement to tag additional 
cover page items will impose an increased paperwork burden of one hour 
for each affected form. We expect that Form 10-K, Form 10-Q, Form 8-K, 
Form 20-F, and Form 40-F will be affected by the new rules and form 
amendments.
    As described in more detail above, we are adopting amendments to 
Regulation S-T and certain of our forms used by investment companies to 
require investment companies to submit filings on those forms in HTML 
format and to include a hyperlink from each exhibit identified in the 
exhibit index of such forms. We anticipate that these amendments will 
increase the burdens and costs for investment companies to prepare and 
file the affected forms, but we believe the associated burdens will be 
small as an investment company preparing a filing, will already be 
preparing the exhibits and exhibit index for such filing and will have 
readily available all of the information necessary to create a 
hyperlink. For purposes of the PRA, we assumed that the average burden 
hours of requiring exhibit hyperlinks will vary based on the number of 
exhibits that are included with a filing. Based on the average and 
median number of exhibits shown in Table 3 above and the staff's 
experience, we estimate that the average burden for an investment 
company to hyperlink to exhibits will be one hour per response for each 
of the affected forms.
3. Amendments Not Expected to Meaningfully Affect Burdens
a. Registration Statement and Prospectus Provisions (Item 501(b), Item 
503(c), Item 508 and Item 512)
    The amendments to Item 501(b)(1), Item 501(b)(3), and Item 
501(b)(10) will, respectively, streamline company name disclosure 
requirements, explicitly allow registrants to include a clear statement 
on the cover page of the prospectus that the offering price will be 
determined by a particular method or formula (and require a cross 
reference to the offering price method or formula

[[Page 12712]]

disclosure), and permit registrants to exclude some portion of the 
legend relating to state law in the prospectus for an offering that is 
not prohibited by state blue sky law.\403\ The amendments to Item 
503(c) relocate the current risk factor disclosure requirements to 
Subpart 100 and eliminate the risk factor examples without 
substantively changing the underlying disclosure requirements.\404\ The 
amendment to Item 508 defines the term ``sub-underwriter'' to clarify 
one aspect of the required disclosure about the plan of distribution 
for a registered securities offering.\405\ The amendments to Item 512 
eliminate certain undertakings that are redundant or obsolete.\406\
---------------------------------------------------------------------------

    \403\ See supra Section II.B.4.a. The amendments also streamline 
501(b) by combining paragraphs (b)(10) and (b)(11) without 
substantive change.
    \404\ See supra Section II.B.4.b.
    \405\ See supra Section II.B.4.c.
    \406\ See supra Section II.B.4.d.
---------------------------------------------------------------------------

    We believe these amendments will not meaningfully affect the 
paperwork burden associated with the affected forms because these 
amendments modernize and clarify certain requirements and do not 
substantively change the required disclosure. Therefore, we are not 
making any adjustments to the paperwork burden of affected forms due to 
these amendments.
b. Incorporation by Reference
    We are adopting amendments to simplify and modernize the rules and 
forms governing incorporation by reference. Under the amendments, 
certain existing requirements for incorporation by reference have been 
consolidated into Rule 411, Rule 12b-23, Rule 0-4, and Rule 0-6.\407\ 
The amendments also eliminate several redundant or outdated 
requirements, including the rescission of rules under the Investment 
Company Act.\408\ In addition, we are adopting amendments to our rules 
and forms that prohibit incorporation by reference or cross-
referencing, in the financial statements, to information outside of the 
financial statements.\409\ These amendments are expected to decrease 
reporting burdens associated with incorporating information by 
reference in Commission filings, leading to an estimated 0.5 hour 
reduction in paperwork burden per affected form. However, this decrease 
will be offset by an estimated 0.5 hour increase in paperwork burden 
per affected form due to the amendments requiring registrants to 
include hyperlinks to information incorporated by reference when that 
information is available on EDGAR.\410\ Accordingly, we are not making 
any adjustments to the paperwork burden of affected forms due to these 
amendments.
---------------------------------------------------------------------------

    \407\ See supra Section II.B.6.
    \408\ Id.
    \409\ See supra Section II.A.3.
    \410\ See supra Section II.B.6.b.ii.
---------------------------------------------------------------------------

D. Burden and Cost Estimates to the Amendments

    As discussed below, we expect that the amendments will, in the 
aggregate, reduce the paperwork burden on respondents. The change in 
burden, however, will differ depending on the form because not all of 
the amendments apply to each form.
    These estimates represent the average burden for all registrants, 
both large and small. In deriving our estimates, we recognize that the 
burdens will likely vary among individual registrants based on a number 
of factors, including the nature of their business.
    The burden estimates were calculated by multiplying the estimated 
number of annual responses by the estimated average amount of time it 
would take a registrant to prepare and review disclosure required under 
the amendments. The portion of the burden carried by outside 
professionals is reflected as a cost, while the portion of the burden 
carried by the registrant internally is reflected in hours.
1. Form 10-K and Form 10-Q; Schedule 14A and Schedule 14C
    The amendments are estimated to reduce the paperwork burdens 
associated with Form 10-K \411\ and Form 10-Q as well as Schedule 14A 
and Schedule 14C.\412\ For purposes of the PRA, we estimate that 75% of 
the burden of preparation for these Exchange Act reports is carried by 
the registrant internally and that 25% of the burden of preparation is 
carried by outside professionals retained by the company at an average 
cost of $400 per hour.\413\
---------------------------------------------------------------------------

    \411\ Schedules 14A and 14C require disclosure under Subpart 400 
of Regulation S-K. This disclosure is often incorporated, in 
relevant part, into Part III of a registrant's Form 10-K. Therefore, 
our burden estimates for Form 10-K contemplate that Part III 
disclosure may be incorporated by reference to Schedules 14A or 14C.
    \412\ Schedule 14A requires that registrants, under certain 
circumstances, provide disclosure under Item 303. Our burden 
estimate for Schedule 14A assumes that registrants will duplicate 
the disclosure provided under this Item in the most recent Form 10-K 
and/or Form 10-Q.
    \413\ We recognize that the costs of retaining outside 
professionals may vary depending on the nature of the professional 
services, but for purposes of this PRA analysis we estimate that 
such costs will be an average of $400 per hour. This estimate is 
based on consultations with several registrants, law firms and other 
persons who regularly assist registrants in preparing and filing 
reports with the Commission.
---------------------------------------------------------------------------

    Table 4 below illustrates the total annual compliance burden, in 
hours and in costs,\414\ of the affected collections of information 
resulting from the amendments.\415\
---------------------------------------------------------------------------

    \414\ For convenience, the estimated hour and cost burdens in 
the tables in this section have been rounded to the nearest whole 
number.
    \415\ The burdens associated with the amendments to the forms 
listed in Table 4, other than the confidential treatment request 
amendments, have been estimated by assuming that 75% of the burden 
is borne by the company and 25% is borne by outside counsel at $400 
per hour. The burdens associated with submitting confidential 
treatment requests in connection with the forms listed in Table 4 
have been estimated by assuming that the average request requires 
approximately ten hours of preparation and that 20% of the burden is 
borne by the company and 80% of the burden is borne by outside 
counsel at $400 per hour.

                                    Table 4--Incremental Paperwork Burden Under the Amendments for Exchange Act Forms
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Estimated
                                          Current annual     number of    Current burden     Change in       Change in       Change in       Change in
                                             responses       affected          hours       burden hours    company hours   professional    professional
                                                             responses                                                         hours           costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-K....................................           8,137           8,137      14,217,344        (31,040)        (21,872)         (9,168)    ($3,667,150)
10-Q....................................          22,907          22,907       3,241,957        (61,777)        (43,853)        (17,924)     (7,169,600)
8-K.....................................         118,387         118,387         685,255         176,170         132,903          43,267      17,306,800
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 12713]]

2. Form S-1, Form S-3, Form S-4, Form F-3, Form F-4, Form SF-1, Form 
SF-3, Form 10, and Form 20-F
    The amendments are estimated to reduce the paperwork burden 
associated with Form S-1, Form S-3, Form S-4, Form S-11, Form F-1, Form 
F-4, Form 10, and Form 20-F. For registration statements on Form 10, 
Form S-1, Form S-3, Form S-4, Form F-1, Form F-3, Form F-4, Form SF-1, 
and Form SF-3, and Exchange Act report Form 20-F, we estimate that 25% 
of the burden of preparation is carried by the company internally and 
that 75% of the burden of preparation is carried by outside 
professionals retained by the company at an average cost of $400 per 
hour.
    Table 5 below illustrates the total annual compliance burden, in 
hours and in costs, of the affected collections of information 
resulting from the amendments.\416\
---------------------------------------------------------------------------

    \416\ The burdens associated with the amendments to the forms 
listed in Table 5, other than the confidential treatment request 
amendments, have been estimated by assuming that 25% of the burden 
is borne by the company and 75% is borne by outside counsel at $400 
per hour. The burdens associated with submitting confidential 
treatment requests in connection with the forms listed in Table 5 
have been estimated by assuming that the average request requires 
approximately ten hours of preparation and that 20% of the burden is 
borne by the company and 80% of the burden is borne by outside 
counsel at $400 per hour.

                                 Table 5--Incremental Paperwork Burden Under the Amendments for Registration Statements
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Estimated
                                          Current annual     number of    Current burden     Change in       Change in       Change in       Change in
                                             reponses        affected          hours       burden hours    company hours   professional    professional
                                                             responses                                                         hours           costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
S-1.....................................             901             901         150,998         (5,670)         (1,348)         (4,322)    ($1,728,725)
S-3.....................................           1,657           1,657         196,930           (414)           (104)           (310)       (124,000)
S-4.....................................             551             551         565,079         (3,033)           (751)         (2,282)       (912,625)
S-11....................................              64              64          12,514           (304)            (76)           (228)        (91,200)
SF-3....................................              71              71          24,548              18               4              13           5,325
F-1.....................................              63              63          26,980           (548)           (123)           (425)       (169,925)
F-3.....................................             112             112           4,467            (28)             (7)            (21)         (8,400)
F-4.....................................              39              39          14,245           (107)            (27)            (80)        (32,175)
10......................................             216             216          11,774           (880)           (217)           (664)       (265,400)
20-F....................................             725             725         480,226         (1,991)           (480)         (1,511)       (604,575)
40-F....................................             132             132          14,187             198              50             148          59,200
--------------------------------------------------------------------------------------------------------------------------------------------------------


       Table 6--Current and Revised Burdens Under the Amendments for Securities Act and Exchange Act Forms
----------------------------------------------------------------------------------------------------------------
                                                 Current burden                        Revised burden
                                     ---------------------------------------------------------------------------
                                       Burden hours (A)      Costs (B)       Burden hours (C)      Costs (D)
----------------------------------------------------------------------------------------------------------------
10-K................................         14,217,344     $1,896,280,869         14,195,472     $1,892,613,719
10-Q................................          3,241,957        432,290,354          3,198,104        425,120,754
8-K.................................            685,255         91,367,630            818,158        108,674,430
S-1.................................            150,998        181,197,300            149,650        179,468,575
S-3.................................            196,930        236,322,036            196,826        236,198,036
S-4.................................            565,079        678,094,704            564,328        677,182,079
S-11................................             12,514         15,016,968             12,438         14,925,768
SF-3................................             24,548         29,457,900             24,552         29,463,225
F-1.................................             26,980         32,375,700             26,857         32,205,775
F-3.................................              4,760          5,712,000              4,753          5,703,600
F-4.................................             14,245         17,093,700             14,218         17,061,525
10..................................             11,774         14,128,888             11,558         13,863,488
20-F................................            480,226        576,270,600            479,746        575,666,025
40-F................................             14,187         17,025,360             14,237         17,084,560
----------------------------------------------------------------------------------------------------------------

3. Form 8-A, Form 10-D, Form 40-F, Form F-7, Form F-8, Form F-10, and 
Form F-80
    The amendments to Form 8-A,\417\ Form 10-D, Form F-7,\418\ Form F-
8,\419\ Form F-10, and Form F-80 \420\ are not expected to meaningfully 
reduce the associated paperwork burden for these forms. Accordingly, we 
have not included a tabular presentation of the impact on the total 
annual compliance burden of these forms as a result of these 
amendments.
---------------------------------------------------------------------------

    \417\ 17 CFR 249.208a.
    \418\ 17 CFR 239.37.
    \419\ 17 CFR 239.38.
    \420\ 17 CFR 239.41.
---------------------------------------------------------------------------

4. Form S-6, Form N-1A, Form N-2, Form N-3, Form N-4, Form N-5, Form N-
6, Form N-14, Form N-8B-2, and Form N-CSR
    The amendments to Regulation S-T that will require investment 
companies filing on Forms S-6, N-1A, N-2, N-3, N-4, N-5, N-6, N-14, N-
8B-2, or N-CSR to submit these documents in HTML format and to include 
a hyperlink to each exhibit identified in the exhibit index of these 
documents are expected to increase the burdens and costs for investment 
companies that prepare and file these registration statements and 
reports. For purposes of the PRA, we estimated the average burden for 
an investment company to hyperlink to exhibits based on the median 
number of exhibits that are filed with an affected form.
    The table below shows the changes in professional costs and burden 
hours from the burden estimates currently approved by OMB and the new 
burden estimates under the amendments. The burden estimates were 
calculated by multiplying the estimated number of

[[Page 12714]]

responses by the estimated average amount of time--one hour--it would 
take an issuer to prepare and review the exhibit hyperlinks. The 
portion of the burden carried by outside professionals is reflected as 
a cost, while the portion of the burden carried by the issuer 
internally is reflected in hours. For purposes of the PRA, we estimate 
that 25% of the burden of preparation is carried by the registrant 
internally and that 75% of the burden of preparation is carried by 
outside professionals retained by the investment company at an average 
cost of $400 per hour.\421\
---------------------------------------------------------------------------

    \421\ We recognize that the costs of retaining outside 
professionals may vary depending on the nature of the professional 
services, but for purposes of this PRA analysis, we estimate that 
such costs would be an average of $400 per hour. These estimates are 
based on our estimates for the parallel requirement for operating 
companies. See Exhibit Hyperlinks Adopting Release, supra note 10, 
at 14139.

                              Table 7--Incremental Paperwork Burden Under the Amendments to Forms for Investment Companies
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Estimated
                                          Current annual     number of    Current burden     Change in       Change in       Change in       Change in
                  Form                     responses (A)     affected          hours       burden hours    company hours   professional    professional
                                                             responses                                                         hours           costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
S-6.....................................           2,498           2,498         106,620           2,498             625           1,874        $749,600
N-1A....................................           6,002           6,002       1,596,749           6,002           1,501           4,502       1,800,800
N-2.....................................             166             166          73,250             166              42             125          50,000
N-3.....................................              20              20           2,500              20               5              15           6,000
N-4.....................................           1,653           1,653         343,117           1,653             413           1,240         496,000
N-5.....................................               1               1             117               1               0               1             400
N-6.....................................             472             472          85,269             472             118             354         141,600
N-14....................................             192             192          97,280             192              48             144          57,600
N-CSR...................................           6,898           6,898         174,085           6,898           1,725           5,174       2,069,600
--------------------------------------------------------------------------------------------------------------------------------------------------------


           Table 8--Current and Revised Burdens Under the Amendments to Forms for Investment Companies
----------------------------------------------------------------------------------------------------------------
                                                          Current burden                  Revised burden
                                                 ---------------------------------------------------------------
                      Form                         Burden hours                    Burden hours
                                                        (A)          Costs (B)          (C)          Costs (D)
----------------------------------------------------------------------------------------------------------------
S-6.............................................         106,620     $67,359,556         107,245     $68,108,956
N-1A............................................       1,596,749     129,338,408       1,598,250     131,139,008
N-2.............................................          73,250       4,668,396          73,292       4,718,196
N-3.............................................           2,500         164,144           2,505         168,944
N-4.............................................         343,117      36,308,889         343,530      36,804,789
N-5.............................................             117          10,000             117          10,400
N-6.............................................          85,269       5,316,892          85,387       5,364,092
N-14............................................          97,280       4,498,000          97,328       4,517,200
N-8B2...........................................              40          40,000              88          40,300
N-CSR...........................................         174,085       3,129,984         175,810       5,199,384
----------------------------------------------------------------------------------------------------------------

VIII. Final Regulatory Flexibility Act Analysis

    This Final Regulatory Flexibility Analysis (``FRFA'') has been 
prepared in accordance with the Regulatory Flexibility Act 
(``RFA'').\422\ It relates to amendments that modernize and simplify 
certain disclosure requirements in Regulation S-K and related rules and 
forms to implement Section 72003 of the FAST Act and provide consistent 
incorporation by reference and hyperlinking requirements in the rules 
and forms applicable to investment companies and investment advisers.
---------------------------------------------------------------------------

    \422\ 5 U.S.C. 601 et seq.
---------------------------------------------------------------------------

A. Need for, and Objectives of, the Amendments

    The purpose of the amendments is to modernize and simplify 
Commission disclosure requirements in a manner that reduces costs and 
burdens on companies while still providing all material information. 
Specifically, the amendments modernize and simplify these disclosure 
requirements by clarifying, consolidating, relocating and eliminating, 
or updating various Commission rules that govern public company 
disclosure. The amendments also modernize the rules by requiring cover 
page data to be tagged in a machine-readable format and requiring 
hyperlinks to be included in some documents filed on EDGAR. The 
amendments largely implement the staff's recommendations in the FAST 
Act Report, as required by Section 72003(d) of the FAST Act. In 
addition, to provide for a consistent set of rules to govern 
incorporation by reference and hyperlinking, the Commission is also 
adopting parallel amendments to several rules and forms applicable to 
investment companies and investment advisers.\423\
---------------------------------------------------------------------------

    \423\ The need for, and objectives of, the final rules are 
discussed in more detail throughout this release, particularly in 
Sections I and II, supra.
---------------------------------------------------------------------------

B. Significant Issues Raised by Public Comments

    In the Proposing Release, the Commission requested comment on any 
aspect of the Initial Regulatory Flexibility Analysis (``IRFA''), 
including how the proposed rule and form amendments can achieve their 
objective while lowering the burden on small entities, the number of 
small entities that would be affected by the proposed rule and form 
amendments, the existence or nature of the potential effects of the 
proposed amendments on small entities discussed in the analysis, and 
how to quantify the effects of the proposed amendments. We did not 
receive comments specifically addressing the IRFA. We did, however, 
receive one comment letter that addressed an aspect of the proposed 
amendments that could potentially affect small entities. Specifically, 
one

[[Page 12715]]

commenter who supported the proposal to permit registrants to redact 
confidential information in some circumstances without submitting a 
confidential treatment request noted the benefits that would accrue in 
particular to smaller reporting companies.\424\ This commenter stated 
that the time and expense involved in preparing requests for 
confidential treatment disproportionately burdens smaller reporting 
companies compared to larger companies because smaller companies have a 
lower threshold for determining whether a contract is material and must 
be publicly filed. In addition, the commenter asserted that the legal 
fees associated with the preparation of a confidential treatment 
request can be ``daunting'' for these companies.\425\
---------------------------------------------------------------------------

    \424\ See letter from Reed Smith.
    \425\ The commenter also mentioned emerging growth biotechnology 
companies undertaking an IPO, which it stated ``are hardest hit by 
the arduous confidential treatment process.'' See id.
---------------------------------------------------------------------------

C. Small Entities Subject to the Amendments

    The amendments will apply to some registrants that are small 
entities. The RFA defines ``small entity'' to mean ``small business,'' 
``small organization,'' or ``small governmental jurisdiction.'' \426\ 
For purposes of the RFA, under our rules, an issuer, other than an 
investment company or an investment adviser, is 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 and is engaged or proposing 
to engage in an offering of securities that does not exceed $5 
million.\427\ An investment company, including a business development 
company,\428\ is considered to be a ``small business'' 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.\429\ An investment adviser generally is a 
small entity if it: (1) Has assets under management having a total 
value of less than $25 million; (2) did not have total assets of $5 
million or more on the last day of the most recent fiscal year; and (3) 
does not control, is not controlled by, and is not under common control 
with another investment adviser that has assets under management of $25 
million or more, or any person (other than a natural person) that had 
total assets of $5 million or more on the last day of its most recent 
fiscal year.\430\
---------------------------------------------------------------------------

    \426\ 5 U.S.C. 601(6).
    \427\ See Securities Act Rule 157 [17 CFR 230.157] and Exchange 
Act Rule 0-10(a) [17 CFR 240.0-10(a)].
    \428\ Business development companies are a category of closed-
end investment company that are not registered under the Investment 
Company Act [15 U.S.C. 80a-2(a)(48) and 80a-53-64].
    \429\ See Investment Company Act Rule 0-10(a) [17 CFR 270.0-
10(a)].
    \430\ See Investment Advisers Act Rule 0-7(a) [17 CFR 275.0-
7(a)].
---------------------------------------------------------------------------

    We estimate that there are 1,171 issuers that file with the 
Commission, other than investment companies and investment advisers, 
that may be considered small entities.\431\ In addition, we estimate 
that, as of June 2018, there were 116 investment companies that would 
be considered small entities.\432\ Finally, we estimate that, as of 
June 2018, there were approximately 618 investment advisers that would 
be considered small entities.\433\
---------------------------------------------------------------------------

    \431\ This estimate is based on staff analysis of issuers, 
excluding co-registrants, with EDGAR filings of Form 10-K, 20-F and 
40-F, or amendments, filed during the calendar year of January 1, 
2018 to December 31st, 2018. Analysis is based on data from XBRL 
filings, Compustat, and Ives Group Audit Analytics. The methodology 
used to estimate the number of small entities builds upon the 
methodology used in the Proposing Release. In the Proposing Release, 
the number of small entities excluded entities that filed Form 40-F 
and amendments to Forms 10-K, 20-F, and 40-F and was based on 
entities with fiscal periods ending between January 31, 2015 and 
January 31, 2016. See Proposing Release, supra note 5, at 7.
    \432\ This estimate is based on staff review of data obtained 
from Morningstar Direct as well as data reported on Forms N-CEN, N-
Q, 10-K and 10-Q filed with the Commission as of June 2018.
    \433\ This estimate is based on Commission-registered investment 
adviser responses to Form ADV, Item 5.F and Item 12.
---------------------------------------------------------------------------

D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    As noted above, the purpose of the amendments is to modernize and 
simplify the Commission's disclosure requirements and provide 
consistent incorporation by reference and hyperlinking rules for 
registrants, including investment companies and investment advisers. 
The majority of the amendments are expected to have a minor effect on 
existing reporting, recordkeeping and other compliance burdens for all 
issuers, including small entities.\434\
---------------------------------------------------------------------------

    \434\ We recognize that the fixed costs of disclosure 
requirements typically constitute a higher percentage of revenues 
for smaller companies than for larger companies. However, the 
benefits of disclosure may be greater for smaller companies because 
information asymmetries between investors and managers of smaller 
companies are typically higher than for larger, more seasoned 
companies with a large following. See, e.g., R. Frankel and X. Li, 
Characteristics of a firm's information environment and the 
information asymmetry between insiders and outsiders, 37 J. Acct. 
Econ. 229, 229-259 (June 2004). See also L. Cheng, S. Liao, and H. 
Zhang, The Commitment Effect versus Information Effect of 
Disclosure--Evidence from Smaller Reporting Companies, 88 Acct. Rev. 
1239, 1239-1263 (2013).
---------------------------------------------------------------------------

    Many of the amendments simplify and streamline existing disclosure 
requirements in ways that are expected to reduce compliance burdens. 
Some of the amendments, like those that impose new data tagging,\435\ 
hyperlinking,\436\ or disclosure requirements \437\ will increase 
compliance costs for registrants, and some of these costs could 
disproportionately affect small entities. For example, smaller 
investment company registrants currently reporting in ASCII are more 
likely to be impacted by the mandated use of HTML. While investment 
companies that file forms in ASCII will incur costs to switch to HTML, 
in addition to the costs of hyperlinking to exhibits, we expect that 
the burden to switch from ASCII to HTML will not be significant because 
the software tools to file in HTML format are now widely used and 
available at a minimal cost. In addition, during calendar year 2018, 
approximately 10% of the forms that will be affected by the amendments 
were filed in ASCII. The limited use of ASCII to file these forms 
indicates that the final amendments will affect only a limited number 
of registrants on a one-time basis.
---------------------------------------------------------------------------

    \435\ See, e.g., supra Section II.B.7.a. (Tagging Cover Page 
Data).
    \436\ See, e.g., supra Section II.B.7.b. (Exhibit Hyperlinks and 
HTML Format for Investment Companies).
    \437\ See, e.g., supra Section II.B.4.a.iii. (Market for the 
Securities (Item 501(b)(4)).
---------------------------------------------------------------------------

    Overall, for the reasons discussed elsewhere in this release, we do 
not expect these additional costs to be significant relative to 
existing compliance costs. Moreover, we expect that the benefits of the 
amended confidential treatment rules accruing to smaller reporting 
companies, who may be disproportionately burdened by the time and 
expense involved in preparing requests for confidential treatment,\438\ 
will offset some of their compliance costs that are estimated to 
increase because of the amendments. The professional skills necessary 
to comply with the amendments include legal, accounting, and 
information technology skills.\439\
---------------------------------------------------------------------------

    \438\ See supra note 424.
    \439\ The final rules are discussed in detail in Section II, 
supra. We discuss the economic impact, including the estimated 
compliance costs and burdens, of the final rules in Section VI 
(Economic Analysis) and Section VII (Paperwork Reduction Act), 
supra.
---------------------------------------------------------------------------

E. Agency Action To Minimize Effect on Small Entities

    The RFA directs us to consider alternatives that would accomplish 
our stated objectives, while minimizing any significant adverse impact 
on small

[[Page 12716]]

entities. In connection with the amendments, we considered the 
following alternatives:
     Establishing different compliance or reporting 
requirements that take into account the resources available to small 
entities;
     clarifying, consolidating, or simplifying compliance and 
reporting requirements under the rules for small entities;
     using performance rather than design standards; and
     exempting small entities from all or part of the 
requirements.
    We believe the amendments clarify, consolidate and simplify 
compliance and reporting requirements for small entities and other 
registrants. As discussed above, we believe the majority of the 
amendments simplify and streamline disclosure requirements in ways that 
are expected to reduce compliance burdens.\440\ We do not believe that 
the amendments will impose any significant new compliance obligations. 
Accordingly, we generally do not believe it is necessary to establish 
different compliance and reporting requirements or timetables or to 
exempt small entities from all or part of the amendments.\441\ We note 
in this regard that the Commission's existing disclosure requirements 
provide for scaled disclosure requirements and other accommodations for 
small entities, and the amendments would not alter these existing 
accommodations.
---------------------------------------------------------------------------

    \440\ See supra Sections VI (Economic Analysis) and VII 
(Paperwork Reduction Act).
    \441\ As discussed above in Section V (Compliance Dates), the 
compliance date schedule for cover page tagging will be consistent 
with the scaled phase-in of Inline XBRL generally. Also, as 
discussed in Section V, we are adopting a compliance date of April 
1, 2020 for registration statement and Form N-CSR filings to be made 
in HTML format and comply with the rule and form amendments 
pertaining to hyperlinks. We believe that this transition period 
will provide sufficient time for investment companies, regardless of 
size, to comply with the new requirements.
---------------------------------------------------------------------------

    Finally, with respect to using performance rather than design 
standards, the amendments generally use design rather than performance 
standards in order to promote uniform filing requirements for all 
registrants. In some instances, the amendments modernize and simplify 
existing design standards. For example, the amendments to Item 303(a) 
emphasize the flexibility currently available to registrants with 
respect to the form of MD&A presentation.\442\ In other instances, the 
amendments may result in additional flexibility when preparing 
disclosures. For example, new Item 601(a)(5) expands a registrant's 
ability to omit schedules and attachments to exhibits that are not 
material.\443\ As another example, the amendments to Item 102 clarify 
that the threshold for disclosure about registrants' physical 
properties is based on materiality.\444\
---------------------------------------------------------------------------

    \442\ See supra Section II.A.1.a. (Year-to-Year Comparisons 
(Instruction 1 to Item 303(a)).
    \443\ See supra Section II.B.5.b.i. (Schedules and Attachments 
to Exhibits).
    \444\ See supra Section II.B.1. (Description of Property (Item 
102)).
---------------------------------------------------------------------------

IX. Statutory Authority

    We are adopting the rule and form amendments contained in this 
release under the authority set forth in Sections 7, 10, 19(a), and 28 
of the Securities Act of 1933, as amended, Sections 3(b), 12, 13, 14, 
15, 16, 23(a), and 36 of the Securities Exchange Act of 1934, as 
amended, Sections 6(c), 8, 24(a), 30, and 38 of the Investment Company 
Act of 1940, as amended, and Sections 204, 206A, 210, and 211 of the 
Investment Advisers Act of 1940, as amended.

List of Subjects in 17 CFR Parts 229, 230, 232, 239, 240, 249, 270, 
274, and 275

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Securities.

    In accordance with the foregoing, we are amending title 17, chapter 
II of the Code of Federal Regulations as follows:

PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES 
ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND 
CONSERVATION ACT OF 1975--REGULATION S-K

0
1. The authority citation for part 229 continues to read as follows:

    Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 
77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 
77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78l, 78m, 78n, 78n-1, 78o, 78u-
5, 78w, 78ll, 78 mm, 80a-8, 80a-9, 80a-20, 80a-29, 80a-30, 80a-
31(c), 80a-37, 80a-38(a), 80a-39, 80b-11 and 7201 et seq.; 18 U.S.C. 
1350; sec. 953(b), Pub. L. 111-203, 124 Stat. 1904 (2010); and sec. 
102(c), Pub. L. 112-106, 126 Stat. 310 (2012).


Sec.  229.10  [Amended]

0
2. Amend Sec.  229.10 by:
0
a. Removing and reserving paragraph (d); and
0
b. Revising the entry for Item 503 in the Index of Scaled Disclosure 
Available to Smaller Reporting Companies in paragraph (f) to read 
``Prospectus summary.''

0
3. Amend Sec.  229.102 by revising the introductory text and 
Instructions 1 and 2 to to Item 102 to read as follows:


Sec.  229.102  (Item 102) Description of property.

    To the extent material, disclose the location and general character 
of the registrant's principal physical properties. In addition, 
identify the segment(s), as reported in the financial statements, that 
use the properties described. If any such property is not held in fee 
or is held subject to an encumbrance that is material to the 
registrant, so state and describe briefly how held.
    Instruction 1 to Item 102: This item requires information that will 
reasonably inform investors as to the suitability, adequacy, productive 
capacity, and extent of utilization of the principal physical 
properties of the registrant and its subsidiaries, to the extent the 
described properties are material. A registrant should engage in a 
comprehensive consideration of the materiality of its properties. If 
appropriate, descriptions may be provided on a collective basis; 
detailed descriptions of the physical characteristics of individual 
properties or legal descriptions by metes and bounds are not required 
and shall not be given.
    Instruction 2 to Item 102: In determining materiality under this 
Item, the registrant should take into account both quantitative and 
qualitative factors. See Instruction 1 to Item 101 of Regulation S-K 
(Sec.  229.101).
* * * * *

0
4. Add Sec.  229.105 to subpart 229.100 to read as follows:


Sec.  229.105  (Item 105) Risk factors.

    Where appropriate, provide under the caption ``Risk Factors'' a 
discussion of the most significant factors that make an investment in 
the registrant or offering speculative or risky. This discussion must 
be concise and organized logically. Do not present risks that could 
apply generically to any registrant or any offering. Explain how the 
risk affects the registrant or the securities being offered. Set forth 
each risk factor under a subcaption that adequately describes the risk. 
If the risk factor discussion is included in a registration statement, 
it must immediately follow the summary section. If you do not include a 
summary section, the risk factor section must immediately follow the 
cover page of the prospectus or the pricing information section that 
immediately follows the cover page. Pricing information means price and 
price-related information that you may omit from the prospectus in an 
effective registration statement based on Rule 430A (Sec.  230.430A(a) 
of this chapter).

[[Page 12717]]

The registrant must furnish this information in plain English. See 
Sec.  230.421(d) of Regulation C of this chapter.

0
5. Amend Sec.  229.202 by removing the note at the start of the 
section, revising Instruction 3 under ``Instructions to Item 202,'' and 
adding ``Note to Sec.  229.202'' to the end of the section.
    The revision and addition read as follows:


Sec.  229.202  (Item 202) Description of registrant's securities.

* * * * *
    Instructions to Item 202: * * *
    3. Section 305(a)(2) of the Trust Indenture Act of 1939, U.S.C. 
77aaa et seq., as amended (``Trust Indenture Act''), shall not be 
deemed to require the inclusion in a registration statement, 
prospectus, or annual report on Form 10-K of any information not 
required by this Item or Item 601(b)(4)(vi) of this chapter.
* * * * *

    Note to Sec.  229.202:  If the securities being described have 
been accepted for listing on an exchange, the exchange may be 
identified. The document should not, however, convey the impression 
that the registrant may apply successfully for listing of the 
securities on an exchange or that, in the case of an underwritten 
offering, the underwriters may request the registrant to apply for 
such listing, unless there is reasonable assurance that the 
securities to be offered will be acceptable to a securities exchange 
for listing.


0
6. Amend Sec.  229.303 by revising Instruction 1 under ``Instructions 
to paragraph 303(a)'' to read as follows:


Sec.  229.303  (Item 303) Management's discussion and analysis of 
financial condition and results of operations.

* * * * *
    Instructions to paragraph 303(a): 1. The registrant's discussion 
and analysis shall be of the financial statements and other statistical 
data that the registrant believes will enhance a reader's understanding 
of its financial condition, changes in financial condition, and results 
of operations. Generally, the discussion shall cover the periods 
covered by the financial statements included in the filing and the 
registrant may use any presentation that in the registrant's judgment 
enhances a reader's understanding. A smaller reporting company's 
discussion shall cover the two-year period required in Article 8 of 
Regulation S-X and may use any presentation that in the registrant's 
judgment enhances a reader's understanding. For registrants providing 
financial statements covering three years in a filing, discussion about 
the earliest of the three years may be omitted if such discussion was 
already included in the registrant's prior filings on EDGAR that 
required disclosure in compliance with Item 303 of Regulation S-K, 
provided that registrants electing not to include a discussion of the 
earliest year must include a statement that identifies the location in 
the prior filing where the omitted discussion may be found. An emerging 
growth company, as defined in Rule 405 of the Securities Act (Sec.  
230.405 of this chapter) or Rule 12b-2 of the Exchange Act (Sec.  
240.12b-2 of this chapter), may provide the discussion required in 
paragraph (a) of this Item for its two most recent fiscal years if, 
pursuant to Section 7(a) of the Securities Act of 1933 (15 U.S.C. 
77g(a)), it provides audited financial statements for two years in a 
Securities Act registration statement for the initial public offering 
of the emerging growth company's common equity securities.
* * * * *

0
7. Amend Sec.  229.401 by removing Instruction 3 to paragraph (b) of 
Item 401 and adding an Instruction to Item 401 to the end of the 
section.
    The addition reads as follows:


Sec.  229.401  (Item 401) Directors, executive officers, promoters and 
control persons.

* * * * *
    Instruction to Item 401. The information regarding executive 
officers called for by this Item need not be furnished in proxy or 
information statements prepared in accordance with Schedule 14A or 
Schedule 14C under the Exchange Act (Sec.  240.14a-101 and Sec.  
240.14c-101 of this chapter) if you are relying on General Instruction 
G of Form 10-K under the Exchange Act (Sec.  249.310 of this chapter), 
such information is furnished in a separate section captioned 
``Information about our Executive Officers,'' and is included in Part I 
of your annual report on Form 10-K.

0
8. Revise Sec.  229.405 to read as follows:


Sec.  229.405  (Item 405) Compliance with Section 16(a) of the Exchange 
Act.

    (a) Reporting obligation. Every registrant having a class of equity 
securities registered pursuant to Section 12 of the Exchange Act (15 
U.S.C. 78l) and every closed-end investment company registered under 
the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.) must:
    (1) Under the caption ``Delinquent Section 16(a) Reports,'' 
identify each person who, at any time during the fiscal year, was a 
director, officer, beneficial owner of more than ten percent of any 
class of equity securities of the registrant registered pursuant to 
Section 12 of the Exchange Act, or any other person subject to Section 
16 of the Exchange Act with respect to the registrant because of the 
requirements of Section 30 of the Investment Company Act (``reporting 
person'') that failed to file on a timely basis reports required by 
Section 16(a) of the Exchange Act during the most recent fiscal year or 
prior fiscal years.
    (2) For each such person, set forth the number of late reports, the 
number of transactions that were not reported on a timely basis, and 
any known failure to file a required form. A known failure to file 
would include, but not be limited to, a failure to file a Form 3, which 
is required of all reporting persons, and a failure to file a Form 5 in 
the absence of the written representation referred to in paragraph 
(b)(3) of this section, unless the registrant otherwise knows that no 
Form 5 is required.
    Instruction 1 to paragraph (a) of Item 405. If no disclosure is 
required, registrants are encouraged to exclude the caption 
``Delinquent Section 16(a) Reports.''
    Instruction 2 to paragraph (a) of Item 405. The registrant is only 
required to disclose a failure to file timely once. For example, if in 
the most recently concluded fiscal year a reporting person filed a Form 
4 disclosing a transaction that took place in the prior fiscal year, 
and should have been reported in that year, the registrant should 
disclose that late filing and transaction pursuant to this Item 405 
with respect to the most recently concluded fiscal year, but not in 
material filed with respect to subsequent years.
    (b) Scope of the Inquiry. In determining whether disclosure is 
required pursuant to paragraph (a) of this section, the registrant may 
rely only on the following:
    (1) A review of Forms 3 and 4 (17 CFR 249.103 and 249.104) and 
amendments thereto filed electronically with the Commission during the 
registrant's most recent fiscal year;
    (2) A review of Forms 5 (17 CFR 249.105) and amendments thereto 
filed electronically with the Commission with respect to the 
registrant's most recent fiscal year; and
    (3) Any written representation from the reporting person that no 
Form 5 is required. The registrant must maintain the representation in 
its records for two years, making a copy available to the Commission or 
its staff upon request.

0
9. Amend Sec.  229.407 by revising paragraphs (d)(3)(i)(B) and (g) to 
read as follows:

[[Page 12718]]

Sec.  229.407  (Item 407) Corporate governance.

* * * * *
    (d) * * *
    (3)(i) * * *
    (B) The audit committee has discussed with the independent auditors 
the matters required to be discussed by the applicable requirements of 
the Public Company Accounting Oversight Board (``PCAOB'') and the 
Commission;
* * * * *
    (g) Smaller reporting companies and emerging growth companies. (1) 
A registrant that qualifies as a ``smaller reporting company,'' as 
defined by Sec.  229.10(f)(1), is not required to provide:
    (i) The disclosure required in paragraph (d)(5) of this Item in its 
first annual report filed pursuant to Section 13(a) or 15(d) of the 
Exchange Act (15 U.S.C. 78m(a) or 78o(d)) following the effective date 
of its first registration statement filed under the Securities Act (15 
U.S.C. 77a et seq.) or Exchange Act (15 U.S.C. 78a et seq.); and
    (ii) The disclosure required by paragraphs (e)(4) and (e)(5) of 
this Item.
    (2) A registrant that qualifies as an ``emerging growth company,'' 
as defined in Rule 405 of the Securities Act (Sec.  230.405 of this 
chapter) or Rule 12b-2 of the Exchange Act (Sec.  240.12b-2 of this 
chapter), is not required to provide the disclosure required by 
paragraph (e)(5) of this Item.
* * * * *

0
10. Amend Sec.  229.501 by:
0
a. Revising ``Instruction to paragraph 501(b)(1)'', Instruction 2 under 
``Instructions to paragraph 501(b)(3)'', and paragraphs (b)(4) and 
(10); and
0
b. Removing paragraph (b)(11).
    The revisions read as follows:


Sec.  229.501  (Item 501) Forepart of Registration Statement and 
Outside Front Cover Page of Prospectus.

* * * * *
    (b) * * *
    (1) * * *
    Instruction to paragraph 501(b)(1): If your name is the same as 
that of a company that is well known, include information to eliminate 
any possible confusion with the other company. If your name indicates a 
line of business in which you are not engaged or in which you are 
engaged only to a limited extent, include information to eliminate any 
misleading inference as to your business.
* * * * *
    Instructions to paragraph 501(b)(3): * * *
* * * * *
    2. If it is impracticable to state the price to the public, explain 
the method by which the price is to be determined. Instead of 
explaining the method on the outside front cover page of the 
prospectus, you may state that the offering price will be determined by 
a particular method or formula that is described in the prospectus and 
include a cross-reference to the location of such disclosure in the 
prospectus, including the page number. Highlight the cross-reference by 
prominent type or in another manner. If the securities are to be 
offered at the market price, or if the offering price is to be 
determined by a formula related to the market price, indicate the 
market and market price of the securities as of the latest practicable 
date.
* * * * *
    (4) Market for the securities. The national securities exchange(s) 
where the securities being offered are listed. If the securities being 
offered are not listed on a national securities exchange, the principal 
United States market(s) where the registrant, through the engagement of 
a registered broker-dealer, has actively sought and achieved quotation. 
In each case, also disclose the corresponding trading symbol(s) for the 
securities on such market(s).
* * * * *
    (10) Prospectus ``Subject to Completion'' legend. (i) If you use 
the prospectus before the effective date of the registration statement 
or if you use Rule 430A [Sec.  230.430A of this chapter] to omit 
pricing information and the prospectus is used before you determine the 
public offering price, include a prominent statement that:
    (A) The information in the prospectus will be amended or completed;
    (B) A registration statement relating to these securities has been 
filed with the Securities and Exchange Commission;
    (C) The securities may not be sold until the registration statement 
becomes effective; and
    (D) The prospectus is not an offer to sell the securities, and it 
is not soliciting an offer to buy the securities, in any state where 
offers or sales are not permitted.
    (ii) The legend called for by paragraph (b)(10)(i) of this Item may 
be in the following or other clear, plain language:
    The information in this prospectus is not complete and may be 
changed. We may not sell these securities until the registration 
statement filed with the Securities and Exchange Commission is 
effective. This prospectus is not an offer to sell these securities and 
it is not soliciting an offer to buy these securities in any state 
where the offer or sale is not permitted.
    (iii) Registrants may exclude the statement in paragraph 
(b)(10)(i)(D) of this Item if the offering is not prohibited by state 
law.
* * * * *


Sec.  229.502  [Amended]

0
11. Amend Sec.  229.502 in paragraph (a) by removing the phrase ``Item 
503 of this Regulation S-K (17 CFR 229.503)'' and adding in its place 
``Item 105 of this Regulation S-K (17 CFR 229.105)''.


Sec.  229.503  [Amended]

0
12. Amend Sec.  229.503 by removing ``and risk factors'' from the 
section heading and removing and reserving paragraph (c).


Sec.  229.512  [Amended]

0
13. Amend Sec.  229.512 by removing and reserving paragraphs (c), (d), 
(e), and (f).

0
14. Amend Sec.  229.601:
0
a. By revising paragraph (a)(1);
0
b. By adding paragraphs (a)(5) and (6);
0
c. By revising entry (4) to the exhibit table in paragraph (a);
0
d. By adding entry (104) to the exhibit table in paragraph (a);
0
e. By revising paragraph (b)(2);
0
f. By adding paragraph (b)(4)(vi);
0
g. By revising paragraph (b)(10)(i);
0
h. By adding paragraph (b)(10)(iv);
0
i. By revising the instructions to paragraph (b)(10);
0
j. By revising paragraphs (b)(13) and (b)(99); and
0
k. By adding paragraph (b)(104).
    The revisions and addtions read as follows:


Sec.  229.601  (Item 601) Exhibits.

    (a) Exhibits and index required. (1) Subject to Rule 411(c) (Sec.  
230.411(c) of this chapter) under the Securities Act and Rule 12b-23(c) 
(Sec.  240.12b-23(c) of this chapter) under the Exchange Act regarding 
incorporation of exhibits by reference, the exhibits required in the 
exhibit table must be filed as indicated, as part of the registration 
statement or report.
* * * * *
    (5) Schedules (or similar attachments) to the exhibits required by 
this Item are not required to be filed provided that they do not 
contain information material to an investment or voting decision and 
that information is not otherwise disclosed in the exhibit or the 
disclosure document. Each exhibit filed must contain a list briefly 
identifying the contents of all omitted schedules. Registrants need not 
prepare a separate list of omitted information if such information is 
already included within the exhibit in a manner that conveys the 
subject matter of the omitted schedules and attachments. In addition, 
the registrant must provide a copy of any

[[Page 12719]]

omitted schedule to the Commission or its staff upon request.
    (6) The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses, and similar information).

Exhibit Table

* * * * *

                                                                                          Exhibit Table
                                                                                          * * * * * * *
 
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                                          * * * * * * *
(4) Instruments defining the rights of securities holders,               X        X        X        X        X        X        X        X        X        X        X        X        X
 including indentures, (i) through (v)............................
(vi) Description of registrant's securities.......................  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......       X
 
                                                                                          * * * * * * *
(104) Cover Page Interactive Data File............................  .......  .......  .......  .......  .......  .......  .......  .......  .......       X   .......       X        X
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    (b) * * *
    (2) Plan of acquisition, reorganization, arrangement, liquidation, 
or succession.
    (i) Any material plan of acquisition, disposition, reorganization, 
readjustment, succession, liquidation, or arrangement and any 
amendments thereto described in the statement or report.
    (ii) The registrant may redact provisions or terms of exhibits 
required to be filed by paragraph (b)(2) of this Item if those 
provisions or terms are both not material and would likely cause 
competitive harm to the registrant if publicly disclosed. If it does 
so, the registrant should mark the exhibit index to indicate that 
portions of the exhibit or exhibits have been omitted and include a 
prominent statement on the first page of the redacted exhibit that 
certain identified information has been excluded from the exhibit 
because it is both not material and would likely cause competitive harm 
to the registrant if publicly disclosed. The registrant also must 
indicate by brackets where the information is omitted from the filed 
version of the exhibit. If requested by the Commission or its staff, 
the registrant must promptly provide an unredacted copy of the exhibit 
on a supplemental basis. The Commission staff also may request the 
registrant to provide its materiality and competitive harm analyses on 
a supplemental basis. Upon evaluation of the registrant's supplemental 
materials, the Commission or its staff may request the registrant to 
amend its filing to include in the exhibit any previously redacted 
information that is not adequately supported by the registrant's 
materiality and competitive harm analyses. The registrant may request 
confidential treatment of the supplemental material submitted under 
paragraph (b)(2)(ii) of this Item pursuant to Rule 83 (Sec.  200.83 of 
this chapter) while it is in the possession of the Commission or its 
staff. After completing its review of the supplemental information, the 
Commission or its staff will return or destroy it at the request of the 
registrant, if the registrant complies with the procedures outlined in 
Rules 418 or 12b-4 (Sec.  230.418 or 240.12b-4 of this chapter).
* * * * *
    (4) * * *
    (vi) For each class of securities that is registered under Section 
12 of the Exchange Act, provide the information required by Item 202(a) 
through (d) and (f) of Regulation S-K (Sec.  229.202 of this chapter).
    Instruction 1 to paragraph (b)(4)(vi). A registrant is only 
required to provide the information called for by Item 601(b)(4)(vi) if 
it is filing an annual report under Exchange Act Section 13(a) or 
15(d).
    Instruction 2 to paragraph (b)(4)(vi). For purposes of Item 
601(b)(4)(vi), all references in Item 202 to securities to be or being 
registered, offered, or sold will mean securities that are registered 
as of the end of the period covered by the report with which the 
exhibit is filed. In addition, for purposes of this Item, the 
disclosure will be required for classes of securities that have not 
been retired by the end of the period covered by the report.
    Instruction 3 to paragraph (b)(4)(vi). The registrant may 
incorporate by reference to an exhibit previously filed in satisfaction 
of Item 601(b)(4)(vi) of Regulation S-K, as applicable, so long as 
there has not been any change to the information called for by Item 202 
(Sec.  229.202 of this chapter) since the filing date of the linked 
filing. Such hyperlink will be deemed to satisfy the requirements of 
Item 601(b)(4)(vi) for the current filing.
* * * * *
    (10) Material contracts. (i)(A) Every contract not made in the 
ordinary course of business that is material to the registrant and is 
to be performed in whole or in part at or after the filing of the 
registration statement or report. In addition, for newly reporting 
registrants, every contract not made in the ordinary course of business 
that is material to the registrant and that was entered into not more 
than two years before the date on which such registrant:
    (1) First files a registration statement or report; or
    (2) Completes a transaction that had the effect of causing it to 
cease being a public shell company.
    (B) The only contracts that need to be filed are those to which the 
registrant or a subsidiary of the registrant is a party or has 
succeeded to a party by assumption or assignment or in which the 
registrant or such subsidiary has a beneficial interest.
* * * * *
    (iv) The registrant may redact provisions or terms of exhibits 
required to be filed by this paragraph (b)(10) if those provisions or 
terms are both not material and would likely cause competitive harm to 
the registrant if publicly disclosed. If it does so, the registrant 
should mark the exhibit index to indicate that portions of the exhibit

[[Page 12720]]

or exhibits have been omitted and include a prominent statement on the 
first page of the redacted exhibit that certain identified information 
has been excluded from the exhibit because it is both not material and 
would likely cause competitive harm to the registrant if publicly 
disclosed. The registrant also must indicate by brackets where the 
information is omitted from the filed version of the exhibit. If 
requested by the Commission or its staff, the registrant must promptly 
provide an unredacted copy of the exhibit on a supplemental basis. The 
Commission or its staff also may request the registrant to provide its 
materiality and competitive harm analyses on a supplemental basis. Upon 
evaluation of the registrant's supplemental materials, the Commission 
or its staff may request the registrant to amend its filing to include 
in the exhibit any previously redacted information that is not 
adequately supported by the registrant's materiality and competitive 
harm analyses. The registrant may request confidential treatment of the 
supplemental material submitted under this paragraph (b)(10)(iv) 
pursuant to Rule 83 (Sec.  200.83 of this chapter) while it is in the 
possession of the Commission or its staff. After completing its review 
of the supplemental information, the Commission or its staff will 
return or destroy it at the request of the registrant if the registrant 
complies with the procedures outlined in Rules 418 or 12b-4 (Sec.  
230.418 or Sec.  240.12b-4 of this chapter).
    Instruction 1 to paragraph (b)(10) of Item 601: For purposes of 
paragraph (b)(10)(i) of this Item, a ``newly reporting registrant'' is:
    1. Any registrant filing a registration statement that, at the time 
of such filing, is not subject to the reporting requirements of Section 
13(a) or 15(d) of the Exchange Act, whether or not such registrant has 
ever previously been subject to the reporting requirements of Section 
13(a) or 15(d),
    2. Any registrant that has not filed an annual report since the 
revival of a previously suspended reporting obligation, and
    3. Any registrant that:
    a. Was a shell company, other than a business combination related 
shell company, as defined in Rule 12b-2 under the Exchange Act (17 CFR 
240.12b-2), immediately before completing a transaction that has the 
effect of causing it to cease being a shell company and
    b. Has not filed a registration statement or Form 8-K as required 
by Items 2.01 and 5.06 of that form, since the completion of such 
transaction.
    4. For example, newly reporting registrants would include a 
registrant that is filing its first registration statement under the 
Securities Act or the Exchange Act, and a registrant that was a public 
shell company, other than a business combination related shell company, 
and completes a reverse merger transaction causing it to cease being a 
shell company.
    Instruction 2 to paragraph (b)(10): With the exception of 
management contracts, in order to comply with paragraph (b)(10)(iii) of 
this section, registrants need only file copies of the various 
compensatory plans and need not file each individual director's or 
executive officer's personal agreement under the plans unless there are 
particular provisions in such personal agreements whose disclosure in 
an exhibit is necessary to an investor's understanding of that 
individual's compensation under the plan.
    Instruction 3 to paragraph (b)(10): If a material contract is 
executed or becomes effective during the reporting period reflected by 
a Form 10-Q or Form 10-K, it must be filed as an exhibit to the Form 
10-Q or Form 10-K filed for the corresponding period. See paragraph 
(a)(4) of this Item. With respect to quarterly reports on Form 10-Q, 
only those contracts executed or becoming effective during the most 
recent period reflected in the report must be filed.
* * * * *
    (13) Annual or quarterly report to security holders. (i) The 
registrant's annual report to security holders for its last fiscal year 
or its quarterly report to security holders, if all or a portion 
thereof is incorporated by reference in the filing. Such report, except 
for those portions thereof that are expressly incorporated by reference 
in the filing, is to be furnished for the information of the Commission 
and is not to be deemed ``filed'' as part of the filing. If the 
financial statements in the report have been incorporated by reference 
in the filing, the accountant's certificate must be manually signed in 
one copy. See Rule 439 (Sec.  230.439 of this chapter).
    (ii) Electronic filings. If all, or any portion, of the annual or 
quarterly report to security holders is incorporated by reference into 
any electronic filing, all, or such portion of the annual or quarterly 
report to security holders so incorporated, must be filed in electronic 
format as an exhibit to the filing.
* * * * *
    (99) Additional exhibits. (i) Any additional exhibits that the 
registrant may wish to file must be so marked as to indicate clearly 
the subject matters to which they refer.
    (ii) If pursuant to Section 11(a) of the Securities Act (15 U.S.C. 
77k(a)) an issuer makes generally available to its security holders an 
earnings statement covering a period of at least 12 months beginning 
after the effective date of the registration statement, and if such 
earnings statement is made available by ``other methods'' than those 
specified in paragraphs (a) or (b) of Sec.  230.158 of this chapter, it 
must be filed as an exhibit to the Form 10-Q or the Form 10-K, as 
appropriate, covering the period in which the earnings statement was 
released.
* * * * *
    (104) Cover Page Interactive Data File. A Cover Page Interactive 
Data File (as defined in Sec.  232.11 of this chapter) as required by 
Rule 406 of Regulation S-T (17 CFR 232.406), and in the manner provided 
by the EDGAR Filer Manual.
* * * * *

0
15. Amend Sec.  229.1016 by adding ``Instructions to Item 1016'' at the 
end of the section to read as follows:


Sec.  229.1016  (Item 1016) Exhibits.

* * * * *
    Instructions to Item 1016:
    1. Schedules (or similar attachments) to the exhibits required by 
this Item are not required to be filed provided that they do not 
contain information material to an investment or voting decision and 
that information is not otherwise disclosed in the exhibit or the 
disclosure document. Each exhibit filed must contain a list briefly 
identifying the contents of all omitted schedules. Registrants need not 
prepare a separate list of omitted information if such information is 
already included within the exhibit in a manner that conveys the 
subject matter of the omitted schedules and attachments. In addition, 
the registrant must provide a copy of any omitted schedule to the 
Commission or its staff upon request.
    2. The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information).

0
16. Amend Sec.  229.1100 by:
0
a. Removing the designation ``Instructions to Item 1100(c)(1)'';

[[Page 12721]]

0
b. Redesignating instruction 1 as ``Instruction 1 to Item 1100(c)(1)'' 
and revising it; and
0
c. Redesignating instructions 2 through 5 ``Instruction 2 to paragraph 
(c)(1) of Item 1100.'', ``Instruction 3 to paragraph (c)(1) of Item 
1100.'', ``Instruction 4 to paragraph (c)(1) of Item 1100.'', and 
``Instruction 5 to paragraph (c)(1) of Item 1100'', respectively.
    The revision reads as follows:


Sec.  229.1100  (Item 1100) General.

* * * * *
    Instruction 1 to paragraph (c)(1) of Item 1100. In addition to the 
conditions in this paragraph (c)(1), any information incorporated by 
reference must comply with all applicable Commission rules pertaining 
to incorporation by reference, such as Rule 303 of Regulation S-T 
(Sec.  232.303 of this chapter), Rule 411 of Regulation C (Sec.  
230.411 of this chapter), and Rule 12b-23 of Regulation 12B (Sec.  
240.12b-23 of this chapter), except that for purposes of this paragraph 
(c)(1), an asset-backed issuer may incorporate by reference to a second 
document that incorporates pertinent information by reference to a 
third document.
* * * * *


Sec.  229.1103  [Amended]

0
17. Amend Sec.  229.1103 in paragraph (b) by removing the phrase ``Item 
503(c) of Regulation S-K (Sec.  229.503(c))'' and adding in its place 
``Item 105 of Regulation S-K (17 CFR 229.105)''.

PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933

0
18. The authority citation for part 230 continues to read in part as 
follows:

    Authority: 15 U.S.C. 77b, 77b note, 77c, 77d, 77f, 77g, 77h, 
77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78o-
7 note, 78t, 78w, 78ll(d), 78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-
30, and 80a-37, and Pub. L. 112-106, sec. 201(a), sec. 401, 126 
Stat. 313 (2012), unless otherwise noted.
* * * * *

0
19. Amend Sec.  230.405 by adding in alphabetical order a definition 
for Sub-underwriter to read as follows:


Sec.  230.405   Definition of terms.

* * * * *
    Sub-underwriter. The term sub-underwriter means a dealer that is 
participating as an underwriter in an offering by committing to 
purchase securities from a principal underwriter for the securities but 
is not itself in privity of contract with the issuer of the securities.
* * * * *

0
20. Revise Sec.  230.411 to read as follows:


Sec.  230.411   Incorporation by reference.

    (a) Prospectus. Except as provided by this section, Item 1100(c) of 
Regulation AB (Sec.  229.1100(c) of this chapter) for registered 
offerings of asset-backed securities, or unless otherwise provided in 
the appropriate form, information must not be incorporated by reference 
into the prospectus. Where a summary or outline of the provisions of 
any document is required in the prospectus, the summary or outline may 
incorporate by reference particular items, sections or paragraphs of 
any exhibit and may be qualified in its entirety by such reference. In 
any financial statements, incorporating by reference, or cross-
referencing to, information outside of the financial statements is not 
permitted unless otherwise specifically permitted or required by the 
Commission's rules or by U.S. Generally Accepted Accounting Principles 
or International Financial Reporting Standards as issued by the 
International Accounting Standards Board, whichever is applicable.
    (b) Information not required in a prospectus. Information may be 
incorporated by reference in answer, or partial answer, to any item of 
a registration statement that calls for information not required to be 
included in a prospectus. Except as provided in the Commission's rules 
or by U.S. Generally Accepted Accounting Principles or International 
Financial Reporting Standards as issued by the International Accounting 
Standards Board, whichever is applicable, financial information 
required to be given in comparative form for two or more fiscal years 
or periods must not be incorporated by reference unless the information 
incorporated by reference includes the entire period for which the 
comparative data is given. In any financial statements, incorporating 
by reference, or cross-referencing to, information outside of the 
financial statements is not permitted unless otherwise specifically 
permitted or required by the Commission's rules or by U.S. Generally 
Accepted Accounting Principles or International Financial Reporting 
Standards as issued by the International Accounting Standards Board, 
whichever is applicable.
    (c) Exhibits. Any document or part thereof filed with the 
Commission pursuant to any Act administered by the Commission may be 
incorporated by reference as an exhibit to any registration statement 
filed with the Commission by the same or any other person. If any 
modification has occurred in the text of any document incorporated by 
reference since the filing thereof, the registrant must file with the 
reference a statement containing the text of such modification and the 
date thereof.
    (d) Hyperlinks. Include an active hyperlink to information 
incorporated into a registration statement or prospectus by reference 
if such information is publicly available on the Commission's 
Electronic Data Gathering, Analysis and Retrieval System (``EDGAR'') at 
the time the registration statement or prospectus is filed. For 
hyperlinking to exhibits, please refer to Item 601 of Regulation S-K 
(Sec.  229.601 of this chapter) or the appropriate form.
    (e) General. Include an express statement clearly describing the 
specific location of the information you are incorporating by 
reference. The statement must identify the document where the 
information was originally filed or submitted and the location of the 
information within that document. The statement must be made at the 
particular place where the information is required, if applicable. 
Information must not be incorporated by reference in any case where 
such incorporation would render the disclosure incomplete, unclear, or 
confusing. For example, unless expressly permitted or required, 
disclosure must not be incorporated by reference from a second document 
if that second document incorporates information pertinent to such 
disclosure by reference to a third document.

0
21. Revise Sec.  230.491 to read as follows:


Sec.  230.491   Information to be furnished under paragraph (6) of 
Schedule B.

    Any foreign government filing a registration statement pursuant to 
Schedule B of the act need state, in furnishing the information 
required by paragraph (6), the names and addresses only of principal 
underwriters, namely, underwriters in privity of contract with the 
registrant, provided they are designated as principal underwriters and 
a brief statement is made as to the discounts and commissions to be 
received by sub-underwriters or dealers.

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

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

    Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3, 
77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 
80a-8, 80a-29,

[[Page 12722]]

80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350, unless 
otherwise noted.
* * * * *

0
23. Amend Sec.  232.11 by adding in alphabetical order a definition for 
Cover Page Interactive Data File to read as follows:


Sec.  232.11   Definitions of terms used in part 232.

* * * * *
    Cover Page Interactive Data File. The term Cover Page Interactive 
Data File means the machine-readable computer code that presents in 
Inline XBRL electronic format the cover page information for specified 
forms as required by Rule 406 (Sec.  232.406 of this chapter). NOTE to 
definition of Cover Page Interactive Data File: When a filing is 
submitted using Inline XBRL, if permitted or required and as provided 
by the EDGAR Filer Manual, a portion of the Cover Page Interactive Data 
File must be embedded into a form with the remainder submitted as an 
exhibit to the form.
* * * * *

0
24. Amend Sec.  232.102 by revising the second sentence of paragraph 
(a) introductory text and the third sentence of paragraph (d) to read 
as follows:


Sec.  232.102   Exhibits.

    (a) * * * Previously filed exhibits, whether in paper or electronic 
format, may be incorporated by reference into an electronic filing to 
the extent permitted by Rule 411 under the Securities Act (Sec.  
230.411 of this chapter), Rule 12b-23 under the Exchange Act (Sec.  
240.12b-23 of this chapter), Rule 0-4 under the Investment Company Act 
(Sec.  270.0-4 of this chapter) or Rule 303 of Regulation S-T (Sec.  
232.303). * * *
* * * * *
    (d) * * * For electronic filings on Form S-6 (Sec.  239.16 of this 
chapter), Form N-14 (Sec.  239.23 of this chapter), Form F-10 (Sec.  
239.40 of this chapter), Form 20-F (Sec.  249.220f of this chapter), 
Form 8-K (Sec.  249.308 of this chapter), Form N-5 (Sec.  274.5 of this 
chapter), Form N-1A (Sec.  274.11A of this chapter), Form N-2 (Sec.  
274.11a-1 of this chapter), Form N-3 (Sec.  274.11b of this chapter), 
Form N-4 (Sec.  274.11c of this chapter), Form N-6 (Sec.  274.11d of 
this chapter), Form N-8B2 (Sec.  274.12 of this chapter), Form N-CSR 
(Sec.  274.128 of this chapter), or filings subject to Item 601 of 
Regulation S-K (Sec.  229.601 of this chapter), each exhibit identified 
in the exhibit index (other than an exhibit filed in eXtensible 
Business Reporting Language or an exhibit that is filed with Form ABS-
EE (Sec.  249.1401 of this chapter)) must include an active link to an 
exhibit that is filed with the document or, if the exhibit is 
incorporated by reference, an active hyperlink to the exhibit 
separately filed on EDGAR. * * *
* * * * *

0
25. Amend Sec.  232.105 by revising paragraph (d) and adding paragraph 
(e) to read as follows:


Sec.  232.105   Use of HTML and hyperlinks.

* * * * *
    (d) Electronic filers submitting Form S-6 (Sec.  239.16 of this 
chapter), Form N-14 (Sec.  239.23 of this chapter), Form F-10 (Sec.  
239.40 of this chapter), Form 20-F (Sec.  249.220f of this chapter), 
Form N-5 (Sec.  274.5 of this chapter), Form N-1A (Sec.  274.11A of 
this chapter), Form N-2 (Sec.  274.11a-1 of this chapter), Form N-3 
(Sec.  274.11b of this chapter), Form N-4 (Sec.  274.11c of this 
chapter), Form N-6 (Sec.  274.11d of this chapter), Form N-8B2 (Sec.  
274.12 of this chapter), Form N-CSR (Sec.  274.128 of this chapter), or 
a registration statement or report subject to Item 601 of Regulation S-
K (Sec.  229.601 of this chapter), must submit such registration 
statement or report in HTML and each exhibit identified in the exhibit 
index (other than an exhibit filed in eXtensible Business Reporting 
Language or an exhibit filed with Form ABS-EE (Sec.  249.1401 of this 
chapter)) must include an active link to an exhibit that is filed with 
the registration statement or report or, if the exhibit is incorporated 
by reference, an active hyperlink to the exhibit separately filed on 
EDGAR, unless such exhibit is filed in paper pursuant to a temporary or 
continuing hardship exemption under Rules 201 or 202 of Regulation S-T 
(Sec.  232.201 or Sec.  232.202) or pursuant to Rule 311 of Regulation 
S-T (Sec.  232.311).
    Instructions to paragraph (d): (1) No hyperlink is required for any 
exhibit incorporated by reference that has not been filed with the 
Commission in electronic format.
    (2) An electronic filer must correct an inaccurate or 
nonfunctioning link or hyperlink to an exhibit, in the case of a 
registration statement that is not yet effective, by filing an 
amendment to the registration statement containing the inaccurate or 
nonfunctioning link or hyperlink; or, in the case of a registration 
statement that has become effective or an Exchange Act report, an 
electronic filer must correct the inaccurate or nonfunctioning link or 
hyperlink in the next Exchange Act periodic report that requires, or 
includes, an exhibit pursuant to Item 601 of Regulation S-K (Sec.  
229.601 of this chapter), in the case of an investment company, a 
report on Form N-CSR (Sec.  274.128 of this chapter), or, in the case 
of a foreign private issuer (as defined in Sec.  229.405 of this 
chapter), Form 20-F (Sec.  249.220f of this chapter) or Form F-10 
(Sec.  239.40 of this chapter). Alternatively, an electronic filer may 
correct an inaccurate or nonfunctioning link or hyperlink in a 
registration statement that has become effective by filing a post-
effective amendment to the registration statement.
    (e) Except for exhibits, which are covered by paragraph (d) of this 
section, electronic filers that are incorporating information by 
reference pursuant to Rule 411 under the Securities Act (Sec.  230.411 
of this chapter), Rule 12b-23 under the Exchange Act (Sec.  240.12b-23 
of this chapter), or Rule 0-4 under the Investment Company Act (Sec.  
270.0-4 of this chapter) must submit such registration statement or 
report in HTML and must include an active hyperlink to such 
incorporated information when required by those rules. A hyperlink is 
not required if the incorporated information is filed in paper pursuant 
to a temporary or continuing hardship exemption under Rules 201 or 202 
of Regulation S-T (Sec.  232.201 or Sec.  232.202) or pursuant to Rule 
311 of Regulation S-T (Sec.  232.311).
    Instructions to paragraph (e): (1) No hyperlink is required for any 
information incorporated by reference that has not been filed with the 
Commission in electronic format.
    (2) In the case of a registration statement that is not yet 
effective, an electronic filer must correct an inaccurate or 
nonfunctioning hyperlink by filing an amendment to such registration 
statement.

0
26. Amend Sec.  232.303 by revising the first sentence of paragraph (b) 
to read as follows:


Sec.  232.303   Incorporation by reference.

* * * * *
    (b) If a filer incorporates by reference into an electronic filing 
any portion of an annual or quarterly report to security holders, it 
must also file the portion of the annual or quarterly report to 
security holders in electronic format as an exhibit to the filing, as 
required by Regulation S-K Item 601(b)(13) (Sec.  229.601(b)(13) of 
this chapter). * * *


Sec.  232.312   [Removed and Reserved]

0
27. Remove and reserve Sec.  232.312.

0
28. Add Sec.  232.406 to read as follows:


Sec.  232.406   Cover Page XBRL Data Tagging.

    Electronic filers submitting Forms 10-K (Sec.  249.310 of this 
chapter), 10-Q (Sec.  249.308a of this chapter), 8-K (Sec.  249.308 of 
this chapter), 20-F (Sec.  249.220f of this chapter) or 40-F

[[Page 12723]]

(Sec.  249.240f of this chapter) who are required to submit Interactive 
Data Files (Sec.  232.11) in Inline XBRL format in accordance with this 
Regulation S-T must tag in Inline XBRL electronic format, in the manner 
provided by the EDGAR Filer Manual, all of the information provided by 
the electronic filer that is required on the cover page of these forms.

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

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

    Authority:  15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-
3, 77sss, 78c, 78l, 78m,78n, 78o(d), 78o-7 note, 78u-5, 78w(a), 
78ll, 78mm, 80a-2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 
80a-26, 80a-29, 80a-30, and 80a-37; and sec. 107, Pub. L. 112-106, 
126 Stat. 312, unless otherwise noted.
* * * * *

0
30. Amend Form S-1 (referenced in Sec.  239.11) by revising the last 
sentence of Instruction V under ``General Instructions'', the first 
paragraph of Instruction VII under ``General Instructions'', and Item 3 
to read as follows:

    Note: The text of Form S-1 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM S-1

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

GENERAL INSTRUCTIONS

* * * * *

V. Registration of Additional Securities

    * * * See Rule 439(b) under the Securities Act (17 CFR 230.439(b)).
* * * * *

VII. Eligibility To Use Incorporation by Reference

    If a registrant meets the following requirements in paragraphs A-F 
immediately prior to the time of filing a registration statement on 
this Form, it may elect to provide information required by Items 3 
through 11 of this Form in accordance with Item 11A and Item 12 of this 
Form. Notwithstanding the foregoing, in the financial statements, 
incorporating by reference or cross-referencing to information outside 
of the financial statements is not permitted unless otherwise 
specifically permitted or required by the Commission's rules or by U.S. 
Generally Accepted Accounting Principles or International Financial 
Reporting Standards as issued by the International Accounting Standards 
Board, whichever is applicable. * * *
* * * * *

Item 3. Summary Information, Risk Factors and Ratio of Earnings to 
Fixed Charges.

    Furnish the information required by Items 105 and 503 of Regulation 
S-K (Sec.  229.105 and Sec.  229.503 of this chapter).
* * * * *

0
31. Amend Form S-3 (referenced in Sec.  239.13) by revising the last 
sentence of Instruction IV.A. under ``General Instructions'', Item 3, 
and paragraph (d) of Item 12 to read as follows:

    Note: The text of Form S-3 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM S-3

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

GENERAL INSTRUCTIONS

* * * * *

IV. Registration of Additional Securities and Additional Classes of 
Securities

A. Registration of Additional Securities Pursuant to Rule 462(b).

    * * * See Rule 439(b) under the Securities Act [17 CFR 230.439(b)].
* * * * *

Item 3. Summary Information, Risk Factors and Ratio of Earnings to 
Fixed Charges.

    Furnish the information required by Items 105 and 503 of Regulation 
S-K (Sec.  229.105 and Sec.  229.503 of this chapter).
* * * * *

Item 12. Incorporation of Certain Information by Reference.

* * * * *
    (d) Any information required in the prospectus in response to Item 
3 through Item 11 of this Form may be included in the prospectus 
through documents filed pursuant to Section 13(a), 14, or 15(d) of the 
Exchange Act that are incorporated or deemed incorporated by reference 
into the prospectus that is part of the registration statement. 
Notwithstanding the foregoing, in the financial statements, 
incorporating by reference or cross-referencing to information outside 
of the financial statements is not permitted unless otherwise 
specifically permitted or required by the Commission's rules or by U.S. 
Generally Accepted Accounting Principles or International Financial 
Reporting Standards as issued by the International Accounting Standards 
Board, whichever is applicable.
* * * * *

0
32. Amend Form S-6 (referenced in Sec.  239.16) by revising 
``Instructions as to Exhibits'' to add a paragraph to read as follows:

    Note:  The text of Form S-6 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form S-6

* * * * *
INSTRUCTIONS AS TO EXHIBITS
* * * * *
    Additional Instructions: Schedules (or similar attachments) to the 
exhibits required by this Item are not required to be filed provided 
that they do not contain information material to an investment or 
voting decision and that information is not otherwise disclosed in the 
exhibit or the disclosure document. Each exhibit filed must contain a 
list briefly identifying the contents of all omitted schedules. 
Registrants need not prepare a separate list of omitted information if 
such information is already included within the exhibit in a manner 
that conveys the subject matter of the omitted schedules and 
attachments. In addition, the registrant must provide a copy of any 
omitted schedule to the Commission or its staff upon request.
    2. The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information).
    3. The registrant may redact provisions or terms of exhibits 
required to be filed by paragraph (9) of section IX of Form N-8B-2 
(Exhibits) if those provisions or terms are both (i) not material and 
(ii) would likely cause competitive harm to the registrant if publicly 
disclosed. If it does so, the registrant should mark the exhibit index 
to indicate that portions of the exhibit

[[Page 12724]]

or exhibits have been omitted and include a prominent statement on the 
first page of the redacted exhibit that certain identified information 
has been excluded from the exhibit because it is both (i) not material 
and (ii) would likely cause competitive harm to the registrant if 
publicly disclosed. The registrant also must indicate by brackets where 
the information is omitted from the filed version of the exhibit.
    If requested by the Commission or its staff, the registrant must 
promptly provide an unredacted copy of the exhibit on a supplemental 
basis. The Commission staff also may request the registrant to provide 
its materiality and competitive harm analyses on a supplemental basis. 
Upon evaluation of the registrant's supplemental materials, the 
Commission or its staff may request the registrant to amend its filing 
to include in the exhibit any previously redacted information that is 
not adequately supported by the registrant's materiality and 
competitive harm analyses. The registrant may request confidential 
treatment of the supplemental material pursuant to Rule 83 (Sec.  
200.83 of this chapter) while it is in the possession of the Commission 
or its staff. After completing its review of the supplemental 
information, the Commission or its staff will return or destroy it at 
the request of the registrant, if the registrant complies with the 
procedures outlined in Rules 418 (Sec.  230.418 of this chapter).
    4. Each exhibit identified in the exhibit index (other than an 
exhibit filed in eXtensible Business Reporting Language) must include 
an active link to an exhibit that is filed with the registration 
statement or, if the exhibit is incorporated by reference, an active 
hyperlink to the exhibit separately filed on EDGAR. If the registration 
statement is amended, each amendment must include active hyperlinks to 
the exhibits required with the amendment.
* * * * *

0
33. Amend Form S-11 (referenced in Sec.  239.18) by revising the last 
sentence of Instruction G. under ``General Instructions'', the first 
paragraph of instruction H. under ``General Instructions'', and Item 
3(a) to read as follows:

    Note: The text of Form S-11 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM S-11

FOR REGISTRATION UNDER THE SECURITIES ACT OF 1933 OF SECURITIES OF 
CERTAIN REAL ESTATE COMPANIES
GENERAL INSTRUCTIONS
* * * * *

G. Registration of Additional Securities

    * * * Any opinion or consent required in the Rule 462(b) 
registration statement may be incorporated by reference from the 
earlier registration statement with respect to the offering, if: (i) 
Such opinion or consent expressly provides for such incorporation; and 
(ii) such opinion relates to the securities registered pursuant to Rule 
462(b). See Rule 439(b) under the Securities Act [17 CFR 230.439(b)].

H. Eligibility To Use Incorporation by Reference

    If a registrant meets the following requirements in paragraphs 1-6 
immediately prior to the time of filing a registration statement on 
this Form, it may elect to provide information required by Items 3 
through 28 of this Form in accordance with Item 28A and Item 29 of this 
Form. Notwithstanding the foregoing, in the financial statements, 
incorporating by reference or cross-referencing to information outside 
of the financial statement is not permitted unless otherwise 
specifically permitted or required by the Commission's rules or by U.S. 
Generally Accepted Accounting Principles or International Financial 
Reporting Standards as issued by the International Accounting Standards 
Board, whichever is applicable. * * *
* * * * *

Item 3. Summary Information, Risk Factors and Ratio of Earnings to 
Fixed Charges.

    (a) Furnish the information required by Items 105 and 503 of 
Regulation S-K (Sec.  229.105 and Sec.  229.503 of this chapter).
* * * * *

0
34. Amend Form N-14 (referenced in Sec.  239.23) by revising the third 
paragraph of General Instruction G; and revising the Instruction to 
Item 16 to add new paragraphs to read as follows:

    Note:  The text of Form N-14 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form N-14

* * * * *
GENERAL INSTRUCTIONS
* * * * *

G. Incorporation by Reference and Delivery of Prospectuses or Reports 
Filed With the Commission

* * * * *
    All incorporation by reference must comply with the requirements of 
this Form and the following rules on incorporation by reference: Rule 
411 under the Securities Act [17 CFR 230.411] (general rules on 
incorporation by reference in a prospectus) and rule 303 of Regulation 
S-T [17 CFR 232.303] (specific requirements for electronically filed 
documents).
* * * * *

Item 16. Exhibits

* * * * *

Instructions:

    1. Schedules (or similar attachments) to the exhibits required by 
this Item are not required to be filed provided that they do not 
contain information material to an investment or voting decision and 
that information is not otherwise disclosed in the exhibit or the 
disclosure document. Each exhibit filed must contain a list briefly 
identifying the contents of all omitted schedules. Registrants need not 
prepare a separate list of omitted information if such information is 
already included within the exhibit in a manner that conveys the 
subject matter of the omitted schedules and attachments. In addition, 
the registrant must provide a copy of any omitted schedule to the 
Commission or its staff upon request.
    2. The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information).
    3. The registrant may redact provisions or terms of exhibits 
required to be filed by paragraph (13) of this Item if those provisions 
or terms are both (i) not material and (ii) would likely cause 
competitive harm to the registrant if publicly disclosed. If it does 
so, the registrant should mark the exhibit index to indicate that 
portions of the exhibit or exhibits have been omitted and include a 
prominent statement on the first page of the redacted exhibit that 
certain identified information has been excluded from the exhibit 
because it is both (i) not material and (ii) would

[[Page 12725]]

likely cause competitive harm to the registrant if publicly disclosed. 
The registrant also must indicate by brackets where the information is 
omitted from the filed version of the exhibit.
    If requested by the Commission or its staff, the registrant must 
promptly provide an unredacted copy of the exhibit on a supplemental 
basis. The Commission staff also may request the registrant to provide 
its materiality and competitive harm analyses on a supplemental basis. 
Upon evaluation of the registrant's supplemental materials, the 
Commission or its staff may request the registrant to amend its filing 
to include in the exhibit any previously redacted information that is 
not adequately supported by the registrant's materiality and 
competitive harm analyses. The registrant may request confidential 
treatment of the supplemental material pursuant to Rule 83 (Sec.  
200.83 of this chapter) while it is in the possession of the Commission 
or its staff. After completing its review of the supplemental 
information, the Commission or its staff will return or destroy it at 
the request of the registrant, if the registrant complies with the 
procedures outlined in Rules 418 (Sec.  230.418 of this chapter).
    4. Each exhibit identified in the exhibit index (other than an 
exhibit filed in eXtensible Business Reporting Language) must include 
an active link to an exhibit that is filed with the registration 
statement or, if the exhibit is incorporated by reference, an active 
hyperlink to the exhibit separately filed on EDGAR. If the registration 
statement is amended, each amendment must include active hyperlinks to 
the exhibits required with the amendment.
* * * * *

0
35. Amend Form S-4 (referenced in Sec.  239.25) by revising the last 
sentence of Instruction K. under ``General Instructions'' and the first 
sentence of Item 3 to read as follows:

    Note: The text of Form S-4 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM S-4

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

GENERAL INSTRUCTIONS

* * * * *

K. Registration of Additional Securities.

    * * * Any opinion or consent required in the Rule 462(b) 
registration statement may be incorporated by reference from the 
earlier registration statement with respect to the offering, if: (i) 
Such opinion or consent expressly provides for such incorporation; and 
(ii) such opinion relates to the securities registered pursuant to Rule 
462(b). See Rule 439(b) under the Securities Act [17 CFR 230.439(b)].
* * * * *

Item 3. Risk Factors, Ratio of Earnings to Fixed Charges and Other 
Information.

    Provide in the forepart of the prospectus a summary containing the 
information required by Items 105 and 503 of Regulation S-K (Sec.  
229.105 and Sec.  229.503 of this chapter) and the following:
* * * * *

0
36. Amend Form F-1 (referenced in Sec.  239.31) by revising the last 
sentence of Instruction V. under ``General Instructions,'' the first 
paragraph of instruction VI. under ``General Instructions,'' and Item 3 
to read as follows:

    Note: The text of Form F-1 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM F-1

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

GENERAL INSTRUCTIONS

* * * * *

V. Registration of Additional Securities

    * * * See Rule 439(b) under the Securities Act [17 CFR 230.439(b)].

VI. Eligibility To Use Incorporation by Reference

    If a registrant meets the following requirements immediately prior 
to the time of filing a registration statement on this Form, it may 
elect to provide information required by Item 3 and Item 4 of this Form 
in accordance with Item 4A and Item 5 of this Form. Notwithstanding the 
foregoing, in the financial statements, incorporating by reference or 
cross-referencing to information outside of the financial statements is 
not permitted unless otherwise specifically permitted or required by 
the Commission's rules or by U.S. Generally Accepted Accounting 
Principles or International Financial Reporting Standards as issued by 
the International Accounting Standards Board, whichever is applicable.
* * * * *

Item 3. Summary Information, Risk Factors and Ratio of Earnings to 
Fixed Charges.

    Furnish the information required by Items 105 and 503 of Regulation 
S-K (Sec.  229.105 and Sec.  229.503 of this chapter).
* * * * *

0
37. Amend Form F-3 (referenced in Sec.  239.33) by revising the last 
sentence of Instruction IV.A. under ``General Instructions'' and Item 3 
to read as follows:

    Note: The text of Form F-3 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM F-3

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
GENERAL INSTRUCTIONS
* * * * *

IV. Registration of Additional Securities and Additional Classes of 
Securities

A. Registration of Additional Securities Pursuant to Rule 462(b). * * *

    See Rule 439(b) under the Securities Act [17 CFR 230.439(b)].
* * * * *

Item 3. Summary Information, Risk Factors and Ratio of Earnings to 
Fixed Charges.

    Furnish the information required by Items 105 and 503 of Regulation 
S-K (Sec.  229.105 and Sec.  229.503 of this chapter).
* * * * *

0
38. Amend Form F-4 (referenced in 239.34) by revising the last sentence 
of Instruction H. under ``General Instructions'' and Item 3 to read as 
follows:

    Note: The text of Form F-4 does not, and this amendment will 
not, appear in the Code of Federal Regulations.


[[Page 12726]]



UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM F-4

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

H. * * * See Rule 439(b) under the Securities Act [17 CFR 230.439(b)].

* * * * *

Item 3. Risk Factors, Ratio of Earnings to Fixed Charges and Other 
Information.

    Provide in the forepart of the prospectus a summary containing the 
information required by Items 105 and 503 of Regulation S-K (Sec.  
229.105 and Sec.  229.503 of this chapter) and the following:
* * * * *

0
39. Revise Item 3 of Form F-7 (referenced in Sec.  239.37) to read as 
follows:

    Note: The text of Form F-7 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM F-7

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

PART I--INFORMATION REQUIRED TO BE SENT TO SHAREHOLDERS

* * * * *

Item 3. Incorporation of Certain Information by Reference

    Information called for by this Form, including exhibits, may be 
incorporated by reference at the Registrant's option from documents 
that the Registrant has filed previously with the Commission pursuant 
to Section 13(a) or 15(d) of the Exchange Act or submitted to the 
Commission pursuant to Rule 12g3-2(b) under the Exchange Act. For 
information that you are incorporating by reference, identify the 
document where the information was originally filed or submitted and 
the specific location of the information within that document. The 
statement must be made at the particular place where the information is 
required, if applicable. Unless expressly permitted or required, 
disclosure must not be incorporated by reference from a second document 
if that second document incorporates information pertinent to such 
disclosure by reference to a third document. If any information is 
incorporated by reference into the prospectus, the prospectus must 
provide the name, address and telephone number of an officer of the 
Registrant from whom copies of such information may be obtained upon 
request without charge.
* * * * *

0
40. Revise Item 3 of Form F-8 (referenced in Sec.  239.38) to read as 
follows:

    Note:  The text of Form F-8 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM F-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

PART I--INFORMATION REQUIRED TO BE DELIVERED TO OFFEREES OR PURCHASERS

* * * * *

Item 3. Incorporation of Certain Information by Reference

    Information called for by this Form, including exhibits, may be 
incorporated by reference at the Registrant's option from documents 
that the Registrant has filed previously with the Commission pursuant 
to Section 13(a) or 15(d) of the Exchange Act or submitted to the 
Commission pursuant to Rule 12g3-2(b) under the Exchange Act. For 
information that you are incorporating by reference, identify the 
document where the information was originally filed or submitted and 
the specific location of the information within that document. The 
statement must be made at the particular place where the information is 
required, if applicable. Unless expressly permitted or required, 
disclosure must not be incorporated by reference from a second document 
if that second document incorporates information pertinent to such 
disclosure by reference to a third document. If any information is 
incorporated by reference into the prospectus, the prospectus must 
provide the name, address, and telephone number of an officer of the 
Registrant from whom copies of such information may be obtained upon 
request without charge.
* * * * *

0
41. Revise Item 4 of Form F-10 (referenced in Sec.  239.40) to read as 
follows:

    Note:  The text of Form F-10 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM F-10

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

PART I--INFORMATION REQUIRED TO BE DELIVERED TO OFFEREES OR PURCHASERS

* * * * *

Item 4. Incorporation of Certain Information by Reference

    Information called for by this Form, including exhibits, may be 
incorporated by reference at the Registrant's option from documents 
that the Registrant has filed previously with the Commission pursuant 
to Section 13(a) or 15(d) of the Exchange Act or submitted to the 
Commission pursuant to Rule 12g3-2(b) under the Exchange Act. For 
information that you are incorporating by reference, identify the 
document where the information was originally filed or submitted and 
the specific location of the information within that document. The 
statement must be made at the particular place where the information is 
required, if applicable. Unless expressly permitted or required, 
disclosure must not be incorporated by reference from a second document 
if that second document incorporates information pertinent to such 
disclosure by reference to a third document. If any information is 
incorporated by reference into the prospectus, the prospectus must 
provide the name, address, and telephone number of an officer of the 
Registrant from whom copies of such information may be obtained upon 
request without charge.
* * * * *

0
42. Revise Item 3 of Form F-80 (referenced in Sec.  239.41) to read as 
follows:

    Note: The text of Form F-80 does not, and this amendment will 
not, appear in the Code of Federal Regulations.


[[Page 12727]]



UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM F-80

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

PART I--INFORMATION REQUIRED TO BE DELIVERED TO OFFEREES OR PURCHASERS

* * * * *

Item 3 Incorporation of Certain Information by Reference

    Information called for by this Form, including exhibits, may be 
incorporated by reference at the Registrant's option from documents 
that the Registrant has filed previously with the Commission pursuant 
to Section 13(a) or 15(d) of the Exchange Act or submitted to the 
Commission pursuant to Rule 12g3-2(b) under the Exchange Act. For 
information that you are incorporating by reference, identify the 
document where the information was originally filed or submitted and 
the specific location of the information within that document. The 
statement must be made at the particular place where the information is 
required, if applicable. Unless expressly permitted or required, 
disclosure must not be incorporated by reference from a second document 
if that second document incorporates information pertinent to such 
disclosure by reference to a third document. If any information is 
incorporated by reference into the prospectus, the prospectus must 
provide the name, address, and telephone number of an officer of the 
Registrant from whom copies of such information may be obtained upon 
request without charge.
* * * * *

0
43. Amend Form SF-1 (referenced in Sec.  239.44) by revising the last 
sentence of Instruction III. under ``General Instructions'' and the 
last sentence of Item 2 to read as follows:

    Note:  The text of Form SF-1 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION,

Washington, DC 20549

FORM SF-1

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *

GENERAL INSTRUCTIONS

* * * * *

III. Registration of Additional Securities

    * * * See Rule 439(b) under the Securities Act [17 CFR 230.439(b)].
* * * * *

Item 2. Inside Front and Outside Back Cover Pages of Prospectus.

    Furnish the information required by Items 105 and 503 of Regulation 
S-K (17 CFR 229.105 and 17 CFR 229.503) and Item 1103 of Regulation AB 
(17 CFR 229.1103).
* * * * *

0
44. Amend Form SF-3 (referenced in Sec.  239.45) by revising the last 
sentence of Instruction III. under ``General Instructions'' and the 
last sentence of Item 2 to read as follows:

    Note:  The text of Form SF-3 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM SF-3

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

GENERAL INSTRUCTIONS

* * * * *

III. Registration of Additional Securities Pursuant to Rule 462(b)

    * * * See Rule 439(b) under the Securities Act [17 CFR 230.439(b)].
* * * * *

Item 2. Inside Front and Outside Back Cover Pages of Prospectus.

    Furnish the information required by Items 105 and 503 of Regulation 
S-K (17 CFR 229.105 and 17 CFR 229.503) and Item 1103 of Regulation AB 
(17 CFR 229.1103).
* * * * *

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

0
45. The authority citation for part 240 continues to read in part as 
follows:

    Authority:  15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 
78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 
78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 
80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, 7201 et seq.; and 
8302; 7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C. 1350; 
Pub. L. 111-203, 939A, 124 Stat. 1887 (2010); sec. 503 and 602, and 
Pub. L. 112-106, 126 Stat. 326 (2012), unless otherwise noted.
* * * * *

0
46. Revise Sec.  240.12b-23 to read as follows:


Sec.  240.12b-23   Incorporation by reference.

    (a) Registration statement or report. Except as provided by this 
section or in the appropriate form, information may be incorporated by 
reference in answer, or partial answer, to any item of a registration 
statement or report.
    (b) Financial information. Except as provided in the Commission's 
rules, financial information required to be given in comparative form 
for two or more fiscal years or periods must not be incorporated by 
reference unless the information incorporated by reference includes the 
entire period for which the comparative data is given. In the financial 
statements, incorporating by reference, or cross-referencing to, 
information outside of the financial statements is not permitted unless 
otherwise specifically permitted or required by the Commission's rules 
or by U.S. Generally Accepted Accounting Principles or International 
Financial Reporting Standards as issued by the International Accounting 
Standards Board, whichever is applicable.
    (c) Exhibits. Any document or part thereof filed with the 
Commission pursuant to any Act administered by the Commission may be 
incorporated by reference as an exhibit to any statement or report 
filed with the Commission by the same or any other person. Any document 
or part thereof filed with an exchange pursuant to the Act may be 
incorporated by reference as an exhibit to any statement or report 
filed with the exchange by the same or any other person. If any 
modification has occurred in the text of any document incorporated by 
reference since the filing thereof, the registrant must file with the 
reference a statement containing the text of any such modification and 
the date thereof.
    (d) Hyperlinks. You must include an active hyperlink to information 
incorporated into a registration statement or report by reference if 
such information is publicly available on the Commission's Electronic 
Data Gathering, Analysis and Retrieval System (``EDGAR'') at the time 
the registration statement or form is filed. For hyperlinking to 
exhibits, please refer to Item 601 of Regulation S-K (Sec.  229.601 of 
this chapter) or the appropriate form.

[[Page 12728]]

    (e) General. Include an express statement clearly describing the 
specific location of the information you are incorporating by 
reference. The statement must identify the document where the 
information was originally filed or submitted and the location of the 
information within that document. The statement must be made at the 
particular place where the information is required, if applicable. 
Information must not be incorporated by reference in any case where 
such incorporation would render the disclosure incomplete, unclear, or 
confusing. For example, unless expressly permitted or required, 
disclosure must not be incorporated by reference from a second document 
if that second document incorporates information pertinent to such 
disclosure by reference to a third document.


Sec.  240.12b-32  [Removed and Reserved]

0
47. Remove and reserve Sec.  240.12b-32.

0
48. Amend Sec.  240.14a-101 by revising the first sentence of Note D.1 
to read as follows:


Sec.  240.14a-101   Schedule 14A. Information required in proxy 
statement.

* * * * *

D. * * *

    1. Disclosure must not be incorporated by reference from a second 
document if that second document incorporates information pertinent to 
such disclosure by reference to a third document. * * *
* * * * *


Sec.  240.16a-3   [Amended]

0
49. Amend Sec.  240.16a-3 by removing and reserving paragraph (e).

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

0
50. 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.; 12 U.S.C. 
5461 et seq.; 18 U.S.C. 1350; Sec. 953(b), Pub. L. 111-203, 124 
Stat. 1904; Sec. 102(a)(3), Pub. L. 112-106, 126 Stat. 309 (2012); 
Sec. 107, Pub. L. 112-106, 126 Stat. 313 (2012), and Sec. 72001, 
Pub. L. 114-94, 129 Stat. 1312 (2015), unless otherwise noted.
* * * * *

General Instruction 3 to Form 3 (referenced in Sec.  249.103) [Amended]

0
51. Remove and reserve paragraph (c) of General Instruction 3 to Form 3 
(referenced in Sec.  249.103).

General Instruction 2 to Form 4 (referenced in Sec.  249.104) [Amended]

0
52. Remove and reserve paragraph (c) of General Instruction 2 to Form 4 
(referenced in Sec.  249.104).

General Instruction 2 to Form 5 (referenced in Sec.  249.105) [Amended]

0
53. Remove and reserve paragraph (c) of General Instruction 2 to Form 5 
(referenced in Sec.  249.105).

0
54. Amend Form 8-A (referenced in Sec.  249.208a) by revising the 
Instructions as to Exhibits to read as follows:

    Note:  The text of Form 8-A does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-A

FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 
12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934

* * * * *

INSTRUCTIONS FOR EXHIBITS

    If the securities to be registered on this form are to be 
registered on an exchange on which other securities of the registrant 
are registered, or are to be registered pursuant to Section 12(g) of 
the Act, copies of all constituent instruments defining the rights of 
the holders of each class of such securities, including any contracts 
or other documents which limit or qualify the rights of such holders, 
must be filed as exhibits with each copy of the registration statement 
filed with the Commission or with an exchange, subject to Rule 12b-
23(c) regarding incorporation of exhibits by reference.
* * * * *

0
55. Amend Form 10 (referenced in Sec.  249.210) by revising the first 
sentence in Item 1A to read as follows:

    Note:  The text of Form 10 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 10

GENERAL FORM FOR REGISTRATION OF SECURITIES

Pursuant to Section 12(b) or (g) of the Securities Exchange Act of 1934

* * * * *

INFORMATION REQUIRED IN REGISTRATION STATEMENT

* * * * *

Item 1A. Risk Factors.

    Set forth, under the caption ``Risk Factors,'' where appropriate, 
the risk factors described in Item 105 of Regulation S-K (Sec.  229.105 
of this chapter) applicable to the registrant. * * *
* * * * *

0
56. Amend Form 20-F (referenced in Sec.  249.220f) by:
0
a. Adding a field to the cover page to include trading symbol(s);
0
b. Adding Instruction 6 under ``Instructions to Item 5'';
0
c. Revising Instruction 1(b) under ``Instructions to Item 10'';
0
d. Revising Instructions 1 and 2 under ``Instructions to Item 12'';
0
e. Revising the introductory text and Instruction 4(a) and adding 
Instructions 2(d) and 104 under ``Instructions As To Exhibits''.
    The additions and revisions read as follows:

    Note:  The text of Form 20-F does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 20-F

* * * * *
    Securities registered or to be registered pursuant to Section 12(b) 
of the Act.

----------------------------------------------------------------------------------------------------------------
                                               Trading
           Title of each class                symbol(s)          Name of each exchange on which registered
----------------------------------------------------------------------------------------------------------------
                                                           .....................................................
----------------------------------------------------------------------------------------------------------------

* * * * *

GENERAL INSTRUCTIONS

* * * * *

Item 5. Operating and Financial Review and Prospects

* * * * *

[[Page 12729]]

    Instructions to Item 5:
* * * * *
    6. Generally, the discussion shall cover the periods covered by the 
financial statements and the registrant may use any format that in the 
registrant's judgment enhances a reader's understanding. For 
registrants providing financial statements covering three years in a 
filing, a discussion of the earliest of the three years may be omitted 
if such discussion was already included in any other of the 
registrant's prior filings on EGDAR that required disclosure in 
compliance with Item 5 of Form 20-F, provided that registrants electing 
not to include a discussion of the earliest year must include a 
statement that identifies the location in the prior filing where the 
omitted discussion may be found.
* * * * *

Item 10. Additional Information

* * * * *
    Instructions to Item 10:
* * * * *
    1. * * *
    (b) If the information called for by Item 10.B has been reported 
previously in a registration statement on Form 20-F or a registration 
statement filed under the Securities Act and has not changed, you may 
incorporate that information by a specific reference in the annual 
report to the previous registration statement or, to the extent that 
this information has been provided in the exhibit required by 
instruction 2(d) of the Instructions as to Exhibits, you may refer to 
the exhibit for this information.
* * * * *

Item 12. Description of Securities Other Than Equity Securities

* * * * *
    Instructions to Item 12:
* * * * *
    1. If you are using the form as an annual report, provide the 
information required by Item 12.D.3 and Item 12.D.4 under this Item of 
your annual report and provide the remainder of the information 
required by this Item in an exhibit to such report pursuant to 
paragraph 2(d) of Instructions as to Exhibits.
    2. You do not need to include any information in a registration 
statement, prospectus, or annual report on Form 20-F in response to 
Item 305(a)(2) of the Trust Indenture Act of 1939, 15 U.S.C. 77aaa et 
seq., as amended, if the information is not otherwise required by this 
Item or Instruction 2(d) under Instructions as to Exhibits of this 
Form.

INSTRUCTIONS AS TO EXHIBITS

    File the exhibits listed below as part of an Exchange Act 
registration statement or report. Exchange Act Rule 12b-23(c) explains 
the circumstances in which you may incorporate exhibits by reference. 
Exchange Act Rule 24b-2 explains the procedure to be followed in 
requesting confidential treatment of information required to be filed.
    Previously filed exhibits may be incorporated by reference. If any 
previously filed exhibits have been amended or modified, file copies of 
the amendment or modification or copies of the entire exhibit as 
amended or modified.
    If the Form 20-F registration statement or annual report requires 
the inclusion, as an exhibit or attachment, of a document that is in a 
foreign language, you must provide instead either an English 
translation or an English summary of the foreign language document in 
accordance with Exchange Act Rule 12b-12(d) (17 CFR 240.12b-12(d)) for 
both electronic and paper filings. You may submit a copy of the 
unabridged foreign language document along with the English translation 
or summary as permitted by Regulation S-T Rule 306(b) (17 CFR 
232.306(b)) for electronic filings or by Exchange Act Rule 12b-12(d)(4) 
(17 CFR 240.12b-12(d)(4)) for paper filings.
    Include an exhibit index in each registration statement or report 
you file, immediately preceding the exhibits you are filing. The 
exhibit index must list each exhibit according to the number assigned 
to it below. If an exhibit is incorporated by reference, note that fact 
in the exhibit index. For paper filings, the pages of the manually 
signed original registration statement should be numbered in sequence, 
and the exhibit index should give the page number in the sequential 
numbering system where each exhibit can be found.
    Schedules (or similar attachments) to the exhibits required by this 
Form 20-F are not required to be filed unless they contain information 
material to an investment or voting decision and that information is 
not otherwise disclosed in the exhibit or the disclosure document. Each 
exhibit filed must contain a list briefly identifying the contents of 
all omitted schedules. Registrants need not prepare a separate list of 
omitted information if such information is already included within the 
exhibit in a manner that conveys the subject matter of the omitted 
schedules and attachments. In addition, the registrant must provide a 
copy of any omitted schedule to the Commission or its staff upon 
request.
    The registrant may redact information from exhibits required to be 
filed by this Form 20-F if disclosure of that information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information). The registrant is not required to 
undertake or provide to the Commission upon request a materiality or 
competitive harm analysis of this redacted information.
* * * * *
    2. * * *
    (d) If a registrant is filing an annual report under Exchange Act 
Section 13(a) or 15(d), the registrant must provide as an exhibit a 
description of the rights of each class of securities that is 
registered under Section 12 of the Exchange Act as of the end of the 
period covered by the report with which the exhibit is filed. The 
description must include information for the securities comparable to 
that required by Item 9.A.3, A.5, A.6, and A.7, Item 10.B.3, B.4, B.6, 
B.7, B.8, B.9, and B.10, and Item 12.A, 12.B, 12.C, and 12.D.1 and 
12.D.2 of Form 20-F (collectively, the ``Description of Securities''). 
However, for purposes of this paragraph 2(d), all references in those 
Items to securities to be or being registered, offered or sold will 
mean securities that are registered as of the end of the period covered 
by the report with which the exhibit is filed. In addition, for 
purposes of this Item, the disclosure will be required for classes of 
securities that have not been retired by the end of the period covered 
by the report. A registrant may incorporate by reference and provide an 
active hyperlink to a prior periodic filing containing the disclosure 
required by this paragraph 2(d) so long as there has not been any 
change to the information called for by the Description of Securities 
since the filing date of the linked filing. Such hyperlink will be 
deemed to satisfy the requirements of this paragraph 2(d) for the 
current filing.
* * * * *
    4.(a) Every contract not made in the ordinary course of business 
that is material to the registrant and is to be performed in whole or 
in part at or after the filing of the registration statement or report. 
In addition, for newly reporting registrants, every contract not made 
in the ordinary course of business that is material to the registrant 
and that was entered into not more than two years before the date on 
which such registrant:
    (i) First files a registration statement or report; or

[[Page 12730]]

    (ii) completes a transaction that had the effect of causing it to 
cease being a public shell company.
    The only contracts that must be filed are those to which the 
registrant or a subsidiary of the registrant is a party or has 
succeeded to a party by assumption or assignment or in which the 
registrant or such subsidiary has a beneficial interest.
    The registrant may redact provisions or terms of exhibits required 
to be filed by this Form 20-F if those provisions or terms are both (i) 
not material and (ii) would likely cause competitive harm to the 
registrant if publicly disclosed. If it does so, the registrant should 
mark the exhibit or exhibits to indicate that portions of the exhibit 
or exhibits have been omitted and include a prominent statement on the 
first page of the redacted exhibit that certain identified information 
has been excluded from the exhibit because it is both (i) not material 
and (ii) would likely cause competitive harm to the registrant if 
publicly disclosed. The registrant also must indicate by brackets where 
the information is omitted from the filed version of the exhibit.
    If requested by the Commission or its staff, the registrant must 
provide an unredacted copy of the exhibit on a supplemental basis. The 
Commission staff also may request that the registrant provide its 
materiality and competitive harm analyses on a supplemental basis. Upon 
evaluation of the registrant's supplemental materials, the Commission 
staff may request that registrant amend its filing to include in the 
exhibit any previously redacted information that is not adequately 
supported by the registrant's materiality and competitive harm 
analyses.
    The registrant may request confidential treatment of the 
supplemental material submitted to the Commission or the staff pursuant 
to Rule 83 (17 CFR 200.83) while it is in the possession of the 
Commission staff. After reviewing the supplemental information, the 
Commission staff will return or destroy it at the request of the 
registrant, if the registrant complies with the procedures outlined in 
Rules 418 or 12b-4 (17 CFR 230.418 or 17 CFR 240.12b-4).

    Note:  A ``newly reporting registrant'' is (i) any registrant 
filing a registration statement that, at the time of such filing, is 
not subject to the reporting requirements of Section 13(a) or 15(d) 
of the Exchange Act, whether or not such registrant has ever 
previously been subject to the reporting requirements of Section 
13(a) or 15(d), (ii) any registrant that has not filed an annual 
report since the revival of a previously suspended reporting 
obligation, and (iii) any registrant that (a) was a shell company, 
other than a business combination related shell company, as defined 
in Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2), immediately 
before completing a transaction that has the effect of causing it to 
cease being a shell company and (b) has not filed a Form 20-F since 
the completion of such transaction. For example, newly reporting 
registrants would include (i) a registrant that is filing its first 
registration statement under the Securities Act or the Exchange Act, 
and (ii) a registrant that was a public shell company, other than a 
business combination related shell company, and completes a reverse 
merger transaction causing it to cease being a shell company.

* * * * *
    102 and 103 [Reserved]
    104. Cover Page Interactive Data File. If the Form 20-F is being 
used as an annual report, a Cover Page Interactive Data File (as 
defined in 17 CFR 232.11) as required by Rule 406 of Regulation S-T [17 
CFR 232.406], and in the manner provided by the EDGAR Filer Manual.

0
57. Amend Form 40-F (referenced in Sec.  249.240f) by:
0
a. Adding a field to the cover page to include trading symbol(s);
0
b. Adding paragraph B.17 under ``General Instructions''; and
0
c. Revising paragraph D.1 under ``General Instructions''.
    The additions and revisions read as follows:

    Note:  The text of Form 40-F does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 40-F

* * * * *
    Securities registered or to be registered pursuant to Section 12(b) 
of the Act.

----------------------------------------------------------------------------------------------------------------
                                               Trading
           Title of each class                symbol(s)          Name of each exchange on which registered
----------------------------------------------------------------------------------------------------------------
                                                           .....................................................
----------------------------------------------------------------------------------------------------------------

* * * * *

B. Information To Be Filed on This Form

* * * * *
    (17) Cover Page Interactive Data File. If the Form 40-F is being 
used as an annual report, a Cover Page Interactive Data File (as 
defined in 17 CFR 232.11) as required by Rule 406 of Regulation S-T [17 
CFR 232.406], in the manner provided by the EDGAR Filer Manual and 
listed as exhibit 104.
* * * * *

D. Application of General Rules and Regulations

    (1) Rules 12b-2, 12b-5, 12b-10, 12b-11, 12b-12, 12b-13, 12b-14, 
12b-21, 12b-22, 12b-23(a), 12b-23(b), 12b-23(d), 12b-25, 12b-33 and 
12b-37 under the Exchange Act shall not apply to filings on this Form. 
The rules and regulations applicable in the home jurisdiction regarding 
the form and method of preparation of disclosure documents shall apply 
to filings on this Form. Exchange Act rules and regulations other than 
Rules 12b-2, 12b-5, 12b-10, 12b-11, 12b-12, 12b-13, 12b-14, 12b-21, 
12b-22, 12b-23(a), 12b-23(d), 12b-23(b), 12b-25, 12b-33 and 12b-37 
shall apply to filings on this Form unless specifically excluded in 
this Form. * * *
* * * * *

0
58. Amend Form 8-K (referenced in Sec.  249.308) by adding a field to 
the cover page for securities registered pursuant to Section 12(b) of 
the Exchange Act, the title of each class of such securities, trading 
symbol(s) and name of each exchange on which registered; and adding 
Instructions 4, 5 and 6 under Item 1.01 to read as follows:

    Note:  The text of Form 8-K does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION,

Washington, DC 20549

FORM 8-K

* * * * *
    Securities registered pursuant to Section 12(b) of the Act:

[[Page 12731]]



----------------------------------------------------------------------------------------------------------------
                                               Trading
           Title of each class                symbol(s)          Name of each exchange on which registered
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

* * * * *

Instructions

* * * * *
    4. To the extent a material definitive agreement is filed as an 
exhibit under this Item 1.01, schedules (or similar attachments) to the 
exhibits are not required to be filed unless they contain information 
material to an investment or voting decision and that information is 
not otherwise disclosed in the exhibit or the disclosure document. Each 
exhibit filed must contain a list briefly identifying the contents of 
all omitted schedules. Registrants need not prepare a separate list of 
omitted information if such information is already included within the 
exhibit in a manner that conveys the subject matter of the omitted 
schedules and attachments. In addition, the registrant must provide a 
copy of any omitted schedule to the Commission or its staff upon 
request.
    5. To the extent a material definitive agreement is filed as an 
exhibit under this Item 1.01, the registrant may redact information 
from the exhibit if disclosure of such information would constitute a 
clearly unwarranted invasion of personal privacy (e.g., disclosure of 
bank account numbers, social security numbers, home addresses and 
similar information).
    6. To the extent a material definitive agreement is filed as an 
exhibit under this Item 1.01, the registrant may redact provisions or 
terms of the exhibit if those provisions or terms are both (i) not 
material and (ii) would likely cause competitive harm to the registrant 
if publicly disclosed, provided that the registrant intends to 
incorporate by reference this filing into its future periodic reports 
or registration statements, as applicable, in satisfaction of Item 
601(b)(10) of Regulation S-K. If it chooses to redact information 
pursuant to this instruction, the registrant should mark the exhibit 
index to indicate that portions of the exhibit or exhibits have been 
omitted and include a prominent statement on the first page of the 
redacted exhibit that certain identified information has been excluded 
from the exhibit because it is both (i) not material and (ii) would 
likely cause competitive harm to the registrant if publicly disclosed. 
The registrant also must indicate by brackets where the information is 
omitted from the filed version of the exhibit.
    If requested by the Commission or its staff, the registrant must 
promptly provide an unredacted copy of the exhibit on a supplemental 
basis. The Commission or its staff also may request the registrant to 
provide its materiality and competitive harm analyses on a supplemental 
basis. Upon evaluation of the registrant's supplemental materials, the 
Commission or its staff may request the registrant to amend its filing 
to include in the exhibit any previously redacted information that is 
not adequately supported by the registrant's materiality and 
competitive harm analyses.
    The registrant may request confidential treatment of the 
supplemental material submitted under Instruction 6 of this Item 
pursuant to Rule 83 (Sec.  200.83 of this chapter) while it is in the 
possession of the Commission or its staff. After completing its review 
of the supplemental information, the Commission or its staff will 
return or destroy it at the request of the registrant, if the 
registrant complies with the procedures outlined in Rules 418 or 12b-4 
(Sec.  230.418 or 240.12b-4 of this chapter).
* * * * *

0
59. Amend Form 10-Q (referenced in Sec.  249.308a) by adding a field to 
the cover page for securities registered pursuant to Section 12(b) of 
the Exchange Act, the title of each class of such securities, trading 
symbol(s) and name of each exchange on which registered:

    Note:  The text of Form 10-Q does not, and this amendment will 
not, appear in the Code of Federal Regulations

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 10-Q

* * * * *
    Securities registered pursuant to Section 12(b) of the Act:

----------------------------------------------------------------------------------------------------------------
                                               Trading
           Title of each class                symbol(s)          Name of each exchange on which registered
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

* * * * *

0
60. Amend Form 10-K (referenced in Sec.  249.310) by:
0
a. Revising the last sentence of Instruction (G)(3) under ``General 
Instructions'', the first sentence in Item 1A, and paragraph (a) under 
``Supplemental Information to be Furnished With Reports Filed Pursuant 
to Section 15(d) of the Act by Registrants Which Have Not Registered 
Securities Pursuant to Section 12 of the Act'';
0
b. Removing the second sentence of Instruction (G)(4) under ``General 
Instructions'', the checkbox that relates to disclosure under Item 405, 
and the instruction to Item 10; and
0
c. Adding a field to the cover page to include trading symbol(s).
    The revision and addition read as follows:

    Note:  The text of Form 10-K does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 10-K

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES 
EXCHANGE ACT OF 1934 GENERAL INSTRUCTIONS

* * * * *

G. Information To Be Incorporated by Reference

* * * * *

[[Page 12732]]

    (3) * * * See the Instruction to Item 401 of Regulation S-K (Sec.  
229.401 of this chapter).
* * * * *

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 10-K

* * * * *
    Securities registered pursuant to Section 12(b) of the Act:

----------------------------------------------------------------------------------------------------------------
                                               Trading
           Title of each class                symbol(s)          Name of each exchange on which registered
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

* * * * *

Item 1A. Risk Factors

    Set forth, under the caption ``Risk Factors,'' where appropriate, 
the risk factors described in Item 105 of Regulation S-K (Sec.  229.105 
of this chapter) applicable to the registrant. * * *
* * * * *

SUPPLEMENTAL INFORMATION TO BE FURNISHED WITH REPORTS FILED PURSUANT TO 
SECTION 15(d) OF THE ACT BY REGISTRANTS WHICH HAVE NOT REGISTERED 
SECURITIES PURSUANT TO SECTION 12 OF THE ACT

    (a) Except to the extent that the materials enumerated in (1) and/
or (2) below are specifically incorporated into this Form by reference, 
every registrant which files an annual report on this Form pursuant to 
Section 15(d) of the Act must furnish to the Commission for its 
information, at the time of filing its report on this Form, four copies 
of the following: * * *
* * * * *

0
61. Amend Form 10-D (referenced in Sec.  249.312 of this chapter) by:
0
a. Removing and reserving General Instruction D(2)(a); and
0
b. Revising General Instruction D(2)(d) to read as follows:

    Note:  The text of Form 10-D does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 10-D

ASSET-BACKED ISSUER DISTRIBUTION REPORT PURSUANT TO SECTION 13 OR 15(d) 
OF THE SECURITIES EXCHANGE ACT OF 1934

GENERAL INSTRUCTIONS

* * * * *
    (d) Exchange Act Rules 12b-23 (17 CFR 240.12b-23) (additional rules 
on incorporation by reference for reports filed pursuant to Sections 13 
and 15(d) of the Act).
* * * * *

PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1934

0
62. The authority citation for part 270 continues to read in part as 
follows:

    Authority: 15 U.S.C. 80a-1 et seq., 80a-34(d), 80a-37, 80a-39, 
and Pub. L. 111-203, sec. 939A, 124 Stat. 1376 (2010), unless 
otherwise noted.
* * * * *

0
63. Revise Sec.  270.0-4 to read as follows:


Sec.  270.0-4  Incorporation by reference.

    (a) Registration statements and reports. Except as provided by this 
section or in the appropriate form, information may be incorporated by 
reference in answer, or partial answer, to any item of a registration 
statement or report. Where an item requires a summary or outline of the 
provisions of any document, the summary or outline may incorporate by 
reference particular items, sections, or paragraphs of any exhibit and 
may be qualified in its entirety by such reference.
    (b) Financial information. Except as provided in the Commission's 
rules, financial information required to be given in comparative form 
for two or more fiscal years or periods must not be incorporated by 
reference unless the information incorporated by reference includes the 
entire period for which the comparative data is given. In the financial 
statements, incorporating by reference, or cross-referencing to, 
information outside of the financial statements is not permitted unless 
otherwise specifically permitted or required by the Commission's rules 
or by U.S. Generally Accepted Accounting Principles or International 
Financial Reporting Standards as issued by the International Accounting 
Standards Board, whichever is applicable.
    (c) Exhibits. Any document or part thereof, including any financial 
statement or part thereof, filed with the Commission pursuant to any 
Act administered by the Commission may be incorporated by reference as 
an exhibit to any registration statement, application, or report filed 
with the Commission by the same or any other person. If any 
modification has occurred in the text of any document incorporated by 
reference since the filing thereof, the registrant must file with the 
reference a statement containing the text of any such modification and 
the date thereof.
    (d) Hyperlinks. Include an active hyperlink to information 
incorporated into a registration statement, application, or report by 
reference if such information is publicly available on the Commission's 
Electronic Data Gathering, Analysis and Retrieval System (``EDGAR'') at 
the time the registration statement, application, or report is filed. 
For hyperlinking to exhibits, please refer to the appropriate form.
    (e) General. Include an express statement clearly describing the 
specific location of the information you are incorporating by 
reference. The statement must identify the document where the 
information was originally filed or submitted and the location of the 
information within that document. The statement must be made at the 
particular place where the information is required, if applicable. 
Information must not be incorporated by reference in any case where 
such incorporation would render the disclosure incomplete, unclear, or 
confusing. For example, unless expressly permitted or required, 
disclosure must not be incorporated by reference from a second document 
if that second document incorporates information pertinent to such 
disclosure by reference to a third document.


Sec.  270.8b-23   [Removed and Reserved]

0
64. Remove and reserve Sec.  270.8b-23.


Sec.  270.8b-24   [Removed and Reserved]

0
65. Remove and reserve Sec.  270.8b-24.


Sec.  270.8b-32  [Removed and Reserved]

0
66. Remove and reserve Sec.  270.8b-32.

[[Page 12733]]

PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1934

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

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l, 78m, 
78n, 78o(d), 80a-8, 80a-24, 80a-26, 80a-29, and Pub. L. 111-203, 
sec. 939A, 124 Stat. 1376 (2010), unless otherwise noted.
* * * * *

0
68. Amend Form N-5 (referenced in Sec. Sec.  239.24 and 274.5 of this 
chapter) ``Instructions as to Exhibits'' by adding paragraphs 1 through 
4 immediately following the introductory text to read as follows:

    Note:  The text of Form N-5 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM N-5

REGISTRATION STATEMENT SMALL BUSINESS INVESTMENT COMPANY UNDER THE 
SECURITIES ACT OF 1933 AND THE INVESTMENT COMPANY ACT OF 1940 *

* * * * *

INSTRUCTIONS AS TO EXHIBITS

* * * * *
    Instructions: Schedules (or similar attachments) to the exhibits 
required by this Item are not required to be filed provided that they 
do not contain information material to an investment or voting decision 
and that information is not otherwise disclosed in the exhibit or the 
disclosure document. Each exhibit filed must contain a list briefly 
identifying the contents of all omitted schedules. Registrants need not 
prepare a separate list of omitted information if such information is 
already included within the exhibit in a manner that conveys the 
subject matter of the omitted schedules and attachments. In addition, 
the registrant must provide a copy of any omitted schedule to the 
Commission or its staff upon request.
    2. The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information).
    3. The registrant may redact provisions or terms of exhibits 
required to be filed by paragraph 9 of this Item if those provisions or 
terms are both (i) not material and (ii) would likely cause competitive 
harm to the registrant if publicly disclosed. If it does so, the 
registrant should mark the exhibit index to indicate that portions of 
the exhibit or exhibits have been omitted and include a prominent 
statement on the first page of the redacted exhibit that certain 
identified information has been excluded from the exhibit because it is 
both (i) not material and (ii) would likely cause competitive harm to 
the registrant if publicly disclosed. The registrant also must indicate 
by brackets where the information is omitted from the filed version of 
the exhibit.
    If requested by the Commission or its staff, the registrant must 
promptly provide an unredacted copy of the exhibit on a supplemental 
basis. The Commission staff also may request the registrant to provide 
its materiality and competitive harm analyses on a supplemental basis. 
Upon evaluation of the registrant's supplemental materials, the 
Commission or its staff may request the registrant to amend its filing 
to include in the exhibit any previously redacted information that is 
not adequately supported by the registrant's materiality and 
competitive harm analyses. The registrant may request confidential 
treatment of the supplemental material pursuant to Rule 83 (Sec.  
200.83 of this chapter) while it is in the possession of the Commission 
or its staff. After completing its review of the supplemental 
information, the Commission or its staff will return or destroy it at 
the request of the registrant, if the registrant complies with the 
procedures outlined in Rules 418 (Sec.  230.418 of this chapter).
    4. Each exhibit identified in the exhibit index (other than an 
exhibit filed in eXtensible Business Reporting Language) must include 
an active link to an exhibit that is filed with the registration 
statement or, if the exhibit is incorporated by reference, an active 
hyperlink to the exhibit separately filed on EDGAR. If the registration 
statement is amended, each amendment must include active hyperlinks to 
the exhibits required with the amendment.
* * * * *

0
69. Amend Form N-1A (referenced in Sec. Sec.  239.15A and 274.11A of 
this chapter) by revising General Instruction D.2 and the Instructions 
to Item 28 to read as follows:

    Note:  The text of Form N-1A does not, and this amendment will 
not, appear in the Code of Federal Regulations.

FORM N-1A

* * * * *

General Instructions

* * * * *

D. Incorporation by Reference

* * * * *
2. General Requirements
    All incorporation by reference must comply with the requirements of 
this Form and the following rules on incorporation by reference: Rule 
411 under the Securities Act [17 CFR 230.411] (general rules on 
incorporation by reference in a prospectus); rule 303 of Regulation S-T 
[17 CFR 232.303] (specific requirements for electronically filed 
documents); and rule 0-4 [17 CFR 270.0-4] (additional rules on 
incorporation by reference for Funds).
* * * * *

Item 28. Exhibits

* * * * *

Instructions

    1. A Fund that is a Feeder Fund also must file a copy of all codes 
of ethics applicable to the Master Fund.
    2. Schedules (or similar attachments) to the exhibits required by 
this Item are not required to be filed provided that they do not 
contain information material to an investment or voting decision and 
that information is not otherwise disclosed in the exhibit or the 
disclosure document. Each exhibit filed must contain a list briefly 
identifying the contents of all omitted schedules. Registrants need not 
prepare a separate list of omitted information if such information is 
already included within the exhibit in a manner that conveys the 
subject matter of the omitted schedules and attachments. In addition, 
the registrant must provide a copy of any omitted schedule to the 
Commission or its staff upon request.
    3. The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information).
    4. The registrant may redact provisions or terms of exhibits 
required to be filed by paragraph (h) of this Item if those provisions 
or terms are both (1) not material and (2) would likely cause 
competitive harm to the registrant if publicly disclosed. If it does 
so, the registrant should mark the exhibit index to indicate that 
portions of the exhibit or exhibits have been omitted and include a 
prominent statement on the first page of the redacted exhibit that 
certain identified information has been

[[Page 12734]]

excluded from the exhibit because it is both (1) not material and (2) 
would likely cause competitive harm to the registrant if publicly 
disclosed. The registrant also must indicate by brackets where the 
information is omitted from the filed version of the exhibit.
    If requested by the Commission or its staff, the registrant must 
promptly provide an unredacted copy of the exhibit on a supplemental 
basis. The Commission staff also may request the registrant to provide 
its materiality and competitive harm analyses on a supplemental basis. 
Upon evaluation of the registrant's supplemental materials, the 
Commission or its staff may request the registrant to amend its filing 
to include in the exhibit any previously redacted information that is 
not adequately supported by the registrant's materiality and 
competitive harm analyses. The registrant may request confidential 
treatment of the supplemental material pursuant to Rule 83 (Sec.  
200.83 of this chapter) while it is in the possession of the Commission 
or its staff. After completing its review of the supplemental 
information, the Commission or its staff will return or destroy it at 
the request of the registrant, if the registrant complies with the 
procedures outlined in Rules 418 (Sec.  230.418 of this chapter).
    5. Each exhibit identified in the exhibit index (other than an 
exhibit filed in eXtensible Business Reporting Language) must include 
an active link to an exhibit that is filed with the registration 
statement or, if the exhibit is incorporated by reference, an active 
hyperlink to the exhibit separately filed on EDGAR. If the registration 
statement is amended, each amendment must include active hyperlinks to 
the exhibits required with the amendment.
* * * * *

0
70. Amend Form N-2 (referenced in Sec. Sec.  239.14 and 274.11a-1 of 
this chapter) by revising General Instruction F and the Instructions to 
Item 25.2 to add Instructions 4, 5, 6, and 7 to read as follows:

    Note:  The text of Form N-2 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

FORM N-2

* * * * *

GENERAL INSTRUCTIONS

* * * * *

F. Incorporation by Reference

    Incorporation by reference permits a Registrant to include 
documents and exhibits filed previously with the Commission as part of 
the registration statement by making reference to where, and under what 
designation, these documents can be found in previous filings. A 
Registrant may incorporate all or part of the Statement of Additional 
Information (the ``SAI'') into the prospectus delivered to investors 
without physically delivering the SAI with the prospectus, so long as 
the SAI is available to investors upon request at no charge and any 
information or documents incorporated by reference into the SAI are 
provided along with the SAI, except to the extent provided by paragraph 
F.3 below.
    In general, a Registrant may incorporate by reference, in response 
to any item of Form N-2 not required to be included in the prospectus, 
any information contained elsewhere in the registration statement or in 
other statements, applications, or reports filed with the Commission.
    A Registrant may incorporate by reference into the prospectus or 
the SAI in response to Item 4.1 or 24 of this form the information 
contained in Form N-CSR [17 CFR 249.331 and 274.128] or any report to 
shareholders meeting the requirements of Section 30(e) of the 1940 Act 
[15 U.S.C. 80a-29(e)] and Rule 30e-1 [17 CFR 270.30e-1] thereunder (and 
a Registrant that has elected to be regulated as a business development 
company may so incorporate into Items 4.2, 8.6.c, or 24 of this form 
the information contained in its annual report under the Securities 
Exchange Act of 1934 [15 U.S.C. 78a et seq.] (the ``Exchange Act'')), 
provided:
    1. The material incorporated by reference is prepared in accordance 
with, and covers the periods specified by, this form.
    2. The Registrant states in the prospectus or the SAI, at the place 
where the information required by Items 4.1, 4.2, 8.6.c, or 24 of this 
form would normally appear, that the information is incorporated by 
reference from a report to shareholders or a report on Form N-CSR. (The 
Registrant also may describe briefly, in either the prospectus, the 
SAI, or Part C of the registration statement (in response to Item 25.1) 
those portions of the report to shareholders or report on Form N-CSR 
that are not incorporated by reference and are not a part of the 
registration statement.)
    3. The material incorporated by reference is provided with the 
prospectus and/or the SAI to each person to whom the prospectus and/or 
the SAI is sent or given, unless the person holds securities of the 
Registrant and otherwise has received a copy of the material. (The 
Registrant must state in the prospectus and/or the SAI that it will 
furnish, without charge, a copy of such material on request and provide 
the name, address, and telephone number of the person to contact.)
    All incorporation by reference must comply with the requirements of 
this Form and the following rules on incorporation by reference: Rule 
411 under the Securities Act [17 CFR 230.411] (general rules on 
incorporation by reference in a prospectus); rule 303 of Regulation S-T 
[17 CFR 232.303] (specific requirements for electronically filed 
documents); and rule 0-4 [17 CFR 270.0-4] (additional rules on 
incorporation by reference for investment companies).
* * * * *

Item 25. Financial Statements and Exhibits

* * * * *
    2. Exhibits:
* * * * *

Instructions

* * * * *
    4. Schedules (or similar attachments) to the exhibits required by 
this Item are not required to be filed provided that they do not 
contain information material to an investment or voting decision and 
that information is not otherwise disclosed in the exhibit or the 
disclosure document. Each exhibit filed must contain a list briefly 
identifying the contents of all omitted schedules. Registrants need not 
prepare a separate list of omitted information if such information is 
already included within the exhibit in a manner that conveys the 
subject matter of the omitted schedules and attachments. In addition, 
the registrant must provide a copy of any omitted schedule to the 
Commission or its staff upon request.
    5. The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information).
    6. The registrant may redact provisions or terms of exhibits 
required to be filed by paragraph k. of this Item if those provisions 
or terms are both (1) not material and (2) would likely cause 
competitive harm to the registrant if publicly disclosed. If it does 
so, the registrant should mark the exhibit index to indicate that 
portions of the exhibit or exhibits have been omitted and include a 
prominent statement on the first page of the redacted exhibit that 
certain identified information has been excluded from the exhibit 
because it is

[[Page 12735]]

both (1) not material and (2) would likely cause competitive harm to 
the registrant if publicly disclosed. The registrant also must indicate 
by brackets where the information is omitted from the filed version of 
the exhibit.
    If requested by the Commission or its staff, the registrant must 
promptly provide an unredacted copy of the exhibit on a supplemental 
basis. The Commission staff also may request the registrant to provide 
its materiality and competitive harm analyses on a supplemental basis. 
Upon evaluation of the registrant's supplemental materials, the 
Commission or its staff may request the registrant to amend its filing 
to include in the exhibit any previously redacted information that is 
not adequately supported by the registrant's materiality and 
competitive harm analyses. The registrant may request confidential 
treatment of the supplemental material pursuant to Rule 83 (Sec.  
200.83 of this chapter) while it is in the possession of the Commission 
or its staff. After completing its review of the supplemental 
information, the Commission or its staff will return or destroy it at 
the request of the registrant, if the registrant complies with the 
procedures outlined in Rules 418 (Sec.  230.418 of this chapter).
    7. Each exhibit identified in the exhibit index (other than an 
exhibit filed in eXtensible Business Reporting Language) must include 
an active link to an exhibit that is filed with the registration 
statement or, if the exhibit is incorporated by reference, an active 
hyperlink to the exhibit separately filed on EDGAR. If the registration 
statement is amended, each amendment must include active hyperlinks to 
the exhibits required with the amendment.
* * * * *

0
71. Amend Form N-3 (referenced in Sec. Sec.  239.17a and 274.11b of 
this chapter) by revising General Instruction G and the Instructions to 
Item 29(b) to add Instructions 3, 4, 5, and 6 to read as follows:

    Note:  The text of Form N-3 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

FORM N-3

* * * * *

GENERAL INSTRUCTIONS

* * * * *

G. Incorporation by Reference

    A Registrant may, at its discretion, incorporate all or part of the 
Statement of Additional Information into the prospectus, without 
physically delivering the Statement of Additional Information to 
investors with the prospectus. But the Statement of Additional 
Information must be available to the investor upon request at no charge 
and any information or documents incorporated by reference into the 
Statement of Additional Information must be provided along with the 
Statement of Additional Information.
    In general, a Registrant may incorporate by reference, in the 
answer to any item of Form N-3 not required to be in the prospectus, 
any information elsewhere in the registration statement or in other 
statements, applications, or reports filed with the Commission.
    Subject to these rules, a Registrant may incorporate by reference 
into the prospectus or the Statement of Additional Information in 
response to Items 4(a) or 28 of Form N-3 the information in Form N-CSR 
[17 CFR 249.331 and 274.128] or any report to contract owners meeting 
the requirements of Section 30(e) of the 1940 Act [15 U.S.C. 80a-29(e)] 
and Rule 30e-1 [17 CFR 270.30e-1] provided:
    1. The material incorporated by reference is prepared in accordance 
with, and covers the periods specified by, this Form.
    2. The Registrant states in the prospectus or the Statement of 
Additional Information, at the place where the information would 
normally appear, that the information is incorporated by reference from 
a report to security holders or a report on Form N-CSR. The Registrant 
may also describe, in either the prospectus, the Statement of 
Additional Information, or Part C of the Registration Statement (in 
response to Item 29(a)), any parts of the report to security holders or 
the report on Form N-CSR that are not incorporated by reference and are 
not a part of the Registration Statement.
    3. The material incorporated by reference is provided with the 
prospectus or the Statement of Additional Information to each person to 
whom the prospectus or the Statement of Additional Information is 
given, unless the person holds securities of the Registrant and 
otherwise has received a copy of the material. However, Registrant must 
state in the prospectus or the Statement of Additional Information that 
it will furnish, without charge, another copy of such report on request 
and the name, address, and telephone number of the person to contact.
    All incorporation by reference must comply with the requirements of 
this Form and the following rules on incorporation by reference: Rule 
411 under the Securities Act [17 CFR 230.411] (general rules on 
incorporation by reference in a prospectus); rule 303 of Regulation S-T 
[17 CFR 232.303] (specific requirements for electronically filed 
documents); and rule 0-4 [17 CFR 270.0-4] (additional rules on 
incorporation by reference for investment companies).
* * * * *

Item 29. Financial Statements and Exhibits

* * * * *
    (b) Exhibits:
* * * * *

Instructions

* * * * *
    3. Schedules (or similar attachments) to the exhibits required by 
this Item are not required to be filed provided that they do not 
contain information material to an investment or voting decision and 
that information is not otherwise disclosed in the exhibit or the 
disclosure document. Each exhibit filed must contain a list briefly 
identifying the contents of all omitted schedules. Registrants need not 
prepare a separate list of omitted information if such information is 
already included within the exhibit in a manner that conveys the 
subject matter of the omitted schedules and attachments. In addition, 
the registrant must provide a copy of any omitted schedule to the 
Commission or its staff upon request.
    4. The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information).
    5. The registrant may redact provisions or terms of exhibits 
required to be filed by paragraphs (9) and (11) of this Item if those 
provisions or terms are both (i) not material and (ii) would likely 
cause competitive harm to the registrant if publicly disclosed. If it 
does so, the registrant should mark the exhibit index to indicate that 
portions of the exhibit or exhibits have been omitted and include a 
prominent statement on the first page of the redacted exhibit that 
certain identified information has been excluded from the exhibit 
because it is both (i) not material and (ii) would likely cause 
competitive harm to the registrant if publicly disclosed. The 
registrant also must indicate by brackets where the information is 
omitted from the filed version of the exhibit.
    If requested by the Commission or its staff, the registrant must 
promptly

[[Page 12736]]

provide an unredacted copy of the exhibit on a supplemental basis. The 
Commission staff also may request the registrant to provide its 
materiality and competitive harm analyses on a supplemental basis. Upon 
evaluation of the registrant's supplemental materials, the Commission 
or its staff may request the registrant to amend its filing to include 
in the exhibit any previously redacted information that is not 
adequately supported by the registrant's materiality and competitive 
harm analyses. The registrant may request confidential treatment of the 
supplemental material pursuant to Rule 83 (Sec.  200.83 of this 
chapter) while it is in the possession of the Commission or its staff. 
After completing its review of the supplemental information, the 
Commission or its staff will return or destroy it at the request of the 
registrant, if the registrant complies with the procedures outlined in 
Rules 418 (Sec.  230.418 of this chapter).
    6. Each exhibit identified in the exhibit index (other than an 
exhibit filed in eXtensible Business Reporting Language) must include 
an active link to an exhibit that is filed with the registration 
statement or, if the exhibit is incorporated by reference, an active 
hyperlink to the exhibit separately filed on EDGAR. If the registration 
statement is amended, each amendment must include active hyperlinks to 
the exhibits required with the amendment.
* * * * *

0
72. Amend Form N-4 (referenced in Sec. Sec.  239.17b and 274.11c of 
this chapter) by revising General Instruction G and the Instructions to 
Item 24(b) to add Instructions 3, 4, 5, and 6 to read as follows:

    Note: The text of Form N-4 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

FORM N-4

* * * * *

GENERAL INSTRUCTIONS

* * * * *

G. Incorporation by Reference

    A Registrant may, at its discretion, incorporate all or part of the 
Statement of Additional Information into the prospectus, without 
physically delivering the Statement of Additional Information to 
investors with the prospectus. But the Statement of Additional 
Information must be available to the investor upon request at no charge 
and any information or documents incorporated by reference into the 
Statement of Additional Information must be provided along with the 
Statement of Additional Information.
    All incorporation by reference must comply with the requirements of 
this Form and the following rules on incorporation by reference: Rule 
411 under the Securities Act [17 CFR 230.411] (general rules on 
incorporation by reference in a prospectus); rule 303 of Regulation S-T 
[17 CFR 232.303] (specific requirements for electronically filed 
documents); and rule 0-4 [17 CFR 270.0-4] (additional rules on 
incorporation by reference for investment companies).
    In general, a Registrant may incorporate by reference, in the 
answer to any item of Form N-4 not required to be in the prospectus, 
any information elsewhere in the registration statement or in other 
statements, applications, or reports filed with the Commission.
* * * * *

Item 24. Financial Statements and Exhibits

* * * * *
    (b) Exhibits:
* * * * *

Instructions

* * * * *
    3. Schedules (or similar attachments) to the exhibits required by 
this Item are not required to be filed provided that they do not 
contain information material to an investment or voting decision and 
that information is not otherwise disclosed in the exhibit or the 
disclosure document. Each exhibit filed must contain a list briefly 
identifying the contents of all omitted schedules. Registrants need not 
prepare a separate list of omitted information if such information is 
already included within the exhibit in a manner that conveys the 
subject matter of the omitted schedules and attachments. In addition, 
the registrant must provide a copy of any omitted schedule to the 
Commission or its staff upon request.
    4. The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information).
    5. The registrant may redact provisions or terms of exhibits 
required to be filed by paragraphs (7) and (8) of this Item if those 
provisions or terms are both (i) not material and (ii) would likely 
cause competitive harm to the registrant if publicly disclosed. If it 
does so, the registrant should mark the exhibit index to indicate that 
portions of the exhibit or exhibits have been omitted and include a 
prominent statement on the first page of the redacted exhibit that 
certain identified information has been excluded from the exhibit 
because it is both (i) not material and (ii) would likely cause 
competitive harm to the registrant if publicly disclosed. The 
registrant also must indicate by brackets where the information is 
omitted from the filed version of the exhibit.
    If requested by the Commission or its staff, the registrant must 
promptly provide an unredacted copy of the exhibit on a supplemental 
basis. The Commission staff also may request the registrant to provide 
its materiality and competitive harm analyses on a supplemental basis. 
Upon evaluation of the registrant's supplemental materials, the 
Commission or its staff may request the registrant to amend its filing 
to include in the exhibit any previously redacted information that is 
not adequately supported by the registrant's materiality and 
competitive harm analyses. The registrant may request confidential 
treatment of the supplemental material pursuant to Rule 83 (Sec.  
200.83 of this chapter) while it is in the possession of the Commission 
or its staff. After completing its review of the supplemental 
information, the Commission or its staff will return or destroy it at 
the request of the registrant, if the registrant complies with the 
procedures outlined in Rules 418 (Sec.  230.418 of this chapter).
    6. Each exhibit identified in the exhibit index (other than an 
exhibit filed in eXtensible Business Reporting Language) must include 
an active link to an exhibit that is filed with the registration 
statement or, if the exhibit is incorporated by reference, an active 
hyperlink to the exhibit separately filed on EDGAR. If the registration 
statement is amended, each amendment must include active hyperlinks to 
the exhibits required with the amendment.
* * * * *

0
73. Amend Form N-6 (referenced in Sec. Sec.  239.17c and 274.11d of 
this chapter) by revising General Instruction D.2 and in Item 26 by 
adding Instructions 1 through 4 to read as follows:

    Note:  The text of Form N-6 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

FORM N-6

* * * * *

GENERAL INSTRUCTIONS

* * * * *

[[Page 12737]]

B. Filing and Use of Form N-6

* * * * *
4. What rules apply to the filing of a registration statement on Form 
N-6?
* * * * *

D. Incorporation by Reference

* * * * *
2. General Requirements
    All incorporation by reference must comply with the requirements of 
this Form and the following rules on incorporation by reference: rule 
411 under the Securities Act [17 CFR 230.411] (general rules on 
incorporation by reference in a prospectus); rule 303 of Regulation S-T 
[17 CFR 232.303] (specific requirements for electronically filed 
documents); and rule 0-4, [17 CFR 270.0-4] (additional rules on 
incorporation by reference for investment companies).
* * * * *

Item 26. Exhibits

* * * * *

Instructions

    1. Schedules (or similar attachments) to the exhibits required by 
this Item are not required to be filed provided that they do not 
contain information material to an investment or voting decision and 
that information is not otherwise disclosed in the exhibit or the 
disclosure document. Each exhibit filed must contain a list briefly 
identifying the contents of all omitted schedules. Registrants need not 
prepare a separate list of omitted information if such information is 
already included within the exhibit in a manner that conveys the 
subject matter of the omitted schedules and attachments. In addition, 
the registrant must provide a copy of any omitted schedule to the 
Commission or its staff upon request.
    2. The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information).
    3. The registrant may redact provisions or terms of exhibits 
required to be filed by paragraphs (g) and (j) of this Item if those 
provisions or terms are both (1) not material and (2) would likely 
cause competitive harm to the registrant if publicly disclosed. If it 
does so, the registrant should mark the exhibit index to indicate that 
portions of the exhibit or exhibits have been omitted and include a 
prominent statement on the first page of the redacted exhibit that 
certain identified information has been excluded from the exhibit 
because it is both (1) not material and (2) would likely cause 
competitive harm to the registrant if publicly disclosed. The 
registrant also must indicate by brackets where the information is 
omitted from the filed version of the exhibit.
    If requested by the Commission or its staff, the registrant must 
promptly provide an unredacted copy of the exhibit on a supplemental 
basis. The Commission staff also may request the registrant to provide 
its materiality and competitive harm analyses on a supplemental basis. 
Upon evaluation of the registrant's supplemental materials, the 
Commission or its staff may request the registrant to amend its filing 
to include in the exhibit any previously redacted information that is 
not adequately supported by the registrant's materiality and 
competitive harm analyses. The registrant may request confidential 
treatment of the supplemental material pursuant to Rule 83 (Sec.  
200.83 of this chapter) while it is in the possession of the Commission 
or its staff. After completing its review of the supplemental 
information, the Commission or its staff will return or destroy it at 
the request of the registrant, if the registrant complies with the 
procedures outlined in Rules 418 (Sec.  230.418 of this chapter).
    4. Each exhibit identified in the exhibit index (other than an 
exhibit filed in eXtensible Business Reporting Language) must include 
an active link to an exhibit that is filed with the registration 
statement or, if the exhibit is incorporated by reference, an active 
hyperlink to the exhibit separately filed on EDGAR. If the registration 
statement is amended, each amendment must include active hyperlinks to 
the exhibits required with the amendment.
* * * * *

0
74. Amend Form N-8B-2 (referenced in Sec.  274.12 of this chapter) in 
``IX Exhibits'' by adding Instructions 1 through 4 to read as follows:

    Note: The text of Form N-8B-2 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form N-8B-2

* * * * *
IX
EXHIBITS
* * * * *

Instructions

    1. Schedules (or similar attachments) to the exhibits are not 
required to be filed provided that they do not contain information 
material to an investment or voting decision and that information is 
not otherwise disclosed in the exhibit or the disclosure document. Each 
exhibit filed must contain a list briefly identifying the contents of 
all omitted schedules. Registrants need not prepare a separate list of 
omitted information if such information is already included within the 
exhibit in a manner that conveys the subject matter of the omitted 
schedules and attachments. In addition, the registrant must provide a 
copy of any omitted schedule to the Commission or its staff upon 
request.
    2. The registrant may redact information from exhibits required to 
be filed if disclosure of such information would constitute a clearly 
unwarranted invasion of personal privacy (e.g., disclosure of bank 
account numbers, social security numbers, home addresses and similar 
information).
    3. The registrant may redact provisions or terms of exhibits 
required to be filed by A(9) if those provisions or terms are both (1) 
not material and (2) would likely cause competitive harm to the 
registrant if publicly disclosed. If it does so, the registrant should 
mark the exhibit index to indicate that portions of the exhibit or 
exhibits have been omitted and include a prominent statement on the 
first page of the redacted exhibit that certain identified information 
has been excluded from the exhibit because it is both (1) not material 
and (2) would likely cause competitive harm to the registrant if 
publicly disclosed. The registrant also must indicate by brackets where 
the information is omitted from the filed version of the exhibit. If 
requested by the Commission or its staff, the registrant must promptly 
provide an unredacted copy of the exhibit on a supplemental basis. The 
Commission staff also may request the registrant to provide its 
materiality and competitive harm analyses on a supplemental basis. Upon 
evaluation of the registrant's supplemental materials, the Commission 
or its staff may request the registrant to amend its filing to include 
in the exhibit any previously redacted information that is not 
adequately supported by the registrant's materiality and competitive 
harm analyses. The registrant may request confidential treatment of the 
supplemental material pursuant to Rule 83 (Sec.  200.83 of this 
chapter) while it is in the possession of the Commission or its staff. 
After completing its review of the supplemental information, the 
Commission or its staff will return or destroy it at the request of the 
registrant, if the registrant complies with the

[[Page 12738]]

procedures outlined in Rules 418 (Sec.  230.418 of this chapter).
    4. Each exhibit identified in the exhibit index (other than an 
exhibit filed in eXtensible Business Reporting Language) must include 
an active link to an exhibit that is filed with the registration 
statement or, if the exhibit is incorporated by reference, an active 
hyperlink to the exhibit separately filed on EDGAR. If the registration 
statement is amended, each amendment must include active hyperlinks to 
the exhibits required with the amendment.
* * * * *

0
75. Amend Form N-CSR (referenced in Sec. Sec.  249.331 and 274.128 of 
this chapter) by:
0
a. Revising General Instruction D;
0
b. Removing ``Instruction to Item 11'' following paragraph (b) of Item 
13 and replacing it with ``Instructions to Item 13''; and
0
c. Revising the text following the ``Instructions to Item 13''.
    The revisions read as follows:

    Note: The text of Form N-CSR does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form N-CSR

* * * * *

GENERAL INSTRUCTIONS

* * * * *

D. Incorporation by Reference

    A registrant may incorporate by reference information required by 
Items 4, 5, and 12(a)(1). No other Items of the Form shall be answered 
by incorporating any information by reference. The information required 
by Items 4 and 5 may be incorporated by reference from the registrant's 
definitive proxy statement (filed or required to be filed pursuant to 
Regulation 14A (17 CFR 240.14a-1 et seq.)) or definitive information 
statement (filed or to be filed pursuant to Regulation 14C (17 CFR 
240.14c-1 et seq.)) involving the election of directors, if such 
definitive proxy statement or information statement is filed with the 
Commission not later than 120 days after the end of the fiscal year 
covered by an annual report on this Form. All incorporation by 
reference must comply with the requirements of this Form and the 
following rules on incorporation by reference: Rule 303 of Regulation 
S-T (17 CFR 232.303) (specific requirements for electronically filed 
documents); Rule 12b-23 under the Exchange Act (17 CFR 240.12b-23) 
(additional rules on incorporation by reference for reports filed 
pursuant to Sections 13 and 15(d) of the Exchange Act); and Rule 0-4 
(17 CFR 270.0-4) (additional rules on incorporation by reference for 
investment companies).
* * * * *

Item 13. Exhibits

* * * * *
    Instructions to Item 13
    1. Letter or number the exhibits in the sequence that they appear 
in this item. Each exhibit identified in the exhibit index (other than 
an exhibit filed in eXtensible Business Reporting Language) must 
include an active link to an exhibit that is filed with the 
registration statement or, if the exhibit is incorporated by reference, 
an active hyperlink to the exhibit separately filed on EDGAR. If the 
registration statement is amended, each amendment must include active 
hyperlinks to the exhibits required with the amendment.
    2. Schedules (or similar attachments) to the exhibits required by 
this Item are not required to be filed provided that they do not 
contain information material to an investment or voting decision and 
that information is not otherwise disclosed in the exhibit or the 
disclosure document. Each exhibit filed must contain a list briefly 
identifying the contents of all omitted schedules. Registrants need not 
prepare a separate list of omitted information if such information is 
already included within the exhibit in a manner that conveys the 
subject matter of the omitted schedules and attachments. In addition, 
the registrant must provide a copy of any omitted schedule to the 
Commission or its staff upon request.
    3. The registrant may redact information from exhibits required to 
be filed by this Item if disclosure of such information would 
constitute a clearly unwarranted invasion of personal privacy (e.g., 
disclosure of bank account numbers, social security numbers, home 
addresses and similar information).
* * * * *

PART 275--RULES AND REGULATIONS, INVESTMENT ADVISERS ACT OF 1940

0
76. The authority citation for part 275 continues to read, in part, as 
follows:

    Authority:  15 U.S.C. 80b-2(a)(11)(G), 80b-2(a)(11)(H), 80b-
2(a)(17), 80b-3, 80b-4, 80b-4a, 80b-6(4), 80b-6a, and 80b-11, unless 
otherwise noted.
* * * * *

0
77. Revise Sec.  275.0-6 to read as follows:


Sec.  275.0-6   Incorporation by reference in applications.

    (a) Exhibits. Any document or part thereof, including any financial 
statement or part thereof, filed with the Commission pursuant to any 
Act administered by the Commission may be incorporated by reference as 
an exhibit to any application filed with the Commission by the same or 
any other person. If any modification has occurred in the text of any 
document incorporated by reference since the filing thereof, the 
registrant must file with the reference a statement containing the text 
of any such modification and the date thereof.
    (b) General. Include an express statement clearly describing the 
specific location of the information you are incorporating by 
reference. The statement must identify the document where the 
information was originally filed or submitted and the location of the 
information within that document. The statement must be made at the 
particular place where the information is required, if applicable. 
Information must not be incorporated by reference in any case where 
such incorporation would render the disclosure incomplete, unclear, or 
confusing. For example, unless expressly permitted or required, 
disclosure must not be incorporated by reference from a second document 
if that second document incorporates information pertinent to such 
disclosure by reference to a third document.
    (c) Definition of Application. For purposes of this rule, an 
``application'' means any application for an order of the Commission 
under the Act other than an application for registration as an 
investment adviser.

    By the Commission.

    Dated: March 20, 2019.
Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-05695 Filed 4-1-19; 8:45 am]
 BILLING CODE 8011-01-P


