Rule · SEC · 3 Feb 2021 · 2021-00381
The Securities and Exchange Commission adopted revisions to Volumes I and II of the EDGAR Filer Manual and amended Regulation S-T to streamline filing procedures and modernize access requirements. The updates permit electronic and remote online notarizations for EDGAR access requests, clarify legal consequences for misstatements, and reflect technical changes from EDGAR Release 20.4. Additionally, the Commission solicited comments on the Form ID information collection burden under the Paperwork Reduction Act of 1995.
1We originally adopted the Filer Manual on April 1, 1993, with an effective date of April 26, 1993. Release No. 33–6986 (Apr. 1, 1993) [58 FR 18638]. The most recent update to the Filer Manual was Volume II: ‘‘EDGAR Filing,’’ Version 55 (November 2020). See Electronic Signatures in Regulation S–T Rule 302, Release No. 33–10889 (Nov. 17, 2020) [85 FR 78224] (‘‘Electronic Signatures Release’’). 2See 17 CFR 232.10(b) (‘‘Rule 10(b)’’). SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 232 [Release Nos. 33–10902; 34–90637; 39– 2536, IC–34137] Adoption of Updated EDGAR Filer Manual, Proposed Collection and Comment Request for Form ID AGENCY: Securities and Exchange Commission. ACTION: Final rule. SUMMARY: The Securities and Exchange Commission (the ‘‘Commission’’) is adopting revisions to Volumes I and II of the Electronic Data Gathering, Analysis, and Retrieval system (‘‘EDGAR’’) Filer Manual (‘‘EDGAR Filer Manual’’ or ‘‘Filer Manual’’) and related rules. The revisions substantially reduce the length of Volume I, and amend Volume I and related rules under Regulation S–T, including provisions regarding electronic notarizations and remote online notarizations, which include electronic signatures. The revisions to Volume II reflect changes made to EDGAR on December 14, 2020. The Commission is also providing notice and soliciting comments on the Form ID collection of information pursuant to the Paperwork Reduction Act of 1995. DATES: Effective date: February 3, 2021. The incorporation by reference of the EDGAR Filer Manual is approved by the Director of the Federal Register as of February 3, 2021. Comments date: Comments regarding the Form ID collection of information requirement for purposes of the Paperwork Reduction Act of 1995 should be received on or before March 1, 2021. FOR FURTHER INFORMATION CONTACT: For questions regarding updates to the Filer Manual and the related rule amendments, please contact Rosemary Filou, Chief Counsel; Monica Lilly, Senior Special Counsel; or Jane Patterson, Senior Counsel; in the EDGAR Business Office at 202–551– 3900, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549. For questions regarding the submission form types allowing eligible business development companies and other closed-end investment companies to file automatic shelf registration statements and corresponding post-effective amendments and the submission form types for securities fee registration payments by closed-end investment companies, please contact Heather Fernandez in the Division of Investment Management at (202) 551–6708. For questions regarding the exhibits available for Regulation A form types, please contact Christian Windsor, Senior Special Counsel, in the Division of Corporation Finance at (202) 551–
3419. For questions regarding the
internal control over financial reporting (‘‘ICFR’’) auditor attestation, please contact Christian Windsor, Senior Special Counsel, in the Division of Corporation Finance at (202) 551–3419, or for questions regarding the related changes to the EDGAR XBRL validation, please contact the Office of Structured Disclosure in the Division of Economic and Risk Analysis at (202) 551–5494. SUPPLEMENTARY INFORMATION: We are adopting an updated EDGAR Filer Manual, Volume I: ‘‘General Information,’’ Version 36 (December
2020) and Volume II: ‘‘EDGAR Filing,’’
Version 56 (December 2020) and amendments to 17 CFR 232.10 (‘‘Rule 10’’), 17 CFR 232.12 (‘‘Rule 12’’), and 17 CFR 232 301 (‘‘Rule 301’’) under 17 CFR
232.10 through 232.903 (‘‘Regulation S–
T’’). The updated Filer Manual volumes are incorporated by reference into the Code of Federal Regulations. The revisions substantially reduce the length of Volume I of the Filer Manual while retaining the procedural requirements for making electronic submissions on EDGAR. The Volume I revisions also clarify the legal consequences of misstatements or omissions of fact in EDGAR submissions, and inform filers of the Commission’s authority regarding submissions on EDGAR. The Commission is also amending Volume I of the Filer Manual and a related rule under Regulation S–T to allow applicants for EDGAR access to use electronic notarizations and remote online notarizations, which include electronic signatures, in addition to notarizations that include manual signatures. Moreover, the Commission is amending the same rule to exempt the notarized document requirements for EDGAR access from certain signature requirements in another rule under Regulation S–T. In addition, the Commission is amending a rule under Regulation S–T to reflect the Commission’s current hours for submission of electronic filings. As a separate matter, the Commission is adopting amendments to Volume II of the Filer Manual to reflect changes made to EDGAR on December 14, 2020. Finally, the Commission is providing notice and soliciting comments on the Form ID collection of information pursuant to the Paperwork Reduction Act of 1995.
I. Background
Volume I of the Filer Manual provides general information regarding electronic submissions to the Commission on EDGAR, including information concerning requirements for becoming an EDGAR filer.1 The Commission is substantially reducing the length of Volume I of the Filer Manual while retaining the procedural requirements for making electronic submissions on EDGAR. The revisions remove unnecessary and outdated content from Volume I, and relocate basic instructions and technical explanations to a newly designed web page on the Commission’s website. In addition, the Commission is:
3See 17 CFR 232.10(c) (‘‘Rule 10(c)’’); see also Rule 302. 4See 17 CFR 232.12(c) (‘‘Rule 12(c)’’). 5 44 U.S.C. 3501 et seq. 6See EDGAR—Information for Filers available at https://www.sec.gov/edgar/filer-information. The Commission staff has improved the architecture and content on the EDGAR Information for Filers web
page, including the addition of an extensive How
Do I guide which contains some of the information that previously was included in the EDGAR Filer Manual: Volume I ‘‘General Information,’’ Version
35. See How Do I guide available at https://
www.sec.gov/edgar/filer-information/how-do-i. 7For example, filers may consult the Series and Class (Contract) Identifiers information page on SEC.gov available at https://www.sec.gov/info/ edgar/ednews/seriesclassfaq063006.htm for guidance on this topic, and the Filing Fees Branch homepage available at https://www.sec.gov/page/ ffbsectionlanding for information about filing fees. 8See EDGAR Filer Manual, Volume I, Version 35,
Section 6.4.
9Certain technical specifications are replicated in Volume II of the Filer Manual. See, e.g., EDGAR Filer Manual, Volume II, Version 54, Section 9. 10See EDGAR Filer Manual, Volume I, Version 35, Section 3.1. 11See, e.g., Sections 11, 12(a)(2), and 17(a)(2) of the Securities Act of 1933. 12See EDGAR Filer Manual, Volume I, Version 36, Section 1. 13See EDGAR Filer Manual, Version 36, Volume I, Section 1. Rule 15 specifies in more detail the Commission’s ability to prevent submissions to EDGAR. See Release No. 33–10901 (Dec. 11, 2020). 14See Rule 10(b). 15See EDGAR Filer Manual, Volume I, Version 35, Section 3.2.2.2.4. 16Currently, over 36 states have enacted electronic notarization laws, while 25 states have enacted remote online notarization laws (certain of the latter group of states have not yet fully implemented remote online notarization). In addition, due to the COVID–19 pandemic, 34 states (including several that have not yet fully implemented remote online notarization) have issued emergency orders temporarily authorizing notaries to perform remote online notarization. See What States Allow Electronic Notary, DocVerify, https://www.docverify.com/Products/E-Notaries/ What-States-Allow-Electronic-Notary; Remote Notarization: What You Need to Know, National Notary Association (November 13, 2020), https:// www.nationalnotary.org/notary-bulletin/blog/2018/ 06/remote-notarization-what-you-need-to-know; Answers To Urgent Questions Notaries Are Asking About Remote Online Notarization, National Notary Association (Aug. 14, 2020), https:// www.nationalnotary.org/notary-bulletin/blog/2020/ 03/answers-urgent-questions-notaries-ron. 17See amended Rule 10(b) (removing the manual signature requirement for EDGAR access requests) and EDGAR Filer Manual, Volume I, Version 36,
Section 3 (‘‘The notarized signature of an
authorized individual must be obtained by manual, electronic, or remote online notarization recognized by the law of any state or territory of the United States or the District of Columbia, and must include a manual or electronic signature of the authorized individual, as required by the notary for the type of notarization at issue. Foreign filers who do not have access to a United States notary public must use the foreign local equivalent of a notary public or obtain notarization by a remote online notary recognized by the law of any state or territory of the United States or the District of Columbia.’’). Under the amendments, remote online notarization valid in any of the 50 states, United States territories, or the District of Columbia would be accepted, regardless of the location of the applicant, under the theory that a validated notary in any of these locations would suffice for federal identity verification purposes. manual signatures, to support requests for EDGAR access;
18See EDGAR Filer Manual, Volume I, Version 36, Section 3. 19See amended Rule 10(c); see also Rule 302. 20The Commission recently amended Rule 302 to permit the use of electronic signatures in signature authentication documents required to be executed and retained in connection with EDGAR filings. See Electronic Signatures Release, supra note 1. Amended Rule 302 provides, among other things, that each signatory to an electronic filing shall manually or electronically sign a signature page or other document authenticating, acknowledging or otherwise adopting his or her signature that appears in typed form within the electronic filing (‘‘authentication document’’). Rule 302 further provides that an electronically signed authentication document must meet certain requirements set forth in the EDGAR Filer Manual and that each signatory who electronically signs an authentication document pursuant to Rule 302 must manually sign a document attesting that, when using electronic signatures for purposes of Rule 302, the use of such electronic signature constitutes the legal equivalent of such individual’s manual signature for purposes of authenticating the signature to any filing for which it is provided. 21As discussed above, Rule 10 of Regulation S– T provides that filers must submit a signed and notarized document as part of the application for EDGAR access. See supra note 14 and accompanying text. 22See EDGAR Filer Manual, Volume I, Version 36, Section 2 (‘‘The SEC accepts electronic submissions on EDGAR . . . from 6 a.m. to 10 p.m. Eastern Time.’’). This information was also included in previous versions of the Filer Manual. See, e.g., EDGAR Filer Manual, Version 35, Volume I, Section 2.2 (‘‘EDGAR accepts . . . new filings . . . from 6:00 a.m. to 10:00 p.m., Eastern Time.’’). 23See Securities Offering Reform for Closed-End Investment Companies, Release No. 33–10771 (Apr. 8, 2020) [85 FR 33290] (‘‘Securities Offering Reform Release’’). 24See Accelerated Filer and Large Accelerated Filer Definitions, Release No 34–88365 (Mar. 12,
2020) [85 FR 17178].
25See Financial Disclosures about Guarantors and Issuers of Guaranteed Securities and Affiliates Whose Securities Collateralize a Registrant’s Securities, Release No. 33–10762 (Mar. 2, 2020) [85 FR 21940]. territory of the United States or the District of Columbia.18 Finally, we are revising Rule 10 to exclude the authentication document required by Rule 10 from the signature requirements of Rule 302 of Regulation S–T.19 Among other things, Rule 302 requires signatures to any electronic submission to be in typed form, rather than manual format, and provides various signature authentication requirements related to typed signatures.20 Since Rule 10 currently requires filers to submit a manually signed authentication document, that authentication document is not subject to the requirements of Rule 302. However, since as discussed above we are removing the manual signature requirement from Rule 10 to permit electronic notarization and remote online notarization, which include electronic signatures, the authentication document required by Rule 10 would be subject to Rule 302’s signature authentication requirements unless excluded from its provisions. Since Rule 10 already provides separate signature authentication requirements,21 we do not believe it is necessary to require filers seeking EDGAR access to comply with the signature authentication requirements of both Rule 10 and Rule 302.
III. Amendments to Rule 12, Regulation
S–T
The Commission is amending Rule 12(c) of Regulation S–T to reflect that electronic filings and other documents may be submitted ‘‘from 6 a.m. to 10 p.m., Eastern Time’’ instead of ‘‘by direct transmission, via dial-up modem or internet . . . from 8 a.m. to 10 p.m., Eastern Standard Time or Daylight Saving Time, whichever is currently in effect.’’ We are removing an antiquated and unnecessary reference to the method of submission and adjusting the filing times to reflect the Commission’s current practice and the correct filing times set forth in the Filer Manual.22
IV. Edgar Release 20.4 and
Amendments to Volume II of the Filer Manual EDGAR was updated in Release 20.4, and corresponding amendments to Volume II of the Filer Manual are being made to reflect these changes, described below. On April 8, 2020, the Commission adopted rules to modify the registration, communications, and offering processes for business development companies and other closed-end investment companies including allowing such eligible entities to file automatic shelf registration statements (ASRs) and corresponding post-effective amendments (POSASRs).23 EDGAR Release 20.4 adds the following new submission form types: N–2ASR:
Automatic shelf registration statement on Form N–2 for well-known seasoned issuers; and N–2 POSASR: Post-effective amendment to an automatic shelf registration statement on Form N–2 for well-known seasoned issuers. EDGAR Release 20.4 also adds new header data elements to the following submission form types: N–2, N–2/A, N–2MEF, POS 8C, 486APOS, 486BPOS, and 486BXT. In the Securities Offering Reform Release, the Commission also adopted amendments to modernize its approach to securities fee registration payment by requiring closed-end investment companies that operate as ‘‘interval funds’’ to pay securities registration fees using the same method as mutual funds and exchange-traded funds. EDGAR Release 20.4 adds a new header data element to the following submission form types: N–2, N–2/A, N–14 8C, N–14 8C/A, and N–14MEF. EDGAR Release
20.4 also allows filers to itemize share
class information on submission form types 24F–2NT and 24F–2NT/A, when the investment company type is ‘‘N–2.’’ See Chapter 3 (Index to Forms), Chapter 4 (Filing Fee Information), Chapter 7 (Preparing and Transmitting EDGARLink Online Submissions),
Appendix A (Messages Reported by
EDGAR), and Appendix C (EDGAR Submission Types) of the EDGAR Filer Manual, Volume II: ‘‘EDGAR Filing.’’ On March 12, 2020, the Commission adopted a requirement that issuers include a check box on the cover page of their Forms 10–K, 20–F, and 40–F annual reports to disclose whether they have obtained an ICFR auditor attestation under section 404(b) of the Sarbanes-Oxley Act.24 EDGAR Release
20.4 updates the EDGAR XBRL
validation to require an ICFR auditor attestation flag on the following submission form types: 10–K, 10–K/A, 10–KT, 10–KT/A, 20–F, 20–F/A, 40–F, and 40–F/A. This flag is a part of the XBRL DEI–2020 Taxonomy. See Chapter 6 (Interactive Data) of the EDGAR Filer Manual, Volume II: ‘‘EDGAR Filing.’’ On March 2, 2020, the Commission adopted amendments to the financial disclosure requirements for guarantors and issuers of guaranteed securities registered or being registered, and added a new exhibit requirement for Securities Act of 1933 registration statements and Securities Exchange Act of 1934 periodic reports, as well as Regulation A offering statements and reports, to improve those requirements for both investors and registrants.25 The amendments made new exhibits available for Regulation A form types to permit filers to identify subsidiaries that provide guarantees. Filers have the option to attach these new exhibits officially in HTML or ASCII format (and unofficially in PDF format). Accordingly, EDGAR Release 20.4 adds the following new exhibits:
26 5 U.S.C. 553(b)(A).
27 5 U.S.C. 601–612.
28 5 U.S.C. 804(3)(C). 29 5 U.S.C. 553(d)(3). 30 15 U.S.C. 77f, 77g, 77h, 77j, and 77s(a). 31 15 U.S.C. 78c, 78l, 78m, 78n, 78o, 78o–4, 78w, and 78ll. 32 15 U.S.C. 77sss. K, 1–K/A,1–SA, 1–SA/A, 1–U, and 1–U/ A. The ‘‘ADD EXHB’’ exhibit will replace the EX1A–15 ADD EXHB, EX1K–15 ADD EXHB, EX1SA–15 ADD EXHB, and EX1U15 ADD EXHB exhibits. To implement the change, EDGAR Release 20.4 removes the following exhibits:
33 15 U.S.C. 80a–8, 80a–29, 80a–30, and 80a–37. of the Investment Company Act of 1940.33 List of Subjects in 17 CFR Part 232 Incorporation by reference, Reporting and recordkeeping requirements, Securities. Text of the Amendments In accordance with the foregoing, title 17, chapter II of the Code of Federal Regulations is amended as follows:
PART 232—REGULATION S–T—
GENERAL RULES AND REGULATIONS FOR ELECTRONIC FILINGS
(b) * * *
(2) File, by uploading as a Portable Document Format (PDF) attachment to the Form ID filing, a notarized document, signed by the applicant, that includes the information required to be included in the Form ID filing and confirms the authenticity of the Form ID filing. (c) The requirements of § 232.302 (Rule 302) do not apply to the notarized document required by paragraph (b)(2) of this section.
(c) Submissions by direct transmission. Electronic filings and other documents may be submitted to the Commission each day, except Saturdays, Sundays, and Federal holidays, from 6 a.m. to 10 p.m., Eastern Time.
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“The most recent update to the Filer Manual was Volume II: ‘‘EDGAR Filing,’’ Version 55 (November 2020). See Electronic Signatures in Regulation S–T Rule 302, Release No. 33–10889 (Nov. 17, 2020) [85 FR 78224] (‘‘Electronic Signatures Relea…”
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