Amendments To Include New Applicant Types on Form ID

SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 239, 249, 269 and 274

[Release Nos. 33-9256; 34-65244; 39-2478; IC-29780]

Amendments To Include New Applicant Types on Form ID

AGENCY: Securities and Exchange Commission.

ACTION: Final rule amendments.

SUMMARY: The Securities and Exchange Commission (“Commission”) is amending Form ID to include additional applicant types in order to facilitate processing of the form. Form ID is the application for access codes to file on the Commission's Electronic Data Gathering, Analysis, and Retrieval (“EDGAR”) system. The purpose of introducing these new applicant types is to improve the Commission's internal procedures for processing filings, including by routing Form ID filings to the appropriate internal office or division.

DATES: Effective Date: September 9, 2011.

FOR FURTHER INFORMATION CONTACT: Catherine Moore, Senior Special Counsel or Andrew Bernstein, Attorney-Adviser, Office of Clearance and Settlement, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549, at (202) 551-5710.

SUPPLEMENTARY INFORMATION:

I. Background

Form ID is filed by registrants, third party filers, or any of their respective agents, to whom the Commission previously has not assigned a Central Index Key (“CIK”) code, to request access codes in order to file in electronic format through EDGAR. EDGAR access codes include the CIK code, the CIK Confirmation Code (“CCC”), Password (“PW”), and Password Modification Authorization Code (“PMAC”).[1]

[1] See EDGAR Filing Manual (Volume I) General Information (Section 2.4, Accessing EDGAR).

Currently, Form ID does not differentiate applicants by specific type and simply lists as possible applicant types “filer,” “filing agent,” “training agent,” “transfer agent,” and “individual.” However, the number and type of persons that use EDGAR for submitting filings has increased since Form ID was first adopted by the Commission and may increase further following the adoption of various rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd- Frank Act”).[2] Accordingly, the Commission is amending Form ID to list specific persons as applicant types on the form in order to allow the form to be assigned for processing within the Commission based on the type of applicant.

[2] The Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010).

The new applicant types include persons that currently file on EDGAR but who are not separately listed on Form ID, persons that currently file forms with the Commission in paper but who may be required to file on EDGAR in the future, and persons who will be required to meet certain new filing obligations under the Securities Exchange Act of 1934 (“Exchange Act”), including provisions added by the Dodd-Frank Act. The amendments to Form ID also include corresponding definitions for each new applicant type.[3] New applicants should select only one entity type when completing and submitting Form ID.[4] If an applicant qualifies as more than one of the applicant types listed on the form, it should select the applicant type related to the first filing it plans to submit on EDGAR. The access codes the applicant retrieves after Form ID is approved may be used to submit filings on EDGAR for any entity type (other than transfer agent) provided that such filing complies with all other applicable rules and regulations.[5] Persons that have previously filed Form ID applications with the Commission are not required to re-file Form ID as a result of these amendments.

[3] The definitions included in Form ID are to facilitate the correct selection of “applicant type” by a particular filer and are not intended to amend or otherwise change any provision of the federal securities laws or the regulations promulgated thereunder.

[4] For purposes of Form ID, the term “person” includes either an individual or entity. If the applicant is also an “individual” as defined in the current Form ID, then the applicant must apply as both an “individual” as well as another appropriate applicant type that properly characterizes it.

[5] Persons that are transfer agents must apply for a separate set of access codes even if they already submit filings on EDGAR in another capacity. See Securities Exchange Act Release No. 54865 (December 4, 2006), 71 FR 74698 (December 12, 2006) (File No. S7-14-06).

As more fully described below, the following applicant types and applicable definitions are being added to Form ID: Investment Company, Business Development Company or Insurance Company Separate Account, Institutional Investment Manager (Form 13F Filer), Non-Investment Company Applicant under the Investment Company Act of 1940, Large Trader, Clearing Agency, Municipal Advisor, Municipal Securities Dealer, Nationally Recognized Statistical Rating Organization, Security-Based Swap Data Repository, Security-Based Swap Dealer and Major Security-Based Swap Participant, and Security-Based Swap Execution Facility.

Investment Company, Business Development Company or Insurance Company Separate Account, Institutional Investment Manager (Form 13F Filer), and Non-Investment Company Applicant Under the Investment Company Act of 1940

Currently, a person that may fall within the applicant type of “Investment Company, Business Development Company or Insurance Company Separate Account,” “Institutional Investment Manager (Form 13F Filer),” or “Non-Investment Company Applicant under the Investment Company Act of 1940” may make submissions on EDGAR in electronic format without referencing the appropriate applicant type on Form ID. As such, the Commission is adding these specific applicant types to Form ID in order to facilitate processing of the form as filed by such persons. The applicant type of “Investment Company, Business Development Company or Insurance Company Separate Account” being added to Form ID includes persons that meet the definition of “investment company” in Section 3 of

the Investment Company Act of 1940 (“Investment Company Act”) [6] or otherwise register an offering of their securities on a registration form adopted by the Commission under the Investment Company Act, including management companies (within the meaning of Sections 4 and 5 of the Investment Company Act), face-amount certificate companies (within the meaning of Section 2(a)(15) of the Investment Company Act), unit investment trusts (within the meaning of Section 4 of the Investment Company Act), business development companies (within the meaning of Section 2(a)(48) of the Investment Company Act), and insurance company separate accounts (including any separate account which would be required to be registered under the Investment Company Act except for the exclusion provided by Section 3(c)(11) of such Act and which files a registration statement on Form N-3 or Form N-4). The applicant type of “Institutional Investment Manager (Form 13F Filer)” includes any person that is required to file a Form 13F under Section 13(f) of the Exchange Act and the rules promulgated thereunder.[7] Finally, a “Non-Investment Company Applicant under the Investment Company Act of 1940” is descriptive of the type of Form ID applicant that is submitting an application seeking an order from the Commission for an exemption from one or more provisions of the Investment Company Act and the rules promulgated thereunder.

[6] See 15 U.S.C. 80a-3.

[7] See 15 U.S.C. 78m(f)(6)(A).

Large Trader

The applicant type “Large Trader” is being added to Form ID in order for these new registrants to retrieve EDGAR access codes and subsequently register with the Commission as a large trader in accordance with new Rule 13h-1 under the Exchange Act, which will become effective as of October 3, 2011.[8] The definition of “Large Trader” that is being added to Form ID cross-references the definition that was adopted by the Commission in Rule 13h-1.

[8] See Securities Exchange Act Release No. 64976 (July 27, 2011), 76 FR 46960 (Aug. 3, 2011) (File No. S7-10-10).

Clearing Agency

Among other things, Title VII of the Dodd-Frank Act added new provisions to the Exchange Act that require clearing agencies that clear security-based swaps to register with the Commission. It also required that the Commission adopt rules with respect to security-based swap clearing agencies.[9] The Commission previously stated that it preliminarily believes that clearing agencies should in the future file compliance reports with the Commission in a tagged data format in accordance with the EDGAR database, which would utilize the existing EDGAR framework to provide electronic filings to the Commission.[10] The definition of “Clearing Agency” being added to Form ID cross-references the definition in Section 3(a)(23) of the Exchange Act.[11]

[9] See 15 U.S.C. 78q-1(g), (i), and (j) (as amended by Section 763(b) of the Dodd-Frank Act).

[10] See Securities Exchange Act Release No. 64017 (March 3, 2011), 76 FR 14472 (March 16, 2011) (File No. S7-08-11).

[11] 15 U.S.C. 78c(a)(23).

Municipal Advisor

Section 975 of the Dodd-Frank Act amended Section 15B of the Exchange Act to make it unlawful for “a municipal advisor to provide advice to or on behalf of a municipal entity or obligated person with respect to municipal financial products or the issuance of municipal securities, or to undertake a solicitation of a municipal entity or obligated person, unless the municipal advisor is registered.” [12] Municipal Advisors register with the Commission on Form MA-T.[13] This current form is temporary, however, with an expiration date of December 31, 2011.[14] On December 20, 2010, the Commission proposed rules relating to a permanent registration regime for municipal advisors.[15] The proposed permanent registration regime would require that an application for the registration of a municipal advisor must be filed electronically with the Commission on proposed new Forms MA or MA-I, as applicable, and the Commission is considering whether such applications should be filed through EDGAR.[16] The definition of “Municipal Advisor” on Form ID cross-references the definition in Section 15B(e)(4) of the Exchange Act.[17]

[12] See 15 U.S.C. 78o-4(a)(1)(B) (as amended by Section 975(a)(1)(b) of the Dodd-Frank Act).

[13] 17 CFR 249.1300T.

[14] See Securities Exchange Act Release No. 62824 (September 1, 2010), 75 FR 54465 (September 8, 2010) (File No. S7-19-10).

[15] See Securities Exchange Act Release No. 63576 (December 20, 2010), 76 FR 824 (January 6, 2011) (File No. S7-45-10).

[16] Id. at 839.

[17] See 15 U.S.C. 78o-4(a)(1)(B) (as amended by Section 975(a)(1)(b) of the Dodd-Frank Act).

Municipal Securities Dealer

A “Municipal Securities Dealer” currently registers with the Commission in paper format on Form MSD.[18] The definition of “Municipal Securities Dealer” being added to Form ID cross-references the definition in Section 3(a)(30) of the Exchange Act.[19]

[18] 17 CFR 249.1100.

[19] 15 U.S.C. 78c(a)(30).

Nationally Recognized Statistical Rating Organization

A Nationally Recognized Statistical Rating Organization (“NRSRO”) currently registers with the Commission in paper format on Form NRSRO [20] and files annual reports required under Rule 17g-3 of the Exchange Act.[21] The Commission has proposed amending these rules to require an NRSRO to use EDGAR in order to submit all future information and reports.[22] The definition of a “Nationally Recognized Statistical Rating Organization” that is being added to Form ID cross-references the definition in Section 3(a)(62) of the Exchange Act.[23]

[20] 17 CFR 249b.300.

[21] 17 CFR 240.17g-3.

[22] See Securities Exchange Act Release No. 64514 (May 18, 2011), 76 FR 33420 (June 8, 2011) (File No. S7-18-11).

[23] 15 U.S.C. 78c(a)(62).

Security-Based Swap Data Repository

The Dodd-Frank Act provided the Commission with broad authority to adopt rules governing security-based swap data repositories (“SDRs”) and to develop additional duties applicable to these SDRs. The Commission proposed Rule 13n-1 under the Exchange Act to establish the procedures by which SDRs could apply to the Commission for registration.[24] This proposed rule provided that an application for the registration of an SDR must be filed electronically on proposed new Form SDR with the Commission. The definition of “Security-Based Swap Data Repository” being added to Form ID cross-references the definition in Section 3(a)(75) of the Exchange Act.[25]

[24] See Securities Exchange Act Release No. 63347 (November 19, 2010), 75 FR 77306 (December 10, 2010) (File No. S7-35-10).

[25] See 15 U.S.C. 78c(a)(75) (as amended by Section 761 of the Dodd-Frank Act).

Security-Based Swap Dealer and Major Security-Based Swap Participant

Section 761(a) of the Dodd-Frank Act amended Section 3(a) of the Exchange Act to add definitions for, among others, the terms “security-based swap dealer” and “major security-based swap participant.” [26] Section 15F of the Exchange Act, added by section 764(a) of the Dodd-Frank Act, establishes requirements for registration and comprehensive oversight of security-based swap dealers and major security-

based swap participants.[27] The definition of “Major Security-Based Swap Participant” that is being added to Form ID cross-references the definition in Section 3(a)(67)(A) of the Exchange Act.[28] In addition, the definition of “Security-Based Swap Dealer” that is being added to Form ID cross-references the definition in Section 3(a)(71)(A) of the Exchange Act.[29]

[26] See Public Law 111-203, Sec. 761(a).

[27] 15 U.S.C. 78o-10 (as amended by Section 764(a) of the Dodd- Frank Act).

[28] See 15 U.S.C. 78c(a)(67)(A) (as amended by Section 761 of the Dodd-Frank Act).

[29] See 15 U.S.C. 78c(a)(71)(A) (as amended by Section 761 of the Dodd-Frank Act).

Securities-Based Swap Execution Facility

Section 761(a) of the Dodd-Frank Act amended Section 3(a) of the Exchange Act to add definitions for, among others, the term “security-based swap execution facility.” [30] In accordance with Section 763 of the Dodd-Frank Act, the Commission proposed Regulation SB SEF under the Exchange Act, which was designed to create a registration framework for security-based swap execution facilities (“SB SEFs”).[31] Proposed rule 801(a) in Regulation SB SEF would require the registration application for SB SEFs to be filed electronically in a tagged data format with the Commission on Form SB SEF.[32] The definition of a “Securities-Based Swap Execution Facility” that is being added to Form ID cross-references the definition found in Section 3(a)(77) of the Exchange Act.[33]

[30] See Public. Law 111-203, Sec. 761(a).

[31] See Securities Exchange Act Release No. 63827 (February 2, 2011), 76 FR 10948 (February 28, 2011) (File No. S7-06-11).

[32] Id.

[33] See 15 U.S.C. 78c(a)(77) (as amended by Section 763 of by the Dodd-Frank Act).

The Commission believes that updating Form ID to add the above applicant types and related definitions will facilitate the processing of the form, including by routing Form ID filings to the appropriate internal office or division, and allow filers to promptly retrieve access codes and file in electronic format on EDGAR.

II. Procedural and Other Matters

The Administrative Procedure Act (“APA”) [34] generally requires an agency to publish, before adopting a rule, notice of a proposed rulemaking in the Federal Register.[35] This requirement does not apply, however, to, “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” [36] Further, the APA also generally requires that an agency publish a rule in the Federal Register 30 days before the rule becomes effective.[37] This requirement, however does not apply where an agency finds good cause.[38]

[34] 5 U.S.C. 551 et seq.

[35] See 5 U.S.C. 553(b).

[36] Id.

[37] See 5 U.S.C. 553(d).

[38] Id.

The Commission is amending Form ID to include new applicant types. These new applicant types are “Investment Company, Business Development Company or Insurance Company Separate Account,” “Institutional Investment Manager (13F Filer),” “Non-Investment Company Applicant under the Investment Company Act of 1940,” “Large Trader,” “Clearing Agency,” “Municipal Advisor,” “Municipal Securities Dealer,” “Nationally Recognized Statistical Rating Organization,” “Security-Based Swap Data Repository,” “Security- Based Swap Dealer and Major Security-Based Swap Participant,” and “Securities-Based Swap Execution Facility.” The sole purpose of including these new applicant types is to improve the Commission's internal procedures for processing filings, including routing Form ID filings to the appropriate internal office or division. Accordingly, the Commission finds that because the amendments relate solely to rules of agency organization, procedure or practice, publishing the changes for comment is unnecessary.[39]

[39] For similar reasons, the amendments do not require analysis under the Regulatory Flexibility Act or analysis of major status under the Small Business Regulatory Enforcement Fairness Act. See 5 U.S.C. 601(2) (for purposes of Regulatory Flexibility analyses, the term “rule” means any rule for which the agency publishes a general notice of proposed rulemaking) and 5 U.S.C. 804(3)(C) (for purposes of Congressional review of agency rulemaking, the term “rule” does not include any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties).

The APA also generally requires publication of a rule in the Federal Register at least 30 days before its effective date unless the agency finds otherwise for good cause.[40] As noted above, the amendments to Form ID are intended solely to improve the Commission's internal procedures for processing filings. These changes will not impose a new burden on any person to file the form with the Commission as the obligation to submit a Form ID arises from the requirement to make filings with the Commission through EDGAR in accordance with other rules and regulations issued by the Commission. Similarly, the amendments do not impose any burden on persons who have previously submitted a Form ID as these persons will not be required to re-file the Form ID to account for the inclusion of specific applicant types. These changes will allow the Commission to process Form IDs more efficiently and will reduce the likelihood of unnecessary delays in processing. For these reasons, the Commission finds good cause for these procedural amendments to take effect immediately.

[40] See 5 U.S.C. 553(d)(3).

III. Paperwork Reduction Act

Form ID, as in effect prior to these amendments, contains “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).[41] Specifically, there is a current approved collection of information for Form ID entitled “EDGAR Form ID” (Office of Management and Budget (“OMB”) Control No. 3235-0328). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

[41] 44 U.S.C. et seq.

We do not believe that the amendments to Form ID necessitate an increase or decrease in the current PRA burden estimates for Form ID. Specifically, respondents to Form ID previously were required to indicate whether they are submitting the form as a “filer,” “filing agent,” “training agent,” “transfer agent,” or “individual.” The amendments we are adopting today simply add new applicant types to reflect persons that currently file on EDGAR but who are not separately listed on Form ID. These new applicant types include “Investment Company, Business Development Company or Insurance Company Separate Account,” “Institutional Investment Manager (Form 13F Filer),” “Non-Investment Company Applicant under the Investment Company Act of 1940,” “Large Trader,” “Clearing Agency,” “Municipal Advisor,” “Municipal Securities Dealer,” “Nationally Recognized Statistical Rating Organization,” “Security-Based Swap Data Repository,” “Security-Based Swap Dealer and Major Security-Based Swap Participant,” and “Securities-Based Swap Execution Facility.” Respondents will continue to be required to select an appropriate applicant type, with the sole difference being that that the list of options will increase.

The amendments to Form ID do not impose a new burden on any person to file the form with the Commission, nor do they impose any burden on persons who have previously submitted a Form

ID as these persons will not be required to re-file the Form ID to account for the inclusion of specific applicant types. The sole change being effected by these amendments will be that new registrants will be asked to indicate a specific applicant type when completing the Form ID. To the extent that these new registrants will be required to register with the Commission and make filings on EDGAR in accordance with other Commission rules and regulations, the PRA burdens associated with those obligations will be accounted for in the context of those other rules and regulations.

The total estimated burden of filing a Form ID for a filer not currently subject to a requirement to file on EDGAR is 0.15 hours. For the reasons discussed above, we therefore believe that the overall information collection burden of Form ID would remain the same. As a result, we have not submitted the revisions to the collection of information to the Office of Management and Budget for review under 44 U.S.C. 3507(d) and 5 CFR 1320.11.

IV. Economic Analysis

A. Consideration of Costs and Benefits

The amendments to Form ID update the form to reflect the increased use of the EDGAR database by various persons and institutions regulated by the Commission. Some of these entities currently file on EDGAR in electronic format and others may be required to file on EDGAR in the future. The amendments will facilitate the Commission's process for reviewing and processing the form and, consequently, the ability of filers to promptly retrieve the access codes needed to file on EDGAR. We do not believe these amendments will impose any significant costs on non-agency parties.

B. Consideration of Burden on Competition and Promotion of Efficiency, Competition and Capital Formation

Section 23(a) [42] of the Exchange Act requires the Commission, when making rules and regulations under the Exchange Act, to consider the impact a new rule would have on competition. Section 23(a)(2) of the Exchange Act prohibits the Commission from adopting any rule that would impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act. Section 3(f) of the Exchange Act [43] and Section 2(c) of the Investment Company Act [44] require the Commission, when engaging in rulemaking that requires it to consider whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of investors, whether the action would promote efficiency, competition, and capital formation. We do not believe that the amendments to Form ID that reflect new entity applicant types will have any impact on competition.

[42] 15 U.S.C. 78w(a).

[43] 15 U.S.C. 78c(f).

[44] 15 U.S.C. 80a-2(c).

V. Statutory Authority

We are adopting the amendments to Form ID under the authority in Section 19(a) [45] of the Securities Act, Sections 3(b),[46] 13(a),[47] 23(a),[48] and 35A [49] of the Exchange Act, Section 319 [50] of the Trust Indenture Act of 1939 and Sections 30 [51] and 38 [52] of the Investment Company Act of 1940.

[45] 15 U.S.C. 77s(a).

[46] 15 U.S.C. 78c(b).

[47] 15 U.S.C. 78m(a).

[48] 15 U.S.C. 78w(a).

[49] 15 U.S.C. 78ll.

[50] 15 U.S.C. 77sss.

[51] 15 U.S.C. 80a-29.

[52] 15 U.S.C. 80a-37.

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

Reporting and recordkeeping requirements, Securities.

Text of Form Ammendments

For the reasons set out in the preamble, the Commission amends title 17, chapter II, of the Code of Federal Regulations as follows.

PART 239—FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

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

Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77sss, 78c, 78l, 78m, 78n, 78o(d), 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, 80a-37, and Pub. L. No. 111-203, Sec. 939A, 124 Stat. 1376, (2010) unless otherwise noted. * * * * *

PART 249—FORMS, SECURITIES EXCHANGE ACT OF 1934

0 2. The authority citation for part 249 continues to read, in part, as follows:

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

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

0 3. The authority citation for part 269 continues to read as follows:

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

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

0 4. 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, and 80a-29, unless otherwise noted. * * * * * 0 5. Form ID (referenced in Sec. Sec. 239.63, 249.446, 269.7 and 274.402 of this chapter) is revised to read as set forth in the attached Appendix A.

Dated: September 1, 2011.

By the Commission. Elizabeth M. Murphy, Secretary.

Note: The following Appendix A will not appear in the Code of Federal Regulations.

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[FR Doc. 2011-22895 Filed 9-8-11; 8:45 am]

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