Commission Records and Information; Incorporation by Reference

SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 200

[Release Nos. 33-7221; 34-36269; 35-26377; 39-2335; IA-1521; IC-21370]

Commission Records and Information; Incorporation by Reference

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

SUMMARY: The Securities and Exchange Commission is updating its Records control schedule to identify new retention values for Commission records and to expand the availability of certain records for incorporation by reference into new filings.

EFFECTIVE DATE: October 30, 1995.

FOR FURTHER INFORMATION CONTACT: Wilson Butler, Associate Executive Director, Ann Sykes, Associate Director, or Suzanne McHugh, Records Officer, at (202) 942-8938, Office of Filings and Information Services, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Alexandria, Virginia 22312.

SUPPLEMENTARY INFORMATION: The Commission is required to create records containing accurate and complete documentation of its organization, functions, policies, decisions, procedures, and essential transactions, and to dispose of such records in accordance with prescribed standards. 44 U.S.C. 3102. The Commission's Records control schedule, at 17 CFR 200.80(f), states how long the Commission retains records on-site or at the Federal Records Center pending disposition or transfer for permanent retention to the National Archives and Records Administration (“NARA”).[1] The Commission is revising its Records control schedule to state new, NARA-approved administrative retention values for many Commission records.[2] The schedule also has been reorganized, includes certain new records, and identifies obsolete records. In addition, since the retention values in the Records control schedule limit the availability of Commission records for incorporation by reference (see Rule 10(d) of Regulation S-K (17 CFR 229.10(d)),[3] the amendment of the schedule also changes the length of time that records that previously have been filed with the Commission are available for incorporation by reference into new filings.[4] Amending the Records control schedule is action with respect to a matter of agency management and a rule of agency organization, procedure, or practice within the meaning of the Administrative Procedure Act (5 U.S.C. 553(a)(2) and (b)(A), respectively) and therefore is not subject to the Administrative Procedure Act's notice and comment requirement. For the same reason, these amendments also are not subject to the Regulatory Flexibility Act (5 U.S.C. 601-612).

[1] The Records control schedule does not cover the Commission's electronic records or its generally scheduled records pursuant to 36 CFR 1228.44.

[2] The administrative retention value for a record is the length of time that NARA has authorized that it be retained by an agency for agency purposes.

[3] Until recently, rule 10 was rule 24 of the Commission's Rules of Practice. See Securities Exchange Act Release No. 34-35833 (June 9, 1995). Rule 10 provides, in pertinent part, that no document on file with the Commission for more than five years may be incorporated by reference except: ... (b) documents that the registrant specifically identifies by physical location and by SEC file number reference, provided such materials have not been disposed of by the Commission pursuant to its Records control schedule at 17 CFR 200.80f (emphasis added). See also Rule 10(f) of Regulation S-B at 17 CFR 228.10(f).

[4] For example, a registrant now will be allowed to incorporate into a current year's annual report on Form 10-K an exhibit that was filed with the Commission up to thirty years ago, rather than a maximum of only ten years ago under current practice.

List of Subjects in 17 CFR Part 200

Administrative practice and procedure; Reporting and recordkeeping requirements.

Text of the Amendment

For the reasons set forth in the preamble, title 17, chapter II of the Code of Federal Regulations is amended as follows:

PART 200—ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND

REQUESTS

1. The general authority citation for Subpart D is revised to read as follows:

Authority: 15 U.S.C. 77f(d), 77s, 77ggg(a), 78m(F)(3), 78w, 79t, 79v(a), 77sss, 80a-37, 80a-44(c), 80a-44(b), 80b-10(a), 80b-11, and 36 CFR 1228.10. * * * * *

2. Section 200.80f is revised to read as follows:

Sec. 200.80(f) Appendix F—Records control schedule.

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File No. Type of filing Retention period

---------------------------------------------------------------------------------------------------------------- Securities Act of 1933

---------------------------------------------------------------------------------------------------------------- 2-33..................................... Registration statements and amendments 30 years. thereto (Regulation C). 2-33..................................... Periodic reports (annual, quarterly, 30 years. current, and proxy material). 9-....................................... Notice of proposed resale of restricted 21 years. securities and resale of securities by control persons (Form 144). 15-...................................... Notice of sale of securities pursuant to 6 years. Rule 242 (Form 242). (Obsolete). 18-...................................... Applications for exemption from section 5 10 years. registration for interests or participations issued in connection with Keogh Plans (section 3(a)(2)). 19-...................................... Notice of sale of securities pursuant to 6 years.
section 4(6) of the Securities Act of 1933
(Form 4(6)). (Obsolete).
20-...................................... Offering sheets for oil or gas royalties-- 15 years. Regulation B (Schedules A, B, C). 20-...................................... Reports of sale (accorded confidential 7 years. treatment) (Form 1-G). 20-...................................... Reports after termination of offering (Form 7 years. 3-G). 21-...................................... Notice of sale for offerings under 6 years. Regulation D and section 4(6) (Form D). 24-...................................... Notification of exemption from registration Until completion or (Regulation A). termination of offering plus 10 years or order of the Commission permanently suspending exemption, whichever comes first. 29-...................................... Report of issuers of sale of securities 6 years. deemed not to involve any public offering (Form 146). (Obsolete). 92-...................................... Application for relief from disability Until when final action (Regulation A). on appeal is taken plus 10 years. 94-...................................... Notification of exemption for assessment or 10 years. assessable stock (Regulation F). 95-...................................... Notification of exemption for securities Until completion or issued by a small business investment termination of company (Regulation E). offering plus 5 years or until order of Commission permanently suspending exemption, whichever comes first. 96-...................................... Application for relief from disability Until final action on (Regulation F). appeal is taken plus 5 years. 98-...................................... Notice of proposed sale by non-controlling 6 years. person of restricted securities of issuers which do not satisfy all of the conditions of Rule 144. 100-..................................... Notification of exemption pursuant to Rule 6 years. 236.

---------------------------------------------------------------------------------------------------------------- Securities Exchange Act of 1934

---------------------------------------------------------------------------------------------------------------- 0-1...................................... Registration statements (sections 12(b) and 30 years. 12(g), exemptions thereunder). 0-1...................................... Periodic reports (annual, quarterly, current 30 years. and proxy materials). 3-....................................... Applications for continuance in membership 10 years. and applications for review of disciplinary actions (self-regulatory organizations). 4-281.................................... Consolidated quotation system plan and For as long as plan amendments. remains approved plus 6 years. 4-208.................................... Intermarket trading system plan and For as long as plan amendments. remains approved plus 6 years. 5-....................................... Acquisitions, tender offers and 20 years. solicitations. 6-....................................... Reports of beneficial ownership of 6 years. securities (Forms 3, 4, & 5). 7-....................................... Applications for permission to extend 10 years. unlisted trading privileges and related applications pursuant to Rule 12(f). 8-....................................... Applications for registration as broker, For as long as broker- dealer, municipal securities broker, or dealer is registered government securities broker or dealer and with the Commission related reports. plus 50 years. 8-00-2A.................................. Annual audit report (fiscal or calendar year For as long as broker- basis) (Form X-17A-5). (Non-public) dealer is registered Supplemental report detailing Securities with the Commission Investor Protection Corporation assessment plus 13 years. payment or overpayments (Rule 17a-5). (Non- public). 8-00-2A-19............................... Reports of changes in membership of any of For as long as broker- its members required of national securities dealer is registered exchanges and registered national with the Commission securities associations (Form X-17A-19). plus 6 years. (Public). 8-00-3X.................................. Examination/inspection reports of brokers and dealers, investment companies and investment advisors

1. Exam reports:
   a. Home Office.......................... 13 years. b. Regional Offices..................... 13 years.
2. Exam workpapers........................ 13 years.

8-00-9................................... Uniform application for securities and For as long as broker- commodities industry representative and/or dealer is registered agent; certification for associated persons with the Commission engaged in securities activities outside plus 50 years. the jurisdiction of the United States; annual assessment form for registered brokers and dealers not members of a registered national securities association (Forms U-4, SECO 2-F, SECO-4, 5). 8-2A10................................... Annual report of revenue and expenses filed 10 years. by exchange members, brokers and dealers (Form X-17A-10). (Obsolete). 8-2A12................................... Report by registered brokers and dealers who 6 years. are over-the-counter market makers in any OTC margin securities (Form X-17A-12). 8-2A16(1), -2A16(2)...................... Notification by qualified market makers at 6 years. least five business days before such broker- dealers obtain third market maker exempt credit pursuant to Regulation U; and quarterly report by broker and dealer, who during a calendar quarter is or has been qualified as a third market maker (Forms X- 17A-16(1); X-17A-16(2)) (Obsolete). 8-2A17................................... Quarterly report filed by every broker- 6 years. dealer block positioner who has filed a notice pursuant to paragraph (a) of Rule 17a-17 (Form X-17A-17) (Obsolete). 10-...................................... Applications by an exchange for registration For as long as exchange as a national securities exchange. is registered with the Commission plus 6 years. 13-...................................... Applications for listing securities on an 10 years. exempted exchange, periodic reports. 14-...................................... Annual reports of issuers having securities 10 years. listed on an exempted exchange. 16-...................................... Application for registration as a national For as long as securities association or affiliated association is securities associations. registered with the Commission plus 6 years. 17-...................................... Reports on stabilizing activities (Form X- 6 years. 17A-1). (Obsolete). 23-...................................... Applications for exemption pursuant to Until closed plus 6 paragraph (g) of Rule 11Aa3-1. years. 26-...................................... Plans by exchanges authorizing payment of For as long as exchange special commission in connection with a is registered with the distribution of securities on exchanges Commission plus 50 (Rule 10b-2(d)). years. 27-...................................... Applications for exemption from section 10 years. 13(f). 28-...................................... Reports by institutional investment managers 4 years. of information with respect to accounts
over which they exercise discretion. (Form 13F). 80-...................................... Annual and supplemental reports of Municipal Indefinitely Securities Rulemaking Board (Rule 17a-21). (contingent). 81-...................................... Exemptions from registration under section 10 years. 12(g). 82-...................................... Exemptions--American depositary receipts.... 10 years. 83-1..................................... Periodic reports and related correspondence 3 years. by the Inter-American Development Bank. 83-2..................................... Periodic reports by the Asian Development 3 years. Bank. 84-...................................... Application for registration as a transfer For as long as transfer agent (non-bank) and amendments thereto. agent is registered with the Commission plus 50 years. 85-...................................... Application for registration as a transfer For as long as transfer agent (bank) and amendments thereto (Form agent is registered TA-1). with the Commission plus 50 years. 86-...................................... Application for registration as a municipal For as long as securities dealer which is a bank or municipal securities separately identifiable department or dealer is registered division of a bank (Form MSD). with the Commission plus 50 years. 87-...................................... Application for registration as a securities For as long as information processor and amendments securities information thereto (Form SIP). processor is registered with the Commission plus 50 years. 88-...................................... Application for exemption as a securities For as long as information processor correspondence. securities information processor is registered with the Commission plus 50 years. 89-...................................... Waiver for foreign issuers furnished by 10 years. American depositary receipts; waiver of information furnished by American depositary receipts regarding foreign issuers for Form F-6; waiver of Rule 12g3- 2(b) reporting requirements, annual reports to shareholders, F-6 waiver, proxy. 89-...................................... Other waivers for foreign issuers furnished 3 years. by American depositary receipts.. 128-8.................................... Reports of disciplinary actions by stock 6 years. exchanges (Rule 19d-1). 205-3c................................... Reports of disciplinary actions by NASD 6 years. (Rule 19d-1). 500-..................................... Suspension of trading of securities other 10 years. than on a national securities exchange. 600-..................................... Applications for registration as a (non- For as long as clearing bank) clearing agency; amendments thereto. agency is registered with the Commission
plus 50 years. 600-9.................................... Reports of disciplinary actions by clearing 6 years. agencies (Rule 19d-1).

601-..................................... Applications for exemption from registration For as long as clearing as a (non-bank) clearing agency. agency has reporting requirements with the Commission plus 20 years. SR....................................... Proposed rule changes and notice as to For as long as self- stated policies and interpretations by self- regulatory regulatory organizations. organization is registered with the Commission plus 6 years. XX....................................... Reports for missing, lost or counterfeit Indefinitely. securities (Form X-17F-1A).

---------------------------------------------------------------------------------------------------------------- Public Utility Holding Company Act of 1935

---------------------------------------------------------------------------------------------------------------- 12-...................................... Statements pursuant to section 12(i) by 2 years. persons employed or retained by a registered holding company or subsidiary thereof (Forms U-12(I)-A & B). 30-...................................... Notification and registration by public For as long as holding utility holding companies, annual company has reporting supplements. requirements with the Commission plus 10 years. 31-...................................... Statement of exemption from the Act by For as long as company Commission order. relies on exemption plus 10 years. 32-...................................... Exemption of purchaser, assignee, etc. of Until lease is leased facilities (Form U7D). terminated or cancelled plus 5 years. 33-1..................................... Annual statement by banks holding public 2 years. utility securities but claiming exemption under Rule 3. 34-...................................... Annual statement by banks holding public 2 years. utility securities but claiming exemption under Rule 3 (Form U-3A3-1). 37-...................................... Applications and declarations for For as long as service authorization of service companies (Form U- company is part of a 13-1). registered holding company plus 5 years. 38-...................................... Statement under Rule 70(a)(1) executed by For as long as officer/ financial authorizing representative to director serves plus 3 serve as officer/director of holding years. company, filed by representative. 40-...................................... Certificates of notification by registered 3 years. holding companies and subsidiaries of security issues exempted from section 6(a) by section 6(b) or exempt under Rule 47(b) and not the subject of an order of the Commission (Form U-6B-2). 49-...................................... Annual report by mutual and subsidiary For as long as service service companies (Form U-13-60). company is part of a registered holding company system plus 15 years. 50-...................................... Order granting or withdrawing exemptions Until close plus 3 from rules and related correspondence. years. 52-...................................... Application for approval or reorganization Until closed plus 3 under section 11(f). years. 54-...................................... Divestment of securities, assets or control Until closed plus 3 (section 11(e)). years. 55-...................................... Application for approval of fees incurred in Until closed plus 3 connection with plan under section 11(f). years.
59-...................................... Simplification of corporate structure, Until closed plus 3 sections 11(b) (1) and (2). years. 62-...................................... Report by an affiliate service company or For as long as service one engaged principally in the performance company is part of a of services (Form U-13E-1). registered holding company system plus 4 years. 68-...................................... Declaration with respect to solicitations 10 years. regarding reorganizations of registered holding companies or subsidiaries subject to Rule 62 (Form U-R-1). 69-...................................... Annual statements by holding companies 2 years. claiming exemption pursuant to Rule 2 (intrastate or predominantly operating companies (Form U-3A-2). 70-...................................... Applications and declarations pursuant to Until closed plus 3 sections 6(b), 7, 9, 9(c)(3), 10, 12(b), years. 12(c), 12(d), 12(f) and applicable rules thereunder (Form U-1). 72-...................................... Report of communication with stockholders... 2 years.

---------------------------------------------------------------------------------------------------------------- Trust Indenture Act of 1939

---------------------------------------------------------------------------------------------------------------- 22-...................................... Statements of eligibility and qualification Until indenture is of corporations or individuals as trustees terminated or under qualified indenture under which debt cancelled plus 30 security has been or is to be issued and years. exemptions thereto. 25-...................................... Applications relative to affiliations Until applicable between trustees and underwriters (Rule 10b- indenture is 3). terminated or cancelled plus 33 years. 93-...................................... Reports of indenture trustee to indenture 1 year. security holders with respect to eligibility and qualification under Section 310.

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Investment Advisers Act of 1940

---------------------------------------------------------------------------------------------------------------- 801-..................................... Application for registration as investment For as long as adviser and related correspondence. investment adviser is registered with the Commission plus 9 years. 803-..................................... Application for exemption from registered For as long as and other relief. investment adviser conducts business under an exemption plus 6 years.

---------------------------------------------------------------------------------------------------------------- Investment Company Act of 1940

---------------------------------------------------------------------------------------------------------------- 90-...................................... Notice of sales of securities by closed-end 6 years. issuers (issuers with 100 or less beneficial owners) other than investment companies, registered or required to be registered. 811-..................................... Notifications and registration statements... For as long as registrant is registered with the Commission plus 30 years. 811-..................................... Periodic reports (annual, quarterly, semi- 10 years. annual, proxy material). 812-..................................... Applications for exemption and other relief. 10 years. 812-..................................... Application by foreign management investment For as long as companies for order permitting registration. registrant has reporting requirement with the Commission plus 33 years. 813-..................................... Applications for exemption of an employee's For as long as security company (Section (b)). registrant has reporting requirement with the Commission plus 33 years. 814-..................................... Notice of intent to elect to be subject to 2 years from filing sections 55 and 65. date. 814-..................................... Notification of withdrawal of election to be 2 years from filing subject to sections 55 through 65. date. 814-..................................... Notification of election to be subject to 30 years or for as long sections 55 through 65. as a class of the issuer's equity securities is registered under the Securities Exchange Act of 1934 plus 10 years, whichever comes first. 816-..................................... Request for advisory report re 6 years. reorganization of registered investment company (17 CFR 270.02), and related correspondence. 817-..................................... Report of repurchase of securities by closed- 6 years. end investment company. 818-..................................... Sales literature regarding securities of 6 years. certain investment companies. 819-..................................... Statement of the Federal Savings and Loan 6 years. Corporation relating to the exemption of certain issuers. 820-..................................... Reports showing that companies have complied 6 years. with requirements of the rule in purchasing new issues of securities from underwriters. 821-..................................... Reports by registered small business 10 years from date of investment companies and affiliated banks, such action(s). with respect to investments.

---------------------------------------------------------------------------------------------------------------- Miscellaneous Files and Reports

---------------------------------------------------------------------------------------------------------------- 3-....................................... Disciplinary proceedings (broker-dealer and 25 years. investment adviser). 3-....................................... Administrative proceeding stop orders....... For as long as registrant has reporting requirement with the Commission plus 30 years. 4-....................................... 102(e) proceedings (previously 2(e) 25 years. proceedings) (chaned to 3-). 4-....................................... Miscellaneous studies, general conferences, 25 years. roundtable, etc., authorized by the Commission. 111-..................................... Federal government agencies miscellaneous 30 years. correspondence. 119-..................................... Securities violation files (information Until date of last regarding persons against whom actions were reported action plus reported on charges of violating state or 10 years. federal laws in the purchase and sale of securities. 122-2.................................... Members of Congress (inquiries relating to 1 year after expiration various subjects). of term in office. 122-3.................................... Correspondence and other materials between 30 years. the various Senate Committees and the Commission. 122-4.................................... Correspondence and other materials between 30 years. the various House Committees and the Commission. 122-6.................................... Correspondence and other materials between 30 years. Congressional Commissions and Joint Committees and the Commission. 123-13................................... Correspondence relating to the development 30 years. of a Canadian Extradition Treaty. 124-..................................... Stock exchanges (General Correspondence).... For as long as exchange is registered with the Commission. 124-1.................................... Legislation and Laws: Drafts and comments 30 years. concerning suggested amendments to the various Acts administered by the Commission. ```

124-6

124-11 124-20 124-7, 124-7a............................ Subject files—Drafts, comments and 30 years.

correspondence concerning proposed

legislation submitted by the Senate and the

House to the Commission for comment. 124-7b................................... Drafts of bills not yet reported in Congress 30 years.

that are submitted to the Commission for

comment. 132-3.................................... General Correspondence—Active companies. 10 years.

Inquiries and complaints concerning

companies registered under the various Acts

administered by the Commission. 132-3.................................... General Correspondence—Inactive companies 6 years.

(no longer required to file reports with

the Commission). Inquiries and complaints

concerning companies registered under the

various Acts administered by the Commission. 132-3.................................... General Correspondence—Miscellaneous. 6 years.

Requests for interpretation of rules and

regulations under the Acts administered by

the Commission. 140-..................................... Drafts, internal memoranda, correspondence 30 years.

concerning rules and regulations under each

of the Acts administered by the Commission. 206-, 207- to 215-, 917-................. Reorganization proceedings under Chapters 30 years.

IX, X, XI of the Bankruptcy Act in which

the Commission participates. 265-..................................... Advisory Committees established by the 30 years.

Commission (correspondence, questionnaires,

reports). Confidential treatment materials......... Periodic reports and other materials 10 years.

containing contracts, commercial and

financial information, disclosure of which

would impair the value thereof, submitted

under confidential cover.

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CHR...................................... SEC Chairman's Subject Case Files........... 20 years. CHR...................................... SEC Chairman's Chronological Files for Chairman's tenure in Period 1972 to Present. office plus 3 years. CHR...................................... SEC Chairman's General Subject File........ Chairman's tenure in office plus 3 years. COMM..................................... SEC Commissioners' Files (excluding Commissioner's tenure Chairman), 1934 to Present. in office plus 1 year. ENF...................................... Investigative Case Files--Closed............ Until closed plus 25 years. ENF...................................... Investigative Case Files--Inactive.......... Until inactive plus 25 years.
LIT...................................... Litigation files: .......................

1. Briefs................................. 25 years.
2. File contents other than briefs........ 10 years.
   S7....................................... Issuance, amendment or rescission of rules 30 years (permanent). under the various Acts--public comments and views, transcript of hearings, correspondence.
   XX....................................... Reports of internal inquiries: .......................
3. Supporting documentation............... Until date of final
   action plus 5 years, if no report is issued, or until date of final report plus 5 years.
4. Final reports.......................... 5 years.

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By the Commission.

Dated: September 22, 1995. Margaret H. McFarland, Deputy Secretary.

[FR Doc. 95-24032 Filed 9-27-95; 8:45 am]

BILLING CODE 8010-10-M