[Federal Register Volume 74, Number 48 (Friday, March 13, 2009)]
[Rules and Regulations]
[Pages 10836-10839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5377]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 232, 239, 249, 269 and 274

[Release Nos. 33-9013, 34-59536, 39-2463, IC-28642]


Attaching Authenticating Documents to Online Form ID Applications

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: We are adopting rule and form amendments that allow applicants 
for EDGAR access codes using Form ID to submit their authenticating 
documents by attaching them to their online Form ID applications in 
Portable Document Format (PDF) as an alternative to submitting the 
documents by fax.

DATES: Effective Date: March 16, 2009.

FOR FURTHER INFORMATION CONTACT: Corey Jennings, Special Counsel, at 
(202) 551-3258, for information on legal issues, or Cecile Peters, 
Chief, Information Technology Office, (202) 551-3600, for information 
on technical issues, Division of Corporation Finance, U.S. Securities 
and Exchange Commission, 100 F Street, NE., Washington, DC 20459-3628.

SUPPLEMENTARY INFORMATION: We are adopting amendments that will revise 
Rules 10 \1\ and 101 \2\ under Regulation S-T \3\ and Form ID.\4\
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    \1\ 17 CFR 232.10.
    \2\ 17 CFR 232.101.
    \3\ 17 CFR 232.10 et seq.
    \4\ 17 CFR 239.63, 249.446, 269.7 and 274.402.
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I. Background

    Form ID is used to apply for access codes to file information 
electronically through the Commission's Electronic Data Gathering, 
Analysis and Retrieval or ``EDGAR'' system. EDGAR access codes include 
a CIK (Central Index Key) number, which serves as a permanent, public 
filer identification number, as well as confidential security codes.
    Applicants submitting Form ID applications must submit them online. 
They also must fax to the Commission a notarized document containing 
the same information as contained in the Form ID application. The 
additional document is called an ``authenticating document.'' 
Commission staff matches applicants' online submissions with their 
faxed authenticating documents before approving the Form ID application 
and allowing applicants to generate their EDGAR access codes.\5\
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    \5\ We approved this process in Release No. 33-8410 (Apr. 21, 
2004) [69 FR 22704 (Apr. 26, 2004)], available at http://www.sec.gov/rules/final/33-8410.htm.
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    Today, we adopt amendments that allow Form ID applicants to submit 
their authenticating documents as PDF attachments to their online Form 
ID applications. This provides an alternative method to submitting the 
authenticating documents by fax. The use of a PDF attachment may 
provide a simpler and easier method for some applicants to submit their 
authenticating documents. Filers can use a fillable PDF version of Form 
ID available on the Commission's Web site to create and print the 
document. For Form ID applications with the authenticating documents 
attached, Commission staff will no longer have to match faxed 
authenticating documents manually with online submissions. This 
alternative method should enhance the processing efficiency of these 
Form ID applications. The amendments do not impose any new burdens or 
requirements on Form ID applicants or others.
    The effective date of the new rules, March 16, 2009, coincides with 
the effective date of our new rules requiring that Form D filings be 
made online, through the Internet, using the EDGAR system.\6\ At the 
time we adopted the new Form D rules, we estimated they would result in 
an increase of approximately 20,000, or 40%, in the number of Form ID 
applications that we receive annually.\7\ Although many Form ID 
applicants will be applying for EDGAR access codes to make filings 
other than Form D filings, the increased efficiency in use of 
Commission staff resources will benefit all applicants. We expect 
adoption of the Form ID amendments should assist the staff in better 
managing the expected increase in Form ID applications resulting from 
the Form D amendments.
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    \6\ We adopted the rules requiring online filing of Form D 
information in Release No. 33-8891 (Feb. 6, 2008) [73 FR 10592 (Feb. 
27, 2008)], available at http://www.sec.gov/rules/final/2008/33-8891.pdf.
    \7\ See id. at 70 [73 FR 10610]. We expect an increase because 
Form D filings previously were made only in paper format, and no 
Form ID filings were required because filers do not need EDGAR 
access codes to make paper filings.
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    At the time we adopted the Form D amendments, we acknowledged 
concern over the burdens of the Form ID authentication process, 
particularly in the context of mandating Form D online filing.\8\ We 
stated that we planned to consider ways to simplify the Form ID 
authentication process before Form D online filing became mandatory on 
March 16, 2009.\9\ The Form ID amendments we adopt today address 
concerns over the burdens of the Form ID authentication process. They 
make the process simpler and easier for some applicants. We are hopeful 
that the increased Commission staff efficiency in processing Form ID 
applications with attached authenticating documents will allow Form ID 
applicants to get their EDGAR access codes more quickly. However, we 
continue to study ways to further streamline the process.
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    \8\ Id. at 58 [73 FR 10607].
    \9\ Id. at 59-60 [73 FR 10607-10608].
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II. Discussion of the Amendments

A. Optional Attachment of Authenticating Document to Online Form ID 
Application

    We are adopting minor revisions to Regulation S-T \10\ to allow 
applicants for EDGAR access codes using Form ID to attach their 
required authenticating document electronically as a PDF document to 
their online Form ID

[[Page 10837]]

application.\11\ The authenticating document is a paper version of the 
online Form ID submission that has been notarized. It contains the same 
information, but is manually signed and witnessed by a notary public. 
Rule 10 of Regulation S-T currently requires that an applicant fax its 
authenticating document to the Commission within two days before or 
after submitting its online Form ID application.\12\ The amendments 
revise subparagraph (b) of Rule 10 by supplementing the faxing 
requirement with the option of electronically attaching a PDF version 
of the authenticating document to an applicant's online Form ID 
application.\13\ The amendments also revise subparagraph (a)(1)(ix) of 
Rule 101 of Regulation S-T \14\ to reflect that the authenticating 
document required by Rule 10(b) of Regulation S-T may be filed either 
by fax or electronically as an uploaded PDF attachment to an 
applicant's online Form ID application.\15\
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    \10\ Regulation S-T is the general regulation governing 
electronic filing of information with the Commission. In addition to 
complying with Regulation S-T, filers must submit electronic filings 
in accordance with the instructions in the Commission's EDGAR Filer 
Manual. We also are amending the EDGAR Filer Manual to reflect a 
Form ID filer's ability to attach a PDF copy of its authenticating 
document to its online Form ID application.
    \11\ Filers that previously have been assigned a CIK number are 
not eligible to use Form ID. This category includes filers that 
previously have made paper filings with the Commission, such as Form 
D filings since 1986 that have been assigned CIK numbers by the 
Commission staff. These filers need to obtain confidential security 
codes to file using the EDGAR system, even though they already have 
a CIK number. Prior paper filers that have a CIK number but need 
security access codes may obtain the codes by using the ``Convert 
Paper Only Filer to Electronic Filer'' function on the EDGAR Filer 
Management Web site at https://www.filermanagement.edgarfiling.sec.gov and submit their 
authenticating documents by fax. For details, see EDGAR Filer 
Manual--Volume I, available at http://www.sec.gov/info/edgar/edmanuals.htm.
    \12\ To assist Form ID applicants in preparing their 
authenticating documents, the Commission maintains a fillable PDF 
version of Form ID for them to use on its Web site at http://www.sec.gov/about/forms/formid.pdf. Using this or another version of 
Form ID that they may have available, applicants can choose to 
prepare the authenticating document, including having it notarized, 
before they go online to make their online Form ID submission. Upon 
the effectiveness of today's amendments, applicants will be able to 
choose to continue faxing their authenticating document or 
electronically attach a PDF version of the document at the time of 
the actual submission. If they do not have the authenticating 
document prepared before they make their online Form ID submission, 
they may print out the information they submit on the EDGAR Web 
site, have the printout notarized, and fax the notarized document as 
their authenticating document. This latter alternative avoids the 
necessity of entering the information twice, once on the pre-
prepared authenticating document and again during the online 
submission itself. As noted above, however, faxing the document 
increases staff processing steps and likely will result in less 
timely assignment of EDGAR access codes.
    \13\ When we adopted the current rules, we stated that we did 
not believe that electronically attaching a PDF copy of the 
authenticating document would provide a level of assurance 
materially greater than having no authenticating document and that 
it would not provide a level of assurance as high as the fax 
requirement coupled with our planned human intervention and 
verification procedures. We also stated that it was not possible to 
upload a PDF attachment to an online Form ID application in our 
online system at that time. Release No. 33-8410, at n.31 (Apr. 21, 
2004) [69 FR 22704, 27706 n.31 (Apr. 26, 2004)]. Improvements to the 
EDGAR system and advancements in PDF technology now make it possible 
to upload a PDF attachment to an online Form ID application. We have 
used PDF technology internally to upload and disseminate comment 
letters onto the EDGAR system. The procedures we will use to process 
authenticating documents attached as PDF files will be identical to 
our existing human intervention verification procedures. These 
factors have led us to conclude that attaching a PDF copy of the 
authenticating document provides assurance comparable to that 
provided by a faxed document.
    \14\ 17 CFR 232.101(a)(1).
    \15\ Rule 101(a)(1)(ix) currently provides that the 
authenticating document required by Rule 10(b) of Regulation S-T 
must be submitted by fax transmission. 17 CFR 232.101(a)(1)(ix).
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B. Form ID

    We are adopting minor revisions to the General Instructions to Form 
ID to clarify that applicants may also fulfill the authenticating 
document requirement of Rule 10 of Regulation S-T by electronically 
attaching a PDF version of the document to their online Form ID 
application. Currently, the instructions to Form ID follow Rule 10 of 
Regulation S-T, which provides that an applicant may only fax its 
authenticating document to the Commission within two days before or 
after submitting its electronic Form ID application. We are also 
adopting revisions to the General Instructions to Form ID to update the 
Commission contact information on the current form.

III. Paperwork Reduction Act

    The amendments do not impose any new ``collection of information'' 
within the meaning of the Paperwork Reduction Act of 1995, nor do they 
create any new filing, reporting, recordkeeping, or disclosure 
reporting requirements for Form ID filers. Compliance with the adopted 
amendments will be optional. The Commission previously obtained a 
control number from the Office of Management and Budget (``OMB'') for 
this collection of information.\16\
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    \16\ OMB Control No. 3235-0328
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IV. Cost-Benefit Analysis

    We expect that the adopted amendments will neither significantly 
benefit Form ID applicants, nor will they impose additional costs on 
them, since electronically attaching a PDF copy of their notarized 
authenticating document to their electronic Form ID application will be 
optional only. We expect that there will be some benefit to investors, 
applicants and the Commission because the optional method of 
transmitting the authenticating document required of Form ID applicants 
may be easier for some applicants. To the extent filers attach the 
authenticating document as a PDF file rather than sending a faxed 
document, the Commission staff will be able to avoid sorting through 
faxes and matching them to online Form ID applications. If many filers 
choose this option, we can improve the speed and accuracy of the 
process that leads to receipt of EDGAR access codes.
    Form ID applicants that choose to transmit their authenticating 
documents as PDF attachments will need access to the technology that 
allows them to scan their notarized document and electronically attach 
it to their online Form ID application. Since this method is optional 
and a scanning feature is now quite widely available on many computer 
printers, and because the existing process requires access to fax 
transmission facilities, we do not feel applicants that choose the 
optional PDF attachment method will incur greater costs. Indeed, we 
assume filers will choose the option that is least costly.

V. Effect on Efficiency, Competition and Capital Formation

    Section 23(a)(2) of the Securities Exchange Act \17\ requires us, 
when adopting rules under the Exchange Act, to consider the impact that 
any new rule would have on competition. In addition, Section 23(a)(2) 
prohibits us from adopting any rule that would impose a burden on 
competition not necessary or appropriate in furtherance of the purposes 
of the Exchange Act. The amendments we adopt today merely provide an 
optional method that allows an applicant to electronically attach a PDF 
copy of a notarized Form ID authenticating document to its online Form 
ID application. The method will be voluntary and not required. We 
believe the amendments will not impose a burden on competition.
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    \17\ 15 U.S.C. 78w(a)(2).
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    Section 2(b) of the Securities Act \18\ and Section 3(f) of the 
Exchange Act \19\ require us, when engaging in rulemaking where we are 
required to consider or determine whether an action is necessary or 
appropriate in the public interest, to consider, in addition to the 
protection of investors, whether the action will promote efficiency, 
competition, and capital formation. We believe the amendments will have 
a negligible impact on efficiency, competition or capital formation.
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    \18\ 15 U.S.C. 77b(b).
    \19\ 15 U.S.C. 78c(f).

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[[Page 10838]]

VI. Certain Findings

    Under the Administrative Procedure Act (``APA''), notice of 
proposed rulemaking is not required when an agency, for good cause, 
finds ``that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' \20\ The changes we 
are adopting today do not impose new burdens and merely provide an 
optional method for applicants to fulfill the authentication 
requirements of the Form ID submission process. They do not change the 
basic content of the form. In making these changes, we also have 
updated certain contact information for Commission staff in the 
instructions to Form ID. We therefore believe that publication for 
public comment is unnecessary. Accordingly, we find that publishing a 
proposed rulemaking notice of these amendments is likewise 
unnecessary.\21\
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    \20\ See 5 U.S.C. 553(b)(3)(B).
    \21\ For similar reasons, the amendments do not require analysis 
under the Regulatory Flexibility Act or a report to Congress under 
the Small Business Regulatory Fairness Act. See 5 U.S.C. 601(2) (for 
purposes of a Regulatory Flexibility Act analysis, the term ``rule'' 
means any rule for which the agency publishes a general notice of 
proposed rulemaking) and 5 U.S.C. 804(3)(C) (for purposes of 
Congressional review of agency rulemaking, the term ``rule'' does 
not include any rule of agency organization, procedure or practice 
that does not substantially affect the rights or obligations of non-
agency parties).
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    The APA generally requires that an agency publish an adopted rule 
in the Federal Register 30 days before it becomes effective.\22\ This 
requirement, however, does not apply if the agency finds good cause for 
making the rule effective sooner.\23\ The Commission finds good cause 
to make the changes to the Form ID application process effective on 
March 16, 2009. The changes to the Form ID application process are 
optional and therefore do not impose any new burdens on applicants. 
They are related to changes being made to our EDGAR system in 
expectation of March 16, 2009, when mandatory electronic filing of Form 
D information becomes effective and when we expect to begin 
experiencing a substantial increase in the number of new Form ID 
applications per year. We see no reason to delay the effectiveness of 
the amendments for 30 days after these rule changes are published in 
the Federal Register. We believe Form ID applicants, investors and the 
Commission should be able to enjoy the limited benefits of these 
changes as soon as practicable and find there is good cause for the 
amendments to take effect on March 16, 2009.
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    \22\ 5 U.S.C. 553(d).
    \23\ Id.
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VII. Statutory Basis and Text of Rule Amendments

    We are adopting the amendments to Regulation S-T and Form ID under 
the authority in Section 19(a) \24\ of the Securities Act, Sections 
3(b),\25\ 13(a),\26\ 23(a) \27\ and 35A \28\ of the Exchange Act, 
Section 319 \29\ of the Trust Indenture Act of 1939 and Sections 30 
\30\ and 38 \31\ of the Investment Company Act of 1940.
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    \24\ 15 U.S.C. 77s(a).
    \25\ 15 U.S.C. 78c(b).
    \26\ 15 U.S.C. 78m(a).
    \27\ 15 U.S.C. 78w(a).
    \28\ 15 U.S.C. 78ll.
    \29\ 15 U.S.C. 77sss.
    \30\ 15 U.S.C. 80a-29.
    \31\ 15 U.S.C. 80a-37.
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Text of Rule Amendments

List of Subjects in 17 CFR Parts 232, 239, 249, 269 and 274

    Reporting and recordkeeping requirements, Securities.

Text of the Rules and Amendments

0
For the reasons set forth above, we amend title 17, chapter II of the 
Code of Federal Regulations as follows.

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

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

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a), 
78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 80a-6(c), 80a-8, 
80a-29, 80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350.

* * * * *

0
2. Amend Sec.  232.10 by revising paragraph (b) and the heading of the 
note following paragraph (b) to read as follows:


Sec.  232.10  Application of part 232.

* * * * *
    (b) Each registrant, third party filer, or agent to whom the 
Commission previously has not assigned a Central Index Key (CIK) code, 
must, before filing on EDGAR:
    (1) File electronically the information required by Form ID 
(Sec. Sec.  239.63, 249.446, 269.7 and 274.402 of this chapter), the 
uniform application form for access codes to file on EDGAR, and
    (2) File, by uploading as a Portable Document Format (PDF) 
attachment to the Form ID filing or by faxing to (202) 504-2474 or 
(703) 914-4240 within two business days before or after the electronic 
Form ID filing, a notarized document, manually signed by the applicant 
over the applicant's typed signature, that includes the information 
required to be included in the Form ID filing, confirms the 
authenticity of the Form ID filing and, if filed by fax after the 
electronic Form D filing, includes the accession number assigned to the 
electronic Form ID filing.
    Note to Sec.  232.10:
* * * * *

0
3. Amend Sec.  232.101 by revising paragraph (a)(1)(ix) to read as 
follows:


Sec.  232.101  Mandated electronic submissions and exceptions.

    (a) * * * * *
    (1) * * *
    (ix) Form ID (Sec. Sec.  239.63, 249.446, 269.7 and 274.402 of this 
chapter), except that the authenticating document required by Rule 
10(b) of Regulation S-T (Sec.  232.10(b)) may be filed either in 
electronic format as an uploaded Portable Document Format (PDF) 
attachment to the Form ID filing or by fax as provided in that rule, 
and other related correspondence and supplemental information submitted 
after the Form ID filing shall not be submitted in electronic format;
* * * * *

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

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

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

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

0
17. Revise the two paragraphs appearing immediately after the bullets 
in the General Instructions of Form ID (referenced in Sec.  239.63, 
Sec.  249.446, Sec.  269.7 and Sec.  274.402) to read as three 
paragraphs as follows:

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

Form ID

Uniform Application for Access Codes to File on Edgar

* * * * *

General Instructions

* * * * *
    An applicant must file the information required by this form in 
electronic format via the Commission's EDGAR Filer Management Web site.

[[Page 10839]]

Please see Regulation S-T (17 CFR Part 232) and the EDGAR Filer Manual 
for instructions on how to file electronically, including how to use 
the access codes.
    The applicant must complete the Form ID electronic filing by also 
submitting to the Commission a copy of a notarized paper 
``authenticating'' document. The authenticating document must include 
the information required to be included in the Form ID filing, be 
manually signed by the applicant over the applicant's typed signature, 
and confirm the authenticity of the Form ID filing. Applicants may 
fulfill the authenticating document requirement by making a copy of the 
applicant's electronic Form ID filing, adding the necessary confirming 
language, signing it, and having the signature notarized.
    If the applicant has prepared the authenticating document before 
making its electronic Form ID filing, it may submit the document as an 
uploaded Portable Document Format (PDF) attachment to the electronic 
filing. An applicant also may submit the authenticating document by 
faxing it to the Commission at (202) 504-2474 or (703) 914-4240 within 
two business days before or after its electronic Form ID filing. If 
submitted by fax after the electronic Form ID filing, the 
authenticating document must contain the accession number assigned to 
the electronic Form ID filing. If the fax is not received timely, the 
Form ID filing and application for access codes will not be processed, 
and the applicant will receive an e-mail message at the contact e-mail 
address included in the Form ID filing informing the applicant of the 
failure to process and providing further guidance. The message will 
state why the application was not processed.
    For assistance with technical questions about electronic filing, 
call Filer Support at (202) 551-8900. For assistance with questions 
about the EDGAR rules, Division of Corporation Finance filers may call 
the Office of Information Technology at (202) 551-3600; and Division of 
Investment Management filers may call the IM EDGAR Inquiry Line at 
(202) 551-6989.
* * * * *

    Dated: March 9, 2009.

    By the Commission.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-5377 Filed 3-12-09; 8:45 am]
BILLING CODE 8011-01-P