45862 Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Rules and Regulations 

1See Progress Report of the SEC Advisory 

Committee on Improvements to Financial 

Reporting, Release No. 33–8896 (Feb. 14, 2008) 

(‘‘CIFiR Progress Report’’), available at http:// 

www.sec.gov/rules/other/2008/33-8896.pdf. 

2 In this release the term ‘‘company Web site’’ and 

the use of the term ‘‘Web site’’ in the context of 

companies refer to public (Internet) company sites, 

as distinguished from private (intranet) sites. A 

company Web site is maintained by or for the 

company and contains information about the 

company. 

Ponca City, OK, Ponca City Rgnl, RNAV 

(GPS) RWY 17, Amdt 1 

Ponca City, OK, Ponca City Rgnl, RNAV 

(GPS) RWY 35, Amdt 1 

Johnstown, PA, John Murtha JohnstownCambria Co, Takeoff Minimums and 

Obstacle DP, Amdt 4 

Monongahela, PA, Rostraver, VOR-A, Amdt 

5, CANCELLED 

Zelienople, PA, Zelienople Muni, Takeoff 

Minimums and Obstacle DP, Amdt 3 

Walterboro, SC, Lowcountry Rgnl, GPS RWY 

23, Orig, CANCELLED 

Watertown, SD, Watertown Rgnl, LOC/DME 

BC RWY 17, Amdt 10 

Nashville, TN, Nashville Intl, Takeoff 

Minimums and Obstacle DP, Amdt 7 

Selmer, TN, Robert Sibley, NDB OR GPS 

RWY 17, Amdt 5, CANCELLED 

Selmer, TN, Robert Sibley, RNAV (GPS) RWY 

17, Orig 

Selmer, TN, Robert Sibley, RNAV (GPS) RWY 

35, Orig 

Selmer, TN, Robert Sibley, Takeoff 

Minimums and Obstacle DP, Orig 

Castroville, TX, Castroville Muni, NDB RWY 

33, Amdt 4, CANCELLED 

Port Lavaca, TX, Calhoun County, NDB RWY 

14, Amdt 4B, CANCELLED 

Victoria, TX, Victoria Rgnl, NDB RWY 12L, 

Amdt 4C, CANCELLED 

Tappahannock, VA, Tappahannock-Essex 

County, RNAV (GPS) RWY 10, Amdt 1 

Tappahannock, VA, Tappahannock-Essex 

County, RNAV (GPS) RWY 28, Amdt 1 

Tomahawk, WI, Tomahawk Regional, RNAV 

(GPS) RWY 9, Amdt 1 

Tomahawk, WI, Tomahawk Regional, RNAV 

(GPS) RWY 27, Amdt 1 

Tomahawk, WI, Tomahawk Regional, Takeoff 

Minimums and Obstacle DP, Orig 

Morgantown, WV, Morgantown Muni-WLB 

Hart Field, VOR/DME RWY 18, Amdt 7, 

CANCELLED 

Casper, WY, Natrona County Intl, ILS OR 

LOC RWY 3, Amdt 6 

Casper, WY, Natrona County Intl, ILS OR 

LOC RWY 8, Amdt 25 

Casper, WY, Natrona County Intl, RNAV 

(GPS) RWY 3, Amdt 1 

Casper, WY, Natrona County Intl, RNAV 

(GPS) RWY 8, Amdt 1 

Casper, WY, Natrona County Intl, RNAV 

(GPS) Y RWY 3, Orig, CANCELLED 

Cheyenne, WY, Cheyenne Rgnl/Jerry Olson 

Field, RNAV (GPS) RWY 9, Amdt 1 

Cheyenne, WY, Cheyenne Rgnl/Jerry Olson 

Field, RNAV (GPS) RWY 13, Amdt 1 

Cheyenne, WY, Cheyenne Rgnl/Jerry Olson 

Field, RNAV (GPS) RWY 31, Amdt 1 

On July 22, 2008 (73 FR 42520) the FAA 

published an Amendment in Docket No. 

30618, Amdt No. 3278 to Part 97 of the 

Federal Aviation Regulations under section 

97.25 effective September 25, 2008 which is 

corrected to read as follows: 

Barter Island, AK, Barter Island, LRRS, NDB 

RWY 7, Orig, CANCELLED 

[FR Doc. E8–17614 Filed 8–6–08; 8:45 am] 

BILLING CODE 4910–13–P 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Parts 241 and 271 

[Release Nos. 34–58288, IC–28351; File No. 

S7–23–08] 

Commission Guidance on the Use of 

Company Web Sites 

AGENCY: Securities and Exchange 

Commission. 

ACTION: Interpretation; solicitation of 

comment. 

SUMMARY: We are publishing this 

interpretive release to provide guidance 

regarding the use of company Web sites 

under the Exchange Act and the 

antifraud provisions of the federal 

securities laws. We are soliciting 

comment on issues relating to company 

use of technology generally in providing 

information to investors. 

DATES: Effective Date: August 7, 2008. 

Comment Date: Comments should be 

received on or before November 5, 2008. 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

Electronic Comments 

• Use the Commission’s Internet 

comment form (http://www.sec.gov/ 

rules/interp.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number S7–23–08 on the subject line; 

or 

• Use the Federal eRulemaking Portal 

(http://www.regulations.gov). Follow the 

instructions for submitting comments. 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, 100 F Street, NE., 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number S7–23–08. This file number 

should be included on the subject line 

if e-mail is used. To help us process and 

review your comments more efficiently, 

please use only one method. The 

Commission will post all comments on 

the Commission’s Web site (http:// 

www.sec.gov/rules/interp.shtml). 

Comments are also available for public 

inspection and copying in the 

Commission’s Public Reference Room, 

100 F Street, NE., Washington, DC 

20549 on official business days between 

the hours of 10 a.m. and 3 p.m. All 

comments received will be posted 

without change; we do not edit personal 

identifying information from 

submissions. You should submit only 

information that you wish to make 

available publicly. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Cohan, Kim McManus or Mark 

Vilardo, Special Counsels in the Office 

of Chief Counsel, Division of 

Corporation Finance, at (202) 551–3500, 

100 F Street, NE., Washington, DC 

20549. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction and Overview 

A. Introduction 

B. Overview of Exchange Act Rules on the 

Use of Company Web sites 

II. Application of Certain Provisions of the 

Federal Securities Laws to Information 

Presented on Company Web sites 

A. Evaluation of ‘‘Public’’ Nature of 

Information on Company Web sites 

1. Whether and When Information Is 

‘‘Public’’ for Purposes of the 

Applicability of Regulation FD 

2. Satisfaction of Public Disclosure 

Requirements of Regulation FD 

B. Antifraud and Other Exchange Act 

Provisions 

1. Effect of Accessing Previously Posted 

Materials or Statements on Company 

Web sites 

2. Hyperlinks to Third-Party Information 

3. Summary Information 

4. Interactive Web site Features 

C. Disclosure Controls and Procedures 

D. Format of Information and Readability 

III. Request for Comment 

I. Introduction and Overview 

A. Introduction 

In its February 2008 Progress Report, 

the Federal Advisory Committee on 

Improvements to Financial Reporting 

recommended that we provide more 

guidance as to how companies can use 

their Web sites to provide information 

to investors in compliance with the 

federal securities laws, particularly with 

respect to the Securities Exchange Act 

of 1934 (the ‘‘Exchange Act’’).1

Prompted, in part, by this report, we 

believe that to encourage the continued 

development of company Web sites as a 

significant vehicle for the dissemination 

to investors of important company 

information, it is an appropriate time to 

provide additional Commission 

guidance specifically addressing 

company Web sites.2 While we 

addressed certain discrete Internet 

issues relating to the Securities Act of 


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Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Rules and Regulations 45863 

3See Securities Offering Reform, Release No. 33–

8591 (Aug. 3, 2005) [70 FR 44721] (‘‘Securities 

Offering Reform Release’’). 4See Use of Electronic Media, Release No. 33–

7856 (Apr. 28, 2000) [65 FR 25843] (‘‘2000 

Electronics Release’’). 5See id. at Section II.D. 6We do not view the guidance in this release as 

a delineation of the outer limits of how technology 

can or should be used on company Web sites. 7 In addition to the Exchange Act, companies 

must also consider whether their Web sites may 

involve issues under the Securities Act, which we 

discussed in our 2000 Electronics Release. For 

example, a company in registration must consider 

the application of Section 5 of the Securities Act to 

all of its communications with the public—

including information on a company’s Web site. See 

2000 Electronics Release, supra note 4. This 

consideration is important with regard to any 

company engaged in offering and selling its 

securities, including companies engaged in 

continuous offerings of their securities, such as 

mutual funds. Because our rules adopted as part of 

Securities Offering Reform in 2005 answered many 

of the key issues relating to company Web site use 

under the Securities Act, this release will focus on 

the antifraud provisions and certain Exchange Act 

provisions only. See Securities Offering Reform 

Release, supra note 3; Securities Act Rule 433 [17 

CFR 230.433]. 

8For purposes of this release generally, we are 

using the term ‘‘company’’ to refer to entities that 

are corporations, partnerships and other types of 

registrants subject to the periodic reporting and 

antifraud provisions of the Exchange Act, including 

registered investment companies. 

9See, e.g., The Impact of Recent Technological 

Advances on the Securities Markets (Sept. 1997) 

(available at http://www.sec.gov/news/studies/ 

techrp97.htm). In this report, we stated that we 

were mindful of the benefits of increasing use of 

new technologies for investors and the markets, and 

have encouraged experimentation and innovation 

by adopting flexible interpretations of the federal 

securities laws. We noted that our approach has 

balanced the goals of promoting the benefits of 

electronic media, with the need to protect investors 

and the integrity of the markets from fraud and 

abuse. We also emphasized the importance of 

continued coordination with market participants 

and federal, state and international regulators as 

technological advances develop. See also Securities 

Offering Reform Release, supra note 3. 

10See Internet Availability of Proxy Materials, 

Release No. 34–55146, at Section I (Jan. 22, 2007) 

[72 FR 4147] (‘‘Internet Proxy Release’’). The 

Investment Company Institute reported that, in 

2006, 92% of mutual fund shareholders had 

Internet access. See Sandra West & Victoria 

Leonard-Chambers, Ownership of Mutual Funds 

and Use of the Internet, 2006, Investment Company 

Institute Research Fundamentals (Oct. 2006), 

available at http://ici.org/stats/res/fm-v15n6.pdf. In 

2005, that figure was at 88%. Additionally, the 

Investment Company Institute reported that 79% of 

all U.S. adults had Internet access in 2005. See 

Sandra West & Victoria Leonard-Chambers, Mutual 

Fund Shareholders’ Use of the Internet, 2005, 

Investment Company Institute Research 

Fundamentals (Feb. 2006), available at http:// 

www.ici.org/pdf/fm-v15n2.pdf. According to the 

Pew Internet & American Life Project, as of an 

October-December 2007 survey, 75% of adults use 

the Internet. See http://www.pewinternet.org/ 

trends/User_Demo_2.15.08.htm. 

11See, e.g., Acceleration of Periodic Report Filing 

Dates and Disclosure Concerning Web site Access 

to Reports, Release No. 33–8128, at Section II.D.1 

(Sept. 5, 2002) [67 FR 58480] (‘‘Accelerated Periodic 

Report Filing Release’’) (‘‘Online access to Internet 

information also helps to democratize the capital 

markets by enabling many small investors to access 

corporate information.’’). 

12A limited number of forms continue to be 

permitted to be filed in paper. For example, we 

permit paper filing of Form 1–A [17 CFR 239.90] 

and Form 144 [17 CFR 239.144]. In addition, SEC 

registered investment advisers make some of their 

filings electronically through the Investment 

Adviser Registration Depository. 

13Since 1983, when the Commission first began 

to develop an electronic disclosure system, we have 

been continually improving and modernizing 

electronic access to companies’ Commission filings, 

as well as requiring more forms to be filed 

electronically rather than in paper. The pilot 

program for EDGAR was established in the early 

1980s pursuant to a Congressional mandate and the 

system was fully implemented, effective January 30, 

1995. For a summary of the development of 

EDGAR, see the staff’s report, ‘‘Electronic Filing and 

the EDGAR System: A Regulatory Overview,’’ (Oct. 

3, 2006), available at http://www.sec.gov/info/ 

edgar/regoverview.htm. 

14On May 30, 2008, we published proposed rule 

amendments requiring companies to provide their 

financial statements, including financial statement 

footnotes and schedules, in interactive data format 

on EDGAR. The proposed rules would require a 

company to provide such interactive data in its 

annual and quarterly reports, transition reports, and 

Securities Act registration statements. Companies 

that maintain Web sites also would be required to 

Continued 

1933 (the ‘‘Securities Act’’) in 2005,3 we 

last provided guidance in 2000 on the 

electronic delivery of disclosure 

documents, company liability for Web 

site content, as well as other matters.4

We noted then that, given the speed at 

which technological advances are 

developing, and the translation of those 

technologies into investor tools, we 

expected to revisit the guidance 

provided at that time in order to update 

and supplement it as appropriate.5

Given the development and 

proliferation of company Web sites 

since 2000, and our expectation that 

continued technological advances will 

further enhance the quality, not just the 

quantity, of information delivered and 

available to investors on such Web sites, 

as well as the speed at which such 

information reaches the market, we are 

issuing this interpretive release 6 to 

provide additional guidance on the use 

of company Web sites with respect to 

the antifraud provisions and certain 

relevant Exchange Act provisions of the 

federal securities laws.7 Our guidance 

focuses principally on: 8

• When information posted on a 

company Web site is ‘‘public’’ for 

purposes of the applicability of 

Regulation FD; 

• Company liability for information 

on company Web sites—including 

previously posted information, 

hyperlinks to third-party information, 

summary information and the content of 

interactive Web sites; 

• The types of controls and 

procedures advisable with respect to 

such information; and 

• The format of information 

presented on a company Web site, with 

the focus on readability, not printability. 

We have long recognized the vital role 

of the Internet and electronic 

communications in modernizing the 

disclosure system under the federal 

securities laws and in promoting 

transparency, liquidity and efficiency in 

our trading markets.9 Central to the 

effective operation of our trading 

markets is the ongoing dissemination of 

information by companies about 

themselves and their securities. A 

reporting company’s reports that it files 

under the Exchange Act and other 

publicly available information form the 

basis for the market’s evaluation of the 

company and the pricing of its 

securities, and investors in the 

secondary market use that information 

in making their investment decisions. 

Ongoing technological advances in 

electronic communications have 

increased both the markets’ and 

investors’ demand for more timely 

company disclosure and the ability of 

companies to capture, process and 

disseminate this information to market 

participants. Indeed, one of the key 

benefits of the Internet is that 

companies can make information 

available to investors quickly and in a 

cost-effective manner. Recently, we 

noted that approximately 80% of 

investors in mutual funds in the United 

States have access to the Internet in 

their homes.10 Investors are turning 

increasingly to electronic media and to 

company and third-party Web sites as 

sources of information to aid in their 

investment decisions, particularly since 

many types of investment-related 

company information are available only 

in electronic form. We believe that the 

Internet has helped to transform the 

trading markets by enabling many retail 

investors to have ready access to 

company information.11

Through the years, we have taken a 

number of steps to encourage the 

dissemination of information 

electronically via the Internet, as we 

believe that widespread access to 

company information is a key 

component of our integrated disclosure 

scheme, the efficient functioning of the 

markets, and investor protection. Today, 

all companies must make their 

Commission filings electronically 

through our Electronic Data Gathering, 

Analysis and Retrieval (‘‘EDGAR’’) 

system,12 and we provide free access to 

EDGAR on a real-time basis through our 

Internet Web site, www.sec.gov.13 In 

addition to our ongoing efforts to 

improve and modernize EDGAR, we 

have encouraged, and recently proposed 

requiring,14 companies to provide 


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45864 Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Rules and Regulations 

post this new interactive data on their Web sites. 

See Interactive Data to Improve Financial 

Reporting, Release No. 33–8924 (May 30, 2008) [73 

FR 32794] (‘‘Interactive Data Proposing Release’’). 

15See Interactive Data For Mutual Fund Risk/ 

Return Summary, Release No. 33–8929 (June 10, 

2008) [73 FR 35442] (‘‘Mutual Fund Interactive Data 

Proposing Release,’’ together with the Interactive 

Data Proposing Release supra note 14, the 

‘‘Interactive Data Proposing Releases’’). 

16Companies create interactive data files by 

defining—or ‘‘tagging’’—their financial statements 

using elements and labels from a standard list of 

interactive data tags. Data tagging provides a format 

for enhancing financial and other reporting data 

using electronic formats such as eXtensible MarkUp Language (XML) and its derivatives, such as 

eXtensive Business Reporting Language (XBRL). 

General information concerning interactive data is 

available on our Web site at http://www.sec.gov/ 

spotlight/xbrl.shtml. See also XBRL Voluntary 

Financial Reporting Program on the EDGAR 

System, Release No. 33–8529 (Feb. 3, 2005) [70 FR 

6556]; and Extension of Interactive Data Voluntary 

Reporting Program on the EDGAR System to 

Include Mutual Fund Risk/Return Summary 

Information, Release No. 33–8823 (July 11, 2007) 

[72 FR 39290]. 

17See Section I.B, infra. See also Exchange Act 

Section 16(a)(4)(C) [15 U.S.C. 78(p)(a)(4)(C)]. This 

section was enacted pursuant to the Sarbanes-Oxley 

Act of 2002 [Pub. L. No. 107–204, 116 Stat. 745 

(2002)] and requires that companies post Section 16 

reports on their Web site if they maintain one. 

Section 16(a)(4)(C) evidences Congress’s recognition 

of the informational utility of company Web sites. 

While our rules do not require companies to 

establish Web sites, the New York Stock Exchange 

does require its listed companies, with certain 

exceptions, to establish and maintain their own 

Web sites. See NYSE Listed Company Manual, 

Section 303A.14. 

18Since their first appearance on the World Wide 

Web, company Web sites typically have included 

copies of Commission filings or a hyperlink to the 

Commission’s EDGAR database, along with certain 

other previously posted historical information, such 

as earnings releases. Some companies also have 

provided limited ‘‘real-time’’ information, such as 

stock data links. For a discussion of the content of 

company Web sites in 1998 and prior years, see 

generally Robert Prentice et al., Corporate Web site 

Disclosure and Rule 10b-5: An Empirical 

Evaluation, 36 Am. Bus. L.J.531 (‘‘Prentice’’); 

Howard M. Friedman, Securities Regulation in 

Cyberspace § 10.01 (3rd ed. Supp. 2006) 

(‘‘Friedman’’). 

19A 2002 study by our Office of Economic 

Analysis revealed that approximately 83% of 

companies with a public float of at least $75 million 

(other than registered investment companies) 

provide some form of access to their Commission 

filings through their Web sites, either via a 

hyperlink with a third-party service providing realtime access to the filings (45%), by posting the 

filings directly on their Web sites (29%) or via a 

hyperlink to our EDGAR database (15%). See 

Accelerated Periodic Report Filing Release, supra 

note 11. 

20For example, web pages created in a ‘‘dynamic’’

format, such as ‘‘active server page,’’ are database 

driven, permitting automatic updating of the 

content. This differs from the traditional, ‘‘static’’

HTML pages that can only be altered by the 

webmaster. ‘‘Push’’ technology, such as e-mail 

alerts or ‘‘RSS’’ feeds, enables the automatic, 

electronic dissemination of new information on the 

site to subscribers. ‘‘Interactive’’ investor-related 

tools and functionality, such as ‘‘blogs’’ and 

electronic shareholder forums, promote direct 

communications with companies, their officers and 

other representatives. 

21As we noted in a recent release, Shareholder 

Choice Regarding Proxy Materials, Release No. 34–

56135, at Section VI.C.1 (Jul. 26, 2007) [72 FR 

42221] (‘‘Shareholder Choice Release’’): 

‘‘Information in electronic documents is often more 

easily searchable than information in paper 

documents. Shareholders will be better able to go 

directly to any section of the document that they 

are particularly interested in. The amendments also 

will permit shareholders to more easily evaluate 

data and transfer data using analytical tools such as 

spreadsheet programs. Such tools enable users to 

compare relevant data about several companies 

more easily.’’

22See, e.g., SEC v. Capital Gains Research 

Bureau, Inc., 375 U.S. 180, 186 (1963) (explaining 

that the purpose common to the securities laws was 

to ‘‘substitute a philosophy of full disclosure for the 

philosophy of caveat emptor’’). 

23While EDGAR and the Commission’s Web site 

continue to serve as the core source of companies’

securities-related information online, we recognize 

that the technological capacities of company Web 

sites may allow for presentation and manipulation 

of large quantities of data in ways that exceed 

EDGAR’s current capacities. For example, while the 

recently introduced RSS feed on the Commission’s 

Web site allows access to documents in interactive 

data format in the pilot program, some commercial 

and company Web sites enable users to receive the 

filings of companies of their choice. 

24 In discussing the use of company Web sites to 

provide information in a tiered format, the Federal 

Advisory Committee on Improvements to Financial 

Reporting recently observed in its February 2008 

Progress Report: ‘‘A valuable element of many of 

such [company] Web site presentations is that they 

present the most important general information 

about a company on the opening page, with 

embedded links that enable the reader to drill down 

to more detail by clicking on the links. In this way, 

viewers can follow a path into, and thereby obtain 

increasingly greater details about, the financial 

statements, a company’s strategy and products, its 

management and corporate governance, and its 

many other areas in which investors and others may 

have an interest.’’ See CIFiR Progress Report, supra 

note 1. 

25See generally 2000 Electronics Release, supra 

note 4; Use of Electronic Media for Delivery 

Purposes, Release No. 33–7233 (Oct. 6, 1995) [60 FR 

53458] (‘‘1995 Electronics Release’’); Use of 

Electronic Media by Broker-Dealers, Release No. 

33–7288 (May 9, 1996) [61 FR 24643] (‘‘1996 

Electronics Release’’). 

financial information on EDGAR in 

interactive data files, which would 

make financial information easier for 

investors to analyze, as well as help 

automate regulatory filings and business 

information processing. We also 

proposed rule amendments requiring 

mutual funds to provide certain key 

information from their prospectuses in 

interactive data format.15 Interactive 

data has the potential to increase the 

speed, accuracy and usability of 

financial and other disclosure, and 

eventually to reduce costs.16

As we have developed EDGAR to 

facilitate and promote electronic 

availability of information, we also have 

encouraged companies to make their 

Commission filings and other company 

information available on their Web sites. 

We believe that company disclosure 

should be more readily available to 

investors in a variety of locations and 

formats to facilitate investor access to 

that information. Although our rules do 

not require reporting companies to 

establish or maintain Web sites, our 

rules do promote and, in some cases 

require, companies to use Web sites to 

make required disclosures.17

A company’s Web site is an obvious 

place for investors to find information 

about the company,18 and a substantial 

majority of large public companies 

already provide access to their 

Commission filings through their Web 

sites.19 Technological advances, and the 

reduced costs associated with the 

implementation of technologies over 

time, now allow companies to include 

more ‘‘interactive’’ and current 

information on their Web sites than was 

the case previously, thereby moving 

Web sites away from the filing cabinet 

or ‘‘static’’ paradigm to a ‘‘dynamic’’

paradigm, one shaped by the market’s 

desire for more current, searchable and 

interactive information.20 We recognize 

that allowing companies to present data 

in formats different from those dictated 

by our forms or more technologically 

advanced than EDGAR may be 

beneficial to investors.21 Indeed, 

because we recognize the enormous 

potential for the Internet to promote the 

goals of the federal securities laws,22 we 

wish to continue to encourage 

companies to develop their Web sites in 

compliance with the federal securities 

laws so that they can serve as effective 

information and analytical tools for 

investors.23 Enhanced company Web 

site presentation of information can 

benefit investors of all types by enabling 

them to gather information about a 

company at a level of detail they believe 

is satisfactory for their purposes.24

B. Overview of Exchange Act Rules on 

the Use of Company Web Sites 

We have issued a series of interpretive 

releases and rules that promote the use 

of company Web sites as a means for 

companies to communicate and provide 

information to investors under the 

Securities Act and the Exchange Act.25

A fundamental principle underlying 

these interpretations and rules is that, 

where access is freely available to all, 

use of electronic media is at least equal 

to other methods of delivering 

information or making it available to 

investors and the market. Further, we 

have recognized that, in some cases, 

allowing companies to provide 

information on their Web sites has 

advantages for investors over mandating 

that EDGAR serve as the exclusive 

venue and format for company 


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Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Rules and Regulations 45865 

26See, e.g., Regulation G [17 CFR 244.100]; 

Instruction 2 to Item 407(b)(2) of Regulation S–K 

[17 CFR 229.407(b)(2)]; Exchange Act Rule 12d–

2(c)(2)(iii) [17 CFR 240.12d–2(c)(2)(ii)]. See 

generally Accelerated Periodic Report Filing 

Release, supra note 11, at Section IV.B.1. 

27See Securities Act Rule 172 [17 CFR 230.172]; 

Securities Offering Reform Release, supra note 3; 

Internet Proxy Release, supra note 10; Enhanced 

Disclosure and New Prospectus Delivery Option for 

Registered Open-End Management Investment 

Companies, Release No. 33–8861 (Nov. 30, 2007) 

[72 FR 67790] (‘‘Mutual Fund Summary Prospectus 

Proposing Release’’) (proposing to permit funds to 

satisfy their prospectus delivery obligations by 

sending or giving key information directly to 

investors in the form of a summary prospectus and 

providing the statutory prospectus on an Internet 

Web site). 

28See Shareholder Choice Release, supra note 21. 

While large accelerated filers, not including 

registered investment companies, are currently 

required to comply with these rules, starting 

January 1, 2009, these rules will apply to all filers 

and other soliciting parties. Perhaps the most 

significant change effected by this rulemaking is the 

shift whereby electronic availability can serve as 

the default means of delivery, with shareholders 

having to ‘‘opt out’’ to receive paper delivery. The 

requirement that any shareholder lacking Internet 

access, or preferring delivery of a paper copy of the 

proxy materials, can make a permanent request to 

receive a paper copy of the proxy materials (and all 

future proxy materials) at no charge mitigates 

concerns about Internet access. In adopting these 

notice and access model rules, we recognized that 

‘‘[a]s technology continues to progress, accessing 

the proxy materials on the Internet should increase 

the utility of our disclosure requirements to 

shareholders. Information in electronic documents 

is often more easily searchable than information in 

paper documents. Shareholders will be better able 

to go directly to any section of the document that 

they are particularly interested in.’’ Id. at Section 

VI.C.1. It is significant to note that these rules 

neither require, nor permit, solicitations pursuant to 

the notice and access model with respect to 

business combination transactions. Based on 

statistics compiled by Broadridge, a proxy 

distribution service provider, beneficial owner 

(which include retail investors) participation in 

proxy voting has diminished since the adoption of 

the notice and access model rules. See Broadridge, 

Notice & Access: Statistical Overview of Use with 

Beneficial Shareholders as of May 31, 2008, 

available at http://broadridge.com/notice-andaccess/NAStatsStory.pdf. 

29Accelerated filers and large accelerated filers 

are required to disclose this information. Nonaccelerated filers are encouraged to do so. See Item 

101(e) of Regulation S–K [17 CFR 229.101(e)]. 

30See Item 1(b) of Form N–1A. See also Item 

1.1.d. of Form N–2 (providing a similar requirement 

for closed-end funds). 

31See Form S–1, General Instruction VII.F [17 

CFR 239.11]; Form S–11, General Instruction H.6 

[17 CFR 239.18]. In the adopting release for the 

Form S–11 amendments, we noted that companies 

could satisfy this requirement by ‘‘including 

hyperlinks directly to the reports or other materials 

filed on EDGAR or on another third-party Web site 

where the reports or other materials are made 

available in the appropriate timeframe and access 

to the reports or other materials is free of charge to 

the user.’’ See Revisions to Form S–11 to Permit 

Historical Incorporation by Reference, Release No. 

33–8909, at Section I.B.1(a) (Apr. 10, 2008) [73 FR 

20512]. 

32See Exchange Act Section 16(a)(4)(C) and Rule 

16a–3(k) [17 CFR 240.16a–3(k)]. See also Mandated 

Electronic Filing and Web site Posting for Forms 3, 

4 and 5, Release No. 33–8230 (May 7, 2003) [68 FR 

25787]. 

33See Exchange Act Rule 12d2–2(c)(2)(iii) [17 

CFR 240.12d2–2(c)(2)(iii)]. See also Exchange Act 

Rule 12d2–2(c)(3) [17 CFR 240.12d2–2(c)(3)] 

(imposing a similar requirement on a national 

securities exchange to post on its Web site any 

notice it receives from a company indicating the 

company has determined to withdraw a class of 

securities from listing and/or registration on the 

exchange). 

34See Interactive Data Proposing Release, supra 

note 14; and Mutual Fund Interactive Data 

Proposing Release, supra note 15. 

35See Conditions for Use of Non-GAAP Financial 

Measures, Release No. 33–8176 (Jan. 22, 2003) [68 

FR 4819]. In that release, we recommended that 

companies provide ongoing Web site access to this 

information for a period of at least 12 months. 

Although we understand that some companies may 

be reducing such Web site access to a single quarter, 

we continue to believe that companies should 

retain the information on their Web sites for 12 

months. We believe such a retention time period is 

appropriate to enable quarter-to-quarter 

comparisons. Financial information disclosed on 

Web sites is still subject to the limitations on 

disclosure of non-GAAP financial information set 

forth in Regulation G. See id. 

36See Asset-Backed Securities, Release No. 33–

8518, at Section III.B.4.b. (Dec. 22, 2004) [70 FR 

1505] (‘‘Asset-Backed Release’’) (discussing the 

ability to post disclosure of static pool data that is 

required in registered sales of asset-backed 

securities on Web sites rather than filing it on 

EDGAR, subject to certain conditions). In this 

context, we resolved the potential conflict between 

the need to include material information in a 

prospectus offering asset-backed securities and the 

technical limitations of EDGAR that may have 

limited the ability of asset-backed issuers to provide 

that information in the format most useful for 

investors by adopting an alternative 

accommodation via which the information posted 

on a Web site will be deemed to be included in the 

prospectus when done in compliance with Item 312 

of Regulation S–T [17 CFR 232.312]. 

37See Instruction 2 to Item 407(b)(2) of 

Regulation S–K [17 CFR 229.407(b)(2)]. As we noted 

above, the New York Stock Exchange has also 

Continued 

disclosures.26 Indeed, today we have 

reached a point where the availability of 

information in electronic form—

whether on EDGAR or a company Web 

site—is the superior method of 

providing company information to most 

investors, as compared to other 

methods. 

Our rules and interpretations that 

promote the use of Web sites generally 

work in two different respects. First, 

when delivery of documents is required 

under the federal securities laws, we 

have encouraged the delivery in 

electronic format or recognized that 

electronic access can satisfy delivery—

hence, prospectuses and proxy materials 

can be delivered or otherwise made 

available using electronic 

communications and the Internet in 

certain circumstances.27 Indeed with 

respect to proxy materials, certain 

companies are required to post their 

proxy materials on a specified, publicly 

accessible Internet Web site (other than 

EDGAR) and provide record holders 

with a notice informing them that the 

materials are available and explaining 

how to access those materials.28 Second, 

where disclosure of information is 

required under the Exchange Act, we 

have allowed companies to make such 

information available to investors on 

their Web sites with their Web sites 

serving, depending on the circumstance, 

as a supplement to EDGAR, as an 

alternative to EDGAR, or as a standalone method of providing information 

to investors independent of EDGAR. 

When a company Web site serves as 

a supplement to EDGAR, company 

information is available both on EDGAR 

and on the company’s Web site. We 

have promoted this supplemental use of 

Web sites by requiring, for example, 

that: 

• Companies disclose their Web site 

addresses in annual reports on Form 

10–K and state whether their Exchange 

Act reports are available on their Web 

sites; 29

• Mutual funds disclose in their 

prospectuses whether shareholder 

reports are available on their Web sites, 

and if not, why not; 30

• Companies make their Exchange 

Act reports available on their Web sites 

as a condition to incorporating by 

reference previously filed reports into 

prospectuses filed as part of registration 

statements on Form S–1 or Form S–

11; 31

• Companies post on their Web sites, 

if they have one, all beneficial 

ownership reports filed by officers, 

directors and principal security holders 

under Section 16(a) of the Exchange 

Act; 32 and 

• Companies post on their Web sites, 

if they have one, notice of their intent 

to delist or deregister their securities.33

In addition, we have proposed in the 

Interactive Data Proposing Releases that 

companies that maintain Web sites be 

required to post their interactive data 

files on their Web sites.34

In some situations, we have given 

companies the choice and flexibility of 

satisfying an Exchange Act disclosure 

requirement either by filing the 

disclosure on EDGAR or by making it 

available on the company’s Web site, 

thereby using company Web sites as an 

alternative to EDGAR. For example: 

• A company may disclose nonGAAP financial measures and 

Regulation G required information on its 

Web site; 35

• An asset-backed issuer may post 

disclosure of static pool data on its Web 

site rather than filing it on EDGAR; 36

• A company may provide its audit, 

nominating or compensation committee 

charters on its Web site as an alternative 

to providing them in its proxy or 

information statement; 37


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implemented rules that recognize the value of 

company Web sites as an important source of 

corporate governance information. See, e.g., NYSE 

Listed Company Manual, Sections 303A.10 and 

303A.14 and note 17 supra. 

38See Item 406(d) of Regulation S–K [17 CFR 

229.406(d)]; Item 5.05(c) of Form 8–K [17 CFR 

249.308]. 

39See Instruction to Item 407(b)(2) of Regulation 

S–K. 

40We recently adopted new Exchange Act Rule 

12h–6 [17 CFR 240.12h–6] and accompanying rule 

amendments to extend the Exchange Act Rule 

12g3–2(b) [17 CFR 240.12g3–2(b)] exemption to a 

foreign private issuer and prior Form 15 filer 

immediately upon its termination of reporting 

under Rule 12h–6. To maintain that exemption, the 

company must publish specified home country 

documents in English on its Internet Web site or 

through an electronic information delivery system 

generally available to the public in its primary 

trading markets. See Termination of a Foreign 

Private Issuer’s Registration of a Class of Securities 

under Section 12(g) and Duty to File Reports Under 

Section 13(a) or 15(d) of the Securities Exchange 

Act of 1934, Release No. 34–55540 (Mar. 27, 2007) 

[72 FR 16933]. The purpose of these provisions, and 

the additional changes that have been proposed to 

the availability of the exemption from registration 

pursuant to Rule 12g3–2(b), is to provide U.S. 

investors with Internet access to ongoing material 

information about a foreign private issuer that is 

required by its home country following its 

termination of reporting under Rule 12h–6. See 

Exemption from Registration under Section 12(g) of 

the Securities Exchange Act of 1934 for Foreign 

Private Issuers, Release No. 34–57350 (Feb. 19, 

2008) [73 FR 10101]. We also recently proposed 

rules that would permit exchange-traded funds to 

be actively managed provided certain conditions 

are met, including that fund composition 

information is maintained every business day on a 

publicly accessible Web site, with such Web site 

posting being the standalone method of providing 

such information to the public. See ExchangeTraded Funds, Release No. 33–8901 (Mar. 11, 2008) 

[73 FR 14618]. 

41See Selective Disclosure and Insider Trading, 

Release No. 33–7881, at Section II.B.2 (Aug. 15, 

2000) [65 FR 51715] (‘‘Regulation FD Adopting 

Release’’). 

42See Section I, supra. There also has been 

significant growth in the use of the Internet by the 

public. As noted in the Internet Proxy Release, 

research submitted to the Commission during the 

comment period indicated that approximately 80% 

of mutual fund investors in the United States have 

access to the Internet in their homes. See Internet 

Proxy Release, supra note 10, at Section I. 

43The Federal Advisory Committee on 

Improvements to Financial Reporting requested that 

the Commission clarify this point in its CIFiR 

Progress Report. See CIFiR Progress Report, supra 

note 1, at Chapter 4, Section III. 

44See 2000 Electronics Release, supra note 4. 

45We are not addressing issues relating to insider 

trading that may be implicated by disclosures on 

company Web sites. In addition, our guidance is not 

intended to modify the positions we have expressed 

regarding the Securities Act implications of 

disclosures on company Web sites, including when 

such disclosures may constitute offers or the 

implications for private offerings. For example, in 

the 2000 Electronics Release, we discussed the 

extent to which a company’s use of an Internet Web 

site could constitute a ‘‘general solicitation.’’ See 

2000 Electronics Release, supra note 4, at Section 

II.C.2. 

Our guidance also is not intended to address 

issues under Securities Act Rule 144(c) [17 CFR 

230.144(c)]. We note, for example, that the concept 

of ‘‘public information’’ for non-reporting 

companies contained in Rule 144(c)(2) is based on 

access. We believe that non-reporting companies 

should focus on the availability of information 

required by Rule 144 rather than on dissemination 

of that information as further discussed in this 

section. Likewise, under Rule 144A(d)(1)(i) [17 CFR 

230.144A(d)(1)(i)], sellers and persons acting on 

their behalf may look to publicly available financial 

statements for a prospective purchaser; and under 

Rule 144A(d)(4)(i), certain companies are required 

to provide access to specified company information 

to security holders and prospective purchasers. As 

with Rule 144, the concept of dissemination as we 

discuss in this section is not a condition to reliance 

on Rule 144A. 

Regulation FD applies to closed-end investment 

companies but does not apply to other investment 

companies. Exchange Act Rule 101(b) [17 CFR 

243.101(b)(definition of issuer for purposes of 

Regulation FD). 

46See Regulation FD [17 CFR 243.100 et seq.]. 

47See Regulation FD Adopting Release, supra 

note 41 at Section II.A. In the Regulation FD 

Adopting Release, we stated our belief that 

Regulation FD struck an appropriate balance. It 

established a clear rule prohibiting unfair selective 

disclosure and encouraged broad public disclosure. 

We also believed that Regulation FD should not 

impede ordinary course business communications. 

See id. at Section II.A.4. 

• A company may disclose a material 

amendment to its code of ethics, or a 

material waiver of a provision of its 

code of ethics, by posting the 

information on its Web site rather than 

filing a Form 8–K; 38 and 

• A company may provide 

information regarding board member 

attendance at the annual shareholder 

meeting on its Web site rather than in 

its proxy statement.39

Finally, we have recently recognized 

that, in very limited circumstances, a 

company’s Web site can even serve as 

a standalone method of providing 

information to investors wholly 

independent of EDGAR. We have 

permitted certain foreign private issuers 

to use their Web sites as the primary or 

stand-alone source of information about 

the company as a basis for maintaining 

an exemption from Exchange Act 

registration and reporting requirements, 

under certain circumstances.40

II. Application of Certain Provisions of 

the Federal Securities Laws to 

Information Presented on Company 

Web Sites 

A. Evaluation of ‘‘Public’’ Nature of 

Information on Company Web Sites 

As we note above, there has been a 

dramatic increase in the use of company 

Web sites since our 2000 Electronics 

Release and the adoption of Regulation 

FD.41 Companies are providing greater 

amounts and types of information on 

their Web sites, which, as a result, are 

increasingly viewed by investors as key 

sources of information about the 

company.42 As companies use their Web 

sites to a greater extent to provide 

comprehensive information about 

themselves, some have raised questions 

as to the treatment of information 

posted on a company Web site under 

the federal securities laws.43 We note 

that such questions have numerous 

implications under the federal securities 

laws.44

Although we have not addressed the 

question of whether and when 

information on a company’s Web site is 

considered public for purposes of 

determining if a subsequent selective 

disclosure of such information may 

implicate Regulation FD, we believe that 

in view of the significant technological 

advances and the pervasive use of the 

Internet by companies, investors and 

other market participants since 2000, it 

is now an appropriate time to provide 

additional guidance regarding the 

public nature of disclosures on 

company Web sites for purposes of 

Regulation FD. Accordingly, we are 

providing guidance as to the 

circumstances under which information 

posted on a company Web site (whether 

by or on behalf of such company) would 

be considered ‘‘public’’ for purposes of 

evaluating the (1) applicability of 

Regulation FD to subsequent private 

discussions or disclosure of the posted 

information and (2) satisfaction of 

Regulation FD’s ‘‘public disclosure’’

requirement.45

1. Whether and When Information Is 

‘‘Public’’ for Purposes of the 

Applicability of Regulation FD 

Evaluating whether and when 

information posted on a company Web 

site is public so that a subsequent 

disclosure of that information to an 

enumerated person in Regulation FD is 

not a disclosure of non-public 

information implicates many of the 

same issues that Regulation FD itself 

was adopted to address.46 In particular, 

Regulation FD was adopted to address 

the problem of selective disclosure of 

material information by companies, in 

which ‘‘a privileged few gain an 

informational edge—and the ability to 

use that edge to profit—from their 

superior access to corporate insiders, 

rather than from their skill, acumen, or 

diligence.’’ 47 We must, therefore, keep 

that in mind when providing guidance 

on when information is considered 

public for purposes of assessing whether 

a subsequent selective disclosure may 

implicate Regulation FD. 


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48 Faberge, Inc., 45 S.E.C. 249, 255 (1973). See 

also Regulation FD Adopting Release, supra note 

41, at Section II.B (‘‘Information is nonpublic if it 

has not been disseminated in a manner making it 

available to investors generally.’’). 

49See Section I.B, supra. See Interactive Data 

Proposing Release, supra note 14. 

50 In our recent proposals regarding interactive 

data, we stated that we believed that ‘‘Web site 

availability of the interactive data would encourage 

its widespread dissemination.’’ Interactive Data 

Proposing Release, supra note 14, at Section II.B.5. 

In that release, we recognized the increasing role 

that company Web sites perform in supplementing 

the information filed electronically with the 

Commission by delivering financial and other 

disclosure directly to investors. Id. 

51Push technology, or server push, describes a 

type of Internet-based communication where the 

request for the transmission of information 

originates with the publisher or central server. It is 

contrasted with pull technology, where the request 

for the transmission of information originates with 

the receiver or client. 

52Companies should also consider the extent to 

which their Internet infrastructure can 

accommodate spikes in traffic volume that may 

accompany a major company development. 

‘‘In order to make information public, 

it must be disseminated in a manner 

calculated to reach the securities market 

place in general through recognized 

channels of distribution, and public 

investors must be afforded a reasonable 

waiting period to react to the 

information.’’ 48 Thus, in evaluating 

whether information is public for 

purposes of our guidance, companies 

must consider whether and when: (1) A 

company Web site is a recognized 

channel of distribution, (2) posting of 

information on a company Web site 

disseminates the information in a 

manner making it available to the 

securities marketplace in general, and 

(3) there has been a reasonable waiting 

period for investors and the market to 

react to the posted information. 

With respect to the first element of 

this analysis, as we have noted above, 

we believe that a company’s Web site 

can be a valuable channel of 

distribution for information about a 

company, its business, financial 

condition and operations.49 As we 

discuss below, whether a company’s 

Web site is a recognized channel of 

distribution of information will depend 

on the steps that the company has taken 

to alert the market to its Web site and 

its disclosure practices, as well as the 

use by investors and the market of the 

company’s Web site. 

With respect to the second element of 

the analysis, the question of what 

‘‘disseminated’’ means in the context of 

Web site disclosure, we recognize that, 

today, news is disseminated in an 

electronic world—one in which the 

accessibility to the information is not 

limited to reading a newspaper or the 

‘‘broad tape.’’ There are now many 

different channels of distribution of 

news and other information which 

account for the rapid dissemination of 

news today (and also the corresponding 

capacity for rapid trading based on such 

information). Because companies of all 

sizes now have the capacity to present 

information on their Web sites to all 

investors on a broadly accessible basis, 

and because investors correspondingly 

have the capability to easily find and 

retrieve information about companies by 

searching the World Wide Web, we now 

analyze the concept of ‘‘dissemination’’

through a changed lens. Consequently, 

we believe that, in the context of a 

company Web site that is known by 

investors as a location of company 

information, the appropriate approach 

to analyzing the concept of 

‘‘dissemination’’ for purposes of the 

‘‘public’’ test as it relates to the 

applicability of Regulation FD to a 

subsequent disclosure should be to 

focus on (1) the manner in which 

information is posted on a company 

Web site and (2) the timely and ready 

accessibility of such information to 

investors and the markets.50

Some factors, though certainly nonexclusive ones, for companies to 

consider in evaluating whether their 

company Web site is a recognized 

channel of distribution and whether the 

company information on such site is 

‘‘posted and accessible’’ and therefore 

‘‘disseminated,’’ include: 

• Whether and how companies let 

investors and the markets know that the 

company has a Web site and that they 

should look at the company’s Web site 

for information. For example, does the 

company include disclosure in its 

periodic reports (and in its press 

releases) of its Web site address and that 

it routinely posts important information 

on its Web site? 

• Whether the company has made 

investors and the markets aware that it 

will post important information on its 

Web site and whether it has a pattern or 

practice of posting such information on 

its Web site; 

• Whether the company’s Web site is 

designed to lead investors and the 

market efficiently to information about 

the company, including information 

specifically addressed to investors, 

whether the information is prominently 

disclosed on the Web site in the location 

known and routinely used for such 

disclosures, and whether the 

information is presented in a format 

readily accessible to the general public; 

• The extent to which information 

posted on the Web site is regularly 

picked up by the market and readily 

available media, and reported in, such 

media or the extent to which the 

company has advised newswires or the 

media about such information and the 

size and market following of the 

company involved. For example, in 

evaluating accessibility to the posted 

information, companies that are wellfollowed by the market and the media 

may know that the market and the 

media will pick up and further 

distribute the disclosures they make on 

their Web sites. On the other hand, 

companies with less of a market 

following, which may include many 

companies with smaller market 

capitalizations, may need to take more 

affirmative steps so that investors and 

others know that information is or has 

been posted on the company’s Web site 

and that they should look at the 

company Web site for current 

information about the company; 

• The steps the company has taken to 

make its Web site and the information 

accessible, including the use of ‘‘push’’

technology,51 such as RSS feeds, or 

releases through other distribution 

channels either to widely distribute 

such information or advise the market of 

its availability. We do not believe, 

however, that it is necessary that push 

technology be used in order for the 

information to be disseminated, 

although that may be one factor to 

consider in evaluating the accessibility 

to the information; 52

• Whether the company keeps its 

Web site current and accurate; 

• Whether the company uses other 

methods in addition to its Web site 

posting to disseminate the information 

and whether and to what extent those 

other methods are the predominant 

methods the company uses to 

disseminate information; and 

• The nature of the information. 

The third element in evaluating 

whether and when information posted 

on a company’s Web site would be 

public for purposes of evaluating 

whether a subsequent selective 

disclosure may implicate Regulation FD 

is whether investors and the market 

have been afforded a reasonable waiting 

period to react to the information. What 

constitutes a reasonable waiting period 

depends on the circumstances of the 

dissemination, which, in the context of 

company Web sites, may include: 

• The size and market following of 

the company; 

• The extent to which investor 

oriented information on the company 

Web site is regularly accessed; 

• The steps the company has taken to 

make investors and the market aware 

that it uses its company Web site as a 

key source of important information 


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53See Securities and Exchange Commission v. 

Texas Gulf Sulphur Co., 401 F.2d 833, 854 (2d Cir. 

1968) (noting that ‘‘where the news is of a sort 

which is not readily translatable into investment 

action, insiders may not take advantage of their 

advance opportunity to evaluate the information by 

acting immediately upon dissemination’’). 

54See SEC v. Ingoldsby, No. 88–1001–MA, 1990 

U.S. Dist. LEXIS 11383 (D. Mass. May 15, 1990); 

SEC v. MacDonald, 568 F.Supp. 111, 113 (D.R.I. 

1983), aff’d, 725 F.2d 9 (1st Cir. 1984); SEC v. 

Materia, No. 82 Civ. 6225, 1983 U.S. Dist. LEXIS 

11130 (S.D.N.Y. Dec. 5, 1983); DuPont Glore 

Forgan, Inc. v. Arnold Bernhard & Co., Inc., No. 73 

Cov. 3071, 1978 U.S. Dist. LEXIS 20385 (S.D.N.Y. 

Mar. 6, 1978). See also In re Apollo Group Inc. Sec. 

Litig., 509 F.Supp. 2d 837, 846 (D. Ariz. 2007) (In 

this securities-fraud class action, the Court declined 

to adopt a bright-line rule presuming an immediate 

market reaction, based on the efficient market 

theory, and instead focused on the specific facts of 

each case.); In re Crossroads Sys., Inc., 2002 U.S. 

Dist. LEXIS 26716, (W.D. Tex. Nov. 22, 2002), aff’d, 

Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 

660–661 (5th Cir. 2004) (In this securities-fraud 

class action, the Court employed a two-day 

window, concluding that an efficient market will 

digest unexpected new information within two days 

of its release.). 

55The standard to satisfy ‘‘public disclosure’’ in 

Regulation FD following a selective disclosure is 

governed by Rule 101(e). 

56See Rules 100(a) and 101(e) of Regulation FD. 

57See Regulation FD Adopting Release, supra 

note 41, at Section II.B.4.b. 

58See Rule 101(e)(2) of Regulation FD. 

59Under Regulation FD, when an issuer makes a 

selective disclosure, it must also provide general 

public disclosure, either simultaneously or 

promptly. Thus, the third element of the public test 

we discuss above—whether investors and the 

market have been afforded a reasonable waiting 

period to react to the information—does not apply 

in analyzing whether the general public disclosure 

requirements of Regulation FD have been satisfied. 

60For purposes of Regulation FD, a posting on a 

blog, by or on behalf of the company, would be 

treated the same as any other posting on a 

company’s Web site. The company would have to 

consider the factors outlined above to determine if 

the blog posting could be considered ‘‘public.’’

61We recognized in Regulation FD that ‘‘the 

issuer may use a method ‘or combination of 

about the company, including the 

location of the posted information; 

• Whether the company has taken 

steps to actively disseminate the 

information or the availability of the 

information posted on the Web site, 

including using other channels of 

distribution of information; and 

• The nature and complexity of the 

information.53

We emphasize that companies must 

look at the particular facts and 

circumstances in determining whether 

the reasonable waiting period element is 

satisfied. What may be a reasonable 

waiting period after posting information 

on a company Web site for a particular 

company and a particular type of 

information may not be one for other 

companies or other types of 

information. For example, a large 

company that frequently uses its Web 

site as a key resource for providing 

information, has taken steps to make 

investors and the market aware of this, 

and reasonably believes that its Web site 

is well-followed by investors and other 

market participants, may get 

comfortable with a waiting period that 

is shorter than a waiting period for a 

company that is not in the same 

situation. 

If the information is important, 

companies should consider taking 

additional steps to alert investors and 

the market to the fact that important 

information will be posted—for 

example, prior to such posting, filing or 

furnishing such information to us or 

issuing a press release with the 

information. Adequate advance notice 

of the particular posting, including the 

date and time of the anticipated posting 

and the other steps the company intends 

to take to provide the information, will 

help make investors and the market 

aware of the future posting of 

information, and will thereby facilitate 

the broad dissemination of the 

information. 

The question of what constitutes a 

reasonable waiting period has been 

frequently litigated in the context of 

insider trading.54 While we are not 

addressing when information is 

‘‘public’’ for purposes of insider trading, 

the cases in this area may provide 

guidance to companies for purposes of 

Regulation FD. As we have noted, what 

constitutes a reasonable waiting period 

is a facts and circumstances 

determination. 

Hence, under the foregoing analysis, if 

information on a company’s Web site is 

public, then subsequent selective 

disclosure of that information—such as 

to an analyst in a private conversation—

would not trigger Regulation FD because 

such information, even if material, 

would not be non-public.55 It is 

important to note that, although posting 

information on a company’s Web site in 

a location and format readily accessible 

to the general public would not be 

‘‘selective’’ disclosure, the information 

may not be ‘‘public’’ for purposes of 

determining whether a subsequent 

selective disclosure implicates 

Regulation FD. If, however, under the 

foregoing analysis, information on a 

company’s Web site is not public, then 

subsequent selective disclosure of that 

information, if material, may trigger the 

application of Regulation FD. 

2. Satisfaction of Public Disclosure 

Requirement of Regulation FD 

Rule 101(e) of Regulation FD requires 

that once a selective disclosure has been 

made, the company must file or furnish 

a Form 8–K or use an alternative 

method or methods of disclosure that is 

reasonably designed to provide broad, 

non-exclusionary distribution of the 

information to the public—

simultaneously, in the case of an 

intentional disclosure, or promptly, in 

the case of an unintentional 

disclosure.56 In adopting Regulation FD 

in 2000, we discussed the role of 

company Web sites in satisfying the 

alternative public disclosure provisions 

of the regulation. At the time, we 

stopped short of concluding that 

disclosure on a company Web site 

would, itself, be an acceptable method 

of ‘‘public disclosure’’ of material nonpublic information for purposes of 

compliance with Regulation FD, but we 

recognized that Web site disclosure and 

webcasting could constitute integral 

parts of a model method of disclosure in 

satisfaction of the regulation. With 

regard to disclosure solely via a 

company Web site, we stated that ‘‘[a]s 

technology evolves and as more 

investors have access to and use the 

Internet * * * we believe that some 

companies, whose Web sites are widely 

followed by the investment community, 

could use such a method.’’ 57

As we stated above in the context of 

whether information posted on a 

company Web site would be ‘‘public’’ so 

that a subsequent selective disclosure 

would not implicate Regulation FD, we 

now believe that technology has evolved 

and the use of the Internet has grown 

such that, for some companies in certain 

circumstances, posting of the 

information on the company’s Web site, 

in and of itself, may be a sufficient 

method of public disclosure under Rule 

101(e) of Regulation FD. Companies will 

need to consider whether and when 

postings on their Web sites are 

‘‘reasonably designed to provide broad, 

non-exclusionary distribution of the 

information to the public.’’ 58 To do so, 

companies can look to the factors we 

have outlined above regarding the first 

two elements of the analysis—whether 

the company Web site is a recognized 

channel of distribution and whether the 

information is ‘‘posted and accessible’’

and, therefore, ‘‘disseminated.’’ 59 As 

part of that evaluation, companies also 

will need to consider their Web sites’

capability to meet the simultaneous or 

prompt timing requirements for public 

disclosure once a selective disclosure 

has been made.60 Because the company 

has the responsibility for evaluating 

whether a method or combination of 

methods of disclosure would satisfy the 

alternative public disclosure provision 

of Regulation FD, it remains the 

company’s responsibility to evaluate 

whether a posting on its Web site would 

satisfy this requirement.61


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methods’ of disclosure, in recognition of the fact 

that it may not always be possible or desirable for 

an issuer to rely on a single method of disclosure 

as reasonably designed to effect broad public 

disclosure.’’ ‘‘[A]n issuer’s methods of making 

disclosure in a particular case should be judged 

with respect to what is ‘reasonably designed’ to 

effect broad, non-exclusionary distribution in light 

of all the relevant facts and circumstances.’’

Regulation FD Adopting Release, supra note 41. 

62See, e.g., 1995 Electronics Release, supra note 

25, at n. 11 (‘‘The liability provisions of the federal 

securities laws apply equally to electronic and 

paper-based media. For instance, the antifraud 

provisions of the federal securities laws as set forth 

in Section 10(b) of the Exchange Act [15 U.S.C. 

78j(b)] and Rule 10b–5 [17 CFR 240.10b–5] 

thereunder would apply to any information 

delivered electronically, as it does to information 

delivered in paper.’’); 1996 Electronics Release, 

supra note 25, at Section I, n. 4 (‘‘The substantive 

requirements and liability provisions of the federal 

securities laws apply equally to electronic and 

paper-based media. For example, the antifraud 

provisions of the Exchange Act and Rule 10b–5 

thereunder * * * apply to information delivered 

and communications transmitted electronically, to 

the same extent as they apply to information 

delivered in paper form.’’); 2000 Electronics 

Release, supra note 4, at Section II.B. (‘‘It is 

important for companies * * * to keep in mind that 

the federal securities laws apply in the same 

manner to the content of their Web sites as to any 

other statements made by or attributable to them.’’). 

63See 2000 Electronics Release, supra note 4, at 

Section II.B. 

64See 2000 Electronics Release, supra note 4, at 

Section II.B.1. 

65Rule 10b–5 [17 CFR 240.10b–5] makes it 

unlawful to ‘‘make any untrue statement of a 

material fact or to omit to state a material fact 

necessary in order to make the statements made, in 

the light of the circumstances under which they 

were made, not misleading’’ (emphasis added). See 

2000 Electronics Release, supra note 4. In addition, 

Securities Act Section 17(a) [15 U.S.C. 77q(a)] 

applies to the offer and sale of securities. See also 

Prentice, supra note 18, at 542 (noting that the 

Commission’s antifraud legal regime under Section 

10(b) and Rule 10b–5 applies to all manner of 

electronic disclosure). 

66Section 10(b) and Rule 10b–5 have a scienter 

requirement, unlike some other provisions in the 

federal securities laws. See, e.g., Securities Act 

Section 17(a)(2)[15 U.S.C. 77l(a)(2)]. For cases 

discussing the scienter requirement of Section 10(b) 

and Rule 10b–5, see, e.g., SEC v. McNulty, 137 F.3d 

732 (2d Cir. 1998), cert. denied, 525 U.S. 931 (1998); 

Lanza v. Drexel & Co., 419 F.2d 1277 (2d Cir. 1973); 

Hollinger v. Titan Capital, Inc., 914 F.2d 1564, 1569 

(9th Cir. 1990); Aaron v. SEC, 446 U.S. 680 (1980). 

67TSC Industries, Inc. v. Northway, Inc., 426 U.S. 

438, 448–449 (1976). See also Basic v. Levinson, 

485 U.S. 224, 231 (1988). In Basic v. Levinson, the 

U.S. Supreme Court ‘‘expressly adopt[ed] the TSC 

Industries standard of materiality for the § 10(b) and 

Rule 10b–5 context.’’ Id. at 232. 

68 In this regard, we believe the ‘‘buried facts’’

doctrine applies to electronic disclosures. Under 

this doctrine, a court would consider disclosure to 

be false and misleading if its overall significance is 

obscured because material information is ‘‘buried,’’

for example, in a footnote or appendix. We have 

addressed the application of the buried facts 

doctrine in the context of an introduction or 

overview section of Item 303 of Regulation S–K—

Management’s Discussion and Analysis of Financial 

Condition and Results of Operations and summary 

disclosure in plain English. In addition, in the 

context of the use of summary information in the 

electronics disclosure context we discuss in Part 

II.B.3 below, we note that the failure to include 

every material disclosure that is being summarized 

should not automatically trigger the ‘‘buried facts’’

doctrine. See Commission Guidance Regarding 

Management’s Discussion and Analysis, Release 

No. 33–8350 (Dec. 19, 2003) [68 FR 75056] (‘‘MD&A 

Release’’); Plain English Disclosure, Release No. 33–

7497 (Jan. 28, 1998) [63 FR 6370]. 

69See, e.g., Exchange Act Section 13(a)[15 U.S.C. 

78m](requiring companies with a class of securities 

registered under the Exchange Act to file reports 

prescribed by the Commission) and Exchange Act 

Rule 13a-1 [17 CFR 240.13a-1](requiring such 

companies to file an annual report with the 

Commission). 

70See 2000 Electronics Release, supra note 4, at 

Section II.D. 

71See id. at Section II.D.5. As discussed in the 

2000 Electronics Release, ‘‘a press release 

disseminated over a wire service or through other 

customary means is considered to have been 

‘issued’ once, and thereafter is not recirculated to 

the marketplace. The same press release posted on 

a company’s Web site potentially has a longer life 

because it provides a record that can be accessed 

by investors at any time and upon which investors 

potentially could rely when making an investment 

decision without independent verification. In effect, 

a statement may be considered to be ‘republished’

each time that it is accessed by an investor or, for 

that matter, each day that it appears on the Web 

site. Commentators have suggested that if a 

statement is deemed to be republished, it may 

potentially give rise to liability under Section 10(b) 

of the Exchange Act and Rule 10b–5.’’ Id. 

72Specifically, if previously posted information is 

considered republished, companies may be 

concerned that even if the information was accurate 

when initially posted or issued, it may no longer 

be current or accurate when it is accessed at a later 

date. 

73See Securities Offering Reform Release, supra 

note 3, at Section III.D.3.b.iii.(E)(2). 

B. Antifraud and Other Exchange Act 

Provisions 

The antifraud provisions of the 

federal securities laws apply to 

company statements made on the 

Internet in the same way they would 

apply to any other statement made by, 

or attributable to, a company.62 This 

includes postings on and hyperlinks 

from company Web sites that satisfy the 

relevant jurisdictional tests.63 As we 

noted in the 2000 Electronics Release, 

companies should be mindful that they 

‘‘are responsible for the accuracy of 

their statements that reasonably can be 

expected to reach investors or the 

securities markets regardless of the 

medium through which the statements 

are made, including the Internet.’’ 64

Accordingly, a company should keep 

in mind the applicability of the 

antifraud provisions of the federal 

securities laws, including Exchange Act 

Section 10(b) and Rule 10b–5, to the 

content of its Web site.65 These 

provisions contain a general prohibition 

on making material misstatements and 

omissions of fact in connection with the 

purchase or sale of securities.66

In the Rule 10b–5 context, to satisfy 

the materiality requirement, ‘‘there must 

be a substantial likelihood that the 

disclosure of the omitted fact would 

have been viewed by the reasonable 

investor as having significantly altered 

the ‘‘total mix’’ of information made 

available.’’ 67 Whether information 

posted on a company’s Web site is 

considered part of the ‘‘total mix’’ for 

purposes of analyzing materiality is a 

facts and circumstances determination. 

As we discuss below, we believe that 

companies can take certain steps that 

affect whether information located on or 

hyperlinked from a company’s Web site 

is part of such ‘‘total mix’’ of 

information.68 In this release, we are 

providing guidance regarding certain 

issues that arise under the antifraud 

provisions relating to disclosures on 

company Web sites. 

In addition, under certain of our rules, 

companies may disclose information 

exclusively on their Web sites rather 

than filing such disclosures or materials 

on EDGAR. While the provisions of 

Exchange Act Section 13(a) and 

Exchange Act Rules 13a–1 and 12b–20 

apply to Exchange Act filings made by 

companies with the Commission, such 

provisions generally do not apply to 

disclosures on company Web sites. 

However, if a company fails to satisfy a 

Web site disclosure option that is an 

alternative to filing or furnishing an 

Exchange Act report, an action could be 

brought under the Exchange Act 

reporting provisions based on the 

company’s failure to file the report.69

1. Effect of Accessing Previously Posted 

Materials or Statements on Company 

Web sites 

In our 2000 Electronics Release, we 

discussed liability concerns arising from 

accessing previously posted materials or 

statements on a company’s Web site.70

Since the publication of our 2000 

Electronics Release, we understand that 

some companies continue to be 

concerned about whether previously 

posted materials or statements on their 

Web site that are accessed at a later time 

will be considered ‘‘republished’’ at that 

later date, with attendant securities law 

liability.71 We understand that 

companies may continue to be 

concerned that they may have a duty to 

update the previously posted materials 

or statements if they are considered to 

be a new statement by being 

‘‘republished’’ each time the materials 

or statements are accessed on the Web 

site.72 In 2005, we addressed the 

treatment of previously posted (which 

we called historical) information on a 

company’s Web site in the context of 

registered offerings under the Securities 

Act.73 We believe it is now appropriate 

to provide clarity with respect to the 

treatment of such previously posted 

materials or statements under the 


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74These considerations mirror those found in 

Rule 433(e)(2) under the Securities Act [17 CFR 

230.433(e)(2)]. 

75A ‘‘hypertext link,’’ or ‘‘hyperlink,’’ is an 

electronic path often displayed in the form of 

highlighted text, graphics or a button that associates 

an object on a web page with another web page 

address. It allows the user to connect to the desired 

web page address immediately by clicking a 

computer-pointing device on the text, graphics or 

button. See 2000 Electronics Release, supra note 4, 

at n. 7 (citing Harvey L. Pitt & Dixie L. Johnson, 

Avoiding Spiders on the Web: Rules of Thumb for 

Companies Using Web sites and E-Mail, in 

Practising Law Institute, Securities Law & the 

Internet, No. 1127 (1999), at 107–118, n. 5). 

76See CIFiR Progress Report, supra note 1, at 

Chapter 4, Section III. 

77See 2000 Electronics Release, supra note 4, at 

Section II.B. Of course, as stated in the 2000 

Electronics Release, ‘‘in the context of a document 

required to be filed or delivered under the federal 

securities laws, we believe that when a company 

embeds a hyperlink to a Web site within the 

document, the company should always be deemed 

to be adopting the hyperlinked information. In 

addition, when a company is in registration, if the 

company establishes a hyperlink (that is not 

embedded within a disclosure document) from its 

Web site to information that meets the definition of 

an ‘‘offer to sell,’’ ‘‘offer for sale’’ or ‘‘offer’’ under 

Section 2(a)(3) of the Securities Act, a strong 

inference arises that the company has adopted that 

information for purposes of Section 10(b) of the 

Exchange Act and Rule 10b–5.’’ But see Exemption 

from Section 101(c)(1) of the Electronic Signatures 

in Global and National Commerce Act for 

Registered Investment Companies, Release No. 33–

7877 (Jul. 27, 2000) [65 FR 47281] at notes 18–24 

and accompanying text (clarifying how this 

guidance applies to mutual funds). 

78See generally 2000 Electronics Release, supra 

note 4 at Sections II.A.4. and II.B.1. As we stated 

in the 2000 Electronics Release, ‘‘[i]n the case of 

hyperlinked information, liability under the 

‘entanglement’ theory would depend upon a 

company’s level of pre-publication involvement in 

the preparation of the information. In contrast, 

liability under the ‘adoption’ theory would depend 

upon whether, after its publication, a company, 

explicitly or implicitly endorses or approves the 

hyperlinked information.’’

79See Securities Offering Reform Release, supra 

note 3, at Section III.D.3.b.iii.(E); 2000 Electronics 

Release, supra note 4, at Section II.B.1.; Securities 

Act Rule 433. 

80Some commenters on the 2000 Electronics 

Release criticized the ‘‘facts-and-circumstances’’

approach we adopted, arguing that it leads to 

uncertainty and could result in companies 

providing less useful information to investors. See, 

e.g., comment letters from The Bond Market 

Association and Fidelity Investments, which are 

publicly available at http://www.sec.gov/rules/ 

interp/s71100.shtml or at our Public Reference 

Room at 100 F Street, NE., Washington DC 20549 

in File No. S7–11–00. 

81See 2000 Electronics Release, supra note 4, at 

Section II.B.1. 

antifraud provisions of the federal 

securities laws. 

We do not believe that companies 

maintaining previously posted materials 

or statements on their Web sites are 

reissuing or republishing such materials 

or information for purposes of the 

antifraud provisions of the federal 

securities laws just because the 

materials or statements remain 

accessible to the public. Of course, the 

antifraud provisions would apply to 

statements contained in posted 

materials when such statements were 

initially made. If a company 

affirmatively restates or reissues a 

statement, the antifraud provisions 

would apply to such statements when 

the company restates or reissues the 

statement. This affirmative restatement 

or reissuance may create a duty to 

update the statement so that it is 

accurate as of the date it is restated or 

reissued. As a general matter, we believe 

that the fact that investors can access 

previously posted materials or 

statements on a company’s Web site 

does not in itself mean that such 

previously posted materials or 

statements have been reissued or 

republished for purposes of the 

antifraud provisions of the federal 

securities laws, that the company has 

made a new statement, or that the 

company has created a duty to update 

the materials or statements. 

In circumstances where it is not 

apparent to the reasonable person that 

the posted materials or statements speak 

as of a certain date or earlier period, 

then to assure that investors understand 

that the posted materials or statements 

speak as of a date or period earlier than 

when the investor may be accessing the 

posted materials or statements, we 

believe that previously posted materials 

or statements that have been put on a 

company’s Web site should be: 

• Separately identified as historical or 

previously posted materials or 

statements, including, for example, by 

dating the posted materials or 

statements; and 

• Located in a separate section of the 

company’s Web site containing 

previously posted materials or 

statements.74

2. Hyperlinks to Third-Party 

Information 

Another area we addressed previously 

that continues to raise questions 

involves the use of hyperlinks to thirdparty information.75 Companies include 

on their Web sites hyperlinks to thirdparty information for a variety of 

reasons, including as part of their 

ongoing communications to their 

customers, investors and the markets. In 

our 2000 Electronics Release, we 

discussed the implications for the use of 

hyperlinks from company Web sites to 

third-party information in the context of 

both the Securities Act and the 

antifraud provisions of the federal 

securities laws. While we believe that 

the treatment of hyperlinks for purposes 

of the Securities Act is clear from our 

prior interpretation, we understand that 

companies continue to be concerned 

about their liability for hyperlinks to 

third-party information included on 

their Web sites as part of their ongoing 

communications to the public, 

including investors and the markets.76

In light of these concerns, we believe it 

is appropriate to provide additional 

guidance to companies as to the 

circumstances under which they may 

have liability for posted information 

outside the context of the offer and sale 

of securities under the Securities Act. 

Under Section 10(b) of the Exchange 

Act and Rule 10b–5, a company can be 

held liable for third-party information to 

which it hyperlinks from its Web site 

and which could be attributable to the 

company. As we explained in the 2000 

Electronics Release, whether third-party 

information is attributable to a company 

depends upon whether the company 

has: (1) involved itself in the 

preparation of the information, or (2) 

explicitly or implicitly endorsed or 

approved the information.77 In the case 

of company liability for statements by 

third parties such as analysts, the courts 

and we have referred to the first line of 

inquiry as the ‘‘entanglement’’ theory 

and the second as the ‘‘adoption’’

theory.78 While we are addressing the 

use of hyperlinks to third-party 

information in the context of the 

antifraud provisions, this guidance does 

not affect our interpretation regarding 

the use of hyperlinks to third-party 

information in the context of offers and 

sales of securities under the Securities 

Act.79

Our focus in the 2000 Electronics 

Release was to help companies 

understand what factors may be relevant 

in determining whether they have 

adopted hyperlinked information.80 We 

explained that the following, nonexhaustive list of factors may influence 

that analysis: 

• Context of the hyperlink—what the 

company says about the hyperlink or 

what is implied by the context in which 

the company places the hyperlink; 

• Risk of confusing the investors—the 

presence or absence of precautions 

against investor confusion about the 

source of the information; and 

• Presentation of the hyperlinked 

information—how the hyperlink is 

presented graphically on the Web site, 

including the layout of the screen 

containing the hyperlink.81

We understand that some companies 

may still wish for further elaboration of 

some of the issues addressed regarding 

the application of the adoption theory. 

Accordingly, we are providing further 

guidance on these issues as they relate 

to the adoption theory. 


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82We note that companies can have different 

audiences for different pages on their Web sites. For 

example, a consumer products company may have 

customer-oriented pages, or supplier-oriented 

pages, on its Web site, as well as investor-oriented 

pages, such as an investor relations page. Because 

of its context, a third-party hyperlink on a 

customer-oriented page—for example, the company 

manufactures laundry detergent and provides a link 

to a third-party clothing care Web site—has 

different implications from a securities law 

perspective than a hyperlink to a research analyst’s 

report on an investor-oriented page. 

83Of course, a further explanation may be 

necessary depending on the manner by which a 

company limits the sources of its recent news 

articles. For example, if a company only includes 

recent news articles published by bullish industry 

journals, the limited nature of the sources should 

be clear and the company should explain why it 

selected the sources identified. 

In addition, any SEC-registered investment 

adviser (or investment adviser that is required to be 

SEC registered) that includes, in its Web site or in 

other electronic communications, a hyperlink to 

postings on third-party Web sites, should carefully 

consider the applicability of the advertising 

provisions of the Investment Advisers Act of 1940 

(‘‘Advisers Act’’). Under the Advisers Act, it is a 

fraudulent act for an investment adviser to, among 

other things, refer to testimonials in its 

advertisements. See Section 206(4) of the Advisers 

Act [15 U.S.C. 806–6(4)]; Rule 206(4)–1(a)(1) [17 

CFR 275.206(4)–1(a)(1)]. 

84We do not believe that the failure to use ‘‘exit 

notices’’ or ‘‘intermediate screens’’ should 

automatically result in a determination that a 

company has adopted third-party information. 

85See 2000 Electronics Release, supra note 4, at 

Section II.B.1.a. and n. 61. 

86See id. 

87Our discussion is intended to provide guidance 

generally regarding a company’s use of summarized 

information. This guidance does not supersede 

more specific requirements covering the use of 

summaries or their content that are or may be 

contained in our rules. See e.g., Mutual Fund 

Summary Prospectus Proposing Release, supra note 

27. 

In evaluating the potential antifraud 

liability of a company under the 

adoption theory with respect to thirdparty information to which the company 

provides a hyperlink in the context of 

providing information about the 

company and its business, we believe 

the focus should be on whether a 

company has explicitly or implicitly 

approved or endorsed the statement of 

a third-party such that the company 

should be liable for that statement. 

Because an explicit approval or 

endorsement is, by definition, plainly 

evident, the analytical scrutiny is on the 

circumstances or conditions under 

which a company can fairly be said to 

have implicitly approved or endorsed a 

third-party statement by hyperlinking to 

that information. The key question in 

the hyperlinking context, therefore, is: 

Does the context of the hyperlink and 

the hyperlinked information together 

create a reasonable inference that the 

company has approved or endorsed the 

hyperlinked information? 

We believe that in evaluating whether 

a company has implicitly approved or 

endorsed information on a third-party 

Web site to which it has established a 

hyperlink, one important factor is what 

the company says about the hyperlink, 

including what is implied by the 

context in which the company places 

the hyperlink.82 In considering the 

context of the hyperlink, we begin with 

the assumption that providing a 

hyperlink to a third-party Web site 

indicates that the company believes the 

information on the third-party Web site 

may be of interest to the users of its Web 

site. Otherwise, it is unclear to us why 

the company would provide the link. To 

avoid potential confusion or 

misunderstanding about what the 

company’s view or opinion is with 

respect to the information to which the 

company has provided a hyperlink, the 

company should consider explaining 

the context for the hyperlink—and 

thereby make explicit, rather than 

implicit, why the hyperlink is being 

provided. For example, a company 

might explicitly endorse the 

hyperlinked information or suggest that 

the hyperlinked information supports a 

particular assertion on the company’s 

Web site. Alternatively, a company 

might simply note that the third-party 

Web site contains information that may 

be of interest or of use to the reader. 

The nature and content of the 

hyperlinked information also should be 

considered in deciding how to explain 

the context for the hyperlink. The 

degree to which a company is making a 

selective choice to hyperlink to a 

specific piece of third-party information 

likely will indicate the extent to which 

the company has a positive view or 

opinion about that information. For 

example, a company including a 

hyperlink to a news article that is highly 

laudatory of management should 

consider explanatory language about the 

source and why the company is 

providing the hyperlink in order to 

avoid the inference that the company is 

commenting on or even approving its 

accuracy, or was involved in its 

preparation. Conversely, the more 

general or broad-based the hyperlinked 

information is, the company may 

consider providing a more general 

explanation. For example, if a company 

has a media page and simply provides 

hyperlinks to recent news articles, both 

positive and negative, about the 

company, the risk that a company may 

have liability regarding a particular 

article or that it endorses or approves of 

each and every news article may be 

reduced. In this case, a title such as 

‘‘Recent News Articles’’ may be all the 

explanation that a company may 

determine is needed to avoid being 

considered to have adopted the 

materials.83

In addition to an explanation of why 

a company is including particular 

hyperlinks on its Web site, a company 

also may determine to use other 

methods, including ‘‘exit notices’’ or 

‘‘intermediate screens,’’ to denote that 

the hyperlink is to third-party 

information. While the use of ‘‘exit 

notices’’ or ‘‘intermediate screens’’

helps to avoid confusion as to the 

source of the third-party information, no 

one type of ‘‘exit notice’’ or 

‘‘intermediate screen’’ will absolve 

companies from antifraud liability for 

third-party hyperlinked information.84

For example, if there is only one analyst 

report out of many that provides a 

positive outlook on the company’s 

prospects, and the company provides a 

hyperlink to the one positive analyst 

report and to no other, and does not 

mention the fact that all the other 

analyst reports are negative on the 

company’s prospects, then even the use 

of an ‘‘exit notice’’ or ‘‘intermediate 

screen’’ or explanatory language may 

not be sufficient to avoid the inference 

that the company has approved or 

endorsed the one positive analyst’s 

report. 

With regard to the use of disclaimers 

generally, as we noted in the 2000 

Electronics Release, we do not view a 

disclaimer alone as sufficient to insulate 

a company from responsibility for 

information that it makes available to 

investors whether through a hyperlink 

or otherwise.85 Accordingly, a company 

would not be shielded from antifraud 

liability for hyperlinking to information 

it knows, or is reckless in not knowing, 

is materially false or misleading. This 

would be the case even where the 

company uses a disclaimer and/or other 

features designed to indicate that it has 

not adopted the false or misleading 

information to which it has provided 

the hyperlink. Our concern is that an 

alternative approach could result in 

unscrupulous companies using 

disclaimers as shields from liability for 

making false or misleading statements. 

We again remind companies that 

specific disclaimers of antifraud liability 

are contrary to the policies 

underpinning the federal securities 

laws.86

3. Summary Information 

A third area in which we are 

providing guidance is with respect to 

companies’ use of summaries or 

overviews to present information, 

particularly financial information, on 

their Web sites.87 We understand that 


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88See CIFiR Progress Report, supra note 1, at 

Chapter 4, Section III. 

89We have encouraged or required summaries or 

overviews in the following contexts: 

• We have suggested that Management’s 

Discussion and Analysis disclosures could benefit 

from an introductory section or overview providing 

context for the more detailed information following 

it and thereby facilitating a reader’s understanding 

of the disclosures. See MD&A Release, supra note 

68. In that release, we also encouraged companies 

to consider using other means of providing clearer 

disclosure, such as tabular presentations and the 

use of section headings to assist readers in 

following the flow of the MD&A. We have also 

encouraged companies to use a ‘‘layered’’ approach 

in their MD&A disclosures. 

• We adopted the Compensation Discussion and 

Analysis section in Regulation S–K Item 402 to 

provide a narrative, analytical overview to 

executive compensation disclosure. See Executive 

Compensation and Related Person Disclosure, 

Release No. 33–8732A, at Section I (Aug. 29, 2006) 

[71 FR 53158]. 

• We require prospectuses to include a plain 

English ‘‘summary of the information in the 

prospectus where the length or complexity of the 

prospectus makes a summary useful.’’ See Item 

503(a) of Regulation S–K [17 CFR 229.503(a)]. 

• We recently proposed rules that would require 

key information to appear in a summary section at 

the front of mutual fund prospectuses. See Mutual 

Fund Summary Prospectus Proposing Release, 

supra note 27. 

90We believe this approach is analogous to the 

‘‘envelope’’ theory, which describes how and when 

information from different sources may be deemed 

to have been delivered together. In the 1995 

Electronics Release, supra note 25, we explained 

that documents appearing in close proximity to 

each other on the same Web page and documents 

hyperlinked together will be considered delivered 

together, analogizing it to delivery of the 

information in paper form in the same envelope. Id. 

at Questions 15 and 16. Similarly, providing 

hyperlinks to the complete information from which 

the summary is derived or upon which an overview 

is based can lead to this information being 

considered to be provided together or, at a 

minimum, directing the reader to the location of the 

more detailed information. 

91We have taken a similar approach in our 

proposed rules regarding prospectus delivery for 

open-end mutual funds. See the Mutual Fund 

Summary Prospectus Proposing Release, supra note 

27. 

92Whether an individual is acting on behalf of a 

company will, as always, be a facts and 

circumstances determination. We note that 

companies generally have policies on who may 

speak on behalf of the company and on maintaining 

the confidentiality of company information for 

purposes of Regulation FD compliance and insider 

trading and tipping liability. 

93A ‘‘blog’’ has been defined as ‘‘[a] Web site (or 

section of a Web site) where users can post a 

some companies may be concerned as to 

the treatment of summary or overview 

information contained on their Web 

sites under the antifraud provisions of 

the federal securities laws.88 By 

definition, these summaries or 

overviews do not, without more, 

include the more detailed information 

from which they are derived or on 

which they are based. 

We have encouraged and, in some 

cases, required the inclusion of 

summaries or overviews in prospectuses 

and in Exchange Act reports to highlight 

important information for investors.89

We believe that summary information 

can be particularly appropriate and 

helpful to investors, such as when it 

relates to lengthy or complex 

information. For similar reasons, we 

believe the use of summaries or 

overviews on Web sites can be helpful 

to investors. We note, however, that 

summaries or overviews standing alone 

and which a reasonable person would 

not perceive as summary, and which do 

not provide additional information to 

alert a reader as to where more detailed 

information is located, could result in 

investors not necessarily understanding 

that the statements should be read in the 

context of the information being 

summarized. Consequently, when using 

summaries or overviews on Web sites, 

companies should consider ways to 

alert readers to the location of the 

detailed disclosure from which such 

summary information is derived or 

upon which such overview is based, as 

well as to other information about a 

company on a company’s Web site. 

In presenting information in a 

summary format or as part of an 

overview, companies should consider 

the context in which such information 

is presented. Just as with hyperlinks to 

third-party information, companies 

should consider using appropriate 

explanatory language to identify 

summary or overview information. As 

an example, a summary page on a 

company Web site that is identified and 

presented in a manner similar to an 

introductory page in a ‘‘glossy’’ annual 

report—with graphs and charts 

illustrating key performance metrics 

derived from financial statements 

contained in later pages of the same 

document—would likely be viewed as a 

summary. Conversely, where summary 

information is not identified as such, 

the reader may be confused and fail to 

appreciate that the information is not 

complete. 

We encourage companies that use 

summaries or overviews of more 

complete information located elsewhere 

on their Web sites to consider 

employing disclosure and other 

techniques designed to highlight the 

nature of summaries or overviews in 

order to help minimize the chance that 

investors would be confused as to the 

level of incompleteness inherent in 

these disclosures. To this end, 

companies may wish to consider the 

following techniques that may highlight 

the nature of summary or overview 

information: 

• Use of appropriate titles. An 

appropriate title or heading that conveys 

the summary, overview or abbreviated 

nature of the information could help to 

avoid unnecessary confusion; 

• Use of additional explanatory 

language. Companies may consider 

using additional explanatory language 

to identify the text as a summary or 

overview and the location of the more 

detailed information; 

• Use and placement of hyperlinks. 

Placing a summary or overview section 

in close proximity to hyperlinks to the 

more detailed information from which 

the summary or overview is derived or 

upon which the overview is based could 

help an investor understand the 

appropriate scope of the summary 

information or overview while making 

clearer the context in which the 

summary or overview should be 

viewed; 90 and 

• Use of ‘‘layered’’ or ‘‘tiered’’ format. 

In addition to providing hyperlinks to 

more complete information, companies 

can organize their Web site 

presentations such that they present the 

most important summary or overview 

information about a company on the 

opening page, with embedded links that 

enable the reader to drill down to more 

detail by clicking on the links.91 In this 

way, viewers can follow a logical path 

into, and thereby obtain increasingly 

greater details about, the financial 

statements, a company’s strategy and 

products, its management and corporate 

governance, and the many other areas in 

which investors and others may have an 

interest. 

4. Interactive Web Site Features 

We believe that it is important to 

provide guidance that will promote 

robust use by companies of their Web 

sites. One example of such robust use is 

making the company Web site 

interactive. We note that companies are 

increasingly using their Web sites to 

take advantage of the latest interactive 

technologies for communicating over 

the Internet with various stakeholders, 

from customers to vendors and 

investors. These communications can 

take various forms, ranging from ‘‘blogs’’

to ‘‘electronic shareholder forums.’’

Since all communications made by or 

on behalf of a company are subject to 

the antifraud provisions of the federal 

securities laws, companies should 

consider taking steps to put into place 

controls and procedures to monitor 

statements made by or on behalf of the 

company on these types of electronic 

forums.92

Company-sponsored ‘‘blogs,’’ which 

can include CEO blogs and investor 

relations blogs, among others, are recent 

additions to company Web sites.93


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Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Rules and Regulations 45873 

chronological, up-to-date e-journal entry of their 

thoughts. [I]t is an open forum communication tool 

that, depending on the Web site, is either very 

individualistic or performs a crucial function for an 

organization or company. There are three basic 

varieties of blogs: those that post links to other 

sources, those that compile news and articles, and 

those that provide a forum for opinions and 

commentary.’’ See http://www.netlingo.com/ 

lookup.cfm?term=blog. 

94For example, a manufacturing company could 

sponsor a blog for its staff tasked with designing, 

developing and troubleshooting products. Vendors 

and end-users likely would find such a forum 

helpful. Shareholders also may welcome the 

opportunity to view and/or join a discussion of the 

uses of a company’s existing products to better 

understand one of the means a company derives 

revenues, especially with the ‘‘front-line’’

employees responsible for those products. 

95See Electronic Shareholder Forums, Release 

No. 34–57172 (Jan. 18, 2008) [73 FR 4450] 

(‘‘Shareholder Forum Release’’). In this release, we 

adopted amendments to the proxy rules to clarify 

that participation in an electronic shareholder 

forum that could potentially constitute a 

solicitation subject to the proxy rules is exempt 

from most of the proxy rules if all of the conditions 

to the exemption are satisfied. In addition, the 

amendments state that a shareholder, company, or 

third party acting on behalf of a shareholder or 

company that establishes, maintains or operates an 

electronic shareholder forum will not be liable 

under the federal securities laws for any statement 

or information provided by another person 

participating in the forum. The amendments did not 

provide an exemption from Rule 14a–9 [17 CFR 

240.14a–9], which prohibits fraud in connection 

with the solicitation of proxies. The general 

disclosure obligations under the federal securities 

laws continue to apply to these forums as well. See 

id. at n. 88 (referring participants in shareholder 

forums to the requirements of Regulation FD); and 

id. at n. 24 (reminding participants that the 

antifraud provisions of Rule 14a–9 may require a 

participant in a forum that otherwise allows 

anonymity to identify itself if failure to do so in the 

circumstance would result in omission of a 

‘‘material fact necessary in order to make the 

statements therein not false or misleading.’’). 

96See id. at Section I. 

97See Securities Act Section 14 [15 U.S.C. 77n]; 

Exchange Act Section 29(a) [15 U.S.C. 78cc]; 

Section 47(a) of the Investment Company Act of 

1940 (‘‘Investment Company Act’’) [15 U.S.C. 80a–

46(a)] and Section 215(a) of the Advisers Act [15 

U.S.C. 806–15]. 

98See, e.g., Rule 14a–17(b) [17 CFR 240.14a–

17(b)]. Of course, the company may be held 

responsible under the ‘‘adoption theory’’ or 

‘‘entanglement theory’’ if the company adopts, 

endorses, or approves the statement. See generally 

Section II.B.2., supra. 99Exchange Act Rules 13a–15(e) [17 CFR 

240.13a–15(e)] and 15d–15(e) [17 CFR 240.15d–

15(e)] and Investment Company Act Rule 30a–3(c) 

[17 CFR 270.30a–3(c)] define ‘‘disclosure controls 

and procedures’’ as those controls and procedures 

designed to ensure that information required to be 

disclosed by the company in the reports that it files 

or submits under the Exchange Act is: 

(1) ‘‘recorded, processed, summarized and 

reported, within the time periods specified in the 

Commission’s rules and forms,’’ and 

(2) ‘‘accumulated and communicated to the 

company’s management * * * as appropriate to 

allow timely decisions regarding required 

disclosure.’’

100See Exchange Act Rule 13a–14(a) [17 CFR 

240.13a–14(a)]; Exchange Act Rule 15d–14(a)[17 

CFR 240.15d–14(a)]; Item 601(b)(31)(i) of Regulation 

S–K [17 CFR 229.601(b)(31)(i)]; Investment 

Company Act Rule 30a–2(a) [17 CFR 270.30a–2(a)]. 

101See Section I.B, supra. 

Companies can use these for a variety of 

purposes, including allowing for the 

exchange of opinions and ideas between 

a company’s management or certain 

other employees and its various 

stakeholders.94 The open format of blogs 

makes them an attractive forum for 

ongoing communications between and 

among companies and their clients, 

customers, suppliers, shareholders and 

other stakeholders. 

Similar to blogs, electronic 

shareholder forums can serve as a 

means for investors to communicate 

with companies and each other and to 

provide investor feedback on various 

issues in a real-time basis, and we have 

adopted rules to encourage their use.95

These forums are designed to promote 

interactive communication—between 

and among the company and its various 

stakeholders and with the public at 

large. 

We acknowledge the utility these 

interactive Web site features afford 

companies and shareholders alike, and 

want to promote their growth as 

important means for companies to 

maintain a dialogue with their various 

constituencies. As we noted in the 

Shareholder Forum Release, companies 

may find these forums ‘‘of use in better 

gauging shareholder interest with 

respect to a variety of topics,’’ and the 

forums ‘‘could be used to provide a 

means for management to communicate 

with shareholders by posting press 

releases, notifying shareholders of 

record dates, and expressing the views 

of the company’s management and 

board of directors.’’ 96 Accordingly, we 

are providing the following guidance for 

companies hosting or participating in 

blogs or electronic shareholder forums: 

• The antifraud provisions of the 

federal securities laws apply to blogs 

and to electronic shareholder forums. 

As stated above, companies are 

responsible for statements made by the 

companies, or on their behalf, on their 

Web sites or on third party Web sites, 

and the antifraud provisions of the 

federal securities laws reach those 

statements. While blogs or forums can 

be informal and conversational in 

nature, statements made there by the 

company (or by a person acting on 

behalf of the company) will not be 

treated differently from other company 

statements when it comes to the 

antifraud provisions of the federal 

securities laws. Employees acting as 

representatives of the company should 

be aware of their responsibilities in 

these forums, which they cannot avoid 

by purporting to speak in their 

‘‘individual’’ capacities. 

• Companies cannot require investors 

to waive protections under the federal 

securities laws as a condition to 

entering or participating in a blog or 

forum. Any term or condition of a blog 

or shareholder forum requiring users to 

agree not to make investment decisions 

based on the blog’s or forum’s content 

or disclaiming liability for damages of 

any kind arising from the use or 

inability to use the blog or forum is 

inconsistent with the federal securities 

laws and, we believe, violates the antiwaiver provisions of the federal 

securities laws.97 A company is not 

responsible for the statements that third 

parties post on a Web site the company 

sponsors, nor is a company obligated to 

respond to or correct misstatements 

made by third parties. The company 

remains responsible for its own 

statements made (including statements 

made on its behalf) in a blog or a 

forum.98

C. Disclosure Controls and Procedures 

Postings on a company’s Web site also 

may implicate Exchange Act rules 

governing certification requirements 

relating to disclosure controls and 

procedures.99 Under these rules, a 

company’s principal executive officer 

and principal financial officer must 

certify that they are responsible for 

establishing and maintaining disclosure 

controls and procedures, that such 

controls and procedures have been 

designed to ensure that material 

information relating to the company is 

made known to them, that they have 

evaluated the effectiveness of the 

disclosure controls and procedures as of 

the end of a reporting period, and that 

they have disclosed in the company’s 

periodic report for that reporting period 

their conclusions about the effectiveness 

of those controls and procedures.100

As discussed above in Section I.B, we 

have adopted rules permitting 

companies to satisfy certain Exchange 

Act disclosure obligations by posting 

that information on their Web sites as an 

alternative to providing that information 

in an Exchange Act report.101 If a 

company elects to satisfy such 

disclosure obligations by posting the 

information on its Web site, disclosure 

controls and procedures would apply to 

such information because it is 

information required to be disclosed by 

the company in Exchange Act reports. 

Failure to make those disclosures on the 

company’s Web site would result in an 

Exchange Act report being incomplete. 

For example, if the company failed to 

disclose waivers of its code of ethics on 

its Web site, it would need to file an 

Item 5.05 Form 8–K; if the company 


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45874 Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Rules and Regulations 

102See Instruction to Item 407(b)(2) of Regulation 

S–K [17 CFR 229.407(b)(2)]. 

103See 1996 Electronics Release, supra note 25 at 

Section II.A.2. We use the term ‘‘printer-friendly’’

to describe a version of a web page that is formatted 

for printing. For example, if a web page includes 

advertising and navigation, those items may be 

removed to format the relevant content for printing 

on standard size paper. 

104For example, Exchange Act Rule 14a–16(c) [17 

CFR 240.14a–16(c)] requires proxy materials to be 

presented in a format convenient for both reading 

online and printing in paper when delivered 

electronically. See the text accompanying note [97] 

supra. See Shareholder Choice Release, supra note 

21, at n. 35: ‘‘We believe that requiring readable and 

printable formats is important so that shareholders 

have meaningful access to the proxy materials.’’

Similarly, proposed Rule 498 under the Securities 

Act would permit the obligation to deliver a 

statutory prospectus relating to a mutual fund to be 

satisfied by sending or giving a summary 

prospectus and providing the statutory prospectus 

online. If provided online, proposed Securities Act 

Rule 498(f)(2)(i) would require that the statutory 

prospectus be presented in a format that is 

‘‘convenient for both reading online and printing on 

paper.’’ See Mutual Fund Summary Prospectus 

Proposing Release, supra note 27, at Section II.B.3. 

and n. 113. 

105See Exchange Act Rule 14a–16(c); Internet 

Proxy Release, supra note 10, at n. 82. 

106See 1996 Electronics Release, supra note 25, 

at Section II.A.2. As we noted in the 2000 

Electronics Release, if special software is required 

in order to view information aimed at investors that 

a company puts on its Web site, we believe the 

company should make a free, downloadable version 

of the software available on the Web site or the site 

should contain information on the location where 

the required software may be downloaded free of 

charge so that all investors can effectively access 

the information provided. In the case of interactive 

data, we have taken a different approach. We have 

proposed that companies that maintain Web sites 

post on their Web sites the same interactive data 

they file or furnish with certain Exchange Act 

reports and Securities Act registration statements. 

We have not proposed, however, that registrants 

also provide interactive data viewers (or 

information on how to obtain viewers) on their Web 

sites. Instead, we have determined to allow third 

parties to develop viewers, anticipating that these 

viewers will, over time, become more readily 

accessible at a little or no cost to investors. The 

Commission makes several interactive data viewers 

available through its Web site at http:// 

www.sec.gov/spotlight/xbrl/xbrlwebapp.shtml. See 

Interactive Data Proposing Releases, supra note 14, 

at Section II.A, and supra note 15. 

failed to disclose its board policy on 

director attendance at the annual 

meeting of security holders on its Web 

site, it would need to do so in its proxy 

statement.102 Hence, companies must 

make sure that their disclosure controls 

and procedures are designed to address 

the disclosure of such information on 

their Web sites. 

On the other hand, disclosure controls 

and procedures do not apply to other 

disclosures of information on a 

company’s Web site. This means that 

the principal executive officer and 

principal financial officer will not be 

disclosing their conclusions regarding 

the effectiveness of any controls that a 

company may have in place regarding 

its Web site disclosure of information, 

other than those controls with respect to 

information that is posted as an 

alternative to being provided in an 

Exchange Act report. That said, other 

disclosures on a company’s Web site are 

subject to antifraud liability, and 

companies also need to consider 

whether such disclosures are in 

compliance with Regulation FD, the 

Securities Act, and the federal proxy 

rules, among others. 

D. Format of Information and 

Readability 

The nature of online information is 

increasingly interactive, not static. The 

inability to print a particular browser 

screen or presentation, particularly one 

designed for interactive viewing and not 

for reading outside the electronic 

context, is not inherently detrimental to 

its readability. We do not think it is 

necessary that information appearing on 

company Web sites satisfy a printerfriendly standard 103 unless our rules 

explicitly require it.104 For example, our 

notice and access model requires that 

electronically posted proxy materials be 

presented in a format ‘‘convenient for 

both reading online and printing on 

paper.’’ 105 Hence, all other information 

on a company’s Web site need not be 

made available in a format comparable 

to paper-based information.106

III. Request for Comment 

We invite interested parties to submit 

written comment on any other 

approaches or issues involved in 

facilitating the use of electronic media, 

including as a result of technological 

developments, to further the disclosure 

purposes of the federal securities laws. 

List of Subjects in 17 CFR Parts 241 and 

271 

Securities. 

Amendment of the Code of Federal 

Regulations 

■ For the reasons set out in the 

preamble, Title 17 Chapter II of the 

Code of Federal Regulations is amended 

as set forth below: 

PART 241—INTERPRETIVE RELEASES 

RELATING TO THE SECURITIES 

EXCHANGE ACT OF 1934 AND 

GENERAL RULES AND REGULATIONS 

THEREUNDER 

■ Part 241 is amended by adding 

Release No. 34–58288 and the release 

date of August 1, 2008, to the list of 

interpretive releases. 

PART 271—INTERPRETIVE RELEASES 

RELATING TO THE INVESTMENT 

COMPANY ACT OF 1940 AND 

GENERAL RULES AND REGULATIONS 

THEREUNDER 

■ Part 271 is amended by adding 

Release No. IC–28351 and the release 

date of August 1, 2008, to the list of 

interpretive releases. 

By the Commission. 

Dated: August 1, 2008. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–18148 Filed 8–6–08; 8:45 am] 

BILLING CODE 8010–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 558 

[Docket No. FDA–2008–N–0039] 

New Animal Drugs For Use in Animal 

Feeds; Oxytetracycline 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Final rule. 

SUMMARY: The Food and Drug 

Administration (FDA) is amending the 

animal drug regulations to reflect 

approval of a supplemental new animal 

drug application (NADA) filed by 

Phibro Animal Health. The 

supplemental NADA provides for use of 

oxytetracycline dihydrate in Type C 

medicated feeds for the control of 

mortality in freshwater-reared 

salmonids due to coldwater disease and 

for the control of mortality in 

freshwater-reared Oncorhynchus mykiss 

due to columnaris disease. 

DATES: This rule is effective August 7, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Donald A. Prater, Center for Veterinary 

Medicine (HFV–130), Food and Drug 

Administration, 7500 Standish Pl., 

Rockville, MD 20855, 240–276–8343, email: donald.prater@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: Phibro 

Animal Health, 65 Challenger Rd., 3d 

floor, Ridgefield Park, NJ 07660, filed a 

supplement to NADA 38–439 for 

TERRAMYCIN 200 for Fish 

(oxytetracycline dihydrate) Type A 

medicated article used for control of 

certain bacterial diseases in several 

species of fish and for skeletal marking 

of Pacific salmon. The supplement 

provides for use of oxytetracycline 

dihydrate in Type C medicated feeds for 


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