50988 Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Proposed Rules 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Parts 229, 230, 232, 239, 240, 

249, 270, 274 and 275 

[Release No. 33–10425; 34–81851; IA–4791; 

IC–32858; File No. S7–08–17] 

RIN 3235–AM02 

FAST Act Modernization and 

Simplification of Regulation S–K 

AGENCY: Securities and Exchange 

Commission. 

ACTION: Proposed rule. 

SUMMARY: We are proposing 

amendments based on the 

recommendations made in the staff’s 

Report on Modernization and 

Simplification of Regulation S–K, as 

required by Section 72003 of the Fixing 

America’s Surface Transportation Act. 

The proposed amendments are intended 

to modernize and simplify certain 

disclosure requirements in Regulation 

S–K, and related rules and forms, in a 

manner that reduces the costs and 

burdens on registrants while continuing 

to provide all material information to 

investors. The amendments are also 

intended to improve the readability and 

navigability of disclosure documents 

and discourage repetition and 

disclosure of immaterial information. To 

provide for a consistent set of rules to 

govern incorporation by reference and 

hyperlinking, we are also proposing 

parallel amendments to several rules 

and forms applicable to investment 

companies and investment advisers, 

including proposed amendments that 

would require certain investment 

company filings to be submitted in 

HyperText Markup Language (‘‘HTML’’) 

format. 

DATES: Comments should be received by 

January 2, 2018. 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

Electronic Comments 

• Use the Commission’s Internet 

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

rules/proposed.shtml); 

• Send an email to rule-comments@

sec.gov. Please include File Number S7– 

08–17 on the subject line; or 

• Use the Federal Rulemaking Portal 

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

instructions for submitting comments. 

Paper Comments 

• Send paper comments in triplicate 

to Brent J. Fields, Secretary, Securities 

and Exchange Commission, 100 F Street 

NE., Washington, DC 20549–1090. 

All submissions should refer to File 

Number S7–08–17. This file number 

should be included in the subject line 

if email 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/proposed.shtml). 

Comments also are available for Web 

site viewing and printing in the 

Commission’s Public Reference Room, 

100 F Street NE., Room 1580, 

Washington, DC 20549, on official 

business days between the hours of 

10:00 a.m. and 3:00 p.m. All comments 

received will be posted without change. 

Persons submitting comments are 

cautioned that we do not redact or edit 

personal identifying information from 

comment submissions. You should 

submit only information that you wish 

to make available publicly. 

Studies, memoranda, or other 

substantive items may be added by the 

Commission or staff to the comment file 

during this rulemaking. A notification of 

the inclusion in the comment file of any 

such materials will be made available 

on the Commission’s Web site. To 

ensure direct electronic receipt of such 

notifications, sign up through the ‘‘Stay 

Connected’’ option at www.sec.gov to 

receive notifications by email. 

FOR FURTHER INFORMATION CONTACT: 

Shehzad Niazi, Daniel Morris, or Angie 

Kim, Office of Rulemaking, Division of 

Corporation Finance, at (202) 551–3430; 

Michael C. Pawluk or J. Matthew 

DeLesDernier, Investment Company 

Rulemaking Office, Division of 

Investment Management, at (202) 551– 

6792; U.S. Securities and Exchange 

Commission, 100 F Street NE., 

Washington, DC 20549. 

SUPPLEMENTARY INFORMATION: The 

Commission is proposing to amend 

Items 10, 102, 202, 303, 401, 405, 407, 

501, 503, 512, 601, and 1100 of 

Regulation S–K under the Securities Act 

of 1933 (the ‘‘Securities Act’’) and the 

Securities Exchange Act of 1934 (the 

‘‘Exchange Act’’); Rules 405, 411, and 

491 of Regulation C under the Securities 

Act; Rules 11, 102, 105, 303, and 406 of 

Regulation S–T under the Securities Act 

and Exchange Act; Forms S–1, S–3, S– 

6, S–11, N–14, S–4, F–1, F–3, F–4, F– 

7, F–8, F–10, F–80, SF–1, and SF–3 

under the Securities Act; Rules 12b–13, 

12b–23, 14a–101 (Schedule 14A), and 

16a–3 under the Exchange Act; Forms 3, 

4, 5, 8–A, 10, 20–F, 40–F, 8–K, 10–Q, 

10–K, and 10–D under the Exchange 

Act; Rule 0–4 under the Investment 

Company Act of 1940 (the ‘‘Investment 

Company Act’’); Forms N–1A, N–2, 

N–3, N–4, N–5, and N–6 under the 

Investment Company Act and Securities 

Act; Form N–CSR under the Investment 

Company Act and Exchange Act; and 

Rule 0–6 under the Investment Advisers 

Act of 1940 (‘‘Investment Advisers 

Act’’). The Commission is also 

proposing to add new Item 105 to 

Regulation S–K and to remove Rule 

12b–32 under the Exchange Act and 

Rules 8b–23, 8b–24, and 8b–32 under 

the Investment Company Act. 

Table of Contents 

I. Introduction 

A. Background 

B. Overview of the Proposed Amendments 

II. Proposed Amendments 

A. Description of Property (Item 102) 

B. Management’s Discussion and Analysis 

of Financial Condition and Results of 

Operations (Item 303) 

1. Year-to-Year Comparisons (Instruction 1 

to Item 303(a)) 

2. Application to Foreign Private Issuers 

C. Management, Security Holders and 

Corporate Governance 

1. Directors, Executive Officers, Promoters, 

and Control Persons (Item 401) 

2. Compliance With Section 16(a) of the 

Exchange Act (Item 405) 

3. Corporate Governance (Item 407) 

D. Registration Statement and Prospectus 

Provisions 

1. Outside Front Cover Page of the 

Prospectus (Item 501(b)) 

2. Risk Factors (Item 503(c)) 

3. Plan of Distribution (Item 508) 

4. Undertakings (Item 512) 

E. Exhibits 

1. Description of Registrant’s Securities 

(Item 601(b)(4)) 

2. Information Omitted From Exhibits 

(Item 601) 

3. Material Contracts (Item 601(b)(10)(i)) 

4. Subsidiaries of the Registrant and Entity 

Identifiers (Item 601(b)(21)(i)) 

5. Application to Foreign Private Issuers 

F. Incorporation by Reference 

1. Item 10(d) 

2. Securities Act Rule 411, Exchange Act 

Rule 12b–23 and Rule 12b–32 and 

Related Rules Under the Investment 

Company Act and Investment Advisers 

Act 

3. Forms 

G. Manner of Delivery 

1. Tagging Cover Page Data 

2. Exhibit Hyperlinks and HTML Format 

for Investment Companies 

H. General Request for Comment 

III. Economic Analysis 

A. Background 

1. The Benefits of Information Disclosure 

2. The Costs of Disclosure 

B. Baseline 

C. Economic Analysis of the Proposed 

Amendments: General Assessment, 

Including Impact on Efficiency, 

Competition, and Capital Formation 

D. Economic Analysis of the Specific 

Amendments: Proposals That Clarify and 

Update Existing Rules 

1. Proposals That Clarify or Streamline a 

Rule’s Requirements 


asabaliauskas on DSKBBXCHB2PROD with PROPOSALS
Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Proposed Rules 50989 

1Public Law No. 114–94, Sec. 72003, 129 Stat. 

1312 (2015). 

2Report on Modernization and Simplification of 

Regulation S–K (Nov. 23, 2016), available at https:// 

www.sec.gov/reportspubs/sec-fast-act-report2016.pdf. 

3See FAST Act § 72003(c). 

4The FAST Act Report presented 

recommendations for the Commission’s 

consideration. The FAST Act Report also noted that 

many of the recommendations in the report were 

necessarily preliminary in nature and that ongoing 

outreach and study would be necessary in 

connection with any rulemaking to implement the 

recommendations. See FAST Act Report, supra note 

2, at n.15. 

5Comment letters related to this request are 

available at https://www.sec.gov/spotlight/ 

disclosure-effectiveness.shtml. We refer to these 

letters throughout as ‘‘Disclosure Effectiveness’’ 

letters. 

6See Business and Financial Disclosure Required 

by Regulation S–K, Release No. 33–10064 (Apr. 13, 

2016) [81 FR 23916 (Apr. 22, 2016)]. 

7Comment letters related to this request are 

available at https://www.sec.gov/comments/s7-06- 

16/s70616.htm. 

8Public Law No. 112–106, Sec. 108, 126 Stat. 306 

(2012). See also Rule 12b–2 under the Exchange Act 

[17 CFR 240.12b–2] and Rule 405 under the 

Securities Act [17 CFR 230.405]. Section 108 of the 

JOBS Act required the Commission to 

comprehensively evaluate its disclosure 

requirements to determine how they could be 

updated to modernize and simplify the registration 

process and reduce the costs and other burdens 

associated with these requirements for emerging 

growth companies (‘‘EGCs’’). The resulting 

recommendations are in the staff’s Report on 

Review of Disclosure Requirements in Regulation 

S–K, available at https://www.sec.gov/news/ 

studies/2013/reg-sk-disclosure-requirementsreview.pdf. 

In connection with the S–K Study, we received 

public comments on regulatory initiatives to be 

undertaken in response to the JOBS Act. See 

Comments on SEC Regulatory Initiatives Under the 

JOBS Act: Title I—Review of Regulation S–K, 

available at http://www.sec.gov/comments/jobstitle-i/reviewreg-sk/reviewreg-sk.shtml. 

9Request for Comment on Subpart 400 of 

Regulation S–K Disclosure Requirements Relating to 

Management, Certain Security Holders and 

Corporate Governance Matters, Release No. 33– 

10198 (Aug. 25, 2016) [81 FR 59927 (Aug. 31, 

2016)]. Comment letters related to this request are 

available at https://www.sec.gov/comments/s7-18- 

16/s71816.htm. We refer to these letters throughout 

as ‘‘Subpart 400’’ letters. 

10Comment letters related to the FAST Act 

Report are available at https://www.sec.gov/ 

comments/fast/fast.htm. 

After the FAST Act Report was published, the 

staff updated the IAC on the recommendations 

included in the report at its December 8, 2016 

meeting. See Minutes of the IAC Meeting on 

December 8, 2016 available at https://www.sec.gov/ 

spotlight/investor-advisory-committee-2012/ 

iac120816-minutes.htm. The staff did not discuss 

with the IAC or the ACSEC potential modifications 

to those recommendations as reflected in this 

release. 

11Unless otherwise indicated, comment letters 

cited in this release are to the Concept Release. 

2. Proposals To Update Rules To Account 

for Subsequent Developments 

E. Economic Analysis of the Specific 

Amendments: Proposals That Simplify 

the Disclosure Process or Eliminate 

Disclosures 

1. Management’s Discussion and Analysis 

of Financial Condition and Results of 

Operations (Item 303) 

2. Information Omitted From Exhibits 

(Item 601): Item 601(a)(5), Item 601(a)(6), 

and Item 601(b)(10)(iv) 

F. Economic Analysis of the Specific 

Amendments: Proposals That Require 

More Disclosure or the Incorporation of 

New Technology 

1. Description of Registrant’s Securities 

(Item 601(b)(4)) 

2. Subsidiaries of the Registrant and Entity 

Identifiers (Item 601(b)(21)) 

3. Tagging Cover Page Data 

4. Proposals for Additional Disclosure 

With Minimal Additional Costs to 

Registrants 

G. Economic Analysis of HTML and 

Hyperlinking Requirements of Forms 

Under the Investment Company Act 

IV. Paperwork Reduction Act 

A. Background 

B. Summary of the Proposed Amendments’ 

Impact on Collection of Information 

1. Proposed Amendments Expected To 

Decrease Burdens 

2. Proposed Amendments Expected To 

Increase Burdens 

3. Proposed Amendments Not Expected to 

Meaningfully Affect Burdens 

C. Burden and Cost Estimates to the 

Proposed Amendments 

1. Form 10–K and Form 10–Q; Schedule 

14A and Schedule 14C 

2. Form S–1, Form S–3, Form S–4, Form 

F–3, Form F–4, Form SF–1, Form SF–3, 

Form 10, and Form 20–F 

3. Form 8–A, Form 10–D, Form 40–F, Form 

F–7, Form F–8, Form F–10, and Form 

F–80 

4. Form S–6, Form N–1A, Form N–2, Form 

N–3, Form N–4, Form N–5, Form N–6, 

Form N–14, and Form N–CSR 

D. Request for Comment 

V. Small Business Regulatory Enforcement 

Fairness Act 

VI. Initial Regulatory Flexibility Act Analysis 

A. Reasons for, and Objectives of, the 

Proposed Action 

B. Legal Basis 

C. Small Entities Subject to the Proposed 

Rules 

D. Reporting, Recordkeeping, and Other 

Compliance Requirements 

E. Duplicative, Overlapping, or Conflicting 

Federal Rules 

F. Significant Alternatives 

G. Request for Comment 

VII. Statutory Authority and Text of Proposed 

Rule and Form Amendments 

I. Introduction 

A. Background 

We are proposing amendments to 

modernize and simplify certain 

disclosure requirements in Regulation 

S–K and related rules and forms to 

implement Section 72003 of the Fixing 

America’s Surface Transportation Act 

(the ‘‘FAST Act’’).1 As required by 

Section 72003(c) of the FAST Act, the 

staff published its Report on 

Modernization and Simplification of 

Regulation S–K (the ‘‘FAST Act 

Report’’) on November 23, 2016.2

Consistent with Section 72003, the 

FAST Act Report provided ‘‘specific 

and detailed recommendations on 

modernizing and simplifying the 

requirements in Regulation S–K in a 

manner that reduces the costs and 

burdens on companies while still 

providing all material information’’ and 

‘‘[recommendations] on ways to 

improve the readability and navigability 

of disclosure and to discourage 

repetition and the disclosure of 

immaterial information.’’ 3 Also 

consistent with Section 72003, the 

FAST Act Report reflected consultations 

with the Investor Advisory Committee 

(‘‘IAC’’) and the Advisory Committee on 

Small and Emerging Companies. 

This release proposes amendments 

based on the recommendations in the 

FAST Act Report. The proposed 

amendments largely implement these 

recommendations, as required by 

Section 72003(d) of the FAST Act. 

However, in some cases, and as 

discussed in more detail below, we have 

chosen to alter or supplement the staff’s 

previously recommended approach 

based on our consideration of the issues 

and the statutory mandate.4 This release 

reflects perspectives developed during 

the staff’s broader review of the 

Commission’s disclosure regime. As 

part of that effort, the staff requested 

public input on how the disclosure 

system could be improved,5 and the 

Commission issued a concept release on 

the business and financial disclosure 

requirements in Regulation S-K (the 

‘‘Concept Release’’).6

In developing the proposed 

amendments, we considered the 

comment letters we received on the 

Concept Release; 7 the prior staff study 

of Regulation S–K (the ‘‘S–K Study’’) 

mandated by the Jumpstart Our 

Business Startups Act (the ‘‘JOBS 

Act’’); 8 the Commission’s request for 

comment on the requirements relating 

to management, security holders, and 

corporate governance matters in Subpart 

400 of Regulation S-K (the ‘‘Regulation 

S-K Subpart 400 Release’’); 9 and the 

FAST Act Report.10 Throughout this 

release, we discuss these comments as 

further context for the proposed 

amendments.11 The proposed 

amendments also reflect the 

Commission’s experience with 

Regulation S-K arising from the Division 

of Corporation Finance’s disclosure 

review program. 

In this release, we focus on 

amendments to implement Section 

72003(d) of the FAST Act. Accordingly, 

we are not at this time proposing 

amendments that extend substantially 


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50990 Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Proposed Rules 

12As discussed in relevant sections below, some 

of the proposed amendments in this release would 

apply to Form 20–F or Form 40–F. Form 20–F is 

the combined registration statement and annual 

report form for foreign private issuers under the 

Exchange Act. It also sets forth disclosure 

requirements for registration statements filed by 

foreign private issuers under the Securities Act. 

Form 40–F is the registration statement and annual 

report used by eligible Canadian issuers under the 

Multijurisdictional Disclosure System. While 

Section 72003 of the FAST Act is focused on 

Regulation S–K, we are proposing to make 

corresponding changes to the disclosure 

requirements applicable to foreign private issuers 

where Forms 20–F and 40–F include provisions 

that are substantially similar to those found in 

Regulation S–K. 

13See Request for Comment on Possible Changes 

to Industry Guide 3 (Statistical Disclosure by Bank 

Holding Companies), Release No. 33–10321 (Mar. 1, 

2017) [82 FR 12757 (Mar. 7, 2017)]; Concept 

Release, supra note 6; Regulation S–K Subpart 400 

Release, supra note 9; Disclosure Update and 

Simplification, Release No. 33–10110 (Jul. 13, 2016) 

[81 FR 51607 (Aug. 4, 2016)] (the ‘‘Disclosure 

Update and Simplification Proposing Release’’); 

Amendments to Smaller Reporting Company 

Definition, Release No. 33–10107 (Jun. 27, 2016) [81 

FR 43130 (Jul. 1, 2016)]; and Modernization of 

Property Disclosures for Mining Registrants, Release 

No. 33–10098 (Jun. 16, 2016) [81 FR 41651 (Jun. 27, 

2016)] (the ‘‘Modernization for Mining Registrants 

Proposing Release’’). 

14The Commission has adopted requirements for 

exhibit hyperlinks and HTML format for operating 

companies. See Exhibit Hyperlinks and HTML 

Format, Release No. 33–10322 (Mar. 1, 2017) [82 FR 

14130 (Mar. 17, 2017)] (‘‘Exhibit Hyperlinks 

Adopting Release’’) (adopting amendments to 

require registrants to hyperlink to each exhibit 

listed in the exhibit index and, to enable the 

inclusion of hyperlinks, requiring registrants to 

submit all such filings in HTML format). Nonaccelerated filers and smaller reporting companies 

(‘‘SRCs’’) may continue to file in American 

Standard Code for Information Interchange 

(‘‘ASCII’’) until September 1, 2018 and are therefore 

not required to include exhibit hyperlinks until that 

date. 

15 15 U.S.C. 78a et seq. 

16See proposed amendments to Item 501(b)(1), 

(b)(3) and (b)(4). 

17Our proposals would amend Rule 405 and Rule 

491. 

18 Item 102 of Regulation S–K [17 CFR 229.102]. 

19 Detailed descriptions of the physical 

characteristics of individual properties or legal 

descriptions by metes and bounds are not required. 

See Instruction 1 to Item 102 of Regulation S–K. 

20 Disclosure specific to the mining, oil and gas, 

and real estate industries is outside the scope of this 

release. Instructions 3, 5, and 7 apply to the mining 

industry. The Commission has separately proposed 

revisions to the property disclosure requirements 

for mining registrants. See Modernization for 

Mining Registrants Proposing Release, supra note 

13. Instructions 4, 6, and 8 apply to the oil and gas 

industry. The Commission considered disclosure 

specific to the oil and gas industry in 2008. See 

Modernization of Oil and Gas Reporting, Release 

No. 33–8995 (Dec. 31, 2008) [74 FR 2158 (Jan. 14, 

2009)]. Instruction 9 applies to the real estate 

industry. 

21See FAST Act Report, supra note 2, at 

Recommendation B.1. See also Concept Release, 

supra note 6, at Section IV.A.6.b and SEC Staff’s 

Report of the Task Force on Disclosure 

Simplification (Mar. 5, 1996) available at https://

www.sec.gov/news/studies/smpl.htm. 

22FAST Act Report, supra note 2, at 

Recommendation B.1. 

23See, e.g., Letters from Ernst & Young (Sept. 11, 

2012) [S–K Study letter] (‘‘Ernst & Young 1’’); U.S. 

Chamber of Commerce (July 29, 2014) [Disclosure 

Effectiveness letter] (‘‘Chamber 1’’); Society of 

Corporate Secretaries and Governance Professionals 

(Sept.10, 2014) [Disclosure Effectiveness letter] 

(‘‘Society of Corporate Secretaries’’); Shearman & 

beyond the staff’s recommendations in 

the FAST Act Report.12 We are 

continuing to consider potential 

additional changes to our disclosure 

regime in connection with recent 

proposing releases and requests for 

comment.13 In addition, we are 

proposing parallel amendments to 

several rules and forms applicable to 

investment companies and investment 

advisers to provide for a consistent set 

of rules governing incorporation by 

reference and hyperlinking, including 

proposed amendments that would 

require certain investment company 

filings to be submitted in HTML 

format.14

B. Overview of the Proposed 

Amendments 

We are proposing amendments to 

several individual rules that would 

update, streamline, or otherwise 

improve our well-established and robust 

disclosure framework. These include 

proposed changes to: 

• Description of Property (Item 102); 

• Management’s Discussion and 

Analysis (Item 303); 

• Directors, Executive Officers, 

Promoters, and Control Persons (Item 

401); 

• Compliance with Section 16(a) of 

the Exchange Act 15 (Item 405); 

• Outside Front Cover Page of the 

Prospectus (Item 501(b)); 16

• Risk Factors (Item 503(c)); 

• Plan of Distribution (Item 508); 17

• Material Contracts (Item 601(b)(10)); 

and 

• Various rules related to 

incorporation by reference. 

Other proposed amendments would 

update some of our rules to account for 

developments since their adoption or 

last amendment. These include 

proposed changes to Corporate 

Governance (Item 407), Outside Front 

Cover Page of the Prospectus (Item 

501(b)(10)), and Undertakings (Item 

512). Some of the proposed 

amendments would simplify disclosure 

or the disclosure process. These include 

proposed changes to Management’s 

Discussion and Analysis (Item 303(a)) 

that would allow for flexibility in 

discussing historical periods and the 

addition of new subparagraphs to 

Exhibits (Item 601) to permit omission 

of portions of exhibits that do not 

contain material information. 

Some of our proposed amendments 

would require additional disclosure or 

incorporation of new technology. These 

include proposed changes to: 

• Outside Front Cover Page of the 

Prospectus (Item 501(b)(4)); 

• Description of Registrant’s 

Securities (Item 601(b)(4)); 

• Subsidiaries of the Registrant (Item 

601(b)(21)(i)); and 

• Various regulations and forms to 

require all of the information on the 

cover pages of some Exchange Act forms 

to be tagged in Inline XBRL format. 

We discuss the proposed amendments 

generally in the order that each Item 

appears in Regulation S–K; however, we 

have consolidated the discussion of the 

rules and item requirements related to 

incorporation by reference. We have 

also consolidated our discussion of 

rules requiring the incorporation of new 

technology. 

II. Proposed Amendments 

A. Description of Property (Item 102) 

Item 102 requires disclosure of the 

location and general character of the 

principal plants, mines, and other 

materially important physical properties 

of the registrant and its subsidiaries.18

Instruction 1 to Item 102 states that 

registrants must disclose such 

information as reasonably will inform 

investors as to the suitability, adequacy, 

productive capacity, and extent of 

utilization of the facilities by the 

registrant.19 Instruction 2 provides that, 

in determining whether properties are 

material to an understanding of the 

registrant’s business taken as a whole, 

registrants should take into account 

both quantitative and qualitative 

factors.20

Currently, Item 102 specifies 

disclosure of ‘‘principal’’ plants, mines, 

and other ‘‘materially important’’ 

physical properties. The staff has 

observed, however, that the item may 

elicit disclosure that is not material.21

For example, some registrants—such as 

those in the services or information 

technology industry—may not have 

material physical properties, and 

accordingly, these registrants tend to 

disclose information about their 

corporate headquarters, office space, 

and other facilities in response to this 

item. To address this concern, in the 

FAST Act Report, the staff 

recommended that the Commission 

consider revising Item 102 to require a 

description of property only to the 

extent that physical properties are 

material to the registrant’s business.22

Similarly, several commenters stated 

that Item 102 is not relevant to all 

registrants or can result in immaterial 

disclosure.23 Two of these commenters 


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Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Proposed Rules 50991 

Sterling LLP (Nov. 26, 2014) [Disclosure 

Effectiveness letter] (‘‘Shearman 1’’) (stating that 

disclosure of physical properties does not, in most 

cases, provide investors meaningful information, 

particularly for registrants not engaged in 

manufacturing); Allstate Insurance Company (July 

1, 2016) (‘‘Allstate’’); Fenwick West LLP (Aug. 1, 

2016) (‘‘Fenwick’’); U.S. Chamber of Commerce 

(July 20, 2016) (‘‘Chamber 2’’); Corporate 

Governance Coalition for Investor Value (July 20, 

2016) (‘‘CGCIV’’); Securities Industry and Financial 

Markets Association (July 21, 2016) (‘‘SIFMA’’); 

Ernst & Young (July 21, 2016) (‘‘Ernst &Young 3’’); 

and Davis Polk & Wardwell LLP (July 22, 2016) 

(‘‘Davis Polk 1’’). 

24 17 CFR 229.303. 

25See Letters from Chamber 1 and Society of 

Corporate Secretaries. 

26See, e.g., Letters from Allstate; National 

Association of Real Estate Investment Trusts (July 

21, 2016); Fenwick; Davis Polk 1; FedEx 

Corporation (July 21, 2016) (‘‘FedEx’’); Chamber 2; 

and CGCIV (both the Chamber 2 and CGCIV letters 

recommended eliminating this disclosure 

requirement except to the extent property 

disclosure is material or is necessary to make other 

disclosures not misleading and stated that, if this 

disclosure requirement is retained, it should not be 

expanded and the Commission should clarify that 

for registrants who do not have material physical 

properties, disclosure about their corporate 

headquarters, office space, and other facilities is 

optional, not required). 

27See Letter from Fenwick. 

28See Letter from American Bar Association 

(Mar. 6, 2015) [Disclosure Effectiveness letter] 

(‘‘ABA’’). 

29 Id. 

30See, e.g., Letters from US SIF: The Forum for 

Sustainable and Responsible Investment (Sept., 18, 

2014) [Disclosure Effectiveness letter] (‘‘US SIF 1’’); 

US SIF: The Forum for Sustainable and Responsible 

Investment (July 14, 2016) (‘‘US SIF 2’’); Elise J. 

Bean (July 6, 2016) (‘‘E. Bean’’); and CFA Institute 

(Oct. 6, 2016) (‘‘CFA Institute’’). 

31See Letter from US SIF 2. 

32See Letters from Stephen P. Percoco (July 24, 

2016) (‘‘S. Percoco’’) and Sen. Feinstein, et al. (Feb. 

27, 2017) (‘‘Sen. Feinstein, et al.’’). 33See Letter from S. Percoco. 34See Letter from Sen. Feinstein, et al. 35We believe this approach is clearer and does 

not inadvertently omit disclosures that would be 

material to the registrant, but not its ongoing 

business, for example properties that had value that 

was material to the registrant but that were no 

longer important to its operations. 36See Letter from ABA. 37For example, Instruction 3 of Item 102 refers to 

‘‘major significance’’ and is specific to the mining 

industry. The Modernization for Mining Registrants 

Proposing Release proposes to eliminate this 

instruction. See supra note 13. 

38 Item 101(c) of Regulation S–K [17 CFR 

229.101(c)]. See FAST Act Report, supra note 2, at 

Recommendation B.1. 

39See, e.g., Letters from Ernst & Young 3; SIFMA; 

New York State Society of Certified Public 

Accountants (July 19, 2016) (‘‘NYSSCPA’’); Davis 

Polk 1; General Motors Company (Sept. 30, 2016) 

(‘‘General Motors’’); and Financial Executives 

International (Oct. 3, 2016) (‘‘Financial Executives 

International’’). 

40See Letters from Ernst & Young 3; Davis Polk 

1; General Motors; and Financial Executives 

International. 

41See Letter from Davis Polk 1. 

noted that, if material to a registrant’s 

business, Item 303, Management’s 

Discussion and Analysis of Financial 

Condition and Results of Operations 

(‘‘MD&A’’),24 would require a 

discussion of the importance of a 

property or facility and, in these 

instances, Item 102 may result in 

duplicative disclosure.25

A number of commenters also 

supported revising Item 102 to be more 

principles-based or require disclosure 

only when property is material.26 One of 

these commenters asserted that the lack 

of a materiality overlay in Instruction 2 

to Item 102 results in immaterial 

disclosure.27 Another commenter noted 

different triggers for disclosure in Item 

102, such as the item’s reference to 

‘‘materially important’’ physical 

properties and ‘‘major’’ encumbrance.28

This commenter suggested harmonizing 

these and similarly varied formulations 

to lessen ambiguity in their 

application.29

A few commenters, however, 

suggested retaining this item in its 

current form,30 with one commenter 

noting the importance of this disclosure 

for mining companies.31 Additionally, 

two commenters recommended 

expanding the item to include 

additional disclosure.32 One of these 

commenters recommended disclosure of 

risks resulting from the potential lack of 

availability and rising cost of 

properties.33 The other commenter 

recommended property disclosure 

specific to the manufacturing industry, 

including manufacturing locations that 

promote and retain jobs within the 

United States. This commenter stated 

that enhanced disclosures would inform 

investors about the benefits of 

manufacturing in the United States.34

Consistent with several commenters’ 

suggestions and the staff’s 

recommendation in the FAST Act 

report, we are proposing to revise Item 

102 to emphasize materiality. While the 

FAST Act Report recommended 

amending Item 102 to require disclosure 

only to the extent physical properties 

are material to the registrant’s business, 

our proposals would require this 

disclosure to the extent material to the 

registrant. Our proposal is intended to 

encompass properties that are material 

to the registrant, which would include 

those properties that are material to the 

registrant’s business.35 We are also 

proposing to clarify that the disclosure 

required under Item 102 should focus 

on physical properties that are material 

to the registrant and may be provided on 

a collective basis, if appropriate. 

As suggested by one commenter, we 

are also proposing to harmonize the 

various non-industry-specific triggers 

for disclosure in Item 102.36 For 

example, we are proposing to replace 

the references to ‘‘major’’ encumbrances 

and ‘‘materially important’’ physical 

properties in Item 102 with references to 

a materiality threshold. By using a 

consistent materiality threshold, we 

intend to facilitate application of the 

proposed amendments. In light of the 

particular significance of this disclosure 

for registrants in the mining, real estate, 

and oil and gas industries, we are not 

proposing to modify any of the 

instructions of Item 102 specific to those 

industries in this release.37

In the FAST Act Report, the staff also 

recommended that the Commission 

consider combining the description of 

material physical properties with the 

description of business in Item 101(c) of 

Regulation S–K.38 A number of 

commenters on the Concept Release also 

recommended incorporating Item 102 

into the broader description of business 

disclosure requirements in Item 101.39

Several of these commenters 

recommended revising Item 101 to 

require broad disclosure of a registrant’s 

resources or assets, whether physical or 

otherwise, that are critical to a 

registrant’s business.40 One of these 

commenters stated that the specific 

requirements of Item 102 are obsolete, 

but that a description of physical 

properties in Item 101 would remain 

relevant to certain types of registrants.41

We have considered the 

recommendations of the staff and 

commenters but are not proposing to 

combine Item 102 and Item 101. We 

believe that any effort to combine these 

items should follow a broader 

evaluation of how the disclosure should 

address material core assets, whether 

physical or otherwise, including 

material resources such as human 

capital or intellectual property. Such a 

broader inquiry was not included in the 

FAST Act Report and is therefore 

outside the scope of this release. 

Request for Comment 

1. Should we revise Item 102 to 

clarify that a description of property is 

required only to the extent that physical 

properties are material to the registrant 

and may be provided on a collective 

basis, if appropriate, as proposed? 

Under what circumstances is the 

flexibility to provide property 

disclosure on a collective basis useful 

(e.g., information about the percentage 

of material properties within and 

outside the United States)? 

2. Should we harmonize nonindustry-specific disclosure thresholds 

by replacing them with a materiality 

threshold as proposed? 

3. The S–K Study recommended that, 

for businesses that have material 

properties, disclosure requirements 


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42See S–K Study at pp. 99–100 (recommending 

that ‘‘[f]or businesses that do have properties that 

are material, disclosure requirements could be 

refocused on material facts about those properties 

that would inform investors about the significance 

of the property to the business and any trends or 

uncertainties in connection with that property, 

rather than requiring a list of locations, capacity 

and ownership. Changes in the way that businesses 

operate may also make other disclosures relevant 

that are not expressly addressed under current 

requirements. For example, requirements could be 

more specific as to additional disclosure that would 

be necessary where a business relies heavily on 

intellectual property owned by a third party or 

relies on service agreements with third parties to 

perform necessary business functions.’’). 

43After consideration of the staff’s 

recommendation C.2. in the FAST Act Report, we 

are not, proposing to eliminate or revise the table 

of contractual obligations. See FAST Act Report, 

supra note 2, at n.15. See also letter from Jack 

Ciesielski (Dec. 12, 2016) [FAST Act Letter] 

(opposing the staff’s recommendation to delete or 

revise the table of contractual obligations). 44 Item 303(a) of Regulation S–K [17 CFR 

229.303(a)]. 

45See FAST Act Report, supra note 2, at 

Recommendation C.1. 

46See, e.g., Letters from Ernst & Young 1 (stating 

that the existing requirements in Item 303 should 

be sufficient to result in a comprehensive 

discussion of a three-year trend without a year-toyear comparison); Chamber 1; Society of Corporate 

Secretaries (also stating that the existing 

requirements in Item 303 are sufficient to elicit a 

discussion of trends over the relevant three-year 

period, if such a trend exists and is material); IBM 

Corporation (Aug. 7, 2014) [Disclosure Effectiveness 

letter]; Arthur J. Radin (May 29, 2015) [Disclosure 

Effectiveness letter] (‘‘A. Radin 1’’); Arthur J. Radin 

(July 5, 2016) (‘‘A. Radin 2’’); UnitedHealth Group 

Inc. (July 21, 2016) (‘‘United Health’’); SIFMA; Ernst 

& Young (Nov. 20, 2015) [Disclosure Effectiveness 

letter] (‘‘Ernst &Young 2’’); Ernst & Young 3; PNC 

Financial Services Group (July 21, 2016) (‘‘PNC’’); 

Investment Program Association (July 21, 2016) 

(‘‘Investment Program Association’’); Prologis Inc. 

(July 21, 2016) (‘‘Prologis’’); Allstate; Davis Polk 1; 

S. Percoco; Fenwick; NYSSCPA; Institute of 

Management Accountants; Chamber 2; FedEx; 

CGCIV; Northrop Grumman Corporation (Sept. 27, 

2016); General Motors; and Financial Executives 

International. 

47See, e.g., Letters from A. Radin 1 and A. Radin 

2; Ernst &Young 3; PNC; Prologis; Allstate; 

Fenwick; NYSSCPA; Chamber 2; FedEx; CGCIV; 

Investment Program Association; General Motors; 

and Financial Executives International. 

48See Letters from Chamber 1; Chamber 2; and 

CGCIV. 

49See Letters from SIFMA and PNC. 

50See Letter from S. Percoco. 

51See, e.g., Letters from United Health; 

Investment Program Association; Allstate; and 

General Motors. 

52See Letter from Fenwick. 

53See Letters from CFA Institute (Nov. 12, 2014 

[Disclosure Effectiveness letter] and Oct. 6, 2016). 

54Our proposed amendments to Item 303(a)(3) 

would not affect SRCs, as SRCs may limit their 

disclosure to the two-year period covered by their 

financial statements. See Instruction 1 to Item 

303(a) of Regulation S–K. See also Rule 12b–2 

under the Exchange Act and Rule 405 under the 

Securities Act. 

Similarly, our proposed amendments would not 

affect EGCs that provide two years of audited 

financial statements. EGCs are only required to 

provide two years of audited financial statements in 

an initial public offering of common equity 

securities and may limit their MD&A to only those 

audited periods presented in the financial 

statements. Public Law 112–106, Sec. 102(b)–(c), 

126 Stat. 306 (2012). See also Instruction 1 to Item 

303(a) of Regulation S–K. 

55 17 CFR 249.310. 

56See Commission Guidance Regarding 

Management’s Discussion and Analysis of Financial 

Condition and Results of Operation, Release No. 

could be refocused on material facts 

about those properties that would 

inform investors about the significance 

of the property to the business, 

including uncertainties in connection 

with these properties.42 Should Item 

102 require additional disclosure about 

material properties, including 

uncertainties such as information about 

properties that are located near 

designated areas where natural disasters 

are more likely to occur? If so, what 

should be required and why? Would 

this elicit more meaningful disclosure or 

would this duplicate disclosure in 

MD&A? 

B. Management’s Discussion and 

Analysis of Financial Condition and 

Results of Operations (Item 303) 43

1. Year-to-Year Comparisons 

(Instruction 1 to Item 303(a)) 

Item 303(a) requires registrants to 

discuss their financial condition, 

changes in financial condition, and 

results of operations.44 Instruction 1 to 

Item 303(a) states that the discussion 

and analysis shall be of the financial 

statements and other statistical data that 

the registrant believes will enhance a 

reader’s understanding of its financial 

condition, changes in financial 

condition, and results of operations. 

This instruction also provides that, 

generally, the discussion shall cover the 

three-year period covered by the 

financial statements and either use yearto-year comparisons or any other 

formats that in the registrant’s judgment 

would enhance a reader’s 

understanding. The instruction states 

that reference to the five-year selected 

financial data may be necessary where 

trend information is relevant. 

In the FAST Act Report, the staff 

recommended that we consider revising 

Item 303(a) to clarify that a registrant 

need only provide a period-to-period 

comparison for the two most recent 

fiscal years covered by the financial 

statements and may hyperlink to the 

prior year’s annual report for the earlier 

of the year-to-year comparisons.45 Many 

commenters on the Concept Release 

recommended modifying Item 303 to 

reduce duplicative disclosure, although 

these commenters recommended simply 

eliminating the earlier of the year-toyear comparisons.46 A number of these 

commenters stated that this discussion 

is readily available in a registrant’s prior 

year annual report on EDGAR.47 Two of 

these commenters stated that repetition 

of the earlier of the year-to-year 

comparisons could distract investors 

from new, material information and 

result in confusion.48 A few of these 

commenters recommended requiring the 

earlier of the year-to-year comparisons 

only if there is a significant trend that 

is discernible through a multiple yearto-year comparison 49 or if prior results 

have been restated.50

Some of the commenters who 

suggested eliminating the earlier of the 

year-to-year comparisons recommended 

allowing registrants to hyperlink to the 

filing with the earlier of the year-to-year 

comparisons.51 One commenter 

opposed a requirement to hyperlink to 

the prior filing, stating that EDGAR is 

sufficiently user-friendly for investors to 

readily obtain the relevant report.52

Another commenter, however, disagreed 

with eliminating the requirement to 

include the earlier of the year-to-year 

comparisons stating that this would 

require investors to look for the 

information elsewhere.53

We are proposing to amend Item 303 

to eliminate discussion of the earliest 

year in some situations.54 Under the 

amendments we propose today, when 

financial statements included in a filing 

cover three years, discussion about the 

earliest year would not be required if (i) 

that discussion is not material to an 

understanding of the registrant’s 

financial condition, changes in financial 

condition, and results of operations, and 

(ii) the registrant has filed its prior year 

Form 10–K 55 on EDGAR containing 

MD&A of the earliest of the three years 

included in the financial statements of 

the current filing. By allowing 

registrants to eliminate MD&A 

disclosure about the earliest year in 

these situations, our proposals are 

intended to discourage repetition of 

disclosure that is no longer material, 

which we believe would further our 

mandate under the FAST Act to 

modernize and simplify Regulation S–K 

in a manner that reduces costs and 

burdens on companies while still 

providing all material information. 

Our proposed amendments to Item 

303(a) are consistent with our existing 

interpretive guidance on MD&A. In the 

2003 MD&A Interpretive Release, the 

Commission stated that, in preparing 

MD&A, companies should evaluate 

issues presented in previous periods 

and consider reducing or omitting 

discussion of those that may no longer 

be material or helpful, or revise 

discussions where a revision would 

make the continuing relevance of an 

issue more apparent.56 The Commission 


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33–8350 (Dec. 19, 2003) [68 FR 75056 (Dec. 29, 

2003)] (‘‘2003 MD&A Interpretive Release’’). 

57 Id. 

58 Id. See also Basic, Inc., v. Levinson, 485 U.S. 

224 (1998) at 231 quoting TSC Industries, Inc. v. 

Northway, Inc., 426 U.S. 438 (1976) at 448–449. 

59We also are mindful that a number of 

registrants with segments or different lines of 

business may present their MD&A by segment or 

line of business. In these instances, numerous 

hyperlinks in MD&A may fragment readability. 

60See Item 303(a)(1), 303(a)(2)(ii) and 303(a)(3)(ii) 

of Regulation S–K [17 CFR 229.303(a)(1), (a)(2)(ii), 

(a)(3)(ii)]. 

61See Concept Release, supra note 6, at n.350 and 

accompanying text. 

62See 2003 MD&A Interpretive Release, supra 

note 53. 

63 17 CFR 239.11. 

64 17 CFR 249.308. 

65 17 CFR 249.220f. 

66When the Commission revised the wording of 

Item 5 of Form 20–F in 1999, the adopting release 

noted that the requirements correspond with Item 

303 of Regulation S–K. See International Disclosure 

Standards, Release No. 33–7745 (Sept. 28, 1999) [64 

FR 53900 (Oct. 5, 1999)], at 53904. 

67 17 CFR 249.240f. 

also encouraged companies and 

management to take a ‘‘fresh look’’ at 

MD&A with a view to enhancing its 

quality.57 The Commission observed 

that the effectiveness of MD&A 

decreases with the accumulation of 

unnecessary detail or duplicative or 

uninformative disclosure that obscures 

material information.58 In furtherance of 

this prior interpretive guidance, our 

proposals are intended to encourage 

companies to re-evaluate disclosures in 

their prior year MD&A and take a ‘‘fresh 

look’’ to determine whether such 

disclosure remains material. 

To this end, we are not proposing the 

staff’s recommendation in the FAST Act 

Report to hyperlink to the prior year’s 

annual report for the earlier of the yearto-year comparison. We believe that 

encouraging companies to take a ‘‘fresh 

look’’ at their prior year MD&A to 

determine whether it remains material 

and eliminating disclosure of the 

earliest of the three years when 

specified conditions are met, rather than 

hyperlinking to disclosure that may no 

longer be material, would more 

effectively achieve our FAST Act 

mandate to reduce the costs and 

burdens on companies while continuing 

to provide all material information.59

Our proposals would also eliminate 

the reference to five-year selected 

financial data in Instruction 1 to Item 

303(a). Instruction 1 provides that, 

where trend information is relevant, 

reference to the five-year selected 

financial data in Item 301 may be 

necessary. Because disclosure 

requirements for liquidity, capital 

resources, and results of operations 

already require trend disclosure,60 we 

are proposing to simplify Instruction 1 

by eliminating the reference to trend 

information. This proposed amendment 

is intended to eliminate duplication and 

is not intended to discourage registrants 

from providing trend disclosure in 

MD&A. 

We are also proposing to simplify 

Instruction 1 to Item 303(a) to 

emphasize that registrants may use any 

presentation that, in the registrant’s 

judgment, would enhance a reader’s 

understanding. Instruction 1 currently 

specifies that the discussion cover the 

three-year period covered by the 

financial statements and use year-toyear comparisons or any other format 

that, in the registrant’s judgment, would 

enhance a reader’s understanding. 

Although the staff has observed that 

almost all registrants provide year-toyear comparisons,61 we believe that 

registrants may, in some cases, 

determine that a narrative discussion for 

some or all of the years in the three-year 

period is a more appropriate format. For 

instance, in a situation where some 

information about the earliest year in a 

three-year period is needed because it 

remains material to an understanding of 

the registrant’s financial condition, a 

registrant may decide that narrative 

disclosure about the earliest year and a 

year-to-year comparison for the two 

most recent years in the three-year 

period is appropriate. The proposed 

amendments underscore our intent to 

allow registrants to tailor the 

presentation of their disclosure to reflect 

their varying circumstances, provided 

that registrants continue to disclose the 

information required by Item 303.62

Request for Comment 

4. Should we revise Item 303 as 

proposed? 

5. Should we expand the proposal, 

with similar conditions, to other forms 

such as Form S-1 63 or Form 8–K? 64

6. Instead of allowing registrants to 

eliminate the earliest of the three years 

of MD&A in some situations, should we 

retain the earliest year requirement and 

instead amend Item 303 to allow 

registrants to hyperlink to the prior 

year’s annual report for that disclosure 

in lieu of repeating the disclosure in the 

current year’s report? 

7. Should we include additional 

conditions on allowing registrants to 

exclude the earliest of the three years or 

provide guidance on when a discussion 

of the earliest of the three years would 

be material to an understanding of the 

registrant’s financial condition, changes 

in financial condition, and results of 

operations? For example, should we not 

allow registrants to exclude discussion 

of the earliest year if there has been a 

material change to either of the two 

earlier years due to a restatement or a 

retrospective adoption of a new 

accounting principle? 

8. Should we revise Instruction 1 to 

Item 303(a) as proposed to eliminate the 

reference to year-to-year comparisons? 

Would eliminating that reference 

encourage registrants to use a different 

presentation? Alternatively, should we 

retain the references to year-to-year 

comparisons and revise the instruction 

to identify specific alternatives to yearto-year comparisons? If so, what 

alternatives should we include? 

9. Should we eliminate the reference 

to five-year selected financial data in 

Instruction 1 to Item 303(a) as 

proposed? Would there be a significant 

impact on the total mix of information 

available? Would eliminating this 

reference discourage registrants from 

providing trend disclosure in their 

MD&A? 

2. Application to Foreign Private Issuers 

The disclosure requirements for Item 

5 of Form 20–F 65 (Operating and 

Financial Review and Prospects) are 

substantively comparable to the MD&A 

requirements under Item 303 of 

Regulation S–K.66 To maintain a 

consistent approach to MD&A for 

domestic registrants and foreign private 

issuers, we are proposing changes to 

Form 20–F that conform to our 

proposed amendments to Instruction 1 

to Item 303(a). Accordingly, our 

proposals would amend the instructions 

to Item 5 of Form 20–F to provide that, 

when financial statements included in a 

filing cover three years, discussion 

about the earliest year would not be 

required if (i) that discussion is not 

material to an understanding of the 

registrant’s financial condition, changes 

in financial condition, and results of 

operations and (ii) the registrant has 

filed its prior year Form 20–F on 

EDGAR containing Item 5 disclosure of 

the earliest of the three years included 

in the financial statements of the current 

filing. Similar to our proposals for Item 

303, we are proposing to amend the 

instructions to Item 5 of Form 20–F to 

emphasize that registrants may use any 

presentation that, in the registrant’s 

judgment, would enhance a reader’s 

understanding. 

We are not proposing similar changes 

to Form 40–F.67 Form 40–F generally 

permits Canadian issuers to use 

Canadian disclosure documents to 

satisfy the Commission’s registration 

and disclosure requirements. As a 

result, the MD&A contained in Form 


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68 17 CFR 229.401. 

69 Item 401 of Regulation S–K [17 CFR 229.401] 

was adopted in 1982 as part of the Commission’s 

integrated disclosure initiative, although similar 

requirements can be traced back to Schedule A of 

the Securities Act. See Adoption of Integrated 

Disclosure System, Release No. 33–6383 (Mar. 3, 

1982) [47 FR 11380 (Mar. 16, 1982)] (the ‘‘Integrated 

Disclosure System Adopting Release’’). See also 

Securities Act, Schedule A, Paragraph 4 [15 U.S.C. 

77aa(4)]. 

70 General Instruction G.3 allows the information 

required by Item 401, along with other items 

required by Part III of Form 10–K, to be 

incorporated by reference from the registrant’s 

proxy statement if it is filed with the Commission 

within 120 days after the end of the fiscal year 

covered by the Form 10–K. 

71See Uniform and Integrated Reporting 

Requirements, Release No. 33–5949 (July 28, 1978) 

[43 FR 34402 (Aug. 3, 1978)]. 

72 Id. At the time, Part I of Form 10–K required 

disclosure regarding executive officers of the 

registrant and Part II required disclosure about 

directors. Registrants could exclude the Part II 

information if it would be included in the 

registrant’s proxy statement. 

73FAST Act Report, supra note 2, at 

Recommendation D.1. 

74See Regulation S–K Compliance and Disclosure 

Interpretation 116.02, available at https://

www.sec.gov/divisions/corpfin/guidance/regskinterp.htm (last updated July 26, 2016). General 

Instruction G to Form 10–K also refers generally to 

the ‘‘information regarding executive officers 

required by Item 401’’ when discussing the 

accommodation provided in Instruction 3 to Item 

401(b). 

75 Item 401(b) (Identification of executive 

officers); Item 401(e) (Business experience) and 

Item 401(f) (Involvement in certain legal 

proceedings). 

76See Letter from Davis Polk (Oct. 31, 2016) 

[Subpart 400 letter] (‘‘Davis Polk 2’’) (stating that 

requiring disclosure about executive officers in 

Form 10–K would make it easier to find and would 

be more appropriate because shareholders ‘‘are not 

generally asked to vote on matters related to a 

registrant’s executive officers other than with 

respect to executive compensation, and that 

information is provided in the proxy statement’’). 

77See Letter from Ernst & Young LLP (Nov. 30, 

2016) [Subpart 400 letter] (recommending that all 

Item 401 disclosure be required in a registrant’s 

proxy or information statement because splitting 

that disclosure is ‘‘not conducive to investors 

assessing the diversity and complementary mix of 

experience of the board in conjunction with that of 

executive officers’’). 

40–F is largely prepared in accordance 

with Canadian disclosure standards. 

Request for Comment 

10. Should we make corresponding 

changes to the instructions to Item 5 in 

Form 20–F as proposed? Why or why 

not? Are there any unique 

considerations with respect to foreign 

private issuers in this context? 

11. Should we include additional 

conditions on allowing registrants to 

exclude the earliest of the three years or 

provide guidance on when a discussion 

of the earliest of the three years would 

be material to an understanding of the 

registrant’s financial condition, changes 

in financial condition, and results of 

operations when providing Item 5 

disclosure on Form 20–F? For example, 

should we not allow registrants to 

exclude discussion of the earliest year if 

there has been a material change to 

either of the two earlier years due to a 

restatement or a retrospective adoption 

of a new accounting principle? 

12. Should we make corresponding 

changes to Form 40–F? Why or why 

not? 

13. Would the proposed amendments 

conflict with home-country 

requirements in some jurisdictions? If 

so, please explain. 

C. Management, Security Holders and 

Corporate Governance 

1. Directors, Executive Officers, 

Promoters, and Control Persons (Item 

401) 

Item 401 68 requires disclosure of 

identifying and background information 

about a registrant’s directors, executive 

officers, and significant employees.69

The information required by Item 401 

must be included in several of the 

Commission’s disclosure forms, 

including Part III of an annual report on 

Form 10–K. General Instruction G of 

Form 10–K allows Part III disclosure to 

be incorporated into the Form 10–K by 

reference to the registrant’s definitive 

proxy or information statement.70

As an alternative to incorporating all 

of the Part III disclosure by reference to 

a definitive proxy or information 

statement, Instruction 3 to Item 401(b) 

allows disclosure of information about 

executive officers required under Item 

401 to be included in Part I of Form 10– 

K. If a registrant elects to follow this 

instruction, it is not required to repeat 

that information in its definitive proxy 

or information statement. 

This instruction was introduced in 

1978, when the executive officer and 

director disclosure requirements were 

moved from separate parts of Form 10– 

K into what was then Item 3 of 

Regulation S–K.71 The instruction was 

intended to allow registrants to continue 

the practice of disclosing information 

about their executives in Form 10–K 

while incorporating disclosure about 

directors and other matters by reference 

to their definitive proxy or information 

statement.72

As the staff observed in the FAST Act 

Report, the instruction’s location may 

cause confusion because it is included 

under paragraph (b), despite the fact 

that other paragraphs of Item 401 also 

require disclosure about executive 

officers.73 Although Instruction 3 refers 

to ‘‘this Item’’ (rather than to paragraph 

(b) narrowly), the staff issued 

interpretive guidance stating that 

disclosure of the business experience of 

executive officers pursuant to Item 

401(e) need not be duplicated in proxy 

statements if it is already presented in 

Part I of Form 10-K.74

To eliminate any confusion arising 

from the current location of the 

instruction, we are proposing to clarify 

the instruction by moving it from Item 

401(b) and making it a general 

instruction to Item 401. The amended 

instruction is intended to clarify its 

application to any disclosure about 

executive officers required by Item 401. 

We are also proposing to revise the 

required caption for the disclosure if it 

is included in Part I of Form 10–K to 

reflect a ‘‘plain English’’ approach. The 

required caption would be ‘‘Information 

about our Executive Officers’’ instead of 

‘‘Executive officers of the registrant.’’ 

Request for Comment 

14. Should we amend Instruction 3 to 

Item 401(b) as proposed? 

15. The proposed instruction would 

apply to all of the disclosure about 

executive officers required by Item 401. 

Should we limit this instruction to only 

certain paragraphs of Item 401, such as 

paragraphs (b) and (e) but exclude 

paragraph (f)? 75

16. Where a registrant relies on 

General Instruction G to forward 

incorporate by reference to its definitive 

proxy or information statement, is there 

other Part III disclosure about executive 

officers that we should specify need not 

be duplicated in the proxy or 

information statement if it is already 

presented in Part I of Form 10–K? For 

example, should we specify that 

disclosure about transactions with 

executive officers pursuant to Item 404 

does not need to be duplicated in the 

proxy or information statement if it is 

already disclosed in Part I of Form 10– 

K? 

17. Instead of clarifying how 

Instruction 3 to Item 401(b) applies, 

should we require disclosure about 

executive officers to be included in a 

registrant’s Form 10–K filing, so that it 

is easier to locate? 76 Alternatively, 

should we require all Item 401 

disclosure to be included in a 

registrant’s proxy or information 

statement instead of its Form 10–K if the 

registrant is required to file a proxy or 

information statement? 77

2. Compliance With Section 16(a) of the 

Exchange Act (Item 405) 

Section 16(a) of the Exchange Act 

requires officers, directors, and 

specified types of security holders to 

report their beneficial ownership of a 

registrant’s equity securities using forms 


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78See Form 3, Form 4, and Form 5. 

79 17 CFR 229.405. 

80 Item 405(a)(1) of Regulation S–K [17 CFR 

229.405(a)(1)] defines a ‘‘reporting person’’ as ‘‘each 

person who, at any time during the fiscal year, was 

a director, officer, beneficial owner of more than ten 

percent of any class of equity securities of the 

registrant registered pursuant to Section 12 of the 

Exchange Act, or any other person subject to 

Section 16 of the Exchange Act with respect to the 

registrant because of the requirements of Section 30 

of the Investment Company Act.’’ 

81 Item 405 was initially proposed in 1988 in an 

attempt to reduce the high delinquency rate for 

Section 16 reports. See Ownership Reports and 

Trading by Officers, Directors and Principal 

Stockholders, Release No. 34–26333 (Dec. 2, 1988) 

[53 FR 49997 (Dec. 13, 1988)] and Ownership 

Reports and Trading by Officers, Directors and 

Principal Security Holders, Release No. 34–27148 

(Aug. 18, 1989) [54 FR 35667 (Aug. 29, 1989)] (reproposing Item 405 in response to comments on the 

1988 proposing release). 

82See 17 CFR 240.16a–3(e). 

83See 17 CFR 229.405(a) and (b)(1). 

84FAST Act Report, supra note 2, at 

Recommendation D.2. 

85See Mandated Electronic Filing and Web Site 

Posting for Forms 3, 4 and 5, Release No. 33–8230 

(May 7, 2003) [68 FR 25788 (May 13, 2003)] (the 

‘‘Section 16 Mandatory Electronic Filing Release’’). 

In addition, all registrants who maintain a corporate 

website are required to post any Section 16 reports 

relating to the equity securities of the registrant on 

such website pursuant to Rule 16a–3(k) of the 

Exchange Act [17 CFR 240.16a–3(k)], and many 

registrants satisfy this requirement by providing 

hyperlinks directly to the electronic filings once 

they are made on EDGAR. The Commission has 

noted that any concerns a registrant may have about 

obtaining an electronic copy of the filing from a 

Section 16 reporting person in order to satisfy the 

web posting requirement ‘‘would not arise for 

issuers that rely on a hyperlink (for example, to 

EDGAR) instead of, or in addition to, direct website 

posting.’’ Id. at 25790. 

86See Ownership Reports and Trading by 

Officers, Directors and Principal Security Holders, 

Release 33–8600 (Aug. 3, 2005) [70 FR 46080 (Aug. 

9, 2005)], at 46086. 

87Section 16 Mandatory Electronic Filing Release, 

supra note 85, at 25790. 

88FAST Act Report, supra note 2, at n.55. 

89See Instruction 3 to Item 403 [17 CFR 229.403]. 

90See FAST Act Report, supra note 2, at 

Recommendation D.3. 

91Rule 12b–13 [17 CFR 240.12b–13] states that, 

unless expressly provided otherwise, if any item is 

inapplicable or the answer thereto is negative, an 

appropriate statement to that effect shall be made. 

Item 405, however, only requires the use of this 

heading when responsive disclosure is included. 

See Item 405(a)(1). 

92 17 CFR 229.10. 

93See 17 CFR 249.310. 

prescribed by the Commission.78 Item 

405 79 requires registrants to disclose 

each reporting person 80 who failed to 

file on a timely basis Section 16 reports 

during the most recent fiscal year or 

prior fiscal years.81 The disclosure is 

required under the caption ‘‘Section 

16(a) Beneficial Ownership Reporting 

Compliance.’’ Rule 16a–3(e) requires 

reporting persons to furnish a duplicate 

of those Section 16 reports to the 

registrant.82 Item 405(a) states that 

registrants shall provide the required 

disclosure based solely on a review of 

such furnished reports and any written 

representation provided by such 

persons that no Form 5 is required.83

In the FAST Act Report, the staff 

recommended that we consider 

eliminating the delivery requirement in 

Rule 16a–3(e) and revising Item 405 to 

permit registrants to rely only on (i) a 

review of Section 16 reports submitted 

on EDGAR and (ii) any written 

representation that no Form 5 is 

required, when determining whether 

there are any Section 16 delinquencies 

that must be disclosed pursuant to Item 

405.84 Reporting persons have been 

required to file their Section 16 reports 

electronically on EDGAR since 2003.85

The Commission has stated that ‘‘[b]y 

reviewing Section 16 reports posted on 

EDGAR, an issuer is readily able to 

evaluate their timeliness’’ 86 and 

‘‘issuers also may consult EDGAR to 

obtain notice of new filings.’’ 87

Consistent with the staff’s 

recommendations, we are proposing to 

amend Item 405 to focus on a review of 

Section 16 reports available on EDGAR 

rather than reports furnished to the 

registrant. We are also proposing to 

eliminate the requirement in Rule 16a– 

3(e) that reporting persons furnish 

Section 16 reports to the registrant. We 

believe that a shift to reliance on 

electronically filed Section 16 reports, 

while retaining the written 

representation in Item 405(b)(1), would 

modernize and simplify compliance 

with Item 405 while still providing all 

material information. 

In the FAST Act Report, the staff 

recommended that the Commission 

consider adding an instruction that 

permits a registrant to rely on the 

information in the Section 16 reports 

submitted on EDGAR unless it knows, 

or has reason to believe, that the 

information is not complete or accurate 

or that a report or an amendment should 

have been filed but was not.88 While 

there is a similar instruction in Item 403 

of Regulation S–K with respect to the 

contents of Section 13(d) and 13(g) 

statements filed with the Commission,89

we have concerns that, if implemented, 

this recommendation could lead to 

uncertainty about when a registrant has 

a reporting obligation because of the 

difficulty ascertaining when a registrant 

may have knowledge of delinquencies 

or a reason to believe that delinquencies 

have occurred. Therefore, at this time, 

we are not proposing to expand 

reporting under Item 405 in this 

manner. 

We are, however, proposing to change 

the language of Item 405 to clarify that 

registrants may rely on Section 16 

reports filed on EDGAR but are not 

required to limit their inquiry to those 

filings. Item 405 currently states that the 

registrant ‘‘shall’’ make its disclosure 

‘‘based solely upon’’ the Section 16 

reports that are furnished to it pursuant 

to Rule 16a–3(e) and any written 

representation from a reporting person 

that no Form 5 is required. This 

language could be read to suggest that 

registrants may not rely on information 

outside of the Section 16 reports 

furnished to the registrant pursuant to 

Rule 16a–3(e). As proposed, Item 405(b) 

would state that registrants ‘‘may’’ rely 

only on the Section 16 reports and the 

written representation. Therefore, if a 

registrant was aware that information in 

a Section 16 report submitted on 

EDGAR was not complete or accurate, or 

that a reporting person failed to file a 

required report, it could provide 

appropriate disclosure pursuant to Item 

405. We are also soliciting comment on 

the benefits and challenges of the 

proposed approach and how it may 

affect compliance with Section 16(a) 

reporting obligations. 

The staff’s final recommendation for 

revising Item 405 was to eliminate the 

use of the ‘‘Section 16(a) Beneficial 

Ownership Reporting Compliance’’ 

heading when the registrant does not 

have Section 16(a) delinquencies to 

report.90 The staff has observed that 

some registrants have included this 

heading to disclose that they have 

nothing to report pursuant to Item 

405.91 To reduce unnecessary disclosure 

and improve the ability to search a 

registrant’s filings for disclosure of 

Section 16(a) reporting delinquencies, 

we are proposing to add an instruction 

to Item 405 that encourages registrants 

to exclude the heading if they have no 

delinquencies to report. We are also 

proposing to change the heading to 

‘‘Delinquent Section 16(a) Reports’’ to 

more precisely describe the required 

disclosure and to further encourage 

registrants to exclude the heading if 

they do not have delinquencies to 

report. 

We are also proposing to eliminate the 

checkbox on the cover page of Form 10– 

K relating to Item 405 disclosures and 

the related instruction in Item 10 of 

Form 10–K.92 Currently, registrants are 

required to check a box on the cover 

page of Form 10–K to indicate that 

disclosure pursuant to Item 405 is not 

contained in the Form 10–K and will 

not be contained, to the best of the 

registrant’s knowledge, in any definitive 

proxy or information statement that is 

incorporated by reference.93 This 

checkbox was included in Form 10–K to 


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94See Ownership Reports and Trading by 

Officers, Directors and Principal Security Holders, 

Release No. 34–28869 [56 FR 7242 (Feb. 21, 1991)] 

(‘‘Ownership Reports and Trading Release’’), at 

Section VI.B. 

95The Instruction to Item 10 specifies that 

checking the box on the cover page to indicate that 

Item 405 disclosure of delinquent Form 3, 4, or 5 

filers is not contained is intended to facilitate Form 

processing and review. The instruction also states 

that failure to provide such indication will not 

create liability for violation of the federal securities 

laws and that the space should be checked only if 

there is no disclosure in the Form of reporting 

person delinquencies in response to Item 405 and 

if the registrant, at the time of filing the Form 10– 

K, has reviewed the information necessary to 

ascertain, and has determined that, Item 405 

disclosure is not expected to be contained in Part 

III of the Form 10–K or incorporated by reference. 

96See Ownership Reports and Trading Release at 

7260 (‘‘If at the time of filing the Form 10–K the 

registrant does not yet know whether such 

disclosure will be contained in the proxy or 

information statement or the Form 10–K 

amendment containing the Part III information, the 

box should not be checked. If the box is not 

checked, this will not be taken as a statement that 

there will be Item 405 disclosure of delinquent 

filers, but rather that the registrant may not have the 

requisite knowledge at the time the Form 10–K is 

filed.’’). The proposed approach would also have 

the advantage of allowing for this disclosure to be 

located with a simple text search whether it is 

included in the registrant’s annual report or its 

definitive proxy or information statement. 

97 17 CFR 240.14a–101. 

98 17 CFR 229.407. Item 407 was adopted in 2006 

to consolidate various corporate governance 

requirements under a single disclosure item. See 

Executive Compensation and Related Person 

Disclosure, Release No. 33–8732A (Aug. 29, 2006) 

[71 FR 53158 (Sept. 8, 2006)]. 

99See FAST Act Report, supra note 2, at 

Recommendations D.4 and D.5. 

100See Instruction 3 to Item 407(d) of Regulation 

S–K. 

101See PCAOB Release No. 2003–006 (Apr. 16, 

2003). AU sec. 380 required an auditor to discuss 

various matters related to the conduct of an audit 

with those who have responsibility for oversight of 

the financial reporting process. 

102See Possible Revisions to Audit Committee 

Disclosures, Release No. 33–9862 (July 1, 2015) [80 

FR 38995 (July 8, 2015)], at 39003. 

103See PCAOB Release No. 2015–02 (Mar. 31, 

2015). The PCAOB completed a reorganization of its 

auditing standards into a topical structure and a 

single, integrated numbering system (the 

‘‘Reorganization’’). The Commission approved the 

Reorganization on September 17, 2015. See Order 

Granting Approval of Proposed Rules to Implement 

the Reorganization of PCAOB Auditing Standards 

and Related Changes to PCAOB Rules and 

Attestation, Quality Control, and Ethics and 

Independence Standards, Release No. 34–75935 

(Sept. 17, 2015) [80 FR 57263 (Sept. 22, 2015)]. 

104Comments on the Audit Committee Concept 

Release are available at https://www.sec.gov/ 

comments/s7–13–15/s71315.shtml. We refer to 

these letters throughout as ‘‘Audit Committee’’ 

letters. 

105See, e.g., Appendix B to AS 1301; Section 

10A(k) of the Exchange Act [15 U.S.C. § 78j–1(k)]; 

Rule 2–07 of Regulation S–X [17 CFR 210.2–07]; 

and Rule 10A–3 [17 CFR 240.10A–3]. 

106See, e.g., Letters from AngloGold Ashanti 

Limited (Sept. 7, 2015) [Audit Committee letter]; 

Deloitte & Touche LLP (Sept. 2, 2015) [Audit 

Committee letter]; National Association of State 

Boards of Accountancy (Sept. 3, 2015) [Audit 

Committee letter]; and James H. Edwards (Sept. 8, 

2015) [Audit Committee letter]. 

107See, e.g., Letters from AT&T Inc. (Sept. 8, 

2015) [Audit Committee letter]; Federal Regulation 

of Securities, Law and Accounting, and Corporate 

Governance Committees of the American Bar 

Association (Feb. 9, 2016) [Audit Committee letter]; 

and The Home Depot, Inc. (Sept. 17, 2015) [Audit 

Committee letter]. One commenter on the 

Regulation S–K Subpart 400 Release also 

assist the Commission and security 

holders in identifying registrants that 

were disclosing delinquent filings by 

insiders.94 The related instruction in 

Item 10 of Form 10–K is also intended 

to facilitate the Form’s processing and 

review.95 We believe that the proposed 

amendments would lessen the need for 

this checkbox by reducing the 

unnecessary use of the heading and 

thereby facilitating document searches. 

Moreover, the checkbox may have 

limited use, because most registrants 

defer their Item 405 disclosure to their 

definitive proxy or information 

statement pursuant to General 

Instruction G of Form 10-K.96

Request for Comment 

18. Would allowing registrants to rely 

on Section 16 reports filed on EDGAR 

instead of reports furnished to them 

reduce the burden of complying with 

Item 405 while preserving their ability 

to disclose delinquencies? What effect, 

if any, would the proposed approach 

have on compliance with the Section 

16(a) reporting requirements? Should 

we continue to require Section 16 

reporting persons to furnish reports to 

registrants, or should we require them to 

provide notice to the registrant when 

the reporting person files a report on 

EDGAR? 

19. Should we, instead of permitting, 

require a registrant to disclose 

delinquencies under Item 405 if it 

knows, or has reason to believe, that 

there is a delinquency that is not 

reflected on EDGAR? Why or why not? 

20. Should we revise the ‘‘Section 

16(a) Beneficial Ownership Reporting 

Compliance’’ heading as proposed? Is 

there an alternative heading that would 

be more appropriate? 

21. Should we continue to include a 

checkbox on Form 10–K, or include a 

checkbox on Schedule 14A 97 or 

Schedule 14C, to indicate when the 

disclosure required by Item 405 is 

included in a filing? If so, what benefits 

would it provide compared to our 

proposed approach of encouraging 

registrants to exclude the proposed 

‘‘Delinquent Section 16(a) Reports’’ 

heading if they do not have 

delinquencies to report? 

3. Corporate Governance (Item 407) 

Several disclosure requirements 

related to corporate governance are 

consolidated in Item 407.98 In the FAST 

Act Report, the staff recommended 

updating a reference to an outdated 

auditing standard in Item 407(d)(3)(i)(B) 

and revising Item 407(e)(5) to clarify 

that EGCs are not required to provide a 

compensation committee report.99 We 

are proposing amendments to 

implement both of these 

recommendations. 

a. Audit Committee Discussions With 

Independent Auditor (Item 

407(d)(3)(i)(B)) 

Under existing Item 407(d)(3)(i)(B), 

when a registrant files a proxy or 

information statement relating to an 

annual or special meeting of security 

holders at which directors are elected or 

written consents are provided in lieu of 

a meeting, a registrant’s audit committee 

must state whether it has discussed with 

the independent auditor the matters 

required by AU section 380, 

Communication with Audit Committees 

(‘‘AU sec. 380’’).100 AU sec. 380 was 

part of the interim standards previously 

adopted by the Public Company 

Accounting Oversight Board (‘‘PCAOB’’) 

on April 16, 2003.101 As noted in the 

Commission’s concept release on audit 

committee disclosures (the ‘‘Audit 

Committee Concept Release’’), the 

reference to AU sec. 380 is outdated, 

because it was superseded by PCAOB 

Auditing Standard No. 16, 

Communications with Audit 

Committees (‘‘AS 16’’).102 Furthermore, 

on March 31, 2015, the PCAOB formally 

reorganized its auditing standards 

resulting in the codification of AS 16 as 

Auditing Standard No. 1301, 

Communications with Audit 

Committees (‘‘AS 1301’’).103

Commenters on the Audit Committee 

Concept Release that addressed this 

issue generally supported updating the 

AU sec. 380 reference.104 Commenters 

differed on how best to update this 

reference, as AS 1301 is not the only 

requirement addressing 

communications between an auditor 

and the audit committee. Specifically, 

both the Commission and PCAOB have 

other rules and standards that require 

matters to be communicated to a 

company’s audit committee.105

Accordingly, several commenters 

suggested aligning the disclosure 

requirements with the communication 

requirements specific to the standards 

and rules of the PCAOB,106 while others 

suggested a more encompassing 

requirement that would refer to all audit 

committee communications with the 

independent auditors required by not 

only the PCAOB but also the 

Commission.107


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recommended updating Item 407(d) to refer to AS 

16. See Letter from Davis Polk 2. 

108 17 CFR 229.402(b). 

109See Item 402(l) of Regulation S–K. 

110 17 CFR 229.501. 

111FAST Act Report, supra note 2, at 

Recommendations E.1–5. 112At the time, the Commission noted that 

registrants were using words such as ‘‘nuclear,’’ 

‘‘missile,’’ ‘‘space,’’ ‘‘nucleonics,’’ and ‘‘electronics’’ 

in their names when they were not engaged in 

activity normally associated with those words, or 

were engaged to a limited extent. See Guide for 

Preparation and Filing of Registration Statements; 

Misleading Names of Registrants, Release No. 33– 

4959 (Apr. 16, 1969) [34 FR 6575 (Apr. 17, 1969)]. 

This policy was contained in Guide 53 of the 

Commission’s Guides for Preparation and Filing of 

Registration Statements before being moved into 

Item 501 in 1982. See Integrated Disclosure System 

Adopting Release, supra note 69; Rescission of 

Guides and Redesignation of Industry Guides, 

Release No. 33–6384 (Mar. 3, 1982) [47 FR 11476 

(Mar. 16, 1982)]. 

113 15 U.S.C. 77h. 

114 17 CFR 229.501(b)(3). Item 501(b)(3) also 

includes specific disclosure requirements for 

offerings being made on a minimum/maximum 

basis. 

115The instruction also provides that if the 

securities are to be offered at the market price, or 

if the offering price is to be determined by a formula 

relating to the market price, indicate the market and 

market price of the securities as of the latest 

practicable date. We are not proposing any change 

to this portion of the instruction. 

116See FAST Act Report, supra note 2, at 

Recommendation E.2. 

After consideration of the comments 

we have received and the 

recommendation of the staff in the 

FAST Act Report, we are proposing to 

update the reference to AU sec. 380 by 

referring more broadly to the applicable 

requirements of the PCAOB and the 

Commission. We believe such an 

approach would accommodate future 

changes to audit committee 

communication requirements. 

Request for Comment 

22. Should we amend Item 

407(d)(3)(i)(B) to refer to the ‘‘applicable 

requirements of the PCAOB and the 

Commission rules’’ as proposed? Is 

there a better reference or additional 

guidance that we should provide to 

facilitate audit committee compliance 

and investor understanding of this 

requirement? 

b. Compensation Committee Report 

(Item 407(e)(5)) 

Item 407(e)(5) requires a registrant’s 

compensation committee to state 

whether it has reviewed and discussed 

the Compensation Discussion and 

Analysis (‘‘CD&A’’) required by Item 

402(b).108 Based on this review and 

discussion, Item 407(e)(5) requires that 

the compensation committee state 

whether it recommended to the board of 

directors that the CD&A be included in 

the registrant’s annual report, proxy 

statement or information statement. As 

recommended by the staff, we are 

proposing to amend Item 407 to 

explicitly exclude EGCs from the Item 

407(e)(5) requirement, because they are 

not subject to a requirement to include 

a CD&A in their public disclosures.109

Specifically, we are proposing to add a 

reference to EGCs in Item 407(g) instead 

of amending Item 407(e)(5). Item 407(g) 

currently excludes SRCs from Item 

407(e)(5), among other provisions of 

Item 407. 

Request for Comment 

23. Instead of amending Item 407(g) as 

proposed, should we amend Item 

407(e)(5)? 

D. Registration Statement and 

Prospectus Provisions 

1. Outside Front Cover Page of the 

Prospectus (Item 501(b)) 

Item 501 110 includes disclosure 

requirements related to the forepart of 

the registration statement and the 

outside front cover page of the 

prospectus. In the FAST Act Report, the 

staff made several recommendations to 

streamline the requirements and to 

provide registrants with greater 

flexibility in designing a cover page 

tailored to their business and the 

particular offering.111 The proposed 

amendments discussed below would 

implement these recommendations. 

a. Name (Item 501(b)(1)) 

Item 501(b)(1) requires disclosure of a 

registrant’s name, including an English 

translation of the name of foreign 

registrants. The instruction to Item 

501(b)(1) states that if a registrant’s 

name is the same as that of a ‘‘well 

known’’ company, or if the name leads 

to a misleading inference about the 

registrant’s line of business, the 

registrant must include information to 

eliminate any possible confusion with 

the other company. If disclosure is 

insufficient to eliminate the confusion, 

the registrant may be required to change 

its name. An exception, however, is 

available when the registrant is an 

‘‘established company,’’ the character of 

the registrant’s business has changed, 

and the ‘‘investing public is generally 

aware of the change and the character of 

[the registrant’s] current business.’’ 

The policy reflected in Item 501(b)(1) 

with regards to misleading company 

names was first articulated in 1969 in 

response to an increase in the number 

of registrants using names that the staff 

considered to be misleading.112

Although we continue to believe that a 

registrant’s name could mislead 

investors, the staff’s experience 

administering this provision suggests 

that these situations can typically be 

addressed with clarifying disclosure. 

The Commission and the staff may be 

able to address situations in which the 

registrant’s name is either confusingly 

similar or misleading in connection 

with any public interest finding 

necessary to declare the filing 

effective.113 Accordingly, we are 

proposing to streamline the instruction 

to Item 501(b)(1) by eliminating the 

portion that discusses when a name 

change may be required and the 

exception to that requirement. 

Request for Comment 

24. Should we eliminate the language 

about a registrant’s being required to 

change its name in the instruction to 

Item 501(b)(1) as proposed, or should 

we retain the current version of the 

instruction? Are there situations where 

disclosure would not be sufficient to 

eliminate misleading inferences about 

the company or its line of business? 

b. Offering Price of the Securities (Item 

501(b)(3)) 

Item 501(b)(3) requires disclosure of 

the price of the securities being offered, 

the underwriter’s discounts and 

commissions, and the net proceeds that 

the registrant and any selling security 

holders will receive.114 The disclosure 

must be provided on an aggregate and 

per share basis, but registrants may 

present the required information in any 

format that fits the design of the cover 

page and is clear, easily read, and not 

misleading. 

Although in many cases the 

disclosure required by Item 501(b)(3) 

will be straightforward, Instruction 2 

states that ‘‘[i]f it is impracticable to 

state the price to the public, explain the 

method by which the price is to be 

determined.’’ 115 In the FAST Act 

Report, the staff recommended 

providing registrants with greater 

flexibility in explaining the method by 

which the price is to be determined 

when it is impracticable to state the 

price on the cover page.116

We are proposing to amend 

Instruction 2 to explicitly allow 

registrants to include a clear statement 

that the offering price will be 

determined by a particular method or 

formula that is more fully explained in 

the prospectus. Under the proposed 

instruction, registrants would be 

required to accompany that statement 

with a cross-reference to the offering 

price method or formula disclosure, 

including a page number that is 


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117This cross-reference would be similar to the 

cross-reference that is required for risk factor 

disclosure pursuant to Item 501(b)(5) of Regulation 

S–K [17 CFR 229.501(b)(5)]. In the FAST Act 

Report, the staff recommended the Commission 

consider amending Instruction 2 to Item 501(b)(3) 

to require the cross-reference to the offering price 

method or formula to be accompanied by a 

hyperlink. Because the cross-reference to risk 

factors required under Item 501(b)(5) does not 

currently require a hyperlink, we are not proposing 

to require a hyperlink for the disclosure called for 

by Item 501(b)(3). 

118See Section 6 of the Securities Exchange Act 

of 1934 [15 U.S.C. 78f]. 

119See FAST Act Report, supra note 2, at 

Recommendation E.3. 

120Our proposed changes to Item 501(b)(4) align 

with our proposals to amend Item 201(a) [17 CFR 

229.201(a)] in the Disclosure Update and 

Simplification Proposing Release. See Disclosure 

Update and Simplification Proposing Release supra 

note 13, at 51688. 

121See FAST Act Report, supra note 2, at 

Recommendation E.3. 

122 Item 201(a) of Regulation S–K. 

123See Amendment of Rules 134 and 433, Release 

No. 33–3885 (Jan. 7, 1958) [23 FR 184 (Jan. 10, 

1958)]. This requirement was originally in Rule 433, 

a predecessor to the current requirement. 

124Public Law No. 104–290, 110 Stat. 3416 

(1996). 

125See FAST Act Report, supra note 2, at 

Recommendation E.4. 

126See id., at Recommendation E.5. 

127 17 CFR 230.430A. 

highlighted by prominent type or in 

another manner.117

Request for Comment 

25. As proposed, Item 501(b)(3) would 

allow registrants to choose to include a 

cross-reference to the explanation of the 

method in which the offering price will 

be determined when it is impracticable 

to state the price method or formula to 

the public on the cover page. Should we 

instead retain the requirement to 

present the explanation on the 

prospectus cover page? Why or why 

not? 

26. Should we amend Instruction 2 to 

Item 501(b)(3) to require the crossreference to be accompanied by a 

hyperlink? Item 501(b)(5) currently 

requires on the prospectus cover page a 

cross-reference to the risk factors 

section. Should we similarly amend 

Item 501(b)(5) to also require a 

hyperlink? 

c. Market for the Securities (Item 

501(b)(4)) 

Item 501(b)(4) requires a registrant to 

name the national securities exchanges 

that list the securities being offered and 

to disclose the trading symbols for those 

securities. A ‘‘national securities 

exchange’’ is a securities exchange that 

has registered with the Commission 

under Section 6 of the Exchange Act.118

Under Item 501(b)(4), registrants are not 

required to name markets that are not a 

‘‘national securities exchange.’’ 

Consistent with the staff’s 

recommendation in the FAST Act 

Report,119 we believe that information 

about markets that are not a ‘‘national 

securities exchange’’ could be important 

to investors and should be disclosed on 

the prospectus cover page. Accordingly, 

we are proposing to amend Item 

501(b)(4) to require disclosure of the 

principal United States market or 

markets for the securities being offered 

and the corresponding trading 

symbols.120

Also consistent with the staff’s 

recommendation,121 we are limiting 

disclosure of markets that are not 

national securities exchanges to those 

principal United States markets where 

the registrant, through the engagement 

of a registered broker-dealer, has 

actively sought and achieved quotation. 

We agree with the staff that a registrant 

cannot always control whether its 

securities are quoted on an over-thecounter market and should not be 

burdened with making that 

determination. 

Request for Comment 

27. Should we expand the disclosure 

required by Item 501(b)(4) to include 

markets other than national securities 

exchanges as proposed? Would 

expanding the disclosure requirement 

make it difficult for registrants to 

determine which United States markets 

to disclose? 

28. Should we limit the disclosure 

requirement to those principal United 

States markets where the registrant has 

actively sought and achieved quotation 

through the engagement of a registered 

broker-dealer as proposed? Should there 

be any other limitations on the markets 

the registrant would be required to 

disclose? 

29. Should a domestic or foreign 

registrant be required to identify 

principal foreign markets where the 

registrant, through the engagement of a 

registered broker-dealer, has actively 

sought and achieved quotation for the 

class of security being offered? 

30. If a registrant discloses another 

trading market elsewhere in its 

registration statement, should Item 

501(b)(4) require disclosure of that 

market on the cover page, even if it is 

not a national securities exchange and 

even if the registrant did not actively 

seek quotation through the engagement 

of a registered broker-dealer? For 

example, Item 201(a) of Regulation 

S–K 122 requires disclosure of the 

principal United States market or 

markets in which each class of the 

registrant’s common equity is traded. 

31. Should we provide additional 

guidance on when a market other than 

a national securities exchange must be 

disclosed or when a registrant would be 

considered to have actively sought 

quotation through the engagement of a 

registered broker-dealer? 

d. Prospectus ‘‘Subject to Completion’’ 

Legend (Item 501(b)(10)) 

Item 501(b)(10) requires a registrant 

that is using a preliminary prospectus to 

include a legend advising readers that 

the information will be amended or 

completed. The legend also must 

include a statement that the prospectus 

is not an offer to sell or a solicitation of 

an offer to buy securities in any state 

where the offer or sale is not permitted. 

The latter statement was introduced in 

1958 to harmonize the legend with what 

was required by state securities 

administrators at the time.123

The legend requirement has remained 

mostly unchanged since 1958, even after 

the National Securities Markets 

Improvement Act (‘‘NSMIA’’) allowed 

for preemption of state blue sky laws in 

many offerings.124 Consistent with the 

staff’s recommendations in the FAST 

Act Report,125 we are proposing to 

amend Item 501(b)(10) to permit 

registrants to exclude from the 

prospectus the portion of the legend 

relating to state law for offerings that are 

not prohibited by state blue sky law. 

This change would allow for a more 

tailored prospectus cover page in 

recognition of the changes to securities 

law brought by NSMIA. 

Also consistent with the staff’s 

recommendations,126 we are proposing 

to streamline Item 501(b) by combining 

paragraphs (b)(10) and (11) without 

substantive change. Thus, our proposed 

amendments to paragraph (b)(10) would 

also require the ‘‘subject to completion’’ 

legend to be included if a registrant 

relies on Rule 430A 127 to omit pricing 

information and the prospectus is used 

after the effectiveness of the registration 

statement but before the public offering 

price is determined. Correspondingly, 

we are proposing to delete paragraph 

(b)(11). 

Request for Comment 

32. Should we allow registrants the 

discretion to exclude the portion of the 

legend required by Item 501(b)(10) that 

relates to state law prohibitions on 

offers or sales when it would not apply, 

as proposed? 

2. Risk Factors (Item 503(c)) 

Item 503(c) requires disclosure of the 

most significant factors that make the 


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128 17 CFR 229.503(c). 

129These factors were derived from previous stop 

order proceedings under Section 8(d) of the 

Securities Act where the Commission suspended 

the effectiveness of previously filed registration 

statements due, in part, to inadequate disclosure 

about speculative aspects of the registrant’s 

business. See Guides for Preparation and Filing of 

Registration Statements, Release No. 33–4936 (Dec. 

9, 1968) [33 FR 18617 (Dec. 17, 1968)] (citing In the 

Matter of Doman Helicopters, Inc., 41 S.E.C. 431 

(Mar. 27, 1963); In the Matter of Universal Camera 

Corp., 19 S.E.C. 648 (June 28, 1945)). 

130See Guides for Preparation and Filing of 

Registration Statements, Release No. 33–4666 (Feb. 

7, 1964) [29 FR 2490 (Feb. 15, 1964)] and Guides 

for Preparation and Filing of Registration 

Statements, Release No. 33–4936 (Dec. 9, 1968) [33 

FR 18617 (Dec. 17, 1968)]. 

131See Integrated Disclosure System Adopting 

Release, supra note 69. 

132See Securities Offering Reform, Release No. 

33–8591 (July 19, 2005) [70 FR 44722 (Aug. 3, 

2005)] (‘‘Securities Offering Reform Adopting 

Release’’). 

133 17 CFR 249.210. 

134See FAST Act Report, supra note 2, at 

Recommendation E.6. Additionally, the proposed 

amendments would use the term ‘‘registrant’’ 

instead of ‘‘issuer.’’ Use of and reference to 

‘‘registrant’’ instead of ‘‘issuer’’ is intended to better 

reflect the application of risk factor disclosure 

outside of the offering context. The term 

‘‘registrant’’ is defined under both the Exchange Act 

and Securities Act. See Rule 12b–2 [17 CFR 

240.12b–2] and Rule 405 [17 CFR 230.405]. 

135See proposed Item 105. Consistent with this 

change, we are also proposing amendments to 

several Commission forms that require risk factor 

disclosure and reference Item 503(c). These 

proposed amendments would revise references to 

Item 503 to specify new Item 105. A number of 

forms that require risk factor disclosure do not 

reference Item 503(c). Our proposed amendments 

do not include revisions to these forms. For 

example, Forms 10–Q and 20–F require risk factor 

disclosure but do not reference Item 503(c). 

136See, e.g., Letters from Center for Audit Quality 

(July 21, 2016) (‘‘CAQ’’); California Public 

Employees’ Retirement System (July 21, 2016) 

(‘‘CalPERS’’); PricewaterhouseCoopers LLP (July 21, 

2016) (‘‘PWC’’); Edison Electric Institute and 

American Gas Association (July 21, 2016) (‘‘Edison 

Electric and AGA’’); Investment Program 

Association; Davis Polk 1; National Investor 

Relations Institute (Aug. 4, 2016) (‘‘NIRI’’); 

Shearman & Sterling (Aug. 31, 2016) (‘‘Shearman 

2’’); NYSSCPA. 

137See, e.g., Letters from Edison Electric and 

AGA; Investment Program Association; Davis Polk 

1; NIRI; and Shearman 2. 

138See Letter from Investment Program 

Association. 

139See Letters from CAQ and PWC. 

140See Letters from CalPERS and NYSSCPA. 

141See Letter from CalPERS (referring to several 

sets of guidelines such as the Principles for 

Responsible Investment and those issued by the 

International Corporate Governance Network, 

among others). 

142See Letters from Chris Barnard (June 23, 2016) 

(‘‘Barnard’’); Fenwick; and SIFMA (stating that the 

five examples are not ‘‘cutting edge’’ and ‘‘could be 

eliminated,’’ but that most registrants recognize that 

Item 503(c) is focused on principles-based 

disclosure of the most significant factors that make 

the offering speculative or risky). 

143See Letter from Barnard. 

144See Letter from Fenwick. 

145See infra note 349 and accompanying text. 

offering speculative or risky.128 The 

item specifies that the discussion 

should be concise and organized 

logically. Although the requirement is 

principles-based, it includes the 

following specific examples as factors 

that may make an offering speculative or 

risky: 

• A registrant’s lack of an operating 

history, 

• a registrant’s lack of profitable 

operations in recent periods, 

• a registrant’s financial position, 

• a registrant’s business or proposed 

business, or 

• the lack of a market for a registrant’s 

common equity securities or securities 

convertible into or exercisable for 

common equity securities.129

The item directs registrants to explain 

how each risk affects the issuer or the 

securities being offered. Additionally, 

the item discourages disclosure of risks 

that could apply to any issuer or 

offering. 

Risk factor disclosure was initially 

called for only in the offering context.130

Accordingly, when Item 503(c) was 

adopted in 1982 as part of the integrated 

disclosure system, it was included with 

other offering-related disclosure 

requirements in Subpart 500 of 

Regulation S-K.131 In 2005, risk factor 

disclosure requirements were extended 

to periodic reports and registration 

statements on Form 10.132

As recommended by the staff in the 

FAST Act Report, we are proposing to 

relocate Item 503(c) from Subpart 500 to 

Subpart 100 to reflect the application of 

risk factor disclosure requirements to 

registration statements on Form 10 133

and periodic reports.134 Subpart 100 

covers a broad category of business 

information and is not limited to 

offering-related disclosure. Accordingly, 

our proposed amendments would move 

Item 503(c)’s requirement for risk factor 

disclosure to new Item 105.135

Additionally, our proposed 

amendments would eliminate the risk 

factor examples that are currently 

enumerated in Item 503(c). Although 

not addressed in the FAST Act Report, 

we solicited comment in the Concept 

Release on whether we should retain or 

eliminate the examples and whether we 

should revise our requirements to 

include additional or different 

examples. 

A number of commenters 

recommended retaining and revising the 

examples in Item 503(c).136 Several of 

these commenters supported a revision 

to specify examples of risk factors that 

are generic and therefore should not be 

disclosed.137 For example, one of these 

commenters recommended that the 

Commission prohibit disclosure of 

generalized risks that affect all 

registrants or all registrants in a 

particular industry, the risk of stock 

volatility, organizational structure risks, 

and summaries of applicable 

regulation.138 Two commenters 

recommended revising the examples to 

include risk factors applicable to wellestablished Exchange Act registrants,139

while another two supported expanding 

the list of examples.140 One of the 

commenters that recommended 

expanding the list of examples pointed 

to guidelines produced by the investor 

community as a source of additional 

examples.141

A few commenters recommended 

eliminating the examples in Item 

503(c).142 One of these commenters 

supported eliminating the examples so 

as to emphasize the principles-based 

nature of the disclosure requirement 

and to focus registrants on their own 

risk identification process.143 Another 

of these commenters expressed a view 

that the examples were outdated and 

only helpful when the requirement to 

disclose risk factors was first 

introduced.144

As part of our mandate under the 

FAST Act to modernize and simplify 

our disclosure requirements while still 

providing all material information, we 

are proposing to eliminate these 

examples. These examples may not 

apply to all registrants and may not 

correspond to the material risks of any 

particular registrant. In addition, the 

inclusion of these examples could 

suggest that a registrant must address 

each one in its risk factor disclosures, 

regardless of the significance to its 

business. Finally, several commenters 

suggested expanding the list of 

examples or revising them to specify 

examples of generic risks that should 

not be disclosed. We are concerned that 

inclusion of examples could anchor or 

skew the registrant’s risk analysis in the 

direction of the examples.145 We believe 

that eliminating the examples would 

encourage registrants to focus on their 

own risk identification processes. 

Request for Comment 

33. Should we move the requirement 

to provide risk factor disclosure in Item 

503(c) to a new Item 105 as proposed? 

Why or why not? 

34. Should we relocate Item 503(c)’s 

requirements to another subsection of 

Regulation S–K? If so, which subsection 

and why? 

35. Should we eliminate the risk 

factor examples as proposed, or do they 

provide useful guidance to registrants? 

Instead of eliminating the examples, 

should we provide different or 


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146 17 CFR 229.508. 

147 17 CFR 230.405. 

148See FAST Act Report, supra note 2, at 

Recommendation E.7. 

149 17 CFR 230.405. 

150The only other use of the term ‘‘subunderwriter’’ or ‘‘subunderwriter’’ in Regulation S– 

K, the Securities Act rules, or the Exchange Act 

rules is in Rule 491 [17 CFR 230.491]. We are 

proposing to amend Rule 491 to reference ‘‘subunderwriter,’’ consistent with our proposed 

amendments here. The proposed definition of subunderwriter would not change the meaning of that 

term in Rule 491 and appears to be consistent with 

its use in that context. 

151 17 CFR 229.512. 

152 17 CFR 229.512(c). The Item 512(c) 

undertaking was included in the Securities Act 

forms and guides, prior to the enactment of the 

integrated disclosure system in 1982. See, e.g., 

Notice of Proposed Revision of Form S-4, Release 

No. 33–3667 (July 31, 1956) [21 FR 6025 (Aug. 11, 

1956)] and Notice of Proposed Form S–11 for 

Registration of Securities of Certain Real Estate 

Companies, Release No. 33–4347 (Apr. 10, 1961) 

[26 FR 3280 (Apr. 18, 1961)]. 

153 17 CFR 229.512(a)(1). 

154See FAST Act Report, supra note 2, at 

Recommendation E.9. 

155 17 CFR 229.512(d). 

156See Notice of Proposal to Adopt Rule 415 

Relating to Competitive Bidding Registration 

Statements, to Amend Rules 424, 455, 471 and 472 

and to Rescind Rule 460, Release No. 33–3491–Z 

(Nov. 10, 1953) [18 FR 7300 (Nov. 18, 1953)]; 

Adoption of Rule 415 Relating to Competitive 

Bidding Registration Statements, Amendment of 

Rules 424, 427, 455, 471 and 472 and Rescission 

of Rule 460, Release No. 33–3494 (Jan. 13, 1954) [19 

FR 399 (Jan. 22, 1954)]; and Phase One 

Recommendations of Task Force on Disclosure 

Simplification, Release No. 33–7300 (May 31, 1996) 

[61 FR 30397 (June 14, 1996)] (‘‘1996 Disclosure 

Simplification Recommendations’’). 

157See 1996 Disclosure Simplification 

Recommendations (citing Public Utility Holding 

Company Act Rules, Release No. 35–26031 (Apr. 

20, 1994) [59 FR 21922 (Apr. 28, 1994)]). 

158See Energy Policy Act of 2005, Public Law No. 

109–58, 119 Stat. 594 (2005). 

159 17 CFR 230.430A. 

160We understand that registration statements 

filed in connection with securities to be offered 

through competitive bidding are rarely used. See 

Louis Loss, Joel Seligman, & Troy Paredes, 

Securities Regulation (5th ed. 2016) (‘‘Loss et al.’’) 

§ 2.A.4. Competitive Bidding. According to Loss et 

al., competitive bidding is now used by 

‘‘municipalities and public instrumentalities.’’ Rule 

430A provides that information omitted in reliance 

on that rule is deemed part of the registration 

statement as of the time it was declared effective, 

thus subjecting those disclosures to liability under 

Section 11 of the Securities Act. 

161 17 CFR 240.14a–4. 

162 17 CFR 240.14c–3. 

additional examples that would be more 

helpful to registrants? If so, what 

examples would be most helpful? 

3. Plan of Distribution (Item 508) 

Item 508 requires disclosure about the 

plan of distribution for securities in an 

offering, including information about 

underwriters.146 Paragraph (a) requires 

disclosure about the principal 

underwriters and underwriters that have 

a material relationship with the 

registrant, while paragraph (h) requires 

disclosure of the discounts and 

commissions to be allowed or paid to 

dealers. If a dealer is paid any 

additional discounts or commissions for 

acting as a ‘‘sub-underwriter,’’ 

paragraph (h) allows the registrant to 

include a general statement to that effect 

without giving the additional amounts 

to be sold. 

‘‘Sub-underwriter’’ is not a defined 

term, and its application may be 

unclear. ‘‘Principal underwriter,’’ 

however, is defined in Regulation C as 

‘‘an underwriter in privity of contract 

with the issuer of the securities as to 

which he is an underwriter.’’ 147

Consistent with the staff’s 

recommendation in the FAST Act 

Report,148 and in light of the definition 

of ‘‘principal underwriter’’ and the 

disclosure required by Item 508(a), we 

are proposing to amend Rule 405 149 to 

define the term ‘‘sub-underwriter’’ as a 

dealer that is participating as an 

underwriter in an offering by 

committing to purchase securities from 

a principal underwriter for the 

securities but is not itself in privity of 

contract with the issuer of the 

securities.150

Request for Comment 

36. Should we amend Rule 405 to 

define ‘‘sub-underwriter’’ as proposed? 

Should we define the term differently? 

For example, is the concept of ‘‘privity 

of contract’’ sufficiently clear? 

4. Undertakings (Item 512) 

Item 512 151 provides undertakings 

that a registrant must include in Part II 

of its registration statement, depending 

on the type of offering. In the FAST Act 

Report, the staff recommended that the 

Commission consider eliminating 

undertakings that are duplicative of 

other rules or that have become 

unnecessary due to developments since 

their adoption. We are proposing the 

following amendments to implement 

the staff’s recommendations. 

Item 512(c) sets forth undertakings 

that a registrant must include if it 

registers a warrant or rights offering to 

existing security holders and the 

securities not purchased by those 

security holders will be reoffered to the 

public.152 The undertaking requires a 

registrant, after the expiration of the 

subscription period, to supplement the 

prospectus to disclose the results of the 

subscription offer and the terms of any 

subsequent reoffer to the public. If any 

public reoffer is made on terms different 

from the offer to existing security 

holders, then the registrant must 

undertake to file a post-effective 

amendment to disclose the terms of that 

offering. We are proposing to eliminate 

this undertaking because it is no longer 

necessary. A registrant conducting the 

type of offering described in Item 512(c) 

would already have been required to 

register and disclose the offering to 

existing security holders as well as the 

reoffering to the public. Furthermore, 

Item 512(a)(1) requires registrants to 

undertake to file a post-effective 

amendment to disclose fundamental 

changes in the information set forth in 

the registration statement and material 

information with respect to the plan of 

distribution or changes in the plan of 

distribution.153 Thus, disclosure of 

material changes in the terms of the 

reoffering would also be required as part 

of the Item 512(a)(1) undertaking, thus 

obviating the need for the Item 512(c) 

undertaking. 

Consistent with the recommendations 

made in the FAST Act Report, we are 

also proposing to eliminate the Item 

512(d), Item 512(e), and Item 512(f) 

undertakings, because they are 

obsolete.154 Item 512(d) requires a 

registrant to include undertakings if the 

securities it registers are to be offered at 

competitive bidding.155 The 

undertaking requires a registrant to use 

its best efforts to distribute a Section 

10(a) prospectus to prospective bidders, 

underwriters, and dealers and to file a 

post-effective amendment reflecting the 

results of the bidding and any related 

terms. This undertaking arises from 

former Rule 50 under the Public Utility 

Holding Company Act of 1935 

(‘‘PUHCA’’), which formerly required 

public utility company securities to be 

sold through competitive bids.156 We 

propose eliminating this undertaking 

because the Commission rescinded Rule 

50 in 1994,157 and because Congress 

repealed PUHCA in 2005.158

Furthermore, this undertaking was put 

into place prior to the adoption of Rule 

430A, which permits the omission of 

pricing and underwriter related terms 

from the effective registration statement 

if the issuer includes that information in 

a prospectus or post-effective 

amendment after the effective date.159

To the extent that competitive bidding 

is still used, registrants may file 

prospectuses that contain the pricing 

and underwriter disclosure pursuant to 

Rule 430A and those documents will be 

subject to the liability imposed by that 

rule.160

Item 512(e) provides that, if a 

registrant’s prospectus directly 

incorporates by reference the registrant’s 

annual report to security holders 

meeting the requirements of Rule 14a– 

4 161 or Rule 14c–3,162 the registrant 

must undertake to deliver the latest 


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163 17 CFR 229.512(e). 

164See Proposed Comprehensive Revision to 

System for Registration of Securities Offerings, 

Release No. 33–6235 (Sept. 2, 1980) [45 FR 63693 

(Sept. 25, 1980)]. 

165See Securities Offering Reform Adopting 

Release, supra note 132. 

166See id. 

167 17 CFR 229.512(f). 

168See Hot Issues, Release No. 33–5274 (July 26, 

1972) [37 FR 16005 (Aug. 9, 1972)] (‘‘Hot Issues 

Release’’); Notice of Adoption of Amendments to 

Registration Forms S–1 and S–2 under the 

Securities Act of 1933 and to Forms 10, 10–K and 

10–Q and Rules 13a–13 and 15d–13 under the 

Securities Exchange Act of 1934, Release No. 33– 

5395 (June 1, 1973) [38 FR 17202 (June 29, 1973)]. 

In 1972, the Commission conducted public hearings 

on the matter of hot issues securities markets, 

which revealed that ‘‘one of the imperfections 

affecting aftermarket trading in new issues is the 

occasional failure of issuers to furnish securities in 

such denominations and registered in such manner 

as to permit adequate and prompt delivery to each 

purchaser. Accordingly, one of the proposals is that 

non-reporting registrants formally undertake in 

registration statements filed on Forms S–1 and S– 

2 that they will deliver the certificates to the 

underwriter at the closing for prompt delivery to 

customers.’’ See Hot Issues Release, supra at 16007. 

169See Loss et al. § 7.E.2. Current Law (‘‘Virtually 

all equities securities trades in the United States are 

cleared and settled through the National Securities 

Clearing Corporation (NSCC) and the Depository 

Trust Company (DTC), clearing agency subsidiaries 

of the Depository Trust and Clearing Corporation 

(DTCC).’’); Depository Trust & Clearing Corporation, 

FAQs: How Issuers Work With DTC available at 

http://www.dtcc.com/matching-settlement-andasset-services/issuer-services/how-issuers-workwith-dtc (last visited Feb. 22, 2017) (‘‘DTC provides 

(i) settlement services for virtually all equity, 

corporate and municipal debt trades and Money 

Market Instruments in the U.S.’’). 

170 Items 202(a)–(d) and (f) [17 CFR 229.202(a)– 

(d) and (f)]. Item 202(e), ‘‘Market information for 

securities other than common equity,’’ is outside 

the scope of this release; it requires that if securities 

other than common stock are to be registered and 

there is an established trading market for such 

securities, registrants are required to provide market 

information for such securities comparable to that 

required by Item 201(a) of Regulation S–K. 

171 Item 202 disclosure is often incorporated by 

reference into a registration statement on Form 8– 

A from a prior registration statement on Form S– 

1. See Concept Release, supra note 6, at Section 

IV.D.2. Registrants are not currently required to 

include Item 202 disclosure as an exhibit to any 

filings with the Commission. 

172 17 CFR 249.308a. 

Registrants are required to file complete copies of 

their articles and bylaws as exhibits to Form 10–K, 

but they are not required to provide the 

descriptions called for by Item 202. See Item 

601(b)(3) [17 CFR 229.601(b)(3)]. Also, under 

Accounting Standards Codification (‘‘ASC’’) Topic 

505–10–50–3, registrants are required to summarize 

the ‘‘pertinent rights and privileges of the various 

securities outstanding’’ in the notes to their 

financial statements. ASC Topic 470–10–50–5 

requires the same information for debt securities. 

While the date of sale is not required, registrants 

usually include it in their discussions of the rights 

and privileges of securities sold. 

173See FAST Act Report, supra note 2, at 

Recommendation F.1. 

174 17 CFR 229.601(b)(4). 

175To the extent that a registrant has previously 

filed an exhibit containing Item 202 disclosure, it 

could incorporate that exhibit by reference and 

hyperlink to the previously-filed exhibit in future 

Form 10–K filings, assuming that the information 

contained therein remains unchanged. See Exhibit 

Hyperlinks Adopting Release supra note 15. 

176The proposed amendment includes an 

instruction requiring disclosure for those classes of 

a registrant’s securities that have not been retired 

by the end of the period covered by the report. We 

are also proposing to amend Item 202 to specify that 

Section 305(a)(2) of the Trust Indenture Act of 1939, 

15 U.S.C. 77aa et seq., as amended, would not affect 

a registrant’s disclosure obligations under proposed 

Item 601(b)(4)(vi). 

177 Item 3.03 of Form 8–K requires disclosure of 

material modifications to rights of security holders 

while Item 5.03 requires disclosure of amendments 

to the articles of incorporation or bylaws for 

amendments not disclosed in a proxy or 

information statement. Item 5.03 of Form 8–K also 

requires disclosure of changes in fiscal year other 

than by means of a submission to a vote of security 

holders through the solicitation of proxies (or 

otherwise) or an amendment to the articles of 

incorporation or bylaws [17 CFR 249.308]. 

Continued 

annual report with the prospectus.163 If 

interim information is required but is 

not included in the prospectus, the 

registrant must undertake to deliver the 

latest quarterly report that is 

incorporated by reference in the 

prospectus. The purpose of this 

undertaking is to ensure that the 

registrant delivers incorporated annual 

and quarterly reports with the 

prospectus, as required by former Form 

S-2.164 The disclosure and delivery 

requirements of former Form S–2 were 

intended to minimize duplicative 

reporting while still requiring delivery 

of incorporated information.165 The 

Commission rescinded Form S–2 as part 

of Securities Offering Reform, since its 

underlying purpose was outdated 

because of EDGAR, other technological 

developments, and the rapid 

dissemination of information in the 

market.166 Similarly, we are now 

proposing to eliminate the related 

undertaking, since any material 

information in a registrant’s annual or 

quarterly reports to security holders 

should be publicly available. 

Finally, the undertaking in Item 512(f) 

applies to registrants that prior to the 

offering had no obligation to file reports 

with the Commission pursuant to 

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

Act.167 If such a registrant conducts an 

underwritten equity offering, it must 

undertake to provide the securities 

certificates required by the underwriter 

at closing to permit prompt delivery to 

each purchaser. The purpose of this 

undertaking is to ensure that the 

registrant delivers sufficient certificates 

to the underwriter at closing to permit 

aftermarket trading in new issues.168 We 

are proposing to eliminate this 

undertaking because the need to deliver 

certificates to underwriters has 

decreased dramatically since this 

undertaking was adopted in the early 

1970s. Today, equity securities trades in 

the United States are typically cleared 

and settled using the depository and 

book-entry services of the Depository 

Trust and Clearing Corporation’s 

clearing agency subsidiaries.169

Request for Comment 

37. Should we retain or modify any of 

the undertakings that we have proposed 

eliminating? If so, please explain why. 

38. In what instances are physical 

securities certificates still delivered 

today? Should we retain the 

undertaking for those situations? 

39. Are there other undertakings that 

we have not addressed in this release 

that are duplicative, no longer necessary 

or that should be eliminated for other 

reasons? 

40. Are there undertakings we should 

consider requiring to modernize and 

address developments for novel 

securities offerings? 

E. Exhibits 

1. Description of Registrant’s Securities 

(Item 601(b)(4)) 

Item 202 requires registrants to 

provide a brief description of their 

registered capital stock, debt securities, 

warrants, rights, American Depositary 

Receipts, and other securities.170

Registrants provide Item 202 disclosure 

about registered securities in their 

registration statements 171 but are not 

required to provide this disclosure in 

their Form 10–K or Form 10–Q.172

Consistent with the staff’s 

recommendation in the FAST Act 

Report,173 we are proposing to amend 

Item 601(b)(4) 174 to require registrants 

to provide the information required by 

Item 202(a)–(d) and (f) as an exhibit to 

Form 10–K, rather than limiting this 

disclosure to registration statements.175

Proposed Item 601(b)(4)(vi) would 

require Item 202 disclosure only for 

securities that are registered under 

Section 12 of the Exchange Act.176

Because Item 202(e) requires Item 201(a) 

market information for securities other 

than common equity where there is an 

established trading market for those 

securities, proposed Item 601(b)(4)(vi) 

does not include Item 202(e). The 

proposed requirement is intended to 

increase investors’ ease of access to 

information about the rights and 

obligations of each class of securities 

registered. 

The proposed amendments would not 

change existing disclosure obligations 

under Form 8–K and Schedule 14A, 

which currently require registrants to 

disclose certain modifications to the 

rights of their security holders and 

amendments to their articles of 

incorporation or bylaws.177 As 


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Item 12 of Schedule 14A requires disclosure if 

action is to be taken regarding the modification of 

any class of securities of the registrant, or the 

issuance or authorization for issuance of securities 

of the registrant in exchange for outstanding 

securities. Section (b) of Item 12 requires disclosure 

of any material differences between the outstanding 

securities and the modified or new securities in 

respect of any of the matters concerning which 

information would be required in the description of 

the securities in Item 202 of Regulation S–K. Item 

19 of Schedule 14A requires disclosure of 

amendments to the registrant’s charter, bylaws, or 

other documents. 

178Over the course of a given fiscal year, it is 

possible that a registrant may make various nonmaterial changes to the rights and privileges of its 

securities that do not require separate disclosure on 

Form 8–K. However, if any changes are made, 

whether material or non-material, the proposed 

amendments would require a registrant to update 

the description of securities in the exhibit filed with 

its Form 10–K. 

179See Item 601(b)(3) of Regulation S–K [17 CFR 

229.601(b)(3)]. The proposal would amend Item 

601(b)(4) instead of Item 601(b)(3) because (b)(4) is 

consistent with Item 202’s requirement to provide 

a description of capital stock that is registered while 

(b)(3) is specific to the articles of incorporation and 

bylaws. 

180See, e.g., Letters from Fenwick; CGCIV; 

Chamber 2; and FedEx. See also Davis Polk 1. 

181See Letters from CAQ and KPMG LLP (July 21, 

2016) (‘‘KPMG’’). Both commenters referenced Item 

202 in the context of broader recommendations to 

the Commission to work with the FASB and the 

PCAOB to eliminate redundancies. 

182See supra notes 172 and 181 and 

accompanying text. 

183 Item 601 of Regulation S–K [17 CFR 229.601]. 

184 17 CFR 230.406. 

185 17 CFR 240.24b–2. 

186 17 CFR 229.601(b)(2). 187Certain domestic forms include their exhibits 

requirements in the form and/or do not separately 

reference Item 601 of Regulation S–K (e.g., 

Schedule 13E–3 and Schedule 13D). As such, we 

are considering whether the rationale for the 

proposed amendments to Item 601 of Regulation S– 

K is also applicable to the exhibit requirements in 

these forms. For example, Schedule 13E–3 and 

Schedule 13D require registrants to file as exhibits 

certain material agreements that may be deemed 

analogous to the exhibits required under Item 601 

of Regulation S–K. We are requesting further 

comment to assist in our evaluation of this issue. 

188See FAST Act Report, supra note 2, at 

Recommendation F.2 (recommending only that the 

Commission permit registrants to omit attachments 

and schedules filed with exhibits unless they 

contain information that is material to an 

investment decision that has not been otherwise 

disclosed). 

proposed, any modifications and 

amendments during a fiscal year would 

now also be reflected in the Item 202 

disclosure provided in an exhibit to the 

registrant’s next annual report.178 The 

proposed amendments would be in 

addition to the current requirement to 

file a complete copy of the amended 

articles of incorporation or bylaws 

under Item 601(b)(3).179

We recognize that some commenters 

opposed requiring Item 202 disclosure 

in periodic reports, stating that this 

information can easily be found in 

registration statements,180 while other 

commenters noted that the information 

overlaps with disclosure required under 

U.S. GAAP.181 Requiring Item 202 

disclosure as an exhibit to annual 

reports could improve the ability of 

investors to gain access to information 

about their rights as security holders. 

The proposed Item 601(b)(4)(vi) would 

allow investors to easily locate an 

updated description of their rights as 

security holders in the most recent 

annual report rather than require 

investors to search through prior filings 

to find this disclosure. Where a 

registrant has previously filed the Item 

202 information as an exhibit, and so 

long as there has not been any change 

to the information called for by Item 

202, the registrant may incorporate the 

information by reference and provide a 

hyperlink to the previously filed 

exhibit. Therefore, we believe that any 

additional compliance cost associated 

with the proposed amendment should 

not be unduly burdensome. 

Request for Comment 

41. Should the proposed amendments 

include a requirement to file Item 202 

disclosure for each class of securities 

registered under Section 12 of the 

Exchange Act as an exhibit to the 

annual report? Why or why not? Should 

registrants also be required to include 

descriptions of securities that are not 

registered under Section 12 of the 

Exchange Act? For example, should 

issuers reporting only under Section 

15(d) of the Exchange Act (e.g., assetbacked issuers) be required to file Item 

202 disclosure as a Form 10–K exhibit? 

42. Do the requirements for Item 202, 

and our proposal to require that the Item 

202 information be provided as an 

exhibit to the annual report, provide 

sufficient disclosure about debt 

securities or other classes of stock with 

different or preferential voting rights? 

43. Would the new requirements 

result in significantly higher compliance 

costs? Would the new requirements 

provide benefits to investors and 

facilitate informed investment 

decisions? Would the proposed 

amendments require disclosure that is 

adequately provided elsewhere in the 

annual report or on EDGAR? 182

44. Would compliance with the 

proposed amendment be problematic for 

issuers with multiples classes of 

registered securities (e.g., well-known 

seasoned issuers or asset-backed 

issuers)? If so, how should we revise the 

proposed amendments to avoid 

unnecessary burdens that may be 

imposed on these issuers? 

2. Information Omitted From Exhibits 

(Item 601) 

Item 601 of Regulation S–K generally 

requires registrants to file complete 

copies of exhibits.183 Securities Act 

Rule 406 184 and Exchange Act Rule 

24b–2 185 permit registrants to request 

confidential treatment of information 

included in an exhibit to a filing or any 

other document required to be filed 

under either the Securities Act or the 

Exchange Act. Item 601(b)(2) states that 

registrants shall not file schedules or 

similar attachments to material plans of 

acquisition, reorganization, 

arrangement, liquidation, or succession 

unless they contain information 

material to an investment decision and 

unless that information is not otherwise 

disclosed in the agreement or the 

disclosure document.186 The 

Commission staff generally has not 

objected where a registrant omits 

personally identifiable information from 

exhibits without submitting a 

confidential treatment request. 

To modernize and simplify the 

disclosure requirements under Item 601, 

we are proposing to add new paragraphs 

(a)(5) and (a)(6) to expand the existing 

accommodation in Item 601(b)(2) to 

include all exhibits filed under Item 601 

and permit the omission of personally 

identifiable information. We also 

propose to add paragraph (b)(10)(iv) to 

Item 601 to reduce significantly the 

need for registrants to submit 

applications for confidential treatment 

of information in material contract 

exhibits required by that item.187 The 

proposals to add paragraphs (a)(6) and 

(b)(10)(iv) are broader than the staff’s 

recommendations in the FAST Act 

Report. As explained more fully below, 

we believe that they are consistent with 

our mandate under the FAST Act to 

modernize and simplify our disclosure 

requirements while still providing all 

material information.188

a. Schedules and Attachments to 

Exhibits 

Proposed Item 601(a)(5) would permit 

registrants to omit entire schedules and 

similar attachments to exhibits unless 

they contain material information and 

unless that information is not otherwise 

disclosed in the exhibit or the 

disclosure document. This exception, 

which is similar to the existing 

accommodation in Item 601(b)(2) for 

plans of acquisition, reorganization, 

arrangement, liquidation, or succession, 

would be expanded to all exhibits under 

the proposed amendments. Similar to 

the current provisions in Item 601(b)(2), 

proposed Item 601(a)(5) would require 

registrants to provide with each exhibit 

a list briefly identifying the contents of 

any omitted schedules and attachments. 


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189See proposed Item 601(a)(5) of Regulation S– 

K. Securities Act Rule 418 [17 CFR 230.418] states 

that the Commission or its staff may, where it is 

deemed appropriate, request supplemental 

information concerning the registrant or a 

registration statement, among other things. 

Exchange Act Rule 12b–4 [17 CFR 240.12b–4] 

similarly indicates that the Commission or its staff 

may, where it is deemed appropriate, request 

supplemental information concerning the registrant, 

a registration statement, and a periodic or other 

report filed under the Exchange Act. Unlike the 

current version of Item 601(b)(2), registrants would 

not be required to include with its list identifying 

the contents of all omitted schedules an agreement 

to furnish a supplemental copy of any omitted 

schedule to the Commission upon request. Instead, 

proposed Item 601(a)(5) would require registrants to 

provide a copy of any omitted schedule to the 

Commission staff upon request. 

190See, e.g., Letters from Committee on Securities 

Law of the Business Law Section of the Maryland 

State Bar Association (‘‘Maryland Bar Securities 

Committee’’) (July 21, 2016); ABA; NYSSCPA; 

FedEx; Fenwick; and Davis Polk 1. See also Letter 

from CGCIV (supporting exemption from filing 

immaterial attachments to material agreements for 

smaller reporting companies). 

191See, e.g., Letters from Fenwick and Davis Polk 

1. 

192See, e.g., Letters from Fenwick; Fenwick and 

West LLP, Cooley LLP and Wilson Sonsini 

Goodrich & Rosati, PC (June 19, 2012) [S–K Study 

Letter] (‘‘Silicon Valley’’); and Mike Liles (Apr. 10, 

2013) [S–K Study Letter] (endorsing the comments 

expressed in the Silicon Valley Letter). 

193See Letter from Fenwick (stating that it does 

not believe ‘‘the burden of completing such a list 

of omitted schedules is offset by any meaningful 

advantage to investors’’); see also letters from 

NYSSCPA and FEI. 

194See Letter from Maryland Bar Securities 

Committee. 

195 17 CFR 200.80(b)(6) (exempting personnel and 

medical files and similar files the disclosure of 

which would constitute a clearly unwarranted 

invasion of personal privacy). 

196See, e.g., Letters from NYSSCPA; Chamber 2; 

FedEx; CGCIV; Maryland Bar Securities Committee; 

General Motors; and Financial Executives 

International. 

197These proposals are consistent with the 

marking requirements for confidential treatment 

requests under Rule 406 and Rule 24b–2. 

In addition, registrants would be 

required to provide, on a supplemental 

basis, a copy of any omitted schedules 

or attachments to the Commission staff 

upon request.189

The Commission requested comment 

in the Concept Release on whether to 

allow registrants to omit schedules and 

attachments to all exhibits, provided 

that the omitted schedules and 

attachments do not include material 

information that is not otherwise 

included in the exhibit or the disclosure 

document. Commenters uniformly 

supported expanding the exception 

under Item 601(b)(2).190 Some noted 

that the current requirement to file 

complete exhibits is unnecessarily 

cumbersome and expensive where the 

schedules do not contain material 

information.191 Commenters also stated 

that these burdens are exacerbated 

where those schedules contain, as is 

frequently the case, confidential 

information that would require 

registrants to file confidential treatment 

requests.192 A few commenters that 

supported allowing registrants to omit 

schedules opposed requiring registrants 

to provide a list of their omitted 

schedules.193 Another commenter 

supported a requirement to include a 

list, but stated that requiring registrants 

to provide a materiality analysis 

supporting the decision to omit the 

schedules was unnecessary.194 We 

believe that a list of omitted schedules, 

similar to current Item 601(b)(2), would 

be informative for investors. 

Request for Comment 

45. Should the proposed amendments 

permit registrants to omit entire 

schedules and attachments to exhibits 

unless the schedules or attachments 

contain material information and unless 

that information is not otherwise 

disclosed in the exhibit or the 

disclosure document? Similarly, should 

we amend our investment company 

rules or forms to permit investment 

companies to omit entire schedules and 

attachments? 

46. Should Item 601(a)(5) require 

registrants to provide a list of the 

contents of the omitted schedules and 

attachments as proposed? Would a list 

of the titles of the schedules and 

attachments be sufficient to identify the 

contents of the omitted schedules and 

attachments? Should we provide 

guidance on the registrant’s description 

of any omitted schedule or attachment? 

47. As proposed, Item 601(a)(5) would 

expand the existing Item 601(b)(2) 

accommodation to all exhibits. Should 

we require exhibits filed pursuant to 

certain subsections of Item 601(b) to 

include all schedules and attachments 

even if they are not material? If so, 

which exhibits and subsections? 

b. Personally Identifiable Information 

The Commission generally does not 

publish or make available information 

that ‘‘would constitute a clearly 

unwarranted invasion of personal 

privacy.’’ 195 This information includes 

personally identifiable information 

(‘‘PII’’). Exhibits filed pursuant to Item 

601 may include PII such as bank 

account numbers, social security 

numbers, home addresses and similar 

information. The staff generally does not 

object where a registrant omits PII from 

exhibits without submitting a 

confidential treatment request. 

In the Concept Release, the 

Commission requested comment about 

whether to continue or modify the 

current accommodation on PII. 

Numerous commenters recommended 

codifying the current staff practice of 

permitting registrants to omit PII from 

exhibits without making a formal 

confidential treatment request.196

Consistent with our mandate under 

the FAST Act to modernize and 

simplify our disclosure requirements 

while still providing all material 

information, Item 601(a)(6), as 

proposed, would permit registrants to 

omit PII without submitting a 

confidential treatment request under 

Rule 406 or Rule 24b–2. Allowing 

registrants to omit PII without 

submitting a confidential treatment 

request is also intended to better 

safeguard PII by limiting its 

dissemination. Under the proposed 

amendment, registrants also would not 

be required to provide an analysis to 

redact PII from exhibits. 

Request for Comment 

48. Should we codify the current staff 

practice of permitting registrants to omit 

PII without making a formal 

confidential treatment request as 

proposed? Similarly, should we amend 

our investment company rules or forms 

to similarly permit investment 

companies to omit PII? 

c. Redaction of Confidential Information 

in Material Contract Exhibits 

The proposed revisions to Item 

601(b)(10) would permit registrants to 

omit confidential information from 

material contracts filed pursuant to that 

item where such information is both (i) 

not material and (ii) competitively 

harmful if publicly disclosed, even 

where the registrant has not submitted 

a confidential treatment request to the 

Commission. Instead, registrants would 

be required to mark the exhibit index to 

indicate that portions of the exhibit or 

exhibits have been omitted and include 

a prominent statement on the first page 

of each redacted exhibit that 

information in the marked sections of 

the exhibit has been omitted from the 

filed version of the exhibit. Registrants 

would also be required to indicate with 

brackets where the information has been 

omitted from the filed version of the 

exhibit.197

Although registrants would not be 

required to file a confidential treatment 

request in accordance with Rule 406 or 

Rule 24b–2 in connection with the 

redacted exhibit, the responsibility of a 

registrant to determine whether all 

material information has been disclosed 

and whether they may redact the 


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198See Rule 12b–20 [17 CFR 240.12b–20], Rule 

408(a) [17 CFR 230.408(a)] and proposed Item 

601(b)(10)(iv). 

199This analysis would be substantially the same 

as is currently required in confidential treatment 

requests submitted in reliance on Rule 80(b)(4) [17 

CFR 200.80(b)(4)] pursuant to Rule 406 or Rule 

24b–2. 

200Upon completion of the staff’s review, the 

materials would be returned or destroyed if the 

registrant complies with the procedures outlined in 

Rule 418 or 12b–4. 

201See Letter from Fenwick and letter from Davis 

Polk 1 (requesting that the Commission reconsider 

the utility of the (b)(10) exhibit filing requirement). 

202We are proposing to apply the proposed 

amendments to Form 20–F to maintain a consistent 

approach to the exhibit filing requirements for 

domestic registrants and foreign private issuers. See 

infra Section II.E.5 (Exhibits—Application to 

Foreign Private Issuers). 

203 Item 601(b)(10)(i) of Regulation S–K [17 CFR 

229.601(b)(10)(i)]. 

204The two-year look back is included in 

Schedule A of the Securities Act [15 U.S.C. 

77aa(24)] and serves as a ‘‘cutoff period’’ so 

registrants would not have to file material contracts 

that may have been fully performed many years 

prior to registration. When Section 12(g) was added 

to the Exchange Act in 1964, the Commission was 

authorized to issue rules requiring such material 

contracts to be filed with Exchange Act reports. See 

Section 12(b)(1)(I) of the Exchange Act; H.R. Rep. 

No. 88–1418, 83rd Cong., 2nd Sess., 1964. Prior to 

the enactment of Section 12(g), the Exchange Act 

reporting requirements were applicable only to 

listed companies. 

205See FAST Act Report, supra note 2, at 

Recommendation F.3. 

information under the proposed rules 

would remain unchanged.198 The 

Commission staff would continue its 

selective review of registrant filings and 

would selectively assess whether 

redactions from exhibits appear to be 

limited to information that is not 

material and that would subject the 

registrant to competitive harm if 

publicly disclosed. As is currently the 

case, the redacted information should 

include no more text than necessary to 

prevent competitive harm to the 

registrant. Upon request, registrants 

would be expected to promptly provide 

supplemental materials to the staff 

similar to those currently required in a 

confidential treatment request, 

including an unredacted paper copy of 

the exhibit and an analysis of why the 

redacted information is both (i) not 

material and (ii) would cause 

competitive harm if publicly 

disclosed.199 The timing of any staff 

review would not alleviate a registrant’s 

obligation to disclose all material 

information and its obligation to limit 

redactions to those provisions and terms 

that are both (i) not material and (ii) 

would cause competitive harm if 

publicly disclosed. Registrants could 

request confidential treatment of this 

supplemental information pursuant to 

Rule 83 while it is in the staff’s 

possession. If the registrant’s 

supplemental materials do not support 

its redactions, similar to the process the 

staff currently follows for confidential 

treatment requests under Rule 406 and 

Rule 24b–2, the staff may request that 

the registrant file an amendment that 

includes some, or all, of the previously 

redacted information.200

The Concept Release did not request 

comment on the confidential treatment 

process, other than its request for 

comment about omitting schedules and 

attachments to exhibits; however, two 

commenters noted that the requirement 

to file material agreements causes 

registrants to expend significant 

resources in preparing confidential 

treatment requests.201 We believe that 

simplifying and streamlining this 

process would be consistent with the 

FAST Act mandate to revise Regulation 

S–K in a manner that reduces the costs 

and burdens on registrants while 

providing investors all material 

information. In addition, we believe the 

proposal would result in limiting the 

dissemination of sensitive information 

because registrants would not be 

required to provide an un-redacted copy 

of each exhibit at the time of filing in 

order to request confidential treatment. 

Instead, this information would only be 

required on request in connection with 

a staff filing review. 

Request for Comment 

49. Should registrants be permitted to 

omit confidential information from 

exhibits filed pursuant to Item 

601(b)(10) that is both (i) not material 

and (ii) competitively harmful if 

publicly disclosed without submitting a 

confidential treatment request as 

proposed? Similarly, should we amend 

our investment company forms to 

permit investment companies to omit 

confidential information from exhibits? 

50. Would the disclosure provided in 

exhibits change under the proposed 

amendments? Why or why not? 

51. Under the proposed amendments, 

if the registrant’s supplemental 

materials do not support its redactions, 

the staff may request that the registrant 

file an amendment that includes some, 

or all, of the previously redacted 

information. In these situations, should 

we require registrants to include an 

explanatory note describing why the 

amendment is being provided? Should 

we also require that any amendment 

highlight the previously redacted 

information? 

52. Should we allow registrants to 

omit confidential information from 

exhibits other than those filed pursuant 

to Item 601(b)(10) that is both (i) not 

material and (ii) competitively harmful 

if publicly disclosed? For instance, 

should registrants be allowed to omit 

similar information from exhibits filed 

pursuant to Item 601(b)(2)? Should they 

be allowed to omit similar information 

from exhibits filed pursuant to other 

subsections of Item 601? If so, which 

subsections and why? 

53. Should we apply the proposed 

amendments discussed in Section II.E.2. 

(Information Omitted from Exhibits) to 

forms that include their exhibits 

requirements in the form or do not 

separately reference Item 601 of 

Regulation S–K (e.g., Schedule 13E–3 

and Schedule 13–D)? If so, what forms 

should be amended and to what extent? 

If not, why? Are there special 

considerations associated with change 

of control transactions, going private 

transactions, or beneficial ownership 

reporting that render the provision of 

information in exhibits material to an 

investment or voting decision? What are 

the costs and benefits of applying the 

proposed amendments to these forms? 

How do they differ from the costs and 

benefits of applying the proposed 

amendments to Regulation S–K? 202

3. Material Contracts (Item 601(b)(10)(i)) 

Item 601(b)(10)(i) requires registrants 

to file every material contract not made 

in the ordinary course of business, 

provided that one of two tests is met: (i) 

The contract must be performed in 

whole or in part at or after the filing of 

the registration statement or report, or 

(ii) the contract was entered into not 

more than two years before that 

filing.203

The first test captures contracts that 

have not been fully performed prior to 

the filing date. The second test—the 

two-year look back—captures material 

contracts that were fully performed 

before the filing date.204 Currently, all 

registrants subject to Item 601 must 

consider both tests when deciding 

whether a material, non-ordinary course 

contract must be filed as an exhibit. 

Consistent with the recommendations 

in the FAST Act Report,205 we are 

proposing amendments to Item 

601(b)(10)(i) that would limit the twoyear look back test to newly reporting 

registrants. Proposed Instruction 1 to 

Item 601(b)(10)(i) defines a ‘‘newly 

reporting registrant’’ as any registrant 

filing a registration statement that, at the 

time of such filing, is not subject to the 

reporting requirements of Section 13(a) 

or 15(d) of the Exchange Act, whether 

or not such registrant has ever 

previously been subject to the reporting 

requirements of Section 13(a) or 15(d), 

and any registrant that has not filed an 

annual report since the revival of a 

previously suspended reporting 


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206See proposed Instruction 1 to paragraph 

(b)(10) of Item 601. 

207See Exchange Act Rules Compliance and 

Disclosure Interpretation 153.02 (stating that a Form 

10–K for the previous fiscal year is the first report 

due after a reporting obligation is revived), 

available at https://www.sec.gov/divisions/corpfin/ 

guidance/exchangeactrules-interps.htm (last 

updated December 8, 2016). 

208 In the case of a registrant with a suspended 

reporting obligation that, less than two years later, 

is revived, the proposed requirement to file material 

agreements for the two-year look back period may 

be satisfied by incorporating by reference and 

hyperlinking to agreements previously filed on 

EDGAR and filing any material agreements entered 

into while the registrant was not reporting. See 

Exhibit Hyperlinks Adopting Release, supra note 

14, at 14135. 

209Under the proposed amendment, the 

definition of ‘‘newly reporting registrant’’ would 

not include reporting companies completing merger 

transactions with business combination-related 

shell companies. 

210Schedule A of the Securities Act requires that 

registrants file ‘‘every material contract made, not 

in the ordinary course of business, which contract 

is to be executed in whole or in part at or after the 

filing of the registration statement or which contract 

has been made not more than two years before such 

filing.’’ See Schedule A, paragraph 24 [15 U.S.C. 

77aa(24)]. Due to the availability of filings on 

EDGAR, as noted above, we believe the two-year 

look back requirement does not provide additional 

investor protection when applied to registrants with 

a reporting history. 

211 Item 601(b)(21)(i) of Regulation S–K [17 CFR 

229.601(b)(21)(i)]. 

212 Item 601(b)(21)(ii) of Regulation S–K [17 CFR 

229.601(b)(21)(ii)]. 

213See FAST Act Report, supra note 2, at 

Recommendation F.4. 

214See Arthur B. Kennickell, Bd. of Governors of 

the Fed. Reserve Sys., Identity, Identification and 

Identifiers: The Global Legal Entity Identifier 

System (Nov. 8, 2016), available at https://

www.federalreserve.gov/econresdata/feds/2016/ 

files/2016103pap.pdf. 

215See Glob. Legal Entity Identifier Found., 

Frequently Asked Questions—Fees, Payment and 

Taxes, available at https://lei.bloomberg.com/docs/ 

faq; and Glob. Mkt. Entity Identifier Util., GMEI 

Utility Pricing, available at https://

www.gmeiutility.org/gmeiUtilityPricing.jsp. See 

also, Letter from SIFMA. 

216See, e.g., Letters from Data Coalition (July 21, 

2016) (‘‘Data Coalition’’) (recommending that the 

Commission adopt the ‘‘if available’’ disclosure 

standard as an interim step prior to requiring 

registrants to obtain and disclose LEIs); Bloomberg 

(recommending that filers should be required to 

obtain an LEI); SIFMA (noting that regulators have 

driven the expansion of the LEI system and 

expressing support for recent regulations that 

impose requirements upon certain investment 

companies to obtain an LEI); and XBRL US 

(recommending that the Commission require 

registrants to obtain an LEI for every company in 

their corporate structure; stating that use of LEIs 

would improve the functionality of filings by 

identifying participants in financial transactions 

and bringing clarity to interrelationships between 

entities). See also Letters from E. Bean; SEC Investor 

Advisory Committee (June 15, 2016) (‘‘IAC 1’’) 

(stating that LEIs could facilitate the work of the 

Commission and other prudential regulators related 

to systemic risk, firm interconnectivity, and 

leverage at broker-dealers, asset managers, and 

other market participants and benefit investors 

trying to understand complex structures); Owner 

Subcommittee of the SEC’s Investor Advisory 

Committee (Nov. 22, 2016) (‘‘IAC 2’’); Main Street 

Alliance (July 5, 2016); The Financial 

Accountability and Corporate Transparency 

Coalition (July 6, 2016); Citizens for Tax Justice; 

GRI (July 21, 2016); American Sustainable Business 

Council, Citizens for Tax Justice, FACT Coalition, 

Fair Share, Global Financial Integrity and Main 

Street Alliance (July 21, 2016); Americans for Tax 

Fairness (July 21, 2016); AFL–CIO (July 21, 2016); 

Oxfam America (July 21, 2016); S. Percoco; 

Americans for Financial Reform (Aug. 10, 2016); 

NYSCRF; Global Legal Identity Identifier 

Foundation (July 21, 2016); and CFA Institute. See 

Continued 

obligation.206 As an example, a 

registrant that is filing its first 

registration statement under the 

Securities Act or the Exchange Act, or 

filing its first Form 10–K since the 

revival of its reporting obligation,207

would be required to file material 

agreements under Item 601(b)(10)(i) for 

the two-year look back period.208 The 

definition of ‘‘newly reporting 

registrant’’ under the proposed 

instruction also would include any 

registrant that (a) was a shell company, 

other than a business combination 

related shell company, as defined in 

Rule 12b–2 under the Exchange Act, 

immediately before completing a 

transaction that has the effect of causing 

it to cease being a shell company, and 

(b) has not filed a registration statement 

or Form 8–K, as required by Item 2.01 

and Item 5.06 of that form, since the 

completion of the transaction (or, in the 

case of foreign private issuers, has not 

filed a Form 20–F since the completion 

of the transaction).209 Under the 

proposed amendments, a registrant 

meeting this definition would be 

required to file material agreements for 

the two-year look back period. The 

proposed amendments would help 

ensure that investors receive access to 

agreements containing material 

information, including agreements 

entered into by newly reporting 

registrants up to two years prior to the 

commencement of their reporting 

obligations. Registrants with established 

reporting histories would not be 

required to comply with the two-year 

look back requirement because investors 

would continue to have access to any 

material agreements previously filed on 

EDGAR.210 As such, the proposed 

amendments would streamline 

reporting obligations while maintaining 

investor protections. 

Request for Comment 

54. Should we revise Item 

601(b)(10)(i) to limit the two-year look 

back test to newly reporting registrants 

as proposed? 

55. Should the two-year look back 

requirement apply to a registrant 

completing a reverse merger involving 

any public shell company that is not a 

business combination-related shell 

company as proposed? Why or why not? 

56. Should the proposed amendment 

be broadened to require that a public 

company acquiring or merging with a 

non-public company must apply the 

two-year look back test to agreements 

entered into by the non-public company 

prior to the transaction date? 

57. Should registrants that have 

revived reporting obligations be 

required as proposed, to file material 

contracts for the full two-year look back 

period, regardless of how long their 

prior reporting obligation was 

suspended? Alternatively, if the 

registrant’s reporting obligation was 

suspended for less than two years prior 

to revival, should the registrant only be 

required to file agreements entered into 

while the obligation was suspended? 

4. Subsidiaries of the Registrant and 

Entity Identifiers (Item 601(b)(21)(i)) 

Item 601(b)(21) requires a registrant to 

list as an exhibit all of its subsidiaries, 

the state, or other jurisdiction of 

incorporation or organization of each, 

and the names under which those 

subsidiaries do business.211 The name 

of particular subsidiaries may be 

omitted if the unnamed subsidiaries, 

considered in the aggregate as a single 

subsidiary, would not constitute a 

‘‘significant subsidiary’’ under Rule 

1–02(w) of Regulation S–X.212

Consistent with the staff’s 

recommendation in the FAST Act 

Report,213 we are proposing 

amendments to Item 601(b)(21)(i) that 

would require registrants to include in 

the exhibit the legal entity identifier 

(‘‘LEI’’), if one has been obtained, of the 

registrant and each subsidiary listed. An 

LEI is a 20-character, alpha-numeric 

code that allows for unique 

identification of entities engaged in 

financial transactions. LEIs are intended 

to improve market transparency by 

providing clear identification of 

participants.214 Fees are not imposed on 

investors for use of, or access to, LEIs. 

All of the associated reference data 

needed to understand, process, and use 

LEIs is widely and freely available. 

These associated reference data also are 

not subject to any usage restrictions. 

There is a cost of obtaining an LEI for 

registrants: A one-time fee of $75–$119 

and $50–$99 in annual maintenance 

fees.215

In the Concept Release, we solicited 

comment on whether we should require 

registrants to disclose their LEI and the 

LEIs of their subsidiaries (if available) in 

Exhibit 21 and how this information 

would benefit investors. Many 

commenters supported requiring 

disclosure of LEIs,216 with most of them 


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also letter from TagniFi, LLC (Jan. 27, 2016) 

[Disclosure Effectiveness letter] (‘‘TagniFi’’). 

217See id. Two commenters opposed an LEI 

requirement, stating that ‘‘there is no global 

standard for LEI.’’ See Letters from Financial 

Executives International and General Motors. 

218See, e.g., Letters from SIFMA, Bloomberg, and 

Data Coalition. See also Nationally Recognized 

Statistical Rating Organizations, Release No. 34– 

72936 (Aug. 27, 2014) [79 FR 55077 (Sept. 15, 

2014)] (the ‘‘2014 NRSRO Amendments Release’’) 

and Credit Risk Retention, Release No. 34–73407 

(Oct. 22, 2014) [79 FR 77601 (Dec. 24, 2014)] (the 

‘‘Credit Risk Retention Release’’). 

219See Investment Company Reporting 

Modernization, Release No. 33–10231 (Nov. 18, 

2016) [81 FR 81870]) (the ‘‘IM Modernization 

Adopting Release’’). See also id. at n. 61 (discussing 

additional contexts in which the Commission has 

required LEIs, including Form PF—Reporting Form 

for Investment Advisers to Private Funds and 

Certain Commodity Pool Operators and Commodity 

Trading Advisors, available at http://www.sec.gov/ 

rules/final/2011/ia-3308-formpf.pdf); Regulation 

SBSR–Reporting and Dissemination of SecurityBased Swap Information, Release No. 34–74244 

(Feb. 11, 2015) [80 FR 14564 (Mar. 19, 2015)]. See 

also 2014 NRSRO Amendments Release, supra note 

218; Credit Risk Retention Release, supra note 218. 

220See, e.g., Legal Entity Identifier Regulatory 

Oversight Comm., The Global LEI System and 

regulatory uses of the LEI (Nov. 5, 2015), available 

at http://www.leiroc.org/publications/gls/lou_

20151105-1.pdf (progress report by the Legal 

Identifier Regulatory Oversight Committee, 

including an annex listing regulatory actions in the 

United States, the EU countries, and eight other 

countries which require, request, or allow the use 

of LEIs). The global LEI system currently has over 

580,000 registrations and is growing. See Global LEI 

Foundation daily updated ‘‘concatenated file,’’ 

which includes all LEIs issued globally and related 

LEI reference data, available at https://

www.gleif.org/en/lei-data/gleif-concatenated-file/ 

lei-download#or http://openleis.com. See also Glob. 

Legal Entity Identifier Found., Regulatory Use of the 

LEI (providing an overview of current and proposed 

global regulatory activities involving LEI), available 

at https://www.gleif.org/en/about-lei/regulatoryuse-of-the-lei; Global LEI Data Quality Reports 

Archive, available at https://www.gleif.org/en/leidata/gleif-data-quality-management/about-thedata-quality-reports/archive# (showing total 

number of LEIs issued, renewed, reactivated and 

lapsed from January 2016 through April 2017). 

221See IM Modernization Adopting Release, 

supra note 219. 

222See infra Section II.G.1 (Tagging Cover Page 

Data). 

223See supra notes 216 to 218 and accompanying 

text. 

224See International Disclosure Standards 

Release, Release No. 33–7637 (Feb. 2, 1999) [64 FR 

6261 (Feb. 9, 1999)] (expressing the Commission’s 

intention ‘‘to conform the exhibit requirements for 

Form 20–F with the exhibit requirements for 

registration statements filed by U.S. issuers under 

the Exchange Act’’ and stating that all of the Form 

20–F exhibit requirements ‘‘are required for 

domestic issuers filing a registration statement on 

Form 10 or an annual report on Form 10–K’’). 

recommending that we require both the 

registrant and its subsidiaries to obtain 

and disclose LEIs.217 These commenters 

generally stated that the use of LEIs 

would improve investors’ ability to 

understand registrants’ risk profiles. In 

this regard, commenters observed that 

LEIs would allow investors to link thirdparty data with structured data from the 

Commission to produce more 

meaningful analysis.218

The proposed amendment is intended 

to modernize the disclosure 

requirements under Regulation S–K by 

requiring registrants to provide any LEIs 

obtained for themselves or their listed 

subsidiaries to investors. This proposal 

would allow investors to use the LEI to 

more quickly and precisely identify 

registrants and their subsidiaries. Our 

proposal is consistent with prior 

regulatory efforts. For example, as part 

of our recent investment company 

reporting modernization efforts, we 

adopted rules requiring certain 

registrants and funds to obtain LEIs to 

provide a consistent means of 

identification.219 Due in part to these 

and other similar global regulatory 

efforts, the usage of LEIs has increased 

over the last few years.220

We recognize that many registrants 

and their subsidiaries may not have 

LEIs. Accordingly, our proposals would 

require disclosure of LEIs only for those 

registrants and subsidiaries that choose 

to obtain this identifier. Below, we 

solicit comment as to whether to require 

registrants and their subsidiaries to 

obtain LEIs. 

Request for Comment 

58. Should we require registrants to 

include in Exhibit 21 the LEI (if one has 

been obtained) of the registrant and each 

subsidiary required to be listed in the 

exhibit? Would requiring registrants to 

disclose LEIs in Exhibit 21 as proposed, 

provide investors with sufficient access 

to that information? Is there another 

location in registrant filings, other than 

Exhibit 21, where LEI information 

would be more accessible to investors? 

For example, should a registrant be 

required to disclose its LEI, if it has one, 

on the cover page of each registration 

statement, periodic filing, or current 

report and provide the LEIs for its 

significant subsidiaries in an exhibit? 

59. If we require registrants to include 

LEIs in Exhibit 21 as proposed, should 

we also require them to provide that 

information as machine-readable data? 

If so, what structured data format would 

be the most useful to investors? For 

example, the Commission recently 

adopted amendments requiring 

investment companies to provide LEIs 

in XML format.221 Should we require 

registrants that have already obtained 

LEIs to disclose their LEIs in XML 

format? Or, for consistency with the 

proposal to tag information on the cover 

page of certain forms using Inline XBRL 

format,222 should we require disclosure 

of LEIs in Inline XBRL format? What 

would be the additional cost to 

registrants to provide LEIs in XML, 

Inline XBRL, or another machinereadable format? 

60. In light of the many comments 

received on the costs and benefits of 

LEIs,223 should our rules encourage or 

require registrants and each subsidiary 

thereof required to be listed in Exhibit 

21 to obtain an LEI? If so, how should 

we structure our rules to achieve this 

purpose? 

61. Some registrants have numerous 

subsidiaries or affiliates operating 

globally, while other registrants have 

simple corporate structures. Should we 

require certain types of registrants, such 

as larger registrants or subsidiaries, to 

obtain LEIs? For example, should we 

limit the requirement to large 

accelerated filers, well-known seasoned 

issuers, or foreign private issuers? 

5. Application to Foreign Private Issuers 

The Commission previously adopted 

amendments to conform the exhibit 

requirements in Form 20–F to the 

requirements in Item 601.224 To 

maintain a consistent approach to the 

exhibit requirements for domestic 

registrants and foreign private issuers, 

the proposed amendments would 

require foreign private issuers to 

provide information in exhibit filings 

comparable to the information provided 

by domestic registrants under Item 

601(a)(5), Item 601(a)(6), Item 

601(b)(4)(vi), Item 601(b)(10)(i), Item 

601(b)(10)(iv), and Item 601(b)(21), as 

proposed. In each case, we believe that 

the justifications for the proposed 

amendments to Item 601 are equally 

applicable to Form 20–F. 

We are not proposing similar changes 

to Form 40–F. Form 40–F generally 

permits Canadian issuers to use 

Canadian disclosure documents to 

satisfy the Commission’s registration 

and disclosure requirements. As a 

result, the exhibit requirements in Form 

40–F are largely in accordance with 

Canadian disclosure standards. 

Request for Comment 

62. Should we amend the exhibit 

requirements of Form 20–F so that they 

are consistent with the requirements 

under Item 601 as proposed? Why or 

why not? Are there any unique 

considerations with respect to foreign 

private issuers in this context? 

63. Should we make corresponding 

changes to the exhibit requirements in 

Form 40–F? Why or why not? 

64. Would the proposed amendments 

conflict with home-country 

requirements in some jurisdictions? If 

so, please explain. 


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225See Federal Trade Commission Release No. 

33–47 (Sept. 22, 1933) (allowing for incorporation 

by reference of exhibits filed with registration 

statements); Release No. 34–51 (Nov. 27, 1934) 

(allowing for incorporation by reference of exhibits 

filed with the Commission under the Exchange Act 

or filed with an exchange). 

226See FAST Act Report, supra note 2, at 

Recommendations A.1 and A.2. 

227 17 CFR 230.411. 

228 17 CFR 240.12b–23. 

229 17 CFR 240.12b–32. 

230 17 CFR 270.0–4. 

231 15 U.S.C. 80a–1 et seq. 

232 17 CFR 275.0–6. 

233 15 U.S.C. 80b–1 et seq. 

234 17 CFR 270.8b–23. 

235 17 CFR 270.8b–24. 

236 17 CFR 270.8b–32. 

237See Letters from Wachtell, Lipton, Rosen & 

Katz (May 16, 2016) (‘‘Wachtell’’); Ball Corporation 

(July 19, 2016) (‘‘Ball’’); Chamber 2; FedEx; CGCIV; 

International Integrated Reporting Council (July 20, 

2016) (‘‘IIRC’’); California State Teachers’ 

Retirement System (July 21, 2016) (‘‘CalSTRS’’); 

Edison Electric and AGA; American Federation of 

State, County and Municipal Employees (July 21, 

2016) (‘‘AFSCME’’); Fenwick; and NIRI. 

238See Letters from Wachtell; Chamber 2; FedEx; 

CGCIV; IIRC; Edison Electric and AGA; Fenwick; 

IAC 1; and NIRI. 

239See Letters from IIRC and CalSTRS. The IIRC 

recommended emphasizing the use of incorporation 

by reference for ‘‘supplementary’’ information so as 

to focus the disclosure in a document on ‘‘core’’ 

information. 

240 17 CFR 229.10. 

241 17 CFR 229.10(d). 

242 Indirect incorporation by reference is 

permitted when the registrant is expressly required 

to incorporate a document by reference and, in the 

case of asset-backed issuers, under Item 1100(c) of 

Regulation AB [17 CFR 229.1100(c)]. See Item 10(d). 

243See infra note 247 and accompanying text 

(discussing the exceptions). 

244See Rules of Practice, Release No. 34–35833 

(June 9, 1995) [60 FR 32738 (June 23, 1995)] 

(moving the requirements from Rule 24 of the 

Commission’s Rules of Practice to Item 10(d)). We 

are also proposing to eliminate remaining 

references to Rule 24 in Regulation S–K and other 

rules and forms. See, e.g., Rule 411(d) and Form N– 

2. 

245See 25 FR 6719 (July 15, 1960) (adopting Rule 

24); Incorporation by Reference, Release No. 33– 

5818 (Mar. 18, 1977) [42 FR 16922 (Mar. 30, 1977)] 

(adopting an amendment to Rule 24 reducing the 

10-year limit to five years). 

246Notice of (1) Proposed Amendments to Rule 24 

of the Rules of Practice and All Other Commission 

Rules Relating to Incorporation By Reference and 

Basic Documents and (2) Proposed Revocation of 

Securities Exchange Act Rule 12b–34, Release No. 

33–5711 (May 21, 1976) [41 FR 105 (May 28, 1976)] 

(proposing a three-year limit with certain ‘‘basic 

documents’’ being retained for a longer period). 

247See Item 10(d)(1)–(2) and the Commission’s 

Records Control Schedule [17 CFR 200.80f]. 

248We believe that it is very unlikely that a 

registrant would attempt to incorporate by reference 

to a document that was filed with the Commission 

but is no longer available because it was not 

submitted on EDGAR and has been destroyed 

pursuant to the Records Control Schedule. For 

example, the Commission retains Securities Act and 

Exchange Act registration statements, reports and 

proxy materials that have not been filed on EDGAR 

for 30 years. See Records Control Schedule [17 CFR 

200.80f]. Under the proposed amendments, a 

registrant would not be permitted to incorporate by 

reference to a destroyed document because it would 

render its disclosure incomplete, unclear, or 

confusing. See, e.g., proposed Rule 411(e) and Rule 

12b–23(e). 

249See the proposed amendments to Rule 411, 

Rule 12b–23, Rule 0–4, and Rule 0–6. Paragraph (d) 

of Item 10 also states that, when incorporation by 

reference is permitted, a document may be 

Continued 

F. Incorporation by Reference 

To reduce duplicative disclosure, 

registrants have been permitted to 

incorporate previously filed information 

into their filings since the enactment of 

the Securities Act and the Exchange 

Act.225 Initially, incorporation by 

reference was limited to exhibits, but 

over time we have increasingly 

permitted incorporation by reference in 

other contexts. The rules and 

instructions governing incorporation by 

reference are now found in a variety of 

regulations, including Regulation S–K, 

Regulation C, Regulation 12B and many 

of the Commission’s forms. 

In the FAST Act Report, the staff 

recommended that the Commission 

consider consolidating, clarifying, and 

updating Item 10(d) of Regulation S–K 

and the other rules governing 

incorporation by reference.226

Consistent with our mandate under the 

FAST Act, our proposed amendments 

would revise Item 10(d), Rule 411,227

Rule 12b–23,228 and a number of our 

forms to simplify and modernize these 

rules while still providing all material 

information. Our proposed amendments 

would also rescind Rule 12b–32.229 In 

addition, to provide for a consistent set 

of incorporation by reference rules for 

investment companies and investment 

advisers, we are proposing parallel 

amendments to Rule 0–4 230 and a 

number of forms under the Investment 

Company Act,231 certain conforming 

amendments to Rule 0–6 232 under the 

Investment Advisers Act,233 and the 

rescission of Rule 8b–23,234 Rule 8b– 

24,235 and Rule 8b–32 236 under the 

Investment Company Act (certain 

provisions of which would be 

consolidated into proposed new Rule 

0–4). The proposed amendments would 

streamline the requirements associated 

with incorporation by reference and 

facilitate investor access to incorporated 

documents through the use of 

hyperlinks. The proposed amendments 

are also consistent with the 

Commission’s longstanding acceptance 

of incorporation by reference in the 

interests of encouraging registrants to 

eliminate duplicative disclosures. 

Our proposed amendments respond to 

some of the recommendations from 

commenters on the Concept Release. 

Commenters generally supported the 

use of incorporation by reference.237 A 

number of commenters recommended 

expanding the ability to incorporate by 

reference.238 Some commenters, while 

supporting the use of incorporation by 

reference, cautioned that it should not 

excessively fragment disclosure or make 

disclosure more difficult to access.239

1. Item 10(d) 

Item 10 of Regulation S–K 240 contains 

general requirements on the application 

of Regulation S–K. Item 10(d) focuses on 

incorporation by reference.241 Item 

10(d) states that, where rules, 

regulations, or instructions to the forms 

permit incorporation by reference, a 

document may be incorporated by 

reference to the specific document and 

to the prior filing or submission in 

which that document was physically 

filed or submitted. Item 10(d) generally 

prevents registrants from incorporating 

by reference a portion of a document 

that itself also incorporates pertinent 

information by reference.242 It also 

prohibits incorporating documents by 

reference if they have been on file with 

the Commission for more than five years 

and do not fall within one of the 

exceptions provided in the rule.243

Consistent with the staff’s 

recommendation in the FAST Act 

Report, we are proposing to eliminate 

the five-year limit in Item 10(d). This 

requirement originated from the 

Commission’s policy on retention of 

hard copy records of filings, as set forth 

in the Commission’s Rules of 

Practice.244 This requirement previously 

imposed a 10-year limit but was 

reduced to five years in 1977 to allow 

for the Commission’s ‘‘orderly 

destruction of unneeded filings.’’ 245 At 

the time, the Commission noted that the 

‘‘cost of storage outweighs the 

usefulness to the Commission and to the 

public of many if not most of these 

records.’’ 246 Nevertheless, exceptions 

were added for documents contained in 

registration statements of reporting 

registrants and for documents that a 

registrant identifies by file number that 

have not been disposed of pursuant to 

the Commission’s Records Control 

Schedule.247 Given these broad 

exceptions and the current practice of 

retaining documents electronically, the 

five-year limit now serves little purpose 

and may lead to confusion about which 

documents may be incorporated by 

reference.248

Without the provisions relating to the 

five-year limit, little substance remains 

in Item 10(d). Therefore, to simplify the 

requirements, we are proposing to move 

the remaining provision in Item 10(d) 

prohibiting indirect incorporation by 

reference into the other rules governing 

incorporation by reference.249 In the 


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incorporated by reference to the specific document 

and to the prior filing or submission in which such 

document was physically filed or submitted. We are 

proposing to eliminate this provision because 

similar provisions exist in Rule 411(d), Rule 12b– 

23(b), Rule 0–4(c), and Rule 0–6(c). 250As part of these amendments, we are 

proposing amendments to various Investment 

Company Act forms to eliminate references to Item 

10(d), along with outdated references in our forms 

and Rule 0–4 and Rule 0–6 to 17 CFR 228.10(f), a 

former rule under Regulation S–B which was 

rescinded in 2007. See Smaller Reporting Company 

Regulatory Relief and Simplification, Release No. 

33–8876 (Dec. 19, 2007) [73 FR 934 (Jan. 4, 2008)]. 

251See FAST Act Report, supra note 2, at 

Recommendation A.2 (‘‘These rules could be 

consolidated in Item 10(d) for submissions that are 

required to comply with Regulation S–K.’’). When 

the Commission adopted the integrated disclosure 

system, it indicated that it intended to bifurcate the 

regulations into procedural requirements and 

substantive disclosure requirements. See Proposed 

Revision of Regulation C, Registration and 

Regulation 12B, Registration and Reporting, Release 

No. 33–6333 (Aug. 6, 1981) [46 FR 41971 (Aug. 18, 

1981)] (‘‘In its development of an integrated 

disclosure system, the Commission has sought to 

consolidate requirements relating to substantive 

disclosure and document content in Regulation S– 

K. The proposals in this release reflect the 

continuation of that process and also the effort to 

simplify and consolidate procedural requirements 

in Regulations C and 12B.’’); Integrated Disclosure 

System Adopting Release, supra note 69 (‘‘The third 

aspect of the integrated disclosure system consists 

of Regulation C and Regulation 12B, which contain 

the procedures to be used in preparing and filing 

registration statements and reports under the 

Securities Act and the Exchange Act, 

respectively.’’). Nevertheless, the rules governing 

incorporation by reference could be consolidated in 

Regulation S–K. We are soliciting comment on 

whether such an approach would be preferable. 

252See Rule 12b–1 [17 CFR 240.12b–1] (setting 

forth the scope of Regulation 12B). 

253See Rule 400 [17 CFR 230.400] (setting forth 

the scope of Regulation C). 

254See Integrated Disclosure System Adopting 

Release, supra note 69; Proposed Revision of 

Regulation C, Registration and Regulation 12B, 

Registration and Reporting, Release No. 33–6333 

(Aug. 6, 1981) [46 FR 41971 (Aug. 18, 1981)] 

(‘‘While it is generally proper to prevent 

prospectuses from incorporating exhibits which are 

not delivered, the Commission does not believe it 

is necessary to impose such limits in connection 

with Exchange Act reports which are not actually 

delivered in registered public offerings of 

securities.’’). 

255See Rule 12b–23(a)(3) [17 CFR 240.12b– 

23(a)(3)](providing exceptions for a proxy or 

information statement incorporated by reference in 

response to Part III of Form 10–K, a form of 

prospectus filed pursuant to Rule 424(b) [17 CFR 

230.424(b)] incorporated by reference in response to 

Item 1 of Form 8–A, and information filed on Form 

8–K). 

256See Registration and Reporting and Form for 

Annual Reports of Employee Stock Purchase Plans, 

Release No. 34–9048 (Jan. 4, 1971) [36 FR 4483 

(Mar. 6, 1971)] (‘‘In order that the microfiche system 

for the public dissemination of reports and 

documents filed with [the] Commission may work, 

the amended rule requires that copies of 

information or financial statements incorporated by 

reference, or copies of the pertinent pages of any 

document containing such information or 

statement, be filed with the registration statement 

or report in which it is so incorporated.’’). 

257See Rule 8b–23(a) [17 CFR 270.8b–23(a)]. In 

addition, Rule 0–4 under the Investment Company 

Act and Rule 0–6 under the Investment Advisers 

Act permit the incorporation by reference as an 

exhibit in any registration statement, application or 

report (in the case of Rule 0–4) or in any application 

(in the case of Rule 0–6) any document or part 

thereof previously or concurrently filed with the 

FAST Act Report, the staff 

recommended consolidating the 

incorporation by reference rules in Item 

10(d). After considering this 

recommendation, we believe that 

consolidating these procedural rules in 

Regulation C and Regulation 12B (and, 

for investment companies and 

investment advisers, in Rule 0–4 under 

the Investment Company Act and Rule 

0–6 under the Investment Advisers Act, 

respectively 250) would better align with 

the Commission’s original intent of 

focusing Regulation S–K on substantive 

disclosure requirements.251

Request for Comment 

65. Should we consolidate the 

requirements governing incorporation 

by reference as proposed? Would the 

proposed structure of the incorporation 

by reference rules be simpler for 

registrants, particularly smaller 

registrants, to follow? Instead of 

preserving the different rules for 

incorporation by reference under 

Regulation C and Regulation 12B, 

should we combine Rule 411, Rule 12b– 

23, and Rule 12b–32 in a single item of 

Regulation S–K? Would that facilitate or 

streamline compliance with the rules? 

66. Should we eliminate Item 10(d)’s 

five-year limit on incorporation by 

reference as proposed? Given the 

exceptions that exist and the 

Commission’s electronic filing 

requirements, is the five-year limit 

obsolete? Would eliminating the fiveyear limit make it difficult for investors 

to locate information that a registrant 

incorporates by reference? 

67. For investment companies and 

investment advisers, should we 

consolidate the different rules for 

incorporation by reference into Rule 

0–4 and Rule 0–6, respectively as 

proposed? Would this structure be 

simpler for investment companies and 

investment advisers to follow, or are 

there special considerations regarding 

investment companies and investment 

advisers that make the current or 

another structure more appropriate? 

2. Securities Act Rule 411, Exchange 

Act Rule 12b–23 and Rule 12b–32 and 

Related Rules Under the Investment 

Company Act and Investment Advisers 

Act 

Rule 12b–23 governs incorporation by 

reference for registration statements 

filed pursuant to Sections 12(b) and 

12(g) of the Exchange Act and reports 

filed pursuant to Sections 13 and 15(d) 

of the Exchange Act.252 Rule 12b–23 

broadly allows for incorporation by 

reference in answer, or partial answer, 

to any item of an Exchange Act 

registration statement or report. Rule 

12b–32 governs incorporation by 

reference for exhibits filed with 

registration statements and reports. Rule 

411 governs incorporation by reference 

for registration statements filed under 

the Securities Act, including exhibits 

thereto.253 Rule 411 restricts 

incorporation by reference in a 

prospectus unless otherwise provided in 

the appropriate form but allows for 

incorporation by reference similar to 

Rule 12b–23 for the non-prospectus 

portions of a registration statement.254

Under the Investment Company Act, 

Rule 0–4 provides general incorporation 

by reference rules for investment 

company registration statements, 

applications, and reports filed with the 

Commission. Rule 8b–23 (additional 

incorporation by reference rules for 

registration statements and reports), 

Rule 8b–24 (rules regarding summaries 

or outlines of documents), and Rule 8b– 

32 (incorporation of exhibits by 

reference) provide additional 

incorporation by reference rules for 

investment company registration 

statements and reports. Under the 

Investment Advisers Act, Rule 0–6 

governs incorporation by reference for 

investment adviser applications for 

Commission orders under the 

Investment Advisers Act other than 

applications for registration as an 

investment adviser. 

a. Exhibit and Other Filing 

Requirements 

Rule 12b–23(a)(3) under the Exchange 

Act requires that copies of any 

information incorporated by reference 

must be filed as an exhibit, with limited 

exceptions.255 This provision was 

introduced in 1971 so that then-existing 

microfiche technology for the public 

dissemination of reports and documents 

filed with the Commission could 

function properly.256 Rule 411(b)(4) 

under the Securities Act has a more 

limited exhibit filing provision for nonprospectus information that is 

incorporated by reference into a 

document that does not comply with the 

five-year limit in Item 10(d). Rule 8b–23 

under the Investment Company Act 

generally requires investment company 

registrants to file with a registration 

statement or report a copy of any 

registration statement, report, or 

prospectus from which information is 

incorporated by reference, except in 

cases where the registration statement, 

report, or prospectus was filed 

electronically.257 We are proposing to 


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Commission. Both rules also permit the 

incorporation by reference of financial statements 

(or parts thereof), although Rule 0–6 specifies that 

the financial statements (or parts thereof) that are 

incorporated are to be filed as exhibits. For 

consistent rules under both Acts, we are proposing 

amendments to Rule 0–4 to specify that financial 

statements may be filed as exhibits to investment 

company applications, as Rule 0–6 currently 

specifies with respect to applications filed under 

the Investment Advisers Act. 

Furthermore, if the number of copies of any 

document from which information is incorporated 

by reference is less than the number of copies 

required to be filed with a registration statement, 

application, or report, Rule 0–4 and Rule 0–6 

require an investment company or applicant, 

respectively, to file as many additional copies of the 

document incorporated by reference as may be 

necessary to meet the requirements of the 

registration statement, application, or report. See 

Rule 0–4(a), Rule 0–6(a). We are proposing to 

eliminate the requirement to file additional copies 

from Rule 0–4 because most investment company 

filings are available on EDGAR. Although 

investment adviser applications are filed in paper 

format, in the staff’s experience, those applications 

rarely incorporate by reference information as 

permitted by Rule 0–6. For our regulatory purposes, 

we do not believe that the number of copies 

specified in current Rule 0–6 is needed. Thus, for 

the foregoing reasons and for consistency purposes, 

we are similarly proposing to eliminate the 

requirement to file additional copies from Rule 0– 

6. 

258See Letters from ABA and Fenwick. See also 

FAST Act Report, supra note 2, at Recommendation 

A.2. 

259We note that investment advisers register and 

submit some filings to the Commission 

electronically through the Investment Adviser 

Registration Depository (‘‘IARD’’). 

260See Integrated Disclosure System Adopting 

Release, supra note 69 (adopting Item 601(b)(28)(ii), 

which is now found in Item 601(b)(99)(ii)) and 

Proposed Revision of Regulation S–K and Proposed 

Rescission of Guides for the Preparation and Filing 

of Registration Statements and Reports, Release No. 

33–6332 (Aug. 6, 1981) [46 FR 41925 (Aug. 18, 

1981)]. 

261See infra Section II.F.2.b. (Incorporation by 

Reference—Hyperlinks). 

262See Letters from ABA and Fenwick. 

263For example, annual reports are required to be 

delivered to security holders. See Rule 14a–3(b) and 

Rule 14c–3(a) [17 CFR 240.14a–3(b) and 14c–3]. 

Such reports must also be provided to the 

Commission. See Rule 14a–3(c) [17 CFR 240.14a– 

3] and Rule 14c–3(b) (requiring hard copies of these 

reports to be delivered to the Commission). 

264See Letters from Chamber; FedEx; Fenwick; 

and CGCIV. See also FAST Act Report, supra note 

2, at n.34. We are not proposing similar 

amendments to Rule 0–6 because applications 

under the Investment Advisers Act filed pursuant 

to that rule are not required to be filed 

electronically. In addition, applications filed 

pursuant to Rule 0–6 may incorporate information 

that may not be filed on EDGAR. 

265 17 CFR 239.40. 

266See Exhibit Hyperlinks Adopting Release, 

supra note 14, at 14130. 

267See id. at 14130. Larger registrants were 

required to comply with the rules requiring exhibit 

hyperlinks for filings submitted on or after 

September 1, 2017. Id. The rules we adopted at that 

time did not generally apply to investment 

companies. However, as discussed below, we are 

proposing to apply similar requirements to certain 

filings by investment companies in this release. See 

infra Section II.G.2. 

268See proposed Rule 105(e) of Regulation S–T. 

We do not believe that the proposed amendments 

would significantly increase the number of filings 

that must be in HTML format. Filings that are not 

subject to Rule 411 or Rule 12b–-23, such as proxy 

Continued 

eliminate these requirements, consistent 

with commenters’ suggestions and the 

staff’s recommendation in the FAST Act 

Report to make the rules for 

incorporation by reference more 

consistent, and to apply consistent rules 

for incorporation by reference under the 

Investment Company Act and 

Investment Advisers Act.258 We no 

longer believe that these requirements 

are necessary as most Exchange Act 

filings are made publicly available on 

EDGAR, and as we generally do not 

have similar exhibit filing requirements 

for Securities Act registration 

statements.259

In connection with these proposed 

amendments, we are also proposing to 

eliminate the corresponding exhibit 

requirement in Item 601(b)(99)(ii) of 

Regulation S–K, which was adopted in 

connection with Rule 12b–23(a) and 

Rule 411(b)(4).260 In addition to Item 

601(b)(99), other provisions in Item 601 

require documents to be filed as exhibits 

only when they are incorporated by 

reference into a filing. For example, 

Item 601(b)(13) requires a registrant to 

file an annual report to security holders, 

Form 10–Q or quarterly report to 

security holders as an exhibit when the 

registrant incorporates all or a portion of 

such reports by reference. Although 

annual reports to security holders are 

readily available to investors and the 

staff outside of EDGAR, we believe it is 

appropriate to retain the exhibit 

requirement in these circumstances 

because some registrants satisfy their 

disclosure requirements by 

incorporating a significant amount of 

disclosure from these reports. We are 

not proposing to eliminate these other 

exhibit filing requirements in Item 601. 

Nonetheless, we are proposing to 

eliminate the requirement in Item 

601(b)(13) to file a Form 10-Q as an 

exhibit when it is specifically 

incorporated by reference into a 

prospectus. This provision would no 

longer be necessary because, under the 

proposed rules, a registrant would be 

required to include a hyperlink to any 

information that is incorporated by 

reference to a document available on 

EDGAR.261

Request for Comment 

68. Should we eliminate the 

requirement in Rule 12b–23(a)(3) and 

Rule 411(b)(4) that copies of information 

incorporated by reference be filed as 

exhibits to registration statements or 

reports? Would eliminating these 

requirements encourage incorporation 

by reference as suggested by some 

commenters? 262 Would eliminating the 

requirement make it difficult for 

investors to locate the incorporated 

information on EDGAR? 

69. Should we modify, as proposed, 

the exhibit filing provisions in Rule 

0–4, Rule 8b–23, and Rule 0–6 regarding 

materials incorporated by reference? Are 

there special considerations regarding 

investment companies and applications 

under the Investment Advisers Act that 

merit maintaining or modifying the 

current provisions we are proposing to 

eliminate? Should we specify in Rule 

0–4, as proposed, that financial 

statements may be filed as exhibits to 

investment company applications, as 

Rule 0–6 currently specifies with 

respect to applications filed under the 

Investment Advisers Act? Given that 

applications under the Investment 

Advisers Act are filed with the 

Commission in paper, should our final 

rules continue to require the filing of 

additional copies of materials 

incorporated by reference? 

70. Some documents are required to 

be filed as exhibits only when they are 

incorporated by reference into a filing. 

For example, Item 601(b)(13) requires an 

annual report to security holders to be 

filed as an exhibit to a Form 10–K when 

all or part of the annual report is 

incorporated by reference into the text 

of Form 10–K. Should we amend Item 

601(b)(13) or other provisions in Item 

601 to eliminate these requirements (or 

is the proposed elimination of Rule 

12b–23(a)(3) sufficient to encourage 

incorporation by reference)? Please 

address the availability of the 

information called for by Item 601 to 

investors and the Commission in your 

response.263

b. Hyperlinks 

Consistent with the recommendation 

of commenters and the staff, we are 

proposing to facilitate greater investor 

access to disclosure by amending Rule 

411, Rule 12b–23, and Rule 0–4 to 

require hyperlinks to information that is 

incorporated by reference if that 

information is available on EDGAR.264

The Commission recently adopted rules 

requiring hyperlinks to most exhibits 

filed pursuant to Item 601, Form F– 

10 265 or Form 20–F.266 To 

accommodate hyperlinks, those filings 

must be made in HTML format.267 The 

requirement to file documents in HTML 

format would be expanded under the 

proposed rules to include filings that are 

subject to the proposed hyperlinking 

requirements in Rule 411, Rule 12b–23, 

and Rule 0–4.268 We believe that 


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statements on Schedule 14A, would not be affected 

by this proposal. 

269 17 CFR 239.13. 

270 17 CFR 239.33. 

271See Exhibit Hyperlinks Adopting Release, 

supra note 14, at 14131. See also FAST Act Report, 

supra note 2, at n.31 and accompanying text. 

272See Exhibit Hyperlinks Adopting Release, at 

14130. 

273See Exhibit Hyperlinks Adopting Release, 

supra note 14, at n.73. 

274See FAST Act Report, supra note 2, at 

Recommendation A.2. 

275See Letters from Deloitte & Touche LLP (July 

15, 2016); CAQ; Ernst & Young 3; PNC; Grant 

Thornton LLP (July 21, 2016); KPMG; PWC; Crowe 

Horwath LLP (July 21, 2016) (‘‘Crowe Horwath’’); 

and CFA Institute. 

276Although Rule 411 restricts incorporation by 

reference in a prospectus, it does not prohibit crossreferences within a prospectus. Also, Securities Act 

forms, such as Forms S–1 and S–3, permit 

incorporation by reference in the prospectus if 

specified conditions are met. 

277See, e.g., Item 101(b) and Item 101(d)(2) of 

Regulation S–K [17 CFR 229.101(b) and (d)(2)]. 

278For example, disclosure about legal 

proceedings, transactions with related persons and 

matters relevant to MD&A might be disclosed in the 

financial statements. 

279See supra note 275 and accompanying text. 

280See our proposed amendments to Rule 411, 

Rule 12b–23, and Rule 0–4 and Securities Act 

Forms S–1, S–3, S–11, and F–1. This approach 

would also avoid the concern raised by one 

commenter that registrants may lose their Securities 

Act Section 27A [15 U.S.C. 77z–2] safe harbor by 

cross-referencing to the body of a periodic report 

within their financial statements. See Letter from 

General Motors. Because Rule 0–6 governs 

incorporation by reference only for applications 

filed under the Investment Advisers Act, we are not 

proposing to make similar amendments to that rule, 

but request comment on whether the final rule 

should include such provision. 

281For example, registrants would continue to be 

permitted to include cross-references in the 

financial statements to information outside of the 

financial statements about segments when that 

information conforms with generally accepted 

accounting principles. See Item 101(b) of 

Regulation S–K. 

expanding the hyperlinking requirement 

to other information that is incorporated 

by reference would improve the 

readability and navigability of 

disclosure documents and discourage 

repetition, consistent with our FAST 

Act mandate. 

The proposed requirements for 

hyperlinking are similar to the 

requirements for exhibit hyperlinking. 

Specifically, under the proposed 

amendments, registrants would not be 

required to file an amendment to a 

document solely to correct an inaccurate 

hyperlink unless, that hyperlink was 

included in a pre-effective registration 

statement. An inaccurate hyperlink 

alone would neither render the filing 

materially deficient nor affect a 

registrant’s eligibility to use Form S– 

3 269 or Form F–3.270 Lastly, we are not 

proposing to require refiling of 

information that is incorporated by 

reference from a document that was 

previously filed with the Commission in 

paper. Similar to our reasoning in the 

Exhibit Hyperlinks Adopting Release, 

we believe that requirement would have 

limited utility given that electronic 

filing has been required for over two 

decades and paper filings are currently 

made in very limited circumstances.271

Unlike the requirements for exhibit 

hyperlinking, however, a registrant 

would not be required to correct 

inaccurate hyperlinks in an effective 

registration statement by including a 

corrected hyperlink in a subsequent 

periodic report or a post-effective 

amendment. We preliminarily believe 

that it would result in more confusion 

than clarity if we were to require 

registrants to re-file disclosure to correct 

a hyperlink or to include a section 

solely devoted to corrected hyperlinks 

in the body of a periodic report or posteffective amendment. This differs from 

exhibit hyperlinks where the corrected 

hyperlink would be unobtrusively 

located in the exhibit index with other 

exhibits. The requirement in proposed 

Rule 411, Rule 12b–23, and Rule 0–4 to 

describe the location of the information 

incorporated by reference should 

mitigate the impact of any inaccurate 

hyperlinks. 

Request for Comment 

71. As proposed, in most cases a 

registrant would be required to include 

a hyperlink to information that it 

incorporates by reference. Would the 

proposed hyperlinking requirements 

significantly increase the compliance 

burden on registrants? Should we 

provide a delayed compliance date for 

smaller reporting companies and ASCII 

filers? 272 If so, what compliance date 

would be appropriate? Should we 

provide any exceptions to the proposed 

hyperlinking requirement? For example, 

should we exclude references to entire 

forms that are readily accessible on 

EDGAR, such as Form 10–K, or for 

particular types of disclosure? If so, 

which forms or types of disclosure 

would be appropriate and why? 

72. Should investment companies be 

required to include a hyperlink to 

information incorporated by reference 

as proposed? Are there special 

considerations regarding filings by 

investment companies that merit 

modifying the requirement in any way? 

For example, should investment 

company applications be required to 

include a hyperlink to information that 

is incorporated by reference? 

73. When should registrants be 

required to update inaccurate 

hyperlinks? Should these updating 

requirements differ from the 

requirements to update inaccurate 

exhibit hyperlinks as proposed? 273

Should we instead require registrants to 

update hyperlinks in a post-effective 

amendment or subsequent periodic 

report? 

74. Should we amend our forms to 

clarify that information incorporated by 

reference must include a hyperlink to 

where that information may be found on 

EDGAR? Would the requirements be 

sufficiently clear if we include them 

only in the rules as proposed? 

c. Financial Statements 

In addition to addressing 

incorporation by reference, the FAST 

Act Report recommended that we 

consider revising our rules and forms to 

allow for consistent cross-referencing to 

disclosure found elsewhere in a 

filing.274 To address the concern that 

cross-referencing to non-financial 

information from within the financial 

statements may raise questions about 

the scope of an audit or review, the staff 

recommended that we consider 

prohibiting the use of such crossreferencing. Several commenters on the 

Concept Release also supported using 

cross-references to reduce repetitive 

disclosure while recommending that the 

Commission clarify or delineate what 

information constitutes the set of 

audited or reviewed financial 

statements.275

In most cases, there is no prohibition 

on cross-referencing to or incorporating 

information from the financial 

statements to satisfy the narrative 

disclosure requirements of Regulation 

S–K.276 In some cases cross-referencing 

is specifically permitted.277 Therefore, 

although we encourage registrants to 

make use of the disclosure in their 

financial statements to satisfy other 

disclosure requirements,278 we are not 

proposing clarifying amendments to our 

rules or forms to address incorporation 

by reference from the financial 

statements at this time. 

By contrast, where financial 

statements cross-reference or 

incorporate information from outside 

the financial statements, it can raise 

questions as to the scope of an auditor’s 

responsibilities.279 To address this 

concern, we are proposing amendments 

to our rules and forms that would 

prohibit that type of incorporation by 

reference or cross-referencing.280 These 

amendments would not prohibit crossreferences to other parts of a filing when 

otherwise specifically permitted by our 

rules.281 These amendments would also 

not prohibit incorporating financial 

information from other filings to satisfy 


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282For example, registrants using Form S–3 

would continue to be permitted to incorporate 

financial statements filed with a Form 8–K that 

reports the acquisition of a significant business. 

Also, registrants using Form S–4 to report a merger 

with another registrant would continue to be able 

to incorporate the financial statements of the 

registrant filed on Form 10–K and Form 10–Q. 

283See proposed Rule 0–4(b). 

284See Rule 411(b)(2) (discussing the 

incorporation by reference of financial information 

in the non-prospectus portion of a registration 

statement) and Rule 12b–23(a)(1). 285Similar language also exists in Rule 8b–23, 

which we are proposing to rescind. 

286See Integrated Disclosure System Adopting 

Release, supra note 69. 

287The proposed amendments would conform the 

language of Rule 12b–32 (as incorporated into Rule 

12b–23) with similar language currently found in 

Rule 411(c). References to 17 CFR 228.10(f), which 

no longer exists, would be eliminated. 

288As with the proposed amendments to Rule 

12b–23, we are proposing to conform the language 

of paragraphs (a) and (b) of Rule 8b–32 (as 

incorporated into Rule 0–4) with similar language 

currently found in Rule 411(c). References to 17 

CFR 228.10(f), which no longer exists, would 

similarly be eliminated. 

289See Rule 8b–32(c). 

290See, e.g., Rule 201(b) of Regulation S–T [17 

CFR 232.201(b)], Notes 2 and 3 to Rule 202 of 

Regulation S–T [17 CFR 232.202]. 

291See paragraph (a)(iv) of Rule 101 of Regulation 

S–T [17 CFR 232.101] (specifying the investment 

company filings required to be submitted 

electronically). 

292See Rule 0–4(b), Rule 0–6(b). 

financial reporting requirements when 

otherwise permitted or required.282

We are also proposing an amendment 

to Rule 0–4 that, except as provided in 

the Commission’s rules, would restrict 

the incorporation of financial 

information required to be given in 

comparative form for two or more fiscal 

years or periods unless the information 

incorporated by reference includes the 

entire period for which the comparative 

data is given.283 We are proposing this 

amendment to provide for consistency 

with similar restrictions under both 

current and proposed Rule 411 and Rule 

12b-23 and request comment on 

whether this amendment is appropriate. 

Request for Comment 

75. Should we amend our rules or 

forms to clarify or expand when 

financial statement disclosure may be 

used to satisfy other disclosure 

requirements? If so, are there particular 

areas of disclosure that we should 

address? 

76. To clarify the scope of the 

financial statements and an auditor’s 

responsibilities, we have proposed 

prohibiting registrants from 

incorporating or cross-referencing 

information outside of the financial 

statements into their financial 

statements unless otherwise specifically 

permitted or required by the 

Commission’s rules. Is the proposed 

approach appropriate or would an 

alternative approach better achieve this 

goal? Should we provide other 

exceptions to the proposed rule? 

77. Are the proposed amendments 

appropriate for investment companies? 

Do investment companies raise special 

considerations that our rules and forms 

should address? Should we amend Rule 

0–6 to provide for similar rules 

regarding the incorporation by reference 

of financial statements into applications 

under the Investment Advisers Act? 

Why or why not? 

d. Other Amendments 

We are also proposing several nonsubstantive changes to Rule 411, Rule 

12b–23 and Rule 0–4 to streamline, 

clarify, and conform these rules. One of 

these proposed changes relates to the 

current provisions governing how 

financial information from another 

filing may be incorporated by 

reference.284 Rule 12b–23 states that 

financial information incorporated by 

reference must comply with the 

requirements of the form or report into 

which it is incorporated. Rule 411 and 

Rule 0–4 contain similar language.285

These provisions could be read to imply 

that the financial statements must 

comply with the form on which they 

were originally filed, rather than the 

form into which they are being 

incorporated. We are proposing to 

eliminate these provisions because all 

information, not just information 

incorporated by reference or financial 

information, must comply with the 

requirements of the form in which it is 

used unless otherwise permitted by rule 

or statute. 

The proposed amendments would 

also eliminate several redundant 

provisions in Rule 411 and Rule 12b–23. 

Rule 411(b) provides that information 

may be incorporated by reference in 

answer, or partial answer, to any item 

that calls for information not required to 

be included in a prospectus ‘‘subject to 

the following provisions.’’ Although 

presented as conditions to using 

incorporation by reference, the 

provisions that follow mostly discuss 

situations where incorporation by 

reference is permitted by other parts of 

these rules. For example, Rule 411(b)(1) 

states that non-financial information 

may be incorporated by reference to any 

document in response to the nonprospectus disclosure requirements in 

filings under the Securities Act. Rule 

12b–23(a) contains a similar structure 

for any item of a registration statement 

or report. Further, Rule 411(b)(3) (for 

non-prospectus disclosure 

requirements) and Rule 12b–23(a)(2) 

both state that incorporating 

information by reference to other parts 

of the same filing is generally permitted. 

Incorporation by reference in all of these 

contexts is permitted by the broader 

provisions of Rule 411(b) and Rule 12b– 

23(a). Accordingly, we are proposing to 

eliminate paragraphs (b)(1) and (b)(3) of 

Rule 411 and paragraph (a)(2) of Rule 

12b-23, as these provisions are 

unnecessary. 

We are also proposing to move the 

provisions relating to incorporating 

exhibits by reference from Rule 12b–32 

into Rule 12b–23. Previously, 

Regulation C had a bifurcated structure, 

similar to Rule 12b–32 and Rule 12b–23, 

with both Rule 411 and Rule 447 

governing the incorporation of exhibits 

by reference for Securities Act filings. 

Rule 447 was consolidated into Rule 

411 in 1982.286 Although Rule 12b–32 is 

currently found under the exhibits 

subheading of Regulation 12B, we 

believe that reducing the number of 

separate rules governing incorporation 

by reference would simplify 

compliance. We are not proposing any 

substantive changes to Rule 12b–32.287

For similar reasons, we are proposing 

to move the provisions relating to 

incorporating exhibits by reference from 

Rule 8b–32 into Rule 0–4, with one 

exception.288 Under Rule 8b–32(c), an 

investment company may only 

incorporate by reference into a 

registration statement or report required 

to be filed electronically an exhibit that 

was filed in electronic format, unless 

the exhibit was filed in paper under a 

hardship exemption and any required 

confirming copy has been submitted.289

Given that EDGAR is now the primary 

method for the filing of investment 

company registration statements, 

applications, and reports with the 

Commission and our rules require the 

filing of electronic format copies of 

paper format documents filed under a 

hardship exemption,290 this provision is 

obsolete, and therefore, we are 

proposing to eliminate it.291

We are also proposing additional 

modifications to Rule 0–4 and Rule 0– 

6 to modernize and simplify these rules. 

First, we are proposing to eliminate the 

requirement that if a certificate of an 

independent public accountant 

previously or concurrently filed is 

incorporated by reference by an 

investment company (with respect to 

the filing of a registration statement, 

application, or report) or an investment 

adviser (with respect to the filing of an 

application) a written consent of the 

accountant must be filed with the 

filing.292 We note that Rule 439 under 


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293 17 CFR 239.439. 294See, e.g., General Instruction B.2(b) of Form 

N–1A. 

295Specifically, the rules restrict the 

incorporation by reference of exhibits or financial 

statements which (1) have been withdrawn, (2) 

were filed in connection with certain registration 

statements that have ceased to be effective, (3) are 

contained in filings subject to pending proceedings 

under (i) Section 8(b) or 8(d) of the Securities Act, 

(ii) Section 8(e) of the Investment Company Act, 

(iii) in the case of applications under Rule 0–6, 

Section 203(e)(1) of the Investment Advisers Act, or 

(iv) orders under any of the foregoing, and (4) in 

the case of investment companies, were documents 

filed in paper and with respect to an electronic filer 

under a temporary hardship exemption under Rule 

201 of Regulation S–T and an electronic copy has 

not been submitted. 

296As noted earlier, investment advisers register 

and submit some filings to the Commission 

electronically through IARD. 

297See proposed Rule 0–4(e), proposed Rule 0– 

6(b). A substantially similar provision exists in 

current Rule 8b–23(c) (which we are proposing to 

rescind) pertaining to information incorporated by 

reference into an investment company registration 

statement or report. 

298Although, as stated above, Rule 411, Rule 12b– 

23 and Rule 12b–32 generally govern incorporation 

by reference for filings subject to Regulation C or 

Regulation 12B, provisions in the forms that cover 

the same subject matter are controlling. See Rule 

400 [17 CFR 230.400] (stating that the provisions in 

a form, or an item of Regulation S–K referred to in 

such form, will control when they cover the same 

subject matter as a rule in Regulation C, unless 

otherwise specifically provided in Regulation C) 

and Rule 12b–1 (stating that provisions in a form 

will control when they cover the same subject 

matter as a rule in Regulation 12B). 

299Rule 12b–13 requires registrants to include the 

numbers and captions of all items in these forms. 

Although provisions in a form control when they 

cover the same subject matter as a rule in 

Regulation 12B, these forms do not contradict Rule 

12b–13. 

300The proposed amendments are not intended to 

change instances where the staff has interpreted a 

requirement to allow for a caption to be excluded. 

See, e.g., Regulation S–K Compliance and 

Disclosure Interpretation 233.02 (discussing the 

caption called for by Item 407(e)(4)). The proposed 

amendments would also not eliminate General 

Instruction G.4 of Form 10–K, which requires 

captions when the registrant incorporates all of the 

information in its Form 10–K by reference to its 

annual report to security holders and its definitive 

proxy or information statement. In connection with 

this proposal, we are also proposing to amend Rule 

12b–13 to make it clearer that the provisions of a 

form control over the requirements of that rule. 

the Securities Act 293 provides a similar 

requirement for these types of consents 

for registration statements under the 

Securities Act. We further note that our 

investment company registration forms 

do not require the filing of these 

consents where a registration statement 

or amendment is filed only under the 

Investment Company Act.294 We are 

unaware of circumstances under which 

a consent would be required in 

connection with an investment 

company report or an application filed 

by an investment company or 

investment adviser. Therefore, we are 

proposing to eliminate this requirement 

from Rule 0–4 and Rule 0–6 but request 

comment on whether the final rules 

should retain it. 

Second, we are proposing to eliminate 

the restrictions currently contained in 

Rule 0–4(d) and Rule 0–6(d) on 

incorporating by reference exhibits or 

financial statements made in certain 

filings.295 Given that EDGAR is now the 

primary method for the filing of 

registration statements and reports with 

the Commission, and that documents 

filed on EDGAR remain available 

regardless of whether a filing is 

withdrawn, whether a registration 

statement ceases to be effective, and 

whether the other circumstances 

outlined in Rule 0–4(d) and Rule 0–6(d) 

apply to a particular filing, these 

provisions are no longer necessary.296

For our regulatory purposes, we do not 

believe that the restrictions are needed. 

Thus, for the foregoing reasons and for 

consistency purposes, we are proposing 

to eliminate this provision from Rule 0– 

4 and Rule 0–6 but request comment on 

whether the final rules should retain it. 

Finally, we are proposing to eliminate 

the provisions currently contained in 

Rule 0–4(e) and Rule 0–6(e). These 

provisions provide that the Commission 

may refuse to permit incorporation by 

reference in any case in which, in the 

Commission’s judgment, such 

incorporation would render a 

registration statement or report of an 

investment company or an application 

filed by an investment adviser 

incomplete, unclear, or confusing. 

Instead, for consistency with proposed 

Rule 411(e) and proposed Rule 12b– 

23(e), we are proposing to amend Rule 

0–4 and Rule 0–6 to contain a general 

requirement that information must not 

be incorporated by reference in any case 

where such information would render 

the disclosure incomplete, unclear, or 

confusing.297

Request for Comment 

78. We are proposing to eliminate 

several redundant parts of the rules that 

address incorporation by reference. Are 

those provisions helpful to 

understanding whether and when 

incorporation by reference is permitted? 

Should we include those provisions in 

instructions to the rules or in other 

guidance? 

79. Are the proposed amendments 

appropriate with respect to investment 

companies, or do investment companies 

raise special considerations that our 

rules should address? For example, 

should our rules maintain the current 

restriction contained in Rule 8b–32(c) 

regarding exhibits filed as part of 

registration statements and reports 

required to be filed electronically? 

Should our rules retain the current 

requirement that a consent be filed 

where an independent public 

accountant certificate is incorporated by 

reference? Should our rules retain the 

current prohibitions on incorporating by 

reference information filed as part of 

certain filings specified in Rule 0–4(d) 

and Rule 0–6(d)? In these cases, should 

our rules retain the current provisions of 

our rules, or should they be modified in 

any way? If so, how? 

80. Are the proposed amendments to 

Rule 0–4 and Rule 0–6 sufficient to help 

ensure that information incorporated by 

reference into a registration statement, 

report, or application does not render 

the disclosure in these documents 

incomplete, unclear, or confusing? If so, 

should we, as proposed to provide 

regulatory consistency between 

operating companies on the one hand 

and investment companies and 

investment advisers on the other, 

eliminate the current provisions in Rule 

0–4(e) and Rule 0–6(e) that the 

Commission may refuse to permit 

incorporation by reference in any case 

in which in its judgment the 

incorporation would render a 

registration statement, report, or 

application incomplete, unclear, or 

confusing? Why or why not? If retained, 

should the provisions be modified in 

any way, and if so, how? 

81. Are the proposed rules governing 

incorporation by reference under the 

Investment Company Act or Investment 

Advisers Act sufficiently clear? Should 

we modify them in any other respect? 

For example, should our rules expressly 

permit or prohibit information to be 

incorporated into the body of an 

application? 

3. Forms 

Incorporation by reference is also 

addressed in our forms.298 Accordingly, 

we are proposing revisions to several of 

the Commission’s forms to implement 

the proposed amendments discussed 

above. In addition to conforming 

changes, we are proposing amendments 

to Form 10, Form 10–K and Form 20– 

F to allow registrants to exclude item 

numbers and captions or to create their 

own captions tailored to their 

disclosure.299 The proposed 

amendments would not affect captions 

that are expressly required by the forms 

or Regulation S-K. For example, Form 

10–K and Form 20–F require captions 

for ‘‘audit fees,’’ ‘‘audit-related fees,’’ 

‘‘tax fees,’’ and ‘‘all other fees.’’ 

Regulation S–K requires a caption for 

‘‘risk factors.’’ 300 These proposed 

amendments are intended to reduce the 

use of unnecessary cross-references 


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301A commenter recommended amending our 

rules to include a ‘‘policy’’ on avoidance of 

duplication that would clarify that a registrant is 

not required to repeat or include cross-references to 

disclosure found elsewhere in a document when 

responding to specific line item requirements; 

however, we believe amending our forms in the 

manner proposed would provide clearer guidance 

for registrants. See Letter from ABA. 

302See Securities Act Rule 404 [17 CFR 230.404] 

and Exchange Act Rule 12b–13 [17 CFR 240.12b– 

13]. Rule 404 does not require the numbers or 

captions of items to be included in a prospectus, 

but does require them for the non-prospectus 

portion of a registration statement. See Rule 404(d). 

303See supra note 300 and accompanying text. 

304See Letter from ABA. 

305For example, subject to certain conditions, 

Form S–1 allows registrants to incorporate 

information by reference in most of the items of Part 

I—Information Required in Prospectus. See General 

Instruction VII and Item 12 of Form S–1. 

306After consideration of the staff’s 

recommendation G.2. in the FAST Act Report, we 

are not, at this time, proposing to require the use 

of external hyperlinks whenever our rules call for 

the inclusion of an internet address. In the FAST 

Act Report, the staff recommended requiring 

external hyperlinks provided that the appropriate 

technology is available to prevent these hyperlinks 

from jeopardizing the security and integrity of the 

EDGAR system. See FAST Act Report, supra note 

2, at n.15. 

307For domestic disclosure forms, the XBRL datatagging requirements are imposed through Item 

601(b)(101) of Regulation S–K and Rule 405(b) of 

Regulation S–T. See Item 601(b)(101) of Regulation 

S–K and Rule 405(b) of Regulation S–T [17 CFR 

232.405(b)]. For foreign disclosure forms, analogous 

XBRL tagging requirements are included in the 

instructions to the relevant forms. See, e.g., 

paragraphs 100 and 101 of the Instructions to 

Exhibits to Form 20–F. 

308See Rule 405 of Regulation S–T [17 CFR 

232.405]; See also Interactive Data to Improve 

Financial Reporting, Release No. 33–9002 (Jan. 30, 

2009) [74 FR 15666] (discussing the requirement to 

tag document and entity identifier elements, such 

as form type, company name, and public float, 

according to Regulation S–T and the EDGAR Filer 

Manual). 

309See FAST Act Report, supra note 2, at 

Recommendations G.1. 

310 In the traditional XBRL format currently 

required for financial statements, none of the 

registrant’s XBRL data is embedded into an HTML 

document. Instead, an exhibit containing all XBRL 

data is filed with the relevant form. Inline XBRL 

allows filers to embed XBRL data directly into an 

HTML document, eliminating the need to tag a copy 

of the information in a separate document. 

311See Inline XBRL Filing of Tagged Data, 

Release No. 33–10323 (Mar. 1, 2017) [82 FR 14282 

(Mar. 17, 2017)] (‘‘Inline XBRL Proposing Release’’). 

As part of the proposal, we also proposed to require 

the use of Inline XBRL format for the submission 

of mutual fund risk/return summary information. 

See also Order Granting Limited and Conditional 

Exemption Under Section 36(a) of the Securities 

Exchange Act of 1934 from Compliance with 

Interactive Data File Exhibit Requirement in Forms 

6–K, 8–K, 10–Q, 10–K, 20–F and 40–F to Facilitate 

Inline Filing of Tagged Financial Data, Release No. 

34–78041 (Jun. 13, 2016) [81 FR 39741 (June 17, 

2016)] (exercising exemptive authority ‘‘to permit, 

but not require, operating companies to use Inline 

Continued 

when information may be responsive to 

more than one disclosure item in the 

Exchange Act forms.301

While item numbers and captions are 

generally not required in the prospectus 

portion of most Securities Act filings, 

they are required in many Exchange Act 

forms.302 Although clear disclosure will 

often call for appropriate headings or 

captions, the proposed amendments 

would provide registrants with more 

flexibility in how they present their 

disclosure. Increasing flexibility in this 

manner may reduce repetitive 

disclosure or unnecessary crossreferences when information may be 

responsive to more than one item and 

thereby enhance the overall readability 

of required disclosures. 

Request for Comment 

82. Should we amend Form 10, Form 

10–K, and Form 20–F to eliminate the 

requirements to include most item 

numbers and captions as proposed? 

Would the proposed amendments to 

these forms lead to disclosure that is 

less clear or less comparable across 

registrants? Under the proposed 

amendments, a few required captions 

would remain, such as the caption for 

‘‘risk factors’’ and the captions required 

by General Instructions G.4 of Form 10– 

K.303 Should we retain these 

requirements, or should they also be 

eliminated? 

83. Would increasing flexibility in 

how the disclosure in Form 10, Form 

10–K, and Form 20–F is presented lead 

to less repetitive disclosure? Should we 

eliminate the requirements to include 

item numbers and captions in other 

forms, such as in Part II of Form 10–Q 

or in Form 8–K? 

84. In addition to or in lieu of 

eliminating the requirements for most 

item numbers and captions, should we 

amend our rules to provide guidance on 

the use of cross-references, as suggested 

by one commenter? 304 If so, how should 

the guidance discourage excessive crossreferencing while acknowledging that 

some cross-references may be necessary 

to provide clear disclosure? Should the 

cross-referencing guidance differ based 

on the nature of the document or the 

disclosure? For example, should the 

guidance treat a prospectus differently 

from a Form 10–K filing, or treat 

information in the financial statements 

differently from narrative disclosure? 

85. The proposed amendments would 

not alter the general rule that a 

prospectus may not incorporate 

information by reference unless 

permitted by the appropriate form. Our 

forms, however, typically provide 

registrants with significant latitude to 

incorporate information by reference 

when specified conditions are met.305

Should we change the information that 

may be incorporated by reference into a 

prospectus under any of our forms? If 

so, which information, and why? 

G. Manner of Delivery 306

1. Tagging Cover Page Data 

Currently, operating company 

registrants are required to file their 

financial statements as an exhibit in a 

machine-readable format using 

eXtensible Business Reporting Language 

(‘‘XBRL’’).307 This disclosure is required 

as an exhibit to periodic reports and 

Securities Act registration statements, 

including reports on Form 8–K or Form 

6–K that contain revised or updated 

financial statements. 

Registrants must also tag in XBRL a 

specific group of data points that 

appears on the cover page of the filing. 

These specific data points, which are 

tagged according to Regulation S–T and 

the EDGAR Filer Manual, are known as 

document and entity identifier elements 

(‘‘DEIs’’) and include, among others, 

form type, company name, filer size, 

and public float.308 This information 

corresponds to some, but not all, of the 

information that registrants are required 

to include on the filing cover page. For 

example, the Form 10-K cover page 

contains approximately 25 data points. 

Less than half of those data points are 

currently required to be tagged in XBRL. 

The non-tagged data points include, 

among others, the exchange on which 

securities are registered and the state (or 

jurisdiction) of incorporation. 

In the FAST Act Report, the staff 

recommended that the Commission 

consider requiring operating company 

registrants to tag in XBRL all the data 

points on the cover pages of Form 10– 

K, Form 10–Q, Form 8–K, Form 20–F, 

and Form 40–F. The staff also 

recommended that the Commission 

consider revising the cover page of these 

forms to include the trading symbol for 

each class of securities registered under 

the Exchange Act and require registrants 

to format this additional data point in 

XBRL.309

We are proposing amendments to 

require all of the information on the 

cover pages of Form 10–K, Form 10–Q, 

Form 8–K, Form 20–F, and Form 40–F 

to be tagged in Inline XBRL in 

accordance with the EDGAR Filer 

Manual. Under the proposed 

amendments, the cover page data would 

appear in HTML format with embedded 

XBRL data. We recently proposed to 

require the use of the Inline XBRL 

format, where XBRL data is embedded 

into an HTML document, instead of the 

traditional XBRL format 310 for the 

submission of operating company 

financial statements.311 We intend for 


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XBRL in their periodic and current reports under 

the Exchange Act through March 2020’’). 

312 In the Disclosure Update and Simplification 

Proposing Release, we have proposed to amend 

Item 201(a) to also require disclosure of the trading 

symbol(s) for each class of a registrant’s common 

equity. See Disclosure Update and Simplification 

Proposing Release, supra note 13, at 51637. 

313See Exhibit Hyperlinks Adopting Release, 

supra note 14 at 14130. 

314 17 CFR 232.102. 

the cover page data to be tagged in the 

same format as this other information. 

Therefore, if the Inline XBRL proposal 

is not adopted, we are proposing, as an 

alternative, to require operating 

company filers to tag each cover page 

data point in an XBRL exhibit to the 

relevant filing. 

To implement the cover page tagging 

requirements, we propose to add new 

Rule 406 to Regulation S–T, new Item 

601(b)(104) to Regulation S–K, new 

paragraph 104 to the ‘‘Instructions as to 

Exhibits’’ of Form 20–F and new 

paragraph B.17 to the ‘‘General 

Instructions’’ of Form 40–F to require 

registrants to file with each of the 

specified forms a ‘‘Cover Page 

Interactive Data File.’’ Under the 

proposed amendments, registrants filing 

Form 20–F and Form 40–F would be 

required to tag cover page data only 

when those forms are used as annual 

reports. The proposed amendments 

would not apply to Form 20–F and 

Form 40–F when used as registration 

statements. We are also proposing to 

revise Rule 11 of Regulation S–T to add 

the term ‘‘Cover Page Interactive Data 

File.’’ The term would be defined as the 

machine readable computer code that 

presents the information required by 

Rule 406 of Regulation S–T in Inline 

XBRL format. 

We believe that the proposal to 

require mandatory tagging of all data 

points on the cover pages of the 

specified forms would allow investors 

to automate their use of this 

information. This would enhance their 

ability to identify, count, sort, and 

analyze registrants and disclosures to 

the extent these data points otherwise 

would be formatted solely in ASCII or 

HTML. At the same time, we do not 

expect the incremental compliance 

burden associated with tagging the 

additional cover page information to be 

significant, given that registrants already 

are required to tag some of this 

information as well as information in 

their financial statements. We therefore 

believe that the enhanced comparability 

and usability of these proposed 

disclosures would justify the burden of 

requiring registrants to tag the 

additional data and would help to 

modernize our disclosure system in a 

manner consistent with the FAST Act 

mandate. 

We are also proposing amendments to 

the cover pages of these forms to 

include the trading symbol for each 

class of registered securities.312 Because 

the cover pages of Form 10–K, Form 20– 

F, and Form 40–F already require 

disclosure of the title of each class of 

securities registered pursuant to Section 

12(b) of the Exchange Act and each 

exchange on which they are registered, 

our proposed amendments to these 

forms would revise the cover page to 

include a corresponding field for the 

trading symbol. Unlike Form 10–K, 

Form 20–F, and Form 40–F, however, 

the cover pages of Form 10–Q and Form 

8–K do not currently require disclosure 

of the title of each class of securities and 

each exchange on which they are 

registered. Accordingly, to ensure that 

registrants and their registered securities 

are identified in a consistent manner 

across forms, we are proposing to revise 

the cover pages of Form 10–Q and Form 

8–K to include this disclosure in 

addition to the trading symbol. 

Requiring the disclosure of trading 

symbols on the cover pages of periodic 

reports would facilitate investors’ efforts 

to search news websites and stock 

market databases for information about 

registrants and distinguish among 

similarly named companies. Further, we 

believe that requiring the tagging of 

trading symbols would allow investors 

to sort and compare filings and 

disclosures more easily and accurately. 

Request for Comment 

86. Should we require as proposed, all 

of the information on the cover pages of 

Form 10–K, Form 10–Q, Form 8–K, 

Form 20–F, and Form 40–F to be tagged 

in Inline XBRL? Should the proposed 

cover page tagging requirement apply to 

any other forms (e.g., Form 6–K)? 

87. Should we amend the cover pages 

of Form 10–K, Form 20–F, and Form 

40–F to include the trading symbol for 

each class of registered securities as 

proposed? Should we also revise the 

cover pages of Form 10–Q and Form 8– 

K as proposed, to include the title, 

trading symbol and exchange of each 

class of registered securities? 

88. Under the proposed amendments, 

Form 10–K, Form 10–Q, Form 8–K, 

Form 20–F, and Form 40–F would 

require each registrant to identify on the 

cover page of those forms the exchange 

on which each class of securities is 

registered. The proposed amendments 

to Item 501(b)(4) would require each 

registrant to identify on the cover page 

of the prospectus its principal U.S. 

market or markets for the securities 

being offered. Should we reconcile these 

differing cover page disclosures? If so, 

how? 

89. If we do not adopt Inline XBRL for 

the submission of operating company 

financial statements, should we instead 

require the cover page data to be tagged 

using traditional XBRL format? 

90. Instead of requiring the cover page 

data to be tagged using Inline XBRL or 

traditional XBRL format, should we 

require the cover page data to be 

submitted using an XML format? Why 

or why not? 

91. Are there any changes we should 

make to the proposed amendments to 

better ensure accurate and consistent 

tagging? If so, which changes should we 

make and why? 

92. Are there any disclosures 

discussed in this release that we should 

require to be provided in a structured 

format? For example, should we require 

the use of structured data within Item 

303(a) to facilitate readability and 

navigability of this disclosure for 

investors? Are there specific elements of 

Item 303(a) disclosure, such as the table 

of contractual obligations, which should 

be provided in a machine-readable 

structured data format? Would it be 

useful to investors to require registrants 

to provide any of the property 

disclosures under Item 102 in a 

machine-readable format, such as 

geospatial coordinates? To the extent 

that we consider additional structured 

data requirements in periodic reports, 

what level and type of structured data 

requirements would be appropriate? For 

example, should we require registrants 

to identify sections, subsections or 

topics with ‘‘block text’’ labels, or 

should we require registrants to 

structure numeric elements and tables 

individually? What would be the 

challenges and costs of such an 

approach? What would be the benefits? 

2. Exhibit Hyperlinks and HTML Format 

for Investment Companies 

As discussed above, the Commission 

recently adopted rules requiring 

hyperlinks to most exhibits filed 

pursuant to Item 601, Form F–10, and 

Form 20–F, and, to accommodate 

hyperlinks, those filings will be 

required to be made in HTML.313 In this 

release, we are proposing parallel 

amendments to certain of our forms that 

are used by investment companies and 

amendments to Rule 102 314 of 

Regulation S–T to apply similar 

hyperlinking and HTML requirements 

to those registrants to facilitate access to 

these exhibits for investors and other 

users of the information. 


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315As with the rules for operating companies, the 

proposed rules for investment companies would 

exclude any XBRL exhibits. See id. at 14133. 

316See proposed Instructions as to Exhibits of 

Form S–6; proposed Instruction to Item 28 of Form 

N–1A; proposed Instruction 4 to Item 25.2 of Form 

N–2; proposed Instruction 3 to Item 29(b) of Form 

N–3; proposed Instruction 3 to Item 24(b) of Form 

N–4; proposed Instructions as to Exhibits of Form 

N–5; proposed Item 26 of Form N–6; proposed 

Instruction to Item 16 of Form N–14; proposed 

Instruction to Item 12 of Form N–CSR. We are also 

proposing to amend Forms N–3 and N–14 to clarify 

that Rule 303 of Regulation S–T applies to 

registration statements on Forms N–3 and N–14 that 

are electronically filed. See proposed General 

Instruction G to Form N–3; proposed Instruction to 

Item 16 of Form N–14. 

317See Exhibit Hyperlinks Adopting Release, 

supra note 14, at 14133. 

318 17 CFR 232.105(d)(2). In the case of a 

registration statement that is not yet effective, the 

filer would be required to file an amendment to the 

registration statement containing the inaccurate or 

nonfunctioning link or hyperlink. In the case of a 

report on Form N–CSR, the filer would be required 

to correct the inaccurate or nonfunctioning link or 

hyperlink in its next report on Form N–CSR. In the 

case of a registration statement on Form S–6, Form 

N–14, Form N–5, Form N–1A, Form N–2, Form N– 

3, Form N–4, or Form N–6 that has become 

effective, the filer would be required to correct an 

inaccurate or nonfunctioning link or hyperlink in 

the next post-effective amendment, if any, to the 

registration statement. Alternatively, an electronic 

filer may correct an inaccurate or nonfunctioning 

link or hyperlink in a registration statement that has 

become effective by filing a post-effective 

amendment to the registration statement. Id. 

319 17 CFR 239.16. 

320 17 CFR 239.15A and 17 CFR 274.11A. 

321 17 CFR 239.14 and 17 CFR 274.11a–1. 

322 17 CFR 239.17a and 17 CFR 274.11b. 

323 17 CFR 239.17b and 17 CFR 274.11c. 

324 17 CFR 239.24 and 17 CFR 274.5. 

325 17 CFR 239.17c and 17 CFR 274.11d. 

326 17 CFR 249.331 and 17 CFR 274.128. 

327 15 U.S.C. 77b(b), 15 U.S.C. 78c(f), 15 U.S.C. 

80a–2(c), and 15 U.S.C. 80b–2(c). 328 15 U.S.C. 78w(a)(2). 329Public Law 114–94, Sec. 72003, 129 Stat. 1312 

(2015). 

Under the proposed amendments, 

affected registrants would be required to 

include a hyperlink to each exhibit 

identified in a filing’s exhibit index, 

unless the exhibit is filed in paper 

pursuant to a temporary or continuing 

hardship exemption under Rule 201 or 

Rule 202 of Regulation S-T, or pursuant 

to Rule 311 of Regulation S–T.315 This 

requirement would apply to registration 

statements on Form S–6, Form N–1A, 

Form N–2, Form N–3, Form N–4, Form 

N–5, Form N–6, and Form N–14 and to 

reports on Form N–CSR.316 Consistent 

with our rules for operating companies, 

we are not proposing to require 

registrants to refile electronically any 

exhibits filed only in paper.317 Under 

the proposed amendments, an electronic 

filer would also be required to correct 

an inaccurate or nonfunctioning link or 

hyperlink to an exhibit.318

In connection with the proposed 

exhibit hyperlinking requirements, we 

are also proposing amendments to Rule 

105 of Regulation S-T to require 

investment company registrants to file 

registration statements and reports that 

include exhibits in HTML format. 

Currently, investment company 

registrants must submit electronic 

filings to the Commission using the 

EDGAR system in either ASCII format or 

HTML format. Because the ASCII format 

does not support hyperlink 

functionality, the exhibit hyperlinking 

requirement would be feasible only if 

registrants are required to file in HTML. 

Under the proposed requirement, 

registrants would be required to file 

registration statements and reports on 

Form S–6,319 Form N–1A,320 Form N– 

2,321 Form N–3,322 Form N–4,323 Form 

N–5,324 Form N–6,325 Form N–14, and 

Form N–CSR 326 in HTML format. While 

the affected registration statements and 

reports would be required to be filed in 

HTML pursuant to the proposed 

amendments to Rule 105, registrants 

would continue to be permitted to file 

in ASCII any schedules or forms that are 

not subject to the exhibit filing 

requirements, such as proxy statements, 

or other documents included with a 

filing, such as an exhibit. 

Request for Comment 

93. Should we require investment 

company registrants to include 

hyperlinks in the exhibit index for 

registration statements and reports as 

proposed? Should we amend Rule 105 

of Regulation S-T to require investment 

company registrants to file registration 

statements and reports that include 

exhibits in HTML format as proposed? 

94. Should we revise any additional 

forms to require exhibit hyperlinks? For 

example, should we revise a form to 

require exhibit hyperlinks even though 

all exhibits filed with this form will be 

attached to it? 

95. Should we require, as proposed, 

that electronic filers correct an 

inaccurate or nonfunctioning link or 

hyperlink? If so, when should the 

correction be required to be filed? 

96. Should we require registrants to 

refile electronically any exhibit 

previously filed in paper so that they 

can include a hyperlink in the exhibit 

index? 

97. What compliance date would be 

appropriate for investment companies to 

begin filing in HTML format? Should 

the compliance date be the same for all 

affected investment companies, or 

should we distinguish between larger 

and smaller investment companies, for 

example, by providing an extended 

compliance date for smaller entities? If 

we provide an extended compliance 

date for smaller entities, what additional 

compliance period would be necessary 

and how should we define those smaller 

entities? For example, should we define 

smaller investment companies for these 

purposes as investment companies that, 

together with other investment 

companies in the same group of related 

investment companies have net assets of 

less than $1 billion as of the end of the 

most recent fiscal year of the investment 

company? 

H. General Request for Comment 

We request and encourage any 

interested person to submit comments 

regarding the proposed amendments, 

specific issues discussed in this release 

and other matters that may have an 

effect on the proposals. We note that 

comments that are accompanied by 

supporting data and analysis are of 

particular assistance to us. 

III. Economic Analysis 

We are mindful of the costs and 

benefits of our rules. Section 2(b) of the 

Securities Act, Section 3(f) of the 

Exchange Act, Section 2(c) of the 

Investment Company Act, and Section 

202(c) of the Investment Advisers Act 

require us, when engaging in 

rulemaking that requires us to consider 

or determine whether an action is 

necessary or appropriate in (or, with 

respect to the Investment Company Act, 

consistent with) the public interest, to 

consider, in addition to the protection of 

investors, whether the action will 

promote efficiency, competition, and 

capital formation.327 Additionally, 

Exchange Act Section 23(a)(2) requires 

us, when adopting rules under the 

Exchange Act, to consider, among other 

things, the impact that any new rule 

would have on competition and not to 

adopt any rule that would impose a 

burden on competition that is not 

necessary or appropriate in furtherance 

of the Exchange Act.328

In this release, we are proposing 

amendments to simplify and modernize 

disclosure requirements in Regulation 

S–K and related rules and forms as 

required by Section 72003 of the FAST 

Act.329 The proposed amendments are 

based on the staff’s recommendations in 

the FAST Act Report. The FAST Act 

Report was tailored to the statutory 

mandate of providing specific and 

detailed recommendations on 

modernizing and simplifying Regulation 

S–K in a manner that reduces costs and 

burdens on registrants while still 

providing all material information. As 

discussed above, the proposed 

amendments reflect the input of public 

commenters as well as the 

Commission’s experience with 


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330See, Akerlof, George A., The Market for 

‘‘Lemons’’: Quality Uncertainty and the Market 

Mechanism, 84 Q. J. ECON. 488–500 (1970). 

331See Report of the Advisory Committee on 

Corporate Disclosure to the Securities and Exchange 

Commission, Cmte. Print 95–29, House Cmte. On 

Interstate and Foreign Commerce, 95th Cong., 1st. 

Sess. (Nov. 3, 1977), at 320. available at http://opcad-ils/InmagicGenie/DocumentFolder/

report%20of%20the%20advisory%20committee

%20on%20corporate%20disclosure%20to%20the

%20sec%2011011977.pdf. 

332See Bru ̈ ggemann, Ulf and Kaul, Aditya and 

Leuz, Christian and Werner, Ingrid M., The Twilight 

Zone: OTC Regulatory Regimes and Market Quality 

(June 14, 2017). IGM Working Paper #95; Fisher 

College of Business Working Paper No. 2013–03–09; 

European Corporate Governance Institute (ECGI)— 

Law Working Paper No. 224/2013; Charles A. Dice 

Center Working Paper No. 2013–09. Available at 

SSRN: https://ssrn.com/abstract=2290492 or http:// 

dx.doi.org/10.2139/ssrn.2290492. 

See also C. Leuz and P. Wysocki, 2016, The 

Economics of Disclosure and Financial Reporting 

Regulation: Evidence and Suggestions for Future 

Research, Journal of Accounting Research Vol. 54, 

525–622 and M. Lang, K. Lins, and M. Maffett. 

Transparency, Liquidity, and Valuation: 

International Evidence on When Transparency 

Matters Most, Journal of Accounting Research 50 

(2012): 729–774. 

333See Pashler, H.E., The Psychology of Board: 

Attention (Cambridge, MA: MIT Press 1998) and 

Hirshleifer, David & Siew Hong Teoh, Limited 

attention, information disclosure, and financial 

reporting, 36 J. Acct. & Econ. 337–386 (2003). 

334While compliance with these rules was 

required by September 1, 2017, smaller reporting 

companies, as well as registrants that are neither 

accelerated filers nor large accelerated filers, are not 

required to comply until September 1, 2018. 

Although these registrants are not yet required to 

comply with the exhibit hyperlinks and HTML 

rules, we are treating these rules as part of the 

baseline for all filers subject to Regulation S–K. 

335We note that, in addition to operating 

companies, registered investment companies file 

proxy statements as well. 

Regulation S–K arising from the 

Division of Corporation Finance’s 

disclosure review program. To promote 

consistency, we are also proposing 

parallel amendments to certain rules 

and forms applicable to investment 

companies and investment advisers, 

including proposed amendments that 

would require certain investment 

company filings to be submitted in 

HTML format. 

A. Background 

1. The Benefits of Information 

Disclosure 

The primary purpose of disclosure 

under the federal securities laws is to 

provide investors with the information 

they need to make informed investment 

and voting decisions. The separation of 

ownership and management typically 

prevents investors from directly 

observing many managerial decisions 

and requires them to rely on financial 

and qualitative disclosures for 

information. Absent regulation, 

managers may lack incentives to 

voluntarily disclose or standardize 

relevant information. As a result, in the 

absence of disclosure requirements, an 

information asymmetry often exists 

between managers and investors that 

limits the ability of investors to 

distinguish between well-run and 

poorly-run companies and can lead to 

under-supply and inefficient allocation 

of capital.330 A disclosure regime that 

facilitates the disclosure of material, 

reliable information can reduce 

informational asymmetries between 

managers of companies and investors, 

which can enhance capital formation 

and the allocative efficiency of the 

capital markets. 

Materiality is a key principle of public 

company reporting.331 Efforts to make 

disclosures more effective typically 

focus on evaluating whether existing or 

proposed disclosures provide material 

information to those using the 

disclosures. Material disclosures can 

reduce information asymmetries 

between managers of companies and 

investors, decrease the cost of capital, 

and lead to more efficient share prices 

and heightened accountability of the 

managers of companies.332

2. The Costs of Disclosure 

Although disclosure requirements 

benefit investors and financial markets, 

there are potential drawbacks associated 

with these requirements. For example, 

disclosure can be costly for registrants 

to produce and disclosure of sensitive 

information can result in competitive 

disadvantages. 

Disclosure of information that is 

unnecessary or that may not be material 

also entails costs to investors, if it 

affects their ability to discern material 

information effectively. While material 

disclosures provide important 

information to investors about their 

investments, sorting through 

information that is unnecessary or not 

material can obscure material 

information that investors find useful. 

Consistent with this view, research has 

found that attention to one subject 

generally leaves less attention available 

for others.333

In the economic analysis that follows, 

we first examine the current regulatory 

and economic landscape that forms the 

baseline for our analysis. We then 

analyze the likely economic effects 

arising from the proposed amendments 

relative to that baseline. These 

economic effects include the costs and 

benefits and impact on efficiency, 

competition, and capital formation. 

B. Baseline 

To assess the economic effect of the 

proposed amendments, we are using as 

our baseline the current state of the 

Commission’s filing and disclosure 

regime. In characterizing the baseline, it 

is useful to distinguish between 

operating companies and investment 

companies. Although both types of 

registrants are subject to similar 

registration and reporting requirements, 

there are differences in the specific rules 

and forms applicable to each. In 

particular, on March 1, 2017, the 

Commission adopted amendments 

requiring registrants that file registration 

statements and reports subject to the 

exhibit requirements under Item 601 of 

Regulation S–K, or that file Form F–10 

or Form 20–F, (i.e., operating 

companies) to submit these filings in 

HTML format and to include a 

hyperlink to each exhibit listed in the 

exhibit index of these filings.334 In 

contrast, there is currently no 

comparable requirement for investment 

companies; however, this proposal 

includes amendments to a set of forms 

under the Investment Company Act that 

would apply HTML and hyperlinking 

requirements to filers of those forms. 

For operating companies, the baseline 

includes the disclosure requirements in 

Regulation S–K and related rules and 

forms as well as Commission and staff 

guidance on the application of those 

requirements. Table 1 below suggests 

that the proposed amendments to 

Regulation S–K and related rules and 

forms would apply to a substantial 

number of operating companies. On 

average, 7,800 different registrants per 

year have filed periodic reports on Form 

10–K and Form 10–Q in recent years. As 

shown in the table below, 

approximately 800 foreign private 

issuers provided periodic information to 

investors in the U.S. capital markets 

using Form 20–F and Form 40–F. The 

number of registrants filing definitive 

proxy statements on Schedule 14A has 

exceeded 5,000 each year.335


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336The figures in this table are presented on the 

basis of filer type, not on the basis of the form on 

which the document was filed. Therefore, not all of 

the filings presented in the table would be subject 

to the proposed requirements. 

337 In counting the number of exhibits, we did not 

include the following exhibits: 101.INS XBRL 

Instance Taxonomy; 101.SCH XBRL Taxonomy 

Extension Schema Document; 101.CAL XBRL 

Taxonomy Extension Calculation Linkbase 

Document; 101.DEF XBRL Taxonomy Extension 

Definition Linkbase Document; 101.LAB XBRL 

Taxonomy Extension Labels Linkbase Document; 

and 101.PRE XBRL Taxonomy Extension 

Presentation Linkbase Document because XBRL 

exhibits are not covered by the proposal. 

Average represents the sum of the number of 

exhibits divided by the number of sampled forms 

for each form type. Median represents the middle 

number of exhibits for each form type when the 

numbers of exhibits are listed from the smallest to 

the largest. For instance, for Form N–2, the number 

of exhibits listed in the index ranged from 0 to 55, 

with 2 as the middle number. 

338 In its 2015 proposing release to amend the 

definition of ‘‘smaller reporting company,’’ the 

Commission observed that, based on a review of 

filings, approximately 42% of registrants qualified 

as smaller reporting companies. See Amendments 

to Smaller Reporting Company Definition, Release 

No. 33–10107 (Jun. 27, 2017) [81 FR 43130 (Jul. 1, 

2016)], available at https://www.sec.gov/rules/ 

proposed/2016/33-10107.pdf. 

TABLE 1—NUMBER OF REGISTRANTS FILING VARIOUS DISCLOSURE FORMS FROM 2012–2016 

Year 10–K 10–Q 20–F 40–F DEF 14A 

2012 ..................................................................................... 8240 8381 712 153 5371 

2013 ..................................................................................... 7898 8031 690 145 5382 

2014 ..................................................................................... 7857 7872 669 143 5259 

2015 ..................................................................................... 7767 7676 687 131 5390 

2016 ..................................................................................... 7373 7147 675 126 5126 

As discussed above, investment 

companies that file certain forms 

required by the Investment Company 

Act would also be affected by the 

proposed amendments. Table 2 below 

lists the number of filings filed by 

investment companies in fiscal year 

2016 using EDGAR submission types 

potentially affected by the proposed 

amendments, broken out by the number 

of filings in HTML and ASCII format. 

From January 1, 2016 to December 31, 

2016, investment companies filed 

64,522 filings using EDGAR submission 

types potentially affected by the 

proposed amendments. Of these filings, 

the vast majority (58,429) were filed in 

HTML, while fewer than ten percent 

(6,093) were filed in ASCII format. As 

shown in Table 2, most of the filers had 

substantially more HTML filings than 

ASCII filings, while the Form S–6 filers 

had more ASCII filings than HTML 

filings in 2016. 

TABLE 2—NUMBER OF POTENTIALLY

AFFECTED FILINGS FROM JANUARY

1, 2016 TO DECEMBER 2016 336

Number 

of HTML 

Filings 

Number 

of ASCII 

Filings 

N–1A Filers ....... 48,150 1,280 

N–2 Filers ......... 2,965 77 

N–3 Filers ......... 42 6 

N–4 Filers ......... 5,247 758 

N–6 Filers ......... 1,549 245 

S–6 Filers ......... 476 3,727 

Total .............. 58,429 6,093 

The proposed amendments would 

require registrants to include hyperlinks 

in the case of exhibits included with the 

forms and exhibits that are incorporated 

by reference from a previously filed 

document. To draw a baseline 

indicative of current disclosure 

practices, we selected a random sample 

of 400 filings (359 in HTML and 41 in 

ASCII) submitted in 2016 that may be 

affected by the proposed amendments. 

Table 3 below shows the average and 

median number of exhibits listed in the 

sampled filings by the type of exhibit 

(i.e., filed with the form vs. incorporated 

by reference). 

TABLE 3—NUMBER OF EXHIBITS IN SAMPLED FILINGS 337

Number of exhibits listed in the 

index 

Number of exhibits 

filed with the filing 

Number of exhibits 

incorporated by reference Number of 

sampled filings 

Average Median Average Median Average Median 

N–1A ............................................................. 5.8 0 0.6 0 5.2 0 267 

N–2 ................................................................ 7.4 2 2.1 2 5.0 0 21 

N–3 ................................................................ 0 0 0 0 0 0 1 

N–4 ................................................................ 13.6 0 0.7 0 12.9 0 31 

N–6 ................................................................ 11.1 0 0.8 0 10.3 0 11 

N–14 .............................................................. 38.0 38.5 1.5 1 36.5 37.0 6 

N–CSR .......................................................... 2.3 3 1.9 0 0.1 0 43 

S–6 ................................................................ 36 36 5.0 5.0 31.0 31.0 30 

All Filings ................................................ 6.7 N/A 0.9 N/A 5.8 N/A 400 

Table 3 shows a significant variation 

in the number of exhibits listed in the 

exhibit index across different types of 

filings. Registration statements on Form 

N–4, Form N–14, and Form S–6 

typically contain a large number of 

exhibits and had significantly more 

exhibits incorporated by reference than 

filings on other forms affected by the 

proposed amendments. Of the 400 

sampled filings, we found that none of 

them included hyperlinked indexes. 

As discussed above, disclosure 

requirements involve trade-offs between 

benefits to investors in terms of 

reducing information asymmetries and 

costs to registrants associated with 

producing disclosure. While the 

proposed amendments would apply to 

all registrants subject to the regulation, 

the trade-offs between the costs and 

benefits of disclosure requirements 

would vary across different types of 

registrants. For example, smaller 

companies typically have 

proportionately higher disclosure costs 

as well as proportionately higher 

disclosure benefits.338 That is, the fixed 

costs of disclosure requirements 

typically constitute a higher percentage 

of revenues for smaller companies than 


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339See, e.g., R. Frankel and X. Li, Characteristics 

of a firm’s information environment and the 

information asymmetry between insiders and 

outsiders, 37 J. Acct. Econ. 229, 229–259 (June 

2004). See also, L. Cheng, S. Liao, and H. Zhang, 

The Commitment Effect versus Information Effect of 

Disclosure—Evidence from Smaller Reporting 

Companies, 88 Acct. Rev. 1239, 1239–1263 (2013). 

340See Easley, D., Hvidkjaer, S., & M. O’Hara, Is 

information risk a determinant of asset returns? 57 

J. Finance. 2185–2221 (2002). 

341See Rule 12b–20 [17 CFR 240.12b–20] and 

Rule 408(a) [17 CFR 230.408(a)]. 

342See FAST Act Report, supra note 2, at 

Recommendation B.1. See also Concept Release, 

supra note 6, at Section IV.A.6.b and SEC Staff’s 

Report of the Task Force on Disclosure 

Simplification (Mar. 5, 1996) available at https://

www.sec.gov/news/studies/smpl.htm. 

343See Section II.A (Description of Property). 

344We derive this number by taking the average 

number of registrants filing annual reports as 

reported in Table 1 and excluding all companies in 

the mining, oil and natural gas, and real estate 

industries. 

345Since 1935, we have required disclosure 

similar to that required under Item 102. See Release 

No. 33–276 (January 14, 1935) [not published in the 

Federal Register]. 

for larger companies. However, the 

benefits of disclosure may be greater for 

smaller companies because information 

asymmetries between investors and 

managers of smaller companies are 

typically higher than for larger, more 

seasoned companies with a large 

following.339 Compliance costs could be 

also higher for foreign registrants to the 

extent that the disclosure requirements 

in the United States are different from 

the disclosure requirements in their 

home countries. 

C. Economic Analysis of the Proposed 

Amendments: General Assessment, 

Including Impact on Efficiency, 

Competition, and Capital Formation 

In this subsection, we evaluate the 

broad economic effects of the proposed 

amendments, including a discussion of 

their impact on efficiency, competition, 

and capital formation. The proposals 

amend a well-established and robust 

disclosure regime that has existed for 

many years. As a result, we expect the 

aggregate impact of the proposed 

amendments to be incremental to the 

effects that have already been realized 

from the existing disclosure regime. 

As discussed above, disclosure 

provides benefits to participants in 

financial markets by reducing 

information asymmetries that exist 

between investors in a company and 

managers tasked with operating the 

company. Both registrants and investors 

alike would generally benefit from the 

proposed amendments, because they 

would simplify the requirements and 

resulting content of existing disclosures 

while still providing all material 

information. The proposed changes to 

the requirements and resulting 

improved presentation are expected to 

increase the usefulness of the 

disclosures for investors and generally 

lower the regulatory burden (and 

compliance costs) for registrants. In 

addition, the improved information 

environment associated with 

modernized and simplified disclosures 

is expected to incrementally enhance 

capital formation and the allocative 

efficiency of the capital markets through 

more accurate share prices, better 

accountability of managers and 

increased capital market liquidity. 

We expect some of the proposed 

amendments to entail modest initial 

implementation costs. However, we 

believe that the initial costs would be in 

manageable amounts. Furthermore, 

those costs would be offset by future 

savings as a result of simplified and 

streamlined disclosure requirements, 

after implementation. Some of the 

proposed amendments, such as those 

that impose new data tagging, 

hyperlinking, or disclosure 

requirements, would involve not only 

implementation costs but would also 

increase compliance costs for registrants 

going forward, although as discussed 

below, we do not expect these 

additional costs to be significant. 

While the purpose of the proposed 

amendments is to simplify and 

modernize public company disclosure 

requirements without loss of material 

information, we acknowledge that the 

proposed amendments could result in a 

loss of some information in specific 

cases, as discussed below. This loss of 

information could potentially increase 

information asymmetry in those cases, 

which may have negative implications 

for investor protection, market 

transparency, efficiency, and capital 

formation. In turn, such loss of 

information could raise the firm’s cost 

of capital.340 However, we believe this 

potential adverse effect would be 

mitigated by the fact that registrants will 

continue to be required to provide 

further material information, if any, as 

may be necessary to make the required 

statements, in the light of the 

circumstances under which they are 

made, not misleading.341

D. Economic Analysis of the Specific 

Amendments: Proposals That Clarify 

and Update Existing Rules 

1. Proposals That Clarify or Streamline 

a Rule’s Requirements 

a. Description of Property (Item 102) 

Item 102 requires disclosure of the 

location and general character of the 

principal plants, mines, and other 

materially important physical properties 

of the registrant and its subsidiaries. 

The staff has observed, however, that 

the item may elicit disclosure that is not 

material.342 The proposed amendments 

to Item 102 would clarify that a 

description of property is required only 

to the extent physical properties are 

material to the registrant and make other 

clarifying amendments.343 The 

proposed amendments would not 

modify the Item 102 requirements for 

companies in the mining, real estate, 

and oil and gas industries. 

The main benefit of the proposed 

amendments would be to reduce the 

amount of duplicative disclosure that is 

not material by emphasizing materiality 

and harmonizing the rule’s thresholds 

for disclosure. The proposed 

amendments also could facilitate 

compliance and avoid any confusion 

associated with different disclosure 

standards. The aggregate reduction in 

regulatory burden due to the proposed 

amendments to Item 102 may extend to 

approximately 6,500 registrants.344

When Item 102 was originally 

adopted, registrants were more likely to 

maintain large physical properties and 

other assets, such as mines and 

manufacturing plants.345 However, the 

nature of enterprise has changed 

dramatically over the last thirty years. 

Currently, many of the largest and most 

profitable firms operate in the services 

and technology industries that are often 

not characterized by large physical 

assets. Nevertheless, many modern 

firms are highly geographically 

dispersed. As a consequence, 

information about the geographic 

operations of these companies— 

including information about the 

location of physical properties—could 

be highly relevant for investors by 

providing information about important 

firm customers and employees. We 

expect that any risk of exclusion of 

relevant information under the 

proposed amendment would be 

minimal, because Item 102 explicitly 

solicits the disclosure of material 

information. This risk is further 

mitigated by the fact that registrants 

may disclose relevant property 

information elsewhere in their filings, 

such as in response to Item 101 

(Description of Business). 

b. Management’s Discussion and 

Analysis of Financial Condition and 

Results of Operations (Item 303) 

We are proposing a series of 

amendments to Item 303. In this 

subsection, we discuss all amendments 

to Item 303 that are intended to clarify 

the rule’s requirements, while in 


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346See supra Section II.C.B.2. 

347See supra Section II.D.2. 348See id. 349There is extensive evidence in psychology and 

economics that individuals tend to rely too heavily 

on the first piece of information offered (the 

‘‘anchor’’) when making decisions. See e.g., 

Tversky, A. & Kahneman, D., Judgment under 

Uncertainty: Heuristics and Biases. 185 Science. 

1124–1131 (1974). 350See supra Section II.D.3. 

351See supra Section II.E.3. 

352See supra Section II.E.3. 

Subsection E.1 below, we discuss 

proposals intended to amend the 

content of MD&A. Instruction 1 to Item 

303(a) provides that, generally, MD&A 

shall cover the three-year period 

covered by the financial statements and 

either use year-to-year comparisons or 

any other formats that in the registrant’s 

judgment would enhance a reader’s 

understanding. Additionally, the 

instruction states that reference to the 

five-year selected financial data may be 

necessary where trend information is 

relevant. 

We are proposing to amend the 

instructions to Item 303(a) to emphasize 

that a registrant may use any 

presentation that would enhance a 

reader’s understanding. As discussed 

above, our proposed amendments to 

Item 303(a) are consistent with the 

Commission’s existing interpretive 

guidance on MD&A. We are also 

proposing to eliminate mention of the 

five-year selected financial data in the 

instructions to Item 303(a) because 

disclosure requirements for liquidity, 

capital resources, and results of 

operations already require trend 

disclosure. 

The proposed amendments emphasize 

the flexibility available to registrants 

with respect to the form of MD&A 

presentation. The major benefit of 

flexibility is that it allows registrants to 

frame the information in a way that 

emphasizes material information. One 

potential cost associated with this 

aspect of the rule is that, in framing the 

discussion in a way that emphasizes 

material information, registrants may 

inadvertently de-emphasize information 

that investors nevertheless find useful 

or relevant. To the extent the proposed 

amendment leads to more tailored 

disclosure, it also could make disclosure 

less comparable across registrants and 

over time. 

To maintain a consistent approach to 

MD&A for domestic registrants and 

foreign private issuers, we are proposing 

changes to Form 20–F similar to the 

proposed changes to Item 303(a).346 The 

disclosure requirements for Item 5 of 

Form 20–F are substantively comparable 

to the MD&A requirements under Item 

303 of Regulation S–K. The economic 

effects of the proposed amendments to 

Form 20–F are therefore similar to those 

for the proposed amendments to Item 

303(a) described above. 

c. Risk Factors (Item 503(c)) 

Item 503(c) requires disclosure of the 

most significant factors that make an 

offering speculative or risky. We are 

proposing to relocate Item 503(c) from 

Subpart 500 to Subpart 100 of 

Regulation S–K.347 We believe that 

Subpart 100 is a more appropriate 

location for the risk factor disclosure 

requirements, because it covers a broad 

category of business information and is 

not limited to offering-related 

disclosure. Additionally, our proposed 

amendments would eliminate the risk 

factor examples that are enumerated 

currently in Item 503(c).348

We do not expect that relocating the 

disclosure requirement within 

Regulation S–K would pose any 

additional costs to registrants or 

investors because we are only proposing 

to change the location of the 

requirement. The content of the 

requirement would not change. 

With respect to the proposed 

elimination of the examples in Item 

503(c), we believe that this could 

prompt registrants to more carefully 

evaluate and classify their risk 

exposures, which could ultimately 

benefit investors through more specific 

and relevant risk factor disclosures. 

Although examples could be useful to 

registrants in some cases, they could 

also anchor or skew the registrant’s risk 

analysis in the direction of the 

examples. 349

An alternative to the proposed 

amendments, as suggested by some 

commenters, would be to expand or 

update the list of examples or revise 

them to specify generic risks that should 

not be disclosed. While such an 

approach might lead to incremental 

improvements in existing disclosures, it 

would not eliminate the anchoring 

effect discussed above nor would it 

serve to discourage generic or 

‘‘boilerplate’’ disclosures as effectively 

as the proposed amendments. It is also 

possible that a list of generic risks could 

inadvertently be viewed as exhaustive. 

In addition, specifying a list of generic 

risks that should not be disclosed may 

create a rule that needs to be regularly 

updated. 

d. Plan of Distribution (Item 508) 

Item 508 requires disclosure about the 

plan of distribution for securities in an 

offering, including information about 

underwriters. We are proposing to 

amend Rule 405 to define the term ‘‘subunderwriter’’ to clarify its application in 

Item 508 of Regulation S–K.350 We 

believe that defining the term ‘‘subunderwriter’’ would reduce compliance 

costs by helping registrants to more 

easily determine what disclosure is 

required under Item 508. We also 

believe that a defined term could help 

investors better understand the role of 

‘‘sub-underwriters’’ in the offering 

process. We do not believe there would 

be additional costs associated with the 

proposed amendment, since it merely 

clarifies an existing disclosure 

requirement. 

e. Material Contracts (Item 601(b)(10)) 

Item 601(b)(10)(i) currently requires 

registrants to file every material contract 

not made in the ordinary course of 

business, provided that the contract 

meets one of two tests: (i) The contract 

must be performed in whole or in part 

at or after the filing of the registration 

statement or report, or (ii) the contract 

was entered into not more than two 

years before that filing. 

The second test, the two-year look 

back, captures material contracts that 

were fully performed before the filing 

date. We are proposing amendments to 

Item 601(b)(10)(i) that would limit the 

two-year look back test to newly 

reporting registrants.351 Proposed 

Instruction 1 to Item 601(b)(10)(i) 

defines a ‘‘newly reporting registrant’’ as 

any registrant filing a registration 

statement that, at the time of such filing, 

is not subject to the reporting 

requirements of Section 13(a) or 15(d) of 

the Exchange Act, whether or not such 

registrant has ever previously been 

subject to the reporting requirements of 

Section 13(a) or 15(d), and any 

registrant that has not filed an annual 

report since the revival of a previously 

suspended reporting obligation.352 As 

an example, a registrant that is filing its 

first registration statement under the 

Securities Act or the Exchange Act, or 

filing its first Form 10–K since the 

revival of its reporting obligation, would 

be required to file material agreements 

under Item 601(b)(10)(i) for the two-year 

look back period. The definition of 

‘‘newly reporting registrant’’ under the 

proposed instruction also would 

include any registrant that (a) was a 

shell company, other than a business 

combination related shell company, as 

defined in Rule 12b–2 under the 

Exchange Act, immediately before 

completing a transaction that has the 

effect of causing it to cease being a shell 

company, and (b) has not filed a 

registration statement or Form 8–K, as 

required by Item 2.01 and Item 5.06 of 

that form, since the completion of the 


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353See supra Section II.E.3 

354The proposal would also eliminate the 

requirement for reporting persons to furnish Section 

16 reports to registrants, which could ease the 

compliance burden on reporting persons. 

transaction (or in the case of foreign 

private issuers, has not filed a Form 20– 

F since the completion of the 

transaction).353 Under the proposed 

amendments, a registrant meeting this 

definition would be required to file 

material agreements for the two-year 

look back period. 

We expect that the proposed 

amendments would streamline 

reporting obligations while maintaining 

investor protections. Although the twoyear look back test captures material 

contracts that were fully performed 

before the filing date, this test does not 

provide any new information to the 

market for registrants with established 

reporting histories. Excluding these 

registrants from the two-year look back 

requirement would marginally reduce 

their compliance burdens, because they 

would not need to re-file (or incorporate 

by reference) agreements that were 

previously filed and are no longer in 

effect. At the same time, investors 

would continue to have access to any 

material agreements that a registrant 

previously filed on EDGAR. 

f. Proposals With a Minor Effect on 

Disclosure 

The following proposed amendments 

are expected to have minor impacts on 

the disclosure provided: 

• Item 401—proposal would clarify 

what disclosure about executive officers 

does not need to be repeated in proxy 

or information statements if it is already 

included in Form 10–K. 

• Item 405—proposal would simplify 

the Section 16 reporting process by 

allowing registrants to rely on a review 

of Section 16 reports submitted on 

EDGAR instead of gathering reports 

furnished to the registrant.354

• Item 501(b)(1)—proposal would 

eliminate the portion of the item that 

discusses when a name change may be 

required and the exception to that 

requirement. 

• Item 501(b)(3)—proposal would 

allow registrants to move details of an 

offering price method or formula from 

the prospectus cover page to another 

location in the prospectus; the proposal 

also would require registrants to state 

that the price will be more fully 

explained in the prospectus and 

accompany that statement with a crossreference to the more detailed offering 

price disclosure. 

• Item 501(b)(10)—proposal would 

streamline the prospectus legend 

requirements. 

• Incorporation by Reference— 

proposals would (i) provide clearer 

guidance on cross-referencing; (ii) 

consolidate the requirements for 

incorporation by reference in Securities 

Act Rule 411, Exchange Act Rule 12b– 

23 and related rules under the 

Investment Company Act and 

Investment Advisers Act to eliminate 

redundant or unnecessary requirements; 

and (iii) allow registrants more 

flexibility in excluding item numbers 

and captions or creating their own 

captions tailored to their disclosure in 

Form 10, Form 10–K and Form 20–F. 

Since the proposed amendments 

listed above would alter existing 

disclosure practices only to a minor 

degree, their implementation would 

have little economic effect. We believe 

that the proposed amendments would 

allow registrants to improve the 

readability and navigability of 

disclosure documents and reduce 

repetition. The proposed amendments 

also would reduce compliance costs for 

registrants while preserving all material 

information. We do not envision any 

significant incremental costs associated 

with the proposed amendments because 

they do not significantly change the 

required disclosures. 

2. Proposals To Update Rules to 

Account for Subsequent Developments 

The following proposed amendments 

would update existing rules to account 

for subsequent developments and are 

expected to have minor impacts on the 

disclosure provided: 

• Item 407(d)—proposal would 

update the outdated reference to AU 

sec. 380 in Item 407(d)(3)(i)(B). 

• Item 407(e)—proposal would 

update requirements for compensation 

committee disclosure to exclude EGCs 

because they are not required to include 

a CD&A. 

• Item 512—proposal would 

eliminate certain undertakings that are 

redundant and obsolete. 

We believe that the proposed 

amendments listed above would reduce 

potential confusion in applying our 

rules, result in more consistent 

disclosure practices, and ease 

compliance burdens for registrants, with 

a minimal impact on the information 

available to investors. We do not 

envision any significant incremental 

costs associated with the proposed 

amendments, because the substance of 

the rules would not change. 

E. Economic Analysis of the Specific 

Amendments: Proposals That Simplify 

the Disclosure Process or Eliminate 

Disclosures 

1. Management’s Discussion and 

Analysis of Financial Condition and 

Results of Operations (Item 303) 

Under the proposed amendments to 

Item 303 of Regulation S–K, when the 

financial statements included in a filing 

cover three years, discussion about the 

earliest year would not be required if (i) 

this discussion is not material to an 

understanding of the registrant’s 

financial condition, changes in financial 

condition, and results of operations, and 

(ii) the registrant has filed its prior year 

Form 10–K on EDGAR containing 

MD&A of the earliest of the three years 

included in the financial statements of 

the current filing. 

We believe that the main economic 

benefit of the proposed amendments 

would be to simplify and modernize 

MD&A as well as increase its readability 

while still providing all material 

information. This may facilitate a better 

understanding of the firm’s financial 

prospects. Because MD&A is typically 

one of the most labor-intensive pieces of 

disclosure to produce, eliminating the 

requirement to discuss the earliest year 

financial statements in some 

circumstances could meaningfully 

reduce compliance costs for registrants. 

One potential cost of the proposed 

amendments is that investors may 

receive less comparative discussion 

about earlier period financial results 

within a filing. Although previously 

disclosed information could provide 

helpful context for the new information 

being disclosed, this information would 

have been incorporated into market 

prices when it was originally presented. 

There may be certain situations in 

which this context may be particularly 

useful in assessing a firm’s financial 

condition—for example, in the case of 

restatements of prior period financials. 

Although we recognize these potential 

costs, we believe their impact would be 

mitigated by the fact that discussion of 

earlier year financial results could be 

excluded only under specified 

conditions, including that the 

discussion was not material to an 

understanding of the registrant’s 

financial condition, changes in financial 

condition, and results of operations. 

An alternative to the proposed 

amendments would be to retain the 

earliest year requirement but permit 

registrants to hyperlink to the prior 

year’s report in lieu of repeating this 

disclosure. This alternative would likely 

reduce search costs for investors and 

allow efficient access to previously 


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355See supra Section II.E.2.a (Exhibits— 

Information Omitted from Exhibits, Schedules and 

Attachments). 

356See id. 

357See id. 

358See supra Section II.E.2.b. 

359 5 U.S.C. 552. 

360See supra Section II.E.2.c. 

361See id. 

362See id. 

363See id. 

364See id. 

365See Letter from Fenwick. 

366The following confidential treatment requests 

were filed and withdrawn for likely materiality 

during the last five fiscal years: 2016: 1,271 filed 

and approximately 7 withdrawn; 2015: 1,369 filed 

and approximately 14 withdrawn; 2014: 1,413 filed 

and approximately 19 withdrawn; 2013: 1,290 filed 

and approximately 16 withdrawn; and 2012: 1,466 

filed and approximately 6 withdrawn. 

disclosed information about a firm’s 

financial condition. However, we 

believe that this alternative would not 

reduce compliance costs to registrants 

as effectively as the proposed 

amendments. Furthermore, this 

alternative may detract from investor 

understanding of material information 

about a firm’s financial condition to the 

extent that it resulted in hyperlinking to 

information that is no longer material to 

such an understanding. 

2. Information Omitted From Exhibits 

(Item 601): Item 601(a)(5), Item 

601(a)(6), and Item 601(b)(10)(iv) 

Proposed Item 601(a)(5) would permit 

registrants to omit schedules and 

attachments to exhibits unless they 

contain information material to an 

investment or voting decision and that 

information is not otherwise disclosed 

in the exhibit or the disclosure 

document.355 The proposed 

amendments also would require 

registrants to provide with each exhibit 

a list briefly identifying the contents of 

all omitted schedules and 

attachments.356 In addition, registrants 

would be required to provide, on a 

supplemental basis, a copy of any of the 

omitted schedules or attachments to the 

Commission staff upon request.357

Allowing registrants to omit 

schedules and attachments that are not 

material to all exhibits would lower 

their filing costs. As noted in Section 

II.E.2.a above, some commenters have 

noted that these burdens are 

exacerbated if the schedules contain 

commercially sensitive information that 

would require registrants to file 

confidential treatment requests. The 

omission of schedules that are not 

material would also help investors more 

clearly focus on the material 

disclosures. 

Based on our review of confidential 

treatment requests submitted under 

Rule 406 and Rule 24b–2 granted in 

fiscal year 2016, we estimate that over 

90% of confidential treatment requests 

are granted for material contracts based 

on competitive harm to the registrant, 

discussed below. For the subset of 

confidential treatment requests that 

were granted for reasons other than 

competitive harm to the registrant, we 

expect that many of those exhibits likely 

contain schedules or attachments that 

could be omitted under proposed Item 

601(a)(5), although we are unable to 

reliably estimate how many, because 

this would depend, in part, on whether 

the schedules contain material 

information. Any reduction in burden 

would be incremental to that 

attributable to the proposed 

amendments to Item 601(b)(10)(iv), 

which would likely address over 90% of 

confidential treatment requests. 

Item 601(a)(6), as proposed to be 

amended, would permit registrants to 

omit PII without submitting a 

confidential treatment request under 

Rule 406 or Rule 24b–2.358 Under the 

proposed amendment, registrants also 

would not be required to provide an 

analysis in order to redact PII from 

exhibits. Since the proposed 

amendment leaves the decision about 

omission of PII entirely to the registrant, 

it could result in more liberal 

redactions. Thus, there is a tradeoff 

between reduced compliance costs and 

the potentially adverse effects of 

reduced disclosure. However, our 

analysis indicates that the Commission 

granted very few confidential treatment 

requests in reliance on the Freedom of 

Information Act 359 (‘‘FOIA’’) exemption 

concerning PII. As an illustration, in 

fiscal year 2016 only nine confidential 

treatment requests were granted 

pursuant to this FOIA exemption. 

Presumably, most registrants are 

currently taking advantage of existing 

staff guidance that PII may be omitted 

without filing a confidential treatment 

request. As a result, we do not expect 

that codifying this accommodation 

would significantly alter existing 

disclosure practices. 

We are also proposing to add 

paragraph (b)(10)(iv) to Item 601 to 

permit registrants to omit confidential 

information in material contract exhibits 

filed pursuant to that item that is both 

(i) not material and (ii) competitively 

harmful if publicly disclosed, without 

submitting a confidential treatment 

request.360 Instead, registrants would be 

required to mark the exhibit index to 

indicate that portions of the exhibit or 

exhibits have been omitted and include 

a prominent statement on the first page 

of each redacted exhibit that certain 

information is omitted from the filed 

version of the exhibit.361 The registrant 

would also be required to indicate with 

brackets where the information is 

omitted from the filed version of the 

exhibit.362

Registrants could be asked by the 

Commission staff to provide on a 

supplemental basis an unredacted copy 

of the exhibit.363 The staff also could 

request that the registrant provide an 

analysis of why the redacted 

information is both (i) not material and 

(ii) competitively harmful.364

Registrants could request confidential 

treatment of this supplemental 

information pursuant to Rule 83 while 

it is in the possession of the staff. 

The proposed amendment would 

significantly reduce the costs associated 

with preparing confidential treatment 

requests and expedite the filing process. 

In this regard, one commenter on the 

Concept Release reviewed seven 

different confidential treatment requests 

on which it assisted clients since 2012 

and found that legal fees alone ranged 

from approximately $35,000 to over 

$200,000.365

Because more than 90% of the 

confidential treatment requests granted 

by the Commission in fiscal year 2016 

were made in reliance on the FOIA 

exemption concerning competitive 

harm, the proposed amendments to Item 

601(b)(10) to allow registrants to omit 

competitively harmful information that 

is not material without filing a 

confidential treatment request could 

correspondingly reduce the number and 

cost of confidential treatment requests 

pursuant to Rule 406 and Rule 24b–2 by 

over 90%. However, this reduction in 

cost would be partially offset by the 

proposed amendment’s provision that 

the staff may request an analysis similar 

to the current competitive harm 

analysis. Registrants would incur costs 

to prepare and provide this analysis in 

response to any request from the staff. 

One potential cost of the proposed 

amendments is that information may be 

redacted that would not otherwise be 

afforded confidential treatment by the 

staff. However, based on previous 

experience and a review of confidential 

treatment requests, we believe that such 

instances would be rare. Over the past 

five fiscal years, very few confidential 

treatment requests were denied by the 

staff. Specifically, of the confidential 

treatment requests filed over the last 

five fiscal years, on average, 

approximately 1.0% were withdrawn 

because the staff determined that the 

information likely was material to 

investors.366 During this time, on 


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367 In fiscal years 2016 and 2015, no confidential 

treatment requests were denied. In fiscal years 

2014, 2013, and 2012, one, two and one CTR(s) 

were denied, respectively. On average, during the 

last five fiscal years, approximately 95% of 

confidential treatment requests were granted in full 

and approximately 5% were withdrawn. In addition 

to withdrawals based on staff determinations that 

the information was likely material, other reasons 

confidential treatment requests are withdrawn 

include that the offering is no longer going forward, 

the information is already public, or the contract is 

no longer material. 

368Confidential treatment requests revised based 

on materiality and/or overbroad redactions in fiscal 

years 2016, 2015, 2014, 2013, and 2012, were 

approximately 119, 139, 183, 184, and 182, 

respectively. 

369See supra Section II.E.4. 

370See id. 

371The use of and access to LEIs is free for 

investors. All of the associated reference data 

needed to understand, process and use LEIs is also 

widely and freely available. However, the cost of 

obtaining a LEI for registrants currently entails a 

one-time fee of $75-$119, and $50-$99 per year in 

annual maintenance fees. 

372For example, in the context of Form ADV, 

which similarly requires an LEI to be reported only 

if the entity already has one, the Commission has 

noted that just 6.8% of registered investment 

advisers report an LEI when filing the form. See 

Form ADV and Investment Advisers Act Rules, 

Release No. IA–4509 (Aug. 25, 2016) [81 FR 60417 

(Sept. 1, 2016)], at 114. 

However, see also the discussion in the text 

around note 220, supra. Although overall adoption 

rates appear low, the use of LEIs may be increasing 

as a result of global regulatory efforts. See Glob. 

Legal Entity Identifier Found., Regulatory Use of the 

LEI, available at https://www.gleif.org/en/about-lei/ 

regulatory-use-of-the-lei (last visited July 13, 2017). 

average, approximately 95% of 

confidential treatment requests filed 

were granted, and requests were rarely 

denied.367 Also during the past five 

fiscal years, on average, approximately 

12% of confidential treatment requests 

filed were revised prior to the request 

being granted to limit the number of 

terms redacted based on likely 

materiality or over broad redactions.368

Under the proposed amendments, the 

Commission staff would continue its 

selective review of registrant filings and 

would selectively assess whether 

redactions from exhibits appear to be 

limited to information that is not 

material and that would subject the 

registrant to competitive harm if 

publicly disclosed. 

F. Economic Analysis of the Specific 

Amendments: Proposals That Require 

More Disclosure or the Incorporation of 

New Technology 

1. Description of Registrant’s Securities 

(Item 601(b)(4)) 

Item 202 requires registrants to 

provide a brief description of their 

registered capital stock, debt securities, 

warrants, rights, American Depositary 

Receipts, and other securities. We are 

proposing to amend Item 601(b)(4) to 

require registrants to provide Item 202 

disclosure as an exhibit to Form 10–K 

for each class of securities that is 

registered under the Exchange Act, 

rather than limiting this disclosure to 

registration statements. The proposed 

amendments would not change existing 

disclosure obligations under Form 8–K 

and Schedule 14A, which currently 

require registrants to disclose certain 

modifications to the rights of their 

security holders and amendments to 

their articles of incorporation or bylaws. 

Any modifications and amendments 

during a fiscal year to the information 

called for by Item 202 would now also 

be reflected in an exhibit to the 

registrant’s next annual report. 

Information about Exchange Act 

registered securities allows investors to 

assess the existing capital structure of 

registrants, which can help investors 

understand better their exposure to risks 

and their control rights. Requiring Item 

202 disclosure as an exhibit to annual 

reports would improve investors’ access 

to information about their rights as 

security holders, thereby facilitating 

more informed investment and voting 

decisions. 

The proposed requirements would 

impose some incremental compliance 

costs for registrants to include the 

proposed disclosure with their annual 

reports. Table 1 above shows that on 

average 7,800 registrants file Form 10– 

K each year and therefore would be 

subject to the new Item 601(b)(4) exhibit 

filing requirement. However, because 

registrants already prepare very similar 

disclosure to satisfy existing disclosure 

obligations under Form 8–K and 

Schedule 14A and would be able to 

incorporate by reference and hyperlink 

to prior disclosure, so long as there has 

not been any change to the information 

called for by Item 202, we expect these 

incremental costs to be minimal. 

2. Subsidiaries of the Registrant and 

Entity Identifiers (Item 601(b)(21)) 

Item 601(b)(21) requires a registrant to 

list in an exhibit its subsidiaries, the 

state or other jurisdiction of 

incorporation or organization of each, 

and the names under which those 

subsidiaries do business. We are 

proposing amendments to Item 

601(b)(21)(i) that would require 

registrants to include in the exhibit the 

LEI, if one has been obtained, of the 

registrant and each subsidiary listed.369

A key benefit of LEIs is that they 

allow for unique identification of 

entities engaged in commercial and 

financial transactions. For various 

reasons, firm and subsidiary names can 

be spelled and recorded differently 

across filings, corporate websites, and 

standard databases. In addition, 

subsidiaries can share the same (or very 

similar) names. These issues can make 

names poor identifiers of market 

participants, which could be an obstacle 

in some forms of investment analysis 

involving computerized data access. 

In contrast, LEIs provide clear and 

unique identification of market 

participants that facilitates the statistical 

analysis and aggregation of firm 

financial data. In this regard, some 

commenters have observed that 

improved identifiers would allow 

investors to link third-party data with 

structured data from Commission filings 

to produce more meaningful analysis.370

As a consequence, a standard identifier 

of firms and firm subsidiaries has the 

potential to improve not only individual 

investment decisions but also the 

efficiency of the overall market. 

Disclosure of LEIs would also 

facilitate the ability of investors and the 

Commission to link the information 

disclosed in Commission filings with 

data from other filings or sources as LEIs 

become more widely used by regulators 

and the financial industry. This could 

aid in the performance of market 

analysis studies, surveillance activities, 

and systemic risk monitoring by the 

Commission and other regulators. 

The proposed amendments would 

impose an incremental cost on 

registrants to include LEIs in the Item 

601(b)(21) exhibit. We do not expect 

this incremental cost to be significant, 

however, given that this information 

should be readily available to 

registrants. Our proposals would require 

disclosure of LEIs only for those 

registrants and subsidiaries that have 

obtained this identifier, thereby not 

imposing additional costs.371 As a 

result, the benefits of LEI disclosure 

outlined above may be limited to the 

extent that not all reporting entities 

obtain an identifier. 

Moreover, standard identifiers, such 

as LEIs, are most beneficial to registrants 

and investors when a broad array of 

firms in the market adopt them. For 

example, a widely adopted identifier 

would facilitate the electronic link and 

cross-referencing of various 

informational items over a large group 

of registrants. Staff experience indicates 

that LEI adoption rates are currently 

low, which limits its benefits to 

investors and other users of financial 

information.372 If LEIs are not widely 

used, firms may not have incentives to 

obtain an LEI. Since coordination 

among firms with regard to adoption is 

difficult to accomplish, LEIs could 

remain underutilized. 


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373Because the cover pages of Form 10–K, Form 

20–F, and Form 40–F already require disclosure of 

the title of each class of securities registered 

pursuant to Section 12(b) of the Exchange Act and 

each exchange on which they are registered, our 

proposed amendments to these forms would revise 

the cover page to include a corresponding field for 

the trading symbol. Unlike these forms, however, 

the cover pages of Form 10–Q and Form 8–K do not 

currently require disclosure of the title of each class 

of securities and each exchange on which they are 

registered. Accordingly, to ensure that registrants 

and their registered securities are identified in a 

consistent manner across forms, we are proposing 

to revise the cover pages of Form 10–Q and Form 

8–K to include this disclosure in addition to the 

trading symbol. 

374See supra Section II.F.2. 

375See supra Section II.D.1.c. 

3. Tagging Cover Page Data 

We are proposing to require 

registrants to tag all of the information 

on the cover page of Form 10–K, Form 

10–Q, Form 8–K, Form 20–F, and Form 

40–F using Inline XBRL (or, if the 

Commission’s recent proposal to require 

Inline XBRL for the submission of 

operating company financial statements 

is not adopted, in an XBRL exhibit to 

the relevant filing) in accordance with 

the EDGAR Filer Manual. To implement 

the cover page tagging requirements, we 

propose to add new Rule 406 to 

Regulation S–T, new Item 601(b)(104) to 

Regulation S–K, new paragraph 104 to 

the ‘‘Instructions as to Exhibits’’ of Form 

20–F and new paragraph B.17 to the 

‘‘General Instructions’’ of Form 40–F to 

require registrants to file with each of 

the specified forms a ‘‘Cover Page 

Interactive Data File’’ containing cover 

page data. We are also proposing to 

revise Rule 11 of Regulation S–T to add 

the term ‘‘Cover Page Interactive Data 

File.’’ Our proposals also would amend 

the cover pages of these forms to 

include the trading symbol for each 

class of the registrant’s registered 

securities.373

Investment analysis increasingly 

relies on quantitative statistical 

methods. Machine-readable formats 

greatly facilitate quantitative analysis 

because they allow for the 

corresponding items to be imported 

directly into various platforms for data 

analysis. Thus, tagging all the data 

points on the cover pages of Form 10– 

K, Form 10–Q, Form 8–K, Form 20–F, 

and Form 40–F could decrease the costs 

to investors for implementing 

quantitative data analysis. We 

acknowledge that the amendment 

would impose additional costs on 

registrants but expect the additional 

burden to be minimal, given that 

registrants already furnish a substantial 

amount of information contained in 

these forms in a structured format. 

An alternative to the Inline XRBL or 

traditional XBRL format is to specify an 

XML format for the cover pages of Form 

8–K, Form 10–K, Form 10–Q, Form 20– 

F, and Form 40–F. An XML format 

could have a variety of implementations 

ranging from filers submitting the data 

according to a designated technical 

framework to inputting the cover page 

information in a web-fillable format 

within EDGAR. We are not proposing 

this approach, because the Inline XBRL 

and traditional XBRL format provide 

more precise rules that facilitate 

consistent input and data validation by 

filers and enhance the analytical 

capabilities of data users. Moreover, the 

Inline XBRL and traditional XBRL 

format have more robust data validation 

capabilities, which could help to ensure 

better data quality for investors. Inline 

XBRL also would not suffer from 

possible data quality discrepancies that 

may occur from filers rekeying the 

information from their cover page for 

submission in XBRL or XML. 

4. Proposals for Additional Disclosure 

With Minimal Additional Costs to 

Registrants 

The following proposed amendments 

are expected to impose only limited 

compliance costs on registrants: 

• Incorporation by Reference— 

proposal would require hyperlinks 

internal to EDGAR for documents 

incorporated by reference.374

• Item 501(b)(4)—proposal would 

require disclosure on the prospectus 

cover page of any national securities 

exchange where the securities being 

offered are listed or, if not listed, the 

principal United States market or 

markets for the securities being offered 

and the corresponding trading symbols, 

if any. 375

Requiring registrants to include 

hyperlinks to information that is 

incorporated by reference could 

improve the readability and navigability 

of disclosure documents by allowing 

users to be taken directly to the 

incorporated information by clicking on 

a link rather than having to locate the 

information on EDGAR. Although 

requiring the inclusion of hyperlinks for 

incorporated information would impose 

an additional compliance burden on 

registrants, we do not expect this 

burden to be significant given that 

hyperlinks are relatively easy to 

implement and involve minimal cost. 

In the case of Item 501(b)(4), 

expanding the existing requirements for 

trading market disclosure to encompass 

information about markets that are not 

‘‘national securities exchanges’’ would 

benefit investors by helping them to 

better assess their trading costs. The 

disclosure would impose some 

additional disclosure costs on 

registrants. However, we do not expect 

these costs to be significant given that 

registrants should have ready access to 

this information. In this regard, we note 

that the required disclosure would be 

limited to the principal United States 

market or markets where the registrant, 

through the engagement of a registered 

broker-dealer, has actively sought and 

achieved quotation. 

G. Economic Analysis of HTML and 

Hyperlinking Requirements of Forms 

Under the Investment Company Act 

As discussed above, we are proposing 

HTML and hyperlinks requirements for 

filers of certain forms under the 

Investment Company Act. Broadly 

speaking, we believe the proposed 

amendments would reduce search costs 

for investors. In particular, we believe 

that exhibit hyperlinks would help 

investors and other users to access a 

particular exhibit more efficiently as 

they would not need to search within 

the filing or through different filings 

made over time to locate the exhibit. 

Requiring exhibit hyperlinks may make 

it easier for investors and other users to 

find and access a particular exhibit that 

was originally filed with a previous 

filing. 

To the extent that hyperlinks ease the 

navigation process for investors and 

other users, hyperlinks may also 

facilitate a more thorough review of a 

registrant’s registration statements, 

applications, and reports and encourage 

more effective monitoring over time. 

The potential reduction of search costs 

and the enhanced ability of investors to 

review a registrant’s disclosure may 

result in more informed investment and 

voting decisions, potentially enhancing 

allocative efficiency, and capital 

formation by registrants. 

We expect that hyperlinks would be 

more beneficial in reducing search costs 

in the case of exhibits incorporated by 

reference than in the case of exhibits 

filed with the filing, and in particular, 

we expect these benefits to be most 

pronounced in the case of incorporation 

by reference from a filing that was not 

recently filed because more recent 

filings are displayed first on the EDGAR 

search results page. Further, we expect 

hyperlinks would have greater benefits 

in the case of registrants that submit 

more filings. 

As a result of the proposed 

amendments, we expect that both 

HTML and ASCII registrants would 

incur compliance costs to include 

hyperlinks in their exhibit indexes. The 

cost of inserting a hyperlink to an 

exhibit incorporated by reference would 

likely be greater than the cost of 


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376 44 U.S.C. 3501 et seq. 377 44 U.S.C. 3507(d) and 5 CFR 1320.11. 

378The paperwork burdens for Regulation S–K, 

Regulation S–T, Regulation C and Regulation 12B 

are imposed through the forms that are subject to 

the requirements in these regulations and are 

reflected in the analysis of those forms. To avoid 

a PRA inventory reflecting duplicative burdens and 

for administrative convenience, we assign a onehour burden to each of these regulations. 

inserting a hyperlink to an exhibit filed 

with the document. While the average 

cost itself of inserting a hyperlink is 

minimal, the total hyperlinking costs for 

registrants would be a function of two 

main factors: (1) How many registration 

statements, applications and reports a 

registrant files that require an exhibit 

index; and (2) how many exhibits in the 

exhibit index of these registration 

statements, applications, and reports are 

either filed with the filing or 

incorporated by reference. 

Filers reporting in ASCII would incur 

costs to switch to HTML, in addition to 

the costs of including hyperlinks in 

their exhibit indexes. We expect that the 

costs of switching to HTML would not 

be significant because the cost of 

software with built-in HTML and 

hyperlink features is minimal. Overall, 

given the modest costs involved, we do 

not expect that the proposed 

amendments would have significant 

competitive effects for registrants. 

Request for Comment 

We request comment on all aspects of 

our economic analysis, including the 

potential costs and benefits of the 

proposed amendments and whether the 

rules, if adopted, would promote 

efficiency, competition, and capital 

formation or have an impact on investor 

protection. Commenters are requested to 

provide empirical data, estimation 

methodologies, and other factual 

support for their views, in particular, on 

costs and benefits estimates. 

IV. Paperwork Reduction Act 

A. Background 

Certain provisions of our rules and 

forms that would be affected by the 

proposed amendments contain 

‘‘collection of information’’ 

requirements within the meaning of the 

Paperwork Reduction Act of 1995 

(‘‘PRA’’).376 The Commission is 

submitting the proposal to the Office of 

Management and Budget (‘‘OMB’’) for 

review in accordance with the PRA.377

The hours and costs associated with 

preparing and filing the forms and 

reports constitute reporting and cost 

burdens imposed by each collection of 

information. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information requirement unless it 

displays a currently valid OMB control 

number. Compliance with the 

information collections is mandatory. 

Responses to the information collections 

are not kept confidential and there is no 

mandatory retention period for the 

information disclosed. The titles for the 

collections of information are: 

‘‘Regulation S–K’’ (OMB Control No. 

3235–0071); 378

‘‘Regulation S–T’’ (OMB Control No. 

3235–0424); 

‘‘Regulation 12B’’ (OMB Control No. 

3235–0062); 

‘‘Regulation C’’ (OMB Control No. 

3235–0074); 

‘‘Family of rules under section 8(b) of 

the Investment Company Act of 1940’’ 

(OMB Control No. 3235–0176); 

‘‘Form S–1’’ (OMB Control No. 3235– 

0065); 

‘‘Form S–3’’ (OMB Control No. 3235– 

0073); 

‘‘Form S–4’’ (OMB Control No. 3235– 

0324); 

‘‘Form S–6’’ (OMB Control No. 3235– 

0184); 

‘‘Form S–11’’ (OMB Control No. 

3235–0067); 

‘‘Form N–14’’ (OMB Control No. 

3235–0336); 

‘‘Form F–1’’ (OMB Control No. 3235– 

0258); 

‘‘Form F–3’’ (OMB Control No. 3235– 

0256); 

‘‘Form F–4’’ (OMB Control No. 3235– 

0325); 

‘‘Form F–7’’ (OMB Control No. 3235– 

0325); 

‘‘Form F–8’’ (OMB Control No. 3235– 

0378); 

‘‘Form F–80’’ (OMB Control No. 

3235–0404); 

‘‘Form F–10’’ (OMB Control No. 

3235–0380); 

‘‘Form SF–1’’ (OMB Control No. 

3235–0707); 

‘‘Form SF–3’’ (OMB Control No. 

3235–0690); 

‘‘Form 10’’ (OMB Control No. 3235– 

0064); 

‘‘Form 20–F’’ (OMB Control No. 

3235–0288); 

‘‘Form 40–F’’ (OMB Control No. 

3235–0381); 

‘‘Form 10–K’’ (OMB Control No. 

3235–0063); 

‘‘Form 10–Q’’ (OMB Control No. 

3235–0070); 

‘‘Form 8–A’’ (OMB Control No. 3235– 

0056); 

‘‘Form 8–K’’ (OMB Control No. 3235– 

0060); 

‘‘Form 10–D’’ (OMB Control No. 

3235–0604); 

‘‘Schedule 14A’’ (OMB Control No. 

3235–0059); 

‘‘Schedule 14C’’ (OMB Control No. 

3235–0057); ‘‘Form N–1A’’ (OMB 

Control No. 3235–0307); ‘‘Form N–2’’ 

(OMB Control No. 3235–0026); ‘‘Form 

N–3’’ (OMB Control No. 3235–0316); 

‘‘Form N–4’’ (OMB Control No. 3235– 

0318); ‘‘Form N–5’’ (OMB Control. No. 

3235–0169); ‘‘Form N–6’’ (OMB Control 

No. 3235–0503); and ‘‘Form N–CSR’’ 

(OMB Control No. 3235–0570). 

The forms, reports, and regulations 

listed above were adopted under the 

Securities Act, the Exchange Act or the 

Investment Company Act. The 

regulations, schedules, and forms set 

forth the disclosure requirements for 

registration statements, periodic and 

current reports, distribution reports and 

proxy, and information statements filed 

by registrants to help investors make 

informed investment and voting 

decisions. Other forms and reports are 

filed by entities regulated by the 

Investment Company Act in connection 

with the Commission’s oversight of 

these entities. 

We are proposing amendments, which 

are described in more detail in Section 

II above, based on the recommendations 

made in the FAST Act Report, as 

required by Section 72003 of the FAST 

Act. The proposed amendments are 

intended to modernize and simplify 

certain disclosure requirements in 

Regulation S–K and related rules and 

forms in a manner that reduces the costs 

and burdens on registrants while 

continuing to provide all material 

information to investors. The proposed 

amendments are also intended to 

improve the readability and navigability 

of the Commission’s disclosure 

documents and discourage repetition 

and disclosure of immaterial 

information. In addition, we are 

proposing parallel amendments to 

several rules and forms applicable to 

investment companies and investment 

advisers to provide for a consistent set 

of incorporation by reference and 

hyperlinking rules for these entities, 

including proposed amendments that 

would require certain investment 

company filings to be submitted in 

HTML format. 

B. Summary of the Proposed 

Amendments’ Impact on Collection of 

Information 

In this section, we summarize the 

proposed amendments and their general 

impact on the paperwork burden 

associated with the forms listed in 

Section IV.A. In Section IV.C. below, we 

provide revised burden estimates for 

each form. 


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379See supra Section II.A. 

380 17 CFR 239.11. 

381 17 CFR 239.25. 

382See supra Section II.B. 

383See supra id. 

384 17 CFR 239.11. 

385 17 CFR 239.25. 

386 17 CFR 239.18. 

387 17 CFR 239.31. 

388 17 CFR 239.34. 

389See supra Section II.C. 

390See id. 

391See id. 

392The $4,000 cost estimate is calculated as 

follows: 10 hours × $400 per hour of outside 

counsel work = $4,000. See infra note 412. 

1. Proposed Amendments Expected To 

Decrease Burdens 

a. Description of Property (Item 102) 

The proposed amendments to Item 

102 of Regulation S–K would clarify 

that a description of property is only 

required to the extent physical 

properties are material to the registrant 

and make other clarifying 

amendments.379 The staff has observed 

that the current disclosure standard may 

lead registrants, in some instances, to 

devote resources to providing disclosure 

on properties that are not material. 

Although the proposed amendments to 

Item 102 are expected to help registrants 

avoid unnecessary disclosure in some 

instances, the amendments are 

clarifying in nature and therefore we do 

not believe they would significantly 

affect the paperwork burden associated 

with affected forms. Accordingly, we 

estimate that the paperwork burden 

would be reduced by 0.5 hours for each 

form affected by the proposed 

amendments. We expect that Form S– 

1,380 Form S–4,381 Form 10, and Form 

10–K would be affected by this 

proposed amendment. 

b. Management’s Discussion and 

Analysis (Item 303) 

The proposed amendments to Item 

303 would allow registrants, in some 

circumstances, to eliminate the earliest 

year of the MD&A discussion.382 The 

proposed amendments would also 

eliminate the reference to five-year 

selected financial data in Instruction 1 

to Item 303(a) and clarify that registrants 

may use their discretion in selecting the 

best format for their MD&A 

presentation.383 The combined effects of 

these amendments would be to 

eliminate the burden on registrants to 

prepare and provide repetitive 

disclosure that is not material. The 

proposed amendments are of particular 

significance, because MD&A is typically 

one of the most labor-intensive sections 

of any form in which it is required. We 

anticipate that the proposed 

amendments to simplify and clarify the 

MD&A requirements would reduce the 

paperwork burden associated with 

related forms. 

We estimate that the aggregate impact 

of the proposed amendments would be 

a four hour reduction in paperwork 

burden each time Item 303 information 

is required to be included in a form. We 

estimate that the aggregate impact of the 

proposed corresponding amendments to 

Form 20–F would result in a four hour 

reduction each time information under 

Item 5 of that form is required. We 

expect that Form S–1,384 Form S–4,385

Form S–11,386 Form F–1,387 Form F– 

4,388 Form 10, Form 10–K, Form 10–Q, 

and Form 20–F would be affected by 

this proposed amendment. 

c. Directors, Executive Officers, 

Promoters and Control Persons (Item 

401, Item 405 and Item 407) 

The proposed amendments to Item 

401, Item 405, and Item 407 of 

Regulation S–K would simplify and 

modernize executive officer, Section 

16(a) compliance and corporate 

governance disclosure requirements. 

The proposed amendments to Item 401 

would simplify the rules for 

determining what disclosure about 

executive officers may be included in 

Form 10–K when other disclosure in 

Part III of Form 10–K will be 

incorporated by reference to the 

registrant’s definitive proxy or 

information statement.389 The proposed 

amendments to Item 405 would allow 

registrants to rely on a review of Section 

16 reports submitted on EDGAR rather 

than reports furnished to the registrant 

when providing disclosure about 

Section 16(a) compliance.390 Finally, 

the proposed amendments to Item 407 

clarify the applicable auditing standard 

and the disclosure requirements for the 

compensation committees of EGCs.391

The proposed amendments to Item 

401, Item 405, and Item 407 would 

clarify and streamline existing 

disclosure requirements, and in that 

respect are expected to marginally 

reduce compliance costs for registrants. 

We estimate that the proposed 

amendments would reduce the 

paperwork burden for each affected 

form by 0.5 hours. We expect that Form 

S–1, Form S–4, Form S–11, Form 8–K, 

Form 10, Form 10–K, and Form 10–Q 

would be affected by this proposed 

amendment. 

d. Exhibits (Item 601) 

i. Information Omitted From Exhibits 

(Item 601(a)(5), Item 601(a)(6), and Item 

601(b)(10)(iv)) 

We are proposing several 

amendments to Item 601 of Regulation 

S–K. Many of these amendments affect 

provisions related to the Commission’s 

confidential treatment process. 

Specifically, the proposed amendments 

to Item 601(a)(5), Item 601(a)(6), and 

Item 601(b)(10)(iv) would permit 

registrants to omit, without submitting a 

confidential treatment request, 

schedules and attachments that are not 

material, personally identifiable 

information and confidential 

information in material contract exhibits 

that is both (i) not material and (ii) 

competitively harmful if publicly 

disclosed. 

For purposes of the PRA, we consider 

the time and cost to prepare and submit 

a confidential treatment request to be 

part of the paperwork burden associated 

with preparing and filing the related 

disclosure form. We estimate that 

elimination of the need to prepare and 

submit a confidential treatment request 

to omit confidential information from 

exhibits filed pursuant to Item 

601(b)(10) that is both (i) not material 

and (ii) competitively harmful if 

publicly disclosed would reduce 

internal burden hours by ten hours per 

request for an estimated 20% of 

registrants that prepare the confidential 

treatment request without relying on 

outside counsel, and reduce external 

costs by $4,000 per request for an 

estimated 80% of registrants that retain 

outside counsel for this work.392

Proposed Item 601(a)(5) would permit 

registrants to omit entire schedules and 

attachments to exhibits unless the 

schedules contain information material 

to an investment or voting decision and 

that information is not otherwise 

disclosed in the exhibit or the 

disclosure document. The threshold for 

omission under proposed Item 601(a)(5) 

is lower than for omission under the 

proposed amendment to Item 601(b)(10) 

because registrants would not be 

required to show that the information 

would cause competitive harm if 

publicly disclosed. 

Based on our review of confidential 

treatment requests granted in fiscal year 

2016, we estimate that over 90% of 

these requests were granted for material 

contracts based on competitive harm to 

the registrant. For the remainder, we 

expect that many of those exhibits likely 

contain schedules that could be omitted 

under proposed Item 601(a)(5). 

However, we are unable to reliably 

estimate how many of these requests 

would be unnecessary under the 

proposed amendments to Item 601(a)(5) 

because this would depend, in part, on 

whether the schedules contain material 


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393For similar reasons, we are making no 

additional adjustment to our burden estimates in 

respect of the amendments to Item 601(a)(6). In 

fiscal year 2016, only nine confidential treatment 

requests were granted by the Commission for 

documents containing PII. This suggests that most 

registrants are currently taking advantage of existing 

staff guidance that PII may be omitted without filing 

a confidential treatment request. 

394See supra Section II.D. 

395 17 CFR 239.44. 

396 17 CFR 239.45. 

397See supra Section II.G.1. 

398As discussed above, the Commission recently 

proposed to require the use of the Inline XBRL 

format instead of the traditional XBRL format for 

the submission of operating company financial 

statements, and we intend for the cover page data 

to be tagged in the same format as this other 

information. See id. In the Inline XBRL Proposing 

Release, we provided estimates of the change in 

paperwork burden associated with the transition to 

Inline XBRL. See supra note 310. Because we 

expect to require the Inline XBRL format for tagging 

cover page data only if the Inline XBRL proposal 

has been adopted, we are not including PRA burden 

estimates related to the transition to Inline XBRL in 

this release. 

information. Given that the proposed 

amendments to Item 601(b)(10) would 

likely address over 90% of the 

confidential treatment requests 

submitted to the Commission, and to 

avoid overestimating the decrease in 

paperwork burden arising from the 

proposed amendments, we are not 

making an additional adjustment to our 

burden estimates in respect of the 

amendment to Item 601(a)(5) but are 

soliciting comment on ways to 

reasonably estimate such an 

adjustment.393

Based on these assumptions, we 

expect the annual internal burden hours 

and professional costs devoted to the 

confidential treatment process to 

decrease each time exhibit information 

described in Item 601(a)(5), Item 

601(a)(6), or Item 601(b)(10)(iv) is 

omitted or redacted. In fiscal year 2016, 

43% of confidential treatment requests 

were filed for Form 10–Q, 18% for Form 

10–K, 13% for Form 8–K, 8% for Form 

S–1, 4% for Form 20–F, and 1% each 

for Form 10 and Form F–1. We are 

therefore ascribing changes in 

paperwork burdens and costs to these 

forms in these same proportions. 

ii. Material Contracts Exhibits (Item 

601(b)(10)(i)) 

The proposed amendment to Item 

601(b)(10)(i) would limit the two-year 

look back filing requirement for material 

contracts to newly reporting registrants. 

Registrants that are not newly reporting 

registrants would no longer be required 

to comply with this filing requirement 

and thus would incur reduced 

compliance burdens. However, we 

believe that the current burden 

associated with the two-year look back 

requirement is minimal. Therefore, the 

proposed amendments are not expected 

to result in a significant reduction of the 

paperwork burden associated with the 

affected forms. We estimate that the 

paperwork burden would be reduced by 

0.5 hours for each form affected by the 

proposed amendment. We expect that 

Form 10, Form 10–K, Form S–1, Form 

S–4, Form F–1, Form F–3, Form F–4, 

Form S–11, and Form SF–1 would be 

affected by this proposed amendment. 

2. Proposed Amendments Expected To 

Increase Burdens 

a. Registration Statement and 

Prospectus Provisions (Item 501(b)) 

We are proposing to amend Item 

501(b) to require disclosure on the cover 

page of the prospectus of any national 

securities exchange where the securities 

being offered are listed or, if not listed, 

the principal United States market or 

markets for the securities being offered 

and the corresponding trading symbols, 

if any.394 The proposed amendments 

would incrementally increase the 

compliance burden on registrants by 

requiring them to provide disclosure 

about trading markets other than 

national exchanges. Because we are 

proposing to limit the incremental 

disclosure to those trading markets 

where the registrants, through the 

engagement of a registered brokerdealer, has actively sought and achieved 

quotation, we believe this information 

should be readily available to registrants 

and impose only a minimal paperwork 

burden. 

Accordingly, we estimate that the 

proposed amendment would slightly 

increase the paperwork burden 

associated with each affected form by 

0.25 hours. We expect that Form S–1, 

Form S–3, Form S–4, Form S–11, Form 

F–1, Form F–3, Form F–4, Form SF– 

1,395 and Form SF–3 396 would be 

affected by this proposed amendment. 

b. Exhibits (Item 601(b)(4)(vi) and 

(b)(21)) 

Proposed new Item 601(b)(4)(vi) 

would require registrants to file an Item 

202 description of their Exchange Act 

registered securities as an exhibit to 

Form 10–K. The proposed amendments 

to Item 601(b)(21) would require 

disclosure of an LEI (if one has been 

obtained) for each registrant and any 

subsidiaries required to be disclosed in 

the exhibit. 

We expect that the new requirements 

under Item 601(b)(4)(vi) would slightly 

increase the paperwork burden on 

registrants because registrants would be 

required to provide a description of 

registered securities annually. However, 

registrants would be able to incorporate 

by reference and hyperlink to prior 

disclosure if the information called for 

by Item 202 remains unchanged from 

prior years, thus mitigating any increase 

in the anticipated burden. Accordingly, 

we estimate the proposed amendments 

would increase the paperwork burden 

associated with Form 10–K and Form 

20–F by 0.5 hours. 

We expect that the proposed 

amendments to Item 601(b)(21) would 

also increase the burden on registrants; 

however, we expect this increase to be 

slight because LEI information should 

be readily available and would be only 

required if an identifier has already 

been obtained. Those registrants that 

have not obtained LEIs would not incur 

an additional burden. Accordingly, we 

estimate that the proposed amendments 

to Item 601(b)(21) would increase the 

paperwork burden associated with each 

affected form by 0.25 hours. We expect 

that Form S–1, Form S–4, Form F–1, 

Form 10, Form 10–K, Form S–11, Form 

SF–1, and Form SF–3 would be affected 

by the proposed amendment to Item 

601(b)(21). 

c. Manner of Delivery 

Proposed new Rule 406, proposed 

new Item 601(b)(104), proposed new 

paragraph 104 to ‘‘Instructions as to 

Exhibits’’ of Form 20–F and proposed 

new Instruction 17 to ‘‘Information To 

Be Filed on this Form’’ of Form 40–F 

would require registrants to tag every 

data point on the cover pages of Form 

10–K, Form 10–Q, Form 8–K, Form 20– 

F, and Form 40–F using Inline XBRL, 

including certain new data points added 

pursuant to the proposed 

amendments.397 Although expanded 

data tagging would result in an increase 

in the burden associated with related 

forms, we note that registrants are 

already required to tag certain cover 

page information as well as financial 

statement information. For this reason, 

we believe most registrants already will 

have developed the internal resources or 

engaged outside professionals to assist 

them in complying with existing data 

tagging requirements.398 In this respect, 

we do not believe the cover page tagging 

requirement would result in significant 

additional burdens for registrants. 

Accordingly, we estimate that the 

requirement to tag additional cover page 

items would impose an increased 

paperwork burden of one hour for each 

affected form. We expect that Form 10– 


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399See supra Section II.G.2. 

400See infra Section IV.C.4. 

401The proposed amendments would also 

streamline 501(b) by combining paragraphs (b)(10) 

and (b)(11) without substantive change. 

402See supra Section II.D.2. 

403See supra Section II.D.3. 

404See supra Section II.D.4. 

405See supra Section II.F. 

406See id. 

407See id. 

408Schedules 14A and 14C require disclosure 

under Subpart 400 of Regulation S–K. This 

disclosure is often incorporated, in relevant part, 

into Part III of a registrant’s Form 10–K. Therefore, 

our burden estimates for Form 10–K contemplate 

that Part III disclosure may be incorporated by 

reference to Schedules 14A or 14C. 

409Schedule 14A requires that registrants, under 

certain circumstances, provide disclosure under 

Item 303. Our burden estimate for Schedule 14A 

assumes that registrants would duplicate the 

disclosure provided under this Item in the most 

recent Form 10–K and/or Form 10–Q. 

410We recognize that the costs of retaining 

outside professionals may vary depending on the 

nature of the professional services, but for purposes 

of this PRA analysis, we estimate that such costs 

would be an average of $400 per hour. This estimate 

is based on consultations with several registrants, 

law firms and other persons who regularly assist 

registrants in preparing and filing reports with the 

Commission. 

411For convenience, the estimated hour and cost 

burdens in the tables in this section have been 

rounded to the nearest whole number. 

K, Form 10–Q, Form 8–K, Form 20–F, 

and Form 40–F would be affected by the 

proposed new rules and form 

amendments. 

As described in more detail above, we 

are proposing amendments to certain of 

our forms that are used by investment 

companies and amendments to Rule 102 

of Regulation S–T to apply hyperlinking 

and HTML requirements to those 

registrants to facilitate access to most 

exhibits for investors and other users of 

the information.399 We anticipate that 

the proposed amendments will increase 

the burdens and costs for registrants to 

prepare and file registration statements 

and reports on the affected forms. 

Because the software tools to prepare 

and file documents in HTML are widely 

used and available at minimal cost, we 

do not believe this requirement would 

appreciably change the existing burden 

estimates for the affected registration 

statements or reports, which already 

include the time and expense to prepare 

and file in electronic format on EDGAR. 

We believe the burdens associated with 

hyperlinking exhibits would be small as 

the registrant would already be 

preparing the exhibits and exhibit index 

for the related filing and would have 

readily available all the information 

necessary to create the hyperlinks. We 

assume that the average burden hours of 

requiring exhibit hyperlinks would vary 

based on the number of exhibits that are 

included with a filing, as discussed in 

detail below.400

3. Proposed Amendments Not Expected 

to Meaningfully Affect Burdens 

a. Registration Statement and 

Prospectus Provisions (Item 501(b), Item 

503(c), Item 508 and Item 512) 

The proposed amendments to Item 

501(b)(1), Item 501(b)(3), and Item 

501(b)(10) would, respectively, 

eliminate misleading company name 

disclosure requirements, explicitly 

allow registrants to include a clear 

statement that the offering price will be 

determined by a particular method or 

formula (and require a cross reference to 

the offering price method or formula 

disclosure), and permit registrants to 

exclude some portion of the legend 

relating to state law in the prospectus 

for an offering that is not prohibited by 

state blue sky law.401 The proposed 

amendments to Item 503(c) would 

relocate the current risk factor 

disclosure requirements to Subpart 100 

and eliminate the risk factor examples 

without substantively changing the 

underlying disclosure requirements.402

The proposed amendment to Item 508 

would define the term ‘‘subunderwriter’’ to clarify one aspect of the 

required disclosure about the plan of 

distribution for a registered securities 

offering.403 The proposed amendments 

to Item 512 would eliminate certain 

undertakings that are redundant or 

obsolete.404

We believe these proposed 

amendments would not meaningfully 

affect the paperwork burden associated 

with the related forms because these 

amendments modernize and clarify 

certain requirements and do not 

substantively change the required 

disclosure. Therefore, we are not 

making any adjustments to the 

paperwork burden of affected forms due 

to these proposed amendments. 

b. Incorporation by Reference 

We are proposing amendments to 

simplify and modernize the rules and 

forms governing incorporation by 

reference. Under the proposed 

amendments, certain existing 

requirements for incorporation by 

reference would be consolidated into 

Rule 411, Rule 12b-23, Rule 0–4, and 

Rule 0–6.405 The proposed amendments 

would also eliminate several redundant 

or outdated requirements. In addition, 

the proposed amendments would 

provide registrants with additional 

flexibility in organizing the disclosure 

in Form 10, Form 10–K, and Form 20– 

F by permitting them to exclude item 

numbers and captions or create their 

own captions tailored to the disclosure 

in these forms 406 These proposals are 

expected to decrease reporting burdens 

associated with incorporating 

information by reference in Commission 

filings, leading to an estimated 0.5 hour 

reduction in paperwork burden per 

affected form. However, this decrease 

would be offset by an estimated 0.5 hour 

increase in paperwork burden per 

affected form due to the proposed 

amendments requiring registrants to 

include hyperlinks to information 

incorporated by reference when that 

information is available on EDGAR.407

Accordingly, we are not making any 

adjustments to the paperwork burden of 

affected forms due to these proposed 

amendments. 

C. Burden and Cost Estimates to the 

Proposed Amendments 

As discussed below, we expect that 

the proposed amendments would, in the 

aggregate, reduce the paperwork burden 

on respondents. The change in burden, 

however, would differ depending on the 

form because not all of the proposed 

amendments would apply to each form. 

These estimates represent the average 

burden for all registrants, both large and 

small. In deriving our estimates, we 

recognize that the burdens will likely 

vary among individual registrants based 

on a number of factors, including the 

nature of their business. 

The burden estimates were calculated 

by multiplying the estimated number of 

responses by the estimated average 

amount of time it would take a 

registrant to prepare and review 

disclosure required under the proposed 

amendments. The portion of the burden 

carried by outside professionals is 

reflected as a cost, while the portion of 

the burden carried by the registrant 

internally is reflected in hours. 

1. Form 10–K and Form 10–Q; Schedule 

14A and Schedule 14C 

The proposed amendments are 

estimated to significantly reduce the 

paperwork burdens associated with 

Form 10–K 408 and Form 10–Q as well 

as Schedule 14A and Schedule 14C.409

For purposes of the PRA, we estimate 

that 75% of the burden of preparation 

for these Exchange Act reports is carried 

by the registrant internally and that 25% 

of the burden of preparation is carried 

by outside professionals retained by the 

company at an average cost of $400 per 

hour.410

Table 4 below illustrates the total 

annual compliance burden, in hours 

and in costs, 411 of the affected 


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412The burdens associated with the proposed 

amendments to the forms listed in Table 4, other 

than the confidential treatment request proposal, 

have been estimated by assuming that 75% of the 

burden is borne by the company and 25% is borne 

by outside counsel at $400 per hour. The burdens 

associated with submitting confidential treatment 

requests in connection with the forms listed in 

Table 4 have been estimated by assuming that the 

average request requires approximately ten hours of 

preparation and that 20% of the burden is borne by 

the company and 80% of the burden is borne by 

outside counsel at $400 per hour. 413The burdens associated with the proposed 

amendments to the forms listed in Table 5, other 

than the confidential treatment request proposal, 

have been estimated by assuming that 25% of the 

burden is borne by the company and 75% is borne 

by outside counsel at $400 per hour. The burdens 

associated with submitting confidential treatment 

requests in connection with the forms listed in 

Table 5 have been estimated by assuming that the 

average request requires approximately ten hours of 

preparation and that 20% of the burden is borne by 

the company and 80% of the burden is borne by 

outside counsel at $400 per hour. 

collections of information resulting from 

the proposed amendments.412

TABLE 4—INCREMENTAL PAPERWORK BURDEN UNDER THE PROPOSED AMENDMENTS FOR EXCHANGE ACT FORMS

Current annual 

responses 

Proposed 

number of 

affected 

responses 

Current 

burden hours 

Change in 

burden hours 

Change in 

company 

hours 

Change in 

professional 

hours 

Change in 

professional 

costs 

10–K ............................. 8,137 8,137 12,228,620 (32,703) (23,325) (9,378) ($3,715,600) 

10–Q ............................ 22,907 22,907 3,220,037 (73,181) (63,884) (9,297) (3,718,800) 

8–K ............................... 118,387 118,387 507,665 116,867 88,490 28,377 11,350,800 

2. Form S–1, Form S–3, Form S–4, Form 

F–3, Form F–4, Form SF–1, Form SF– 

3, Form 10, and Form 20–F 

The proposed amendments are 

estimated to significantly reduce the 

paperwork burden associated with Form 

S–1, Form S–3, Form S–4, Form F–3, 

Form F–4, and Form 20–F. For 

registration statements on Form 10, 

Form S–1, Form S–3, Form S–4, Form 

F–1, Form F–3, Form F–4, Form SF–1, 

and Form SF–3, and Exchange Act 

report Form 20–F, we estimate that 25% 

of the burden of preparation is carried 

by the company internally and that 75% 

of the burden of preparation is carried 

by outside professionals retained by the 

company at an average cost of $400 per 

hour. 

Table 5 below illustrates the total 

annual compliance burden, in hours 

and in costs, of the affected collections 

of information resulting from the 

proposed amendments.413

TABLE 5—INCREMENTAL PAPERWORK BURDEN UNDER THE PROPOSED AMENDMENTS FOR REGISTRATION STATEMENTS

Current annual 

reponses 

Proposed 

number of 

affected 

responses 

Current 

burden hours 

Change in 

burden hours 

Change in 

company 

hours 

Change in 

professional 

hours 

Change in 

professional 

costs 

S–1 ............................... 901 901 150,242 (5,514) (1,325) (4,189) ($1,675,600) 

S–3 ............................... 1,082 1,082 127,806 (301) (78) (223) (89,200) 

S–4 ............................... 551 551 564,731 (2,803) (700) (2,103) (841,200) 

S–11 ............................. 100 100 19,476 (450) (112) (338) (135,200) 

SF–3 ............................. 71 71 24,495 36 9 27 10,800 

F–1 ............................... 63 63 26,917 (431) (98) (333) (133,200) 

F–3 ............................... 107 107 4,467 (10) (1) (9) (3,600) 

F–4 ............................... 68 68 24,769 (281) (70) (211) (84,400) 

10 ................................. 238 238 12,805 (1390) (342) (1,048) (419,200) 

20–F ............................. 725 725 479,501 (2454) (588) (1,866) (746,400) 

40–F ............................. 160 160 17,197 160 40 120 40,000 

TABLE 6—CURRENT AND REVISED BURDENS UNDER THE PROPOSED AMENDMENTS FOR SECURITIES ACT

AND EXCHANGE ACT FORMS

Current burden Revised burden 

Burden hours 

(A) 

Cost 

(B) 

Burden hours 

(C) 

Costs 

(D) 

10–K ......................................................................................................... 12,228,620 $1,631,470,000 12,205,295 $1,627,754,400 

10–Q ........................................................................................................ 3,220,037 429,368,808 3,156,153 425,650,008 

8–K ........................................................................................................... 507,665 67,688,700 596,155 79,039,500 

S–1 ........................................................................................................... 150,242 180,290,100 148,917 178,614,900 

S–3 ........................................................................................................... 127,806 153,367,008 127,728 153,277,808 

S–4 ........................................................................................................... 564,731 677,677,104 564,031 676,835,904 

S–11 ......................................................................................................... 19,476 23,371,200 19,364 23,236,000 

SF–3 ........................................................................................................ 24,495 29,394,000 24,504 29,404,800 

F–1 ........................................................................................................... 26,917 32,300,100 26,819 32,166,900 

F–3 ........................................................................................................... 4,467 5,360,700 4,465 5,357,100 

F–4 ........................................................................................................... 24,769 29,722,800 24,699 29,638,400 

10 ............................................................................................................. 12,805 15,366,042 12,463 14,946,842 

20–F ......................................................................................................... 479,501 575,400,600 478,913 574,654,200 


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414 17 CFR 249.208a. 

415 17 CFR 239.37. 

416 17 CFR 239.38. 

417 17 CFR 239.41. 

418 17 CFR 239.16. 

419 17 CFR 239.15A and 17 CFR 274.11A. 

420 17 CFR 239.14 and 17 CFR 274.11a–1. 

421 17 CFR 239.17a and 17 CFR 274.11b. 

422 17 CFR 239.17b and 17 CFR 274.11c. 423 17 CFR 239.24 and 17 CFR 274.5. 424 17 CFR 239.17c and 17 CFR 274.11d. 425 17 CFR 249.331 and 17 CFR 274.128. 426See supra Section IV.B.2.c. 427See supra Section IV.B.3.b. 

428For convenience, the estimated hour and cost 

burdens in the table have been rounded to the 

nearest whole number. 

429We recognize that the costs of retaining 

outside professionals may vary depending on the 

nature of the professional services, but for purposes 

of this PRA analysis, we estimate that such costs 

would be an average of $400 per hour. These 

estimates are based on our estimates for the parallel 

requirement for operating companies. Exhibit 

Hyperlinks Adopting Release, supra note 14 at 

14139. 

TABLE 6—CURRENT AND REVISED BURDENS UNDER THE PROPOSED AMENDMENTS FOR SECURITIES ACT—Continued 

AND EXCHANGE ACT FORMS

Current burden Revised burden 

Burden hours 

(A) 

Cost 

(B) 

Burden hours 

(C) 

Costs 

(D) 

40–F ......................................................................................................... 17,197 20,636,800 17,237 20,684,800 

3. Form 8–A, Form 10–D, Form 40–F, 

Form F–7, Form F–8, Form F–10, and 

Form F–80 

The proposed amendments to Form 

8–A,414 Form 10–D, Form 40–F, Form 

F–7,415 Form F–8,416 Form F–10, and 

Form F–80 417 are not expected to 

meaningfully reduce the associated 

paperwork burden for these forms. 

Accordingly, we have not included a 

tabular presentation of the impact on 

the total annual compliance burden of 

these forms as a result of these proposed 

amendments. 

4. Form S–6, Form N–1A, Form N–2, 

Form N–3, Form N–4, Form N–5, Form 

N–6, Form N–14, and Form N–CSR 

The proposed amendments to Form 

S–6,418 Form N–1A,419 Form N–2,420

Form N–3,421 Form N–4,422 Form N– 

5,423 Form N–6,424 Form N–14, and 

Form N–CSR 425 are expected to 

increase the burdens and costs for 

registrants to prepare and file 

registration statements and reports on 

the affected forms, but we believe the 

burdens associated with hyperlinking 

exhibits would be small.426 We assume 

that the average burden hours of 

requiring exhibit hyperlinks would vary 

based on the number of exhibits that are 

included with a filing. For purposes of 

the PRA, based on the average and 

median number of exhibits shown in 

Table 3 above and the staff’s experience, 

we estimate that the average burden for 

a registrant to hyperlink to exhibits 

would be one hour per response for 

each of the affected forms. As discussed 

above, we are not making any 

adjustments to the paperwork burden of 

affected forms due to the proposed 

amendments to simplify and modernize 

the rules and forms governing 

incorporation by reference.427

The table below shows the total 

annual compliance burden, in hours 

and in costs, of the collections of 

information resulting from the proposed 

amendments.428 The burden estimates 

were calculated by multiplying the 

estimated number of responses by the 

estimated average amount of time it 

would take an issuer to prepare and 

review the exhibit hyperlinks. The 

portion of the burden carried by outside 

professionals is reflected as a cost, while 

the portion of the burden carried by the 

issuer internally is reflected in hours. 

For purposes of the PRA, we estimate 

that 25% of the burden of preparation 

is carried by the registrant internally 

and that 75% of the burden of 

preparation is carried by outside 

professionals retained by the company 

at an average cost of $400 per hour.429

TABLE 6—INCREMENTAL PAPERWORK BURDEN UNDER THE PROPOSED AMENDMENTS TO FORMS FOR INVESTMENT

COMPANIES

Forms 

Proposed number 

of affected responses 

Incremental burden hours/form Total incremental 

burden hours 

25% internal burden 75% outside professional Professional costs 

(A) (B) (C) = (A) × (B) (D) = (C) × 0.25 (E) = (C) × 0.75 (F) = E × $400 

Form S–6 ............. 2,498 1 2,498 625 1,874 $749,600 

Form N–1A ........... 6,002 1 6,002 1,501 4,502 1,800,800 

Form N–2 ............. 166 1 166 42 125 50,000 

Form N–3 ............. 20 1 20 5 15 6,000 

Form N–4 ............. 1,653 1 1,653 413 1,240 496,000 

Form N–5 ............. 1 1 1 0 1 400 

Form N–6 ............. 472 1 472 118 354 141,600 

Form N–14 ........... 192 1 192 48 144 57,600 

Form N–CSR ....... 6,898 1 6,898 1,725 5,174 2,069,600 

Total .............. .............................. .............................. 17,902 .............................. .............................. 5,371,600 

D. Request for Comment 

Pursuant to 44 U.S.C. 3506(c)(2)(B), 

we request comment in order to: 

• Evaluate whether the proposed 

collections of information are necessary 

for the proper performance of the 

functions of the Commission, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of our 

assumptions and estimates of the 


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430 5 U.S.C. 801 et seq. 431 5 U.S.C. 601 et seq. 

432 5 U.S.C. 601(6). 

433See Securities Act Rule 157 [17 CFR 230.157] 

and Exchange Act Rule 0–10(a) [17 CFR 240.0– 

10(a)]. 

434Business development companies are a 

category of closed-end investment company that are 

not registered under the Investment Company Act 

[15 U.S.C. 80a–2(a)(48) and 80a–53–64]. 

435See Investment Company Act Rule 0–10(a) [17 

CFR 270.0–10(a)]. 

436See Investment Advisers Act Rule 0–7(a) [17 

CFR 275.0–7(a)]. 

437This estimate is based on a review of Form 10– 

K and 20–F filings (from EDGAR XBRL) with fiscal 

periods ending between January 31, 2015 and 

January 31, 2016. 

burden of the proposed collection of 

information; 

• Determine whether there are ways 

to enhance the quality, utility, and 

clarity of the information to be 

collected; 

• Evaluate whether there are ways to 

minimize the burden of the collection of 

information on those who respond, 

including through the use of automated 

collection techniques or other forms of 

information technology; and 

• Evaluate whether the proposed 

amendments would have any effects on 

any other collection of information not 

previously identified in this section. 

Any member of the public may direct 

to us any comments concerning the 

accuracy of these burden estimates and 

any suggestions for reducing these 

burdens. Persons submitting comments 

on the collection of information 

requirements should direct their 

comments to the Office of Management 

and Budget, Attention: Desk Officer for 

the U.S. Securities and Exchange 

Commission, Office of Information and 

Regulatory Affairs, Washington, DC 

20503, and send a copy to, Brent J. 

Fields, Secretary, U.S. Securities and 

Exchange Commission, 100 F Street NE., 

Washington, DC 20549, with reference 

to File No. S7–08–17. Requests for 

materials submitted to OMB by the 

Commission with regard to the 

collection of information should be in 

writing, refer to File No. S7–08–17 and 

be submitted to the U.S. Securities and 

Exchange Commission, Office of FOIA 

Services, 100 F Street NE., Washington 

DC 20549. OMB is required to make a 

decision concerning the collection of 

information between 30 and 60 days 

after publication of this proposed rule. 

Consequently, a comment to OMB is 

best assured of having its full effect if 

the OMB receives it within 30 days of 

publication. 

V. Small Business Regulatory 

Enforcement Fairness Act 

For purposes of the Small Business 

Regulatory Enforcement Fairness Act of 

1996,430 a rule is ‘‘major’’ if it has 

resulted, or is likely to result in: 

• An annual effect on the U.S. 

economy of $100 million or more; 

• a major increase in costs or prices 

for consumers or individual industries; 

or 

• significant adverse effects on 

competition, investment, or innovation. 

We request comment on whether our 

proposal would be a ‘‘major rule’’ for 

purposes of the Small Business 

Regulatory Enforcement Fairness Act. 

We solicit comment and empirical data 

on: 

• The potential effect on the U.S. 

economy on an annual basis; 

• any potential increase in costs or 

prices for consumers or individual 

industries; and 

• any potential effect on competition, 

investment, or innovation. 

VI. Initial Regulatory Flexibility Act 

Analysis 

This Initial Regulatory Flexibility Act 

Analysis has been prepared in 

accordance with the Regulatory 

Flexibility Act.431 It relates to proposed 

amendments to modernize and simplify 

certain disclosure requirements in 

Regulation S–K and related rules and 

forms to implement Section 72003 of 

the FAST Act and provide consistent 

incorporation by reference and 

hyperlinking requirements in the rules 

and forms applicable to investment 

companies and investment advisers. 

A. Reasons for, and Objectives of, the 

Proposed Action 

The purpose of the proposed 

amendments is to modernize and 

simplify Commission disclosure 

requirements in a manner that reduces 

costs and burdens on companies while 

still providing all material information. 

Specifically, the proposed amendments 

would modernize and simplify these 

disclosure requirements by clarifying, 

consolidating, relocating and 

eliminating, or updating various 

Commission rules that govern public 

company disclosure. The proposed 

amendments would also modernize the 

rules by requiring cover page data to be 

tagged in a machine-readable format, 

requiring disclosure of LEIs and 

requiring hyperlinks to be included in 

some documents filed on EDGAR. The 

proposed amendments would largely 

implement the staff’s recommendations 

in the FAST Act Report, as required by 

Section 72003(d) of the FAST Act. In 

addition, the proposed amendments 

would apply parallel incorporation by 

reference and hyperlinking 

requirements in the rules and forms 

used by investment companies and 

investment advisers to provide a 

consistent set of requirements for these 

registrants. 

B. Legal Basis 

We are proposing the rule and form 

amendments contained in this 

document under the authority set forth 

in Sections 7, 10, 19(a), and 28 of the 

Securities Act of 1933, as amended, 

Sections 3(b), 12, 13, 14, 15, 16, 23(a), 

and 36 of the Securities Exchange Act 

of 1934, as amended, Sections 6(c), 8, 

24(a), 30, and 38 of the Investment 

Company Act of 1940, as amended and 

Sections 204, 206A, 210, and 211 of the 

Investment Advisers Act of 1940, as 

amended. 

C. Small Entities Subject to the 

Proposed Rules 

The proposed amendments would 

affect some registrants that are small 

entities. The Regulatory Flexibility Act 

defines ‘‘small entity’’ to mean ‘‘small 

business,’’ ‘‘small organization,’’ or 

‘‘small governmental jurisdiction.’’ 432

For purposes of the Regulatory 

Flexibility Act, under our rules, an 

issuer, other than an investment 

company or an investment adviser, is a 

‘‘small business’’ or ‘‘small 

organization’’ if it had total assets of $5 

million or less on the last day of its most 

recent fiscal year and is engaged or 

proposing to engage in an offering of 

securities that does not exceed $5 

million.433 An investment company, 

including a business development 

company,434 is considered to be a 

‘‘small business’’ if it, together with 

other investment companies in the same 

group of related investment companies, 

has net assets of $50 million or less as 

of the end of its most recent fiscal 

year.435 An investment adviser generally 

is a small entity if it: (1) Has assets 

under management having a total value 

of less than $25 million; (2) did not have 

total assets of $5 million or more on the 

last day of the most recent fiscal year; 

and (3) does not control, is not 

controlled by, and is not under common 

control with another investment adviser 

that has assets under management of 

$25 million or more, or any person 

(other than a natural person) that had 

total assets of $5 million or more on the 

last day of its most recent fiscal year.436

We estimate that there are 837 issuers 

that file with the Commission, other 

than investment companies and 

investment advisers, that may be 

considered small entities.437 In 

addition, we estimate that, as of 


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438This estimate is based on Commissionregistered investment adviser responses to Form 

ADV, Item 5.F and Item 12. 

439We recognize that the fixed costs of disclosure 

requirements typically constitute a higher 

percentage of revenues for smaller companies than 

for larger companies. However, the benefits of 

disclosure may be greater for smaller companies 

because information asymmetries between investors 

and managers of smaller companies are typically 

higher than for larger, more seasoned companies 

with a large following. See, e.g., R. Frankel and X. 

Li, Characteristics of a firm’s information 

environment and the information asymmetry 

between insiders and outsiders, 37 J. Acct. Econ. 

229, 229–259 (June 2004). See also, L. Cheng, S. 

Liao, and H. Zhang, The Commitment Effect versus 

Information Effect of Disclosure—Evidence from 

Smaller Reporting Companies, 88 Acct. Rev. 1239, 

1239–1263 (2013). 

440See, e.g., supra Section 0 (Tagging Cover Page 

Data). 

441See, e.g., supra Section 0 (Exhibit Hyperlinks 

and HTML format for Investment Companies). 

442See e.g., supra Section II.D.1.c (Market for the 

Securities (Item 501(b)(4)). 

443See supra Sections (Economic Analysis) and 

IV (Paperwork Reduction Act). 

444See supra Section (Year-to-Year Comparisons 

(Instruction 1 to Item 303(a)). 

445See supra Section (Schedules and 

Attachments to Exhibits). 446See supra Section (Description of Property). 

December 2016, there are 130 

investment companies that would be 

subject to the proposed amendments 

that may be considered small entities. 

Finally, we estimate that, as of August 

1, 2017, there are 557 investment 

advisers that may be subject to the 

proposed amendments that may be 

considered small entities.438

D. Reporting, Recordkeeping, and Other 

Compliance Requirements 

As noted above, the purpose of the 

proposed amendments is to modernize 

and simplify the Commission’s 

disclosure requirements and provide 

consistent incorporation by reference 

and hyperlinking rules for investment 

companies and investment advisers. If 

adopted, the majority of the proposed 

amendments are expected to have an 

incremental effect on existing reporting, 

recordkeeping and other compliance 

burdens for all issuers, including small 

entities.439 Many of the proposed 

amendments would simplify and 

streamline existing disclosure 

requirements in ways that are expected 

to reduce compliance burdens. Some of 

the proposed amendments, like those 

that impose new data tagging,440

hyperlinking 441 or disclosure 

requirements 442 would increase 

compliance costs for registrants, 

although we do not expect these 

additional costs to be significant. 

E. Duplicative, Overlapping, or 

Conflicting Federal Rules 

We believe that the proposed 

amendments would not duplicate, 

overlap, or conflict with other federal 

rules. 

F. Significant Alternatives 

The Regulatory Flexibility Act directs 

us to consider alternatives that would 

accomplish our stated objectives, while 

minimizing any significant adverse 

impact on small entities. In connection 

with the proposed amendments, we 

considered the following alternatives: 

• Establishing different compliance or 

reporting requirements that take into 

account the resources available to small 

entities; 

• Clarifying, consolidating, or 

simplifying compliance and reporting 

requirements under the rules for small 

entities; 

• Using performance rather than 

design standards; and 

• Exempting small entities from all or 

part of the requirements. 

We believe the proposed amendments 

would clarify, consolidate and simplify 

compliance and reporting requirements 

for small entities and other registrants. 

As discussed above, we believe the 

majority of the proposed amendments 

would simplify and streamline 

disclosure requirements in ways that are 

expected to reduce compliance 

burdens.443 We do not believe that the 

proposed amendments would impose 

any significant new compliance 

obligations. Accordingly, we generally 

do not believe it is necessary to 

establish different compliance and 

reporting requirements or timetables or 

to exempt small entities from all or part 

of the proposed amendments. We note 

in this regard that the Commission’s 

existing disclosure requirements 

provide for scaled disclosure 

requirements and other 

accommodations for small entities, and 

the proposed amendments would not 

alter these existing accommodations. 

Finally, with respect to using 

performance rather than design 

standards, the proposed amendments 

generally use design rather than 

performance standards in order to 

promote uniform filing requirements for 

all registrants. In some instances, the 

proposed amendments would 

modernize and simplify existing design 

standards. For example, the proposed 

amendments to Item 303(a) would 

emphasize the flexibility currently 

available to registrants with respect to 

the form of MD&A presentation.444 In 

other instances, the proposed 

amendments may result in additional 

flexibility when preparing disclosures. 

For example, proposed Item 601(a)(5) 

would expand registrants’ ability to 

omit schedules and attachments that are 

not material to exhibits.445 As another 

example, the proposed amendments to 

Item 102 would clarify that the 

threshold for disclosure about 

registrants’ physical properties is based 

on materiality.446

G. Request for Comment 

We encourage the submission of 

comments with respect to any aspect of 

this Initial Regulatory Flexibility 

Analysis. In particular, we request 

comments regarding: 

• how the proposed rule and form 

amendments can achieve their objective 

while lowering the burden on small 

entities; 

• the number of small entity 

companies that may be affected by the 

proposed rule and form amendments; 

• the existence or nature of the 

potential effects of the proposed 

amendments on small entity companies 

discussed in the analysis; and 

• how to quantify the effects of the 

proposed amendments. 

Commenters are asked to describe the 

nature of any effect and provide 

empirical data supporting the extent of 

that effect. Comments will be 

considered in the preparation of the 

Final Regulatory Flexibility Analysis, if 

the proposed rules are adopted, and will 

be placed in the same public file as 

comments on the proposed rules 

themselves. 

VII. Statutory Authority and Text of 

Proposed Rule and Form Amendments 

We are proposing the rule and form 

amendments contained in this 

document under the authority set forth 

in Sections 7, 10, 19(a), and 28 of the 

Securities Act of 1933, as amended, 

Sections 3(b), 12, 13, 14, 15, 16, 23(a), 

and 36 of the Securities Exchange Act 

of 1934, as amended, Sections 6(c), 8, 

24(a), 30, and 38 of the Investment 

Company Act of 1940, as amended, and 

Sections 204, 206A, 210, and 211 of the 

Investment Advisers Act of 1940, as 

amended. 

List of Subjects in 17 CFR Parts 229, 

230, 232, 239, 240, 249, 270, 274, and 

275 

Administrative practice and 

procedure, Reporting and recordkeeping 

requirements, Securities. 

In accordance with the foregoing, we 

are proposing to amend Title 17, 

Chapter II of the Code of Federal 

Regulations as follows: 


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51032 Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Proposed Rules 

PART 229—STANDARD 

INSTRUCTIONS FOR FILING FORMS 

UNDER SECURITIES ACT OF 1933, 

SECURITIES EXCHANGE ACT OF 1934 

AND ENERGY POLICY AND 

CONSERVATION ACT OF 1975— 

REGULATION S–K 

■ 1. The authority citation for part 229 

continues to read as follows: 

Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 

77j, 77k, 77s, 77z–2, 77z–3, 77aa(25), 

77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 

77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78j–3, 78l, 

78m, 78n, 78n–1, 78o, 78u–5, 78w, 78ll, 78 

mm, 80a–8, 80a–9, 80a–20, 80a–29, 80a–30, 

80a–31(c), 80a–37, 80a–38(a), 80a–39, 80b–11 

and 7201 et seq.; 18 U.S.C. 1350; sec. 953(b), 

Pub. L. 111–203, 124 Stat. 1904 (2010); and 

sec. 102(c), Pub. L. 112–106, 126 Stat. 310 

(2012). 

§ 229.10 [Amended]. 

■ 2. Remove and reserve paragraph (d) 

of § 229.10. 

■ 3. Amend § 229.102 by revising the 

introductory text, Instruction 1 and 

Instruction 2 to read as follows: 

§ 229.102 (Item 102) Description of 

property. 

To the extent material, disclose the 

location and general character of the 

registrant’s principal physical 

properties. In addition, identify the 

segment(s), as reported in the financial 

statements, that use the properties 

described. If any such property is not 

held in fee or is held subject to an 

encumbrance that is material to the 

registrant, so state and describe briefly 

how held. 

Instructions to Item 102: 1. What is 

required is information that will 

reasonably inform investors as to the 

suitability, adequacy, productive 

capacity, and extent of utilization of the 

principal physical properties of the 

registrant and its subsidiaries, to the 

extent the described properties are 

material. A registrant should engage in 

a comprehensive consideration of the 

materiality of its properties. If 

appropriate, descriptions may be 

provided on a collective basis; detailed 

descriptions of the physical 

characteristics of individual properties 

or legal descriptions by metes and 

bounds are not required and shall not be 

given. 

2. Disclosures with respect to this 

item need only be provided to the extent 

the properties are material to the 

registrant. In determining materiality 

under this Item, the registrant should 

take into account both quantitative and 

qualitative factors. See Instruction 1 to 

Item 101 of Regulation S–K (§ 229.101). 

* * * * * 

■ 4. Add § 229.105 to read as follows: 

§ 229.105 (Item 105) Risk factors. 

Where appropriate, provide under the 

caption ‘‘Risk Factors’’ a discussion of 

the most significant factors that make an 

investment in the registrant or offering 

speculative or risky. This discussion 

must be concise and organized logically. 

Do not present risks that could apply 

generically to any registrant or any 

offering. Explain how the risk affects the 

registrant or the securities being offered. 

Set forth each risk factor under a 

subcaption that adequately describes the 

risk. If the risk factor discussion is 

included in a registration statement, it 

must immediately follow the summary 

section. If you do not include a 

summary section, the risk factor section 

must immediately follow the cover page 

of the prospectus or the pricing 

information section that immediately 

follows the cover page. Pricing 

information means price and pricerelated information that you may omit 

from the prospectus in an effective 

registration statement based on Rule 

430A (§ 230.430A(a) of this chapter). 

The registrant must furnish this 

information in plain English. See 

§ 230.421(d) of Regulation C of this 

chapter. 

■ 5. Amend § 229.202 by revising 

Instruction 3 under ‘‘Instructions to 

Item 202’’ to read as follows: 

§ 229.202 (Item 202) Description of 

registrant’s securities. 

* * * * * 

3. Section 305(a)(2) of the Trust 

Indenture Act of 1939, U.S.C. 77aaa et 

seq., as amended (‘‘Trust Indenture 

Act’’), shall not be deemed to require 

the inclusion in a registration statement, 

prospectus, or annual report on Form 

10–K of any information not required by 

this Item or Item 601(b)(4)(vi) of this 

chapter. 

* * * * * 

■ 6. Amend § 229.303 by revising 

Instruction 1 under ‘‘Instructions to 

paragraph 303(a)’’ to read as follows: 

§ 229.303 (Item 303) Management’s 

discussion and analysis of financial 

condition and results of operations. 

* * * * * 

Instructions to paragraph 303(a): 1. 

The registrant’s discussion and analysis 

shall be of the financial statements and 

other statistical data that the registrant 

believes will enhance a reader’s 

understanding of its financial condition, 

changes in financial condition and 

results of operations. Generally, the 

discussion shall cover the periods 

covered by the financial statements 

included in the filing and the registrant 

may use any presentation that in the 

registrant’s judgment enhances a 

reader’s understanding. A smaller 

reporting company’s discussion shall 

cover the two-year period required in 

Article 8 of Regulation S–X and may use 

any presentation that in the registrant’s 

judgment enhances a reader’s 

understanding. For registrants providing 

financial statements covering three 

years in a filing, discussion about the 

earliest year would not be required if (i) 

that discussion is not material to an 

understanding of the registrant’s 

financial condition, changes in financial 

condition and results of operations and 

(ii) the registrant has filed its prior year 

Form 10–K on EDGAR containing 

management’s discussion and analysis 

of the earliest of the three years 

included in the financial statements of 

the current filing. An emerging growth 

company, as defined in Rule 405 of the 

Securities Act (§ 230.405 of this chapter) 

or Rule 12b–2 of the Exchange Act 

(§ 240.12b–2 of this chapter), may 

provide the discussion required in 

paragraph (a) of this Item for its two 

most recent fiscal years if, pursuant to 

Section 7(a) of the Securities Act of 

1933 (15 U.S.C 77g(a)), it provides 

audited financial statements for two 

years in a Securities Act registration 

statement for the initial public offering 

of the emerging growth company’s 

common equity securities. 

* * * * * 

■ 7. Amend § 229.401 by removing 

Instruction 3 to paragraph (b) of Item 

401and adding an Instruction to Item 

401 to read as follows: 

§ 229.401 (Item 401) Directors, executive 

officers, promoters and control persons. 

* * * * * 

Instruction to Item 401. The 

information regarding executive officers 

called for by this Item need not be 

furnished in proxy or information 

statements prepared in accordance with 

Schedule 14A or Schedule 14C under 

the Exchange Act (§ 240.14a–101 and 

§ 240.14c–101 of this chapter) if you are 

relying on General Instruction G of 

Form 10–K under the Exchange Act 

(§ 249.310 of this chapter), such 

information is furnished in a separate 

section captioned ‘‘Information about 

our Executive Officers,’’ and is included 

in Part I of your annual report on Form 

10–K. 

■ 8. Revise § 229.405 to read as follows: 

§ 229.405 (Item 405) Compliance with 

Section 16(a) of the Exchange Act. 

(a) Reporting obligation. Every 

registrant having a class of equity 

securities registered pursuant to Section 

12 of the Exchange Act (15 U.S.C. 78l) 

and every closed-end investment 

company registered under the 


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Investment Company Act of 1940 (15 

U.S.C. 80a–1 et seq.) must: 

(1) Under the caption ‘‘Delinquent 

Section 16(a) Reports,’’ identify each 

person who, at any time during the 

fiscal year, was a director, officer, 

beneficial owner of more than ten 

percent of any class of equity securities 

of the registrant registered pursuant to 

Section 12 of the Exchange Act, or any 

other person subject to Section 16 of the 

Exchange Act with respect to the 

registrant because of the requirements of 

Section 30 of the Investment Company 

Act (‘‘reporting person’’) that failed to 

file on a timely basis reports required by 

Section 16(a) of the Exchange Act 

during the most recent fiscal year or 

prior fiscal years. 

(2) For each such person, set forth the 

number of late reports, the number of 

transactions that were not reported on a 

timely basis, and any known failure to 

file a required form. A known failure to 

file would include, but not be limited 

to, a failure to file a Form 3, which is 

required of all reporting persons, and a 

failure to file a Form 5 in the absence 

of the written representation referred to 

in paragraph (b)(3) of this section, 

unless the registrant otherwise knows 

that no Form 5 is required. 

Instruction 1 to paragraph (a) of Item 

405. If no disclosure is required, 

registrants are encouraged to exclude 

the caption ‘‘Delinquent Section 16(a) 

Reports.’’ 

Instruction 2 to paragraph (a) of Item 

405. The registrant is only required to 

disclose a failure to file timely once. For 

example, if in the most recently 

concluded fiscal year a reporting person 

filed a Form 4 disclosing a transaction 

that took place in the prior fiscal year, 

and should have been reported in that 

year, the registrant should disclose that 

late filing and transaction pursuant to 

this Item 405 with respect to the most 

recently concluded fiscal year, but not 

in material filed with respect to 

subsequent years. 

(b) Scope of the Inquiry. In 

determining whether disclosure is 

required pursuant to paragraph (a), the 

registrant may rely only on the 

following: 

(1) A review of Forms 3 and 4 (17 CFR 

249.103 and 249.104) and amendments 

thereto filed electronically with the 

Commission during the registrant’s most 

recent fiscal year; 

(2) A review of Forms 5 (17 CFR 

249.105) and amendments thereto filed 

electronically with the Commission 

with respect to the registrant’s most 

recent fiscal year; and 

(3) Any written representation from 

the reporting person that no Form 5 is 

required. The registrant must maintain 

the representation in its records for two 

years, making a copy available to the 

Commission or its staff upon request. 

■ 9. Amend § 229.407 by revising 

paragraphs (d)(3)(i)(B) and (g) to read as 

follows: 

§ 229.407 (Item 407) Corporate 

governance. 

* * * * * 

(d) * * * 

(3)(i) * * * 

(B) The audit committee has 

discussed with the independent 

auditors the matters required to be 

discussed by the applicable 

requirements of the Public Company 

Accounting Oversight Board (‘‘PCAOB’’) 

and the Commission; 

* * * * * 

(g) Smaller reporting companies and 

emerging growth companies. (1) A 

registrant that qualifies as a ‘‘smaller 

reporting company,’’ as defined by 

§ 229.10(f)(1), is not required to provide: 

(A) The disclosure required in 

paragraph (d)(5) of this Item in its first 

annual report filed pursuant to Section 

13(a) or 15(d) of the Exchange Act (15 

U.S.C. 78m(a) or 78o(d)) following the 

effective date of its first registration 

statement filed under the Securities Act 

(15 U.S.C. 77a et seq.) or Exchange Act 

(15 U.S.C. 78a et seq.); and 

(B) The disclosure required by 

paragraphs (e)(4) and (e)(5) of this Item. 

(2) A registrant that qualifies as an 

‘‘emerging growth company,’’ as defined 

in Rule 405 of the Securities Act 

(§ 230.405 of this chapter) or Rule 12b– 

2 of the Exchange Act (§ 240.12b–2 of 

this chapter) , is not required to provide 

the disclosure required by paragraph 

(e)(5) of this Item. 

* * * * * 

■ 10. Amend § 229.501 by: 

■ a. Revising the instruction under 

‘‘Instruction to paragraph 501(b)(1)’’, 

Instruction 2 under ‘‘Instructions to 

paragraph 501(b)(3)’’, paragraph (b)(4) 

and paragraph (b)(10); and 

■ b. Removing paragraph (b)(11) to read 

as follows: 

§ 229.501 (Item 501) Forepart of 

Registration Statement and Outside Front 

Cover Page of Prospectus. 

* * * * * 

(b) * * * 

(1) * * * 

Instruction to paragraph 501(b)(1): If 

your name is the same as that of a 

company that is well known, include 

information to eliminate any possible 

confusion with the other company. If 

your name indicates a line of business 

in which you are not engaged or in 

which you are engaged only to a limited 

extent, include information to eliminate 

any misleading inference as to your 

business. 

* * * * * 

Instructions to paragraph 501(b)(3): 

* * * 

2. If it is impracticable to state the 

price to the public, explain the method 

by which the price is to be determined. 

Instead of explaining the method on the 

outside front cover page of the 

prospectus, you may state that the 

offering price will be determined by a 

particular method or formula that is 

described in the prospectus and include 

a cross-reference to the location of such 

disclosure in the prospectus, including 

the page number. Highlight the crossreference by prominent type or in 

another manner. If the securities are to 

be offered at the market price, or if the 

offering price is to be determined by a 

formula related to the market price, 

indicate the market and market price of 

the securities as of the latest practicable 

date. 

* * * * * 

(4) Market for the securities. The 

national securities exchange(s) where 

the securities being offered are listed. If 

the securities being offered are not listed 

on a national securities exchange, the 

principal United States market(s) where 

the registrant, through the engagement 

of a registered broker-dealer, has 

actively sought and achieved quotation. 

In each case, also disclose the 

corresponding trading symbol(s) for the 

securities on such market(s). 

* * * * * 

(10) Prospectus ‘‘Subject to 

Completion’’ legend. 

(i) If you use the prospectus before the 

effective date of the registration 

statement or if you use Rule 430A 

[§ 230.430A of this chapter] to omit 

pricing information and the prospectus 

is used before you determine the public 

offering price, include a prominent 

statement that: 

(A) The information in the prospectus 

will be amended or completed; 

(B) A registration statement relating to 

these securities has been filed with the 

Securities and Exchange Commission; 

(C) The securities may not be sold 

until the registration statement becomes 

effective; and 

(D) The prospectus is not an offer to 

sell the securities, and it is not soliciting 

an offer to buy the securities, in any 

state where offers or sales are not 

permitted. 

(ii) The legend called for by paragraph 

(b)(10)(i) of this Item may be in the 

following or other clear, plain language: 

The information in this prospectus is 

not complete and may be changed. We 

may not sell these securities until the 


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registration statement filed with the 

Securities and Exchange Commission is 

effective. This prospectus is not an offer 

to sell these securities and it is not 

soliciting an offer to buy these securities 

in any state where the offer or sale is not 

permitted. 

(iii) Registrants may exclude the 

statement in paragraph (b)(i)(D) of this 

Item if the offering is not prohibited by 

state law. 

* * * * * 

§ 229.503 [Amended]. 

■ 11. Amend § 229.503 by removing 

‘‘risk factors’’ from the section heading 

and removing and reserving paragraph 

(c). 

§ 229.512 [Amended]. 

■ 12. Remove and reserve paragraphs 

(c), (d), (e), and (f) of § 229.512. 

■ 13. Amend § 229.601 by: 

■ a. Revising paragraph (a)(1); 

■ b. Adding paragraphs (a)(5) and (a)(6); 

■ c. Revising entry (b)(4) from the 

exhibit table in paragraph (a) to add a 

subsection (vi) titled ‘‘Description of 

registrant’s securities’’ and to add an 

‘‘X’’ under column 10–K; 

■ d. Revising entry (21) from the exhibit 

table in paragraph (a) to read 

‘‘Subsidiaries of the registrant and entity 

identifiers ’’; 

■ e. Revising entry (104) from the 

exhibit table in paragraph (a) to read 

‘‘Cover Page Interactive Data File’’ and 

adding an ‘‘X’’ under columns 8–K, 10– 

Q and 10–K; 

■ f. Adding paragraph (b)(4)(vi) and the 

instructions to paragraph (b)(4)(vi) and 

paragraph (b)(10)(iv); 

■ g. Revising paragraphs (b)(2), (b)(10), 

(b)(13), (b)(21)(i), and (b)(99); and 

■ h. Adding paragraph (b)(104) to read 

as follows: 

§ 229.601 (Item 601) Exhibits. 

(a) Exhibits and index required. (1) 

Subject to Rule 411(c) (§ 230.411(c) of 

this chapter) under the Securities Act 

and Rule 12b–23(c) (§ 240.12b–23(c) of 

this chapter) under the Exchange Act 

regarding incorporation of exhibits by 

reference, the exhibits required in the 

exhibit table must be filed as indicated, 

as part of the registration statement or 

report. 

* * * * * 

(5) Schedules (or similar attachments) 

to the exhibits required by this Item are 

not required to be filed unless such 

schedules contain information material 

to an investment or voting decision and 

that information is not otherwise 

disclosed in the exhibit or the 

disclosure document. Each exhibit filed 

must contain a list briefly identifying 

the contents of all omitted schedules. In 

addition, the registrant must provide a 

copy of any omitted schedule to the 

Commission staff upon request. 

(6) The registrant may redact 

information from exhibits required to be 

filed by this Item if disclosure of such 

information would constitute a clearly 

unwarranted invasion of personal 

privacy (e.g., disclosure of bank account 

numbers, social security numbers, home 

addresses and similar information). 

* * * * * 

(b) * * * 

(2) Plan of acquisition, reorganization, 

arrangement, liquidation, or succession. 

Any material plan of acquisition, 

disposition, reorganization, 

readjustment, succession, liquidation, or 

arrangement and any amendments 

thereto described in the statement or 

report. 

* * * * * 

(4) * * * 

(vi) For each class of securities that is 

registered under Section 12 of the 

Exchange Act, provide the information 

required by Item 202(a)-(d) and (f) of 

Regulation S–K (§ 229.202 of this 

chapter), Description of registrant’s 

securities. 

* * * * * 

Instruction 1 to paragraph (b)(4)(vi). A 

registrant is only required to provide the 

information called for by Item 

601(b)(4)(vi) if it is filing an annual 

report under Exchange Act Section 13(a) 

or 15(d). 

Instruction 2 to paragraph (b)(4)(vi). 

For purposes of Item 601(b)(4)(vi), all 

references in Item 202 to securities to be 

or being registered, offered, or sold will 

mean securities that are registered as of 

the end of the period covered by the 

report with which the exhibit is filed. In 

addition, for purposes of this Item, the 

disclosure will be required for classes of 

securities that have not been retired by 

the end of the period covered by the 

report. 

Instruction 3 to paragraph (b)(4)(vi). 

The registrant may incorporate by 

reference to a prior annual report under 

Exchange Act Section 13(a) or 15(d) 

containing the disclosure required by 

Item 601(b)(4)(vi) of Regulation S–K, as 

applicable, so long as there has not been 

any change to the information called for 

by Item 202, (Description of the 

registrant’s securities) since the filing 

date of the linked filing. Such hyperlink 

will be deemed to satisfy the 

requirements of Item 601(b)(4)(vi) for 

the current filing. 

* * * * * 

(10) Material contracts. (i) Every 

contract not made in the ordinary 

course of business that is material to the 

registrant and is to be performed in 

whole or in part at or after the filing of 

the registration statement or report. In 

addition, for newly reporting registrants, 

every contract not made in the ordinary 

course of business that is material to the 

registrant and that was entered into not 

more than two years before the date on 

which such registrant: 

(A) First files a registration statement 

or report; or 

(B) completes a transaction that had 

the effect of causing it to cease being a 

public shell company. 

The only contracts that need to be filed 

are those to which the registrant or a 

subsidiary of the registrant is a party or 

has succeeded to a party by assumption 

or assignment or in which the registrant 

or such subsidiary has a beneficial 

interest. 

* * * * * 

(iv) The registrant may redact 

provisions or terms of exhibits required 

to be filed by paragraph (b)(10) of this 

Item if those provisions or terms are 

both (i) not material and (ii) 

competitively harmful to the registrant 

if publicly disclosed. If it does so, the 

registrant should mark the exhibit index 

to indicate that portions of the exhibit 

or exhibits have been omitted and 

include a prominent statement on the 

first page of the redacted exhibit that 

certain identified information has been 

excluded from the exhibit because it is 

both (i) not material and (ii) 

competitively harmful to the registrant 

if publicly disclosed. The registrant also 

must indicate by brackets where the 

information is omitted from the filed 

version of the exhibit. 

If requested by the Commission staff, 

the registrant must promptly provide an 

unredacted paper copy of the exhibit on 

a supplemental basis. The Commission 

staff also may request the registrant to 

provide its materiality and competitive 

harm analyses on a supplemental basis. 

Upon evaluation of the registrant’s 

supplemental materials, the 

Commission staff may request the 

registrant to amend its filing to include 

in the exhibit any previously redacted 

information that is not adequately 

supported by the registrant’s materiality 

and competitive harm analyses. 

The registrant may request 

confidential treatment of the 

supplemental material submitted under 

paragraph (iv) of this Item pursuant to 

Rule 83 (§ 200.83 of this chapter) while 

it is in the possession of the 

Commission staff. After completing its 

review of the supplemental information, 

the Commission staff will return or 

destroy it at the request of the registrant, 

if the registrant complies with the 

procedures outlined in Rules 418 or 


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12b–4 (§ 230.418 or 240.12b–4 of this 

chapter). 

Instruction 1 to paragraph (b)(10) of 

Item 601: For purposes of paragraph 

(b)(10)(i) of this Item, a ‘‘newly 

reporting registrant’’ is (i) any registrant 

filing a registration statement that, at the 

time of such filing, is not subject to the 

reporting requirements of Section 13(a) 

or 15(d) of the Exchange Act, whether 

or not such registrant has ever 

previously been subject to the reporting 

requirements of Section 13(a) or 15(d), 

(ii) any registrant that has not filed an 

annual report since the revival of a 

previously suspended reporting 

obligation, and (iii) any registrant that 

(a) was a shell company, other than a 

business combination related shell 

company, as defined in Rule 12b–2 

under the Exchange Act (17 CFR 

240.12b–2), immediately before 

completing a transaction that has the 

effect of causing it to cease being a shell 

company and (b) has not filed a 

registration statement or Form 8–K as 

required by Items 2.01 and 5.06 of that 

form, since the completion of such 

transaction. For example, newly 

reporting registrants would include (i) a 

registrant that is filing its first 

registration statement under the 

Securities Act or the Exchange Act, and 

(ii) a registrant that was a public shell 

company, other than a business 

combination related shell company, and 

completes a reverse merger transaction 

causing it to cease being a shell 

company. 

Instruction 2 to paragraph (b)(10): 

With the exception of management 

contracts, in order to comply with 

paragraph (iii) above, registrants need 

only file copies of the various 

compensatory plans and need not file 

each individual director’s or executive 

officer’s personal agreement under the 

plans unless there are particular 

provisions in such personal agreements 

whose disclosure in an exhibit is 

necessary to an investor’s understanding 

of that individual’s compensation under 

the plan. 

Instruction 3 to paragraph (b)(10): If 

a material contract is executed or 

becomes effective during the reporting 

period reflected by a Form 10–Q or 

Form 10–K, it must be filed as an 

exhibit to the Form 10–Q or Form 10– 

K filed for the corresponding period. 

See paragraph (a)(4) of this Item. With 

respect to quarterly reports on Form 10– 

Q, only those contracts executed or 

becoming effective during the most 

recent period reflected in the report 

must be filed. 

* * * * * 

(13) Annual or quarterly report to 

security holders. (i) The registrant’s 

annual report to security holders for its 

last fiscal year or its quarterly report to 

security holders, if all or a portion 

thereof is incorporated by reference in 

the filing. Such report, except for those 

portions thereof that are expressly 

incorporated by reference in the filing, 

is to be furnished for the information of 

the Commission and is not to be deemed 

‘‘filed’’ as part of the filing. If the 

financial statements in the report have 

been incorporated by reference in the 

filing, the accountant’s certificate must 

be manually signed in one copy. See 

Rule 439 (§ 230.439 of this chapter). 

(ii) Electronic filings. If all, or any 

portion, of the annual or quarterly 

report to security holders is 

incorporated by reference into any 

electronic filing, all, or such portion of 

the annual or quarterly report to 

security holders so incorporated, must 

be filed in electronic format as an 

exhibit to the filing. 

* * * * * 

(21) Subsidiaries of the registrant and 

entity identifiers. (i) List the following 

information for the registrant and each 

of its subsidiaries: The name, the legal 

entity identifier (if a legal entity 

identifier has been obtained), the state 

or other jurisdiction of incorporation or 

organization, and the names under 

which the entity does business. This list 

may be incorporated by reference from 

another filed document which includes 

a complete and accurate list. ‘‘Legal 

entity identifier’’ means, with respect to 

any registrant or its subsidiaries, the 

legal entity identifier as assigned by a 

utility endorsed or otherwise governed 

by the Global LEI Regulatory Oversight 

Committee or accredited by the Global 

LEI Foundation. 

* * * * * 

(99) Additional exhibits. (i) Any 

additional exhibits that the registrant 

may wish to file must be so marked as 

to indicate clearly the subject matters to 

which they refer. 

(ii) If pursuant to Section 11(a) of the 

Securities Act (15 U.S.C. 77k(a)) an 

issuer makes generally available to its 

security holders an earnings statement 

covering a period of at least 12 months 

beginning after the effective date of the 

registration statement, and if such 

earnings statement is made available by 

‘‘other methods’’ than those specified in 

paragraphs (a) or (b) of § 230.158 of this 

chapter, it must be filed as an exhibit to 

the Form 10–Q or the Form 10–K, as 

appropriate, covering the period in 

which the earnings statement was 

released. 

* * * * * 

(104) Cover Page Interactive Data File. 

A Cover Page Interactive Data File (as 

defined in § 232.11 of this chapter) as 

required by Rule 406 of Regulation S– 

T (17 CFR 232.406), and in the manner 

provided by the EDGAR Filer Manual. 

* * * * * 

■ 14. Amend § 229.1100 by: 

■ a. Revising Instruction 1 to paragraph 

(c)(1) of Item 1100; and 

■ b. Redesignating instructions 2 

through 5 to paragraph (c)(1) as 

‘‘Instruction 2 to paragraph (c)(1) of Item 

1100.’’, ‘‘Instruction 3 to paragraph 

(c)(1) of Item 1100’’, ‘‘Instruction 4 to 

paragraph (c)(1) of Item 1100.’’, and 

‘‘Instruction 5 to paragraph (c)(1) of Item 

1100’’ to read as follows: 

§ 229.1100 (Item 1100) General. 

* * * * * 

Instruction 1 to paragraph (c)(1) of 

Item 1100. In addition to the conditions 

in paragraph (c)(1) of this section, any 

information incorporated by reference 

must comply with all applicable 

Commission rules pertaining to 

incorporation by reference, such as Rule 

303 of Regulation S–T (§ 232.303 of this 

chapter), Rule 411 of Regulation C 

(§ 230.411 of this chapter), and Rule 

12b–23 of Regulation 12B (§ 240.12b–23 

of this chapter), except that for purposes 

of paragraph (c)(1), an asset-backed 

issuer may incorporate by reference to a 

second document that incorporates 

pertinent information by reference to a 

third document. 

* * * * * 

PART 230—GENERAL RULES AND 

REGULATIONS, SECURITIES ACT OF 

1933 

■ 15. The authority citation for part 230 

continues to read in part as follows: 

Authority: 15 U.S.C. 77b, 77b note, 77c, 

77d, 77f, 77g, 77h, 77j, 77r, 77s, 77z–3, 77sss, 

78c, 78d, 78j, 78l, 78m, 78n, 78o,78o–7 note, 

78t, 78w, 78ll(d), 78mm, 80a–8, 80a–24, 80a– 

28, 80a–29, 80a–30, and 80a–37, and Pub. L. 

112–106, sec. 201(a), sec. 401, 126 Stat. 313 

(2012), unless otherwise noted. 

* * * * * 

■ 16. Amend § 230.405 by adding in 

alphabetical order the definition of Subunderwriter to read as follows: 

§ 230.405 Definition of terms. 

* * * * * 

Sub-underwriter. The term subunderwriter means a dealer that is 

participating as an underwriter in an 

offering by committing to purchase 

securities from a principal underwriter 

for the securities but is not itself in 

privity of contract with the issuer of the 

securities. 

* * * * * 


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■ 17. Revise § 230.411 to read as 

follows: 

§ 230.411 Incorporation by reference. 

(a) Prospectus. Except as provided by 

this section, Item 1100(c) of Regulation 

AB (§ 229.1100(c) of this chapter) for 

registered offerings of asset-backed 

securities, or unless otherwise provided 

in the appropriate form, information 

must not be incorporated by reference 

into the prospectus. Where a summary 

or outline of the provisions of any 

document is required in the prospectus, 

the summary or outline may incorporate 

by reference particular items, sections or 

paragraphs of any exhibit and may be 

qualified in its entirety by such 

reference. In any financial statements, 

incorporating by reference, or crossreferencing to, information outside of 

the financial statements is not permitted 

unless otherwise specifically permitted 

or required by the Commission’s rules. 

(b) Information not required in a 

prospectus. Information may be 

incorporated by reference in answer, or 

partial answer, to any item of a 

registration statement that calls for 

information not required to be included 

in a prospectus. Except as provided in 

the Commission’s rules, financial 

information required to be given in 

comparative form for two or more fiscal 

years or periods must not be 

incorporated by reference unless the 

information incorporated by reference 

includes the entire period for which the 

comparative data is given. In any 

financial statements, incorporating by 

reference, or cross-referencing to, 

information outside of the financial 

statements is not permitted unless 

otherwise specifically permitted or 

required by the Commission’s rules. 

(c) Exhibits. Any document or part 

thereof filed with the Commission 

pursuant to any Act administered by the 

Commission may be incorporated by 

reference as an exhibit to any 

registration statement filed with the 

Commission by the same or any other 

person. If any modification has occurred 

in the text of any document 

incorporated by reference since the 

filing thereof, the registrant must file 

with the reference a statement 

containing the text of such modification 

and the date thereof. 

(d) Hyperlinks. Include an active 

hyperlink to information incorporated 

into a registration statement or 

prospectus by reference if such 

information is publicly available on the 

Commission’s Electronic Data 

Gathering, Analysis and Retrieval 

System (‘‘EDGAR’’) at the time the 

registration statement or prospectus is 

filed. For hyperlinking to exhibits, 

please refer to Item 601 of Regulation S– 

K (§ 229.601 of this chapter) or the 

appropriate form. 

(e) General. Include an express 

statement clearly describing the specific 

location of the information you are 

incorporating by reference. The 

statement must identify the document 

where the information was originally 

filed or submitted and the location of 

the information within that document. 

The statement must be made at the 

particular place where the information 

is required, if applicable. Information 

must not be incorporated by reference in 

any case where such incorporation 

would render the disclosure incomplete, 

unclear, or confusing. For example, 

unless expressly permitted or required, 

disclosure must not be incorporated by 

reference from a second document if 

that second document incorporates 

information pertinent to such disclosure 

by reference to a third document. 

■ 18. Revise § 230.491 to read as 

follows: 

§ 230.491 Information to be furnished 

under paragraph (6) of Schedule B. 

Any foreign government filing a 

registration statement pursuant to 

Schedule B of the act need state, in 

furnishing the information required by 

paragraph (6), the names and addresses 

only of principal underwriters, namely, 

underwriters in privity of contract with 

the registrant, provided they are 

designated as principal underwriters 

and a brief statement is made as to the 

discounts and commissions to be 

received by sub-underwriters or dealers. 

PART 232—REGULATION S–T— 

GENERAL RULES AND REGULATIONS 

FOR ELECTRONIC FILINGS 

■ 19. The authority citation for part 232 

continues to read in part as follows: 

Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 

77j, 77s(a), 77z–3, 77sss(a), 78c(b), 78l, 78m, 

78n, 78o(d), 78w(a), 78ll, 80a–6(c), 80a–8, 

80a–29, 80a–30, 80a–37, and 7201 et seq.; 

and 18 U.S.C. 1350, unless otherwise noted. 

* * * * * 

■ 20. In § 232.11 in alphabetical order 

add the definition of Cover Page 

Interactive Data File in to read as 

follows: 

§ 232.11 Definitions of terms used in Part 

232. 

* * * * * 

Cover Page Interactive Data File. The 

term Cover Page Interactive Data File 

means the machine-readable computer 

code that presents in Inline XBRL 

electronic format the cover page 

information for specified forms as 

required by Rule 406 (§ 232.406 of this 

chapter). 

Note to definition of Cover Page 

Interactive Data File: When a filing is 

submitted using Inline XBRL, if permitted or 

required and as provided by the EDGAR Filer 

Manual, a portion of the Cover Page 

Interactive Data File must be embedded into 

a form with the remainder submitted as an 

exhibit to the form. 

* * * * * 

■ 21. Revise the second sentence of 

paragraph (a) and the third sentence of 

paragraph (d) of § 232.102 to read as 

follows: 

§ 232.102 Exhibits. 

(a) * * * Previously filed exhibits, 

whether in paper or electronic format, 

may be incorporated by reference into 

an electronic filing to the extent 

permitted by Rule 411 under the 

Securities Act (§ 230.411 of this 

chapter), Rule 12b–23 under the 

Exchange Act (§ 240.12b–23 of this 

chapter), Rule 0–4 under the Investment 

Company Act (§ 270.0–4 of this chapter) 

or Rule 303 of Regulation S–T 

(§ 232.303). * * * 

* * * * * 

(d) * * * For electronic filings on 

Form S–6 (§ 239.16 of this chapter), 

Form N–14 (§ 239.23 of this chapter), 

Form F–10 (§ 239.40 of this chapter), 

Form 20–F (§ 249.220f of this chapter), 

Form N–5 (§ 274.5 of this chapter), Form 

N–1A (§ 274.11A of this chapter), Form 

N–2 (§ 274.11a–1 of this chapter), Form 

N–3 (§ 274.11b of this chapter), Form N– 

4 (§ 274.11c of this chapter), Form N–6 

(§ 274.11d of this chapter), Form N–CSR 

(§ 274.128 of this chapter), or filings 

subject to Item 601 of Regulation S–K 

(§ 229.601 of this chapter), each exhibit 

identified in the exhibit index (other 

than an exhibit filed in eXtensible 

Business Reporting Language or an 

exhibit that is filed with Form ABS–EE 

(§ 249.1401 of this chapter)) must 

include an active link to an exhibit that 

is filed with the document or, if the 

exhibit is incorporated by reference, an 

active hyperlink to the exhibit 

separately filed on EDGAR. * * * 

* * * * * 

■ 22. Amend § 232.105 by revising 

paragraph (d) and adding paragraph (e) 

as follows: 

§ 232.105 Use of HTML and hyperlinks. 

* * * * * 

(d) Electronic filers submitting Form 

S–6 (§ 239.16 of this chapter), Form N– 

14 (§ 239.23 of this chapter), Form F–10 

(§ 239.40 of this chapter), Form 20–F 

(§ 249.220f of this chapter), Form N–5 

(§ 274.5 of this chapter), Form N–1A 

(§ 274.11A of this chapter), Form N–2 

(§ 274.11a–1 of this chapter), Form N–3 

(§ 274.11b of this chapter), Form N–4 

(§ 274.11c of this chapter), Form N–6 


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(§ 274.11d of this chapter), Form N–CSR 

(§ 274.128 of this chapter), or a 

registration statement or report subject 

to Item 601 of Regulation S–K (§ 229.601 

of this chapter), must submit such 

registration statement or report in 

HTML and each exhibit identified in the 

exhibit index (other than an exhibit 

filed in eXtensible Business Reporting 

Language or an exhibit filed with Form 

ABS–EE (§ 249.1401 of this chapter)) 

must include an active link to an exhibit 

that is filed with the registration 

statement or report or, if the exhibit is 

incorporated by reference, an active 

hyperlink to the exhibit separately filed 

on EDGAR, unless such exhibit is filed 

in paper pursuant to a temporary or 

continuing hardship exemption under 

Rules 201 or 202 of Regulation S–T 

(§ 232.201 or § 232.202) or pursuant to 

Rule 311 of Regulation S–T (§ 232.311). 

Instructions to paragraph (d): (1) No 

hyperlink is required for any exhibit 

incorporated by reference that has not 

been filed with the Commission in 

electronic format. 

(2) An electronic filer must correct an 

inaccurate or nonfunctioning link or 

hyperlink to an exhibit, in the case of 

a registration statement that is not yet 

effective, by filing an amendment to the 

registration statement containing the 

inaccurate or nonfunctioning link or 

hyperlink; or, in the case of a 

registration statement that has become 

effective or an Exchange Act report, an 

electronic filer must correct the 

inaccurate or nonfunctioning link or 

hyperlink in the next Exchange Act 

periodic report that requires, or 

includes, an exhibit pursuant to Item 

601 of Regulation S–K (§ 229.601 of this 

chapter), Form N–CSR (§ 274.128 of this 

chapter), or, in the case of a foreign 

private issuer (as defined in § 229.405 of 

this chapter), Form 20–F (§ 249.220f of 

this chapter) or Form F–10 (§ 239.40 of 

this chapter). In the case of a registration 

statement on Form S–6 (§ 239.16 of this 

chapter), Form N–14 (§ 239.23 of this 

chapter), Form N–5 (§ 274.5 of this 

chapter), Form N–1A (§ 274.11A of this 

chapter), Form N–2 (§ 274.11a–1 of this 

chapter), Form N–3 (§ 274.11b of this 

chapter), Form N–4 (§ 274.11c of this 

chapter), or Form N–6 (§ 274.11d of this 

chapter) that has become effective, an 

electronic filer must correct an 

inaccurate or nonfunctioning link or 

hyperlink in the next post-effective 

amendment, if any, to the registration 

statement. Alternatively, an electronic 

filer may correct an inaccurate or 

nonfunctioning link or hyperlink in a 

registration statement that has become 

effective by filing a post-effective 

amendment to the registration 

statement. 

(e) Except for exhibits, which are 

covered by paragraph (d) of this section, 

electronic filers that are incorporating 

information by reference pursuant to 

Rule 411 under the Securities Act 

(§ 230.411 of this chapter), Rule 12b–23 

under the Exchange Act (§ 240.12b–23 

of this chapter), or Rule 0–4 under the 

Investment Company Act (§ 270.0–4 of 

this chapter) must submit such 

registration statement or report in 

HTML and must include an active 

hyperlink to such incorporated 

information when required by those 

rules. A hyperlink is not required if the 

incorporated information is filed in 

paper pursuant to a temporary or 

continuing hardship exemption under 

Rules 201 or 202 of Regulation S–T 

(§ 232.201 or § 232.202) or pursuant to 

Rule 311 of Regulation S–T (§ 232.311). 

Instruction 1 to paragraph (e) of Rule 

105. No hyperlink is required for any 

information incorporated by reference 

that has not been filed with the 

Commission in electronic format. 

Instruction 2 to paragraph (e) of Rule 

105. In the case of a registration 

statement that is not yet effective, an 

electronic filer must correct an 

inaccurate or nonfunctioning hyperlink 

by filing an amendment to such 

registration statement. 

* * * * * 

■ 23. Revise the first sentence of 

paragraph (b) of § 232.303 to read as 

follows: 

§ 232.303 Incorporation by reference. 

* * * * * 

(b) If a filer incorporates by reference 

into an electronic filing any portion of 

an annual or quarterly report to security 

holders, it must also file the portion of 

the annual or quarterly report to 

security holders in electronic format as 

an exhibit to the filing, as required by 

Regulation S–K Item 601(b)(13) 

(§ 229.601(b)(13) of this chapter). * * * 

■ 24. Add § 232.406 to read as follows: 

* * * * * 

§ 232.406 Cover Page XBRL Data Tagging. 

Electronic filers submitting Forms 

10–K (§ 249.310 of this chapter), 10–Q 

(§ 249.308a of this chapter), 8–K 

(§ 249.308 of this chapter), 20–F 

(§ 249.220f of this chapter) and 40–F 

(§ 249.240f of this chapter) must tag in 

Inline XBRL electronic format, in the 

manner provided by the EDGAR Filer 

Manual, all of the information provided 

by the electronic filer on the cover page 

of these forms. 

* * * * * 

PART 239—FORMS PRESCRIBED 

UNDER THE SECURITIES ACT OF 1933 

■ 25. The authority citation for part 239 

continues to read in part as follows: 

Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 

77j, 77s, 77z–2, 77z–3, 77sss, 78c, 78l, 78m, 

78n, 78o(d),78o–7 note, 78u–5, 78w(a), 78ll, 

78mm, 80a–2(a), 80a–3, 80a–8, 80a–9, 80a– 

10, 80a–13, 80a–24, 80a–26, 80a–29, 80a–30, 

and 80a–37; and sec. 107, Pub. L. 112–106, 

126 Stat. 312, unless otherwise noted. 

* * * * * 

■ 26. Amend Form S–1 (referenced in 

§ 239.11) by revising the last sentence of 

Instruction V. under ‘‘General 

Instructions’’, the first paragraph of 

Instruction VII. under ‘‘General 

Instructions’’ and Item 3 to read as 

follows: 

Note: The text of Form S–1 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM S–1 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

V. Registration of Additional Securities 

* * * See Rule 439(b) under the 

Securities Act (17 CFR 230.439(b)). 

* * * * * 

VII. Eligibility To Use Incorporation by 

Reference 

If a registrant meets the following 

requirements in paragraphs A–F 

immediately prior to the time of filing 

a registration statement on this Form, it 

may elect to provide information 

required by Items 3 through 11 of this 

Form in accordance with Item 11A and 

Item 12 of this Form. Notwithstanding 

the foregoing, in the financial 

statements, incorporating by reference 

or cross-referencing to information 

outside of the financial statements is not 

permitted unless otherwise specifically 

permitted or required by the 

Commission’s rules. * * * 

* * * * * 

Item 3. Summary Information, Risk 

Factors and Ratio of Earnings to Fixed 

Charges. 

Furnish the information required by 

Items 105 and 503 of Regulation S–K 


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(§ 229.105 and § 229.503 of this 

chapter). 

* * * * * 

■ 27. Amend Form S–3 (referenced in 

§ 239.13) by revising the last sentence of 

Instruction IV.A. under ‘‘General 

Instructions’’, Item 3, and paragraph (d) 

of Item 12 to read as follows: 

Note: The text of Form S–3 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM S–3 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

IV. Registration of Additional 

Securities and Additional Classes of 

Securities 

A. Registration of Additional 

Securities Pursuant to Rule 462(b). 

* * * See Rule 439(b) under the 

Securities Act [17 CFR 230.439(b)]. 

* * * * * 

Item 3. Summary Information, Risk 

Factors and Ratio of Earnings to Fixed 

Charges. 

Furnish the information required by 

Items 105 and 503 of Regulation S–K 

(§ 229.105 and § 229.503 of this 

chapter). 

* * * * * 

Item 12. Incorporation of Certain 

Information by Reference. 

* * * * * 

(d) Any information required in the 

prospectus in response to Item 3 

through Item 11 of this Form may be 

included in the prospectus through 

documents filed pursuant to Section 

13(a), 14, or 15(d) of the Exchange Act 

that are incorporated or deemed 

incorporated by reference into the 

prospectus that is part of the registration 

statement. Notwithstanding the 

foregoing, in the financial statements, 

incorporating by reference or crossreferencing to information outside of the 

financial statements is not permitted 

unless otherwise specifically permitted 

or required by the Commission’s rules. 

* * * * * 

■ 28. Amend Form S–6 (referenced in 

§ 239.16) by revising ‘‘Instructions as to 

Exhibits’’ to add a paragraph to read as 

follows: 

Note: The text of Form S–6 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

Form S–6 

* * * * * 

INSTRUCTIONS AS TO EXHIBITS 

* * * * * 

Each exhibit identified in the exhibit 

index must include an active link to an 

exhibit that is filed with the registration 

statement or, if the exhibit is 

incorporated by reference an active 

hyperlink to the exhibit separately filed 

on EDGAR. If the registration statement 

is amended, each amendment must 

include active hyperlinks to the exhibits 

required with the amendment. 

* * * * * 

■ 29. Amend Form S–11 (referenced in 

§ 239.18) by revising the last sentence of 

Instruction G. under ‘‘General 

Instructions’’, the first paragraph of 

instruction H. under ‘‘General 

Instructions’’ and Item 3(a) to read as 

follows: 

Note: The text of Form S–11 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM S–11 

FOR REGISTRATION UNDER THE 

SECURITIES ACT OF 1933 OF 

SECURITIES OF CERTAIN REAL 

ESTATE COMPANIES 

GENERAL INSTRUCTIONS 

* * * * * 

G. Registration of Additional Securities 

* * * Any opinion or consent 

required in the Rule 462(b) registration 

statement may be incorporated by 

reference from the earlier registration 

statement with respect to the offering, if: 

(i) Such opinion or consent expressly 

provides for such incorporation; and (ii) 

such opinion relates to the securities 

registered pursuant to Rule 462(b). See 

Rule 439(b) under the Securities Act [17 

CFR 230.439(b)]. 

H. Eligibility to Use Incorporation by 

Reference 

If a registrant meets the following 

requirements in paragraphs 1–6 

immediately prior to the time of filing 

a registration statement on this Form, it 

may elect to provide information 

required by Items 3 through 28 of this 

Form in accordance with Item 28A and 

Item 29 of this Form. Notwithstanding 

the foregoing, in the financial 

statements, incorporating by reference 

or cross-referencing to information 

outside of the financial statement is not 

permitted unless otherwise specifically 

permitted or required by the 

Commission’s rules. * * * 

* * * * * 

Item 3. Summary Information, Risk 

Factors and Ratio of Earnings to Fixed 

Charges. 

(a) Furnish the information required 

by Items 105 and 503 of Regulation S– 

K (§ 229.105 and § 229.503 of this 

chapter). 

* * * * * 

■ 30. Amend Form N–14 (referenced in 

§ 239.23) by: 

■ a. Revising the third paragraph of 

General Instruction G; and 

■ b. Revising the Instruction to Item 16 

to add a paragraph to read as follows: 

Note: The text of Form N–14 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

Form N–14 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

G. Incorporation by Reference and 

Delivery of Prospectuses or Reports 

Filed with the Commission 

* * * * * 

All incorporation by reference must 

comply with the requirements of this 

Form and the following rules on 

incorporation by reference: rule 411 

under the Securities Act [17 CFR 

230.411] (general rules on incorporation 

by reference in a prospectus) and rule 

303 of Regulation S–T [17 CFR 232.303] 

(specific requirements for electronically 

filed documents). 

* * * * * 

Item 16. Exhibits 

* * * * * 

Instruction: 

* * * * * 

Each exhibit identified in the exhibit 

index must include an active link to an 

exhibit that is filed with the registration 

statement or, if the exhibit is 

incorporated by reference an active 

hyperlink to the exhibit separately filed 

on EDGAR. If the registration statement 

is amended, each amendment must 

include active hyperlinks to the exhibits 

required with the amendment. 

* * * * * 

■ 31. Amend Form S–4 (referenced in 

§ 239.25) by revising the last sentence of 

Instruction K. under ‘‘General 


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Instructions’’ and the first sentence of 

Item 3 to read as follows: 

Note: The text of Form S–4 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM S–4 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

K. Registration of Additional Securities. 

* * * Any opinion or consent 

required in the Rule 462(b) registration 

statement may be incorporated by 

reference from the earlier registration 

statement with respect to the offering, if: 

(i) such opinion or consent expressly 

provides for such incorporation; and (ii) 

such opinion relates to the securities 

registered pursuant to Rule 462(b). See 

Rule 439(b) under the Securities Act [17 

CFR 230.439(b)]. 

* * * * * 

Item 3. Risk Factors, Ratio of Earnings 

to Fixed Charges and Other 

Information. 

Provide in the forepart of the 

prospectus a summary containing the 

information required by Items 105 and 

503 of Regulation S–K (§ 229.105 and 

§ 229.503 of this chapter) and the 

following: 

* * * * * 

■ 32. Amend Form F–1 (referenced in 

§ 239.31) by revising the last sentence of 

Instruction V. under ‘‘General 

Instructions’’, the first paragraph of 

instruction VI. under ‘‘General 

Instructions’’ and Item 3 to read as 

follows: 

Note: The text of Form F–1 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM F–1 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

V. Registration of Additional Securities 

* * * See Rule 439(b) under the 

Securities Act [17 CFR 230.439(b)]. 

VI. Eligibility to Use Incorporation by 

Reference 

If a registrant meets the following 

requirements immediately prior to the 

time of filing a registration statement on 

this Form, it may elect to provide 

information required by Item 3 and Item 

4 of this Form in accordance with Item 

4A and Item 5 of this Form. 

Notwithstanding the foregoing, in the 

financial statements, incorporating by 

reference or cross-referencing to 

information outside of the financial 

statements is not permitted unless 

otherwise specifically permitted or 

required by the Commission’s rules. 

* * * * * 

Item 3. Summary Information, Risk 

Factors and Ratio of Earnings to Fixed 

Charges. 

Furnish the information required by 

Items 105 and 503 of Regulation S–K 

(§ 229.105 and § 229.503 of this 

chapter). 

* * * * * 

■ 33. Amend Form F–3 (referenced in 

§ 239.33) by revising the last sentence of 

Instruction IV.A. under ‘‘General 

Instructions’’ and Item 3 to read as 

follows: 

Note: The text of Form F–3 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM F–3 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

IV. Registration of Additional Securities 

and Additional Classes of Securities 

A. Registration of Additional 

Securities Pursuant to Rule 462(b). 

* * * See Rule 439(b) under the 

Securities Act [17 CFR 230.439(b)]. 

* * * * * 

Item 3. Summary Information, Risk 

Factors and Ratio of Earnings to Fixed 

Charges. 

Furnish the information required by 

Items 105 and 503 of Regulation S–K 

(§ 229.105 and § 229.503 of this 

chapter). 

* * * * * 

■ 34. Amend Form F–4 (referenced in 

239.34) by revising the last sentence of 

Instruction H. under ‘‘General 

Instructions’’ and Item 3 to read as 

follows: 

Note: The text of Form F–4 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM F–4 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

H. * * * See Rule 439(b) under the 

Securities Act [17 CFR 230.439(b)]. 

* * * * * 

Item 3. Risk Factors, Ratio of Earnings 

to Fixed Charges and Other 

Information. 

Provide in the forepart of the 

prospectus a summary containing the 

information required by Items 105 and 

503 of Regulation S–K (§ 229.105 and 

§ 229.503 of this chapter) and the 

following: 

* * * * * 

■ 35. Revise Item 3 of Form F–7 

(referenced in § 239.37) to read as 

follows: 

Note: The text of Form F–7 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM F–7 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

PART I—INFORMATION REQUIRED 

TO BE SENT TO SHAREHOLDERS 

* * * * * 

Item 3. Incorporation of Certain 

Information by Reference 

Information called for by this Form, 

including exhibits, may be incorporated 

by reference at the Registrant’s option 

from documents that the Registrant has 

filed previously with the Commission 

pursuant to Section 13(a) or 15(d) of the 

Exchange Act or submitted to the 

Commission pursuant to Rule 12g3–2(b) 


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51040 Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Proposed Rules 

under the Exchange Act. For 

information that you are incorporating 

by reference, identify the document 

where the information was originally 

filed or submitted and the specific 

location of the information within that 

document. The statement must be made 

at the particular place where the 

information is required, if applicable. 

Unless expressly permitted or required, 

disclosure must not be incorporated by 

reference from a second document if 

that second document incorporates 

information pertinent to such disclosure 

by reference to a third document. If any 

information is incorporated by reference 

into the prospectus, the prospectus must 

provide the name, address and 

telephone number of an officer of the 

Registrant from whom copies of such 

information may be obtained upon 

request without charge. 

* * * * * 

■ 36. Revise Item 3 of Form F–8 

(referenced in § 239.38) to read as 

follows: 

Note: The text of Form F–8 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM F–8 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

PART I—INFORMATION REQUIRED 

TO BE DELIVERED TO OFFEREES OR 

PURCHASERS 

* * * * * 

Item 3. Incorporation of Certain 

Information by Reference 

Information called for by this Form, 

including exhibits, may be incorporated 

by reference at the Registrant’s option 

from documents that the Registrant has 

filed previously with the Commission 

pursuant to Section 13(a) or 15(d) of the 

Exchange Act or submitted to the 

Commission pursuant to Rule 12g3–2(b) 

under the Exchange Act. For 

information that you are incorporating 

by reference, identify the document 

where the information was originally 

filed or submitted and the specific 

location of the information within that 

document. The statement must be made 

at the particular place where the 

information is required, if applicable. 

Unless expressly permitted or required, 

disclosure must not be incorporated by 

reference from a second document if 

that second document incorporates 

information pertinent to such disclosure 

by reference to a third document. If any 

information is incorporated by reference 

into the prospectus, the prospectus must 

provide the name, address, and 

telephone number of an officer of the 

Registrant from whom copies of such 

information may be obtained upon 

request without charge. 

* * * * * 

■ 37. Revise Item 4 of Form F–10 

(referenced in § 239.40) to read as 

follows: 

Note: The text of Form F–10 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM F–10 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

PART I—INFORMATION REQUIRED 

TO BE DELIVERED TO OFFEREES OR 

PURCHASERS 

* * * * * 

Item 4. Incorporation of Certain 

Information by Reference 

Information called for by this Form, 

including exhibits, may be incorporated 

by reference at the Registrant’s option 

from documents that the Registrant has 

filed previously with the Commission 

pursuant to Section 13(a) or 15(d) of the 

Exchange Act or submitted to the 

Commission pursuant to Rule 12g3–2(b) 

under the Exchange Act. For 

information that you are incorporating 

by reference, identify the document 

where the information was originally 

filed or submitted and the specific 

location of the information within that 

document. The statement must be made 

at the particular place where the 

information is required, if applicable. 

Unless expressly permitted or required, 

disclosure must not be incorporated by 

reference from a second document if 

that second document incorporates 

information pertinent to such disclosure 

by reference to a third document. If any 

information is incorporated by reference 

into the prospectus, the prospectus must 

provide the name, address, and 

telephone number of an officer of the 

Registrant from whom copies of such 

information may be obtained upon 

request without charge. 

* * * * * 

■ 38. Revise Item 3 of Form F–80 

(referenced in § 239.41) to read as 

follows: 

Note: The text of Form F–80 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM F–80 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

PART I—INFORMATION REQUIRED 

TO BE DELIVERED TO OFFEREES OR 

PURCHASERS 

* * * * * 

Item 3 Incorporation of Certain 

Information by Reference 

Information called for by this Form, 

including exhibits, may be incorporated 

by reference at the Registrant’s option 

from documents that the Registrant has 

filed previously with the Commission 

pursuant to Section 13(a) or 15(d) of the 

Exchange Act or submitted to the 

Commission pursuant to Rule 12g3–2(b) 

under the Exchange Act. For 

information that you are incorporating 

by reference, identify the document 

where the information was originally 

filed or submitted and the specific 

location of the information within that 

document. The statement must be made 

at the particular place where the 

information is required, if applicable. 

Unless expressly permitted or required, 

disclosure must not be incorporated by 

reference from a second document if 

that second document incorporates 

information pertinent to such disclosure 

by reference to a third document. If any 

information is incorporated by reference 

into the prospectus, the prospectus must 

provide the name, address, and 

telephone number of an officer of the 

Registrant from whom copies of such 

information may be obtained upon 

request without charge. 

* * * * * 

■ 39. Amend Form SF–1 (referenced in 

§ 239.44) by revising the last sentence of 

Instruction III. under ‘‘General 

Instructions’’ and the last sentence of 

Item 2 to read as follows: 

Note: The text of Form SF–1 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 


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UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM SF–1 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

III. Registration of Additional 

Securities 

* * * See Rule 439(b) under the 

Securities Act [17 CFR 230.439(b)]. 

* * * * * 

Item 2. Inside Front and Outside Back 

Cover Pages of Prospectus. 

Furnish the information required by 

Items 105 and 503 of Regulation S–K (17 

CFR 229.105 and 17 CFR 229.503) and 

Item 1103 of Regulation AB (17 CFR 

229.1103). 

* * * * * 

■ 40. Amend Form SF–3 (referenced in 

§ 239.45) by revising the last sentence of 

Instruction III. under ‘‘General 

Instructions’’ and the last sentence of 

Item 2 to read as follows: 

Note: The text of Form SF–3 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM SF–3 

REGISTRATION STATEMENT UNDER 

THE SECURITIES ACT OF 1933 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

III. Registration of Additional 

Securities Pursuant to Rule 462(b). 

* * * See Rule 439(b) under the 

Securities Act [17 CFR 230.439(b)]. 

* * * * * 

Item 2. Inside Front and Outside Back 

Cover Pages of Prospectus. 

Furnish the information required by 

Items 105 and 503 of Regulation S–K (17 

CFR 229.105 and 17 CFR 229.503) and 

Item 1103 of Regulation AB (17 CFR 

229.1103). 

* * * * * 

PART 240—GENERAL RULES AND 

REGULATIONS, SECURITIES 

EXCHANGE ACT OF 1934 

■ 41. The authority citation for part 240 

continues to read in part as follows: 

Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 

77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 

77sss, 77ttt, 78c, 78c–3, 78c–5, 78d, 78e, 78f, 

78g, 78i, 78j, 78j–1, 78k, 78k–1, 78l, 78m, 

78n, 78n–1, 78o, 78o-4, 78o–10, 78p, 78q, 

78q–1, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 

80a–20, 80a–23, 80a–29, 80a–37, 80b–3, 80b– 

4, 80b–11, and 7201 et seq., and 8302; 7 

U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 

U.S.C. 1350; Pub. L. 111–203, 939A, 124 Stat. 

1376 (2010); and Pub. L. 112–106, sec. 503 

and 602, 126 Stat. 326 (2012), unless 

otherwise noted. 

* * * * * 

■ 42. Revise § 240.12b–13 to read as 

follows: 

§ 240.12b–13 Preparation of statement or 

report. 

Except as provided by the appropriate 

form, the statement or report must 

contain the numbers and captions of all 

items of such form. The text of the items 

may be omitted if the answers thereto 

are so prepared as to indicate to the 

reader the coverage of the items without 

the necessity of referring to the text of 

the items or instructions thereto. Where 

any item requires information to be 

given in tabular form, it must be given 

in substantially the tabular form 

specified in the item. All instructions, 

whether appearing under the items of 

the form or elsewhere therein, must be 

omitted. Unless expressly provided 

otherwise, if any item is inapplicable or 

the answer thereto is in the negative, an 

appropriate statement to that effect must 

be made. 

■ 43. Revise § 240.12b–23 to read as 

follows: 

§ 240.12b–23 Incorporation by reference. 

(a) Registration statement or report. 

Except as provided by this section or in 

the appropriate form, information may 

be incorporated by reference in answer, 

or partial answer, to any item of a 

registration statement or report. 

(b) Financial information. Except as 

provided in the Commission’s rules, 

financial information required to be 

given in comparative form for two or 

more fiscal years or periods must not be 

incorporated by reference unless the 

information incorporated by reference 

includes the entire period for which the 

comparative data is given. In the 

financial statements, incorporating by 

reference, or cross-referencing to, 

information outside of the financial 

statements is not permitted unless 

otherwise specifically permitted or 

required by the Commission’s rules. 

(c) Exhibits. Any document or part 

thereof filed with the Commission 

pursuant to any Act administered by the 

Commission may be incorporated by 

reference as an exhibit to any statement 

or report filed with the Commission by 

the same or any other person. Any 

document or part thereof filed with an 

exchange pursuant to the Act may be 

incorporated by reference as an exhibit 

to any statement or report filed with the 

exchange by the same or any other 

person. If any modification has occurred 

in the text of any document 

incorporated by reference since the 

filing thereof, the registrant must file 

with the reference a statement 

containing the text of any such 

modification and the date thereof. 

(d) Hyperlinks. You must include an 

active hyperlink to information 

incorporated into a registration 

statement or report by reference if such 

information is publicly available on the 

Commission’s Electronic Data 

Gathering, Analysis and Retrieval 

System (‘‘EDGAR’’) at the time the 

registration statement or form is filed. 

For hyperlinking to exhibits, please 

refer to Item 601 of Regulation S–K 

(§ 229.601 of this chapter) or the 

appropriate form. 

(e) General. Include an express 

statement clearly describing the specific 

location of the information you are 

incorporating by reference. The 

statement must identify the document 

where the information was originally 

filed or submitted and the location of 

the information within that document. 

The statement must be made at the 

particular place where the information 

is required, if applicable. Information 

must not be incorporated by reference in 

any case where such incorporation 

would render the disclosure incomplete, 

unclear, or confusing. For example, 

unless expressly permitted or required, 

disclosure must not be incorporated by 

reference from a second document if 

that second document incorporates 

information pertinent to such disclosure 

by reference to a third document. 

§ 240.12b–32 [Removed and reserved]. 

■ 44. Remove and reserve § 240.12b–32. 

■ 45. Revise the first sentence of Note 

D.1 of § 240.14a–101 to read as follows: 

§ 240.14a–101 Schedule 14A. Information 

required in proxy statement. 

* * * * * 

D. * * * 

1. Disclosure must not be 

incorporated by reference from a second 

document if that second document 

incorporates information pertinent to 


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51042 Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Proposed Rules 

such disclosure by reference to a third 

document. * * * 

* * * * * 

■ 46. Remove and reserve paragraph (e) 

of § 240.16a–3. 

PART 249—FORMS, SECURITIES 

EXCHANGE ACT OF 1934 

■ 47. The authority citation for part 249 

continues to read in part as follows: 

Authority: 15 U.S.C. 78a et seq. and 7201 

et seq.; 12 U.S.C. 5461 et seq.; 18 U.S.C. 1350; 

Sec. 953(b), Pub. L. 111–203, 124 Stat. 1904; 

Sec. 102(a)(3), Pub. L. 112–106, 126 Stat. 309 

(2012); Sec. 107, Pub. L. 112–106, 126 Stat. 

313 (2012), and Sec. 72001, Pub. L. 114–94, 

129 Stat. 1312 (2015), unless otherwise 

noted. 

* * * * * 

■ 48. Remove and reserve paragraph (c) 

of General Instruction 3 to Form 3 

(referenced in § 249.103). 

■ 49. Remove and reserve paragraph (c) 

of General Instruction 2 to Form 4 

(referenced in § 249.104). 

■ 50. Remove and reserve paragraph (c) 

of General Instruction 2 to Form 5 

(referenced in § 249.105). 

■ 51. Amend Form 8–A (referenced in 

§ 249.208a) by revising the Instructions 

as to Exhibits to read as follows: 

Note: The text of Form 8–A does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM 8–A 

FOR REGISTRATION OF CERTAIN 

CLASSES OF SECURITIES PURSUANT 

TO SECTION 12(b) OR (g) OF THE 

SECURITIES EXCHANGE ACT OF 1934 

* * * * * 

INSTRUCTIONS FOR EXHIBITS 

If the securities to be registered on 

this form are to be registered on an 

exchange on which other securities of 

the registrant are registered, or are to be 

registered pursuant to Section 12(g) of 

the Act, copies of all constituent 

instruments defining the rights of the 

holders of each class of such securities, 

including any contracts or other 

documents which limit or qualify the 

rights of such holders, must be filed as 

exhibits with each copy of the 

registration statement filed with the 

Commission or with an exchange, 

subject to Rule 12b–23(c) regarding 

incorporation of exhibits by reference. 

■ 52. Amend Form 10 (referenced in 

249.210) by revising the first sentence in 

Item 1A and Instruction C(a) under 

‘‘General Instructions’’ to read as 

follows: 

Note: The text of Form 10 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM 10 

GENERAL FORM FOR 

REGISTRATION OF SECURITIES 

PURSUANT TO SECTION 12(b) OR (g) 

OF THE SECURITIES EXCHANGE ACT 

OF 1934 

* * * * * 

INFORMATION REQUIRED IN 

REGISTRATION STATEMENT 

* * * * * 

Item 1A. Risk Factors. 

Set forth, under the caption ‘‘Risk 

Factors,’’ where appropriate, the risk 

factors described in Item 105 of 

Regulation S–K (§ 229.105 of this 

chapter) applicable to the registrant. 

* * * 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

C. Preparation of Registration 

Statement. 

(a) This form is not to be used as a 

blank form to be filled in, but only as 

a guide in the preparation of the 

registration statement on paper meeting 

the requirements of Rule 12b–12 [17 

CFR 240.12b–12]. The numbers or 

captions of items are not required unless 

expressly required by this form or the 

referenced disclosure requirements. The 

text of the items may be omitted. 

Otherwise, the answers to the items 

must be prepared in the manner 

specified in Rule 12b–13 [17 CFR 

240.12b–13]. 

* * * * * 

■ 53. Amend Form 20–F (referenced in 

§ 249.220f) by: 

■ a. Adding a field to the cover page to 

include trading symbol(s); 

■ b. Revising Instruction C(a) under 

‘‘General Instructions’’; 

■ c. Adding Instruction 6 under 

‘‘Instructions to Item 5’’; 

■ d. Revising Instruction 1(b) under 

‘‘Instructions to Item 10’’; 

■ e. Revising Instructions 1 and 2 under 

‘‘Instructions to Item 12’’; 

■ f. Revising the introductory text, 

Instruction 4(a) and Instruction 8 and 

adding Instructions 2(d) and 104 under 

‘‘Instructions As To Exhibits’’ to read as 

follows: 

Note: The text of Form 20–F does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM 20–F 

* * * * * 

Securities registered or to be 

registered pursuant to Section 12(b) of 

the Act. 

Title of each class Trading 

symbol(s) Name of each exchange on which registered 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

C. How to Prepare Registration 

Statements and Reports on This Form. 

(a) Do not use this Form as a blank 

form to be filled in; use it only as a 

guide in the preparation of the 

registration statement or annual report. 

General Instruction E states which items 

must be responded to in a registration 

statement and which items must be 

responded to in an annual report. The 

number or captions of items are not 

required unless expressly required by 

this form. You may also omit the text 

following each caption in this Form, 

which describes what must be disclosed 

under each item. Omit the text of all 

instructions in this Form. If an item is 

inapplicable or the answer to the item 

is in the negative, respond to the item 

by making a statement to that effect. 

* * * * * 

Item 5. Operating and Financial Review 

and Prospects 

* * * * * 


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Instructions to Item 5: 

* * * * * 

6. Generally, the discussion shall 

cover the periods covered by the 

financial statements and the registrant 

may use any format that in the 

registrant’s judgment enhances a 

reader’s understanding. 

For registrants providing financial 

statements covering three years in a 

filing, disclosure about the earliest year 

would not be required if (i) that 

disclosure is not material to an 

understanding of the registrant’s 

financial condition, changes in financial 

condition and results of operations and 

(ii) the registrant has filed its prior year 

Form 20–F on EDGAR containing an 

Operating and Financial Review and 

Prospects discussion of the earliest of 

the three years included in the financial 

statements of the current filing. 

* * * * * 

Item 10. Additional Information 

* * * * * 

Instructions to Item 10: 

* * * * * 

1 * * * 

(b) If the information called for by 

Item 10.B has been reported previously 

in a registration statement on Form 20-F 

or a registration statement filed under 

the Securities Act and has not changed, 

you may incorporate that information by 

a specific reference in the annual report 

to the previous registration statement or, 

to the extent that this information has 

been provided in the exhibit required by 

instruction 2(d) of the Instructions as to 

Exhibits, you may refer to the exhibit for 

this information. 

* * * * * 

Item 12. Description of Securities Other 

than Equity Securities 

* * * * * 

Instructions to Item 12: 

* * * * * 

1. If you are using the form as an 

annual report, provide the information 

required by Item 12.D.3 and Item 12.D.4 

under this Item of your annual report 

and provide the remainder of the 

information required by this Item in an 

exhibit to such report pursuant to 

paragraph 2(d) of Instructions as to 

Exhibits. 

2. You do not need to include any 

information in a registration statement, 

prospectus, or annual report on Form 

20–F in response to Item 305(a)(2) of the 

Trust Indenture Act of 1939, 15 U.S.C. 

77aaa et seq., as amended, if the 

information is not otherwise required by 

this Item or Instruction 2(d) under 

Instructions as to Exhibits of this Form. 

INSTRUCTIONS AS TO EXHIBITS 

File the exhibits listed below as part 

of an Exchange Act registration 

statement or report. Exchange Act Rule 

12b–23(c) explains the circumstances in 

which you may incorporate exhibits by 

reference. Exchange Act Rule 24b–2 

explains the procedure to be followed in 

requesting confidential treatment of 

information required to be filed. 

Previously filed exhibits may be 

incorporated by reference. If any 

previously filed exhibits have been 

amended or modified, file copies of the 

amendment or modification or copies of 

the entire exhibit as amended or 

modified. 

If the Form 20–F registration 

statement or annual report requires the 

inclusion, as an exhibit or attachment, 

of a document that is in a foreign 

language, you must provide instead 

either an English translation or an 

English summary of the foreign 

language document in accordance with 

Exchange Act Rule 12b–12(d) (17 CFR 

240.12b–12(d)) for both electronic and 

paper filings. You may submit a copy of 

the unabridged foreign language 

document along with the English 

translation or summary as permitted by 

Regulation S–T Rule 306(b) (17 CFR 

232.306(b)) for electronic filings or by 

Exchange Act Rule 12b–12(d)(4) (17 

CFR 240.12b–12(d) (4)) for paper filings. 

Include an exhibit index in each 

registration statement or report you file, 

immediately preceding the exhibits you 

are filing. The exhibit index must list 

each exhibit according to the number 

assigned to it below. If an exhibit is 

incorporated by reference, note that fact 

in the exhibit index. For paper filings, 

the pages of the manually signed 

original registration statement should be 

numbered in sequence, and the exhibit 

index should give the page number in 

the sequential numbering system where 

each exhibit can be found. 

Schedules (or similar attachments) to 

the exhibits required by this Form 20– 

F are not required to be filed unless 

such schedules contain information 

material to an investment or voting 

decision and that information is not 

otherwise disclosed in the exhibit or the 

disclosure document. Each exhibit filed 

must contain a list briefly identifying 

the contents of all omitted schedules. In 

addition, the registrant must provide a 

copy of any omitted schedule to the 

Commission staff upon request. 

The registrant may redact information 

from exhibits required to be filed by this 

Form 20–F if disclosure of that that 

information would constitute a clearly 

unwarranted invasion of personal 

privacy (e.g., disclosure of bank account 

numbers, social security numbers, home 

addresses and similar information). The 

registrant is not required to undertake or 

provide to the Commission upon 

request a materiality or competitive 

harm analysis of this redacted 

information. 

* * * * * 

2 * * * 

(d) If a registrant is filing an annual 

report under Exchange Act Section 13(a) 

or 15(d), the registrant must provide as 

an exhibit a description of the rights of 

each class of securities that is registered 

under Section 12 of the Exchange Act as 

of the end of the period covered by the 

report with which the exhibit is filed. 

The description must include 

information for the securities 

comparable to that required by Item 

9.A.3, A.5, A.6, and A.7, Item 10.B.3, 

B.4, B.6, B.7, B.8, B.9, and B.10, and 

Item 12.A, 12.B, 12.C, and 12.D.1 and 

12.D.2 of Form 20–F (collectively, the 

‘‘Description of Securities’’). However, 

for purposes of this paragraph 2(d), all 

references in those Items to securities to 

be or being registered, offered or sold 

will mean securities that are registered 

as of the end of the period covered by 

the report with which the exhibit is 

filed. In addition, for purposes of this 

Item, the disclosure will be required for 

classes of securities that have not been 

retired by the end of the period covered 

by the report. A registrant may 

incorporate by reference and provide an 

active hyperlink to a prior periodic 

filing containing the disclosure required 

by this paragraph 2(d) so long as there 

has not been any change to the 

information called for by the 

Description of Securities since the filing 

date of the linked filing. Such hyperlink 

will be deemed to satisfy the 

requirements of this paragraph 2(d) for 

the current filing. 

* * * * * 

4.(a) Every contract not made in the 

ordinary course of business that is 

material to the registrant and is to be 

performed in whole or in part at or after 

the filing of the registration statement or 

report. In addition, for newly reporting 

registrants, every contract not made in 

the ordinary course of business that is 

material to the registrant and that was 

entered into not more than two years 

before the date on which such 

registrant: 

(i) first files a registration statement or 

report; or 

(ii) completes a transaction that had 

the effect of causing it to cease being a 

public shell company. 

The only contracts that must be filed 

are those to which the registrant or a 

subsidiary of the registrant is a party or 


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has succeeded to a party by assumption 

or assignment or in which the registrant 

or such subsidiary has a beneficial 

interest. 

The registrant may redact provisions 

or terms of exhibits required to be filed 

by this Form 20–F if those provisions or 

terms are both (i) not material and (ii) 

competitively harmful to the registrant 

if publicly disclosed. If it does so, the 

registrant should mark the exhibit or 

exhibits to indicate that portions of the 

exhibit or exhibits have been omitted 

and include a prominent statement on 

the first page of the redacted exhibit that 

certain identified information has been 

excluded from the exhibit because it is 

both (i) not material and (ii) 

competitively harmful to the registrant 

if publicly disclosed. The registrant also 

must indicate by brackets where the 

information is omitted from the filed 

version of the exhibit. 

If requested by the Commission staff, 

the registrant must provide an 

unredacted paper copy of the exhibit on 

a supplemental basis. The Commission 

staff also may request the registrant to 

provide its materiality and competitive 

harm analyses on a supplemental basis. 

Upon evaluation of the registrant’s 

supplemental materials, the 

Commission staff may request the 

registrant to amend its filing to include 

in the exhibit any previously redacted 

information that is not adequately 

supported by the registrant’s materiality 

and competitive harm analyses. 

The registrant may request 

confidential treatment of the 

supplemental material submitted to the 

Commission or the staff pursuant to 

Rule 83 (17 CFR 200.83) while it is in 

the possession of the Commission staff. 

After reviewing the supplemental 

information, the Commission staff will 

return or destroy it at the request of the 

registrant, if the registrant complies 

with the procedures outlined in Rules 

418 or 12b–4 (17 CFR 230.418 or 17 CFR 

240.12b–4). 

Note: A ‘‘newly reporting registrant’’ is (i) 

any registrant filing a registration statement 

that, at the time of such filing, is not subject 

to the reporting requirements of Section 13(a) 

or 15(d) of the Exchange Act, whether or not 

such registrant has ever previously been 

subject to the reporting requirements of 

Section 13(a) or 15(d), (ii) any registrant that 

has not filed an annual report since the 

revival of a previously suspended reporting 

obligation, and (iii) any registrant that (a) was 

a shell company, other than a business 

combination related shell company, as 

defined in Rule 12b–2 under the Exchange 

Act (17 CFR 240.12b–2), immediately before 

completing a transaction that has the effect 

of causing it to cease being a shell company 

and (b) has not filed a Form 20–F since the 

completion of such transaction. For example, 

newly reporting registrants would include (i) 

a registrant that is filing its first registration 

statement under the Securities Act or the 

Exchange Act, and (ii) a registrant that was 

a public shell company, other than a business 

combination related shell company, and 

completes a reverse merger transaction 

causing it to cease being a shell company. 

* * * * * 

8. List the following information for the 

registrant and each of its subsidiaries: 

the name, the legal entity identifier (if 

any), the state or other jurisdiction of 

incorporation or organization, and the 

names under which the entity does 

business. This list may be incorporated 

by reference from another filed 

document which includes a complete 

and accurate list. ‘‘Legal entity 

identifier’’ means, with respect to any 

registrant or its subsidiaries, the legal 

entity identifier as assigned by a utility 

endorsed by the Global LEI Regulatory 

Oversight Committee or accredited by 

the Global LEI Foundation. You may 

omit the names of subsidiaries that, in 

the aggregate, would not be a 

‘‘significant subsidiary’’ as defined in 

rule 1–02(w) of Regulation S–X as of the 

end of the year covered by the report. 

You may omit the names of multiple 

wholly owned subsidiaries carrying on 

the same line of business, such as chain 

stores or service stations, if you give the 

name of the immediate parent company, 

the line of business and the number of 

omitted subsidiaries broken down by 

U.S. and foreign operations. 

* * * * * 

102 and 103 [Reserved] 

104. Cover Page Interactive Data File. If 

the Form 20–F is being used as an 

annual report, a Cover Page Interactive 

Data File (as defined in 17 CFR 232.11) 

as required by Rule 406 of Regulation S– 

T [17 CFR 232.406], and in the manner 

provided by the EDGAR Filer Manual. 

■ 54. Amend Form 40–F (referenced in 

§ 249.240f) by: 

■ a. Adding a field to the cover page to 

include trading symbol(s); and 

■ b. Adding paragraph B.17 under 

‘‘General Instructions’’ to read as 

follows: 

Note: The text of Form 40–F does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM 40–F 

* * * * * 

Securities registered or to be 

registered pursuant to Section 12(b) of 

the Act. 

Title of each class Trading 

symbol(s) Name of each exchange on which registered 

* * * * * 

B. Information To Be Filed on this Form 

* * * * * 

(17) Cover Page Interactive Data File. If 

the Form 40–F is being used as an 

annual report, a Cover Page Interactive 

Data File (as defined in 17 CFR 232.11) 

as required by Rule 406 of Regulation S– 

T [17 CFR 232.406], in the manner 

provided by the EDGAR Filer Manual 

and listed as exhibit 104. 

* * * * * 

■ 55. Amend Form 8–K (referenced in 

§ 249.308) by adding a field to the cover 

page for securities registered pursuant to 

Section 12(b) of the Exchange Act, the 

title of each class of such securities, 

trading symbol(s) and name of each 

exchange on which registered: 

Note: The text of Form 8–K does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM 8–K 

* * * * * 

Securities registered pursuant to 

Section 12(b) of the Act: 


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Title of each class Trading 

symbol(s) Name of each exchange on which registered 

* * * * * 

■ 56. Amend Form 10–Q (referenced in 

§ 249.308a) by adding a field to the 

cover page for securities registered 

pursuant to Section 12(b) of the 

Exchange Act, the title of each class of 

such securities, trading symbol(s) and 

name of each exchange on which 

registered: 

Note: The text of Form 10–Q does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM 10–Q 

* * * * * 

Securities registered pursuant to 

Section 12(b) of the Act: 

Title of each class Trading 

symbol(s) Name of each exchange on which registered 

* * * * * 

■ 57. Amend Form 10–K (referenced in 

§ 249.310) by: 

■ a. Revising Instruction (C)(1) and the 

last sentence of Instruction (G)(3) under 

‘‘General Instructions’’, the first 

sentence in Item 1A, and paragraph (a) 

under ‘‘Supplemental Information to be 

Furnished With Reports Filed Pursuant 

to Section 15(d) of the Act by 

Registrants Which Have Not Registered 

Securities Pursuant to Section 12 of the 

Act’’; 

■ b. Removing the second sentence of 

Instruction (G)(4) under ‘‘General 

Instructions’’, the checkbox that relates 

to disclosure under Item 405, and the 

instruction to Item 10; and 

■ c. Adding a field to the cover page to 

include trading symbol(s) to read as 

follows: 

Note: The text of Form 10–K does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM 10–K 

ANNUAL REPORT PURSUANT TO 

SECTION 13 OR 15(d) OF THE 

SECURITIES EXCHANGE ACT OF 1934 

GENERAL INSTRUCTIONS 

* * * * * 

C. Preparation of Report. 

(1) This form is not to be used as a 

blank form to be filled in, but only as 

a guide in the preparation of the report 

on paper meeting the requirements of 

Rule 12b–12. Except as provided in this 

instruction and General Instruction G, 

the answers to the items must be 

prepared in the manner specified in 

Rule 12b–13. The numbers or captions 

of items are not required unless 

expressly required by this form or the 

referenced disclosure requirements. 

* * * * * 

G. Information to be Incorporated by 

Reference. 

* * * * * 

(3) * * * See the Instruction to Item 

401 of Regulation S–K (§ 229.401 of this 

chapter). 

* * * * * 

UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM 10–K 

Securities registered pursuant to 

Section 12(b) of the Act: 

Title of each class Trading 

symbol(s) Name of each exchange on which registered 

* * * * * 

Item 1A. Risk Factors. Set forth, 

under the caption ‘‘Risk Factors,’’ where 

appropriate, the risk factors described in 

Item 105 of Regulation S–K (§ 229.105 of 

this chapter) applicable to the registrant. 

* * * 

* * * * * 

Supplemental Information to be 

Furnished With Reports Filed Pursuant 

to Section 15(d) of the Act by 

Registrants Which Have Not Registered 

Securities Pursuant to Section 12 of the 

Act 

(a) Except to the extent that the 

materials enumerated in (1) and/or (2) 

below are specifically incorporated into 

this Form by reference, every registrant 

which files an annual report on this 

Form pursuant to Section 15(d) of the 

Act must furnish to the Commission for 

its information, at the time of filing its 

report on this Form, four copies of the 

following: * * * 

* * * * * 

■ 58. Amend Form 10–D (referenced in 

§ 249.312 of this chapter) by: 

■ a. Removing and reserving General 

Instruction D(2)(a); and 

■ b. Revising General Instruction D(2)(d) 

to read as follows: 

Note: The text of Form 10–D does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 


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UNITED STATES 

SECURITIES AND EXCHANGE 

COMMISSION 

Washington, DC 20549 

FORM 10–D 

ASSET–BACKED ISSUER 

DISTRIBUTION REPORT PURSUANT 

TO SECTION 13 OR 15(d) OF THE 

SECURITIES EXCHANGE ACT OF 1934 

GENERAL INSTRUCTIONS 

* * * * * 

(d) Exchange Act Rules 12b–23 (17 CFR 

240.12b–23) (additional rules on 

incorporation by reference for reports 

filed pursuant to Sections 13 and 15(d) 

of the Act). 

* * * * * 

PART 270—RULES AND 

REGULATIONS, INVESTMENT 

COMPANY ACT OF 1934 

■ 59. The authority citation for part 270 

continues to read in part as follows: 

Authority: 15 U.S.C. 80a–1 et seq., 80a– 

34(d), 80a–37, 80a–39, and Pub. L. 111–203, 

sec. 939A, 124 Stat. 1376 (2010), unless 

otherwise noted. 

* * * * * 

■ 60. Revise § 270.0–4 to read as 

follows: 

§ 270.0–4 Incorporation by reference. 

(a) Registration statements and 

reports. Except as provided by this 

section or in the appropriate form, 

information may be incorporated by 

reference in answer, or partial answer, 

to any item of a registration statement or 

report. Where an item requires a 

summary or outline of the provisions of 

any document, the summary or outline 

may incorporate by reference particular 

items, sections, or paragraphs of any 

exhibit and may be qualified in its 

entirety by such reference. 

(b) Financial information. Except as 

provided in the Commission’s rules, 

financial information required to be 

given in comparative form for two or 

more fiscal years or periods must not be 

incorporated by reference unless the 

information incorporated by reference 

includes the entire period for which the 

comparative data is given. In the 

financial statements, incorporating by 

reference, or cross-referencing to, 

information provided pursuant to the 

non-financial information disclosure 

requirements is not permitted unless 

otherwise specifically permitted or 

required by the Commission’s rules. 

(c) Exhibits. Any document or part 

thereof, including any financial 

statement or part thereof, filed with the 

Commission pursuant to any Act 

administered by the Commission may 

be incorporated by reference as an 

exhibit to any registration statement, 

application, or report filed with the 

Commission by the same or any other 

person. If any modification has occurred 

in the text of any document 

incorporated by reference since the 

filing thereof, the registrant must file 

with the reference a statement 

containing the text of any such 

modification and the date thereof. 

(d) Hyperlinks. Include an active 

hyperlink to information incorporated 

into a registration statement, 

application, or report by reference if 

such information is publicly available 

on the Commission’s Electronic Data 

Gathering, Analysis and Retrieval 

System (‘‘EDGAR’’) at the time the 

registration statement, application, or 

report is filed. For hyperlinking to 

exhibits, please refer to the appropriate 

form. 

(e) General. Include an express 

statement clearly describing the specific 

location of the information you are 

incorporating by reference. The 

statement must identify the document 

where the information was originally 

filed or submitted and the location of 

the information within that document. 

The statement must be made at the 

particular place where the information 

is required, if applicable. Information 

must not be incorporated by reference in 

any case where such incorporation 

would render the disclosure incomplete, 

unclear, or confusing. For example, 

unless expressly permitted or required, 

disclosure must not be incorporated by 

reference from a second document if 

that second document incorporates 

information pertinent to such disclosure 

by reference to a third document. 

§ 270.8b–23 [Removed and reserved]. 

■ 61. Remove and reserve § 270.8b–23. 

§ 270.8b–24 [Removed and reserved]. 

■ 62. Remove and reserve § 270.8b–24. 

§ 270.8b–32 [Removed and reserved]. 

■ 63. Remove and reserve § 270.8b–32. 

* * * * * 

PART 274—FORMS PRESCRIBED 

UNDER THE INVESTMENT COMPANY 

ACT OF 1934 

■ 64. The authority citation for part 274 

continues to read in part as follows: 

Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 

78c(b), 78l, 78m, 78n, 78(o)(d), 80a–8, 80a– 

26, 80a–29, and Pub. L. 111–203, sec. 939A, 

124 Stat. 1376 (2010), unless otherwise 

noted. 

* * * * * 

■ 65. Amend Form N–5 (referenced in 

§ 274.5 of this chapter) by revising 

‘‘Instructions as to Exhibits’’ to add a 

paragraph to read as follows: 

Note: The text of Form N–5 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

Form N–5 

* * * * * 

INSTRUCTIONS AS TO EXHIBITS 

* * * * * 

Each exhibit identified in the exhibit 

index must include an active link to an 

exhibit that is filed with the registration 

statement or, if the exhibit is 

incorporated by reference an active 

hyperlink to the exhibit separately filed 

on EDGAR. If the registration statement 

is amended, each amendment must 

include active hyperlinks to the exhibits 

required with the amendment. 

* * * * * 

■ 66. Amend Form N–1A (referenced in 

§ 274.11A of this chapter) by: 

■ a. Revising General Instruction D.2; 

and 

■ b. Revising the Instruction to Item 28 

to read as follows: 

Note: The text of Form N–1A does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

Form N–1A 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

D. Incorporation by Reference 

* * * * * 

2. General Requirements 

All incorporation by reference must 

comply with the requirements of this 

Form and the following rules on 

incorporation by reference: rule 411 

under the Securities Act [17 CFR 

230.411] (general rules on incorporation 

by reference in a prospectus); rule 303 

of Regulation S–T [17 CFR 232.303] 

(specific requirements for electronically 

filed documents); and rule 0–4 [17 CFR 

270.0–4] (additional rules on 

incorporation by reference for Funds). 

* * * * * 

Item 28. Exhibits 

* * * * * 

Instruction 

Each exhibit identified in the exhibit 

index (other than an exhibit filed in 

eXtensible Business Reporting 

Language) must include an active link to 

an exhibit that is filed with the 

registration statement or, if the exhibit 

is incorporated by reference an active 

hyperlink to the exhibit separately filed 


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on EDGAR. If the registration statement 

is amended, each amendment must 

include active hyperlinks to the exhibits 

required with the amendment. 

A Fund that is a Feeder Fund also 

must file a copy of all codes of ethics 

applicable to the Master Fund. 

* * * * * 

■ 67. Amend Form N–2 (referenced in 

§ 274.11a–1 of this chapter) by: 

■ a. Revising General Instruction F; and 

■ b. Revising the Instructions to Item 

25.2 to add Instruction 4 to read as 

follows: 

Note: The text of Form N–2 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

Form N–2 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

F. Incorporation by Reference 

Incorporation by reference permits a 

Registrant to include documents and 

exhibits filed previously with the 

Commission as part of the registration 

statement by making reference to where, 

and under what designation, these 

documents can be found in previous 

filings. A Registrant may incorporate all 

or part of the Statement of Additional 

Information (the ‘‘SAI’’) into the 

prospectus delivered to investors 

without physically delivering the SAI 

with the prospectus, so long as the SAI 

is available to investors upon request at 

no charge and any information or 

documents incorporated by reference 

into the SAI are provided along with the 

SAI, except to the extent provided by 

paragraph F.3 below. 

In general, a Registrant may 

incorporate by reference, in response to 

any item of Form N–2 not required to 

be included in the prospectus, any 

information contained elsewhere in the 

registration statement or in other 

statements, applications, or reports filed 

with the Commission. 

A Registrant may incorporate by 

reference into the prospectus or the SAI 

in response to Item 4.1 or 24 of this form 

the information contained in Form N– 

CSR [17 CFR 249.331 and 274.128] or 

any report to shareholders meeting the 

requirements of Section 30(e) of the 

1940 Act [15 U.S.C. 80a–29(e)] and Rule 

30e–1 [17 CFR 270.30e–1] thereunder 

(and a Registrant that has elected to be 

regulated as a business development 

company may so incorporate into Items 

4.2, 8.6.c, or 24 of this form the 

information contained in its annual 

report under the Securities Exchange 

Act of 1934 [15 U.S.C. 78a et seq.] (the 

‘‘Exchange Act’’)), provided: 

1. The material incorporated by 

reference is prepared in accordance 

with, and covers the periods specified 

by, this form. 

2. The Registrant states in the 

prospectus or the SAI, at the place 

where the information required by Items 

4.1, 4.2, 8.6.c, or 24 of this form would 

normally appear, that the information is 

incorporated by reference from a report 

to shareholders or a report on Form N– 

CSR. (The Registrant also may describe 

briefly, in either the prospectus, the 

SAI, or Part C of the registration 

statement (in response to Item 25.1) 

those portions of the report to 

shareholders or report on Form N–CSR 

that are not incorporated by reference 

and are not a part of the registration 

statement.) 

3. The material incorporated by 

reference is provided with the 

prospectus and/or the SAI to each 

person to whom the prospectus and/or 

the SAI is sent or given, unless the 

person holds securities of the Registrant 

and otherwise has received a copy of the 

material. (The Registrant must state in 

the prospectus and/or the SAI that it 

will furnish, without charge, a copy of 

such material on request and provide 

the name, address, and telephone 

number of the person to contact.) 

All incorporation by reference must 

comply with the requirements of this 

Form and the following rules on 

incorporation by reference: rule 411 

under the Securities Act [17 CFR 

230.411] (general rules on incorporation 

by reference in a prospectus); rule 303 

of Regulation S–T [17 CFR 232.303] 

(specific requirements for electronically 

filed documents); and rule 0–4 [17 CFR 

270.0–4] (additional rules on 

incorporation by reference for 

investment companies). 

* * * * * 

Item 25. Financial Statements and 

Exhibits 

* * * * * 

2. Exhibits: 

* * * * * 

Instructions 

* * * * * 

4. Each exhibit identified in the 

exhibit index must include an active 

link to an exhibit that is filed with the 

registration statement or, if the exhibit 

is incorporated by reference an active 

hyperlink to the exhibit separately filed 

on EDGAR. If the registration statement 

is amended, each amendment must 

include active hyperlinks to the exhibits 

required with the amendment. 

* * * * * 

■ 68. Amend Form N–3 (referenced in 

§ 274.11b of this chapter) by: 

■ a. Revising General Instruction G; and 

■ b. Revising the Instructions to Item 

29(b) to add Instruction 3 to read as 

follows: 

Note: The text of Form N–3 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

Form N–3 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

G. Incorporation by Reference 

A Registrant may, at its discretion, 

incorporate all or part of the Statement 

of Additional Information into the 

prospectus, without physically 

delivering the Statement of Additional 

Information to investors with the 

prospectus. But the Statement of 

Additional Information must be 

available to the investor upon request at 

no charge and any information or 

documents incorporated by reference 

into the Statement of Additional 

Information must be provided along 

with the Statement of Additional 

Information. 

In general, a Registrant may 

incorporate by reference, in the answer 

to any item of Form N–3 not required 

to be in the prospectus, any information 

elsewhere in the registration statement 

or in other statements, applications, or 

reports led with the Commission. 

Subject to these rules, a Registrant 

may incorporate by reference into the 

prospectus or the Statement of 

Additional Information in response to 

Items 4(a) or 28 of Form N–3 the 

information in Form N–CSR [17 CFR 

249.331 and 274.128] or any report to 

contract owners meeting the 

requirements of Section 30(e) of the 

1940 Act [15 U.S.C. 80a–29(e)] and Rule 

30e–1 [17 CFR 270.30e–1] provided: 

1. The material incorporated by 

reference is prepared in accordance 

with, and covers the periods specified 

by, this Form. 

2. The Registrant states in the 

prospectus or the Statement of 

Additional Information, at the place 

where the information would normally 

appear, that the information is 

incorporated by reference from a report 

to security holders or a report on Form 

N–CSR. The Registrant may also 

describe, in either the prospectus, the 

Statement of Additional Information, or 

Part C of the Registration Statement (in 

response to Item 29(a)), any parts of the 

report to security holders or the report 

on Form N–CSR that are not 


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51048 Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Proposed Rules 

incorporated by reference and are not a 

part of the Registration Statement. 

3. The material incorporated by 

reference is provided with the 

prospectus or the Statement of 

Additional Information to each person 

to whom the prospectus or the 

Statement of Additional Information is 

given, unless the person holds securities 

of the Registrant and otherwise has 

received a copy of the material. 

However, Registrant must state in the 

prospectus or the Statement of 

Additional Information that it will 

furnish, without charge, another copy of 

such report on request and the name, 

address, and telephone number of the 

person to contact. 

All incorporation by reference must 

comply with the requirements of this 

Form and the following rules on 

incorporation by reference: rule 411 

under the Securities Act [17 CFR 

230.411] (general rules on incorporation 

by reference in a prospectus); rule 303 

of Regulation S–T [17 CFR 232.303] 

(specific requirements for electronically 

filed documents); and rule 0–4 [17 CFR 

270.0–4] (additional rules on 

incorporation by reference for 

investment companies). 

* * * * * 

Item 29. Financial Statements and 

Exhibits 

* * * * * 

(b) Exhibits: 

* * * * * 

Instructions 

* * * * * 

3. Each exhibit identified in the 

exhibit index must include an active 

link to an exhibit that is filed with the 

registration statement or, if the exhibit 

is incorporated by reference, an active 

hyperlink to the exhibit separately filed 

on EDGAR. If the registration statement 

is amended, each amendment must 

include active hyperlinks to the exhibits 

required with the amendment. 

* * * * * 

■ 69. Amend Form N–4 (referenced in 

§ 274.11c of this chapter) by: 

■ a. Revising General Instruction G; and 

■ b. Revising the Instructions to Item 

24(b) to add Instruction 3 to read as 

follows: 

Note: The text of Form N–4 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

Form N–4 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

G. Incorporation by Reference 

A Registrant may, at its discretion, 

incorporate all or part of the Statement 

of Additional Information into the 

prospectus, without physically 

delivering the Statement of Additional 

Information to investors with the 

prospectus. But the Statement of 

Additional Information must be 

available to the investor upon request at 

no charge and any information or 

documents incorporated by reference 

into the Statement of Additional 

Information must be provided along 

with the Statement of Additional 

Information. 

All incorporation by reference must 

comply with the requirements of this 

Form and the following rules on 

incorporation by reference: rule 411 

under the Securities Act [17 CFR 

230.411] (general rules on incorporation 

by reference in a prospectus); rule 303 

of Regulation S–T [17 CFR 232.303] 

(specific requirements for electronically 

filed documents); and rule 0–4 [17 CFR 

270.0–4] (additional rules on 

incorporation by reference for 

investment companies). 

In general, a Registrant may 

incorporate by reference, in the answer 

to any item of Form N–4 not required 

to be in the prospectus, any information 

elsewhere in the registration statement 

or in other statements, applications, or 

reports led with the Commission. 

* * * * * 

Item 24. Financial Statements and 

Exhibits 

* * * * * 

(b) Exhibits: 

* * * * * 

Instructions: 

* * * * * 

3. Each exhibit identified in the 

exhibit index must include an active 

link to an exhibit that is filed with the 

registration statement or, if the exhibit 

is incorporated by reference an active 

hyperlink to the exhibit separately filed 

on EDGAR. If the registration statement 

is amended, each amendment must 

include active hyperlinks to the exhibits 

required with the amendment. 

* * * * * 

■ 70. Amend Form N–6 (referenced in 

§ 274.11d of this chapter) by: 

■ a. Revising General Instruction D.2; 

and 

■ b. Revising Item 26 to read as follows: 

Note: The text of Form N–6 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations. 

Form N–6 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

B. Filing and Use of Form N–6 

* * * * * 

4. What rules apply to the filing of a 

registration statement on Form N–6? 

* * * * * 

D. Incorporation by Reference 

* * * * * 

2. General Requirements: 

All incorporation by reference must 

comply with the requirements of this 

Form and the following rules on 

incorporation by reference: rule 411 

under the Securities Act [17 CFR 

230.411] (general rules on incorporation 

by reference in a prospectus); rule 303 

of Regulation S–T [17 CFR 232.303] 

(specific requirements for electronically 

filed documents); and rule 0–4, [17 CFR 

270.0–4] (additional rules on 

incorporation by reference for 

investment companies). 

* * * * * 

Item 26. Exhibits 

Subject to General Instruction D 

regarding incorporation by reference 

and rule 483 under the Securities Act 

[17 CFR 230.483], file the exhibits listed 

below as part of the registration 

statement. Letter or number the exhibits 

in the sequence indicated and file 

copies rather than originals, unless 

otherwise required by rule 483. Reflect 

any exhibit incorporated by reference in 

the list below and identify the 

previously filed document containing 

the incorporated material. Each exhibit 

identified in the exhibit index must 

include an active link to an exhibit that 

is filed with the registration statement 

or, if the exhibit is incorporated by 

reference an active hyperlink to the 

exhibit separately filed on EDGAR. If 

the registration statement is amended, 

each amendment must include active 

hyperlinks to the exhibits required with 

the amendment. 

(a) * * * 

* * * * * 

■ 71. Amend Form N–CSR (referenced 

in § 274.128 of this chapter) by: 

■ a. Revising General Instruction D; and 

■ b. Revising the Instruction to Item 12 

to read as follows: 

Note: The text of Form N–CSR does not, 

and this amendment will not, appear in the 

Code of Federal Regulations. 


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Federal Register / Vol. 82, No. 211 / Thursday, November 2, 2017 / Proposed Rules 51049 

Form N–CSR 

* * * * * 

GENERAL INSTRUCTIONS 

* * * * * 

D. Incorporation by Reference 

A registrant may incorporate by 

reference information required by Items 

4, 5, and 12(a)(1). No other Items of the 

Form shall be answered by 

incorporating any information by 

reference. The information required by 

Items 4 and 5 may be incorporated by 

reference from the registrant’s definitive 

proxy statement (filed or required to be 

filed pursuant to Regulation 14A (17 

CFR 240.14a–1 et seq.)) or definitive 

information statement (filed or to be 

filed pursuant to Regulation 14C (17 

CFR 240.14c–1 et seq.)) involving the 

election of directors, if such definitive 

proxy statement or information 

statement is filed with the Commission 

not later than 120 days after the end of 

the fiscal year covered by an annual 

report on this Form. All incorporation 

by reference must comply with the 

requirements of this Form and the 

following rules on incorporation by 

reference: Rule 303 of Regulation S–T 

(17 CFR 232.303) (specific requirements 

for electronically filed documents); Rule 

12b–23 under the Exchange Act (17 CFR 

240.12b–23) (additional rules on 

incorporation by reference for reports 

filed pursuant to Sections 13 and 15(d) 

of the Exchange Act); and Rule 0–4 (17 

CFR 270.0–4) (additional rules on 

incorporation by reference for 

investment companies). 

* * * * * 

Item 12. Exhibits. 

* * * * * 

Instruction to Item 12. 

Letter or number the exhibits in the 

sequence that they appear in this item. 

Each exhibit identified in the exhibit 

index must include an active link to an 

exhibit that is filed with the report or, 

if the exhibit is incorporated by 

reference an active hyperlink to the 

exhibit separately filed on EDGAR. If 

the report is amended, each amendment 

must include active hyperlinks to the 

exhibits required with the amendment. 

* * * * * 

PART 275—RULES AND 

REGULATIONS, INVESTMENT 

ADVISERS ACT OF 1940 

■ 72. The authority citation for Part 275 

continues to read, in part, as follows: 

Authority: 15 U.S.C. 80b–2(a)(11)(G), 80b– 

2(a)(11)(H), 80b–2(a)(17), 80b–3, 80b–4, 80b– 

4a, 80b–6(4), 80b–6a, and 80b–11, unless 

otherwise noted. 

* * * * * 

73. Revise § 275.0–6 to read as 

follows: 

§ 275.0–6 Incorporation by reference in 

applications. 

(a) Exhibits. Any document or part 

thereof, including any financial 

statement or part thereof, filed with the 

Commission pursuant to any Act 

administered by the Commission may 

be incorporated by reference as an 

exhibit to any application filed with the 

Commission by the same or any other 

person. If any modification has occurred 

in the text of any document 

incorporated by reference since the 

filing thereof, the registrant must file 

with the reference a statement 

containing the text of any such 

modification and the date thereof. 

(b) General. Include an express 

statement clearly describing the specific 

location of the information you are 

incorporating by reference. The 

statement must identify the document 

where the information was originally 

filed or submitted and the location of 

the information within that document. 

The statement must be made at the 

particular place where the information 

is required, if applicable. Information 

must not be incorporated by reference in 

any case where such incorporation 

would render the disclosure incomplete, 

unclear, or confusing. For example, 

unless expressly permitted or required, 

disclosure must not be incorporated by 

reference from a second document if 

that second document incorporates 

information pertinent to such disclosure 

by reference to a third document. 

(c) Definition of Application. For 

purposes of this rule, an ‘‘application’’ 

means any application for an order of 

the Commission under the Act other 

than an application for registration as an 

investment adviser. 

By the Commission. 

Dated: October 11, 2017. 

Brent J. Fields, 

Secretary. 

[FR Doc. 2017–22374 Filed 11–1–17; 8:45 am] 

BILLING CODE 8011–01–P 


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