Rule2021-22756
Filing Fee Disclosure and Payment Methods Modernization
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 9, 2021
Effective
January 31, 2022
Issuing agencies
Securities and Exchange Commission
Abstract
We are adopting amendments that will modernize filing fee disclosure and payment methods. We are amending most fee-bearing forms, schedules, statements, and related rules to require each filing fee table and accompanying disclosure to include all required information for fee calculation in a structured format. The amendments will add options for fee payment via Automated Clearing House ("ACH") and debit and credit cards, and eliminate options for fee payment via paper checks and money orders. The amendments are intended to improve filing fee preparation and payment processing by facilitating both enhanced validation through filing fee structuring and lower-cost, easily routable payments through the ACH and debit and credit card payment options. Finally, the Commission is adopting other amendments to enhance the efficiency of the fee process.
Full Text
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<title>Federal Register, Volume 86 Issue 234 (Thursday, December 9, 2021)</title>
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[Federal Register Volume 86, Number 234 (Thursday, December 9, 2021)]
[Rules and Regulations]
[Pages 70166-70269]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22756]
[[Page 70165]]
Vol. 86
Thursday,
No. 234
December 9, 2021
Part II
Securities and Exchange Commission
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17 CFR Parts 202, 229, 230, et al.
Filing Fee Disclosure and Payment Methods Modernization; Final Rule
Federal Register / Vol. 86 , No. 234 / Thursday, December 9, 2021 /
Rules and Regulations
[[Page 70166]]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 202, 229, 230, 232, 239, 240, 270 and 274
[Release Nos. 33-10997; 34-93285; IC-34396; File No. S7-20-19]
RIN 3235-AL96
Filing Fee Disclosure and Payment Methods Modernization
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
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SUMMARY: We are adopting amendments that will modernize filing fee
disclosure and payment methods. We are amending most fee-bearing forms,
schedules, statements, and related rules to require each filing fee
table and accompanying disclosure to include all required information
for fee calculation in a structured format. The amendments will add
options for fee payment via Automated Clearing House (``ACH'') and
debit and credit cards, and eliminate options for fee payment via paper
checks and money orders. The amendments are intended to improve filing
fee preparation and payment processing by facilitating both enhanced
validation through filing fee structuring and lower-cost, easily
routable payments through the ACH and debit and credit card payment
options. Finally, the Commission is adopting other amendments to
enhance the efficiency of the fee process.
DATES:
Effective dates: The final rules are effective on January 31, 2022,
except for amendments to 17 CFR 202.3a, 17 CFR 230.111, 17 CFR 240.0-9,
and 17 CFR 270.0-8, which are effective on May 31, 2022.
Compliance dates: See Section II.A.6 for further information on
transitioning to the final rules.
FOR FURTHER INFORMATION CONTACT: Luba Dinits, Senior Accountant, Office
of Financial Management, at (202) 551-3839, Mark W. Green, Senior
Special Counsel, Division of Corporation Finance, at (202) 551-3430;
Amanda Hollander Wagner, Branch Chief, or Amy Miller, Senior Counsel,
Division of Investment Management, at (202) 551-6792; or R. Michael
Willis, Associate Director, Office of Data Science and Innovation,
Division of Economic and Risk Analysis, at (202) 551-6600.
SUPPLEMENTARY INFORMATION: We are adopting amendments to:
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Commission reference CFR citation
(17 CFR)
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Informal and other Procedures.... Rule 3a............................... Sec. 202.3a
Regulation S-K................... Item 601.............................. Sec. 229.601
Regulation S-T................... Rule 13............................... Sec. 232.13
Rule 405.............................. Sec. 232.405
Rule 408.............................. Sec. 232.408
Securities Act of 1933 \1\ Rule 111.............................. Sec. 230.111
(``Securities Act'').
Rule 415.............................. Sec. 230.415
Rule 424.............................. Sec. 230.424
Rule 456.............................. Sec. 230.456
Rule 457.............................. Sec. 230.457
Rule 473.............................. Sec. 230.473
Form S-1.............................. Sec. 239.11
Form S-3.............................. Sec. 239.13
Form S-8.............................. Sec. 239.16b
Form S-11............................. Sec. 239.18
Form N-14............................. Sec. 239.23
Form S-4.............................. Sec. 239.25
Form F-1.............................. Sec. 239.31
Form F-3.............................. Sec. 239.33
Form F-4.............................. Sec. 239.34
Form F-10............................. Sec. 239.40
Form SF-1............................. Sec. 239.44
Form SF-3............................. Sec. 239.45
Securities Exchange Act of 1934 Rule 0-9.............................. Sec. 240.0-9
\2\ (``Exchange Act'').
Rule 0-11............................. Sec. 240.0-11
Rule 13e-1............................ Sec. 240.13e-1
Schedule 13E-3........................ Sec. 240.13e-100
Schedule 13E-4F....................... Sec. 240.13e-102
Schedule 14A.......................... Sec. 240.14a-101
Schedule 14C.......................... Sec. 240.14c-101
Schedule TO........................... Sec. 240.14d-100
Schedule 14D-1F....................... Sec. 240.14d-102
Investment Company Act of 1940 Rule 0-8.............................. Sec. 270.0-8
\3\ (``Investment Company Act'').
Form 24F-2............................ Sec. 274.24
Securities Act and Investment Form N-2.............................. Sec. Sec. 239.14 and
Company Act. 274.11a-1
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\1\ 15 U.S.C. 77a et seq.
\2\ 15 U.S.C. 78a et seq.
\3\ 15 U.S.C. 80a-1 et seq.
Table of Contents
I. Introduction and Background
II. Final Amendments
A. Fee-Bearing Form Content and Structuring
1. Overview of the Amendments
2. Affected Forms
3. Content and Location of Filing Fee Information
4. Structuring of Filing Fee-Related Information
5. Scope of Proposed Amendments
6. Transition Period
B. Fee Payment Process
[[Page 70167]]
1. Proposed Amendments
2. Comments on the Proposed Amendments
3. Final Amendments
C. Fee Offset Amendment
1. Proposed Amendment
2. Comments on the Proposed Amendment
3. Final Amendment
D. Technical and Other Clarifying Amendments
1. Proposed Amendments
2. Comments on the Proposed Amendments
3. Final Amendments
III. Other Matters
IV. Economic Analysis
A. Economic Baseline
B. Economic Impacts, Including Effects on Efficiency,
Competition, and Capital Formation
1. Structuring Filing Fee-Related Information
2. Updating Payment Options
3. Fee Offset Amendments
4. Anticipated Effects on Efficiency, Competition, and Capital
Formation
C. Reasonable Alternatives
V. Paperwork Reduction Act
A. Background
B. Summary of Comment Letters and the Amendments' Effects on the
Collections of Information
C. Incremental and Aggregate Burden and Cost Estimates for the
Amendments
VI. Final Regulatory Flexibility Act Analysis
A. Need for, and Objectives of, the Final Amendments
B. Significant Issues Raised by Public Comment
C. Small Entities Subject to the Final Amendments
D. Projected Reporting, Recordkeeping, and Other Compliance
Requirements
E. Agency Action To Minimize Effect on Small Entities
VII. Statutory Authority
Text of Final Rule and Form Amendments
I. Introduction and Background
On October 24, 2019, the Commission proposed amendments to
modernize filing fee disclosure and payment methods.\1\ Specifically,
the Commission proposed to amend most fee-bearing forms, schedules,
statements, and related rules to require each filing fee table and
accompanying disclosure to include all required information for filing
fee calculation in a structured format. The Commission also proposed to
add an option for filing fee payment via ACH and eliminate the options
for filing fee payment via paper checks and money orders. The proposed
amendments were intended to improve filing fee preparation and payment
processing by facilitating both enhanced validation through filing fee
structuring and lower-cost, easily routable payments through the ACH
payment option. Finally, the Commission proposed other amendments to
enhance the efficiency of the filing fee process.\2\
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\1\ See Filing Fee Disclosure and Payment Methods Modernization,
Release No. 33-10720 (Oct. 24, 2019) [84 FR 71580 (Dec. 27, 2019)]
(``Proposing Release'').
\2\ The Commission assesses filing fees pursuant to Section 6(b)
of the Securities Act [15 U.S.C. 77f(a)(b)] and Sections 13(e) and
14(g) of the Exchange Act [15 U.S.C 78m(e) and 78n(g)]. The filing
fees are assessed on companies' filing documents related to
transactions, including registered securities offerings, tender
offers and merger or acquisition transactions.
The Commission also assesses registration fees for registered
offerings by investment companies (``funds''), with fees assessed on
an annual basis for open-end funds and unit investment trusts
(``UITs''). Pursuant to Section 24(f)(2) of the Investment Company
Act [15 U.S.C. 80a-24(f)(2)], open-end funds and UITs must file
information about the computation of these registration fees and
other information on Form 24F-2. Effective August 1, 2021,
registered closed-end funds that operate as ``interval funds'' are
also required to file registration fee information on Form 24F-2,
and as of February 1, 2022, all Form 24F-2 filers (interval funds,
as well as open-end funds and UITs) will be required to submit Form
24F-2 to the Commission in a structured eXtensible Markup Language
(``XML'') format. See Securities Offering Reform for Closed-End
Investment Companies, Investment Company Act Release No. 33-10771
(Apr. 8, 2020) [85 FR 33290 (June 1, 2020)] (``Closed-End Fund
Offering Reform Adopting Release''). An ``interval fund'' is a type
of registered closed-end fund or business development company
(``BDC'') that makes periodic repurchase offers pursuant to
Investment Company Act Rule 23c-3.
Additionally, registered closed-end funds and BDCs that are not
interval funds, as well as small business investment companies
(``SBICs'') that register securities under the Securities Act,
generally must pay registration fees at the time of filing a
registration statement. See Section 6(b)(1) of the Securities Act;
see also Closed-End Fund Offering Reform Adopting Release, supra
note 2, at 73, n.198. SBICs are privately-owned and -managed
investment companies that are licensed and regulated by the Small
Business Administration (``SBA'').
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Commenters generally supported the proposed structuring and payment
option amendments but some had related observations and suggestions.\3\
After reviewing and considering the public comments and
recommendations, we are adopting the amendments largely as proposed. As
we discuss further below, in certain cases we are adopting the proposed
rules with modifications that are intended to address comments received
or otherwise improve upon the proposals.
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\3\ One commenter also supported the proposed centralization of
filing fee information. Commenters did not address the other
proposed amendments. Comment letters related to the Proposing
Release are available at <a href="https://www.sec.gov/comments/s7-20-19/s72019.htm">https://www.sec.gov/comments/s7-20-19/s72019.htm</a>.
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The current methods by which filers and the Commission staff
process and validate EDGAR \4\ filing fee information within the filing
are highly manual and labor-intensive.\5\ Filing-fee related
information is generally not machine-readable and the underlying
components used for the calculation are not always required to be
reported.\6\ Filing fee calculation can be difficult and result in
errors when transactions are complex or a filer is engaged in a number
of transactions or attempts to use previously paid filing fees to
offset the amount due or carry forward previously registered securities
to a new registration statement. Other errors can occur because the
filer must manually enter certain data elements relevant to the filing
fee calculation in the body of the filing and, during the course of
preparing the filing for EDGAR submission, the filing's ``header.'' \7\
The filing fee-related data is thus present in the EDGAR header, the
body of the document being filed, or both. The manual process of
entering the same data elements in more than one place increases the
possibility of filer errors, such as re-keying errors or errors where
information is modified in one location but not the other. Correcting
errors or reconciling inconsistencies in filing fee calculations can
increase burdens on both the filer and the Commission staff.
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\4\ The Commission receives filings through its Electronic Data
Gathering, Analysis, and Retrieval (``EDGAR'') system.
\5\ Validation is the process of checking for conformance with
certain requirements. Under the final rules, once filers structure
their filing fee information, we expect the EDGAR system to
automatically validate a filing fee based on the number of shares
registered and maximum offering price per share by multiplying those
amounts by each other and the applicable filing fee rate.
\6\ For example, as further discussed below, in connection with
a business combination, filing fee-specific disclosures of the
market value of securities to be received by a registrant or cash to
be paid or received by the registrant are not expressly required to
be disclosed even though they affect the filing fee calculation. See
infra note 30.
\7\ Filings are submitted on EDGAR through the EDGARLink Online
tool that is made available by the Commission to assemble, validate
and submit filings on EDGAR. As part of submitting the filing, the
registrant enters submission data that becomes part of that filing's
header.
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Currently, the Commission staff conducts a manual review of the
filing fee information for every fee-bearing filing that is filed with
the Commission. When there are discrepancies between filing fee
information appearing in the header and in the filing fee table on the
cover page of the filing, the staff must resolve the discrepancy and
often has to contact the filer to do so. We expect the final amendments
will make the filing fee payment validation process faster and more
efficient by enabling the staff to use automated tools to help validate
payment information with respect to complicated situations. We also
expect that improvements in the payment validation process made
possible by the tagging of the filing fee table and accompanying
information with pre-submission validation by the filer will provide
more certainty to registrants
[[Page 70168]]
that the proper filing fee has been calculated and paid.
We are amending most fee-bearing forms, schedules and statements
\8\ to provide that each filing's calculation of filing fee tables,
together with related explanatory notes to the filing fee tables,
include all required information for filing fee calculation in a
structured format using Inline eXtensible Business Reporting Language
(``XBRL'').\9\ Presenting filing fee-related information in a
structured format will enable:
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\8\ See Section II.A.5 regarding the fee-bearing forms we are
amending and those we are not amending.
\9\ Structured data is data that is tagged to make it machine-
readable, facilitating its use by investors and other market
participants, such as data aggregators (i.e., entities that, in
general, collect, package, and resell data).
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<bullet> Efficient automated access to and processing of,
information relevant to filing fee calculation; and
<bullet> Eliminating both the need to enter duplicate filing fee
information in the header and the possibility of inconsistent filing
fee information between the header and the body of the filing.\10\
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\10\ The elimination of duplicate entries of information in the
header and body of the filing will not be immediate. It will occur
over time as filers become subject to the requirement to present
filing fee-related information in a structured format and we program
EDGAR accordingly.
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These amendments will improve the filing fee preparation,
disclosure, validation, assessment, and collection processes.
We also are adding options for filing fee payment via ACH and debit
and credit cards, which offer more efficient and accurate filing fee
payment processing than checks and money orders through standardized
filing fee payment identification fields, and eliminating the options
for filing fee payment via paper checks and money orders. These
amendments will modernize filing fee payment methods and increase
efficiency in processing filing fee payments.
II. Final Amendments
A. Fee-Bearing Form Content and Structuring
1. Overview of the Amendments
The Commission proposed to require filers to include all required
information for filing fee calculation in a structured format.\11\ In
this regard, the Commission observed that the preparation, disclosure,
validation, assessment, and collection process would be more
effectively automated by facilitating access to and processing of a
broad range of filing fee calculation-related information, saving
filers and the Commission resources by reducing the need to manually
access the relevant data or confirm it with filers.\12\
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\11\ This would include information that today is included in a
text-only format, and some information prepared by filers but the
disclosure of which is currently optional.
\12\ As part of submitting the filing, the EDGARLink Online
program requires filers to manually enter a limited number of basic
filing fee calculation components such as amount being registered,
proposed maximum offering price per unit or in the aggregate and,
where applicable, offset amount, which become part of the filing's
header. EDGARLink Online then performs a filing fee rate calculation
based on that information. EDGAR's filing fee applications will
perform similar calculations using the filing fee-related
information that we are requiring to be tagged in Inline XBRL.
Eventually, this structured information may be used in these filing
fee applications to confirm that a claimed filing fee offset is
available based on the amount of remaining unsold securities
registered on a prior filing.
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The Commission proposed to require the use of Inline XBRL for the
structured data.\13\ The Commission noted that this format would result
in machine-readable data that could then be used to more effectively
automate the filing fee preparation, disclosure, assessment, and
verification processes.
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\13\ In 2009, the Commission adopted rules requiring operating
company financial statements and mutual fund risk/return summaries
to be submitted in XBRL entirely within an exhibit to a filing.
Interactive Data to Improve Financial Reporting, Release No. 33-9002
(Jan. 30, 2009) [74 FR 6776 (Feb. 10, 2009)] as corrected by Release
No. 33-9002A (Apr. 1, 2009) [74 FR 15666 (Apr. 7, 2009)]
(``Operating Company Financial Statement Tagging Release''). In
2018, the Commission refined the requirement by requiring, on a
phased-in basis, operating company and mutual fund filers to submit
this information using Inline XBRL, which embeds the tagged
information in the document itself, rather than in an exhibit. See
Inline XBRL Filing of Tagged Data, Release No. 33-10514 (June 28,
2018) [83 FR 40846 (Aug. 16, 2018)] (``Inline XBRL Release'').
Last year, the Commission adopted structured data reporting
requirements for variable annuity and variable life insurance
contracts, registered closed-end funds, and BDCs. See Updated
Disclosure Requirements and Summary Prospectus for Variable Annuity
and Variable Life Insurance Contracts, Investment Company Act
Release No. 33814 (Mar. 11, 2020) [85 FR 25964 (May 1, 2020)]
(``Variable Contract Summary Prospectus Adopting Release'')
(requiring variable contracts to use Inline XBRL to submit certain
required prospectus disclosures); Closed-End Fund Offering Reform
Adopting Release, supra note 2 (requiring BDCs to submit financial
statement information, and registered closed-end funds and BDCs to
tag registration statement cover page information and specified
prospectus disclosures using Inline XBRL).
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We are adopting the filing fee-bearing form content and structuring
amendments substantially as proposed with the following principal
modifications:
<bullet> To streamline the presentation of filing fee-related
information and potentially facilitate any future changes in the
structuring technology applied to it, the amendments move the filing
fee-related information to a separate exhibit document (``filing fee
exhibit'') rather than requiring it on the filing's cover page as
proposed and make related conforming changes;
<bullet> To facilitate filing fee determination, information
presentation, capacity tracking, and structuring and EDGAR validation,
the final rules will require more detailed tabular disclosure of
certain information that, under the proposal, registrants would have
presented in narrative format or in the header information for a
filing. The final rules will include tabular disclosure of any fee
offsets claimed by the registrant and tabular disclosure if the
registrant is filing a single prospectus that relates to two or more
registration statements;
<bullet> To take into account recent amendments made to Rule 424
and Forms S-1, S-3, F-1 and F-3 that enable certain issuers of
exchange-traded vehicle securities to register an indeterminate amount
of those securities and pay filing fees on an annual net basis,\14\
revise these and, as appropriate, other provisions to conform to the
other filing fee disclosure and payment methods amendments;
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\14\ See Closed-End Fund Offering Reform Adopting Release, supra
note 2.
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<bullet> To facilitate filing fee determination, information
presentation, and capacity tracking, revise Forms SF-1 and SF-3 to
conform their filing fee content and presentation requirements, as
applicable, to those of other fee-bearing forms we are amending and
permit (but not require) filers to submit the filing fee-related
information in Inline XBRL; and
<bullet> For consistency with our proposed approach regarding
certain Securities Act forms that require filing fee disclosures, but
which are filed relatively infrequently by issuers that may not
otherwise be subject to Commission structuring requirements, we are not
adopting the proposed content or structuring amendments for Form N-5.
The specific proposed and final form, schedule and related changes,
along with our consideration of public comments, are discussed in
detail below.
2. Affected Forms
a. Proposed Amendments
The Commission proposed to amend Forms S-1, S-3, S-4, S-8, S-11, F-
1, F-3, F-4, and F-10 under the Securities
[[Page 70169]]
Act \15\ and Schedules 13E-3,\16\ 13E-4F,\17\ 14A,\18\ 14C,\19\ TO,\20\
and 14D-1F \21\ under the Exchange Act (collectively, the ``Affected
Securities Act and Exchange Act Forms and Schedules'') and Exchange Act
Rule 13e-1 \22\ to require disclosure, and structuring of all
information necessary to calculate the filing fee. The Commission also
proposed to amend Forms N-2,\23\ N-5,\24\ and N-14 \25\ to require
filers to submit their filing fee information in a structured data
format. Specifically, the Commission proposed to require filers to
structure the filing fee-related information in the Affected Securities
Act and Exchange Act Forms and Schedules and Forms N-2, N-5, and N-14
in Inline XBRL.
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\15\ These forms are used by operating companies to register
offers and sales of securities under the Securities Act. They differ
primarily in regard to issuer and transaction eligibility
requirements, and location and nature of disclosure required.
\16\ Section 240.13e-3 (Rule 13e-3 under the Exchange Act)
requires an issuer or affiliate to file a Schedule 13E-3 when either
plans to engage in a transaction that could cause the loss of a
reporting obligation under the Exchange Act or loss of a national
securities exchange listing with respect to a class of the issuer's
equity securities.
\17\ Schedule 13E-4F may be filed instead of Schedule TO in
order to comply with Sec. 240.13e-4 (Rule 13e-4 under the Exchange
Act) where a Canadian operating company issuer meeting specified
requirements is subject to Exchange Act reporting requirements and
the issuer or, in limited circumstances, an affiliate makes a tender
offer related to a class of the issuer's equity securities.
\18\ Schedule 14A is required to be filed by an issuer or other
person or entity that solicits proxy authority with respect to
securities registered under Section 12 of the Exchange Act to comply
with Exchange Act Rules 14a-3 and 14a-6.
\19\ Schedule 14C is required to be filed by issuers to comply
with Sec. Sec. 240.14c-2 and 240.14c-5 (Exchange Act Rules 14c-2
and 14c-5) in connection with corporate actions to be authorized by
holders of securities registered under Section 12 of the Exchange
Act where no proxy authorization or consent is solicited on behalf
of the issuer for the corporate action to be taken.
\20\ Schedule TO is required to be filed by Exchange Act Rule
13e-4 and Sec. 240.14d-3 (Exchange Act Rule 14d-3) in connection
with a tender offer for a class of an issuer's equity securities
registered under Section 12 of the Exchange Act (if the tender offer
involves a going-private transaction, a combined Schedule TO and
Schedule 13E-3 may be filed with the Commission under cover of
Schedule TO).
\21\ Schedule 14D-1F can be used to satisfy requirements
otherwise applicable under Regulations 14D and 14E pursuant to Sec.
240.14d-1(b) (Exchange Act Rule 14d-1(b)) with respect to specified
Canadian operating company tender offer subjects.
\22\ Rule 13e-1 provides that an issuer that has received a
notice that it is the subject of a tender offer is prohibited from
purchasing any of its equity securities during the tender offer
unless the issuer first files a statement with the Commission
disclosing specified information related to the planned purchases
and pays a specified filing fee.
\23\ Form N-2 is used by closed-end management investment
companies to register under the Investment Company Act and to offer
their shares under the Securities Act. Form N-2 is also used by BDCs
to offer their shares under the Securities Act. A BDC is a type of
closed-end fund that does not register under the Investment Company
Act, but elects to be subject to the provisions of Sections 55
through 65 of the Investment Company Act. See Section 2(a)(48) of
the Investment Company Act.
\24\ Form N-5 is used by SBICs to register under the Investment
Company Act and to offer their shares under the Securities Act.
\25\ Form N-14 is used by management investment companies and
BDCs to register securities to be issued in certain types of
transactions, including certain fund mergers, under the Securities
Act. See General Instruction A to Form N-14 for a list of the
transactions for which the securities to be issued must be
registered on Form N-14.
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b. Comments on the Proposed Amendments
As further discussed below,\26\ one commenter addressed the scope
of fee-bearing documents the Commission proposed to revise.\27\ The
commenter stated that the Commission should structure all fee-bearing
documents' filing fee information to enable consistency of preparation
and usage.
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\26\ See Section II.A.5 regarding the scope of the filing fee
bearing document proposed and final amendments.
\27\ See letter from XBRL US (Feb. 25, 2020) (``XBRL US''). The
commenter states that its members ``include accounting firms, public
companies, software, data and service providers, as well as other
nonprofits and standards organizations.''
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c. Final Amendments
We are adopting the amendments substantially as proposed but with
several modifications. Consistent with the proposal, we are amending
the Affected Securities Act and Exchange Act Forms and Schedules, Rule
13e-1, and Forms N-2 and N-14 to require disclosure and structuring of
all information necessary to calculate the filing fee. In a change from
the proposal, we are extending the content and location amendments, but
not the structuring amendments, to Forms SF-1 and SF-3.\28\ In another
change, for reasons similar to those for not applying the amended
filing fee disclosure and new structured data requirements to certain
other Securities Act forms, we are not adopting the proposed amendments
to Form N-5.\29\ We further discuss this modification and the comment
regarding the scope of the fee-bearing document amendments in Section
II.A.5.
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\28\ We are, however, permitting filers of Forms SF-1 and SF-3
to submit filing fee-related information in Inline XBRL. See Section
II.A.5 and Item 601(b)(107) of Regulation S-K, as adopted.
\29\ See Section II.A.5 regarding the scope of the fee bearing
document proposed and final amendments.
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3. Content and Location of Filing Fee Information
a. Proposed Amendments
Currently, filing fee-related information is presented primarily on
the cover page of fee-bearing filings, but also appears in a submission
header. Regardless of where it appears, however, the information
currently required to be disclosed does not always include all
components needed to calculate the filing fee and, as a result, the
Commission staff may need to contact the filer for more
information.\30\ The Commission proposed to require the cover page of
fee-bearing filings to include all of the information necessary to
calculate the filing fee,\31\ which would expedite staff review of
filing fee calculations, provide more certainty to filers that the
proper filing fee has been paid and reduce burdens on filers that
otherwise would need to respond to staff inquiries. As more fully
described in the Proposing Release, the proposed amendments would
further these objectives by:
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\30\ As previously noted, EDGARLink Online requires filers to
manually enter basic filing fee calculation components and then
performs a filing fee rate calculation on that basis. The basic
filing fee calculation components, however, may themselves be based
on calculations using information that is not disclosed. For
example, current Securities Act Rule 457(f) generally requires a
business combination transaction filing fee to be based on, as
applicable, (1) the market value of the securities to be received by
the registrant or cancelled in the transaction as established by one
of multiple specified methods; (2) cash to be received by the
registrant in connection with the transaction (the amount to be
added to the value of the securities to be received by the
registrant or cancelled); and (3) cash to be paid by the registrant
in connection with the exchange or transaction (the amount to be
deducted from the value of the securities to be received by the
registrant in connection with the transaction). Yet, neither Rule
457 nor, for example, Form S-4, commonly used to register business
combination transactions, expressly requires filing fee calculation-
specific disclosure beyond the title of each class of securities to
be registered, the amount to be registered, the proposed maximum
offering price per unit, and the amount of the filing fee.
\31\ For Rule 424, however, the Commission proposed to permit
this filing fee-related information to appear together anywhere
within a filing made pursuant to the rule.
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<bullet> Revising and adding filing fee tables;
<bullet> Adding, clarifying and otherwise revising instructions
regarding filing fee table presentation, calculations and related
disclosure content and presentation;
<bullet> Revising Rule 424(g) \32\ regarding the completeness and
location of filing
[[Page 70170]]
fee-related information in specified forms of prospectus; \33\
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\32\ Rule 424 specifies when an issuer must file a form of
prospectus in connection with a securities offering. Rule 424(g)
states that when that filing requirement applies and the form of
prospectus operates to reflect the payment of filing fees for an
offering under Rule 456(b) [17 CFR 230.456(b)] of the Securities
Act, the form of prospectus must include on its cover page the
calculation of filing fee table reflecting the payment of those
fees. Rule 456(b), in turn, provides that under specified conditions
a well-known seasoned issuer that registers securities on an
automatic shelf registration statement may defer a filing fee
payment until it is required to file the related prospectus
supplement under Rule 424(b).
\33\ Proposed instructions to each filing fee table required by
Rule 424(g) could have required the filer to disclose explanatory
information to accompany the filing fee table, such as cash paid or
received by a registrant in connection with a business combination
transaction that is relevant to filing fee calculation. As a result,
the Commission proposed to revise Rule 424(g) to require the filing
to include the filing fee table and information required by the form
instructions to the filing fee table, and to require all of this
information in a structured format. This proposed requirement could
have caused more information to be required on the prospectus cover
page and, as a result, displace information that is more appropriate
for the cover page. For this reason, the Commission also proposed to
revise Rule 424(g) to permit the filing fee-related information to
appear anywhere within the prospectus as long as it appears
together.
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<bullet> Revising the instructions to Forms S-3 \34\ and F-3 \35\
to provide that:
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\34\ General Instruction II.F of Form S-3.
\35\ General Instruction II.G of Form F-3.
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[cir] Information specified by the proposed term ``General
Interactive Data File,'' described below, must appear in a prospectus
filed under Rule 424(b) or post-effective amendment rather than a
periodic report that is incorporated by reference into the registration
statement to avoid extending the filing fee structured information
requirements to periodic and current reports; \36\
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\36\ An issuer otherwise could continue to include transaction-
specific information in a periodic or current report to the same
extent it can do so under current provisions.
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[cir] Each post-effective amendment or final prospectus filed
pursuant to Rule 424(b) to provide required information about a
specific transaction must include the maximum aggregate amount or
maximum aggregate offering price of the securities to which the post-
effective amendment or prospectus relates and each such prospectus must
indicate that it is a final prospectus for the related offering to
assist in calculation of the amount of securities sold;
<bullet> Revising the instructions to Forms S-4 \37\ and F-4 \38\
to provide that:
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\37\ General Instruction H of Form S-4. We also proposed to
revise the first sentence of General Instruction H to conform it to
the second sentence and General Instruction F of Form F-4 by
replacing the word ``or'' with the word ``and'' where the sentence
currently refers to ``required information about the type of
contemplated transaction or the company to be acquired.''
\38\ General Instruction F of Form F-4.
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[cir] Each post-effective amendment or, if permitted, final
prospectus supplement filed under Rule 424(b) to provide required
information about a specific transaction and particular company being
acquired, must include the maximum aggregate amount or maximum
aggregate offering price of the securities to which the post-effective
amendment or prospectus relates;
[cir] Each such prospectus must indicate that it is a final
prospectus for the related offering to assist in calculation of the
amount of securities sold; and
<bullet> Revising the proposed instructions related to reliance on
Securities Act Rule 415(a)(6),\39\ Sec. 230.429 (Securities Act Rule
429),\40\ and Securities Act Rules 457(b) \41\ and 457(p),\42\ and
Exchange Act Rule 0-11(a)(2) \43\ to require disclosure related to,
among other things, prior filing identification, unsold securities,
maximum aggregate offering amount, and previously paid filing fees, as
applicable. The Commission believed that this information, which was
also proposed to be subject to structuring requirements, would enable
filers and the Commission staff to better track permitted fee offsets
and the amount of securities sold for which filing fees have been
paid.\44\
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\39\ Rule 415(a)(6) provides, in general, that under specified
circumstances an issuer may include on a new registration statement
(i.e., carry forward) unsold securities covered by its earlier
registration statement and the offering of securities on the earlier
registration statement will be deemed terminated as of the
effectiveness of the new registration statement. Any filing fee paid
in connection with such unsold securities will continue to be
applied to such unsold securities on the new registration statement.
\40\ Rule 429 provides that where a registrant has filed two or
more registration statements, it may file a single prospectus in its
latest registration statement to satisfy applicable requirements for
that offering and any other offering(s) registered on the earlier
registration statement(s). Rule 429 also provides that where a
registrant does so, the registration statement containing the
combined prospectus shall act, upon effectiveness, as a post-
effective amendment to any earlier registration statement whose
prospectus has been combined in the latest registration statement.
Finally, Rule 429 states that the registrant must identify any
earlier registration statement to which the combined prospectus
relates by setting forth the Commission file number at the bottom of
the facing page of the latest registration statement.
\41\ Rule 457(b) relates to crediting filing fees paid under one
filing fee provision against those due under another filing fee
provision for the same transaction.
\42\ Rule 457(p) provides that where all or some of the
securities offered under a registration statement remain unsold
after the offering's completion or termination, or withdrawal of the
registration statement, the aggregate total dollar amount of the
filing fee associated with those unsold securities may be offset
against the total filing fee due for a later registration statement
or registration statements subject to specified conditions.
\43\ Rule 0-11(a)(2) also relates to crediting filing fees paid
under one filing fee provision against those due under another
filing fee provision for the same transaction.
\44\ Relatedly, Rule 457(p) requires that a filer claiming an
offset from a previous registration statement add a note to the
later registration statement's filing fee table stating the dollar
amount of the filing fee previously paid that is offset, the file
number of the earlier registration statement from which the filing
fee is offset, and the name of the registrant appearing on, and the
initial filing date of, the earlier registration statement. To help
assure that the amount of offset the filer seeks to apply is
available from the earlier registration statement, the Commission
proposed that, in addition, the note would have to disclose the
amount of unsold securities or unsold aggregate offering amount from
the prior registration statement associated with the claimed offset.
Finally, the Commission proposed to require the note to state that
the registrant has withdrawn the prior registration statement or
terminated or completed any offering that included the unsold
securities associated with the claimed offset under the earlier
registration statement so that it is clear that these conditions
have been met.
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b. Comments on the Proposed Amendments
A commenter stated that centralizing the filing fee information
would reduce the number of places the Commission would need to look for
the information and as a result, facilitate automated review and,
because the filer would need to enter the information only once, likely
improve the accuracy of the information and its preparation speed.\45\
The commenter also stated that automated review could improve the
validity and timeliness of analysis. No commenters opposed the proposed
amendments regarding the content and location of fee information.
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\45\ See letter from XBRL US.
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c. Final Amendments
i. Summary of Amendments
We are adopting the amendments substantially as proposed with
modifications to enhance their operation. Consistent with the
Commission's prior view, we believe that requiring certain fee-bearing
filings to include all of the information necessary to calculate the
filing fee, will expedite staff review of filing fee calculations,
provide more certainty to filers that the proper filing fee has been
paid and reduce burdens on filers that otherwise would need to respond
to staff inquiries. After further consideration, however, we believe
that it would be better to require the filing fee-related information
in a separate filing fee exhibit rather than on the cover page.\46\ We
believe this approach will streamline presentation of the information
and potentially facilitate future changes in structuring technology
that may be applied to it.\47\
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\46\ Rule 424(g) requires that a prospectus filed under Rule 424
include any filing fee-related information on the cover page. The
Commission proposed, however, to amend Rule 424 to permit this
filing fee-related information to appear together anywhere within a
filing made pursuant to the rule. As further discussed in Section
II.A.3, the revision we are adopting to Rule 424(g) to require this
filing fee-related information in an exhibit to the prospectus,
obviates the need for this proposal.
\47\ It may be easier for the Commission to change the
structuring technology applicable to a separate exhibit than to a
main document to which one or more other technologies may continue
to apply because of the greater simplicity of having a single format
to consider and address.
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[[Page 70171]]
Specifically, the final amendments, substantially similar to the
proposals except where noted, will make the following changes, as
applicable: \48\
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\48\ Some of the final amendments will not affect all of the
fee-bearing filings within the scope of this release. For example,
final amendments related to Rule 457(f) will not apply to Form S-8,
which is used for employee benefit plan-related securities
offerings, or to Form N-2, because these forms do not involve
business combination or other transactions, which Rule 457(f)
addresses. Although fee-bearing filings under the Securities Act and
Exchange Act are used for different types of offerings and
transactions, under the final amendments, consistent with the
proposals, they will all contain some of the same or highly similar
filing fee table categories to facilitate comparisons and
structuring. In a change from the proposal, the affected fee-bearing
documents under the Exchange Act will not expressly require tabular
disclosure of the title of each class of securities to which the
related transaction applies. Additional tailored disclosure will
still be required as applicable. Likewise, amended Forms N-2 and N-
14 will also contain, with some modifications, the same filing fee-
related content requirements we are adopting for the Affected
Securities Act and Exchange Act Forms and Schedules.
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<bullet> Require filing fee-related information to appear in a
filing fee exhibit rather than on the cover page of each of the
Affected Securities Act and Exchange Act Forms and Schedules, Rule 13e-
1, Forms SF-1 and SF-3,\49\ and Forms N-2 and N-14.
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\49\ For the reasons discussed in Section II.A.5 regarding the
scope of the amendments, in a change from the proposal, we are
revising the filing fee-related information content and location
requirements of Forms SF-1 and SF-3 similar to the way we are
revising the Affected Securities Act and Exchange Act Forms and
Schedules, but not subjecting the filing fee-related information to
structuring requirements except at the filer's option.
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<bullet> To facilitate filing fee determination, information
presentation, capacity tracking, and structuring and EDGAR validation,
add columns to the basic filing fee table for registration forms \50\
to indicate: The type of security being newly registered or carried
forward; \51\ the registration form type, file number, and initial
effective date of one or more previously filed registration statements
associated with any unsold securities that the registrant is carrying
forward; fees paid in connection with amendments; and entries for total
offering amounts, the total amount of fee offsets and the total fee due
net of fee offsets and any previously paid amounts;
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\50\ See in the relevant forms, Table 1: Newly Registered and
Carry Forward Securities. These columns and related instructions are
being added in a change from the proposal further discussed below.
\51\ The instructions to the filing fee tables specify the
following security types: Asset-backed securities, debt, debt
convertible into equity, equity, exchange-traded vehicle securities;
face amount certificates; limited partnership interests, mortgage-
backed securities, non-convertible debt, other, or unallocated
(universal) shelf.
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<bullet> To require most of the filing fee calculation information
to be presented in tabular rather than narrative format, add new tables
\52\ to provide disclosure regarding any fee offsets claimed by the
registrant that are derived under Rule 457(b) and (p) and Rule 0-
11(a)(2) and disclosure related to any reliance on Rule 429 to file a
single prospectus that relates to two or more registration statements;
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\52\ See in the relevant forms, Table 2: Fee Offset Claims and
Sources, and Table 3: Combined Prospectuses. The tables are being
added in a change from the proposal further discussed below.
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<bullet> Add a ``fee rate'' column to the filing fee table of the
Affected Securities Act and Exchange Act Forms and Schedules, as well
as to Forms SF-1 and SF-3 and Forms N-2 and N-14;
<bullet> Revise filing fee tables in Schedules 13E-3 and TO and add
filing fee tables to Schedules 13E-4F, 14A, 14C, and 14D-1F to require
filers to present basic filing fee calculation information in a table,
and, in a change from the proposal, information about any claimed
offsets in a separate table; \53\
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\53\ As amended, the filing fee tables for Schedules 13E-3, 13E-
4F, TO, and 14D-1F will have the column headings ``Transaction
Valuation,'' ``Fee rate,'' and ``Amount of filing fee'' and columns
to differentiate between previously paid fees and fees being paid in
connection with the current filing. Also as amended, the filing fee
tables for Schedules 14A and 14C will have similar column headings.
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<bullet> Add or clarify instructions regarding filing fee table
presentation, calculations and related disclosure content and
presentation \54\ in general \55\ and, in particular, associated with
Rule 415(a)(6), Rule 429, Rule 457(a), (b), (f),\56\ (h), (o), (p),\57\
and (u),\58\ Rule 0-11(a)(2), and transaction valuation, as applicable,
in regard to the Affected Securities Act and Exchange Act Forms and
Schedules as well as Forms SF-1, SF-3,\59\ N-2 and N-14,\60\ or
involving
[[Page 70172]]
business combination or employee benefit plan filing fee calculations.
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\54\ All of the Affected Securities Act and Exchange Act Forms
and Schedules and Forms N-2 and N-14, as amended, will include a new
filing fee table instruction that will require all filing fee-
related disclosure required by the filing fee table instructions,
but not included in the filing fee table, to immediately follow the
filing fee table to which it corresponds. See, e.g., Instruction 1.D
to the Calculation of Filing Fee Tables in Item 16(c) of Form S-1.
\55\ For example, the final amendments will add two instructions
to the Securities Act forms and Forms N-2 and N-14 subject to the
location and content amendments, as applicable, that address pre-
effective amendments. In a change from the proposal, one will
provide that when a registrant increases the amount of securities of
any class to be registered, it must continue to disclose in Table 1
the information it previously disclosed in a separate category to
effectively distinguish the newly added securities. See, e.g.,
Instruction 2.A.i to the Calculation of Filing Fee Tables in Item
16(c) of Form S-1 and Instruction 2.A.i to Item 25.2.s of Form N-2.
As proposed, the registrant would have been required to disclose
some of that information in narrative format. As further discussed
in Section II.C, the other will provide that when a registrant files
a pre-effective amendment to concurrently (i) increase the amount of
securities of one or more registered classes or add one or more new
classes of securities; and (ii) decrease the amount of securities of
one or more registered classes, it may, unless it previously relied
on Rule 457(o) to calculate the fee, reflect any such increase and
decrease in the filing fee table, recalculate the total filing fee
due for the registration statement in its entirety and claim an
offset pursuant to Rule 457(b) in the amount of the filing fee
previously paid in connection with the registration statement. See,
e.g., Instruction 2.A.iv to the Calculation of Filing Fee Tables in
Item 16(c) of Form S-1 and Instruction 2.A.iv of Item 25.2.s of Form
N-2.
\56\ We are adopting a modified version of proposed Instruction
1 to the Instructions to the ``Calculation of Registration Fee''
Table and Related Disclosure of Forms S-1, S-4, S-11, F-1, F-4, and
N-14 to conform it more closely to Rule 457(f). See, e.g.,
Instruction 2.A.ii.b to the Calculation of Filing Fee Tables in Item
16(c) of Form S-1.
\57\ In a change from the proposed filing fee table instructions
relating to Rule 457(p), we refer to the filing fee previously paid
for unsold securities under an earlier filed, rather than effective,
registration statement to be consistent with the term used in the
rule.
\58\ We are adopting modified versions of the proposals related
to each of Forms S-1, S-3, F-1 and F-3 to add a new instruction
regarding filing fee-related disclosure in connection with offerings
of an indeterminate amount of exchange-traded vehicle securities, as
that term is defined in Securities Act Rule 405 (17 CFR 230.405),
and net deferred filing fee payment. In the Closed-End Fund Offering
Reform Adopting Release, the Commission adopted amendments to, among
other things, permit issuers to elect under Securities Act Rule
456(d) to register an offering of an indeterminate amount of
exchange-traded vehicle securities and pay registration fees for the
offering on an annual net basis no later than 90 days after the end
of the fiscal year. Concurrently, the Commission adopted Securities
Act Rule 457(u), which sets forth the calculation method for paying
registration fees in this manner. At the same time, the Commission
adopted amendments to the fee table notes to Forms S-1, S-3, F-1,
and F-3 to require specified disclosure for an offering made in
reliance on Rules 456(d) and 457(u). The additions of Rules 456(d)
and 457(u) and the related form text became effective on August 1,
2021. We are including this new form text by adding Instruction
2.A.ii.d to the Calculation of Filing Fee Tables in Item 16(c) of
Form S-1, Item 16(b) of Form S-3, Item 8(c) of Form F-1, and Item
9(b) of Form F-3.
\59\ Compared to the other fee-bearing documents providing for
Rule 457(p)-based filing fee offset claims, Forms SF-1 and SF-3
contemplate such claims by a broader range of registrants that were
not the registrant under the earlier registration statement. New
Note 2 to Instructions 3.C.i to the Calculation of Filing Fee Tables
in Item 14(b) of Forms SF-1 and SF-3, respectively, also provide for
a claim by an ``other registrant eligible to claim a filing fee
offset.'' The broader language reflects the Commission's previous
statement that ``ABS issuers opting to pay the required registration
fees with each takedown could rely upon Rule 457(p) to apply a
portion of the fee associated with the unsold securities under a
previously-filed registration statement as an offset against the
filing fee due at the time of the preliminary prospectus filing by
the same depositor or affiliates of the depositor across asset
classes.'' See Asset-Backed Securities (``ABS'') Release, infra note
90.
\60\ All of the Affected Securities Act and Exchange Act Forms
and Schedules other than Form F-10, as well as Forms N-2 and N-14,
currently are subject to Rule 457, in the case of forms under the
Securities Act, or Rule 0-11, in the case of schedules under the
Exchange Act. General Instruction II.B of Form F-10, provides,
however, that the rules comprising Regulation C under the Securities
Act, including Rule 457, do not apply to filings on the form unless
expressly referenced. Form F-10 does not expressly reference Rule
457. Instead, it presents its own filing fee calculation provisions
in General Instructions II.G--II.I. These instructions require
payment at the same rate applicable under Rule 457 and set forth how
to calculate the filing fee in connection with an exchange offer or
business combination. From time to time, filings on Form F-10 have
raised filing fee issues that are not addressed by these
instructions. In those cases, the staff typically has resolved these
issues by applying principles derived from otherwise applicable
provisions of Rule 457. Consistent with that historic approach, the
final amendments will revise General Instruction II.G to make all
but paragraph (f) of Rule 457 expressly applicable to filings on
Form F-10. Consistent with the changes being made to the other
Securities Act forms that require specified information underlying a
Rule 457(f) fee calculation, the Commission is adding Instructions
2.A.ii.b and c to the Calculation of Filing Fee Tables in paragraph
(107) to Part II of Form F-10 to require analogous information
underlying a filing fee calculation under General Instructions II.H
and II.I, respectively. In a change from the proposal, to further
conform new paragraphs 2.A.ii.b and c to the analogous provisions of
the other Securities Act forms and clarify the information required,
we have added to both instructions the requirement that the
valuation explanation include the value per share of the securities
that may be received by the registrant or cancelled upon the
issuance of securities registered on the form or the value per share
of the equity securities of the predecessor companies held by U.S.
residents being offered the registrant's securities, as applicable.
In addition, the final amendments more closely conform the language
of new paragraphs 2.A.ii.b and c to General Instructions II.H and
II.I, respectively.
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<bullet> Add filing fee tables and calculation disclosure
requirements to Exchange Act Rule 13e-1; \61\
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\61\ As adopted, the filing fee tables and related instructions
to be added to Rule 13e-1 will be substantially similar to the
filing fee tables and related instructions that will be present in
Schedules 13E-3, 13E-4F, TO, and 14D-1F as amended.
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<bullet> Revise Rule 424(g) so that the form of prospectus that
reflects the amount of a pay-as-you-go registration fee under Rule
456(b) \62\ or, in relation to Form SF-3, Rule 456(c),\63\ also
includes all filing fee information needed for filing fee calculation
and not just the currently required registration fee table, and to
require all of this information to be located in a filing fee exhibit
rather than, as proposed, on the prospectus cover page or anywhere else
in the filing so long as it is kept together; \64\
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\62\ Rule 456(b) permits a well-known seasoned issuer that
registers securities offerings on an automatic shelf registration
statement, or registers additional securities or classes of
securities thereon, to defer payment of all or any part of the
registration fee to the Commission if the registrant satisfies the
conditions specified in Rule 456(b)(1)(i) and (ii).
\63\ Rule 456(c) permits an ABS issuer that registers ABS on
Form SF-3 to defer payment of all or any part of the registration
fee to the Commission if the registrant satisfies the conditions
specified in Rule 456(c)(1)(i) and (ii). We are adopting a modified
version of the proposed revision to Rule 424(g) by adding a
reference to Rule 456(c) consistent with the modification of Form
SF-3 to conform its content and presentation requirements to those
of similar forms this adopting release addresses.
\64\ We also are revising Rule 456(b) and (c) to conform them to
Rule 424(g) as amended. Rule 456(b)(1)(ii) provides that in
connection with a deferred filing fee payment, a filer must place an
updated filing fee table in a post-effective amendment or on the
cover page of a prospectus filed under Rule 424(b). Similarly, Rule
456(c)(1)(ii) provides that in connection with a deferred filing fee
payment, a filer must place an updated filing fee table on the cover
page of a prospectus filed under 424(h). As revised, Rule
456(b)(1)(ii) and (c)(1)(ii) will instead require a filer placing
the updated filing fee table in a prospectus to do so in the manner
Rule 424(g) specifies.
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<bullet> Revise the General Instructions to Forms S-3,\65\ F-3,\66\
and SF-3 \67\ to provide that:
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\65\ General Instruction II.F of Form S-3.
\66\ General Instruction II.G of Form F-3.
\67\ General Instruction II.D of Form SF-3.
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[cir] Information specified by each form's filing fee exhibit
requirements or Rule 424(g) related to a specific transaction must
appear in a filing fee exhibit to a post-effective amendment or
prospectus filed under Rule 424(b) or (h),\68\ as applicable, rather
than a periodic report that is incorporated by reference into the
registration statement; and
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\68\ A filing fee exhibit to a prospectus will be a part of the
prospectus for liability and other purposes just as deferred fee
filing information is today when provided pursuant to Rule 456(b) or
(c). The filing fee exhibit to a prospectus, however, will be
required to be submitted as an attachment for EDGAR filing purposes
as will be further specified in the EDGAR Filer Manual.
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[cir] Each post-effective amendment or final prospectus filed
pursuant to Rule 424(b) to provide required information about a
specific transaction must include in a filing fee exhibit the maximum
aggregate amount or maximum aggregate offering price of the securities
to which the post-effective amendment or prospectus relates and each
such prospectus must indicate in the exhibit that it is a final
prospectus for the related offering to assist in calculation of the
amount of securities being sold;
<bullet> Revise the General Instructions to Form N-2 \69\ to
provide that:
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\69\ General Instruction C of Form N-2.
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[cir] Funds that register securities under the Securities Act on
Form N-2 must include a filing fee exhibit, except interval funds,
which are required to pay registration fees on Form 24F-2; \70\
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\70\ General Instruction C.1 of Form N-2.
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[cir] Where securities are being registered pursuant to General
Instruction A.2, information specified by Item 25.2.s of Form N-2 or
Rule 424(g) related to a specific transaction must appear in a filing
fee exhibit to a post-effective amendment or prospectus filed under
Rule 424(b); \71\ and
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\71\ General Instruction C.2 of Form N-2.
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[cir] Each post-effective amendment or final prospectus filed
pursuant to Rule 424(b) to provide required information about a
specific transaction must include in a filing fee exhibit the maximum
aggregate amount or maximum aggregate offering price of the securities
to which the post-effective amendment or prospectus relates, and each
such prospectus must indicate in the exhibit that it is a final
prospectus for the related offering;
<bullet> Revise the General Instruction to Form N-14 \72\ to
provide that funds must include a filing fee exhibit, except funds that
pay registration fees on an annual net basis pursuant to Rule 24f-2
under the Investment Company Act, which are required to pay
registration fees on Form 24F-2; and
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\72\ General Instruction B of Form N-14.
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<bullet> Revise the General Instructions to Forms S-4 \73\ and F-4
\74\ to provide that each post-effective amendment or, if permitted,
final prospectus supplement filed under Rule 424(b) to provide required
information about a specific transaction and particular company being
acquired, must include in a filing fee exhibit the maximum aggregate
amount or maximum aggregate offering price of the securities to which
the post-effective amendment or prospectus relates and each such
prospectus must indicate in a filing fee exhibit that it is a final
prospectus for the related offering.
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\73\ General Instruction H of Form S-4. We also are revising the
first sentence of General Instruction H to conform it to the second
sentence and General Instruction F of Form F-4 by replacing the word
``or'' with the word ``and'' where the sentence currently refers to
``required information about the type of contemplated transaction or
the company to be acquired.''
\74\ General Instruction F of Form F-4.
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ii. Filing Fee Exhibit Requirements
As noted above, in a change from the proposal, we are moving the
filing fee-related information from a filing's cover page to an exhibit
to the filing because we believe this approach will streamline
presentation of the information and potentially facilitate future
changes in structuring technology applied to it.\75\
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\75\ We have made corresponding revisions to several rule
provisions that were premised in the proposing release on filing
fee-related information appearing on the cover page of a
registration statement. Securities Act Rule 415(a)(6) provides that,
when a filer carries forward securities to a new registration
statement, it must identify on the bottom of the cover page of the
new registration statement or the latest amendment to it, the amount
of securities carried forward and any filing fee paid in connection
with those securities. We are revising Rule 415(a)(6) to provide
that such information must appear on the cover unless expressly
required elsewhere in the filing. Securities Act Rule 473(a), in
general, specifies a form of amendment that delays the effectiveness
of a registration statement until the registrant files a specified
further amendment or the Commission declares the registration
statement effective. Rule 473(c) requires a filer that includes such
a delaying amendment to place it on the cover of the registration
statement following the fee-related information. As a result of
moving the filing fee-related information from the cover page to an
exhibit of most fee-bearing Securities Act forms, we are revising
Rule 473(c) to permit the delaying amendment to appear anywhere on
the cover page. In addition, we are adopting revisions to fee-
bearing form instructions that permit filers registering additional
securities under Sec. 230.462(b) (Securities Act Rule 462(b)) to
file an abbreviated format registration statement that includes a
cover page and certain other specified information. We are revising
these instructions to include filing-fee related information. See
General Instruction V of Form S-1, General Instruction IV.A of Form
S-3, General Instruction G of Form S-11, General Instruction K of
Form S-4, General Instruction V of Form F-1, General Instruction
IV.A of Form F-3, General Instruction H of Form F-4, and General
Instruction III of Forms SF-1 and SF-3.
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[[Page 70173]]
For the Securities Act forms that refer to the exhibit requirements
in Item 601 of Regulation S-K, the filing fee-related information
exhibit requirement will be established by a combination of a new Item
601(b)(107) of Regulation S-K and the following new provisions: Item
16(c) of Form S-1, Item 16(b) of Form S-3, Item 8(b) of Form S-8, Item
36(c) of Form S-11, Item 21(d) of Form S-4, Item 8.c of Form F-1, Item
9(b) of Form F-3, Item 21(d) of Form F-4, Item 14(b) of Form SF-1, and
Item 14(b) of Form SF-3. Since Form F-10 does not refer to Item 601,
the filing fee-related information exhibit requirement will appear in
new paragraph (107) of Part II of that form.\76\
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\76\ As further discussed below, the Commission proposed to add
a row (107) to the exhibit table in Item 601(a) of Regulation S-K
and a paragraph (107) to Item 601(b) to require Forms S-1, S-3, S-4,
S-8, S-11, F-1, F-3, and F-4 to include a General Interactive Data
File and, as a result, require each form to include its filing fee-
related information in structured format. Similarly, the Commission
proposed to add a new paragraph (107) to Part II--Information Not
Required to be Delivered to Offerees or Purchasers of Form F-10 to
require a General Interactive Data File. In changes from these
proposals discussed below, we are directly imposing the structuring
requirement on these forms' filing fee exhibits' contents, other
than Form F-10's, through Item 601(b)(107) and on Form F-10's
through paragraph (107) to Part II--Information Not Required to be
Delivered to Offerees or Purchasers of Form F-10. This change
removes the reason for the proposal to require structuring by
reference to the new term ``General Interactive Data File''.
Consequently, we are not revising Rule 11 of Regulation S-T to add
that term. See Section II.A.4 regarding adoption of the structuring
requirement.
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The Exchange Act schedules and Rule 13e-1 will require the filing
fee exhibit through the following new provisions: Item 16(b) of
Schedule 13E-3, paragraph (4) of Part II of Schedule 13E-4F, Item 25(b)
of Schedule 14A, Item 12(b) of Schedule TO, paragraph (4) of Part II of
Schedule 14D-1F and Rule 13e-1(a)(7).\77\ Because the Schedule 14A
filing fee information requirement will appear in a new item of that
schedule and Item 1 of Schedule 14C generally requires compliance with
relevant items of Schedule 14A, we are revising Schedule 14C to replace
the current detailed filing fee-related information requirements with a
cross-reference to Item 25(b) of Schedule 14A.
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\77\ These provisions also will directly impose a structuring
requirement on filing fee exhibits' contents rather than, as
proposed, require filing fee-related information structuring by
reference to the term ``General Interactive Data File.'' See Section
II.A.4.
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iii. Changes to Forms N-2 and N-14
In a change from the proposal, we are modifying certain aspects of
the content and location requirements for Forms N-2 and N-14. We
solicited comment on whether the proposed requirements were sufficient
to centralize relevant information, or whether there were other ways we
could facilitate the fee process for filers. We also asked whether we
should apply the proposed filing fee content and structuring
requirements to the proposed filing types, or whether the scope should
include more or less types of filings. In response, we received a
comment stating that we should structure all fee-bearing documents' fee
information to enable consistency of preparation and usage.\78\
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\78\ See letter from XBRL US.
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Consistent with our overarching goal of enabling more efficient
automated access to, and processing of, information relevant to fee
calculation, in a change from the proposal we are adopting amendments
to Forms N-2 and N-14 that generally mirror, as applicable, the
centralized filing fee table presentation, calculation and related
disclosure requirements that were proposed for the Affected Securities
Act and Exchange Act Forms and Schedules. We believe this approach will
promote consistency of presentation and usage of affected fee-bearing
forms, and provide greater clarity to fund registrants regarding how to
comply with the filing fee-related content requirements without adding
new substantive requirements.
In another change from the proposal, amended Forms N-12 and N-14
also will require the filing fee exhibit, which will be implemented
through revisions to the General Instructions for Registration Fees in
both of these forms,\79\ and the addition of the following provisions:
Item 25.2.s of Form N-2, and paragraph 18 of Item 16 of Form N-14.
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\79\ General Instruction C of Form N-2; General Instruction B of
Form N-14.
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Not all fund registrants will be required to provide the new filing
fee exhibits. For example, certain investment companies, including
mutual funds, exchange-traded funds, unit investment trusts--and most
recently, interval funds-- are deemed to have registered an indefinite
number of securities under Section 24(f) of the Investment Company Act
and required by Rule 24f-2 to pay registration fees on an annual net
basis using Form 24F-2.\80\ Forms N-2 and N-14 currently do not require
such registrants to provide Calculation of Filing Fee tables in their
registration statements.\81\ Consistent with this approach, registrants
that pay registration fees using Form 24F-2 will not be required to
provide the filing fee exhibit for Forms N-2 or N-14. While SBICs may
register securities under the Securities Act on Form N-14, based on
their filing history, we do not expect to see many, if any, such
filings.\82\ Accordingly, we believe that registered closed-end funds
(that are not interval funds) and BDCs are the only types of funds
likely to be subject to the Form N-2 and N-14 filing fee exhibit
requirements at this time.
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\80\ The Commission recently expanded the group of issuers
subject to filing on Form 24F-2 to include interval funds. See
Closed-End Fund Offering Reform Adopting Release, supra note 2.
\81\ Unlike Form N-2, Form N-14 currently requires funds that
pay registration fees on Form 24F-2 to ``provide the Title of
Securities Being Registered and state that no filing fee is due
because of reliance on Section 24(f).'' Because the EDGAR Filer
Manual already requires funds to disclose their status as Form 24F-2
filers in the header for Form N-2 and Form N-14, and to harmonize
the forms, we are eliminating this instruction from Form N-14.
\82\ Based on staff review of Commission filings, a SBIC has not
filed on Form N-14 for at least 20 years.
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iv. Other Changes to Rules and Instructions
A new instruction relating to Rule 429 reliance will require an
issuer relying on that rule to disclose in a combined prospectus table
the file number(s) of the earlier effective registration statement(s),
the form type(s) and initial effective date(s), the amount or maximum
aggregate offering price of unsold securities registered on the earlier
registration statement(s) that may be offered and sold using the
combined prospectus and the securities' type and class title.\83\ We
believe that requiring
[[Page 70174]]
this information, which will also be subject to structuring
requirements, will enable filers and the Commission staff to better
track the amount of securities sold for which filing fees have been
paid.
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\83\ Because funds can also rely on Rule 429, in a change from
the proposal we are amending Forms N-2 and N-14 to mirror the
parallel instruction we are adopting for the Affected Securities Act
and Exchange Act Forms and Schedules. See Instruction 4 to Item
25.2.s of Form N-2; Instruction 4 to paragraph 18 of Item 16 of Form
N-14. In a related change, we are also making a technical correction
to General Instruction B of Form N-14 to clarify that all form
registrants, not just open-end management companies, as currently
stated, may rely on Rule 429. In another change from the proposal,
we are adding the requirements for form type, initial effective date
and the securities type and class title.
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For the same reason, we are amending the Affected Securities Act
and Exchange Act Forms and Schedules for which Rule 415(a)(6) is
potentially available, as proposed, as well as Forms SF-3 and N-2, to
require that a filer relying on that rule disclose the number of
securities, or, if the related filing fee was calculated in reliance on
Rule 457(o), the maximum aggregate offering amount; the file number of
the earlier registration statement; the initial effective date of the
earlier registration statement; and the filing fee previously paid in
connection with the unsold securities being carried forward.\84\
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\84\ Rule 415(a)(6) currently requires that a filer using the
rule identify on the bottom of the facing page of the later
registration statement the amount of unsold securities being
included and any filing fee paid in connection with those
securities. We are amending the current reference to information
that must appear on the cover page, as discussed above. See supra
note 75. Although an instruction referencing Rule 415(a)(6) was not
proposed with respect to Form N-2, certain Form N-2 registrants can
rely on Rule 415(a)(6) so we are adding an instruction to the Form
N-2 filing fee exhibit that parallels the new instruction
referencing Rule 415(a)(6) in similar forms. See Instruction 2.B to
Item 25.2.s of Form N-2. In a modification to the proposal to better
enable tracking, the filer also will be required to disclose the
form type of the earlier registration statement and the securities'
type and class title.
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Also for the same reason, the amendments will require those filing
Affected Securities Act and Exchange Act Forms and Schedules,
statements under Rule 13e-1, and Forms SF-1, SF-3, N-2 and N-14 that
rely on Rule 457(b) or Rule 0-11(a)(2) to disclose the dollar amount of
the filing fee to be offset, the type of filing or form type, file
number, and initial filing date of the earlier registration statement
or Exchange Act filing from which the filing fee offset is claimed.\85\
If the filer is claiming an offset from an earlier Securities Act
registration statement, the amendments also will require the filer to
provide a detailed explanation regarding the claimed offset.\86\ In a
change from the proposal, this fee offset claim information will be
required in Table 2, which also will require information about the
original sources (``fee offset sources'') to which the fee offsets
claimed can be traced.\87\ The fee offset source requirements in Table
2 for Rule 457(b) and 0-11(a) fee offset claims are registrant or filer
name, form or filing type, file number, filing date and fee paid with
fee offset source.\88\
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\85\ We are adopting these amendments largely as proposed,
except with respect to Forms SF-1, SF-3, N-2 and N-14, for which
parallel modifications were not proposed but we are adopting to
conform these forms to similar forms being amended. See, e.g.,
Instruction 3 to Item 16 of Form S-1; Instruction 3 to Item 25.2.s
of Form N-2.
\86\ This disclosure will be required when a filer claims an
offset from a Securities Act registration statement under Rule
457(b) or Rule 0-11(a)(2) because the transaction linkage between
the document being filed and the Securities Act registration
statement may be less readily apparent than when an offset is
claimed from a transactional Exchange Act filing.
\87\ For example, if a filer on Schedule TO claims an offset
under Rule 0-11(a)(2) from a Form S-4 it filed, and the filer did
not make a contemporaneous fee payment when it filed the Form S-4
because it claimed a fee offset under Rule 457(p) from a Form S-3 it
filed that went effective as initially filed and with which it made
a contemporaneous payment, the filer would cite to the Form S-3
filing as the fee offset source. More detailed discussion and
examples of fee offset source identification will be located in the
affected fee-bearing forms and schedules. See, e.g., Instruction 3
to the Calculation of Filing Fee Tables in Item 16(c) of Form S-1.
\88\ Fee offset source information currently is required in a
header when a filer claims a fee offset. When a filer claims a fee
offset under Rule 457(b) or (p) or Rule 0-11(a)(2), it is required
to provide in the header the following information about the fee
offset source: The Central Index Key (``CIK'') of the filer, form
type, file number, filing date, and amount of fee contemporaneously
paid.
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Rule 457(p) generally requires that a filer claiming an offset from
a previous registration statement add a note to the later registration
statement's filing fee table stating the dollar amount of the filing
fee offset claim against the currently due filing fee, the file number
of the earlier registration statement from which the filing fee offset
is claimed, and the name of the registrant appearing on, and the
initial filing date of, the earlier registration statement. To help
assure that the amount a filer claims as an offset from a previous
registration statement is available, we are amending Rule 457(p) to
require disclosure of the amount of unsold securities or unsold
aggregate offering amount from the prior registration statement
associated with the claimed offset, as proposed.\89\ In addition,
consistent with the proposal, the amendments will require the note to
state that the registrant has withdrawn the prior registration
statement or terminated or completed any offering that included the
unsold securities associated with the claimed offset under the earlier
registration statement so that it is clear that these conditions have
been met.\90\ As proposed, the parallel disclosure requirement will
appear in the filing fee table instructions of the Affected Securities
Act and Exchange Act Forms and Schedules, as well as Forms SF-1, SF-3,
N-2 and N-14,\91\ and the resulting disclosure will have to be
presented in the Inline XBRL structured format as applicable.\92\ In a
change from the proposal further discussed below, the filing fee table
instructions of these forms and schedules will, however, require in
tabular format and a note to a new fee offset claim table the resulting
disclosure and all disclosure currently required by Rule 457(p).\93\
For this reason, we are also amending Rule 457(p) to provide that the
information it requires in connection with a fee offset claim must be
provided in a note as currently required unless expressly required in
another part of the registration statement.
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\89\ Final Rule 457(p)(2).
\90\ Final Rule 457(p)(5). The adopted changes will not affect
the Commission's position that asset-backed securities issuers could
apply unused filing fees in connection with a preliminary prospectus
filing toward a future takedown off the same registration statement.
See Asset-Backed Securities Disclosure and Registration, Release No.
33-9638 (Sept. 4, 2014) [79 FR 57184 (Sept. 24, 2014)] as corrected
by Release No. 33-9638A (Nov. 3, 2014) [79 FR 66607 (Nov. 10,
2014)].
\91\ Although though not specifically proposed with respect to
Forms N-2 and N-14, we are amending these forms to include the new
instruction for issuers that seek to rely on Rule 457(p) for
conformance with similar forms being amended. See Instruction 3.C to
Item 25.2.s of Form N-2; Instruction 3.C to paragraph 18 of Item 16
of Form N-14.
\92\ As previously noted, we are not extending the structuring
requirements to Forms SF-1 and SF-3 but will permit filers on these
forms to structure their filing fee-related information. See Item
601(b)(107) of Regulation S-K.
\93\ In a further change from the proposal, the affected forms
and schedules will require in tabular format slightly more
information about Rule 457(p) fee offset claims and the same fee
offset source information that will be required in connection with a
Rule 457(b) or 0-11(a)(2) fee offset claim as described above. The
tables will also require the form or filing type of the earlier
registration statement from which the fee offset is claimed and the
type and title of the unsold securities or unsold aggregate offering
amount associated with the fee offset claimed. We believe this
additional information will help validate the fee offset claims.
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General Instructions II.F, II.G, and II.D of Forms S-3, F-3, and
SF-3, respectively, currently require that, when information is omitted
from certain shelf registration statements at the time of initial
effectiveness, the issuer must provide information about a specific
transaction in a prospectus filed under Rule 424(b) or (h), post-
effective amendment or periodic or current report incorporated by
reference into the registration statement, as applicable. Registered
closed-end funds and BDCs that file a short-form shelf registration
statement on Form N-2 are subject to the same requirement pursuant to
General Instruction A.2 of Form N-2. In a change from the proposal, the
filing fee exhibit requirements that pertain to the forms will specify
the filing fee-related information that a filer must
[[Page 70175]]
structure.\94\ Similarly, the amendments revise Forms S-3 and F-3 to
require that in relation to a specific transaction, an issuer include
any information specified by (i) Item 16(b) of Form S-3 or Rule 424(g);
or (ii) Item 9(b) of Form F-3 or Rule 424(g),\95\ respectively, in a
prospectus filed under Rule 424(b), or post-effective amendment, as
applicable, to avoid extending the filing fee structured information
requirements to periodic and current reports,\96\ as proposed. For the
same reason, we are further modifying the proposals by adopting similar
amendments to Forms SF-3 and N-2.\97\ In another change from the
proposal, for the reasons stated at the outset of this section, the
amendments also specify that the information must be in a filing fee
exhibit.
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\94\ As proposed, the information to be structured would have
been specified by reference to the term ``General Interactive Data
File.''
\95\ The references to these items and Rule 424(g) equate to and
replace the proposed references to the superseded term ``General
Interactive Data File'' and do not otherwise constitute a change
from the proposal.
\96\ The specified provisions set forth filing fee exhibit
content requirements. An issuer otherwise can continue to include
transaction-specific information in a periodic or current report to
the same extent it can do so under current provisions.
\97\ Form N-2 was recently amended to allow eligible registered
closed-end funds and BDCs to file a short-form shelf registration
statement consistent with the approach available to operating
companies that file on Form S-3. See Closed-End Fund Offering Reform
Adopting Release, supra note 2. To avoid having to mirror in Form N-
2 all of the language in Form S-3 needed for the preparation and
filing of automatic and non-automatic shelf registration statements,
Form N-2 provides cross-references to the relevant provisions of
Form S-3, including General Instruction II.F, which apply, as
applicable, to funds that seek to file a short-form shelf
registration statement. See Notes to General Instructions A.2 and B
of Form N-2. To clarify that Form N-2 filers are subject to the same
filing fee-related disclosure obligations we are requiring for
issuers that file on Form S-3, we are adding General Instruction
C.2.
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Consistent with the proposal, the amendments revise the same
instructions to Form S-3 and F-3 to require each post-effective
amendment or final prospectus that is filed pursuant to Rule 424(b) in
order to provide required information about a specific transaction to
include in a filing fee exhibit the maximum aggregate amount or maximum
aggregate offering price of the securities to which the post-effective
amendment or prospectus relates, and to require each such prospectus to
indicate that it is a final prospectus for the related offering.\98\ To
ensure consistency, we are adopting similar amendments to Forms SF-3
\99\ and N-2.\100\ We believe that requiring this information, which
will also be subject to the new structuring requirements, except as to
Form SF-3,\101\ will enable issuers and the Commission to better track
the amount of securities sold under a registration statement. Such
information will make it easier to determine amounts of unsold
securities available to bring forward to a new registration statement
under Rule 415(a)(6) and the amount of filing fees available for
offsets under Rules 457(p) and 0-11. We also believe requiring
registrants to indicate that a prospectus is final in a filing fee
exhibit subject to the new structuring requirements will help issuers
and the Commission identify the latest date by which filing fees
deferred under Rule 456(b) can be paid in compliance with the rule.
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\98\ To expressly require this maximum aggregate amount or
maximum aggregate offering price information in the filing fee-
related exhibit of a post-effective amendment, in a change from the
proposal, we are adding Instruction 1.D to the Calculation of Filing
Fee Tables in Item 16(b) of Form S-3 and Item 9(b) of Form F-3. To
expressly require this maximum aggregate amount or maximum aggregate
offering price and final prospectus information in the filing fee-
related exhibit of a final prospectus, we are revising Rule 424(g).
\99\ See General Instruction II.D of Form SF-3. To expressly
require this maximum aggregate amount or maximum aggregate offering
price information in the filing fee-related exhibit of a post-
effective amendment, we are adding Instruction 1.D to the
Calculation of Filing Fee Tables in Item 14(b) of Form SF-3. As
noted above, revised Rule 424(g) will expressly require this maximum
aggregate amount or maximum aggregate offering price and final
prospectus information in the filing fee-related exhibit of a final
prospectus.
\100\ See General Instruction C.2 of Form N-2.
\101\ Consequently, even if a filer previously filed and
structured filing fee-related information on Form S-3, F-3 or N-2,
such as a full filing fee table and explanatory material in an
initial filing, pre-effective amendment, or filing under paragraph
(b) of Rule 424, as applicable, it still will need to present and
structure this maximum aggregate amount or maximum aggregate
offering price and final prospectus information, as applicable, in a
filing fee-related exhibit of such a post-effective amendment or
final prospectus. Similarly, even if a filer previously filed fee-
related information on Form SF-3, such as a full filing fee table
and explanatory material in an initial filing, pre-effective
amendment, or filing under paragraph (h) of Rule 424, it still will
need to present this maximum aggregate amount or maximum aggregate
offering price and final prospectus information, as applicable, in a
filing fee-related exhibit of such a post-effective amendment or
final prospectus.
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General Instructions H and F of Forms S-4 and F-4, respectively,
currently require that when securities are offered in connection with a
business combination under Rule 415(a)(1)(viii) \102\ and information
is omitted at the time of initial effectiveness because it is
impractical to provide, the issuer must provide information about the
specific transaction and company acquired in the prospectus through a
post-effective amendment except that, in the case of Form S-4, under
specified circumstances, the issuer could instead use a prospectus
supplement. We are revising these instructions, consistent with the
proposal, to provide that each post-effective amendment or final
prospectus supplement filed to provide required information about a
specific transaction and particular company being acquired must include
in a filing fee exhibit the maximum aggregate amount or maximum
aggregate offering price of the securities to which the post-effective
amendment or prospectus relates, and each such prospectus must indicate
that it is a final prospectus for the related offering.\103\ As with
the analogous amendments adopted for Forms S-3 and F-3, we believe that
requiring this information, which will also be subject to the new
structuring requirements, will help issuers and the Commission better
track the amount of securities sold under a registration statement.
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\102\ Rule 415(a)(1)(viii) permits an issuer to register a
delayed or continuous offering of securities to be issued in
connection with business combination transactions.
\103\ To expressly require this maximum aggregate amount or
maximum aggregate offering price information in the filing fee-
related exhibit of a post-effective amendment, we are adding
Instruction 1.D to the Calculation of Filing Fee Tables in Item
21(d) of Forms S-4 and F-4 and renumbering the instructions that
follow accordingly. To expressly require this maximum aggregate
amount or maximum aggregate offering price and final prospectus
information in the filing fee-related exhibit of a prospectus, we
are revising Rule 424(g).
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New instructions to each filing fee table required by Rule 424(g)
may require the filer to disclose explanatory information to accompany
the filing fee table, such as cash paid or received by a registrant in
connection with a business combination transaction that is relevant to
filing fee calculation. As a result, we are revising Rule 424(g) to
require the filing to include the filing fee table and information
required by the form instructions to the filing fee table, and to
require all of this information in a structured format, as proposed. We
are also revising Rule 424(g) to replace the current requirement to
place the filing fee table on the cover page of the prospectus with a
requirement to place the filing fee table and related disclosure in a
separate filing fee exhibit.\104\
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\104\ This amendment to Rule 424(g) obviates the part of the
proposal that would have permitted this filing fee-related
information to appear together anywhere within the prospectus.
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d. Changes to the Proposed Filing Fee Tables and Instructions
We have made several changes to the proposed filing fee tables and
instructions to require filers to provide additional detail about their
filing fee
[[Page 70176]]
calculations in tabular format. The additional detail generally
consists of readily available information that filers already provide
under current header requirements and/or information that the filer
would already need to determine in order to calculate its fee.
Presentation of this information in tabular format will centralize
filing fee disclosure and facilitate providing, structuring and
analyzing filing fee data.
For example, we proposed to include a single registration fee table
in Form S-1 to require disclosure of the following:
<bullet> Title of each class of securities to be registered;
<bullet> Amount of securities to be registered;
<bullet> Proposed maximum offering price per unit;
<bullet> Proposed maximum aggregate offering price;
<bullet> Fee rate;
<bullet> Amount of registration fee; and
<bullet> The fee calculation-related rule or rules relied upon by
the registrant.
We are adopting an expanded version of that table, now called
``Table 1: Newly Registered and Carry Forward Securities,'' in addition
to two other tables, to disclose the additional detail needed to
calculate the filing fee in a centralized and more readily identifiable
format. Table 1, the first and most basic fee table, continues to
include the proposed disclosures about securities that the registrant
is newly registering but also calls for similar disclosures regarding
securities the registrant is carrying forward from one or more
previously filed registration statements. Table 1 requires additional
disclosure of the type of security being newly registered and carried
forward and the type and class of security being carried forward, to
the extent applicable. Table 1 also requires disclosure of the
registration form type, file number, and initial effective date of one
or more previously filed registration statements associated with any
unsold securities that the registrant is carrying forward and the
filing fee previously paid in connection with those unsold securities.
Finally, Table 1 adds entries for newly registered securities for which
fees were previously paid in connection with the initial filing or a
pre-effective amendment, total offering amounts, total fees previously
paid for newly registered securities, total fee offsets and total fee
due net of previously paid fees for newly registered securities and fee
offsets.
We are adding a new ``Table 2: Fee Offset Claims and Sources'' to
provide more detail regarding any fee offsets claimed by the registrant
that are derived under Rule 457(b) and (p) and Rule 0-11(a)(2). We
proposed to require most of the information regarding the carry forward
securities and fee offsets in narrative format, but upon further
consideration, we believe that the disclosure will be easier to
provide, structure and analyze if it is instead presented in tabular
format. The tabular format should better enable filers to understand
what is required and provide it in an organized manner that is more
conducive to structuring than narrative disclosure. It should be easier
to analyze the resulting information in human-readable form because it
will be more organized than in narrative form and generally consistent
across fee-bearing documents.
We also are adding a new ``Table 3: Combined Prospectuses'' that a
registrant will need to include if relying on Rule 429 to file a single
prospectus that relates to two or more registration statements. We
proposed to require the Table 3 information in narrative format, but
upon further consideration, we believe that tabular disclosure is
preferable for Table 3 for the same reasons it will be preferable for
Table 1. We have reorganized and added instructions to the tables to
assist registrants in completing the fee tables. Forms S-3, S-4, S-8,
S-11, F-1, F-3, F-4, F-10, N-2, and N-14 include these same three fee
tables.
In a change from the proposal, we also have made some changes to
the Exchange Act forms and schedules to provide the disclosure in an
improved format. For example, we have added to the basic fee table,
Table 1, entries to differentiate between the transaction valuation
associated with fees previously paid and fees to be paid in connection
with the current filing. Another change is to require Table 1 to
include certain totals such as the transaction valuation, fee amounts,
fees previously paid, fee offsets claimed and the fee due net of fee
offsets and fees paid with an initial filing or previous
amendments.\105\ We are adding a new Table 2 to provide the same type
of detail as the Securities Act forms regarding any fee offsets claimed
by the filer that are derived under Rule 0-11(a)(2) in lieu of proposed
narrative disclosure requirements.
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\105\ We proposed that the Exchange Act fee-bearing documents
other than Schedules 14A and 14C include the title of each class of
securities to which the transaction applies but upon further
consideration, we believe that information is not necessary.
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4. Structuring of Filing Fee-Related Information
a. Proposed Amendments
To facilitate the filing fee process, we proposed to require
structuring of all the filing fee-related information that would be
required on the cover page of the Affected Securities Act and Exchange
Act Forms and Schedules and statements under Rule 13e-1.\106\ We
believed that structuring the relevant data would greatly enhance the
ability of filers and Commission staff to quickly identify and correct
errors, as EDGAR's validation functionality would automatically check
the structured filing fee-related information for internal consistency,
including prior to submission of a live filing.\107\ As proposed, this
information would be structured in Inline XBRL for all affected
filings. The Proposing Release noted that Inline XBRL would be a
particularly useful method of structuring filing fee-related
information because: It eliminates the need to tag a copy of the
information in a separate document, as under traditional XBRL; \108\
Inline XBRL is consistent with the underlying format of all of the fee-
bearing forms the Commission proposed to structure; and it enables
automated analytical tools to extract the information sought wherever
it may be located within a filing.\109\
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\106\ Filing fee-related information in prospectuses filed under
Rule 424 and related to a registration statement under the
Securities Act subject to the structuring requirements also would be
required to be structured in Inline XBRL.
\107\ As detailed below, as implemented, EDGAR will validate
certain live filings prior to submission.
\108\ Inline XBRL allows filers to embed XBRL data directly into
a HyperText Markup Language (``HTML'') document, eliminating the
need to tag a copy of the information in a separate XBRL exhibit.
\109\ See Proposing Release, supra note 1, at Section II.A.
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As proposed, the structured information would include each filing
fee table in the Affected Securities Act and Exchange Act Forms and
Schedules and statements under Rule 13e-1, together with accompanying
explanatory disclosure, as well as other information specified by the
proposed Rule 11 definition of ``General Interactive Data File.'' We
proposed to define that term as the machine-readable computer code that
presents fee-related information required by the applicable rule
provision or particular form, statement or schedule, in Inline XBRL in
the manner provided by the EDGAR Filer Manual.
As more fully described in the Proposing Release, we proposed to
implement the structuring requirement for these forms, schedules and
[[Page 70177]]
statements through a new Item 601(b)(107) of Regulation S-K, the terms
of these forms, schedules and statements and a new Rule 424(i). As
proposed, the provisions would require these documents to include a
General Interactive Data File, and, as a result, require filing of
filing fee-related information in structured format.
Additionally, the Commission proposed to require structuring of the
information in each filing fee table of Forms N-2, N-5, and N-14. We
proposed to implement this requirement through amendments to Rule 405
of Regulation S-T \110\ and the General Instructions in these forms.
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\110\ See proposed Rules 405(b)(3), (4), and (5) of Regulation
S-T.
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b. Comments on the Proposed Amendments
Commenters expressed general support for the proposal to present
all filing fee-related information in a structured format.\111\ They
cited, among other reasons, the following:
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\111\ See letters from Brittany Jones (Nov. 4, 2019)
(``Jones''), Dominique Martinez (Nov. 7, 2019) (``Martinez''), XBRL
US, and XBRL US Regulatory Modernization Working Group (Oct. 8,
2020) (``XBRL US WG'').
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<bullet> Improved accuracy and disclosure; \112\
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\112\ See letter from Jones.
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<bullet> Increased confidence of registrants in the accuracy of
their calculated filing fees; \113\
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\113\ See letter from XBRL US.
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<bullet> Easier management by the Commission staff and filers of
complex calculations due to automation; \114\ and
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\114\ See letter from XBRL US WG.
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<bullet> Expected improved efficiencies in preparation, processing
and analysis.\115\
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\115\ See letter from XBRL US. The commenter cited several
reasons for expecting improved efficiencies, including eliminating
the need for the staff to manually review filing fee calculations.
We believe that the final amendments will reduce the need for the
staff to manually review filing fee calculations.
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Two commenters addressed several specific aspects of the proposal
\116\ and one of those commenters provided both its own views and the
views of XBRL preparation vendors it surveyed.\117\ These two
commenters expressed the following views on specific aspects of the
proposal: \118\
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\116\ See letters from XBRL US and XBRL US WG.
\117\ See letter from XBRL US.
\118\ Unless otherwise indicated, the views noted in the
remainder of this section were expressed in the letter from XBRL US.
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<bullet> Information to be Structured--
[cir] All filing fee information should be structured as proposed
to enable ease of validation.
<bullet> Structuring Format--
[cir] Inline XBRL structuring should be required for all filing fee
information as proposed because, among other reasons, it is machine-
readable and searchable (in both cases, clearly and consistently),
human readable, continually adapted to changing technology, able to be
generated in multiple forms (e.g., XML and HTML), and superior to XML
because XML would require the creation of additional structure to
consistently handle filing fee characteristics already included within
the Inline XBRL standard and a Commission-developed non-standard
structured data language would add to costs of preparation, collection
and analysis;
[cir] Forms N-2, N-5, and N-14 should be structured in Inline XBRL,
as proposed, for essentially the same reasons; and
[cir] The commenter cautioned that, while the Commission should
remain open to the possibility that a standard that improves upon XBRL
or Inline XBRL may be developed in the future, a switch to a different
standard could result in market uncertainty and uncertainty about how
data may need to be reported, and could increase the cost of tools and
data access.
<bullet> Pilot Structuring Program--
[cir] A pilot structuring program would be helpful. Most vendors
agreed, citing possible aid to program testing, gaining filing fee
tagging knowledge and making process changes, but a minority did not
agree, noting that XBRL requirements already are in place and a pilot
would delay the anticipated benefits; \119\ and
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\119\ Commenters also made specific suggestions about the timing
of a possible pilot program and vendor access to an EDGAR stage
level system for user acceptance testing, among other suggestions.
See letters from XBRL US and XBRL US WG. In a subsequent letter
dated Aug. 30, 2021, XBRL U.S. suggested that the Commission staff
publish the taxonomy to be used in conjunction with the proposed
structuring requirements as soon as possible.
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<bullet> Guidance--
[cir] The Commission should issue clear and consistent guidance for
filers and vendors to address all possible scenarios. For example, the
Commission should provide guidance on how to prepare a footnote when
there is an offset. If the Commission does not provide guidance, then
matters are likely to be handled in different ways.
<bullet> Additional Recommendations and Considerations
[cir] With filing fee information in structured format, the
Commission could add more features to improve the accuracy of the
calculation and facilitate the process and, as a result, the Commission
should consider the following suggestions:
<bullet> Prompt filers to provide additional required information
based on the rule reliance checkbox selected;
<bullet> Provide a mechanism through which a filer can run
automatic validation against filing fee calculation so it could correct
issues before submission; and
<bullet> Clarify how EDGAR will handle dual submission types (i.e.,
Inline XBRL structured filing fee information coupled with non-Inline
XBRL other information in the same filing).
c. Final Amendments
We are adopting the amendments largely as proposed with the changes
noted below that we believe will enhance their operation.\120\ We
continue to believe that structuring the relevant data will greatly
enhance the ability of filers and Commission staff to quickly identify
and correct errors, as EDGAR's validation functionality will
automatically check the structured filing fee-related information for
internal consistency. Filers that use the Commission-provided option
discussed below to construct structured filing fee-related information
within EDGAR generally will receive validation and resulting error and
warning messages before they submit both test and live filings.\121\
Filers that construct this structured information outside of EDGAR,
however, will receive validation and resulting error and warning
messages after they submit both test and live filings.\122\ While EDGAR
will automatically compute the filing fee due using the structured data
and validate the information submitted by the filer, validation
failures caused by incorrect or incomplete structured filing fee-
related information generally will result in a warning to filers and a
flag for staff follow-up, but EDGAR will accept the filing. However,
approximately three months after all filers are required to comply with
the
[[Page 70178]]
structured data requirement, the Commission will suspend filings rather
than issue warnings for incorrect or incomplete structured filing fee-
related information. Commission staff will provide advance notice of
the specific date of the change to filers. This approach largely
mirrors the current practice, where, for example, if certain
information such as the filing fee due is not provided, the filing is
suspended. Although we are extending this approach to more information
(i.e., any tagging errors or data omissions/errors in the filing fee
exhibit will trigger a suspension), we believe that delaying
suspensions until approximately three months after the last compliance
date will give filers an opportunity to gain experience with the new
tagging requirements and that--coupled with the availability of the new
filing fee tool--will increase accuracy and thus minimize suspensions.
We also believe that Inline XBRL will be a particularly useful method
of structuring filing fee-related information because it eliminates the
need to tag a copy of the disclosed information in a separate exhibit
(as would be the case under traditional XBRL), and because Inline XBRL
is consistent with the underlying format of the Affected Securities Act
Forms and Schedules and statements under Rule 13e-1, as well as Forms
N-2 and N-14.
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\120\ As noted above, we are adopting a modified version of the
proposals to permit filers of Forms SF-1 and SF-3 to submit filing
fee-related information in Inline XBRL. See Item 601(b)(107) of
Regulation S-K and Section II.A.5.
\121\ Validations that require access to information within the
EDGAR system and outside the filing, such as validations relating to
carry forwards and fee offsets, will not occur until after filing.
\122\ The ability to validate the filing fee calculation is
consistent with one commenter's suggestion to provide such a
mechanism through which a filer could run an automatic validation
against its filing fee calculation to enable it to correct issues
before submission. See letter from XBRL US. A filer constructing
structured information outside of EDGAR generally can obtain pre-
live submission error and warning messages by first submitting a
test filing. As noted in regard to filers that use the Commission-
provided option to construct the structured information, validations
that require access to information within the EDGAR system and
outside the filing, such as validations relating to carry forwards
and fee offsets, may not occur until after the test filing.
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To facilitate the filing fee process, the amendments require
structuring of all filing fee-related information in an exhibit to each
of the Affected Securities Act and Exchange Act Forms and Schedules and
statements under Rule 13e-1, as well as Forms N-2 and N-14.\123\ As
proposed, the structuring for all of these filings will be done in
Inline XBRL.
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\123\ Filing fee-related information in exhibits to prospectuses
filed under Rule 424 and related to a registration statement under
the Securities Act also will be required to be structured in Inline
XBRL.
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The structured information will include each filing fee table in
the Affected Securities Act and Exchange Act Forms and Schedules and
statements under Rule 13e-1 and Forms N-2 and N-14, together with
accompanying explanatory disclosure as well as other information
specified by the final filing fee exhibit requirements.\124\
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\124\ As discussed below, we are adopting a modified version of
the proposed approach by requiring Forms N-2 and N-14 to use the
same structured data tagging requirements that we are adopting for
similar Affected Securities Act and Exchange Act Forms and
Schedules.
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As previously noted in discussing the content and location
amendments, in a change from the proposal, the structuring requirements
will apply to the contents of the filing fee exhibits rather than to
information specified by the term ``General Interactive Data File.''
\125\ We proposed to structure the filing fee-related information by
reference to the term ``General Interactive Data File'' because the
term swept in information that could be dispersed throughout the body
of a filing and we believed the term provided a useful reference for an
exhibit that would contain solely contextual information about the
structured filing fee-related information.\126\ The change from the
proposal to centralize filing fee-related information in the filing fee
exhibit enables us to impose the structuring requirement directly on
the filing fee exhibit's content and, as a result, obviates the need
for the term ``General Interactive Data File'' to specify that
information. Based on the planned method of implementing the
structuring framework, there will be no need for contextual
information. Consequently, we are not revising Sec. 232.11 (Rule 11 of
Regulation S-T) to define the term ``General Interactive Data File.''
\127\
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\125\ See Section II.A.3.
\126\ Contextual information includes, for example, a tagged
amount's related fiscal period.
\127\ In another change to the proposals, Item 601(b)(107) will
permit but not require filing fee exhibits in Forms SF-1 and SF-3 to
be structured in Inline XBRL. See Section II.A.5.
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New Item 601(b)(107) of Regulation S-K, as adopted, will require
filers of Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, and F-4 to
structure their filing fee exhibits by submitting them as required by
new Rule 408 of Regulation S-T. Rule 408, in turn, requires the filing
fee exhibit to be submitted in Inline XBRL as provided by the EDGAR
Filer Manual. As adopted, the same requirement will apply to the
following by their terms or, in the case of prospectuses containing
specified filing fee-related information, by final Rules 424(g) and
(i): \128\
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\128\ In a conforming change from the proposal, we are not
adopting proposed Rule 424(i) because it would have imposed a
structuring requirement on filings pursuant to Rule 424(b) through
the term ``General Interactive Data File''. In a further
modification, we are instead adopting a revision to Rule 424(g) that
will impose filing fee information exhibit requirements on filings
pursuant to Rule 424 that reflect the payment of deferred fees under
Rule 456(b) or (c) or include the maximum aggregate amount or
maximum aggregate offering price of the securities to which the
prospectus relates and final prospectus status as required by
General Instruction II.F of Form S-3, General Instruction II.G of
Form F-3, General Instruction II.D of Form SF-3, and General
Instruction H of Form S-4. Revised Rule 424(g) also will impose
structuring requirements on all of these filings except for those
related to Form SF-3, which it will permit but not require to be
structured.
After the Commission issued the Proposing Release, it adopted a
new Rule 424(i), effective Aug. 1, 2020, in the Closed-End Fund
Offering Reform Adopting Release. Effective Aug. 1, 2021, Rule
456(d) requires issuers that rely on Rule 456(d) to elect to
register an offering of an indeterminate amount of exchange-traded
vehicle securities to file a prospectus in accordance with final
Rule 424(i). Rule 424(i) will require issuers to disclose specified
information about filing fees they deferred in reliance on
Securities Act Rule 456(d). In a conforming change, we are revising
Rule 424(i) to require the filing fee information it specifies
appear in an exhibit and be structured.
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<bullet> Form F-10; \129\
---------------------------------------------------------------------------
\129\ See paragraph (107) to Part II--Information Not Required
to be Delivered to Offerees or Purchasers of Form F-10.
---------------------------------------------------------------------------
<bullet> Prospectuses filed pursuant to Rule 424 containing filing
fee-related information for an offering under Rule 456(b) or (c) or the
maximum aggregate amount or maximum aggregate offering price and final
prospectus status information that the final amendments will require in
connection with certain Forms S-3, F-3, S-4, F-4, and N-2 regardless of
whether a filing fee payment is due, or the prospectus contains a
filing fee table; \130\
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\130\ Filings related to Forms SF-3 that contain the specified
information will be permitted but not required to structure the
filing fee exhibit.
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<bullet> Prospectuses filed in accordance with Rule 424(i);
<bullet> Statements under Rule 13e-1; \131\
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\131\ See paragraph (c) to Rule 13e-1.
---------------------------------------------------------------------------
<bullet> Schedules 13E-3,\132\ 13E-4F,\133\ TO,\134\ and 14D-1F;
\135\
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\132\ See paragraph B of the General Instructions of Schedule
13E-3.
\133\ See paragraph A(1) of Part II (Filing Instructions and
Fees) of the General Instructions of Schedule 13E-4F.
\134\ See Instruction 1.D to the Calculation of Filing Fee
Tables in new Item 12(b) of Schedule TO.
\135\ See Instruction 1.E to the Calculation of Filing Fee
Tables in new paragraph (4) under Part II--Information Not Required
To Be Sent To Shareholders of Schedule 14D-1F.
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<bullet> Fee-bearing Schedules 14A \136\ and 14C; \137\ and
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\136\ See Instruction 1.D to the Calculation of Filing Fee
Tables in new Item 25(b) of Schedule 14A.
\137\ See Item 1 of Schedule 14C. The Commission proposed to
revise the cover page of Schedule 14C to expressly require the
filing fee-related information that proposed Item 25(b) of Schedule
14A would require. This proposed revision is unnecessary because
Item 1 of Schedule 14C requires compliance with relevant items of
Schedule 14A, as applicable. We are, however, revising the Schedule
14C cover page to replace the checkbox text reference to a filing
fee computed on the ``table below'' per the applicable Exchange Act
filing fee rules with a reference to a filing fee computed on the
table in the exhibit required by Item 25(b) of Schedule 14A per Item
1 of Schedule 14C and the applicable Exchange Act fee rules.
---------------------------------------------------------------------------
<bullet> Forms N-2 and N-14.
Companies that file these documents often already will have
experience structuring Commission documents in Inline XBRL. Issuers
that file Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, F-4, F-10, N-2, and
N-14 \138\ generally are or
[[Page 70179]]
will be, as a result of the phase-in of various Inline XBRL
requirements or, in some cases, the need to file Exchange Act periodic
and current reports, required to file their financial statements in
Inline XBRL. For example, annual reports on Forms 10-K, 20-F, and 40-F,
quarterly reports on Form 10-Q, current reports on Form 8-K, and
reports on Form 6-K under the Exchange Act are or will be subject to
financial statement Inline XBRL tagging requirements.\139\ All of these
Exchange Act reports, other than Form 6-K, as well as Form N-2, also
are, or will be, subject to cover page structuring requirements.\140\
In some instances, entities that file fee-bearing documents that do not
currently require Inline XBRL already will have experience filing their
financial statements and Exchange Act cover page information in Inline
XBRL.\141\
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\138\ We anticipate that registered closed-end funds (that are
not interval funds) and BDCs will be the only Form N-14 filers
required to provide, and thus tag, the filing fee exhibit. The vast
majority of investment companies that file on Form N-14 pay
registration fees on Form 24F-2 and will not be subject to these
requirements.
\139\ For a general discussion of the financial statement
tagging requirements applicable to Securities Act and Exchange Act
forms, see Operating Company Financial Statement Tagging Release and
the Inline XBRL Release, supra note 13. The Commission recently
adopted amendments that, among other things, required BDCs to tag
their financial statements using Inline XBRL. See Closed-End Fund
Offering Reform, supra note 2.
\140\ For a general discussion of the Exchange Act report cover
page tagging requirements, see FAST Act Modernization and
Simplification of Regulation S-K, Release No. 33-10618 (Mar. 20,
2019) [84 FR 12674 (Apr. 2, 2019)] (``FAST Act Adopting Release'')
as corrected at 84 FR 13796 (Apr. 8, 2019) and FAST Act
Modernization and Simplification of Regulation S-K; Correction,
Release No. 33-10618A (Aug. 6, 2019) [84 FR 39966 (Aug. 13, 2019)]
(collectively, ``FAST Act Release''). Registered closed-end funds
and BDCs are also subject to Form N-2's cover page tagging
requirements. See Closed-End Fund Offering Reform, supra note 2.
\141\ For example, an issuer filing a Schedule 13E-3 with regard
to itself already would be subject to reporting obligations under
the Exchange Act and, as a result, very likely already be subject to
Inline XBRL financial statement and cover page structuring
requirements. Similarly, a registered closed-end fund or BDC that
files a registration statement on Form N-14 will already be subject
to Inline XBRL prospectus disclosure and cover page structuring
requirements.
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Additionally, we are adopting amendments that will, as proposed,
require investment companies to use Inline XBRL to structure the filing
fee-related information required in Forms N-2 and N-14. No commenter
specifically addressed the proposed approach for implementing the
filing fee structured data requirement for funds, other than to
recommend that we require funds to use Inline XBRL to tag all filing
fee-related information, as proposed.\142\ However, we believe that
requiring a consistent approach to the data tagging requirements for
similar forms with the same or similar disclosures will reduce
confusion and simplify the process for filers and Commission staff.
Accordingly, in a change from the proposal, we are not adopting the
proposed amendments to Rule 405 or Forms N-2 and N-14.\143\ Instead, we
are conforming the structured data requirements for Forms N-2 and N-14
to largely mirror the approach we are adopting for the Affected
Securities Act and Exchange Act Forms and Schedules. Specifically, we
are amending the General Instructions in Forms N-2 and N-14 to require
the specified filing fee exhibits to be submitted as structured data in
the manner provided by Rule 408 of Regulation S-T.\144\
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\142\ See letter from XBRL US.
\143\ In a change from the proposal, and to facilitate the
relocation of the filing fee table from the cover page to an
exhibit, we are amending Rule 405(b)(3)(ii) to remove the reference
to ``the Calculation of the Registration Fee table.''
\144\ General Instruction I.4 of Form N-2; General Instruction
H.1 of Form N-14.
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Consistent with the views of commenters \145\ and the XBRL vendors
that one of them surveyed \146\ favoring a pilot program and vendor
access to an EDGAR stage-level system for user acceptance testing, the
amendments will permit all filers to file their filing fee-related
information structured in Inline XBRL prior to the compliance date for
each category of filers \147\ and we will make available a separate
filing agent test system, respectively.\148\ Filers will be able to
file under the amendments once the EDGAR system has been modified to
accept filing fee-related information in Inline XBRL for all fee-
bearing documents subject to the amendments, which is anticipated to be
approximately six months before the earliest compliance date.\149\
Commission staff plans to make the taxonomy for the structured data
available close to the time that the filer agent system is opened for
testing. Notice of EDGAR system readiness to accept filing fee-related
information in Inline XBRL will be provided in a manner similar to
notices of taxonomy updates and EDGAR Filer Manual updates.\150\ We
believe that offering filers the option to file filing fee-related
information using Inline XBRL before the compliance date will enable
filers that are ready to transition to Inline XBRL to begin realizing
the benefits of doing so sooner. We also believe that this option and
the filing agent test system will enable vendors and filing agents
\151\ used by early adopters to gain valuable expertise that may help
facilitate the transition for filers that transition at a later time.
While neither the early compliance option nor the filing agent test
system is a formal pilot program, they should serve much the same
purpose of providing an opportunity to filers, filing agents and the
Commission to gain experience with the technical aspects of the new
rules. Filers that do not choose to file filing fee-related information
using Inline XBRL prior to the applicable compliance date will continue
to be required to submit the filing fee-related information in
compliance with the then applicable content and location requirements
in the same format as they do currently.\152\
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\145\ See letters from XBRL US and XBRL US WG.
\146\ See letter from XBRL US.
\147\ A filer that voluntarily chooses to structure a filing fee
exhibit before its compliance date, will still be free to structure
or not structure its filing fee exhibits until its compliance date.
\148\ Filing agents that are enrolled in the EDGAR Testing
Program will have the ability to access a separate system dedicated
to testing the filing fee exhibit submission requirements. We expect
this test system to be available no later than six months prior to
the compliance date for large accelerated filers.
\149\ One commenter suggested a pilot program of at least six
months before the first compliance date, during which time the EDGAR
system is able to successfully accept filings, to identify and
resolve unanticipated problems as early adopters make submissions.
See letter from XBRL US WG. Another commenter stated that the
vendors it surveyed suggested a pilot program of three to 12 months.
See letter from XBRL US.
\150\ See EDGAR News & Announcements at <a href="https://www.sec.gov/filergroup/announcements">https://www.sec.gov/filergroup/announcements</a> (retrieved Sept. 25, 2021).
\151\ Some of the vendors surveyed may also be what we refer to
as filing agents. See letter from XBRL US.
\152\ As further discussed in Section II.A.6.c, compliance with
the amended filing fee-related information content and location
requirements will be required before compliance with the structuring
requirements.
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We acknowledge a commenter's recommendation that we issue guidance
for filers and vendors to address all possible scenarios to avoid
having filers handle them in different ways.\153\ We believe the
amendments, as adopted, provide sufficient details to enable filers to
provide the information in a
[[Page 70180]]
consistent format. We plan, however, to monitor implementation and may
issue guidance or take other action as needed.
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\153\ See letter from XBRL US. The commenter asked, in
particular, that we clarify how EDGAR will handle submissions in
which some information is structured in Inline XBRL and other
information is not. EDGAR will continue to be able to process
submissions with multiple permitted formats. We note in this regard
that filing fee-related information currently is not permitted to be
submitted in XBRL (whether or not the tags appear separate from the
HTML information as in traditional XBRL or the tags are embedded in
the HTML as in Inline XBRL). We also note that under the final
amendments filers will not be permitted to submit filing fee-related
information in traditional XBRL but, rather, only in Inline XBRL.
Finally, we note that by the time filers are subject to filing fee-
related information structuring requirements, if they also are
subject to financial statement information structuring requirements,
they would be required to provide their financial statement
information in Inline rather than traditional XBRL.
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Currently, most types of EDGAR filings, including all of those
subject to the filing fee-related information structuring requirements,
are formed outside of Commission filer websites. Some EDGAR filings,
however, such as ownership reports on Forms 3,\154\ 4,\155\ and 5 \156\
and notices of exempt offerings of securities on Form D \157\ may be
filed using a Commission filer website within which the filer can
construct and submit these forms. The Commission will provide filers
the option to construct structured filing fee-related information
within EDGAR using a filing fee tagging tool that will include features
such as prompts, explanations, and automated calculations and produce a
filing fee exhibit in submission-ready format.\158\ This tool and these
features are consistent with a commenter's suggestion that because the
filing fee-related information will be structured, the Commission could
add features to improve the accuracy of calculation and facilitate the
process and, as a result, should consider prompting filers to provide
additional required information.\159\
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\154\ 17 CFR 249.103 and 274.202.
\155\ 17 CFR 249.104 and 274.203.
\156\ 17 CFR 249.105.
\157\ 17 CFR 239.500.
\158\ A filer using the tool will, however, remain responsible
for its output. A filer can opt to construct its disclosure without
use of the tool as, for example, filers do with respect to Inline
XBRL financial statement information.
\159\ See letter from XBRL US.
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5. Scope of Proposed Amendments
a. Proposed Amendments
The proposed content and structuring amendments described in
Sections and II.A.3 and II.A.4 above would apply to the Affected
Securities Act and Exchange Act Forms and Schedules, statements filed
under Rule 13e-1 and Forms N-2, N-5, and N-14. These amendments would
not apply, however, to Forms SF-1,\160\ SF-3,\161\ S-20,\162\ F-6,\163\
F-7,\164\ F-8,\165\ and F-80 \166\ under the Securities Act or foreign
government registration statements filed pursuant to Schedule B of the
Securities Act \167\ even though all of these are fee-bearing
documents.\168\ As the Proposing Release noted, relatively few of these
documents are filed with the Commission and the issuers that file them
may not otherwise be subject to Commission XBRL structuring
requirements.
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\160\ 17 CFR 239.44.
\161\ 17 CFR 239.45.
\162\ 17 CFR 239.20.
\163\ 17 CFR 239.36.
\164\ 17 CFR 239.37.
\165\ 17 CFR 239.38.
\166\ 17 CFR 239.41.
\167\ 15 U.S.C. 77aa.
\168\ As discussed above, we proposed to add row (107) to the
exhibit table in Item 601(a) of Regulation S-K and paragraph (107)
to Item 601(b) to require Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3,
and F-4 to include a General Interactive Data File and, as a result,
require each form to include its filing fee-related information in
structured format. The Proposing Release's exhibit table rule text
inadvertently included, however, check boxes for forms SF-1 and SF-3
indicating they would be subject to the structuring requirements.
Those errors have been corrected in the corresponding final rule
text of this adopting release.
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As the Proposing Release also noted, ABS issuers are required to
file on Forms SF-1 and SF-3 and, as a result, may be subject to
Commission requirements to structure information in XML.\169\ We did
not, however, propose to require any ABS issuers to structure filing
fee-related information in XML.\170\ As further discussed in the
Proposing Release and below, we believed that duplication of
information resulting from XML structuring would not contribute to
facilitating the primary benefits of structuring filing fee-related
information.
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\169\ Item 7(a) of Part I of each form requires the issuer to
disclose the information required by Sec. 229.1111 (Item 1111 of
Regulation AB). Item 1111(h) requires the issuer to file an ``Asset
Data File'' when the offering is based on an asset pool including
residential mortgages, commercial mortgages, automobile loans or
leases, debt securities, or resecuritizations of ABS. Rule 11 of
Regulation S-T defines the term ``Asset Data File'' as the machine-
readable computer code that presents information in XML pursuant to
Item 1111(h).
\170\ The Commission estimated that during calendar year 2020, 4
of 14 unique filers of at least one Form SF-1 or SF-3 were subject
to the XML requirement. ABS issuers are not subject to financial
statement structuring requirements. See Inline XBRL Release, supra
note 13 at n.6
---------------------------------------------------------------------------
b. Comments on the Proposed Amendments
As noted above, one commenter addressed the scope of fee-bearing
documents that we proposed to revise and stated that we should
structure all fee-bearing documents' fee information to enable
consistency of preparation and usage.\171\
---------------------------------------------------------------------------
\171\ See letter from XBRL US.
---------------------------------------------------------------------------
c. Final Amendments
We are adopting content and structuring amendments that apply to
substantially the same scope of fee-bearing documents as proposed with
modifications intended to extend the benefits of the content amendments
and make the benefits of the structuring amendments available to
similar forms. The content and structuring amendments will apply, as
proposed, to the Affected Securities Act and Exchange Act Forms and
Schedules, and statements filed under Rule 13e-1. These amendments will
also apply to Forms N-2 and N-14, but, in a change from the proposal,
not to Form N-5.
Consistent with the proposed rules, the amendments will not apply
to Forms S-20, F-6, F-7, F-8, and F-80 or foreign government
registration statements filed pursuant to Schedule B and the
structuring requirement amendments will not apply to Forms SF-1 and SF-
3. As noted in the Proposing Release and above, relatively few of these
documents are filed with the Commission and the issuers that file them
may not otherwise be subject to Commission structuring requirements.
For the same reasons, and in a change from the proposal, we are not
adopting the proposed amendments to Form N-5.\172\
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\172\ None of the comment letters we received discussed Form N-
5. However, based on staff review of Commission filings, Form N-5
has only been filed four times since 2005 (and not at all since
2013). Of these, three filings were submitted by SBICs that are
subsidiaries of BDCs and never made a public offering, and the other
SBIC de-registered last year. In addition, SBICs are not currently
required to use Inline XBRL to tag information on other Commission
forms.
---------------------------------------------------------------------------
Although some ABS issuers already are subject to XML structuring
requirements, we are not adopting amendments to require any ABS issuers
to structure filing fee-related information in XML. A filer structuring
filing fee-related information in XML would need to enter it twice--
once in HTML and once in the XML document.\173\ The manual process of
entering the same data elements in more than one place increases the
possibility of filer errors, such as re-keying errors or errors where
information is modified in one location but not the other. Presenting
filing fee-related information in Inline XBRL will eliminate the need
to enter duplicate filing fee information and enable the planned
removal over time of the duplicate filing fee information requirements
and, as a result, the possibility of inconsistent filing fee
information between different parts of the filing.\174\
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\173\ In contrast, a filer structuring in Inline XBRL need only
enter it once in HTML.
\174\ See supra Section I.
---------------------------------------------------------------------------
Due to these factors, we believe that the potential gains from
extending the mandated content and structuring amendments to these
documents would not justify the burdens.
In a change from the proposal, however, we are extending the
amendments' content and location, but not structuring, requirements to
Forms SF-1 and SF-3 to conform them to the other Securities Act forms
subject to the
[[Page 70181]]
amendments.\175\ Based on the similarity between Forms SF-1 and SF-3 on
the one hand, and the other Securities Act forms subject to the
amendments on the other, we believe the conforming amendments will
similarly facilitate filing fee determination, information
presentation, and capacity tracking with respect to Forms SF-1 and SF-
3.
---------------------------------------------------------------------------
\175\ See supra Section II.A.5 for a discussion of extending the
content and location requirements to Forms SF-1 and SF-3.
---------------------------------------------------------------------------
We acknowledge the comment stating that we should structure all
fee-bearing documents' fee information to enable consistency of
preparation and usage.\176\ In order to do this, we would first have to
extend both the content and location amendments to all fee-bearing
documents, not just those that we proposed to amend. Due to the factors
stated above, we believe that the potential gains from extending these
amendments to the additional forms would not justify the burdens. We
also believe, however, that because we are extending the content and
location requirements to Forms SF-1 and SF-3, we should permit these
filers to obtain the benefits of structuring the filing fee-related
information if they choose and are revising the proposal to do so.\177\
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\176\ See letter from XBRL US.
\177\ See Item 14(b) of Forms SF-1 and SF-3.
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6. Transition Period
a. Proposed Amendments
The Commission proposed to phase in the structuring requirements
over time but otherwise require compliance upon effectiveness of the
rules. As proposed, filers would be categorized into large accelerated
filers, accelerated filers and all other filers (including all
investment companies filing registration statements on Forms N-2, N-5,
and N-14) and required to comply with the structuring requirements
beginning with filings submitted on or after 18, 30, and 42 months
after the requirements' effectiveness, respectively.\178\ As further
discussed in the Proposing Release, this approach was intended to
facilitate the transition of filers to the structuring requirements
that would apply to filing fees and related information.
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\178\ For purposes of these transition provisions, the terms
``large accelerated filer'' and ``accelerated filer'' are defined in
Sec. 240.12b-2 (Exchange Act Rule 12b-2). Rule 12b-2 defines a
large accelerated filer as an issuer that as of specified times has
an aggregate public float over $700 million, has been subject to
Exchange Act reporting requirements for at least a year, has filed
at least one Exchange Act annual report and is not able to use
certain ``smaller reporting company'' provisions. Rule 12b-2
similarly defines accelerated filer but with a public float between
$75 million and $700 million.
---------------------------------------------------------------------------
b. Comments on the Proposed Amendments
One commenter, on its own behalf and on behalf of XBRL vendors it
surveyed, addressed the proposed phase-in.\179\
---------------------------------------------------------------------------
\179\ See letter from XBRL US.
---------------------------------------------------------------------------
The commenter reported that the vendors were split on whether
first-time XBRL filers should have a longer phase-in, as well as the
value of a phase-in for smaller reporting companies. It stated that
some vendors thought a phase-in for first-time XBRL filers was
unnecessary due to cost and burden reductions over time, marketplace
developments and adequate filer resources while others thought these
filers should have more time to identify appropriate resources and gain
an internal skillset. It further stated that a slight majority of
vendors favored a phase-in for smaller reporting companies based on
their relatively limited resources while the rest opposed one, citing
lowered XBRL burden in general, the fact that smaller reporting
companies will be reporting in Inline XBRL anyway by the time filing
fee structuring is in place, that filing fee tagging would be a minor
addition and providing a single compliance date for all companies would
reduce confusion for filers, vendors and data users.
The commenter stated that investment companies that have not
previously filed XBRL should have additional time to transition and
cited a need to develop XBRL preparation tools and become knowledgeable
about the XBRL process.
Finally, the commenter stated that that non-XBRL filers may have
more significant challenges the first time they file their EDGAR
submissions in XBRL format. The commenter reported that a majority of
the vendors indicated that filers may need to engage additional
departments such as legal and compliance, and one vendor stated that,
if an error is identified by the issuer in the fee or fee calculation
table, it may be necessary for the issuer to undertake an internal
approval process because the error could not be corrected simply by re-
entering information in the submission header.
---------------------------------------------------------------------------
\180\ The requirement to structure filing fee exhibits in
filings submitted on or after the relevant compliance date applies
regardless of whether previous related filings were submitted prior
to the compliance date and did not contain a structured filing fee
exhibit. For example, if a filer initially filed a registration
statement on Form S-1 without a structured filing fee exhibit before
its compliance date and filed a pre-effective amendment registering
additional securities after that date, the filer will be required to
structure the filing fee exhibit in that pre-effective amendment.
Similarly, if a shelf registration statement was filed on Form S-3
without a structured filing fee exhibit that went effective before
the filer's compliance date and the filer then filed a related
prospectus under Rule 424(b) with a filing fee exhibit after the
filer's compliance date, the filer must structure the filing fee
exhibit. Also similarly, if a Schedule TO was filed without a
structured filing fee exhibit before the filer's compliance date and
the filer then filed an amendment to the Schedule TO to increase the
transaction value after the filer's compliance date, the amended
Schedule TO must include a structured filing fee exhibit.
---------------------------------------------------------------------------
c. Final Amendments
We are adopting a phase-in period but modifying some of the
proposed phase-in categories and compliance dates. As proposed, we are
phasing in the requirements over time starting with large accelerated
filers. In a change from the proposal, we are delaying their compliance
date from 18 to 30 months after the requirements' effectiveness.
Similarly, in a change from the proposal, we are delaying the
compliance date for accelerated filers from 30 to 42 months after the
requirements' effectiveness. As a result of delaying the compliance
date for accelerated filers, they will fall within the same category as
investment companies that file registration statements on Forms N-2 and
N-14 and all other filers. We are adopting these delays because of the
required system development's breadth and technical complexity and to
provide additional time for filers to have the option to structure
their filing fee exhibits before being required to do so and for filing
agents to test the system. Consequently, the structuring requirements
will be phased in over time as follows but compliance with the other
requirements will be mandatory upon the requirements' effectiveness:
------------------------------------------------------------------------
Filer Compliance date \180\
------------------------------------------------------------------------
Large accelerated filers............... Filings submitted on or after
30 months after the
requirements' effectiveness
(July 31, 2024).
Accelerated filers, certain investment Filings submitted on or after
companies that file registration 42 months after the
statements on Forms N-2 and N-14, and requirements' effectiveness
all other filers. (July 31, 2025).
------------------------------------------------------------------------
[[Page 70182]]
Consistent with the Proposing Release, we believe that this
approach will facilitate the transition of filers to the structuring
requirements that will apply to filing fees and related information. It
is intended to ease the cost of transition for smaller filers and
filers that have not previously been required to provide filings using
Inline XBRL.\181\ Because any fixed cost of initial transition will
disproportionately burden smaller filers, this approach will give these
filers time to develop related expertise, as well as the opportunity to
benefit from the experience of larger filers with the structuring
requirements. The phase-in might also provide filing agents and
software vendors whose main customers are smaller filers with
additional time to develop the needed technology and related expertise.
We recognize that divergent views on the phase-in were expressed in the
comments, with some favoring and others opposed to more time for first-
time XBRL filers and for smaller reporting companies. We believe that
the phase-in process will provide an appropriate time for filers to
transition and is unlikely to cause significant confusion.
---------------------------------------------------------------------------
\181\ All domestic and foreign operating company filers subject
to financial statement XBRL requirements will be phased in to the
Inline XBRL requirements for this information by the time they will
be required to comply with the adopted filing fee-related
information structuring requirements. For the related phase-in
schedule, see Inline XBRL Release, supra note 13.
---------------------------------------------------------------------------
Finally, as noted above, filers will be permitted to file the
structured information prior to the compliance date for their category.
B. Fee Payment Process
1. Proposed Amendments
The Commission proposed to amend Rule 202.3a (``Rule 3a'') of the
Commission's Informal and other Procedures as well as Rule 111 under
the Securities Act, Rule 0-9 under the Exchange Act and Rule 0-8 under
the Investment Company Act to add the option for payment of filing fees
via ACH.\182\ The Commission also proposed to eliminate the option for
payment of these fees via paper checks and money orders.
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\182\ The proposed amendments also would revise Rule 13 under
Regulation S-T to reflect the fact that payments would be permitted
via ACH. In addition, the proposed amendments would revise Item 9 of
Form 24F-2 to replace ``Mail or other means'' with ``ACH'' as a
registration fee delivery option.
The Proposing Release discussed the challenges the Commission
understood that foreign filers may have with paying by wire transfer
or ACH. The Commission noted, among other challenges, that foreign
filers often use the ``SWIFT'' code transfer system, but the
Commission's bank does not accept it. The Society for Worldwide
Interbank Financial Telecommunications (``SWIFT'') publishes
business identifier codes that are an international standard for
identification of institutions within the financial services
industry. See BIC at <a href="https://www.swift.com/search?keywords=BIC&search-origin=result_search">https://www.swift.com/search?keywords=BIC&search-origin=result_search</a> (retrieved Sept. 25,
2021). We discuss the challenges more fully below.
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Currently, filing fees are paid through the U.S. Treasury
designated lockbox depository and may be paid by wire transfer, paper
check, or money order.\183\ Under the proposed amendments, filers would
have two payment options: Wire transfer or ACH.\184\ As we noted in the
Proposing Release, paying by ACH would typically provide a lower cost
alternative to wire payment and require information that would reduce
the need for manual re-routing of filing fee payments. Eliminating the
options to pay filing fees by paper check or money order would impose
very little burden on filers in the aggregate because they have been
little used,\185\ filers who use the remaining options would have a
more efficient process, and the switch also would lower Commission
processing costs.
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\183\ Rule 202.3a under the Commission's Informal and Other
Procedures provides instructions for the payment of filing fees
(e.g., where to direct a wire transfer). As to checks and money
orders, it provides that filers may use a certified check, bank
cashier's check, United States postal money order, or bank money
order pursuant to specified procedures.
\184\ A filing fee is paid via ACH by electronically
transferring funds from a checking or savings account. See How
Direct Payments Work at <a href="https://www.nacha.org/content/how-direct-payment-works">https://www.nacha.org/content/how-direct-payment-works</a> (retrieved Sept. 25, 2021). For example, a consumer
initiating a payment through a bank account to pay a debt is making
a payment via ACH.
\185\ The Proposing Release noted that filing fees paid by check
constituted less than one percent of the number and dollar value of
filing fee payments the Commission received during its fiscal year
ended Sept. 30, 2018.
---------------------------------------------------------------------------
We believed that, overall, these amendments would increase
efficiency and reduce burdens in processing filing fee payments.\186\
---------------------------------------------------------------------------
\186\ The Proposing Release's rule and form amendment text
inadvertently included a revision to Rule 202.3a(c). We did not
intend to change that paragraph.
---------------------------------------------------------------------------
2. Comments on the Proposed Amendments
Commenters generally favored the proposed amendments to add the ACH
option, but presented mixed views on the proposed amendments to
eliminate the paper check option.
The commenters that generally favored the proposed amendments to
add the ACH option \187\ cited the following reasons, among others, and
expressed related observations \188\ and suggestions:
---------------------------------------------------------------------------
\187\ See letters from James J. Angel, Associate Professor of
Finance, McDonough School of Business, Georgetown University (Oct.
30, 2019) (``Angel''); Jones; Jeff LaBerge (Jan. 17, 2020)
(``LaBerge''); Nash Larson (Nov. 10, 2019) (``Larson''); Martinez;
and National Automated Clearing House Association (Feb. 21, 2020)
(``NACHA'').
\188\ These commenters observed that ACH payments are not
instant and only operate on banking days (see letters from Angel and
LaBerge); and the same day ACH payment maximum referenced in
proposed Rule 3a as $25,000 would become $100,000 as of March 20,
2020 (see letter from NACHA).
---------------------------------------------------------------------------
<bullet> Network security,\189\ reliability \190\ and wide
availability; \191\
---------------------------------------------------------------------------
\189\ See letters from Jones (more secure than paper checks and
money orders) and NACHA.
\190\ See letter from NACHA.
\191\ See letter from NACHA.
---------------------------------------------------------------------------
<bullet> Improved efficiency \192\ and accuracy; \193\
---------------------------------------------------------------------------
\192\ See letters from Jones, Larson, and NACHA.
\193\ See letters from Jones and Martinez.
---------------------------------------------------------------------------
<bullet> Current use by public companies and the Federal
Government; \194\ and
---------------------------------------------------------------------------
\194\ See letter from NACHA.
---------------------------------------------------------------------------
<bullet> Standard practice in other contexts for many years.\195\
---------------------------------------------------------------------------
\195\ See letter from Jones.
---------------------------------------------------------------------------
Some of these commenters stated that the Commission should, for a
fee, accept debit and credit cards for filing fee payments and,
thereby, provide an alternative for foreign issuers.\196\ One commenter
cited as a reason the Commission's bank's inability to accommodate
SWIFT.\197\ One of these commenters further stated that the Commission
should:
---------------------------------------------------------------------------
\196\ See letters from Angel, LaBerge, and Larson.
\197\ See letter from LaBerge.
---------------------------------------------------------------------------
<bullet> Specify <a href="http://Pay.gov">Pay.gov</a> rather than ACH in regulatory text so the
Commission can accommodate new payment technologies in the future
without engaging in additional rulemaking; and
<bullet> Consider integrating into its payment system the ISO20022
tool, which the commenter described as an XML-based messaging standard
that allows better straight-through processing.\198\
---------------------------------------------------------------------------
\198\ See letter from Angel.
---------------------------------------------------------------------------
Three commenters addressed the proposed amendments to eliminate
paper checks and money orders. One commenter expressly favored the
proposed elimination of paper checks and money orders, citing improved
payment certainty, efficiency and processing by facilitating lower-cost
easily routable payments through the ACH Network as well as improved
security.\199\ Another commenter stated that the Commission should
consider that some foreign entities may want to pay by check because
the Commission's bank is unable to accommodate SWIFT.\200\ Finally, one
commenter suggested that the Commission keep the
[[Page 70183]]
paper check option until filers no longer use it.\201\
---------------------------------------------------------------------------
\199\ See letter from NACHA.
\200\ See letter from LaBerge.
\201\ See letter from Jenna Wilson (Jan. 1, 2020) (``Wilson'').
---------------------------------------------------------------------------
3. Final Amendments
We are adopting the amendments substantially as proposed, but with
modifications in response to comments received and clarified processing
information and to otherwise improve them. Consistent with the
proposal, we are adopting amendments to Rule 202.3a of the Commission's
Informal and other Procedures as well as Rule 111 under the Securities
Act, Rule 0-9 under the Exchange Act and Rule 0-8 under the Investment
Company Act to add the option for payment of filing fees via ACH.\202\
Also consistent with the proposal, we are adopting amendments to
eliminate the option for payment of these fees via paper checks and
money orders. Finally, in changes from the proposal, we also are adding
the options for payment of filing fees by debit or credit card,
clarifying where to access the ACH payment option, and replacing the
reference to same day settlement for ACH with a reference to payments
expected to become available to the Commission within one to three
business days.\203\
---------------------------------------------------------------------------
\202\ As proposed, the final amendments also will revise Rule 13
under Regulation S-T to reflect the fact that payments will be
permitted via ACH.
In a change from our proposed amendments to Rule 0-8, we are
adding ``filing'' to the title and text, consistent with Rules 111
and 0-9. In addition, we are not amending Item 9 of Form 24F-2 to
replace ``Mail or other means'' with ``ACH'' as a registration fee
delivery option, as proposed. Instead, we are eliminating Item 9 of
current Form 24F-2 in its entirety. We are making this change to
avoid unnecessary duplication, since the payment information that
Item 9 currently requires is also required in the header. This
approach is also consistent with the other fee-bearing forms subject
to this rulemaking, which only require this type of payment
information in the header. In a conforming change, we are retitling
and revising Instruction E of Form 24F-2 to remove the reference to
Item 9. In another conforming change, we are renumbering Item 10 of
current Form 24F-2 which will become Item 9 of amended Form 24F-2.
\203\ In a change from the proposal, we also are adding
references to debit and credit cards to Securities Act Rule 111,
Exchange Act Rule 0-9, and Investment Company Act Rule 0-8. The
proposed rule text inadvertently deleted references to Sec.
230.110(d) (Securities Act Rule 110(d)) from the heading and
introductory text of Rule 202.3a(c). The error has been corrected in
the final rule text in this adopting release.
---------------------------------------------------------------------------
As previously noted, currently, filing fees are paid through the
U.S. Treasury designated lockbox depository and may be paid by wire
transfer, paper check, or money order. The amendments that we are
adopting will simultaneously add the option for filing fee payment via
ACH and debit and credit cards, and eliminate the option for filing fee
payment via paper checks and money orders on May 31, 2022.\204\ Under
the final amendments, filers will have four payment options: Wire
transfer, ACH, and debit and credit cards.
---------------------------------------------------------------------------
\204\ A delay is required before the simultaneous addition and
deletion to put the necessary arrangements in place.
---------------------------------------------------------------------------
<a href="http://Pay.gov">Pay.gov</a> will not require a processing fee for ACH payments, and
thus, will typically provide a lower cost alternative to wire
payment.\205\ At the same time, ACH payments will require fields--
including the CIK field used to identify EDGAR filers--in the specified
proper format and, as a result, reduce the need for manual re-routing
of filing fee payments.\206\ To maintain flexibility regarding our
choice of payment processing providers and reflect the initial step
required to make payment, the final rules reference accessing the ACH
payment option through EDGAR rather than through <a href="http://Pay.gov">Pay.gov</a>.\207\
Consistent with existing arrangements the Commission has with the U.S.
Treasury, however, we will use the U.S. Treasury's <a href="http://Pay.gov">Pay.gov</a> service to
process ACH payments.\208\ While, in the banking system, ACH payments
generally are eligible for same day settlement except when they involve
amounts above $100,000 \209\ or international transactions,\210\ based
on clarification received, we expect ACH payment processing via <a href="http://Pay.gov">Pay.gov</a>
will result in one to three business day settlement rather than same
day settlement where otherwise available in the banking system.\211\
Consequently, we are modifying proposed Note 1 to paragraph (b) of Rule
3a to replace the reference to same day settlement for ACH with a
reference to expecting funds to be available to the Commission within
one to three business days.\212\
---------------------------------------------------------------------------
\205\ An issuer's financial institution, however, could
separately impose a fee on the issuer.
\206\ The Commission will neither obtain nor retain any
personally identifiable information (i.e., banking or routing
information) from filers using the ACH payment method.
\207\ See Rule 202.3a(b)(2).
\208\ <a href="http://Pay.gov">Pay.gov</a> will be available through EDGAR.
\209\ Proposed Rule 3a referenced $25,000 rather than $100,000.
A commenter pointed out the post-proposal increase. See letter from
NACHA.
\210\ In the same day settlement context, the term
``international transactions'' means transactions involving a
foreign payor that uses a U.S. bank account.
\211\ We also expect <a href="http://Pay.gov">Pay.gov</a> service use will result in a per
transaction ACH payment limit of $99,999,999.99.
\212\ Once funds become available to the Commission through its
bank, e.g., upon settlement of a check, the funds are posted to the
filer's account and, as a result, are available for filing fee
payment. Check and money order payments generally are, and ACH
payments are expected to be, posted to filer accounts once a day.
Wire payments generally are posted to filer accounts every five
minutes between 6:30 a.m. and 6:30 p.m., Washington, DC time. Debit
and credit card payments are expected to be posted to filer accounts
every fifteen minutes when EDGAR is available.
---------------------------------------------------------------------------
Consistent with commenters' suggestions,\213\ in a change from the
proposal, we are adding the options for payment of filing fees by debit
or credit card.\214\ We believe that filers may find these additional
options, accessible through EDGAR, useful and they are consistent with
efficient processing.\215\ Also consistent with existing arrangements
the Commission has with the U.S. Treasury, we will use the U.S.
Treasury's <a href="http://Pay.gov">Pay.gov</a> service to process debit and credit card payments
for each brand it supports.\216\ As a result, each
---------------------------------------------------------------------------
\213\ See letters from Angel, LaBerge, and Larson.
\214\ We will neither obtain nor retain any personally
identifiable information (i.e., debit or credit card numbers,
expiration dates or card security codes) from filers using the debit
and credit card payment methods.
\215\ The debit and credit card payment methods, similar to the
ACH payment method, will have less need for manual re-routing
because a filer must provide a CIK number that EDGAR will validate.
These methods also will be more efficient than the currently
permitted check and money order payment methods for which a filer
must obtain the check or money order from a financial institution or
the United States Postal Service and send a hard copy to the
Commission's bank.
\216\ <a href="http://Pay.gov">Pay.gov</a> currently supports MasterCard and Visa debit
cards. It also currently supports the following credit cards:
American Express, Discover-branded, MasterCard, and Visa.
---------------------------------------------------------------------------
<bullet> Debit and credit card must be issued by a U.S. financial
institution;
<bullet> debit card may be used to pay up to the amount of the
funds available in the filer's related account; and
<bullet> credit card is subject to a daily and per filing fee
payment limit under $25,000.
While these commenters also suggested we accept debit and credit
cards for a fee, we do not anticipate a fee will be charged for use of
the payment system but it is possible the debit or credit card issuer
will charge a fee that would not be imposed through <a href="http://Pay.gov">Pay.gov</a>. Similar to
wire transfers and ACH payments, debit and credit card payments are not
instantaneous and the related funds will not be available for filing
fee payment until the Commissions receives them.\217\ In general, debit
and credit card payments are expected to be available to the Commission
the next business day and within 24 hours of the transaction,
respectively. Consequently, filers should time their payments and
filings accordingly. Similar to ACH payments, debit and credit card
payments will go through validation with respect to the filer's CIK
number to reduce the risk of posting the payment to the wrong account.
---------------------------------------------------------------------------
\217\ See Note 1 to paragraph (b) of Rule 3a.
---------------------------------------------------------------------------
We decline to follow one commenter's suggestion that we specify
<a href="http://Pay.gov">Pay.gov</a>
[[Page 70184]]
rather than ACH in the regulatory text.\218\ We understand that wire
transfers cannot be done through <a href="http://Pay.gov">Pay.gov</a> and we do not wish to
exclusively specify <a href="http://Pay.gov">Pay.gov</a> or any other specific avenue through which
to process payments to maintain flexibility in that regard.
---------------------------------------------------------------------------
\218\ See letter from Angel.
---------------------------------------------------------------------------
We do, however, plan to follow the commenter's suggestion that we
consider integrating into our payment system the ISO20022 standard,
which the commenter described as an XML-based messaging standard that
allows better straight-through processing.\219\ We expect to consider
this feature, among others, as we develop the payment system.
---------------------------------------------------------------------------
\219\ See letter from Angel.
---------------------------------------------------------------------------
Eliminating the options for filers to pay filing fees by paper
check or money order will impose very little burden on filers in the
aggregate because these payment methods historically have represented
less than one percent of the number and dollar value of filing fee
payments the Commission receives.\220\ Filers who switch from checks to
wire, ACH or debit or credit card payments will have more efficient and
accurate processing. The switch away from checks also will lower
Commission processing costs, in part by eliminating the Commission's
need to maintain a separate lockbox to process these payments.
Consistent with one commenter's suggestion, we have considered that, as
discussed further below, some foreign entities may want to pay by check
because the Commission's bank is unable to accept SWIFT.\221\ We have
concluded, however, that adding debit and credit card options, as the
commenter also suggested that we do for the same reason, coupled with
the wire transfer and ACH options and de minimis use of checks, warrant
eliminating the check option. For the same reasons, we decline to
follow a commenter's suggestion to keep the check option until filers
no longer use it.\222\
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\220\ Filing fees paid by check constituted less than one
percent of the number and dollar value of filing fee payments the
Commission received during its fiscal years ended Sept. 30, 2019 and
2020.
\221\ See letter from LaBerge.
\222\ See letter from Wilson.
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As discussed briefly above, we understand that foreign filers
sometimes have difficulty paying by wire transfer and will not be able
to pay by ACH unless they have a U.S. bank account. Foreign filers
sometimes encounter issues when paying filing fees using wire
transfers. These issues usually are caused by differences in the way
wire transfers are processed in the U.S. compared to the filer's home
jurisdiction. Foreign filers often use the SWIFT code transfer system
but our U.S.-based bank does not accept it. When that occurs, our bank
does not receive the payment and it ultimately returns to the sender
institution. In cases where foreign filers are unfamiliar with the U.S.
American Bankers Association (``ABA'') routing number convention, our
staff advises the filer to escalate the matter within its bank to a
person more familiar with the international wire process. Under the
final amendments, however, foreign (and other) filers also will have
the ability to pay by debit or credit card, giving foreign filers more
payment options and consistent with comments received.\223\
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\223\ See letter from LaBerge (citing our bank's inability to
accommodate SWIFT as reason to provide the debit and credit card
option). As also noted above, however, a debit or credit card must
be issued by a U.S. financial institution.
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Overall, we believe that the final amendments will increase
efficiency and reduce burdens in processing filing fee payments.
C. Fee Offset Amendment
1. Proposed Amendment
We proposed to permit registrants to reallocate previously paid
filing fees between two or more classes of securities included on a
registration statement, prior to effectiveness, in reliance on Rule
457(b). As proposed, the reallocation would be available in cases in
which a registrant has not relied on Rule 457(o) to calculate a
required filing fee and wishes to increase the amount registered of one
or more classes of securities on the registration statement and
decrease the amount registered of one or more other classes on the same
registration statement, subject to further limitations more fully
described in the Proposing Release. In addition, the proposed amendment
would put filers not relying on Rule 457(o) on a more equal footing
with filers relying on Rule 457(o) with respect to whether additional
fees would be required given changes in the relative composition of
securities to be offered.
2. Comments on the Proposed Amendment
No commenter addressed the proposed filing fee offset amendment.
3. Final Amendment
We are adopting the filing fee offset amendment substantially as
proposed to permit registrants to reallocate previously paid filing
fees between two or more classes of securities included on a
registration statement, prior to effectiveness.\224\ Specifically, the
final amendment provides that, as proposed, in cases where a registrant
has not relied on Rule 457(o) to calculate a required filing fee and
wishes to increase the amount registered of one or more classes of
securities on the registration statement and decrease the amount
registered of one or more other classes on the same registration
statement, the registrant may, in a pre-effective amendment, calculate
the total filing fee due based on the then-current expected offering
amounts, offering prices, and filing fee rates, and rely on Rule 457(b)
to apply, as a credit against the current total filing fee due, the
amounts previously paid in connection with the registration statement.
In a change from the proposal, the final amendments extend the
application of this offset procedure to where the registrant adds one
or more new classes of securities at the same time it decreases the
amount registered of one or more other classes on the same registration
statement regardless of whether the registrant simultaneously increases
the amount registered of one or more other classes on the same
registration statement. The offset procedure will not, however, be
available only to decrease or only to increase the amount of any class
of registered securities, or only to add one or more classes of
securities to the registration statement. We are extending the
application because we see no reason to distinguish between increases
involving already-registered and new classes.
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\224\ The final amendment is generally consistent with, but goes
beyond, previous staff interpretive guidance on reallocating filing
fees in connection with pre-effective amendments. See Securities Act
Rules Compliance and Disclosure Interpretation (CDI) 640.01. The CDI
provides that when a registrant has filed a registration statement
for two separate securities and then wishes to increase the amount
of one security and decrease the other, the registrant can file a
pre-effective amendment to reflect such increase and decrease in the
Calculation of Filing Fee Tables and reallocate the fees already
paid under the registration statement between the two securities.
The CDI represents the views of the staff of the Division of
Corporation Finance. It is not a rule, regulation, or statement of
the Commission. Furthermore, the Commission has neither approved nor
disapproved its content. The CDI, like all staff guidance, has no
legal force or effect: It does not alter or amend applicable law,
and it creates no new or additional obligations for any person.
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Currently, registrants that rely on Rule 457(o) to calculate
required filing fees need only pay a filing fee with any pre-effective
amendment if there is an increase to the maximum aggregate offering
price for all of the securities listed in the filing fee table
combined. Rule 457(a), on the other hand, requires
[[Page 70185]]
a registrant to pay an additional filing fee with any pre-effective
amendment in which the registrant seeks to increase the amount of any
class of securities to be offered or add one or more classes of
securities to be offered, and prohibits refunds once a registration
statement is filed. Accordingly, Rule 457(a) would require a registrant
(i) increasing the amount of securities registered of one class or
adding a class of securities to the registration statement; and (ii)
decreasing the amount of securities registered of another class, to pay
an additional filing fee based on any increased offering amount even
though it may have effectively overpaid for the decreased offering
amount of a registered second class. Rule 457(b), however, provides
that a ``required fee shall be reduced in an amount equal to any fee
paid with respect to such transaction pursuant to . . . any applicable
provision of this section.'' This provision allows registrants to
offset filing fees paid with a class of securities where the offering
amount has been reduced against additional filing fees due in
connection with an increase in offering amount of another registered
class or adding another class.
To aid in administering the rule and to simplify the process for
registrants, we are adopting as proposed form instructions that will
permit a registrant claiming such an offset to recalculate the filing
fee due for the registration statement in its entirety and claim an
offset pursuant to Rule 457(b) in the amount of the filing fee
previously paid in connection with the registration statement.\225\ As
filing fee calculations and tracking of available offsets can become
complex depending on how many classes of securities are involved and
how frequently the registrant changes the registered amount, we are
requiring any registrant not relying on Rule 457(o) that seeks to
offset filing fees based on concurrent (i) increases in one or more
registered classes or additions of one or more classes; and (ii)
decreases in one or more registered classes to recalculate the filing
fee for the entire registration statement, including all registered
classes, using the then-current offering amounts, price per unit and
filing fee rates.
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\225\ The filing fee offset amendment will be reflected in Forms
S-1, S-3, S-4, S-11, SF-1, SF-3, F-1, F-3, F-4, F-10, and N-14. See,
e.g., Instruction 2.A.iv to the Calculation of Filing Fee Tables in
Item 16(c) of Form S-1.
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This filing fee offset procedure will be limited to situations
where a registrant seeks to concurrently (i) increase the amount of one
or more classes or add one or more classes; and (ii) decrease the
amount of one or more other classes. It will not be available in
situations where a registrant seeks only to decrease or only to
increase the amount of any class of registered securities, or only to
add a class of securities to the registration statement.
As proposed, we are limiting the availability of this instruction
to registrants that have not previously calculated their required
filing fee in reliance on Rule 457(o), as Rule 457(o) already provides
registrants sufficient flexibility to pre-effectively reallocate the
offering amounts of each registered and additional class without
incurring additional filing fees.\226\
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\226\ We remind registrants that if they originally pay a filing
fee under Rule 457(a) and file an amendment that increases the
amount of securities to be offered but not the maximum aggregate
offering price, they can recalculate the filing fee under Rule
457(o), but they cannot get a refund if the amount of filing fees
paid under Rule 457(a) exceeds that due under Rule 457(o).
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D. Technical and Other Clarifying Amendments
1. Proposed Amendments
Finally, the Commission proposed to make certain technical,
conforming changes and other clarifying amendments. The Commission
proposed amendments to
<bullet> consolidate filing fee-related instructions in the
instructions to the filing fee tables;
<bullet> add text to instruction 4 of the proposed filing fee
tables of Forms S-3 and S-4 to clarify that offerings made pursuant to
General Instruction I.B.6 on Form S-3 and General Instruction I.B.5 on
Form F-3 are eligible for universal shelf registration;
<bullet> revise Rule 0-11 to clarify and update it primarily with
respect to superseded fee rates the rule references and the need to pay
an additional filing fee if aggregate consideration is increased.
2. Comments on the Proposed Amendments
No commenter addressed the technical and other clarifying
amendments.
3. Final Amendments
We are adopting the technical, conforming changes and other
clarifying amendments as proposed except that we are making changes to
conform to the final amendments' movement of filing fee-related
information to exhibits and clarifying language.\227\
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\227\ See Section II.A.1 regarding the movement of the filing
fee information to exhibits.
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First, we are adopting amendments to consolidate filing fee-related
instructions in the instructions to the filing fee tables as follows:
<bullet> Instructions 2.A.iii.b and c to the Calculation of Filing
Fee Tables in Item 16(b) of Form S-3 will replace current General
Instructions II.D and II.E, respectively; \228\
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\228\ In a change from the proposal, we are conforming Form SF-3
to Form S-3 by replacing current General Instruction II.C of Form
SF-3 with Instruction 2.A.iii.b to the Calculation of Filing Fee
Tables in Item 14(b) of Form SF-3.
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<bullet> Instructions 2.A.iii.b and c to the Calculation of Filing
Fee Tables in Item 9(b) of Form F-3 will replace current General
Instructions II.C and II.F, respectively;
<bullet> Instruction 2.A.iii.b to the Calculation of Filing Fee
Tables in Item 21(d) of Form S-4 will replace current General
Instruction J; and
<bullet> Instruction 2.A.iii.b to the Calculation of Filing Fee
Tables in Item 21(d) of Form F-4 will replace current General
Instruction D.3.\229\
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\229\ In a change from the proposal, Instruction 2.A.iii.b to
the Calculation of Filing Fee tables in Item 21(d) of Forms S-4 and
F-4 will expressly provide that when a filer registers two or more
classes of securities to be offered on a delayed or continuous basis
pursuant to Sec. 230.415(a)(1)(viii), Rule 457(o) permits the
calculation of the registration fee to be based on the maximum
aggregate offering price of all of the classes of securities listed
in the filing fee table on a combined basis if the registrant is
eligible to use Form S-3 or F-3, respectively, for a primary
offering.
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In each case, the instruction to the filing fee table will be
substantively equivalent to the General Instruction it will replace,
except as described immediately below.\230\
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\230\ Current General Instructions II.D and II.C of Forms S-3
and F-3, respectively, could apply to a well-known seasoned issuer
regardless of whether it is filing an automatic shelf registration
statement as long as it is not electing to defer payment of filing
fees. Instruction 2.A.iii.b to the Calculation of Filing Fee Tables
in Item 16(b) of Form S-3 and Item 9(b) of Form F-3 will so clarify.
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Second, we are adopting amendments to clarify that offerings made
pursuant to General Instruction I.B.6 on Form S-3 and General
Instruction I.B.5 on Form F-3 are eligible for universal shelf
registration.
For the reasons described in the Proposing Release, Form S-3
General Instruction I.B.6 is intended to operate in a manner similar to
that of General Instruction I.B.1 regarding a registrant's eligibility
to offer securities on a continuous or delayed basis pursuant to Rule
415(a)(1)(x) \231\ and register two or
[[Page 70186]]
more classes of securities and specify the amount of each class offered
and terms on an as-offered basis (i.e., a universal shelf registration
statement). To enable General Instruction I.B.6 to do so, we are
adopting amendments to add references to General Instruction I.B.6 to
Instruction 4 to the Calculation of Filing Fee tables in Item 16(b) of
Form S-3 (as the successor to General Instruction II.D) and to Form S-3
General Instruction II.F. We are adopting analogous amendments to add
references to General Instruction I.B.5 to Instruction 2.A.iii.b to the
Calculation of Filing Fee Fables in Item 9(b) of Form F-3 (as the
successor to General Instruction II.C) and to Form F-3 General
Instruction II.G.
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\231\ Offerings under Rule 415(a)(1)(x) are sometimes referred
to as ``shelf offerings'' because securities can be offered (i.e.,
taken down from the shelf) over time and from time to time. Such
offerings typically involve the initial filing of a registration
statement that goes effective with a base prospectus that provides
certain general information and omits detailed information up to the
extent permitted by Sec. Sec. 230.430A and 230.430B (Rules 430A and
430B under the Securities Act). Rule 430A permits operating company
registration statements to initially omit certain information
related to pricing and underwriting subject to meeting specified
conditions including providing the information later through a form
of prospectus filed under Rule 424(b) or in a post-effective
amendment. Rule 430B permits operating company registration
statements for offerings under Rule 415(a)(1)(x) that do not go
effective automatically to initially omit information that is
unknown or not reasonably available to the issuer subject to
specified conditions including providing the information later
through a prospectus filed under Rule 424(b), a post-effective
amendment or, if permitted by the applicable form, a periodic or
current report that is incorporated by reference. The registrant
typically provides details of a particular offering (takedown) later
in a prospectus filed under Rule 424(b), post-effective amendment or
periodic or current report that is incorporated by reference.
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Third, as proposed, the amendments will revise Rule 0-11 to clarify
and update it.\232\ Questions have arisen from time to time about the
interplay between paragraph (a)(2) of Rule 0-11, providing that
``[o]nly one fee per transaction is required to be paid,'' and
paragraph (a)(3), providing that if, after an initial filing fee
payment, the aggregate consideration offered is increased, an
additional filing fee based on the increase is due. Some have
misunderstood the ``one fee'' language to mean that no additional
filing fee can be required under paragraph (a)(3) once an initial
filing fee has been paid.\233\ We are adopting amendments to clarify
paragraph (a)(2) by removing the sentence containing the ``one fee''
language. The amendment would also have the effect of making paragraph
(a)(2) consistent with Rule 457(b), which does not have the ``one fee''
language and is essentially the Securities Act filing fee rule analogue
to paragraph (a)(2).\234\
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\232\ In a change from the proposal, the final amendments also
will revise Rule 0-11 to conform it to the new requirements to place
filing fee-related information in a filing fee exhibit. Current Rule
0-11(a)(5) requires fee-bearing documents filed under the Exchange
Act to include their filing fee-related information on the cover. As
amended, Rule 0-11(a)(5) will require that the filing fee-related
information appear in a filing fee exhibit.
\233\ The two provisions, however, operate in harmony and one
does not nullify the other. The ``one fee'' language is followed in
paragraph (a)(2) by language to the general effect that a required
filing fee under Rule 0-11 is reduced by any filing fee paid in
regard to the same transaction under the Securities Act or Exchange
Act and any filing fee due under the Securities Act is reduced by
any payment in regard to the transaction under the Exchange Act. The
``one fee'' language means that only one filing fee applies to a
given transaction amount but portions of the total filing fee due
may be assessed, depending on the facts and circumstances, on
different but related filings. The language does not prevent an
additional filing fee from being due to the extent of an increase in
the aggregate consideration offered consistent with paragraph
(a)(3). See Filing Fees for Certain Proxy and Information Filings
Tender Offers, Mergers and Similar Transactions, Release No. 33-6617
(Jan. 9, 1986) [51 FR 2472 (Jan. 17, 1986)] (``Paragraph (a)(3) of
Rule 0-11 provides that an increase in the aggregate consideration
offered triggers an additional filing fee based upon the amount of
the increased consideration. This additional fee is applicable
whether the increased consideration is the result of an increase in
the amount of securities sought or an increase in the per share
consideration.'' (footnote omitted)).
\234\ Similarly, we are amending Rule 13e-1(b) to clarify that
the filer must pay the filing fee required by Rule 0-11 not only
when it files the initial statement, but when it files an amendment
for which an additional filing fee is due. Neither of these final
amendments would affect a filer's ability to claim a filing fee
offset bas
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