81 FR 2743 - Simplification of Disclosure Requirements for Emerging Growth Companies and Forward Incorporation by Reference on Form S-1 for Smaller Reporting Companies
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 81, Issue 11 (January 19, 2016)
Federal Register Volume 81, Issue 11 (January 19, 2016)
| Page Range | 2743-2748 | |
| FR Document | 2016-00872 |
[Federal Register Volume 81, Number 11 (Tuesday, January 19, 2016)] [Rules and Regulations] [Pages 2743-2748] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-00872] ======================================================================= ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION 17 CFR PARTS 229 and 239 [Release No. 33-10003; File No. S7-01-16] RIN 3235-AL88 Simplification of Disclosure Requirements for Emerging Growth Companies and Forward Incorporation by Reference on Form S-1 for Smaller Reporting Companies AGENCY: Securities and Exchange Commission. ACTION: Interim final rule; request for comment. ----------------------------------------------------------------------- SUMMARY: The Securities and Exchange Commission (``Commission'') is adopting interim final amendments to its rules and forms to implement Sections 71003 and 84001 of the Fixing America's Surface Transportation (``FAST'') Act, which require that the Commission revise Forms S-1 and F-1 to permit emerging growth companies to omit financial information for certain historical periods and revise Form S-1 to permit forward incorporation by reference for smaller reporting companies. DATES: Effective date: The interim final rule is effective on January 19, 2016. Comment date: Comments on the interim final rules should be received on or before February 18, 2016. [[Page 2744]] ADDRESSES: Comments may be submitted by any of the following methods: Electronic CommentsUse the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml); or Send an email to [email protected]. Please include File Number S7-01-16 on the subject line; or Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments. Paper Comments Send paper comments to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. All submissions should refer to File Number S7-01-16. This file number should be included on the subject line if email is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Web site (http://www.sec.gov/rules/proposed.shtml). Comments are also available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. FOR FURTHER INFORMATION CONTACT: Peggy Kim, Attorney-Adviser, Office of Rulemaking, Division of Corporation Finance, at (202) 551-3430, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549. SUPPLEMENTARY INFORMATION: We are adopting interim final amendments to Forms S-1 \1\ and F-1 \2\ under the Securities Act of 1933 \3\ and Item 512 of Regulation S-K.\4\ --------------------------------------------------------------------------- \1\ 17 CFR 239.11. \2\ 17 CFR 239.31. \3\ 15 U.S.C. 77a et seq. \4\ 17 CFR 229.512. --------------------------------------------------------------------------- I. Discussion of Amendments Form S-1 is the form used by domestic issuers to register the offer and sale of securities under the Securities Act of 1933 when no other form is authorized or prescribed, and Form F-1 is the corresponding form used by foreign private issuers.\5\ Item 512 of Regulation S-K describes the undertakings that an issuer must include in a registration statement. --------------------------------------------------------------------------- \5\ A ``foreign private issuer'' is defined in Rule 405 [17 CFR 230.405] under the Securities Act to mean any foreign issuer other than a foreign government, except for an issuer that has more than 50% of its outstanding voting securities held of record by U.S. residents and any of the following: A majority of its officers and directors are citizens or residents of the United States, more than 50 percent of its assets are located in the United States, or its business is principally administered in the United States. --------------------------------------------------------------------------- Section 71003 of the FAST Act \6\ amends Section 102 of the Jumpstart Our Business Startups (``JOBS'') Act \7\ to allow an emerging growth company \8\ that is filing a registration statement (or submitting a draft registration statement \9\ for confidential review) under Section 6 of the Securities Act on Form S-1 or Form F-1 to omit financial information \10\ for historical periods \11\ otherwise required by Regulation S-X \12\ if it reasonably believes the omitted information will not be required to be included in the filing at the time of the contemplated offering, so long as the issuer amends the registration statement prior to distributing a preliminary prospectus to include all financial information required by Regulation S-X at the time of the amendment. This provision takes effect 30 days after the date of enactment of the FAST Act. In addition, Section 71003 directs the Commission to revise the general instructions to Form S-1 and Form F-1 to reflect this self-executing change. --------------------------------------------------------------------------- \6\ Pub. L. 114-94 (Dec. 4, 2015). \7\ Pub. L. 112-106, 126 Stat. 306 (Apr. 5, 2012). \8\ An ``emerging growth company'' is defined in Section 2(a)(19) of the Securities Act [15 U.S.C. 77b(a)(19)] to mean an issuer with less than $1 billion in total annual gross revenues during its most recently completed fiscal year. If an issuer qualifies as an emerging growth company on the first day of its fiscal year, it maintains that status until the earliest of the last day of the fiscal year of the issuer during which it has total annual gross revenues of $1 billion or more; the last day of its fiscal year following the fifth anniversary of the first sale of its common equity securities pursuant to an effective registration statement; the date on which the issuer has, during the previous 3- year period, issued more than $1 billion in non-convertible debt; or the date on which the issuer is deemed to be a ``large accelerated filer'' (as defined in Exchange Act Rule 12b-2 [17 CFR 240.12b-2]). Section 71002 of the FAST Act amends Section 6(e)(1) of the Securities Act [15 U.S.C. 77f(e)(1)] to provide that an issuer that qualifies as an emerging growth company at the time it initiates the registration process, either by submitting a draft registration statement or by filing it publicly, but which subsequently ceases to be an emerging growth company, will continue to be treated as an emerging growth company until the earlier of the date on which the issuer consummates its initial public offering pursuant to that registration statement or the end of the 1-year period beginning on the date the company ceases to be an emerging growth company. Section 71002 became effective upon enactment. \9\ Prior to filing a Form S-1 or F-1 for an initial public offering, emerging growth companies can submit draft registration statements to the Commission for confidential review. \10\ The historical financial statements that may be omitted are not limited to the financial statements of the emerging growth company. For example, an emerging growth company may also omit the historical financial statements of an acquired business from its filing or submission if the company reasonably believes those financial statements will not be required at the time of the offering. \11\ Emerging growth companies must include two years of audited financial statements in a registration statement for an initial public offering of common equity securities. [15 U.S.C. 77g (a)(2)(A)] \12\ Form F-1 filers are subject to the financial reporting requirements of Regulation S-X and Form 20-F. Item 8.A. of Form 20-F [17 CFR 249.220f] contains the requirements for the historical periods applicable to foreign private issuers filing on Form F-1. --------------------------------------------------------------------------- Section 84001 of the FAST Act requires the Commission to revise Form S-1 to permit a smaller reporting company \13\ to incorporate by reference into its registration statement any documents filed by the issuer subsequent to the effective date of the registration statement. We are adding a new paragraph to Item 12 of Form S-1 to effect this provision.\14\ --------------------------------------------------------------------------- \13\ A ``smaller reporting company'' is defined in Rule 405 under the Securities Act to mean an issuer that had a public float of less than $75 million as of the last business day of its most recently completed second fiscal quarter or had annual revenues of less than $50 million during the most recently completed fiscal year for which audited financial statements are available. \14\ New paragraph (b) to Item 12 of Form S-1. --------------------------------------------------------------------------- Currently, there are eligibility requirements for any issuer to use historical incorporation by reference on Form S-1 for documents filed before the effective date of the registration statement. These requirements will not be affected as a result of these amendments.\15\ Smaller reporting companies must meet each of these existing eligibility requirements and conditions to use forward incorporation by reference on Form S-1.\16\ For example, to be eligible to use forward incorporation by reference, smaller reporting companies will be required to be current by having filed (a) an annual report for its most recently completed fiscal year and (b) all required Exchange Act reports and materials during the 12 months immediately preceding filing of the Form S-1 (or such shorter period that the smaller reporting company was required to file such reports and materials). Smaller reporting companies that are blank check companies, shell companies (other than business combination related shell companies) or issuers for offerings of penny stocks will not be permitted to forward incorporate by reference into a Form S-1. In addition, the ability to forward [[Page 2745]] incorporate by reference will be conditioned on the smaller reporting company making its incorporated Exchange Act reports and other materials readily available and accessible on a Web site maintained by or for the issuer and disclosing in the prospectus that such materials will be provided upon request. --------------------------------------------------------------------------- \15\ General Instruction VII to Form S-1 sets forth the eligibility requirements for incorporation by reference. \16\ Currently, forward incorporation by reference is not permitted for any issuers on Form S-1. --------------------------------------------------------------------------- Finally, we are making a conforming change to Item 512(a) of Regulation S-K to provide for forward incorporation by reference of Exchange Act reports filed or furnished after the effective date of the registration statement on Form S-1.\17\ Our revised forms will be effective for disclosure made on or after January 19, 2016.\18\ --------------------------------------------------------------------------- \17\ The undertakings in Item 512(b) of Regulation S-K will also be required in Form S-1 registration statements filed by smaller reporting companies that use forward incorporation by reference. \18\ The amendments being adopted today apply to emerging growth companies omitting financial information from Form S-1 or Form F-1 and to smaller reporting companies using forward incorporation by reference in Form S-1. The staff will consider whether the amendments discussed in this release should be made available to a larger group of registrants, and for additional form types. Any future rulemaking proposal that may stem from the staff's consideration would be subject to notice and public comment. --------------------------------------------------------------------------- II. Request for Comment We invite comment on whether the interim final rules should be extended to other registrants or forms. In addition, we request and encourage any interested person to submit comments on any aspect of our interim final rules, other matters that might have an impact on the rules, and any suggestions for additional changes. With respect to any comments, we note that they are of greatest assistance if accompanied by supporting data and analysis of the issues addressed in those comments. III. Procedural and Other Matters Under the Administrative Procedure Act (``APA''), a notice of proposed rulemaking is not required when the agency, for good cause, finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest.\19\ Because these amendments merely conform the specified forms to the requirements of a newly enacted statute, the FAST Act, the Commission finds that notice and public comment are unnecessary.\20\ These amendments revise the Commission's forms to make them consistent with the provisions of the FAST Act pertaining to simplified disclosure requirements for emerging growth companies and forward incorporation by reference for smaller reporting companies on Form S-1 and therefore do not involve the exercise of Commission discretion. --------------------------------------------------------------------------- \19\ 5 U.S.C. 553(b). \20\ This finding also satisfies the requirements of 5 U.S.C. 808(2), allowing the rule amendment to become effective notwithstanding the requirement of 5 U.S.C. 801 (if a federal agency finds that notice and public comment are impractical, unnecessary or contrary to the public interest, a rule shall take effect at such time as the federal agency promulgating the rule determines). The amendments also do not require analysis under the Regulatory Flexibility Act. See 5 U.S.C. 604(a) (requiring a final regulatory flexibility analysis only for rules required by the APA or other law to undergo notice and comment). --------------------------------------------------------------------------- The APA generally requires publication of a rule at least 30 days before its effective date.\21\ The Commission finds there is good cause for the amendments to take effect on January 19, 2016 because without the amendments the Commission's applicable forms do not conform to the requirements of Section 102 of the JOBS Act, as amended by Section 71003 of the FAST Act and Section 84001 of the FAST Act.\22\ Additionally, the Commission finds that the amendments relieve restrictions in the Commission's forms. --------------------------------------------------------------------------- \21\ See 5 U.S.C. 553(d)(3). \22\ Section 71003 of the FAST Act takes effect 30 days after enactment, and Section 84001 of the FAST Act requires the Commission to revise Form S-1 within 45 days of enactment. --------------------------------------------------------------------------- The amendments to Form S-1, Form F-1, and Item 512 of Regulation S- K will have an effect on existing ``collection of information'' requirements within the meaning of the Paperwork Reduction Act of 1995.\23\ We estimate the total annual decrease in the paperwork burden for all affected companies to comply with the collection of information requirements in these amendments is approximately 70,214 hours of company personnel time and approximately $84,256,400 for the services of outside professionals.\24\ --------------------------------------------------------------------------- \23\ 44 U.S.C. 3501 et seq. \24\ We are seeking emergency approval from the Office of Management and Budget for the revised burden estimates associated with the final rule amendments to Forms S-1 and F-1 in accordance with the procedures of the Paperwork Reduction Act of 1995. In a separate notice, we are seeking public comment on the revised burden estimates as well as a three-year extension of the same collections of information. --------------------------------------------------------------------------- IV. Economic Analysis We are mindful of the costs imposed by and the benefits obtained from our rules and amendments.\25\ The Commission is adopting amendments to implement the specific statutory mandates of Sections 71003 and 84001 of the FAST Act. Accordingly, the costs and benefits of these amendments stem entirely from the statutory mandates of Sections 71003 and 84001.\26\ --------------------------------------------------------------------------- \25\ Section 2(b) of the Securities Act [15 U.S.C. 77b(b)] requires the Commission, when engaging in rulemaking where it is required to consider or determine whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of investors, whether the action will promote efficiency, competition and capital formation. \26\ As the intent of this rulemaking is to implement the specific regulatory changes mandated by Congress, this analysis focuses on the economic effects arising from those changes. We recognize that these amendments could be made available to a larger group of registrants, and for additional form types. However, such discretionary amendments would be beyond the scope of this rulemaking. See supra note 18. --------------------------------------------------------------------------- A. Baseline The baseline for our economic analysis is the filing requirements prior to passage of the FAST Act and the amendments being adopted today. The amendments will impact disclosure requirements for emerging growth companies (``EGCs'') that file Forms S-1 and F-1 and smaller reporting companies (``SRCs'') that file Form S-1 for conducting a registered public securities offering and elect to use forward incorporation by reference. Investors who rely on issuer disclosures for making investment decisions will also be affected by the amendments mandated by Sections 71003 and 84001 of the FAST Act. Prior to the effectiveness of Section 71003, EGCs were required, when filing or submitting Form S-1 or Form F-1 with the Commission prior to an initial public offering (``IPO''), to provide all financial statements for historical periods required by Regulation S-X at the time of the filing or submission, even though information for some historical periods may not be required to be included in the prospectus contained in the registration statement at the time of the contemplated offering. For example, prior to the effectiveness of Section 71003, an EGC that intended to conduct an IPO during early 2016 and that submitted or filed its registration statement in December 2015 would need to include audited financial statements for 2013 and 2014 in that registration statement to comply with the rules, even though at the time the issuer intended to market the offering only 2014 and 2015 audited financial statements would be required. The amendment pursuant to Section 71003 of the FAST Act will impact Form S-1 and F-1 filings and draft registration statement submissions by domestic and foreign EGCs that conduct initial public offerings. An analysis of EDGAR filings indicates that 504 EGCs filed Form S-1 for an IPO during calendar year 2014, compared to 363 EGCs that filed a Form S-1 during calendar year 2015, through December 28th. The number of Form F-1 filings [[Page 2746]] for an IPO by EGCs totaled 65 and 51 for calendar years 2014 and 2015, respectively (Table 1).\27\ Additionally, 299 and 133 EGCs submitted a draft registration statement during 2014 and 2015, respectively, for confidential Commission review.\28\ --------------------------------------------------------------------------- \27\ The Commission staff derived these estimates by analyzing filings made with the Commission during calendar years. Data for 2015 is for the period January 1 to December 28, 2015. The Forms S-1 and F-1 filings include filings for offerings that were later withdrawn or abandoned. Until October 2012, a significant number of EGCs submitted draft registration statements through email and as a result are not included in EDGAR filings for that year. \28\ Some of the issuers that submitted a draft registration statement may have also filed a Form S-1 or F-1. Table 1--EGCs Submissions of Draft Registration Statements, and Filings of Forms S-1 and F-1 for Initial Public Offerings, 2012-2015 ---------------------------------------------------------------------------------------------------------------- Number of EGCs submitting draft Number of EGCs Number of EGCs registration filing Form S-1 filing Form F-1 statement ---------------------------------------------------------------------------------------------------------------- 2012...................................................... 41 295 25 2013...................................................... 231 404 31 2014...................................................... 299 504 65 2015...................................................... 133 363 51 ---------------------------------------------------------------------------------------------------------------- Currently, forward incorporation by reference is not permitted for any issuers on Form S-1,\29\ and issuers are required to file a post- effective amendment to disclose material information, including updates required as a result of Section 10(a)(3) of the Securities Act,\30\ that may have occurred prior to the completion of the offering. Forward incorporation by reference is available under Form S-3,\31\ the short- form registration statement for a follow-on offering, but only issuers that meet specific registrant and transaction requirements can utilize that form. Because many SRCs are ineligible to use Form S-3, they are required to use Form S-1 for conducting a registered securities offering.\32\ As Table 2 presents, approximately 448 SRCs filed Form S- 1 for conducting a follow-on offering while 150 SRCs filed Form S-3 during calendar year 2014.\33\ --------------------------------------------------------------------------- \29\ Forward incorporation by reference allows an issuer to automatically incorporate by reference reports filed pursuant to the Exchange Act, such as reports on Forms 10-K, 10-Q and 8-K, subsequent to the effectiveness of the registration statement. \30\ 15 U.S.C. 77j(a)(3). When a prospectus is used more than nine months after the effective date of the registration statement, the information contained therein cannot be dated more than sixteen months prior to such use. \31\ 17 CFR 239.13. \32\ SRCs may be eligible to use Form S-3 for secondary offerings if the securities are listed on a national securities exchange or are quoted on the automated quotation system of a national securities association. See Instruction I.B.3 of Form S-3. In addition, SRCs may be eligible to use Form S-3 for limited primary offerings if the SRC has at least one class of common equity securities listed on a national securities exchange. See Instruction I.B.6. of Form S-3. \33\ The Commission staff derived these estimates by analyzing filings made with the Commission during calendar years. SRCs status was determined based on the filer status checked on the cover page of Form 10-K filed during the year. Table 2--SRC Filings of Forms S-1 and S-3 for Follow-on Offerings, 2012-2015 ---------------------------------------------------------------------------------------------------------------- Number of Form 10-Ks Number of SRCs Number of SRCs indicating SRC filing Form S- filing Form S- status 1 3 ---------------------------------------------------------------------------------------------------------------- 2012............................................................ 4,062 394 106 2013............................................................ 3,773 432 116 2014............................................................ 3,508 448 150 2015............................................................ 3,107 269 112 ---------------------------------------------------------------------------------------------------------------- The amendment pursuant to Section 84001 of the FAST Act will impact the number and disclosure content of post-effective amendments filed by eligible SRCs. Analysis of EDGAR filings indicates that approximately 204 SRCs filed 379 post-effective amendments during 2014, while another 217 filed 404 such amendments during calendar year 2015, through December 15th.\34\ Some SRCs could have avoided at least some post- effective amendment filings if forward incorporation had been available. --------------------------------------------------------------------------- \34\ Some of these filings may relate to non-Section 10(a)(3) updates, such as for deregistering securities. These filings will not be affected by an SRC's new ability to forward incorporate by reference. Additionally, some filings may comprise Section 10(a)(3) updates, as well as updates that will continue to be required as post-effective amendments. --------------------------------------------------------------------------- B. Analysis of the Amendments The statutory change to Section 102 of the JOBS Act and the corresponding amendment to our forms pursuant to Section 71003 of the FAST Act allow EGCs to omit certain historical financial statements required under Regulation S-X from their pre-initial public offering registration statement, which simplifies and reduces disclosure requirements for those EGCs. As Table 1 shows, up to 569 EGCs filing Form S-1 or F-1 and 299 EGCs submitting draft registration statements during calendar year 2014 could possibly have benefitted from such scaled down disclosure requirements. These amendments to the statute and our forms will ease the filing requirements for EGCs, which could promote small business capital formation through initial public offerings. The amendments that implement Section 71003 will enable EGCs to provide only information that they reasonably expect will be required at the time they are marketing their initial public offerings. This will lower the regulatory burden and thereby reduce the registration costs for EGCs. The amendments may also shorten the time necessary to complete the initial [[Page 2747]] registration statement of an IPO, which could improve an issuer's ability to raise capital in a timely manner. To the extent issuers have sensitive material in their historical financial information, the amendments may also enable EGCs to protect their competitive position by not publicly disseminating information beyond what is required when the securities offering is conducted.\35\ Such benefits are more likely to accrue to EGCs that have higher proprietary costs of disclosure.\36\ --------------------------------------------------------------------------- \35\ For example, R&D-intensive firms may have competitive incentives to provide limited disclosure about their R&D investments, material agreements or acquisitions in previous years. \36\ See Jesse Ellis, C. Edward Fee & Shawn Thomas, Proprietary Costs and the Disclosure of Information about Customers, 50 J. ACCT. RES. 685-727 (2012). --------------------------------------------------------------------------- At the same time, the amendments may reduce the amount and quality of public information, thereby potentially increasing the level of information asymmetry and adversely impacting the informational efficiency of the securities market.\37\ As a result, investors could become more risk averse and require a higher rate of return to compensate for such loss in disclosure. This would lower the amount of potential issuer proceeds, which would offset the lower disclosure costs stemming from the simplified disclosure requirements.\38\ We believe, however, that the amendment's potential adverse impact on investors would be marginal because such omitted financial information is not expected to be used by issuers in marketing their offering and also because investors will have access to more recent and updated information. --------------------------------------------------------------------------- \37\ Market participants also can obtain information from Commission staff comment letters (publicly available after the IPO) sent in connection with the staff's review of a draft or filed registration statement. To the extent the lower level of disclosure affects the information content of Commission staff comment letters, the post-IPO liquidity and stock price volatility outcomes of EGCs could also be impacted. \38\ See Susan Chaplinsky, Kathleen Weiss Hanley & S. Katie Moon, The JOBS Act and the Costs of Going Public (Working Paper, Oct. 2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2492241. --------------------------------------------------------------------------- The amendment pursuant to Section 84001 of the FAST Act to permit forward incorporation by reference by SRCs in Form S-1 will further integrate disclosures under the Securities Act and the Exchange Act and increase regulatory simplification. Forward incorporation by reference will eliminate the need to update information in a filing that has become stale or is incomplete. The amendment should decrease the existing filing burdens by reducing multiple disclosure filings, thereby allowing SRCs to satisfy Form S-1 disclosure requirements and access capital markets at a lower cost. As discussed above, during 2014 almost half of the SRCs that filed a Form S-1 also filed a post- effective amendment to update information in that form. In addition to the reduced audit and legal costs of not having to file post-effective amendments, cost savings could also result from lower printing and delivery costs for a smaller sized prospectus. Such reduction in costs could be offset, to some extent, by ongoing costs related to the issuer's new obligations to make the incorporated Exchange Act reports and other materials readily available and accessible to investors on a Web site maintained by or for the issuer, or provided upon request. The revision to Form S-1 will make its requirements more consistent with those of Form S-3, which will particularly benefit SRCs that cannot use Form S-3 and have to rely on the longer Form S-1 to register their securities offering. The amendment will be most effective for continuous offerings, and those involving resales of securities, that often require repeated informational updates. By avoiding the need to file certain post-effective amendments, SRCs may be able to move quickly to raise capital when a `market window' is open. Easing the filing burden for such issuers may promote efficiency in SRC capital formation. At the same time, revising Form S-1 to allow SRCs to forward incorporate by reference could increase the analytical burden and search costs for potential investors. Instead of having all the information available in one location, investors may need to separately access on a Web site or request the incorporated reports in order to price the offering security. As a result, costs to investors for assembling and assimilating necessary information could increase. We do not have data to assess if, and to what extent, the Form S-1 revision will be burdensome to investors. To the extent that investors previously benefitted from the Commission staff's selective review of post-effective amendment filings, allowing forward incorporation by reference may eliminate such reviews and, as a result, possibly increase the costs to investors. As discussed above, the same eligibility requirements that currently apply to any issuer to use historical incorporation by reference on Form S-1 will apply to forward incorporation by reference by SRCs. Using these well-established eligibility requirements should provide certainty to issuers and investors about when forward incorporation by reference may be used. Requiring the SRCs to be current in their filing requirements will ensure that only issuers with a demonstrated ability to comply with Exchange Act reporting requirements are eligible to forward incorporate by reference, which will help to address concerns about investors being able to readily procure updated information through Exchange Act filings that would otherwise have been available through a post-effective amendment. V. Statutory Basis The amendments described in this release are made under the authority set forth in Sections 6, 7, 8, 10, and 19 of the Securities Act, Section 102 of the JOBS Act and Sections 71003 and 84001 of the FAST Act. List of Subjects in 17 CFR Parts 229 and 239 Reporting and recordkeeping requirements, Securities. In accordance with the foregoing, the Commission is amending Title 17, Chapter II of the Code of Federal Regulations as follows: PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND CONSERVATION ACT OF 1975--REGULATION S-K 0 1. The authority citation for part 229 is revised to read as follows: Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78l, 78m, 78n, 78n-1, 78o, 78u- 5, 78w, 78ll, 78 mm, 80a-8, 80a-9, 80a-20, 80a-29, 80a-30, 80a- 31(c), 80a-37, 80a-38(a), 80a-39, 80b-11 and 7201 et seq. 18 U.S.C. 1350; Sec. 953(b), Pub. L. 111-203, 124 Stat. 1904; Sec. 102(a)(3), Pub. L. 112-106, 126 Stat. 309; and Sec. 84001, Pub. L. 114-94, 129 Stat. 1312. * * * * * 0 2. Section 229.512 is amended by revising paragraph (a)(1)(iii)(B) to read as follows: Sec. 229.512 (Item 512) Undertakings. * * * * * (a) * * * (1) * * * (iii) * * * (B) Paragraphs (a)(1)(i), (ii), and (iii) of this section do not apply if the registration statement is on Form S-1 (Sec. 239.11 of this chapter), Form S-3 (Sec. 239.13 of this chapter), Form SF-3 (Sec. 239.45 of this chapter) or Form F-3 (Sec. 239.33 of this chapter) and the information required to be included in a post- effective amendment by those paragraphs is contained in reports filed [[Page 2748]] with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement, or, as to a registration statement on Form S-3, Form SF-3 or Form F-3, is contained in a form of prospectus filed pursuant to Sec. 230.424(b) of this chapter that is part of the registration statement. * * * * * PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933 0 3. The general authority citation for part 239 is revised to read as follows: Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z-2, 77z- 3, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78o-7 note, 78u-5, 78w(a), 78ll, 78mm, 80a-2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 80a-26, 80a-29, 80a-30, 80a-37, and Sec. 71003 and Sec. 84001, Pub. L. 114-94, 129 Stat. 1312, unless otherwise noted. * * * * * 0 4. Form S-1 (referenced in Sec. 239.11) is amended by adding General Instructions II.C., re-designating paragraph (b) to Item 12 as paragraph (c), re-designating the Note to Item 12(b)(1) as the Note to Item 12(c)(1), and adding new paragraph (b) to Item 12 to read as follows: Note: The text of Form S-1 does not, and this amendment will not, appear in the Code of Federal Regulations. Form S-1 Registration Statement Under the Securities Act of 1933 * * * * * General Instructions * * * * * II. Application of General Rules and Regulations * * * * * C. A registration statement filed (or submitted for confidential review) under Section 6 of the Securities Act (15 U.S.C. 77f) by an emerging growth company, defined in Section 2(a)(19) of the Securities Act (15 U.S.C. 77b(a)(19)), prior to an initial public offering may omit financial information for historical periods otherwise required by Regulation S-X (17 CFR part 210) as of the time of filing (or confidential submission) of the registration statement, provided that: 1. The omitted financial information relates to a historical period that the registrant reasonably believes will not be required to be included in this Form at the time of the contemplated offering; and 2. Prior to the registrant distributing a preliminary prospectus to investors, the registration statement is amended to include all financial information required by Regulation S-X at the date of the amendment. * * * * * Item 12. Incorporation of Certain Information by Reference * * * * * (b) In addition to the incorporation by reference permitted pursuant to paragraph (a) of this Item, a smaller reporting company, as defined in Rule 405 (17 CFR 230.405), may elect to incorporate by reference information filed after the effective date of the registration statement. A smaller reporting company making this election must state in the prospectus contained in the registration statement that all documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the offering shall be deemed to be incorporated by reference into the prospectus. * * * * * 0 5. Form F-1 (referenced in Sec. 239.31) is amended by adding General Instruction II.E. to read as follows: Note: The text of Form F-1 does not, and this amendment will not, appear in the Code of Federal Regulations. Form F-1 Registration Statement Under the Securities Act of 1933 * * * * * General Instructions * * * * * II. * * * E. A registration statement filed (or submitted for confidential review) under Section 6 of the Securities Act (15 U.S.C. 77f) by an emerging growth company, defined in Section 2(a)(19) of the Securities Act (15 U.S.C. 77b(a)(19)), prior to an initial public offering may omit financial information for historical periods otherwise required by Regulation S-X (17 CFR part 210) and Item 8.A. of Form 20-F (17 CFR 249.220f) as of the time of filing (or confidential submission) of the registration statement, provided that: 1. The omitted financial information relates to a historical period that the registrant reasonably believes will not be required to be included in this Form at the time of the contemplated offering; and 2. Prior to the registrant distributing a preliminary prospectus to investors, the registration statement is amended to include all financial information required by Regulation S-X at the date of the amendment. * * * * * By the Commission. Dated: January 13, 2016. Brent J. Fields, Secretary. [FR Doc. 2016-00872 Filed 1-13-16; 4:15 pm] BILLING CODE 8011-01-P
![Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations 2743
(b) For purposes of 31 U.S.C. (iii) Including in the request any information contained in the
3716(b)(1), the Commission adopts documents that the debtor wishes to be notification, including in the amount of
without change the regulations on considered or stating that the additional the debt, subject to any additional due
collection by administrative offset set information will be submitted within process requirements, where applicable,
forth at 31 CFR 901.3 and other relevant the remainder of the 60-day period. under this subpart or the Federal Claims
sections of the FCCS applicable to such (c) A debtor may dispute the existence Collection Standards, if the amount of
offset. or amount of the debt or the terms of debt has increased;
repayment, except with respect to debts (b) Receives a payment or credits a
§§ 1.111–1.119 [Reserved] established by a judicial or payment to the account of the debtor
administrative order. In those cases, the named in the notification that reduces
Subpart Q—Tax Refund Offset debtor may not dispute matters or issues the amount of the debt referred to Fiscal
already settled, litigated, or otherwise Service for offset; or
Authority: 31 U.S.C. 3716 and 3720A, 31
established by such order, including the (c) Otherwise concludes that such
CFR 285.2(c).
amount of the debt or the debtor’s notification is appropriate or necessary.
§ 1.120 Purpose. liability for that debt, except to the
extent that the debtor alleges that the § 1.124 Interest, penalties, and costs.
This subpart establishes procedures
amount of the debt does not reflect To the extent permitted or required by
for the Commission’s referral of past-
payments already made to repay the 31 U.S.C. 3717 or other law, regulation,
due legally enforceable debts to the
debt in whole or part. or order, all interest, penalties, and costs
Department of the Treasury’s Bureau of
applicable to the debt or incurred in
the Fiscal Service (Fiscal Service) for § 1.122 Commission action as a result of connection with its referral for
offset against the tax refund payments of consideration of evidence submitted in collection by tax refund offset will be
the debtor, consistent with applicable response to the notice of intent.
assessed on the debt and thus increase
Fiscal Service regulations and (a) Consideration of evidence. If, in the amount of the offset.
definitions set forth in 31 CFR 285.2 and response to the notice provided to the
285.5. debtor under § 1.121, the Commission is By direction of the Commission.
notified that the debtor will submit Donald S. Clark,
§ 1.121 Notification of intent to collect. Secretary.
additional evidence, or the Commission
(a) Notification before tax refund receives additional evidence from the [FR Doc. 2016–00313 Filed 1–15–16; 8:45 am]
offset. Reduction of a tax refund debtor within the prescribed time, tax BILLING CODE 6750–01–P
payment will be made only after the refund offset will be stayed until the
Commission makes a determination that Commission can:
an amount is owed and past-due and (1) Consider the evidence presented SECURITIES AND EXCHANGE
gives or makes a reasonable attempt to by the debtor; COMMISSION
give the debtor 60 days written notice of (2) Determine whether all or a portion
the intent to collect by tax refund offset. of the debt is still past due and legally 17 CFR PARTS 229 and 239
(b) Contents of notice. The enforceable; and
Commission’s notice of intent to collect [Release No. 33–10003; File No. S7–01–16]
(3) Notify the debtor of its
by tax refund offset will state: determination, as set forth in paragraph RIN 3235–AL88
(1) The amount of the debt; (b) of this section.
(2) That unless the debt is repaid (b) Commission action on the debt. (1) Simplification of Disclosure
within 60 days from the date of the If, after considering any additional Requirements for Emerging Growth
notice, the Commission intends to evidence from the debtor, the Companies and Forward Incorporation
collect the debt by requesting a Commission determines that the debt by Reference on Form S–1 for Smaller
reduction of any amounts payable to the remains past-due and legally Reporting Companies
debtor as a Federal tax refund payment enforceable, the Commission will notify
by an amount equal to the amount of the AGENCY: Securities and Exchange
the debtor of its intent to refer the debt Commission.
debt and all accumulated interest and to the Fiscal Service for offset against
other charges; ACTION: Interim final rule; request for
the debtor’s Federal tax refund payment,
(3) That the debtor, within 60 days including whether the amount of the comment.
from the date of the notice, has an debt remains the same or is modified; or SUMMARY: The Securities and Exchange
opportunity to make a written (2) If, after considering any additional Commission (‘‘Commission’’) is
agreement to repay the amount of the evidence from the debtor, the adopting interim final amendments to
debt, unless such opportunity has Commission determines that no part of its rules and forms to implement
previously been provided; the debt remains past-due and legally
(4) A mailing address for forwarding Sections 71003 and 84001 of the Fixing
enforceable, the Commission will so America’s Surface Transportation
any written correspondence and a notify the debtor and will not refer the
contact name and a telephone number (‘‘FAST’’) Act, which require that the
debt to the Fiscal Service for offset Commission revise Forms S–1 and F–1
for any questions; and against the debtor’s Federal tax refund
(5) That the debtor may present to permit emerging growth companies to
payment. omit financial information for certain
evidence to the Commission that all or
part of the debt is not past due or legally § 1.123 Change in notification to Bureau of historical periods and revise Form S–1
asabaliauskas on DSK5VPTVN1PROD with RULES
enforceable by: the Fiscal Service. to permit forward incorporation by
(i) Sending a written request for a After the Commission sends the Fiscal reference for smaller reporting
review of the evidence to the address Service notification of a debtor’s companies.
provided in the notice; liability for a debt, the Commission will DATES: Effective date: The interim final
(ii) Stating in the request the amount promptly notify the Fiscal Service if the rule is effective on January 19, 2016.
disputed and the reasons why the Commission: Comment date: Comments on the
debtor believes that the debt is not past (a) Determines that there is a material interim final rules should be received
due or is not legally enforceable; and error or other material change in the on or before February 18, 2016.
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![2744 Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations
ADDRESSES: Comments may be Regulation S–K describes the if it reasonably believes the omitted
submitted by any of the following undertakings that an issuer must information will not be required to be
methods: include in a registration statement. included in the filing at the time of the
Section 71003 of the FAST Act 6 contemplated offering, so long as the
Electronic Comments amends Section 102 of the Jumpstart issuer amends the registration statement
• Use the Commission’s Internet Our Business Startups (‘‘JOBS’’) Act 7 to prior to distributing a preliminary
comment form (http://www.sec.gov/ allow an emerging growth company 8 prospectus to include all financial
rules/proposed.shtml); or that is filing a registration statement (or information required by Regulation S–X
• Send an email to rule-comments@ submitting a draft registration at the time of the amendment. This
sec.gov. Please include File Number S7– statement 9 for confidential review) provision takes effect 30 days after the
01–16 on the subject line; or under Section 6 of the Securities Act on date of enactment of the FAST Act. In
• Use the Federal eRulemaking Portal Form S–1 or Form F–1 to omit financial addition, Section 71003 directs the
(http://www.regulations.gov). Follow the information 10 for historical periods 11 Commission to revise the general
instructions for submitting comments. otherwise required by Regulation S–X 12 instructions to Form S–1 and Form F–
Paper Comments 1 to reflect this self-executing change.
any foreign issuer other than a foreign government, Section 84001 of the FAST Act
• Send paper comments to Brent J. except for an issuer that has more than 50% of its requires the Commission to revise Form
Fields, Secretary, Securities and outstanding voting securities held of record by U.S.
residents and any of the following: A majority of its S–1 to permit a smaller reporting
Exchange Commission, 100 F Street NE., officers and directors are citizens or residents of the company 13 to incorporate by reference
Washington, DC 20549–1090. United States, more than 50 percent of its assets are into its registration statement any
All submissions should refer to File located in the United States, or its business is documents filed by the issuer
principally administered in the United States.
Number S7–01–16. This file number 6 Pub. L. 114–94 (Dec. 4, 2015). subsequent to the effective date of the
should be included on the subject line 7 Pub. L. 112–106, 126 Stat. 306 (Apr. 5, 2012). registration statement. We are adding a
if email is used. To help us process and 8 An ‘‘emerging growth company’’ is defined in new paragraph to Item 12 of Form S–1
review your comments more efficiently, Section 2(a)(19) of the Securities Act [15 U.S.C. to effect this provision.14
please use only one method. The 77b(a)(19)] to mean an issuer with less than $1 Currently, there are eligibility
billion in total annual gross revenues during its
Commission will post all comments on most recently completed fiscal year. If an issuer
requirements for any issuer to use
the Commission’s Web site (http:// qualifies as an emerging growth company on the historical incorporation by reference on
www.sec.gov/rules/proposed.shtml). first day of its fiscal year, it maintains that status Form S–1 for documents filed before the
Comments are also available for Web until the earliest of the last day of the fiscal year effective date of the registration
of the issuer during which it has total annual gross
site viewing and printing in the revenues of $1 billion or more; the last day of its statement. These requirements will not
Commission’s Public Reference Room, fiscal year following the fifth anniversary of the first be affected as a result of these
100 F Street NE., Washington, DC sale of its common equity securities pursuant to an amendments.15 Smaller reporting
effective registration statement; the date on which
20549, on official business days the issuer has, during the previous 3-year period,
companies must meet each of these
between the hours of 10:00 a.m. and issued more than $1 billion in non-convertible debt; existing eligibility requirements and
3:00 p.m. All comments received will be or the date on which the issuer is deemed to be a conditions to use forward incorporation
posted without change; we do not edit ‘‘large accelerated filer’’ (as defined in Exchange by reference on Form S–1.16 For
Act Rule 12b–2 [17 CFR 240.12b–2]). Section 71002
personal identifying information from of the FAST Act amends Section 6(e)(1) of the example, to be eligible to use forward
submissions. You should submit only Securities Act [15 U.S.C. 77f(e)(1)] to provide that incorporation by reference, smaller
information that you wish to make an issuer that qualifies as an emerging growth reporting companies will be required to
company at the time it initiates the registration be current by having filed (a) an annual
available publicly. process, either by submitting a draft registration
FOR FURTHER INFORMATION CONTACT: statement or by filing it publicly, but which report for its most recently completed
Peggy Kim, Attorney-Adviser, Office of subsequently ceases to be an emerging growth fiscal year and (b) all required Exchange
company, will continue to be treated as an emerging Act reports and materials during the 12
Rulemaking, Division of Corporation growth company until the earlier of the date on
Finance, at (202) 551–3430, U.S. which the issuer consummates its initial public months immediately preceding filing of
Securities and Exchange Commission, offering pursuant to that registration statement or the Form S–1 (or such shorter period
100 F Street NE., Washington, DC the end of the 1-year period beginning on the date that the smaller reporting company was
the company ceases to be an emerging growth required to file such reports and
20549. company. Section 71002 became effective upon
enactment. materials). Smaller reporting companies
SUPPLEMENTARY INFORMATION: We are
9 Prior to filing a Form S–1 or F–1 for an initial that are blank check companies, shell
adopting interim final amendments to public offering, emerging growth companies can companies (other than business
Forms S–1 1 and F–1 2 under the submit draft registration statements to the combination related shell companies) or
Securities Act of 1933 3 and Item 512 of Commission for confidential review.
issuers for offerings of penny stocks will
Regulation S–K.4 10 The historical financial statements that may be
omitted are not limited to the financial statements not be permitted to forward incorporate
I. Discussion of Amendments of the emerging growth company. For example, an by reference into a Form S–1. In
emerging growth company may also omit the addition, the ability to forward
Form S–1 is the form used by historical financial statements of an acquired
domestic issuers to register the offer and business from its filing or submission if the
13 A ‘‘smaller reporting company’’ is defined in
sale of securities under the Securities company reasonably believes those financial
statements will not be required at the time of the Rule 405 under the Securities Act to mean an issuer
Act of 1933 when no other form is offering. that had a public float of less than $75 million as
authorized or prescribed, and Form F– 11 Emerging growth companies must include two of the last business day of its most recently
asabaliauskas on DSK5VPTVN1PROD with RULES
1 is the corresponding form used by years of audited financial statements in a completed second fiscal quarter or had annual
revenues of less than $50 million during the most
foreign private issuers.5 Item 512 of registration statement for an initial public offering
recently completed fiscal year for which audited
of common equity securities. [15 U.S.C. 77g
(a)(2)(A)] financial statements are available.
1 17 CFR 239.11. 14 New paragraph (b) to Item 12 of Form S–1.
12 Form F–1 filers are subject to the financial
2 17 CFR 239.31. 15 General Instruction VII to Form S–1 sets forth
reporting requirements of Regulation S–X and Form
3 15 U.S.C. 77a et seq.
20–F. Item 8.A. of Form 20–F [17 CFR 249.220f] the eligibility requirements for incorporation by
4 17 CFR 229.512. reference.
contains the requirements for the historical periods
5 A ‘‘foreign private issuer’’ is defined in Rule 405 applicable to foreign private issuers filing on Form 16 Currently, forward incorporation by reference
[17 CFR 230.405] under the Securities Act to mean F–1. is not permitted for any issuers on Form S–1.
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![Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations 2745
incorporate by reference will be revise the Commission’s forms to make of the FAST Act. Accordingly, the costs
conditioned on the smaller reporting them consistent with the provisions of and benefits of these amendments stem
company making its incorporated the FAST Act pertaining to simplified entirely from the statutory mandates of
Exchange Act reports and other disclosure requirements for emerging Sections 71003 and 84001.26
materials readily available and growth companies and forward
incorporation by reference for smaller A. Baseline
accessible on a Web site maintained by
or for the issuer and disclosing in the reporting companies on Form S–1 and The baseline for our economic
prospectus that such materials will be therefore do not involve the exercise of analysis is the filing requirements prior
provided upon request. Commission discretion. to passage of the FAST Act and the
Finally, we are making a conforming The APA generally requires amendments being adopted today. The
change to Item 512(a) of Regulation S– publication of a rule at least 30 days amendments will impact disclosure
K to provide for forward incorporation before its effective date.21 The requirements for emerging growth
by reference of Exchange Act reports Commission finds there is good cause companies (‘‘EGCs’’) that file Forms S–
filed or furnished after the effective date for the amendments to take effect on 1 and F–1 and smaller reporting
of the registration statement on Form S– January 19, 2016 because without the companies (‘‘SRCs’’) that file Form S–1
1.17 Our revised forms will be effective amendments the Commission’s for conducting a registered public
for disclosure made on or after January applicable forms do not conform to the securities offering and elect to use
19, 2016.18 requirements of Section 102 of the JOBS forward incorporation by reference.
Act, as amended by Section 71003 of the Investors who rely on issuer disclosures
II. Request for Comment FAST Act and Section 84001 of the for making investment decisions will
We invite comment on whether the FAST Act.22 Additionally, the also be affected by the amendments
interim final rules should be extended Commission finds that the amendments mandated by Sections 71003 and 84001
to other registrants or forms. In addition, relieve restrictions in the Commission’s of the FAST Act.
we request and encourage any interested forms. Prior to the effectiveness of Section
person to submit comments on any The amendments to Form S–1, Form 71003, EGCs were required, when filing
aspect of our interim final rules, other F–1, and Item 512 of Regulation S–K or submitting Form S–1 or Form F–1
matters that might have an impact on will have an effect on existing with the Commission prior to an initial
the rules, and any suggestions for ‘‘collection of information’’ public offering (‘‘IPO’’), to provide all
additional changes. With respect to any requirements within the meaning of the financial statements for historical
comments, we note that they are of Paperwork Reduction Act of 1995.23 We periods required by Regulation S–X at
greatest assistance if accompanied by estimate the total annual decrease in the the time of the filing or submission,
supporting data and analysis of the paperwork burden for all affected even though information for some
issues addressed in those comments. companies to comply with the historical periods may not be required
collection of information requirements to be included in the prospectus
III. Procedural and Other Matters in these amendments is approximately contained in the registration statement
Under the Administrative Procedure 70,214 hours of company personnel at the time of the contemplated offering.
Act (‘‘APA’’), a notice of proposed time and approximately $84,256,400 for For example, prior to the effectiveness
rulemaking is not required when the the services of outside professionals.24 of Section 71003, an EGC that intended
agency, for good cause, finds that notice IV. Economic Analysis to conduct an IPO during early 2016 and
and public comment are impracticable, that submitted or filed its registration
We are mindful of the costs imposed
unnecessary, or contrary to the public statement in December 2015 would
by and the benefits obtained from our
interest.19 Because these amendments need to include audited financial
rules and amendments.25 The
merely conform the specified forms to statements for 2013 and 2014 in that
Commission is adopting amendments to
the requirements of a newly enacted registration statement to comply with
implement the specific statutory
statute, the FAST Act, the Commission mandates of Sections 71003 and 84001 the rules, even though at the time the
finds that notice and public comment issuer intended to market the offering
are unnecessary.20 These amendments Regulatory Flexibility Act. See 5 U.S.C. 604(a) only 2014 and 2015 audited financial
(requiring a final regulatory flexibility analysis only statements would be required.
17 The undertakings in Item 512(b) of Regulation for rules required by the APA or other law to The amendment pursuant to Section
S–K will also be required in Form S–1 registration undergo notice and comment).
statements filed by smaller reporting companies 21 See 5 U.S.C. 553(d)(3).
71003 of the FAST Act will impact
that use forward incorporation by reference. 22 Section 71003 of the FAST Act takes effect 30 Form S–1 and F–1 filings and draft
18 The amendments being adopted today apply to
days after enactment, and Section 84001 of the registration statement submissions by
emerging growth companies omitting financial FAST Act requires the Commission to revise Form domestic and foreign EGCs that conduct
information from Form S–1 or Form F–1 and to S–1 within 45 days of enactment. initial public offerings. An analysis of
smaller reporting companies using forward 23 44 U.S.C. 3501 et seq.
incorporation by reference in Form S–1. The staff 24 We are seeking emergency approval from the
EDGAR filings indicates that 504 EGCs
will consider whether the amendments discussed in Office of Management and Budget for the revised filed Form S–1 for an IPO during
this release should be made available to a larger burden estimates associated with the final rule calendar year 2014, compared to 363
group of registrants, and for additional form types. amendments to Forms S–1 and F–1 in accordance EGCs that filed a Form S–1 during
Any future rulemaking proposal that may stem from with the procedures of the Paperwork Reduction
the staff’s consideration would be subject to notice calendar year 2015, through December
Act of 1995. In a separate notice, we are seeking
and public comment. public comment on the revised burden estimates as 28th. The number of Form F–1 filings
asabaliauskas on DSK5VPTVN1PROD with RULES
19 5 U.S.C. 553(b).
well as a three-year extension of the same
20 This finding also satisfies the requirements of collections of information. 26 As the intent of this rulemaking is to
5 U.S.C. 808(2), allowing the rule amendment to 25 Section 2(b) of the Securities Act [15 U.S.C. implement the specific regulatory changes
become effective notwithstanding the requirement 77b(b)] requires the Commission, when engaging in mandated by Congress, this analysis focuses on the
of 5 U.S.C. 801 (if a federal agency finds that notice rulemaking where it is required to consider or economic effects arising from those changes. We
and public comment are impractical, unnecessary determine whether an action is necessary or recognize that these amendments could be made
or contrary to the public interest, a rule shall take appropriate in the public interest, to consider, in available to a larger group of registrants, and for
effect at such time as the federal agency addition to the protection of investors, whether the additional form types. However, such discretionary
promulgating the rule determines). The action will promote efficiency, competition and amendments would be beyond the scope of this
amendments also do not require analysis under the capital formation. rulemaking. See supra note 18.
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![2748 Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Rules and Regulations
with or furnished to the Commission by 2. Prior to the registrant distributing a required by Regulation S–X at the date
the registrant pursuant to section 13 or preliminary prospectus to investors, the of the amendment.
section 15(d) of the Securities Exchange registration statement is amended to * * * * *
Act of 1934 (15 U.S.C. 78m or 78o(d)) include all financial information By the Commission.
that are incorporated by reference in the required by Regulation S–X at the date
Dated: January 13, 2016.
registration statement, or, as to a of the amendment.
registration statement on Form S–3, Brent J. Fields,
* * * * *
Form SF–3 or Form F–3, is contained in Secretary.
Item 12. Incorporation of Certain
a form of prospectus filed pursuant to [FR Doc. 2016–00872 Filed 1–13–16; 4:15 pm]
Information by Reference
§ 230.424(b) of this chapter that is part * * * * *
BILLING CODE 8011–01–P
of the registration statement. (b) In addition to the incorporation by
* * * * * reference permitted pursuant to
paragraph (a) of this Item, a smaller DEPARTMENT OF ENERGY
PART 239—FORMS PRESCRIBED reporting company, as defined in Rule
UNDER THE SECURITIES ACT OF 1933 Federal Energy Regulatory
405 (17 CFR 230.405), may elect to Commission
incorporate by reference information
■ 3. The general authority citation for
filed after the effective date of the 18 CFR Part 381
part 239 is revised to read as follows:
registration statement. A smaller
Authority: 15 U.S.C. 77c, 77f, 77g, 77h, reporting company making this election [Docket No. RM16–2–000]
77j, 77s, 77z–2, 77z–3, 77sss, 78c, 78l, 78m, must state in the prospectus contained
78n, 78o(d), 78o–7 note, 78u–5, 78w(a), 78ll, Annual Update of Filing Fees
in the registration statement that all
78mm, 80a–2(a), 80a–3, 80a–8, 80a–9, 80a–
10, 80a–13, 80a–24, 80a–26, 80a–29, 80a–30, documents subsequently filed by the AGENCY: Federal Energy Regulatory
80a–37, and Sec. 71003 and Sec. 84001, Pub. registrant pursuant to Sections 13(a), Commission.
L. 114–94, 129 Stat. 1312, unless otherwise 13(c), 14 or 15(d) of the Exchange Act, ACTION: Final rule; annual update of
noted. prior to the termination of the offering Commission filing fees.
* * * * * shall be deemed to be incorporated by
reference into the prospectus. SUMMARY: In accordance with the
■ 4. Form S–1 (referenced in § 239.11) is
* * * * * Commission’s regulations, the
amended by adding General Instructions Commission issues this update of its
II.C., re-designating paragraph (b) to ■ 5. Form F–1 (referenced in § 239.31) is
filing fees. This document provides the
Item 12 as paragraph (c), re-designating amended by adding General Instruction
yearly update using data in the
the Note to Item 12(b)(1) as the Note to II.E. to read as follows:
Commission’s Financial System to
Item 12(c)(1), and adding new paragraph Note: The text of Form F–1 does not, and calculate the new fees. The purpose of
(b) to Item 12 to read as follows: this amendment will not, appear in the Code updating is to adjust the fees on the
Note: The text of Form S–1 does not, and of Federal Regulations. basis of the Commission’s costs for
this amendment will not, appear in the Code Fiscal Year 2015.
of Federal Regulations. Form F–1
DATES: Effective Date: February 18,
Registration Statement Under the 2016.
Form S–1 Securities Act of 1933 FOR FURTHER INFORMATION CONTACT:
Registration Statement Under the * * * * * Raymond D. Johnson Jr., Office of the
Securities Act of 1933 Executive Director, Federal Energy
General Instructions
* * * * * Regulatory Commission, 888 First Street
* * * * * NE., Room 42–66, Washington, DC
General Instructions II. * * * 20426, 202–502–8402.
* * * * * E. A registration statement filed (or SUPPLEMENTARY INFORMATION:
submitted for confidential review) Document Availability: In addition to
II. Application of General Rules and under Section 6 of the Securities Act (15
Regulations publishing the full text of this document
U.S.C. 77f) by an emerging growth in the Federal Register, the Commission
* * * * * company, defined in Section 2(a)(19) of provides all interested persons an
C. A registration statement filed (or the Securities Act (15 U.S.C. 77b(a)(19)), opportunity to view and/or print the
submitted for confidential review) prior to an initial public offering may contents of this document via the
under Section 6 of the Securities Act (15 omit financial information for historical Internet through FERC’s Home Page
U.S.C. 77f) by an emerging growth periods otherwise required by (http://www.ferc.gov) and in FERC’s
company, defined in Section 2(a)(19) of Regulation S–X (17 CFR part 210) and Public Reference Room during normal
the Securities Act (15 U.S.C. 77b(a)(19)), Item 8.A. of Form 20–F (17 CFR business hours (8:30 a.m. to 5:00 p.m.
prior to an initial public offering may 249.220f) as of the time of filing (or Eastern time) at 888 First Street NE.,
omit financial information for historical confidential submission) of the Room 2A, Washington DC 20426.
periods otherwise required by registration statement, provided that: From FERC’s Web site on the Internet,
Regulation S–X (17 CFR part 210) as of 1. The omitted financial information this information is available in the
the time of filing (or confidential relates to a historical period that the eLibrary. The full text of this document
asabaliauskas on DSK5VPTVN1PROD with RULES
submission) of the registration registrant reasonably believes will not is available on eLibrary in PDF and
statement, provided that: be required to be included in this Form Microsoft Word format for viewing,
1. The omitted financial information at the time of the contemplated offering; printing, and/or downloading. To access
relates to a historical period that the and this document in eLibrary, type the
registrant reasonably believes will not 2. Prior to the registrant distributing a docket number excluding the last three
be required to be included in this Form preliminary prospectus to investors, the digits of this document in the docket
at the time of the contemplated offering; registration statement is amended to number field and follow other
and include all financial information directions on the search page.
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Document Created: 2016-01-16 01:12:05
Document Modified: 2016-01-16 01:12:05
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Interim final rule; request for comment. | |
| Contact | Peggy Kim, Attorney-Adviser, Office of Rulemaking, Division of Corporation Finance, at (202) 551-3430, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549. | |
| FR Citation | 81 FR 2743 | |
| RIN Number | 3235-AL88 | |
| CFR Citation | 17
CFR
229 17 CFR 239 | |
| CFR Associated | Reporting and Recordkeeping Requirements and Securities |
2025 Federal Register | Disclaimer | Privacy Policy
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