Exhibit Hyperlinks and HTML Format, 14130-14143 [2017-04365]

Download as PDF 14130 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES for the glass installation, rather than in lieu of the load requirements. Thus, it is not necessary to repeat that all of these loads apply to this installation. The emergency-landing load condition is not normally applied to installations of this type, but for the use of large glass in the cabin, we determined that this additional safety standard is necessary. We made no changes to special condition number 3 in response to the Boeing comments. Boeing recommends that the loading conditions in proposed special condition no. 3 (which is now special condition no. 2), Strength, and proposed special condition no. 4 (which is now special condition no. 3), Retention, be the same. Proposed special condition no. 3 (which is now special condition no. 2), Strength, is required to address the unique, extremely notch-sensitive characteristics of the glass as having low fracture resistance, low modulus of elasticity, and highly variable properties. Special condition no. 3 (which is now special condition no. 2) specifically accounts for abuse loads in addition to the loads required per subparts C & D of 14 CFR part 25. Special condition no. 4 (which is now special condition no. 3) accounts for loads encountered during directional loading and rebound resulting from emergency landing loads of 14 CFR part 25. We have made minor grammatical modifications to the requirements. Boeing recommends that, for proposed special condition no. 4 (which is now special condition no. 3), Retention, the statement, ‘‘Both the directional loading and rebound conditions must be assessed,’’ be removed, because these both are covered in proposed special condition no. 3. As explained above, special condition nos. 3 (which is now special condition no. 2) and 4 (which is now special condition no. 3) account for different loading conditions. We have made minor grammatical modifications to the requirements. Applicability As discussed above, these special conditions are applicable to Boeing Model 747–8 series airplanes as modified by Lufthansa. Should Lufthansa apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A20WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well. Conclusion This action affects only a certain novel or unusual design feature on one VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 model series of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of this feature on the airplane. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued, for large glass components installed in a cabin occupied by passengers or crew who are not otherwise protected from the injurious effects of failure of the glass installations, as part of the type certification basis for Boeing 747–8 airplanes modified by Lufthansa Technik AG. 1. Material Fragmentation—The applicant must use tempered or otherwise treated glass to ensure that, when fractured, the glass breaks into small pieces with relatively dull edges. The glass component installation must retain all glass fragments to minimize the danger from flying glass shards or pieces. The applicant must demonstrate this characteristic by impact and puncture testing, and testing to failure. The applicant may conduct this test with or without any glass coating that may be utilized in the design. 2. Strength—In addition to meeting the load requirements for all flight and landing loads, including any of the applicable emergency-landing conditions in subparts C & D of 14 CFR part 25, the glass components that are located such that they are not protected from contact with cabin occupants must not fail due to abusive loading, such as impact from occupants stumbling into, leaning against, sitting on, or performing other intentional or unintentional forceful contact with the glass component. The applicant must assess the effect of design details such as geometric discontinuities or surface finish, including but not limited to embossing and etching. 3. Retention—The glass component, as installed in the airplane, must not come free of its restraint or mounting system in the event of an emergency landing, considering both the directional loading and resulting rebound conditions. The applicant must assess the effect of design details such as geometric discontinuities or surface PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 finish, including but not limited to embossing and etching. 4. Instructions for Continued Airworthiness: The instructions for continued airworthiness must reflect the method used to fasten the panel to the cabin interior and must ensure the reliability of the methods used (e.g., life limit of adhesives, or clamp connection). The applicant must define any inspection methods and intervals based upon adhesion data from the manufacturer of the adhesive, or upon actual adhesion-test data, if necessary. Issued in Renton, Washington, on February 10, 2017. Michael Kaszycki, Assistant Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. 2017–05331 Filed 3–16–17; 8:45 am] BILLING CODE 4910–13–P SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 229, 232, 239 and 249 [Release Nos. 33–10322; 34–80132; File No. S7–19–16] RIN 3235–AL95 Exhibit Hyperlinks and HTML Format Securities and Exchange Commission. ACTION: Final rule. AGENCY: We are adopting amendments that will require registrants that file registration statements and reports subject to the exhibit requirements under Item 601 of Regulation S–K, or that file Forms F–10 or 20–F, to include a hyperlink to each exhibit listed in the exhibit index of these filings. To enable the inclusion of such hyperlinks, the amendments also require that registrants submit all such filings in HyperText Markup Language (‘‘HTML’’) format. DATES: Effective on September 1, 2017. Compliance Dates: Registrants must comply with the final rules for filings submitted on or after September 1, 2017. A registrant that is a ‘‘smaller reporting company,’’ as defined in Securities Act Rule 405 and Exchange Act Rule 12b– 2, or that is neither a ‘‘large accelerated filer’’ nor an ‘‘accelerated filer,’’ as defined in Exchange Act Rule 12b–2, and that submits filings in ASCII need not comply with the final rules until September 1, 2018, one year after the effective date. The compliance date with respect to any Form 10–D that will require hyperlinks to any exhibits filed with Form ABS–EE is delayed until Commission staff has completed SUMMARY: E:\FR\FM\17MRR1.SGM 17MRR1 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations technical programming changes to allow issuers to include such forms in a single submission. Once these programming changes are complete, the Commission will publish in the Federal Register a document notifying the public of the compliance date for Form 10–D. FOR FURTHER INFORMATION CONTACT: N. Sean Harrison, Special Counsel, at (202) 551–3430, in the Office of Rulemaking, Division of Corporation Finance, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549. SUPPLEMENTARY INFORMATION: We are adopting amendments to Item 601 of Regulation S–K,1 Forms 20–F 2 and F–10,3 and Rules 11,4 102 5 and 105 6 of Regulation S–T.7 I. Introduction On August 31, 2016, we proposed rule and form amendments to require registrants to include a hyperlink to each exhibit identified in the exhibit index in any registration statement or report that is required to include exhibits under Item 601 of Regulation S–K or under Form F–10 or Form 20– F.8 In addition, because the text-based American Standard Code for Information Interchange (‘‘ASCII’’) format cannot support functional hyperlinks, we proposed to require registrants filing such registration statements or reports to file these forms on EDGAR in HTML. These proposals were intended to facilitate easier access to these exhibits for investors and other users of the information. We received comment letters from individuals, professional and trade associations, law firms and other interested parties.9 The commenters overwhelmingly supported the proposal to require registrants to include hyperlinks to the exhibits filed with registration statements or reports. Some 1 17 CFR 229.601. CFR 249.20f. 3 17 CFR 239.40. 4 17 CFR 232.11. 5 17 CFR 232.102. 6 17 CFR 232.105. 7 17 CFR 232.10 et seq. 8 See Release No. 33–10201 (Aug. 31, 2016) [81 FR 62689] (the ‘‘Proposing Release’’). 9 The commenters were: The Center for Audit Quality (‘‘CAQ’’); the Corporate Governance Coalition for Investor Value (‘‘CGCIV’’); the Council of Institutional Investors (‘‘CII’’); the Credit Roundtable (‘‘CRT’’); Davis Polk & Wardwell LLP (‘‘Davis Polk’’); the Chamber of Commerce; Ernst & Young LLP (‘‘E&Y’’); the Investor Advocacy Clinic at Georgia State University College of Law (‘‘IAC’’); Veronique Joseph; Mary Sue; the Maryland State Bar Association (‘‘MDSBA’’); Reed Smith LLP; the Securities Industry and Financial Markets Association (‘‘SIFMA’’); the Structured Finance Industry Group (‘‘SFIG’’); Jacob Vollmer; and John Wahh. mstockstill on DSK3G9T082PROD with RULES 2 17 VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 commenters suggested that we adopt additional requirements, such as requiring registrants to refile exhibits that were previously filed in paper. Other commenters expressed concerns about some aspects of the proposed amendments and suggested modifications to the proposals. We have reviewed and considered all of the comments that we received on the proposals. The final rules reflect changes made in response to these comments. We discuss the changes in more detail below. II. Discussion of the Final Amendments A. Hyperlinking to Exhibits We proposed to amend Item 601 of Regulation S–K and Rules 11 and 102 10 of Regulation S–T to require registrants to include a hyperlink to each filed exhibit as identified in the exhibit index, unless the exhibit is filed in paper pursuant to a temporary or continuing hardship exemption under Rules 201 11 or 202 12 of Regulation S– T or pursuant to Rule 311 13 of Regulation S–T. We proposed corresponding amendments to Form F–10 and Form 20–F to require foreign private issuers to include hyperlinks to the exhibits filed with these forms. We are adopting these requirements substantially as proposed, but with some changes reflecting comments we received.14 1. Proposed Amendments Item 601 of Regulation S–K specifies the exhibits that registrants must file with registration statements filed under the Securities Act of 1933 (‘‘Securities Act’’) 15 and Securities Exchange Act of 1934 (‘‘Exchange Act’’) 16 and with periodic and current reports under the Exchange Act, which we refer to collectively in this release as the ‘‘registration statements and reports.’’ Item 601 also requires registrants to include an exhibit index that lists each exhibit included with the filing.17 Once an exhibit is filed, registrants can incorporate it by reference to meet the 10 Rule 102 of Regulation S–T requires each exhibit to an electronic filing to be filed electronically unless there is an applicable exemption. 11 17 CFR 232.201. 12 17 CFR 232.202. 13 17 CFR 232.311. 14 We are also adopting an amendment to Rule 102(a) of Regulation S–T to correct an outdated reference to a rule that was rescinded. 15 15 U.S.C. 77a et seq. 16 15 U.S.C. 78a et seq. 17 See Item 601(a)(2) of Regulation S–K [17 CFR 229.601(a)(2)]. Rule 102(d) of Regulation S–T [17 CFR 232.102(d)] and Exchange Act Rule 0–3(c) [17 CFR 240.0–3(c)] also require filings with exhibits to include an exhibit index. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 14131 exhibit requirements in subsequent filings to the extent permitted by our rules or the applicable disclosure form.18 Under the current system, someone seeking to retrieve and access an exhibit that has been incorporated by reference must review the exhibit index to determine the filing in which the exhibit is included, and then must search through the registrant’s filings to locate the relevant filing. This process can be both time consuming and cumbersome. We proposed to apply the amendments to nearly all of the registration statements and reports that are required to include exhibits under Item 601, specifically Forms S–1,19 S–3,20 S–4,21 S–8,22 S–11,23 F– 1,24 F–3,25 F–4,26 SF–1,27 and SF–3 28 under the Securities Act; and Forms 10,29 10–K,30 10–Q, 8–K,31 and 10–D 32 under the Exchange Act. In addition, we proposed corresponding amendments to Form F–10 and Form 20–F. However, the proposed amendments excluded the exhibits filed with Form ABS–EE as well as any XBRL exhibits. We excluded the exhibits filed with Form ABS–EE because the form is used solely to facilitate the filing of tagged data and related information that must be filed as exhibits to that form. Form ABS–EE does not permit exhibits to be incorporated by reference and is filed in unconverted code. XBRL exhibits are similarly filed in unconverted code.33 18 See, e.g., Item 10(d) of Regulation S–K [17 CFR 229.10(d)]. Item 10(d) provides, with certain exceptions, that where rules, regulations, or instructions to forms of the Commission permit incorporation by reference, a document may be so incorporated by reference to the specific document and to the prior filing or submission in which such document was physically filed or submitted. 19 17 CFR 239.11. 20 17 CFR 239.13. 21 17 CFR 239.25. 22 17 CFR 239.16b. 23 17 CFR 239.18. 24 17 CFR 239.31. 25 17 CFR 239.33. 26 17 CFR 239.34. 27 17 CFR 239.44. 28 17 CFR 239.45. 29 17 CFR 249.210. 30 17 CFR 249.310. 31 17 CFR 249.308. 32 17 CFR 249.312. 33 The Commission announced in June 2016 a time-limited program to permit registrants to voluntarily file structured financial statement data using Inline XBRL. Inline XBRL allows registrants to file the required information and data tags in one document rather than requiring a separate exhibit for the interactive data. Order Granting Limited and Conditional Exemption Under Section 36(a) of the Securities Exchange Act of 1934 from Compliance with Interactive Data File Exhibit Requirement in Forms 6–K, 8–K, 10–Q, 10–K, 20–F and 40–F to Facilitate Inline Filing of Tagged Financial Data, E:\FR\FM\17MRR1.SGM Continued 17MRR1 14132 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations Therefore, we concluded preliminarily that it was not necessary to require hyperlinks to exhibits filed with Form ABS–EE or to XBRL exhibits. The proposed amendments would require a registrant to include an active hyperlink to each exhibit identified in the exhibit index of the filing. If the filing is a periodic or current report under the Exchange Act, a registrant would be required to include an active hyperlink to each exhibit listed in the exhibit index when the report is filed. If the filing is a registration statement, the registrant would only be required to include an active hyperlink to each exhibit in the version of the registration statement that becomes effective. This was to ensure that the most complete exhibit index was hyperlinked and located in one primary document. mstockstill on DSK3G9T082PROD with RULES 2. Comments on the Proposed Rule Commenters overwhelmingly supported the proposed amendments to require exhibit hyperlinks.34 Many commenters agreed that hyperlinking to exhibits would make it easier for investors and other users to retrieve and access these documents from Commission filings.35 Several commenters stated that the proposal would significantly reduce the amount of time required for investors to access information and also enhance the functionality of the EDGAR filing system.36 Two commenters supported the proposed exclusion of Form ABS– EE exhibits and XBRL exhibits because the exhibits are directly attached to that Form ABS–EE filing, and therefore an investor should have no difficulties locating the applicable attached exhibits.37 The same two commenters supported the proposed exclusion of XBRL exhibits. We requested comment on whether we should we revise Form 6–K 38 filed by foreign private issuers or other multijurisdictional disclosure system forms Release No. 34–78041 (June 13, 2016) [81 FR 39741]. In a companion release issued on March 1, 2017, the Commission proposed amendments that, among other things, would require the use of the Inline XBRL format for the submission of operating company financial statement information and mutual fund risk/return summaries. Inline XBRL Filing of Tagged Data, Release No. 33–10323 (Mar. 1, 2017). The amendments we are adopting in this release, the Inline XBRL proposals and the voluntary filing program are part of the Commission’s continuing efforts and interest in modernizing the format of the information filed on EDGAR to make it more accessible to investors and other users. 34 No commenters opposed these proposals. 35 See, e.g., letters from CII, E&Y, IAC and MDSBA. 36 See letters from CII, CRT and IAC. 37 See letters from Davis Polk and SFIG. 38 17 CFR 249.306. VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 used by certain Canadian issuers, such as Forms F–7,39 F–8,40 and F–80,41 to require exhibit hyperlinks. One commenter stated that the benefits of requiring exhibit hyperlinks in Form 6–K would be minor.42 This commenter observed that Form 6–K does not have any prescribed exhibit requirements, in contrast to Form 20–F, which does require the filing of relevant disclosure documents as exhibits. In the Proposing Release, we also requested comment on whether we should require registrants to include hyperlinks to the exhibits filed with an initial registration statement and each pre-effective amendment to the registration statement. One commenter supported requiring exhibit hyperlinks in the version of the registration statement that becomes effective, as proposed.43 This commenter stated that the effective version of the registration statement would be the version that is most often reviewed by an investor and other users, and because exhibits may be revised or replaced during the registration process, it would be the version that properly referenced all of the exhibits filed with the registration statement that had not been replaced or revised. Two commenters stated that exhibit hyperlinks should be required in the pre-effective amendment to the registration statement that includes the preliminary prospectus distributed in connection with an offering.44 One of these commenters stated that the information found in exhibits would be most relevant when the preliminary prospectus used to market an offering is distributed because that is when investors are beginning to make an investment decision.45 Another commenter supported requiring exhibit hyperlinks in the initial registration statement and each subsequent pre-effective amendment rather than just in the registration statement that becomes effective.46 This commenter stated that exhibit hyperlinks would improve the navigability of the pre-effective amendments, and that the incremental burden of including hyperlinks in the initial registration statement and any pre-effective amendments would not be significant because each subsequent preeffective amendment would only add or CFR 239.37. CFR 239.38. 41 17 CFR 239.41. 42 See letter from Davis Polk. 43 See letter from SFIG. 44 See letters from Reed Smith and SIFMA. 45 See letter from SIFMA. 46 See letter from Davis Polk. update hyperlinks (in the event of superseded or amended exhibits) to the exhibit index that was last filed. We also requested comment on whether we should require registrants to refile in electronic format any exhibit previously filed in paper so that a registrant can include a hyperlink from the exhibit index to such exhibits. We received a number of comments on this question. Three commenters stated we should require registrants to file electronically all previously filed paper exhibits.47 Two of these commenters stated that it would be particularly beneficial to investors if organizational documents, such as certificates of incorporation, were made available on EDGAR.48 The other commenter maintained that any burden and expense of refiling a previously filed paper exhibit would be minimal because it was unlikely that many registrants would have a significant number of paper exhibits created prior to the time that the registrant became subject to mandated electronic filing on EDGAR.49 A different commenter suggested that registrants should be permitted to post organizational documents on their Web sites as an alternative to refiling paper exhibits.50 Conversely, three commenters did not support requiring registrants to refile previously filed paper exhibits.51 Two of these commenters stated that requiring registrants to refile paper exhibits could significantly increase the cost burden to registrants.52 The other commenter suggested that, rather than requiring the refiling of paper exhibits, we should instead encourage registrants to voluntarily refile exhibits originally filed in paper.53 3. Final Rule After considering the comments, we are adopting the exhibit hyperlinking requirement substantially as proposed with some modifications. Under the final rules, registrants will be required to include a hyperlink to each exhibit identified in the exhibit index, unless the exhibit is filed in paper pursuant to a temporary or continuing hardship exemption under Rules 201 or 202 of Regulation S–T, or pursuant to Rule 311 of Regulation S–T. This requirement will apply to the forms for which exhibits are required under Item 601 of Regulation S–K. 39 17 40 17 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 47 See letters from CII, MDSBA and Reed Smith. letters from CII and Reed Smith. 49 See letter from MDSBA. 50 See letter from Reed Smith. 51 See letters from Davis Polk, SFIG and SIFMA. 52 See letters from Davis Polk and SFIG. 53 See letter from SIFMA. 48 See E:\FR\FM\17MRR1.SGM 17MRR1 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES However, as proposed, the final rules exclude any XBRL exhibits.54 The final rules also exclude exhibits that are filed with Form ABS–EE. Since these exhibits are directly attached to that Form ABS– EE filing, which is essentially a cover page, an investor should have no difficulties locating the applicable exhibits.55 In addition, we are adopting, as proposed, the amendments to Forms F–10 and 20–F to require exhibit hyperlinks in these forms. At this time, we are not requiring exhibit hyperlinks in other forms under the multijurisdictional disclosure system used by certain Canadian issuers or in Form 6–K, as we agree with the commenter’s suggestion that hyperlinks in these forms may have less utility because exhibits, and an exhibit index, are not required for these forms.56 We are persuaded by commenters that exhibit hyperlinks in the initial registration statement and each subsequent pre-effective amendment, rather than just the registration statement that becomes effective, would further enhance the navigability of these documents, which may be used by investors to begin making investment decisions before effectiveness. Accordingly, we are amending Item 601 of Regulation S–K to require that each exhibit identified in the exhibit index (other than exhibits filed with Form ABS–EE or an exhibit filed in XBRL) must include an active link to an exhibit that is filed with the registration statement or report, or if the exhibit is incorporated by reference, an active hyperlink to the exhibit separately filed on EDGAR. In order to provide electronic filers time to prepare filings to include hyperlinks to exhibits, the final rules will take effect on September 1, 2017. However, we encourage early compliance with the new filing requirements. As noted above, a few commenters suggested that we require the refiling of any exhibits previously filed only in paper. In particular, commenters stated that articles of incorporation and bylaws should be required to be refiled 54 Although these exhibits are excluded under the final rules, the Commission is continuing efforts to modernize the format of information filed on EDGAR. See note 33 above. 55 Asset-backed issuers are required to incorporate by reference Form ABS–EE information in Form 10–D. Therefore, under the final rule, issuers will be required to include hyperlinks in the Form 10–D to any asset data file or asset-related document filed on Form ABS–EE that is incorporated by reference into the Form 10–D. We are, however, delaying the compliance date for any Form 10–D that will require hyperlinks to any exhibits filed with Form ABS–EE. See Section II.B.3 below. 56 See letter from Davis Polk. VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 electronically, given the importance of these documents to investors.57 We are not amending the final rules to require registrants to refile electronically any documents in paper, including organizational documents. In our experience, only a limited number of registrants have not electronically filed their articles of incorporation or bylaws, and we are mindful of commenters’ concerns about imposing additional compliance burdens.58 B. HTML Format for Registration Statements and Reports In connection with the proposed exhibit hyperlinking requirements, we proposed amendments to Rule 105 of Regulation S–T to require registrants to file registration statements and reports that include exhibits in the HTML format.59 We are adopting this proposal with a few changes made in response to comments. 1. Proposed Rules Rule 105 of Regulation S–T sets forth the limitations on, and liability for, the use of HTML documents and hyperlinks in electronic filings. Rule 105, among other things, currently permits hyperlinking to other documents within the same filing, such as exhibits, and to documents contained in other forms or schedules that have been previously filed on EDGAR. In addition, Rule 105 prohibits hyperlinking to Web sites, locations or other documents that are outside of the EDGAR system. Currently, registrants must submit electronic filings to the Commission using the EDGAR system in either the ASCII format or the HTML format. HTML has features that allow documents prepared in this format to include hyperlinks to another place within the same document or to a separate document. In contrast, documents prepared in the ASCII format cannot support functional hyperlinks.60 Because the ASCII format does not 57 See letters from CII and MDSBA. example, in connection with the economic analysis of the final rules, we examined a random sample of 146 Form 10–K filings made from October 1, 2015 to September 30, 2016. The articles of incorporation and by-laws filed with the Form 10–Ks in the sample were all filed electronically. See Section IV.A below. In addition, we note that registrants have the option to restate in electronic format an exhibit that was previously filed in paper. See Rule 102(a) of Regulation S–T. 59 We are continuing to consider ways to further enhance the presentation and usability of the exhibit index. For example, HTML tags identifying the exhibit index would make it possible to include a hyperlink to the index on a registrant’s search results EDGAR landing page, which could allow investors and other users to more easily access the exhibits. 60 HTML documents, however, can hyperlink to an ASCII document. 58 For PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 14133 support hyperlink functionality, the exhibit hyperlinking requirement would be feasible only if registrants are required to file in HTML. Under the proposed amendment, registrants would be required to file registration statements and reports subject to the exhibit filing requirements under Item 601 of Regulation S–K, and Forms 20–F and F–10, in HTML format. In the Proposing Release, we noted that, during 2015, only 175 registrants made filings in ASCII and that the HTML format has largely replaced ASCII as the filing format for the forms that would be affected by the amendments.61 2. Comments on the Proposed Rules No commenter opposed the proposed amendment to require HTML filings and two commenters specifically supported it.62 Three commenters suggested that we establish a phase-in or transition period for ASCII filers.63 Two of these commenters advocated providing smaller reporting companies and nonaccelerated filers with one additional year beyond the compliance date for accelerated filers to comply with the exhibit hyperlinking proposals,64 and the third commenter did not specify the length of the extension. In the Proposing Release, we requested comment on whether there are any particular difficulties in requiring registrants to provide hyperlinks to the exhibits identified in Item 601 of Regulation S–K that are filed with a registration statement or report, as proposed. Several commenters took this opportunity to provide their views on the liability issues concerning inadvertent or inaccurate hyperlinks. Two commenters expressed concern that Rule 105(c) of Regulation S–T would extend civil and antifraud liability to hyperlinks that are automatically created by software programs.65 Three commenters 61 During the 2015 calendar year, over 114,000 of the affected forms were filed on EDGAR. Approximately 845 (less than one percent) of those filings were submitted in the ASCII format. 62 See letters from Davis Polk and Reed Smith. 63 See letters from CGCIV, Chamber of Commerce and Reed Smith. 64 See letters from CGCIV and Chamber of Commerce. 65 See letters from CGCIV and Chamber of Commerce. In previous guidance, the Commission noted: ‘‘Some word processing programs automatically transform inactive textual references to electronic addresses (URLs) to hyperlinks. In addition, some browsers transform URLs to hyperlinks. We do not wish to discourage filers from including URLs to their own Web sites or to our Web site at www.sec.gov in their filings. Filers who include these URLs in HTML filings, accordingly, should take reasonable steps when they create the document in order to prevent URLs from being converted into hyperlinks. If this is E:\FR\FM\17MRR1.SGM Continued 17MRR1 14134 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations contended that inaccurate or inactive hyperlinks should not give rise to any liability or other penalties.66 Two commenters stated registrants should not be required to amend a previously filed report to correct an inaccurate or failed hyperlink.67 One commenter suggested that we should allow a registrant to make a correction to an inaccurate hyperlink in the registrant’s next report that includes an exhibit index.68 The other commenter suggested that we consider providing a mechanism to alert investors to inactive or obsolete hyperlinked exhibits and provide an efficient and simple process to correct such hyperlinks.69 mstockstill on DSK3G9T082PROD with RULES 3. Final Rule After considering the comments, we are adopting the amendments to Rule 105 of Regulation S–T substantially as proposed but with minor modifications. Under the final rules, registrants will be required to file in HTML format a registration statement or report subject to the exhibit filing requirements under Item 601 of Regulation S–K, and Forms 20–F and F–10. While the affected registration statements and reports will be required to be filed in HTML pursuant to the amendments to Rule 105, registrants may continue to file in ASCII any schedules or forms that are not subject to the exhibit filing requirements under Item 601, such as proxy statements, or other documents included with a filing, such as an exhibit. In response to comments, we are adopting a phase-in period for nonaccelerated filers 70 and smaller reporting companies.71 Non-accelerated filers and smaller reporting companies that submit filings in ASCII will have an additional one year after the effective date of the final rules to begin to comply with the rules. During the phase-in period, these filers may continue to file registration statements or reports in ASCII and will not need to include hyperlinks to the exhibits listed in the exhibit indexes of their filings. We are done, Rule 105 should not be read as imposing liability on any such hyperlinks that may be created after the filing is made.’’ Release No. 33–7855 (Apr. 24, 2000) [81 FR 62689]. 66 See letters from Reed Smith, SFIG and SIFMA. 67 See letters from E&Y and Reed Smith. 68 See letter from Reed Smith. 69 See letter from E&Y. 70 Although the term ‘‘non-accelerated filer’’ is not defined in Commission rules, we use this term to refer to a reporting company that does not meet the definition of either an ‘‘accelerated filer’’ or a ‘‘large accelerated filer’’ under Exchange Act Rule 12b–2. 71 ‘‘Smaller reporting company’’ is defined in Securities Act Rule 405 [17 CFR 230.405], Exchange Act Rule 12b–2 [17 CFR 240.12b–2], and Item 10(f)(1) of Regulation S–K [17 CFR 229.10(f)(1)]. VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 persuaded that a delay in the compliance date for these registrants may help mitigate some of the cost burdens for smaller reporting companies related to switching over to the HTML format. We are also adopting a phase-in period for certain filings on Form 10–D. Currently, the staff is working on programming changes to EDGAR that will allow issuers to include the Form 10–D and Form ABS–EE in a single submission so that the required hyperlinks can be created at the time the Form 10–D is filed. The implementation of these programming changes will not be completed by the effective date of the final rules. Accordingly, we are delaying the compliance date with respect to any Form 10–D that will require hyperlinks to any exhibit filed with Form ABS–EE. We will publish a document on our Web site and in the Federal Register announcing the compliance date for Form 10–D when it is determined. A few commenters noted that it would not be possible to hyperlink to an exhibit that is filed for the first time with a registration statement or report because no web address would be available for that exhibit before the filing is made. Although these commenters make a valid point, as explained below, we do not believe this will prevent registrants from complying with the final rules. Rule 11 of Regulation S–T defines the term ‘‘hyperlinks’’ to mean the representation of an Internet address in a form that an Internet browser application can recognize as an Internet address.72 We used the term ‘‘hyperlinks’’ more generically in the Proposing Release to include, in addition to links to a previously filed exhibit that is being incorporated by reference into the registration statement or report, links from a registration statement or report to an exhibit that is being filed at the same time. As we noted in the Proposing Release, HTML has features that allow electronic documents prepared in this format to include links to another place within the same document or to a separate document. Thus, under the EDGAR system, registrants can include a link to an exhibit that is filed with a registration statement or report. In connection with the adoption of these amendments, we will be issuing an updated EDGAR Filer Manual that will describe the procedures needed to create a hyperlink to an exhibit that the registrant previously filed with a 72 In the Proposing Release, we proposed a minor change to the definition of the term ‘‘hypertext links or hyperlinks’’ in Rule 11 of Regulation S–T to delete the term ‘‘hypertext links.’’ We are adopting this change. PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 registration statement or report and the procedures needed to create a link to an exhibit that is being filed at the same time as the registration statement or report. In response to the concerns of several commenters regarding the means to correct inaccurate exhibit hyperlinks, we are adding an instruction to Rule 105 stating that a registrant must correct a nonfunctioning hyperlink or hyperlink to the wrong exhibit by filing, in the case of a registration statement that is not yet effective, a pre-effective amendment to such registration statement, or in the case of a registration statement that is effective or an Exchange Act report, in the next Exchange Act periodic report that requires, or includes, an exhibit pursuant to Item 601 of Regulation S–K (or in the case of a foreign private issuer, pursuant to Form 20–F or Form F–10).73 Furthermore, we note that where a filing contains an inaccurate exhibit hyperlink, the inaccurate hyperlink alone would not render the filing materially deficient, nor affect a registrant’s eligibility to use short-form registration statements. In addition, we remind registrants that EDGAR does not accept documents containing web addresses that hyperlink to external Web sites.74 In light of the fact that many of the liability issues identified by commenters appear most relevant for hyperlinks to external Web sites, we do not believe that a reexamination of the liability treatment of hyperlinks is warranted at this time. However, as we continue to consider the expanded use of hyperlinks in Commission filings, we will bear these considerations in mind. III. Other Matters If any of the provisions of these rules, or the application thereof to any person or circumstance, is held to be invalid, such invalidity shall not affect other provisions or application of such provisions to other persons or circumstances that can be given effect without the invalid provision or application. 73 Once the registration statement is effective, the registrant must correct an inaccurate hyperlink in its next Exchange Act periodic report that contains an exhibit index, or alternatively, the registrant could correct the inaccurate hyperlink by filing a post-effective amendment to the registration statement. 74 See Rule 105(b) of Regulation S–T. If a document is filed containing a hyperlink to an external Web site, EDGAR will reject the document and the electronic filer must resubmit the document without the hyperlink to the external Web site. E:\FR\FM\17MRR1.SGM 17MRR1 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations IV. Economic Analysis We are adopting amendments that will require registrants that file registration statements and reports that are subject to the exhibit requirements under Item 601 of Regulation S–K, or that file on Forms F–10 or 20–F, to include a hyperlink to each exhibit identified in the exhibit index of these filings and to submit all such filings in HTML format.75 We are sensitive to the costs and benefits of the final rules. In this economic analysis, we examine the current regulatory framework and market practices, which together constitute a baseline for analysis, and discuss the anticipated economic effects of the amendments, relative to this baseline, and their potential effects on efficiency, competition, and capital formation.76 We also consider the potential costs and benefits of reasonable alternatives to the amendments. Where practicable, we attempt to quantify the economic effects of the amendments; however, in certain cases, we are unable to do so because we lack necessary information. We do, however, provide a qualitative assessment of the likely economic effects. The proposing release requested comment on all aspects of the economic effects, including the costs and benefits of the proposals and possible alternatives to the proposed amendments. The Commission also solicited comment in the proposing release on whether the proposals, if adopted, would promote efficiency, competition, or capital formation, or have an impact or burden on competition. mstockstill on DSK3G9T082PROD with RULES A. Baseline The amendments will affect all registrants that file registration statements and reports that are required to include exhibits under Item 601 of Regulation S–K, specifically Forms S–1, S–3, S–4, S–8, S–11, SF–1, SF–3, F–1, F–3, and F–4 under the Securities Act and Forms 10, 10–K, 10–Q, 8–K, and 10–D under the Exchange Act. In addition, the amendments will affect registrants that file on Forms F–10 and 20–F. Although registrants that currently file registration statements and reports in HTML format will not be 75 The amendments exclude exhibits filed with Form ABS–EE and XBRL exhibits. 76 Exchange Act Section 23(a)(2) [15 U.S.C. 78w(a)] requires us, when adopting rules, to consider the impact that any new rule would have on competition. In addition, Section 2(b) of the Securities Act [15 U.S.C. 77b(b)] and Section 3(f) of the Exchange Act [15 U.S.C. 78c(f)] direct us, when engaging in rulemaking that requires us to consider VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 14135 affected by the requirement to file in HTML format, they will be required to include hyperlinks from the exhibits identified in the exhibit index to the exhibits that are filed with the document or that were previously filed with another document. Because the ASCII format does not support hyperlink capabilities, registrants that currently file these forms and reports in ASCII format will be required to file in HTML in addition to complying with the exhibit hyperlinking requirement. We estimate that, from October 1, 2015 to September 30, 2016, 9,221 registrants filed either a registration statement or a report in HTML, while 152 registrants made filings in ASCII. Table 1 below shows the number of registration statements and reports that registrants filed with the Commission from October 1, 2015 to September 30, 2016. Table 1 also presents the number of filings submitted in HTML format and ASCII format, respectively, including amendments. Because hyperlinking is not available in ASCII format, we present the baseline analysis of filings separately for HTML and ASCII formats. As shown in Table 1, among the types of forms affected by the amendments, Forms S–1, S–8, 10–K, 10–Q, 10–D, and 8–K were the most frequently filed in HTML format from October 1, 2015 to September 30, 2016. As a proxy for registrants’ size, we used the filer status that registrants reported in their Form 10–K from October 1, 2015 to September 30, 2016. We found that 32.5% of the registration statements and reports (including amendments) filed in HTML format were filed by large accelerated filers, 21.3% by accelerated filers and 35.2% by smaller reporting companies or non-accelerated filers.79 From October 1, 2015 to September 30, 2016, a limited set of form types were filed in ASCII format. In particular, Forms 8–K, 10–D, 10–Q and 10–K were most frequently filed in ASCII format. We found that, of the registration statements and reports (including amendments) filed in ASCII, 4.5% were filed by large accelerated filers, 0.8% by accelerated filers, and 56% by smaller reporting companies or non-accelerated filers.80 To draw a baseline indicative of the current disclosure practices by HTML TABLE 1—NUMBER OF REGISTRATION STATEMENTS AND REPORTS FILED filers, we selected a random sample of FROM OCTOBER 1, 2015 TO SEP- 600 filings of registration statements and reports (including amended filings) TEMBER 30, 2016 from October 1, 2015 to September 30, 2016. This sample included 146 Securities Act registration randomly selected Form 10–K filings Number of filings statements and and 454 randomly selected other filings (including Exchange Act in HTML format. Amendments) forms The amendments will require HTML ASCII registrants to include hyperlinks for all Form S–1 .......................... 2,295 12 exhibits listed in the exhibit index, Form S–3 .......................... 940 6 whether included with the filing or Form S–4 .......................... 716 0 incorporated by reference from a Form S–8 .......................... 1,988 1 previously filed document. Table 2 Form S–11 ........................ 128 0 below shows the average and median Form SF–1 ........................ 6 0 81 Form SF–3 ........................ 154 0 number of exhibits listed in the Form F–1 .......................... 237 0 random sample of 600 filings by the Form F–3 .......................... 113 0 type of forms affected by the Form F–4 .......................... 90 0 amendments. Form Form Form Form Form Form Form F–10 ........................ 10 77 ........................ 20–F ........................ 10–K ........................ 10–Q ....................... 8–K 78 ...................... 10–D ........................ 117 340 751 8,349 21,278 73,337 5,947 0 54 0 65 142 282 236 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. 77 The number of Form 10s includes Forms 10– 12B and 10–12G. 78 The number of Form 8–Ks includes Form 8– K12B. PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 79 The remaining 11% of filings in HTML format from October 1, 2015 to September 30, 2016 were filed by registrants whose filer status was not indicated. 80 The remaining 38.7% of sampled filings in ASCII format were filed by registrants whose filer status was not indicated. 81 We did not include XBRL exhibits because these exhibits are not covered by the final rules. E:\FR\FM\17MRR1.SGM 17MRR1 14136 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations TABLE 2—NUMBER OF EXHIBITS Number of exhibits listed in the index Number of exhibits filed with the form Number of exhibits incorporated by reference Number of sampled filings Average 82 Form S–1 ..................... Form S–3 ..................... Form S–4 ..................... Form S–8 ..................... Form S–11 ................... Form SF–1 ................... Form SF–3 ................... Form F–1 ..................... Form F–3 ..................... Form F–4 ..................... Form F–10 ................... Form 10 ........................ Form 20–F ................... Form 10–K ................... Form 10–Q ................... Form 8–K ..................... Form 10–D ................... All Forms ...................... Forms S–1, S–4, S–11, F–1, F–4, F–10, 20– F and 10–K ............... Other Forms & Reports Median 83 Average Median Average Median 29.1 10.4 50.6 5.6 24.7 ........................ 8.4 21.8 8.0 20.2 17.0 6.6 32.6 34.8 7.1 1.3 1.0 19.5 20.0 10.0 18.0 5.0 30.0 ........................ 6.0 22.5 7.5 23.0 17.0 2.0 34.0 31.0 5.5 1.0 1.0 10.0 10.8 4.5 11.9 3.1 14.3 ........................ 6.1 20.6 4.8 15.2 15.0 6.6 11.2 7.5 4.0 1.2 0.8 5.7 5.0 4.0 9.0 3.0 10.0 ........................ 4.0 22.5 4.0 17.0 15.0 2.0 8.0 6.0 4.0 1.0 1.0 4.0 18.3 5.9 37.2 2.5 10.3 ........................ 2.3 1.1 3.25 1.0 2.0 0.0 21.4 26.6 3.1 0.1 0.0 13.8 0.0 4.0 14.0 2.5 0.0 ........................ 2.0 0.0 1.5 0.5 2.0 0.0 27.0 24.5 0.5 0.0 0.0 3.0 16 17 9 24 3 0 11 8 8 5 1 7 5 146 50 265 25 600 33.4 3.0 28.0 1.0 8.8 2.1 11.0 1.0 23.8 1.9 18.0 0.0 193 407 Table 2 shows a significant variation in the number of exhibits listed in the exhibit index across different types of forms. Among the Securities Act registration statements, Forms S–1, S–4, S–11, F–1, F–4 and F–10 typically contain a large number of exhibits, while among the Exchange Act reports, Forms 20–F and 10–K contain significantly more exhibits than other form types. Overall, Forms S–1, S–4, S– 11, F–1, F–4, F–10, 20–F and 10–K had a median number of 33 exhibits, compared to a median of three exhibits in the other nine types of registration statements and reports. Forms S–1, S–4, S–11, F–1, F–4, F–10, 20–F and 10–K also had significantly more exhibits incorporated by reference than the other nine types of registration statements and reports affected by the amendments. In general, the number of exhibits slightly decreases with a registrant’s size for the sampled filings submitted from October 1, 2015 to September 30, 2016. Of the 600 sampled filings, the filings by non-accelerated filers and smaller reporting companies had a median of five exhibits; filings by accelerated filers had a median of three exhibits; and large accelerated filers had a median of two exhibits. Of the 600 sampled filings, we found that the exhibit indexes of only 48 (8%) of the filings included hyperlinks. We found 14 out of 48 filings included hyperlinks for all exhibits. In the 34 instances when registrants did not include hyperlinks for all exhibits, they were more likely to include hyperlinks to exhibits incorporated by reference. Of the sampled filings on Form S–1, S–4, S–11, F–1, F–4, F–10, 20–F and 10–K, approximately 4% had exhibit indexes that contained hyperlinks for one or more exhibits in the index (‘‘partially hyperlinked’’). In particular, while we found four fully hyperlinked Form 10– Ks, 18 of the 146 sampled Form 10–Ks were partially hyperlinked. TABLE 3—TYPE OF FORMS FROM WHICH EXHIBITS WERE INCORPORATED BY REFERENCE mstockstill on DSK3G9T082PROD with RULES Exhibit incorporated by reference from: Into: Form Form Form Form Form Form Form Form Form S–1 (%) S–1 ................. S–3 ................. S–4 ................. S–8 ................. S–11 ............... SF–1 ............... SF–3 ............... F–1 ................. Form F–1 (%) 20 14 42 30 0 0 0 0 0 0 0 0 0 0 0 0 82 Average represents the sum of number of exhibits divided by the number of sampled forms for each form type. 83 Median represents the middle number of exhibits for each form type when the numbers of exhibits are listed from the smallest to the largest. For instance, for Forms S–1, the number of exhibits VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 Form 10–K (%) Form 20–F (%) 14 2 10 5 0 0 0 0 0 0 0 2 0 0 0 67 Form 8–K (%) 31 57 24 30 45 0 44 0 listed in the index ranged from 1 to 125, with 20 as the middle number. 84 Pursuant to Securities Act Rule 411 [17 CFR 230.411] and Exchange Act Rule 12b–23 [17 CFR 240.12b–23], registrants can, under certain conditions, incorporate information by reference in answer, or partial answer, to an item of a PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 Form 10–Q (%) 11 10 6 13 3 0 0 0 Other forms with exhibit index requirement (%) 22 9 10 12 0 0 56 0 Other forms without exhibit index requirement 84 (%) 1 8 8 8 52 0 0 33 registration statement or report. Generally, the incorporated information must be filed as an exhibit to the registration statement or report. In our analysis of the 600 sampled filings, we found several exhibits that were filed for this purpose. E:\FR\FM\17MRR1.SGM 17MRR1 14137 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations TABLE 3—TYPE OF FORMS FROM WHICH EXHIBITS WERE INCORPORATED BY REFERENCE—Continued Exhibit incorporated by reference from: Form Form Form Form Form Form Form Form Form Form S–1 (%) F–3 ................. F–4 ................. F–10 ............... 10 .................... 20–F ............... 10–K ............... 10–Q ............... 8–K ................. 10–D ............... Form F–1 (%) 0 0 0 0 1 8 6 10 0 77 0 0 0 7 0 0 0 0 Under the amendments, the hyperlink requirement will make exhibits incorporated by reference in the affected registration statements and reports more easily accessible. For the exhibits incorporated by reference that were listed in the 600 sampled filings, Table 3 shows the form types from which the exhibits were incorporated. The majority of exhibits were incorporated from the same registration statements and reports affected by the amendments. For example, exhibits in Forms S–1 were largely incorporated from previously filed Forms 8–K, 10–K, S–1, and 10–Q. Only a small percentage of exhibits were incorporated from form types without an exhibit index requirement, such as proxy statements. ASCII Filers We reviewed 200 registration statements and reports filed in ASCII format from October 1, 2015 to September 30, 2016. In particular, we reviewed 60 Form 10–Ks and a randomly selected sample of 140 other forms filed in ASCII format, including amendments. The exhibit indexes in the ASCII filings listed significantly lower average and median numbers of exhibits than in HTML filings. For example, the sampled Form 10–Qs and 10–Q/As reported a median of one exhibit. The 60 Form 10–Ks and 10–K/As filed in ASCII format from October 1, 2015 to September 30, 2016 included a median of two exhibits, mostly filed with the form. Given that the ASCII format does not support hyperlinks, no exhibit index included hyperlinks. mstockstill on DSK3G9T082PROD with RULES B. Potential Economic Effects Relative to unlinked cross-references, hyperlinks will not only supply users with the location of a specific exhibit, but also allow users to reach that location more easily and quickly. Requiring exhibit hyperlinks will help investors and other users to access a particular exhibit more efficiently as VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 Form 10–K (%) Form 20–F (%) 0 0 0 0 0 19 13 10 0 Form 8–K (%) 4 0 0 0 73 0 1 0 0 0 0 0 0 0 43 55 45 0 they will not need to search within the filing or through different filings made over time to locate the exhibit. Many commenters agreed that hyperlinking would make it easier for investors and other users to retrieve exhibit information from SEC filings.85 Several commenters agreed that hyperlinking would reduce the amount of time required for investors to access exhibit information.86 We expect that hyperlinks will be more beneficial in reducing search costs in the case of exhibits incorporated by reference than in the case of exhibits filed with the filing, and in particular, we expect these benefits to be most pronounced in the case of incorporation by reference from a filing that was not recently filed because more recent filings are displayed first on the EDGAR search results page. Further, we expect hyperlinks will have greater benefits in the case of registrants that submit more filings. Overall, we believe the amendments will reduce search costs for investors. For example, depending on the nature of the business or size of the registrant, a registrant may file multiple registration statements or reports in a given quarter or fiscal year. Requiring exhibit hyperlinks will make it easier for investors and other users to find and access a particular exhibit that was originally filed with a previous filing. The final rule will also require registrants to include hyperlinks to all exhibits required by Item 601 of Regulation S–K, Form F–10 and Form 20–F in each amendment. We believe hyperlinking to exhibits filed with each pre-effective amendment will be particularly beneficial to investors who begin to make an investment decision before the registration statement becomes effective, such as investors 85 See, e.g., letters from CII, E&Y, IAC and MDSBA. 86 See letters from CII, CRT and IAC. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 Form 10–Q (%) 0 0 0 0 0 18 13 10 0 Other forms with exhibit index requirement (%) 0 0 97 0 1 7 6 0 0 Other forms without exhibit index requirement 84 (%) 19 100 3 0 18 4 5 25 0 considering the preliminary prospectus.87 To the extent that hyperlinks ease the navigation process for investors and other users, hyperlinks may also facilitate a more thorough review of a registrant’s registration statements and reports and encourage more effective monitoring over time. The potential reduction of search costs and the enhanced ability of investors to review a registrant’s disclosure may result in more informed investment and voting decisions, potentially enhancing allocative efficiency and capital formation by registrants. As a result of the amendments, both HTML and ASCII registrants will incur compliance costs to include hyperlinks in their exhibit indexes. The cost of inserting a hyperlink to an exhibit incorporated by reference would likely be greater than the cost of inserting a link to an exhibit filed with the document. While the average cost itself of inserting a hyperlink is minimal,88 the total hyperlinking costs for registrants would be a function of two main factors: (1) How many registration statements and reports a registrant files that require an exhibit index; and (2) how many exhibits in the exhibit index of these registration statements and reports are either filed with the filing or incorporated by reference and would be subject to the hyperlinking requirement. For filers reporting in HTML, our baseline analysis indicates that few filers currently include fully hyperlinked exhibit indexes in registration statements and reports. Our analysis of a random sample of registration statements and reports filed between October 1, 2015 and September 87 Several commenters supported requiring exhibit hyperlinks in pre-effective amendments. See letters from Davis Polk, Reed Smith and SIFMA. 88 For purposes of the Paperwork Reduction Act, we estimate that registrants will incur, on average, between one and four burden hours to hyperlink to required exhibits, depending on the specific form type. See Section IV.D below. E:\FR\FM\17MRR1.SGM 17MRR1 14138 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES 30, 2016 indicates that approximately 8% of HTML filers included at least a partially hyperlinked exhibit index in their filings. For these HTML filers, the cost of fully hyperlinking their exhibit indexes could be less than for those HTML filers that have not previously hyperlinked their exhibit indexes. In addition to these costs, filers reporting in ASCII will incur costs to switch to HTML. While the registrants that file in ASCII and therefore will be affected by the amendment to require HTML are primarily small entities, we expect that the costs of switching to HTML will not be significant given the cost of software with built-in HTML and hyperlink features is minimal. In addition, the final rule will allow an extended phase-in period for nonaccelerated filers and smaller reporting companies. The delay in compliance should mitigate some of the burdens for those entities that are more likely to be adversely affected by the cost of switching from making filings in ASCII to HTML. Overall, given the modest costs involved, we do not expect that the amendments will have significant competitive effects for registrants. C. Alternatives We considered five alternatives to the final rules. First, instead of requiring hyperlinks in the exhibit index within registration statements and reports requiring an exhibit index under Item 601 of Regulation S–K and Forms F–10 and 20–F, we considered requiring registrants to include hyperlinks in a subset of these registration statements and reports. For example, we could have limited the hyperlinks requirement to exhibit indexes in those registration statements and reports that typically include lengthy exhibit indexes. Our analysis of a random sample of registration statements and reports filed from October 1, 2015 to September 30, 2016 indicates that exhibit indexes are more frequently included in filings on Forms S–1, S–8, 10–K, 10–Q, 8–K, and 10–D, but are lengthier in Forms S–1, S– 4, S–11, F–1, F–4, F–10, 20–F, and 10– K based on the average and median number of exhibits included in the exhibit index. For example, Forms 8–K and 10–Q are the forms most frequently filed but typically list a limited number of exhibits, most of which are included in the filing itself rather than incorporated by reference. Relative to the final rules, the alternative of limiting the scope of the exhibit hyperlinking requirement to fewer form types would lead to cost savings for registrants but also a smaller reduction in search costs for investors and other users. VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 Second, instead of requiring registrants to hyperlink each exhibit included in the exhibit index, we considered requiring registrants to hyperlink only exhibits incorporated by reference. Our analysis of the random sample of filings submitted from October 1, 2015 to September 30, 2016 indicates that, among the registration statements and reports, Forms 20–F and 10–K typically include a higher number of exhibits incorporated by reference. This alternative would lead to nominal cost savings for registrants but also a smaller reduction in search costs for investors, although search costs related to exhibits filed with the document would be relatively limited. Third, we considered requiring registrants to file and update a compilation of exhibits separately from the Form 10–K and other forms. A separate compilation of exhibits could have more prominence and make it easier for investors and other users to access relevant information on EDGAR, as there would be only one compilation for all exhibits regardless of what forms a registrant may file. Requiring a separate compilation, however, would impose an additional burden on registrants to prepare, file and update this disclosure and could make our disclosure regime more complex to the extent that relevant information is spread over multiple filings. Relatedly, several commenters suggested that a centralized exhibit page or a company profile landing page on EDGAR could provide more direct access to the exhibits.89 We are continuing to consider ways to further enhance the presentation and usability of the exhibit index on the EDGAR system.90 Fourth, we considered excluding ASCII filers from the requirement to hyperlink to each exhibit identified in the exhibit index and permitting them to continue filing in ASCII. Relative to the amendments, this alternative could be beneficial to ASCII filers as they would not incur the additional, although minimal, compliance costs of switching to HTML and hyperlinking their exhibit indexes. However, under this alternative, investors and other users of the information disclosed in ASCII filings would not benefit from reduced search costs. As noted above, the number of registrants affected by this amendment will be minimal, and the phase-in period for non-accelerated filers and smaller reporting companies should mitigate some of these costs. Fifth, given the relevance of organizational documents, such as 89 See 90 See PO 00000 letters from CRT, Davis Polk and E&Y. note 59 above. Frm 00028 Fmt 4700 Sfmt 4700 articles of incorporation and by-laws, to understanding a registrant’s corporate structure and operations, we considered requiring registrants to refile electronically on EDGAR their organizational documents previously filed in paper.91 We anticipate that the economic effects of this alternative would be minimal since only a limited number of registrants have not filed their articles of incorporation or by-laws in electronic format.92 V. Paperwork Reduction Act A. Background Certain provisions of the final rules contain ‘‘collection of information’’ requirements within the meaning of the Paperwork Reduction Act of 1995 (‘‘PRA’’).93 We published a notice requesting comment on the collection of information requirements in the Proposing Release for the amendments, and we submitted these requirements to the Office of Management and Budget (‘‘OMB’’) for review in accordance with the PRA.94 The titles for the collections of information are: ‘‘Form S–1’’ (OMB Control No. 3235– 0065); ‘‘Form S–3’’ (OMB Control No. 3235– 0073); ‘‘Form S–4’’ (OMB Control No. 3235– 0324); ‘‘Form S–8’’ (OMB Control No. 3235– 0066); ‘‘Form S–11’’ (OMB Control No. 3235– 0067); ‘‘Form F–1’’ (OMB Control No. 3235– 0258); ‘‘Form F–3’’ (OMB Control No. 3235– 0256); ‘‘Form F–4’’ (OMB Control No. 3235– 0325); ‘‘Form F–10’’ (OMB Control No. 3235– 0380); ‘‘Form SF–1’’ (OMB Control No. 3235– 0707); ‘‘Form SF–3’’ (OMB Control No. 3235– 0690); ‘‘Form 10’’ (OMB Control No. 3235– 0064); ‘‘Form 20–F’’ (OMB Control No. 3235– 0288); ‘‘Form 10–K’’ (OMB Control No. 3235– 0063); ‘‘Form 10–Q’’ (OMB Control No. 3235– 0070); ‘‘Form 8–K’’ (OMB Control No. 3235– 0060); 91 Several commenters suggested that it would be particularly beneficial to investors if organizational documents previously filed in paper were available on EDGAR. See, e.g., letters from CII and Reed Smith. 92 See note 57 above. 93 44 U.S.C. 3501 et seq. 94 44 U.S.C. 3507(d) and 5 CFR 1320.11. E:\FR\FM\17MRR1.SGM 17MRR1 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations ‘‘Form 10–D’’ (OMB Control No. 3235– 0604); ‘‘Regulation S–K’’ (OMB Control No. 3235–0071); and ‘‘Regulation S–T’’ (OMB Control No. 3235–0424).95 The forms, reports and Regulation S– K were adopted under the Securities Act and the Exchange Act and set forth the disclosure requirements for registration statements and reports filed by registrants to help investors make informed investment and voting decisions. Regulation S–T was adopted under the Securities Act and the Exchange Act and sets forth the requirements for the electronic submission of documents filed or otherwise submitted to the Commission. The hours and costs associated with preparing and filing the forms and reports constitute reporting and cost burdens imposed by each collection of information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information requirement unless it displays a currently valid OMB control number. Compliance with the information collections is mandatory. Responses to the information collections are not kept confidential and there is no mandatory retention period for the information disclosed. B. Summary of the Final Amendments As described in more detail above, we are adopting amendments to Regulations S–K and S–T and Forms F– 10 and 20–F to require registrants that file registration statements and reports subject to the exhibit requirements under Item 601 of Regulation S–K, or that file on Forms F–10 and 20–F, to submit these registration statements and reports in HTML format and to include a hyperlink from each exhibit identified in the exhibit index of such forms to the exhibit as filed on EDGAR (other than an exhibit filed in XBRL or exhibits mstockstill on DSK3G9T082PROD with RULES 95 The paperwork burdens from Regulations S–K and S–T are imposed through the forms that are subject to the requirements in these regulations and are reflected in the analysis of those forms. To avoid a PRA inventory reflecting duplicative burdens and for administrative convenience, we assign a onehour burden to each of Regulation S–K and Regulation S–T. VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 filed with Form ABS–EE). The final rules will require registrants to include hyperlinks to all exhibits required by Item 601, Form F–10 or Form 20–F in each amendment to a registration statement or report on these forms. C. Summary of Comment Letters and Revisions to Proposals In the Proposing Release, we requested comment on our PRA burden hour and cost estimates and the analysis used to derive such estimates. We did not receive any comments that addressed our PRA analysis and burden estimates of the proposed amendments. In response to comments on the proposed amendments, we have made one change to the rule proposals that will affect the compliance burdens for issuers. Under the final rules, registrants will be required to include hyperlinks to all exhibits required by Item 601, Form F–10 or Form 20–F in each amendment to a registration statement or report. D. Revisions to the Burden and Cost Estimates Burden We anticipate that the final amendments will increase the burdens and costs for registrants to prepare and file the affected forms. We believe the burdens associated with hyperlinking exhibits will remain minimal as the registrant, in preparing a filing, will already be preparing the exhibits and exhibit index for such filing and will have readily available all of the information necessary to create the hyperlinks. In addition, we assume that the average burden hours of requiring exhibit hyperlinks will vary based on the number of exhibits that are filed with an affected form. For purposes of the PRA, based on the average and median number of exhibits shown in Table 2 above, we estimate the average burden for a registrant to hyperlink to exhibits would be four hours for Forms 10–K and 20–F; three hours for Forms S–1, S–4, S–11, SF–1, F–1, F–4 and F– 10; two hours for Forms S–3, S–8, SF– 3, F–3, 10 and 10–Q; and one hour for Forms 10–D and 8–K. As a result of the change to the final rules described above, we have increased our burden estimates by one hour for all of the affected forms to reflect the burden for including PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 14139 hyperlinks to all required exhibits in each amendment to a registration statement or report. These estimates represent the average burden for all registrants, both large and small. In deriving our estimates, we recognize that the burdens will likely vary among individual registrants based on a number of factors, including the size and complexity of their operations. The tables below show the total annual compliance burden, in hours and in costs, of the collection of information resulting from the proposed amendments.96 The burden estimates were calculated by multiplying the estimated number of responses by the estimated average amount of time it would take an issuer to prepare and review the exhibit hyperlinks. The portion of the burden carried by outside professionals is reflected as a cost, while the portion of the burden carried by the issuer internally is reflected in hours. For purposes of the PRA, we estimate that 75% of the burden of preparation for Exchange Act reports is carried by the registrant internally and that 25% of the burden of preparation is carried by outside professionals retained by the registrant at an average cost of $400 per hour.97 For the registration statements on Forms 10, S–1, S–3, S–4, S–11, F–1, F–3, F–4, SF–1 and SF–3, and Exchange Act report Form 20–F, we estimate that 25% of the burden of preparation is carried by the company internally and that 75% of the burden of preparation is carried by outside professionals retained by the company at an average cost of $400 per hour. For the registration statement on Form S–8, we estimate that 50% of the burden of preparation is carried by the company internally and that 50% of the burden of preparation is carried by outside professionals. 96 For convenience, the estimated hour and cost burdens in the table have been rounded to the nearest whole number. 97 We recognize that the costs of retaining outside professionals may vary depending on the nature of the professional services, but for purposes of this PRA analysis, we estimate that such costs would be an average of $400 per hour. This estimate is based on consultations with several registrants, law firms and other persons who regularly assist registrants in preparing and filing reports with the Commission. E:\FR\FM\17MRR1.SGM 17MRR1 14140 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations TABLE 4—INCREMENTAL PAPERWORK BURDEN UNDER THE FINAL AMENDMENTS FOR EXCHANGE ACT FORMS Proposed number of affected responses Form Form Form Form Form Form Incremental burden hours/form Total Incremental burden hours 75% company 25% professional Professional costs (A) Exchange act forms (B) (C) = (A) * (B) (D) = (C) * 0.75 (E) = (C) * 0.25 (F) = (E) * $400 10 ............................ 20–F 98 .................... 10–K ....................... 10–Q ....................... 8–K ......................... 10–D ....................... 238 725 8,137 22,907 118,387 13,014 3 4 4 3 2 2 714 3,625 40,685 68,721 236,774 26,028 178 906 30,514 51,541 177,580 19,521 536 2719 10,171 17,180 59,194 6,507 $214,200 1,087,500 4,068,400 6,872,100 23,677,400 2,602,800 Total .......................... ........................ ........................ 376,547 ................................ ................................ 38,522,400 TABLE 5—INCREMENTAL PAPERWORK BURDEN UNDER THE FINAL AMENDMENTS FOR SECURITIES ACT REGISTRATION STATEMENTS Proposed number of affected responses Form Form Form Form Form Form Form Form Form Form Form Incremental burden hours/form Total incremental burden hours 25% company 75% professional Professional costs (A) Securities act registration statements (B) (C) = (A) * (B) (D) = (C) * 0.25 (E) = (C) * 0.75 (F) = (E) * $400 S–1 ......................... S–3 ......................... S–4 ......................... S–8 99 ..................... S–11 ....................... SF–1 ....................... SF–3 ....................... F–1 ......................... F–3 ......................... F–4 ......................... F–10 ....................... 901 1,082 619 2,200 100 6 71 63 107 68 40 4 3 4 3 4 4 3 4 3 4 4 3,604 3,246 2,476 6,600 400 24 213 252 321 272 160 901 811 619 3,300 100 6 53 63 80 68 40 2,703 2,435 1,857 3,300 300 18 160 189 241 204 120 $1,081,200 973,800 742,800 1,320,000 120,000 7,200 63,900 75,600 96,300 81,600 48,000 Total .......................... ........................ ........................ 17,568 ................................ ................................ 4,610,400 VI. Final Regulatory Flexibility Act Analysis investors and other users to retrieve and access exhibits that are filed on EDGAR. This Final Regulatory Flexibility Analysis (FRFA) has been prepared in accordance with the Regulatory Flexibility Act.100 This FRFA relates to final amendments that will require registrants to submit registration statements and reports subject to the exhibit requirements under Item 601 of Regulation S–K, or Forms 20–F and F– 10 in HTML format, to include a hyperlink to each exhibit listed in the exhibit index of such registration statement or report. B. Significant Issues Raised by Public Comments A. Need for the Amendments mstockstill on DSK3G9T082PROD with RULES The main purpose of the amendments is to improve investors’ access to information—in particular, the ability of 98 The calculations for Form 20–F reflect an allocation of a 25% internal burden carried by the company and a 75% external burden carried by outside professionals. 99 The calculation for Form S–8 reflects an allocation of a 50% internal burden carried by the company and a 50% external burden carried by outside professionals. 100 5 U.S.C. 601 et seq. VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 In the Proposing Release, we requested comment on any aspect of the Initial Regulatory Flexibility Analysis (‘‘IRFA’’), including the number of small entities that would be affected by the proposed rules, the nature of the impact, how to quantify the number of small entities that would be affected, and how to quantify the impact of the proposed amendments. We did not receive comments specifically addressing the IRFA. Several commenters, however, addressed aspects of the proposed amendments that could potentially affect small entities. In particular, two commenters expressed concerned that the proposed HTML formatting requirement would place a disproportionate burden on smaller reporting companies and nonaccelerated filers.101 These commenters advocated providing smaller reporting companies and non-accelerated filers with one additional year beyond the compliance date for accelerated filers to comply with the amendments. C. Small Entities Subject to the Final Rules The final rules will affect some companies that are small entities. The Regulatory Flexibility Act defines ‘‘small entity’’ to mean ‘‘small business,’’ ‘‘small organization,’’ or ‘‘small governmental jurisdiction.’’ 102 For purposes of the Regulatory Flexibility Act, under our rules, an issuer, other than an investment company, is a ‘‘small business’’ or ‘‘small organization’’ if it had total assets of $5 million or less on the last day of its most recent fiscal year and is engaged or proposing to engage in an offering of securities that does not exceed $5 million.103 An investment company, including a business 102 5 U.S.C. 601(6). Securities Act Rule 157 [17 CFR 230.157] and Exchange Act Rule 0–10(a) [17 CFR 240.0– 10(a)]. 103 See 101 See letters from CGCIV and Chamber of Commerce. PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\17MRR1.SGM 17MRR1 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations development company,104 is considered to be a ‘‘small business’’ if it, together with other investment companies in the same group of related investment companies, has net assets of $50 million or less as of the end of its most recent fiscal year.105 We estimate that there are 837 issuers, other than investment companies, that will be subject to the final rules that may be considered small entities.106 In addition, we estimate that there are 34 investment companies that will be subject to the final rules that may be considered small entities. D. Reporting, Recordkeeping, and Other Compliance Requirements The final rules will impose new compliance requirements for small entities. The final rules will require all registrants (including small entities) that file registration statements and reports that are subject to the exhibit requirements under Item 601 of Regulation S–K, or that file on Forms F– 10 or 20–F, to file these forms in HTML format and to hyperlink to each exhibit (other than an exhibit filed in XBRL or exhibits filed with Form ABS–EE) identified in the exhibit index contained in the form. The final rules will also require registrants to include hyperlinks to all of the exhibits required by Item 601, Form 10–F or Form 20–F in each amendment to a registration statement or report. E. Agency Action To Minimize Effect on Small Entities mstockstill on DSK3G9T082PROD with RULES The Regulatory Flexibility Act directs us to consider alternatives that would accomplish our stated objectives, while minimizing any significant adverse impact on small entities. In connection with the final rules, we considered the following alternatives: • Establishing different compliance or reporting requirements or timetables that take into account the resources available to small entities; • Clarifying, consolidating or simplifying compliance and reporting requirements under the rules for small entities; • Using performance rather than design standards; and • Exempting small entities from all or part of the requirements. We believe the amendments to require the inclusion of hyperlinks in the 104 Business development companies are a category of closed-end investment company that are not registered under the Investment Company Act [15 U.S.C. 80a–2(a)(48) and 80a–53–64]. 105 See Exchange Act Rule 0–10(a). 106 This estimate is based on a review of XBRL data, where available, submitted with Form 10–K and Form 20–F filings with fiscal periods ending between January 31, 2015 and January 31, 2016. VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 exhibit index will impose only minimal burdens on registrants. Similarly, we believe the requirement to submit registration statements and reports in HTML format should not impose significant costs. During calendar year 2015, approximately 0.74% of the forms that would be affected by the proposed amendments were filed in ASCII, and we believe that the HTML format has largely replaced the ASCII format for these form types. The limited use of ASCII indicates that the final amendments will affect only a limited number of registrants on a one-time basis. While the registrants that file forms in ASCII that would be affected by the proposal to require HTML are primarily small entities, we expect that the burden to switch from ASCII to HTML will not be significant because the software tools to file in HTML format are now widely used and available at a minimal cost. Accordingly, we do not believe that it is necessary to exempt small entities from the proposed amendments. For similar reasons, we have not sought to clarify, consolidate or simplify the proposed amendments’ requirements for small entities. Nevertheless, to minimize the initial compliance burden on small entities and give them additional time to prepare for compliance with the final rules, we are adopting a phase-in period for non-accelerated filers and smaller reporting companies that submit filings in ASCII. These registrants will have one year after the effective date of the final rules to begin to comply with the rules. During the phase-in period, a nonaccelerated filer or a smaller reporting company that submits filings in ASCII may continue to file registration statements or reports in ASCII and will not need to include hyperlinks to the exhibits listed in the exhibit indexes of its filings. The final rules use design rather than performance standards in order to promote uniform filing requirements for all registrants. VII. Statutory Authority The amendments contained in this release are being adopted under the authority set forth in Sections 6, 7, 8, 10 and 19(a) of the Securities Act, and Sections 3, 12, 13, 15(d), 23(a) and 35A of the Exchange Act. List of Subjects in 17 CFR Parts 229, 232, 239 and 249 Reporting and recordkeeping requirements, Securities. PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 14141 Text of the Final Amendments For the reasons set out in the preamble, 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 1. The authority citation for part 229 continues to read as follows: ■ Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78j–3, 78l, 78m, 78n, 78n–1, 78o, 78u–5, 78w, 78ll, 78 mm, 80a–8, 80a–9, 80a–20, 80a–29, 80a–30, 80a– 31(c), 80a–37, 80a–38(a), 80a–39, 80b–11 and 7201 et seq.; 18 U.S.C. 1350; Sec. 953(b) Pub. L. 111–203, 124 Stat. 1904; Sec. 102(a)(3) Pub. L. 112–106, 126 Stat. 309; and Sec. 84001, Pub. L. 114–94, 129 Stat. 1312. 2. Amend § 229.601 by revising paragraph (a)(2) to read as follows: ■ § 229.601 (Item 601) Exhibits. (a) * * * (2) Each registration statement or report shall contain an exhibit index, which must appear before the required signatures in the registration statement or report. For convenient reference, each exhibit shall be listed in the exhibit index according to the number assigned to it in the exhibit table. If an exhibit is incorporated by reference, this must be noted in the exhibit index. Each exhibit identified in the exhibit index (other than an exhibit filed in eXtensible Business Reporting Language or an exhibit that is filed with Form ABS–EE) must include an active link to an exhibit that is filed with the registration statement or report or, if the exhibit is incorporated by reference, an active hyperlink to the exhibit separately filed on EDGAR. If a registration statement or report is amended, each amendment must include hyperlinks to the exhibits required with the amendment. For a description of each of the exhibits included in the exhibit table, see paragraph (b) of this section. * * * * * PART 232—REGULATION S–T— GENERAL RULES AND REGULATIONS FOR ELECTRONIC FILINGS 3. The authority citation for part 232 continues to read in part as follows: ■ Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z–3, 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a–6(c), 80a–8, 80a–29, E:\FR\FM\17MRR1.SGM 17MRR1 14142 Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations 80a–30, 80a–37, 7201 et seq.; and 18 U.S.C. 1350, unless otherwise noted. * * * * * 4. Amend § 232.11 by removing the definition ‘‘Hypertext links or hyperlinks’’ and adding the definition ‘‘Hyperlinks’’ in alphabetical order to read as follows: ■ § 232.11 232. Definition of terms used in part * * * * * Hyperlinks. The term hyperlinks means the representation of an Internet address in a form that an Internet browser application can recognize as an Internet address. * * * * * ■ 5. Amend § 232.102 by revising paragraphs (a) and (d) to read as follows: § 232.102 Exhibits. (a) Exhibits to an electronic filing that have not previously been filed with the Commission shall be filed in electronic format, absent a hardship exemption. Previously filed exhibits, whether in paper or electronic format, may be incorporated by reference into an electronic filing to the extent permitted by § 229.10(d) of this chapter, Rule 411 under the Securities Act (§ 230.411 of this chapter), Rule 12b–23 or 12b–32 under the Exchange Act (§ 240.12b–23 or § 240.12b–32 of this chapter), Rules 0–4, 8b–23, and 8b–32 under the Investment Company Act (§§ 270.0–4, 270.8b–23 and 270.8b–32 of this chapter) and Rule 303 of Regulation S– T (§ 232.303). An electronic filer may, at its option, restate in electronic format any exhibit incorporated by reference that originally was filed in paper format. Note to paragraph (a): Exhibits to a Commission schedule filed pursuant to Section 13 or 14(d) of the Exchange Act may be filed in paper under cover of Form SE where such exhibits previously were filed in paper (prior to a registrant’s becoming subject to mandated electronic filing or pursuant to a hardship exemption) and are required to be refiled pursuant to the schedule’s general instructions. See Rule 311(b) of Regulation S–T (17 CFR 232.311(b)). mstockstill on DSK3G9T082PROD with RULES * * * * * (d) Each electronic filing requiring exhibits must include an exhibit index which must appear before the required signatures in the document. The index must list each exhibit filed, whether filed electronically or in paper. For electronic filings on Form F–10 (§ 239.40 of this chapter), Form 20–F (§ 249.220f of this chapter), or filings subject to Item 601 of Regulation S–K (§ 229.601 of this chapter), each exhibit identified in the exhibit index (other than an exhibit filed in eXtensible Business Reporting Language or an VerDate Sep<11>2014 19:31 Mar 16, 2017 Jkt 241001 exhibit that is filed with Form ABS–EE (§ 249.1401 of this chapter)) must include an active link to an exhibit that is filed with the document or, if the exhibit is incorporated by reference, an active hyperlink to the exhibit separately filed on EDGAR. Whenever a filer files an exhibit in paper pursuant to a temporary or continuing hardship exemption (§ 232.201 or § 232.202) or pursuant to § 232.311, the filer must place the letter ‘‘P’’ next to the listed exhibit in the exhibit index of the electronic filing to reflect the fact that the filer filed the exhibit in paper. In addition, if the exhibit is filed in paper pursuant to § 232.311, the filer must place the designation ‘‘Rule 311’’ next to the letter ‘‘P’’ in the exhibit index. If the exhibit is filed in paper pursuant to a temporary or continuing hardship exemption, the filer must place the letters ‘‘TH’’ or ‘‘CH,’’ respectively, next to the letter ‘‘P’’ in the exhibit index. Whenever an electronic confirming copy of an exhibit is filed pursuant to a hardship exemption (§ 232.201 or § 232.202(d)), the exhibit index should specify where the confirming electronic copy can be located; in addition, the designation ‘‘CE’’ (confirming electronic) should be placed next to the listed exhibit in the exhibit index. * * * * * ■ 6. Amend § 232.105 by revising the section heading and paragraphs (b) and (c) and adding paragraph (d) to read as follows: § 232.105 Use of HTML and hyperlinks. * * * * * (b) Electronic filers may not include in any HTML document hyperlinks to sites, locations, or documents outside the HTML document, except links to officially filed documents within the current submission and to documents previously filed electronically and located in the EDGAR database on the Commission’s public Web site (www.sec.gov). Electronic filers also may include within an HTML document links to different sections within that single HTML document. (c) If a filer includes an external hyperlink within a filed document, the information contained in the linked material will not be considered part of the document for determining compliance with reporting obligations, but the inclusion of the link will cause the filer to be subject to the civil liability and antifraud provisions of the federal securities laws with reference to the information contained in the linked material. (d) Electronic filers submitting Form F–10 (§ 239.40 of this chapter), Form PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 20–F (§ 249.220f of this chapter), or a registration statement or report subject to Item 601 of Regulation S–K (§ 229.601 of this chapter), must submit such registration statement or report in HTML and each exhibit identified in the exhibit index (other than an exhibit filed in eXtensible Business Reporting Language or an exhibit filed with Form ABS–EE (§ 249.1401 of this chapter)) must include an active link to an exhibit that is filed with the registration statement or report or, if the exhibit is incorporated by reference, an active hyperlink to the exhibit separately filed on EDGAR, unless such exhibit is filed in paper pursuant to a temporary or continuing hardship exemption under Rules 201 or 202 of Regulation S–T (§ 232.201 or § 232.202) or pursuant to Rule 311 of Regulation S–T (§ 232.311). Instructions to paragraph (d): (1) No hyperlink is required for any exhibit incorporated by reference that has not been filed with the Commission in electronic format. (2) An electronic filer must correct an inaccurate or nonfunctioning link or hyperlink to an exhibit, in the case of a registration statement that is not yet effective, by filing an amendment to the registration statement containing the inaccurate or nonfunctioning link or hyperlink; or, in the case of a registration statement that has become effective or an Exchange Act report, an electronic filer must correct the inaccurate or nonfunctioning link or hyperlink in the next Exchange Act periodic report that requires, or includes, an exhibit pursuant to Item 601 of Regulation S–K (§ 229.601 of this chapter) or, in the case of a foreign private issuer (as defined in § 229.405 of this chapter), Form 20–F (§ 249.220f of this chapter) or Form F–10 (§ 239.40 of this chapter). Alternatively, an electronic filer may correct an inaccurate or nonfunctioning link or hyperlink in a registration statement that has become effective by filing a post-effective amendment to the registration statement. PART 239—FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933 7. The authority citation for part 239 continues to read in part as follows: ■ Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z–2, 77z–3, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78o–7 note, 78u–5, 78w(a), 78ll, 78mm, 80a–2(a), 80a–3, 80a–8, 80a–9, 80a– 10, 80a–13, 80a–24, 80a–26, 80a–29, 80a–30, 80a–37, and Sec. 71003 and Sec. 84001, Pub. L. 114–94, 129 Stat. 1312, unless otherwise noted. * E:\FR\FM\17MRR1.SGM * * 17MRR1 * * Federal Register / Vol. 82, No. 51 / Friday, March 17, 2017 / Rules and Regulations 8. Amend Form F–10 (referenced in § 239.40) by revising paragraph D of General Instruction II to read as follows: ■ Note: The text of Form F–10 does not, and this amendment will not, appear in the Code of Federal Regulations. United States Securities and Exchange Commission Washington, DC 20549 Form F–10 Registration Statement Under the Securities Act of 1933 * * * * * General Instructions * * * * mstockstill on DSK3G9T082PROD with RULES * By the Commission. Dated: March 1, 2017. Brent J. Fields, Secretary. [FR Doc. 2017–04365 Filed 3–16–17; 8:45 am] PART 249—FORMS, SECURITIES EXCHANGE ACT OF 1934 * * * * D. A registrant must file the registration statement in electronic format via the Commission’s Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system in accordance with the EDGAR rules set forth in Regulation S– T (17 CFR part 232). For assistance with technical questions about EDGAR or to request an access code, call the EDGAR Filer Support Office at (202) 551–8900. For assistance with the EDGAR rules, call the Office of Information Technology in the Division of Corporation Finance at (202) 551–3600. Include an exhibit index in the registration statement, which must appear before the required signatures in the document. The exhibit index must list each exhibit according to the letter or number assigned to it. If an exhibit is incorporated by reference, this must be noted in the exhibit index. Each exhibit identified in the exhibit index (other than an exhibit filed in eXtensible Business Reporting Language) must include an active link to an exhibit that is filed with the registration statement or, if the exhibit is incorporated by reference an active hyperlink to the exhibit separately filed on EDGAR. If the registration statement is amended, each amendment must include active hyperlinks to the exhibits required with the amendment. For paper filings, the pages of the manually signed original registration statement should be numbered in sequence, and the exhibit index should give the page number in the sequential numbering system where each exhibit can be found. If filing the registration statement in paper under a hardship exemption in Rule 201 or 202 of Regulation S–T (17 CFR 232.201 or 232.202), or as otherwise permitted, a registrant must file with the Commission at its principal 19:31 Mar 16, 2017 report is amended, each amendment must include active hyperlinks to the exhibits required with the amendment. For paper filings, the pages of the manually signed original registration statement should be numbered in sequence, and the exhibit index should give the page number in the sequential numbering system where each exhibit can be found. * * * * * BILLING CODE 8011–01–P * II. Application of General Rules and Regulations VerDate Sep<11>2014 office five copies of the complete registration statement and any amendments, including exhibits and all other documents filed as a part of the registration statement or amendment. The registrant must bind, staple or otherwise compile each copy in one or more parts without stiff covers. The registrant must further bind the registration statement or amendment on the side or stitching margin in a manner that leaves the reading matter legible. The registrant must provide three additional copies of the registration statement or amendment without exhibits to the Commission. * * * * * 14143 Jkt 241001 9. The authority citation for part 249 continues to read in part as follows: ■ Authority: 15 U.S.C. 78a et seq. and 7201 et seq.; 12 U.S.C. 5461 et seq.; 18 U.S.C. 1350; Sec. 953(b) Pub. L. 111–203, 124 Stat. 1904; Sec. 102(a)(3) Pub. L. 112–106, 126 Stat. 309 (2012), Sec. 107 Pub. L. 112–106, 126 Stat. 313 (2012), and Sec. 72001 Pub. L. 114–94, 129 Stat. 1312 (2015), unless otherwise noted. * * * * * ■ 10. Amend Form 20–F (referenced in § 249.220f) by revising the fourth paragraph of the introductory text under ‘‘Instructions as to Exhibits’’ to read as follows: Note: The text of Form 20–F does not, and this amendment will not, appear in the Code of Federal Regulations. DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 1, 101, 112, 115, 117, 118, 507, and 800 [Docket No. FDA–2017–N–0011] Presiding Officer for an Appeal and Informal Hearing; Technical Amendments AGENCY: Food and Drug Administration, HHS. Final rule; technical amendments. ACTION: The Food and Drug Administration (FDA, the Agency, or we) is making revisions to Chapter I of its regulations. These revisions are necessary to reflect changes to the Agency’s organizational structure, including the dissolution of the Regional Food and Drug Director position. The revisions replace references to the Regional Food and Drug Director, who is designated to preside over administrative appeals and at informal hearings on appeal, with references to Office of Regulatory Affairs Program Directors. The rule does not impose any new regulatory requirements on affected parties. This action is editorial in nature and is intended to improve the accuracy of the Agency’s regulations. DATES: This rule is effective March 17, 2017. FOR FURTHER INFORMATION CONTACT: Peter Fox, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20852, 240–402–1857. SUPPLEMENTARY INFORMATION: SUMMARY: Form 20–F * * * * * * * * Part III * * Item 19. Exhibits * * * * * Instructions as to Exhibits * * * * * Include an exhibit index in each registration statement or report you file, which must appear before the required signatures in the document. The exhibit index must list each exhibit according to the number assigned to it below. If an exhibit is incorporated by reference, this must be noted in the exhibit index. Each exhibit identified in the exhibit index (other than an exhibit filed in eXtensible Business Reporting Language) must include an active link to an exhibit that is filed with the registration statement or report or, if the exhibit is incorporated by reference an active hyperlink to the exhibit separately filed on EDGAR. If a registration statement or PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\17MRR1.SGM 17MRR1

Agencies

[Federal Register Volume 82, Number 51 (Friday, March 17, 2017)]
[Rules and Regulations]
[Pages 14130-14143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-04365]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 229, 232, 239 and 249

[Release Nos. 33-10322; 34-80132; File No. S7-19-16]
RIN 3235-AL95


Exhibit Hyperlinks and HTML Format

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: We are adopting amendments that will require registrants that 
file registration statements and reports subject to the exhibit 
requirements under Item 601 of Regulation S-K, or that file Forms F-10 
or 20-F, to include a hyperlink to each exhibit listed in the exhibit 
index of these filings. To enable the inclusion of such hyperlinks, the 
amendments also require that registrants submit all such filings in 
HyperText Markup Language (``HTML'') format.

DATES: Effective on September 1, 2017.
    Compliance Dates: Registrants must comply with the final rules for 
filings submitted on or after September 1, 2017. A registrant that is a 
``smaller reporting company,'' as defined in Securities Act Rule 405 
and Exchange Act Rule 12b-2, or that is neither a ``large accelerated 
filer'' nor an ``accelerated filer,'' as defined in Exchange Act Rule 
12b-2, and that submits filings in ASCII need not comply with the final 
rules until September 1, 2018, one year after the effective date.
    The compliance date with respect to any Form 10-D that will require 
hyperlinks to any exhibits filed with Form ABS-EE is delayed until 
Commission staff has completed

[[Page 14131]]

technical programming changes to allow issuers to include such forms in 
a single submission. Once these programming changes are complete, the 
Commission will publish in the Federal Register a document notifying 
the public of the compliance date for Form 10-D.

FOR FURTHER INFORMATION CONTACT: N. Sean Harrison, Special Counsel, at 
(202) 551-3430, in the Office of Rulemaking, Division of Corporation 
Finance, U.S. Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549.

SUPPLEMENTARY INFORMATION: We are adopting amendments to Item 601 of 
Regulation S-K,\1\ Forms 20-F \2\ and F-10,\3\ and Rules 11,\4\ 102 \5\ 
and 105 \6\ of Regulation S-T.\7\
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    \1\ 17 CFR 229.601.
    \2\ 17 CFR 249.20f.
    \3\ 17 CFR 239.40.
    \4\ 17 CFR 232.11.
    \5\ 17 CFR 232.102.
    \6\ 17 CFR 232.105.
    \7\ 17 CFR 232.10 et seq.
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I. Introduction

    On August 31, 2016, we proposed rule and form amendments to require 
registrants to include a hyperlink to each exhibit identified in the 
exhibit index in any registration statement or report that is required 
to include exhibits under Item 601 of Regulation S-K or under Form F-10 
or Form 20-F.\8\ In addition, because the text-based American Standard 
Code for Information Interchange (``ASCII'') format cannot support 
functional hyperlinks, we proposed to require registrants filing such 
registration statements or reports to file these forms on EDGAR in 
HTML. These proposals were intended to facilitate easier access to 
these exhibits for investors and other users of the information.
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    \8\ See Release No. 33-10201 (Aug. 31, 2016) [81 FR 62689] (the 
``Proposing Release'').
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    We received comment letters from individuals, professional and 
trade associations, law firms and other interested parties.\9\ The 
commenters overwhelmingly supported the proposal to require registrants 
to include hyperlinks to the exhibits filed with registration 
statements or reports. Some commenters suggested that we adopt 
additional requirements, such as requiring registrants to refile 
exhibits that were previously filed in paper. Other commenters 
expressed concerns about some aspects of the proposed amendments and 
suggested modifications to the proposals. We have reviewed and 
considered all of the comments that we received on the proposals. The 
final rules reflect changes made in response to these comments. We 
discuss the changes in more detail below.
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    \9\ The commenters were: The Center for Audit Quality (``CAQ''); 
the Corporate Governance Coalition for Investor Value (``CGCIV''); 
the Council of Institutional Investors (``CII''); the Credit 
Roundtable (``CRT''); Davis Polk & Wardwell LLP (``Davis Polk''); 
the Chamber of Commerce; Ernst & Young LLP (``E&Y''); the Investor 
Advocacy Clinic at Georgia State University College of Law 
(``IAC''); Veronique Joseph; Mary Sue; the Maryland State Bar 
Association (``MDSBA''); Reed Smith LLP; the Securities Industry and 
Financial Markets Association (``SIFMA''); the Structured Finance 
Industry Group (``SFIG''); Jacob Vollmer; and John Wahh.
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II. Discussion of the Final Amendments

A. Hyperlinking to Exhibits

    We proposed to amend Item 601 of Regulation S-K and Rules 11 and 
102 \10\ of Regulation S-T to require registrants to include a 
hyperlink to each filed exhibit as identified in the exhibit index, 
unless the exhibit is filed in paper pursuant to a temporary or 
continuing hardship exemption under Rules 201 \11\ or 202 \12\ of 
Regulation S-T or pursuant to Rule 311 \13\ of Regulation S-T. We 
proposed corresponding amendments to Form F-10 and Form 20-F to require 
foreign private issuers to include hyperlinks to the exhibits filed 
with these forms. We are adopting these requirements substantially as 
proposed, but with some changes reflecting comments we received.\14\
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    \10\ Rule 102 of Regulation S-T requires each exhibit to an 
electronic filing to be filed electronically unless there is an 
applicable exemption.
    \11\ 17 CFR 232.201.
    \12\ 17 CFR 232.202.
    \13\ 17 CFR 232.311.
    \14\ We are also adopting an amendment to Rule 102(a) of 
Regulation S-T to correct an outdated reference to a rule that was 
rescinded.
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1. Proposed Amendments
    Item 601 of Regulation S-K specifies the exhibits that registrants 
must file with registration statements filed under the Securities Act 
of 1933 (``Securities Act'') \15\ and Securities Exchange Act of 1934 
(``Exchange Act'') \16\ and with periodic and current reports under the 
Exchange Act, which we refer to collectively in this release as the 
``registration statements and reports.'' Item 601 also requires 
registrants to include an exhibit index that lists each exhibit 
included with the filing.\17\ Once an exhibit is filed, registrants can 
incorporate it by reference to meet the exhibit requirements in 
subsequent filings to the extent permitted by our rules or the 
applicable disclosure form.\18\
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    \15\ 15 U.S.C. 77a et seq.
    \16\ 15 U.S.C. 78a et seq.
    \17\ See Item 601(a)(2) of Regulation S-K [17 CFR 
229.601(a)(2)]. Rule 102(d) of Regulation S-T [17 CFR 232.102(d)] 
and Exchange Act Rule 0-3(c) [17 CFR 240.0-3(c)] also require 
filings with exhibits to include an exhibit index.
    \18\ See, e.g., Item 10(d) of Regulation S-K [17 CFR 229.10(d)]. 
Item 10(d) provides, with certain exceptions, that where rules, 
regulations, or instructions to forms of the Commission permit 
incorporation by reference, a document may be so incorporated by 
reference to the specific document and to the prior filing or 
submission in which such document was physically filed or submitted.
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    Under the current system, someone seeking to retrieve and access an 
exhibit that has been incorporated by reference must review the exhibit 
index to determine the filing in which the exhibit is included, and 
then must search through the registrant's filings to locate the 
relevant filing. This process can be both time consuming and 
cumbersome.
    We proposed to apply the amendments to nearly all of the 
registration statements and reports that are required to include 
exhibits under Item 601, specifically Forms S-1,\19\ S-3,\20\ S-4,\21\ 
S-8,\22\ S-11,\23\ F-1,\24\ F-3,\25\ F-4,\26\ SF-1,\27\ and SF-3 \28\ 
under the Securities Act; and Forms 10,\29\ 10-K,\30\ 10-Q, 8-K,\31\ 
and 10-D \32\ under the Exchange Act. In addition, we proposed 
corresponding amendments to Form F-10 and Form 20-F. However, the 
proposed amendments excluded the exhibits filed with Form ABS-EE as 
well as any XBRL exhibits. We excluded the exhibits filed with Form 
ABS-EE because the form is used solely to facilitate the filing of 
tagged data and related information that must be filed as exhibits to 
that form. Form ABS-EE does not permit exhibits to be incorporated by 
reference and is filed in unconverted code. XBRL exhibits are similarly 
filed in unconverted code.\33\

[[Page 14132]]

Therefore, we concluded preliminarily that it was not necessary to 
require hyperlinks to exhibits filed with Form ABS-EE or to XBRL 
exhibits.
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    \19\ 17 CFR 239.11.
    \20\ 17 CFR 239.13.
    \21\ 17 CFR 239.25.
    \22\ 17 CFR 239.16b.
    \23\ 17 CFR 239.18.
    \24\ 17 CFR 239.31.
    \25\ 17 CFR 239.33.
    \26\ 17 CFR 239.34.
    \27\ 17 CFR 239.44.
    \28\ 17 CFR 239.45.
    \29\ 17 CFR 249.210.
    \30\ 17 CFR 249.310.
    \31\ 17 CFR 249.308.
    \32\ 17 CFR 249.312.
    \33\ The Commission announced in June 2016 a time-limited 
program to permit registrants to voluntarily file structured 
financial statement data using Inline XBRL. Inline XBRL allows 
registrants to file the required information and data tags in one 
document rather than requiring a separate exhibit for the 
interactive data. Order Granting Limited and Conditional Exemption 
Under Section 36(a) of the Securities Exchange Act of 1934 from 
Compliance with Interactive Data File Exhibit Requirement in Forms 
6-K, 8-K, 10-Q, 10-K, 20-F and 40-F to Facilitate Inline Filing of 
Tagged Financial Data, Release No. 34-78041 (June 13, 2016) [81 FR 
39741]. In a companion release issued on March 1, 2017, the 
Commission proposed amendments that, among other things, would 
require the use of the Inline XBRL format for the submission of 
operating company financial statement information and mutual fund 
risk/return summaries. Inline XBRL Filing of Tagged Data, Release 
No. 33-10323 (Mar. 1, 2017). The amendments we are adopting in this 
release, the Inline XBRL proposals and the voluntary filing program 
are part of the Commission's continuing efforts and interest in 
modernizing the format of the information filed on EDGAR to make it 
more accessible to investors and other users.
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    The proposed amendments would require a registrant to include an 
active hyperlink to each exhibit identified in the exhibit index of the 
filing. If the filing is a periodic or current report under the 
Exchange Act, a registrant would be required to include an active 
hyperlink to each exhibit listed in the exhibit index when the report 
is filed. If the filing is a registration statement, the registrant 
would only be required to include an active hyperlink to each exhibit 
in the version of the registration statement that becomes effective. 
This was to ensure that the most complete exhibit index was hyperlinked 
and located in one primary document.
2. Comments on the Proposed Rule
    Commenters overwhelmingly supported the proposed amendments to 
require exhibit hyperlinks.\34\ Many commenters agreed that 
hyperlinking to exhibits would make it easier for investors and other 
users to retrieve and access these documents from Commission 
filings.\35\ Several commenters stated that the proposal would 
significantly reduce the amount of time required for investors to 
access information and also enhance the functionality of the EDGAR 
filing system.\36\ Two commenters supported the proposed exclusion of 
Form ABS-EE exhibits and XBRL exhibits because the exhibits are 
directly attached to that Form ABS-EE filing, and therefore an investor 
should have no difficulties locating the applicable attached 
exhibits.\37\ The same two commenters supported the proposed exclusion 
of XBRL exhibits.
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    \34\ No commenters opposed these proposals.
    \35\ See, e.g., letters from CII, E&Y, IAC and MDSBA.
    \36\ See letters from CII, CRT and IAC.
    \37\ See letters from Davis Polk and SFIG.
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    We requested comment on whether we should we revise Form 6-K \38\ 
filed by foreign private issuers or other multi-jurisdictional 
disclosure system forms used by certain Canadian issuers, such as Forms 
F-7,\39\ F-8,\40\ and F-80,\41\ to require exhibit hyperlinks. One 
commenter stated that the benefits of requiring exhibit hyperlinks in 
Form 6-K would be minor.\42\ This commenter observed that Form 6-K does 
not have any prescribed exhibit requirements, in contrast to Form 20-F, 
which does require the filing of relevant disclosure documents as 
exhibits.
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    \38\ 17 CFR 249.306.
    \39\ 17 CFR 239.37.
    \40\ 17 CFR 239.38.
    \41\ 17 CFR 239.41.
    \42\ See letter from Davis Polk.
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    In the Proposing Release, we also requested comment on whether we 
should require registrants to include hyperlinks to the exhibits filed 
with an initial registration statement and each pre-effective amendment 
to the registration statement. One commenter supported requiring 
exhibit hyperlinks in the version of the registration statement that 
becomes effective, as proposed.\43\ This commenter stated that the 
effective version of the registration statement would be the version 
that is most often reviewed by an investor and other users, and because 
exhibits may be revised or replaced during the registration process, it 
would be the version that properly referenced all of the exhibits filed 
with the registration statement that had not been replaced or revised.
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    \43\ See letter from SFIG.
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    Two commenters stated that exhibit hyperlinks should be required in 
the pre-effective amendment to the registration statement that includes 
the preliminary prospectus distributed in connection with an 
offering.\44\ One of these commenters stated that the information found 
in exhibits would be most relevant when the preliminary prospectus used 
to market an offering is distributed because that is when investors are 
beginning to make an investment decision.\45\
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    \44\ See letters from Reed Smith and SIFMA.
    \45\ See letter from SIFMA.
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    Another commenter supported requiring exhibit hyperlinks in the 
initial registration statement and each subsequent pre-effective 
amendment rather than just in the registration statement that becomes 
effective.\46\ This commenter stated that exhibit hyperlinks would 
improve the navigability of the pre-effective amendments, and that the 
incremental burden of including hyperlinks in the initial registration 
statement and any pre-effective amendments would not be significant 
because each subsequent pre-effective amendment would only add or 
update hyperlinks (in the event of superseded or amended exhibits) to 
the exhibit index that was last filed.
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    \46\ See letter from Davis Polk.
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    We also requested comment on whether we should require registrants 
to refile in electronic format any exhibit previously filed in paper so 
that a registrant can include a hyperlink from the exhibit index to 
such exhibits. We received a number of comments on this question. Three 
commenters stated we should require registrants to file electronically 
all previously filed paper exhibits.\47\ Two of these commenters stated 
that it would be particularly beneficial to investors if organizational 
documents, such as certificates of incorporation, were made available 
on EDGAR.\48\ The other commenter maintained that any burden and 
expense of refiling a previously filed paper exhibit would be minimal 
because it was unlikely that many registrants would have a significant 
number of paper exhibits created prior to the time that the registrant 
became subject to mandated electronic filing on EDGAR.\49\ A different 
commenter suggested that registrants should be permitted to post 
organizational documents on their Web sites as an alternative to 
refiling paper exhibits.\50\
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    \47\ See letters from CII, MDSBA and Reed Smith.
    \48\ See letters from CII and Reed Smith.
    \49\ See letter from MDSBA.
    \50\ See letter from Reed Smith.
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    Conversely, three commenters did not support requiring registrants 
to refile previously filed paper exhibits.\51\ Two of these commenters 
stated that requiring registrants to refile paper exhibits could 
significantly increase the cost burden to registrants.\52\ The other 
commenter suggested that, rather than requiring the refiling of paper 
exhibits, we should instead encourage registrants to voluntarily refile 
exhibits originally filed in paper.\53\
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    \51\ See letters from Davis Polk, SFIG and SIFMA.
    \52\ See letters from Davis Polk and SFIG.
    \53\ See letter from SIFMA.
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3. Final Rule
    After considering the comments, we are adopting the exhibit 
hyperlinking requirement substantially as proposed with some 
modifications. Under the final rules, registrants will be required to 
include a hyperlink to each exhibit identified in the exhibit index, 
unless the exhibit is filed in paper pursuant to a temporary or 
continuing hardship exemption under Rules 201 or 202 of Regulation S-T, 
or pursuant to Rule 311 of Regulation S-T. This requirement will apply 
to the forms for which exhibits are required under Item 601 of 
Regulation S-K.

[[Page 14133]]

    However, as proposed, the final rules exclude any XBRL 
exhibits.\54\ The final rules also exclude exhibits that are filed with 
Form ABS-EE. Since these exhibits are directly attached to that Form 
ABS-EE filing, which is essentially a cover page, an investor should 
have no difficulties locating the applicable exhibits.\55\ In addition, 
we are adopting, as proposed, the amendments to Forms F-10 and 20-F to 
require exhibit hyperlinks in these forms. At this time, we are not 
requiring exhibit hyperlinks in other forms under the multi-
jurisdictional disclosure system used by certain Canadian issuers or in 
Form 6-K, as we agree with the commenter's suggestion that hyperlinks 
in these forms may have less utility because exhibits, and an exhibit 
index, are not required for these forms.\56\
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    \54\ Although these exhibits are excluded under the final rules, 
the Commission is continuing efforts to modernize the format of 
information filed on EDGAR. See note 33 above.
    \55\ Asset-backed issuers are required to incorporate by 
reference Form ABS-EE information in Form 10-D. Therefore, under the 
final rule, issuers will be required to include hyperlinks in the 
Form 10-D to any asset data file or asset-related document filed on 
Form ABS-EE that is incorporated by reference into the Form 10-D. We 
are, however, delaying the compliance date for any Form 10-D that 
will require hyperlinks to any exhibits filed with Form ABS-EE. See 
Section II.B.3 below.
    \56\ See letter from Davis Polk.
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    We are persuaded by commenters that exhibit hyperlinks in the 
initial registration statement and each subsequent pre-effective 
amendment, rather than just the registration statement that becomes 
effective, would further enhance the navigability of these documents, 
which may be used by investors to begin making investment decisions 
before effectiveness. Accordingly, we are amending Item 601 of 
Regulation S-K to require that each exhibit identified in the exhibit 
index (other than exhibits filed with Form ABS-EE or an exhibit filed 
in XBRL) must include an active link to an exhibit that is filed with 
the registration statement or report, or if the exhibit is incorporated 
by reference, an active hyperlink to the exhibit separately filed on 
EDGAR.
    In order to provide electronic filers time to prepare filings to 
include hyperlinks to exhibits, the final rules will take effect on 
September 1, 2017. However, we encourage early compliance with the new 
filing requirements.
    As noted above, a few commenters suggested that we require the 
refiling of any exhibits previously filed only in paper. In particular, 
commenters stated that articles of incorporation and by-laws should be 
required to be refiled electronically, given the importance of these 
documents to investors.\57\ We are not amending the final rules to 
require registrants to refile electronically any documents in paper, 
including organizational documents. In our experience, only a limited 
number of registrants have not electronically filed their articles of 
incorporation or by-laws, and we are mindful of commenters' concerns 
about imposing additional compliance burdens.\58\
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    \57\ See letters from CII and MDSBA.
    \58\ For example, in connection with the economic analysis of 
the final rules, we examined a random sample of 146 Form 10-K 
filings made from October 1, 2015 to September 30, 2016. The 
articles of incorporation and by-laws filed with the Form 10-Ks in 
the sample were all filed electronically. See Section IV.A below. In 
addition, we note that registrants have the option to restate in 
electronic format an exhibit that was previously filed in paper. See 
Rule 102(a) of Regulation S-T.
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B. HTML Format for Registration Statements and Reports

    In connection with the proposed exhibit hyperlinking requirements, 
we proposed amendments to Rule 105 of Regulation S-T to require 
registrants to file registration statements and reports that include 
exhibits in the HTML format.\59\ We are adopting this proposal with a 
few changes made in response to comments.
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    \59\ We are continuing to consider ways to further enhance the 
presentation and usability of the exhibit index. For example, HTML 
tags identifying the exhibit index would make it possible to include 
a hyperlink to the index on a registrant's search results EDGAR 
landing page, which could allow investors and other users to more 
easily access the exhibits.
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1. Proposed Rules
    Rule 105 of Regulation S-T sets forth the limitations on, and 
liability for, the use of HTML documents and hyperlinks in electronic 
filings. Rule 105, among other things, currently permits hyperlinking 
to other documents within the same filing, such as exhibits, and to 
documents contained in other forms or schedules that have been 
previously filed on EDGAR. In addition, Rule 105 prohibits hyperlinking 
to Web sites, locations or other documents that are outside of the 
EDGAR system.
    Currently, registrants must submit electronic filings to the 
Commission using the EDGAR system in either the ASCII format or the 
HTML format. HTML has features that allow documents prepared in this 
format to include hyperlinks to another place within the same document 
or to a separate document. In contrast, documents prepared in the ASCII 
format cannot support functional hyperlinks.\60\ Because the ASCII 
format does not support hyperlink functionality, the exhibit 
hyperlinking requirement would be feasible only if registrants are 
required to file in HTML. Under the proposed amendment, registrants 
would be required to file registration statements and reports subject 
to the exhibit filing requirements under Item 601 of Regulation S-K, 
and Forms 20-F and F-10, in HTML format. In the Proposing Release, we 
noted that, during 2015, only 175 registrants made filings in ASCII and 
that the HTML format has largely replaced ASCII as the filing format 
for the forms that would be affected by the amendments.\61\
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    \60\ HTML documents, however, can hyperlink to an ASCII 
document.
    \61\ During the 2015 calendar year, over 114,000 of the affected 
forms were filed on EDGAR. Approximately 845 (less than one percent) 
of those filings were submitted in the ASCII format.
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2. Comments on the Proposed Rules
    No commenter opposed the proposed amendment to require HTML filings 
and two commenters specifically supported it.\62\ Three commenters 
suggested that we establish a phase-in or transition period for ASCII 
filers.\63\ Two of these commenters advocated providing smaller 
reporting companies and non-accelerated filers with one additional year 
beyond the compliance date for accelerated filers to comply with the 
exhibit hyperlinking proposals,\64\ and the third commenter did not 
specify the length of the extension.
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    \62\ See letters from Davis Polk and Reed Smith.
    \63\ See letters from CGCIV, Chamber of Commerce and Reed Smith.
    \64\ See letters from CGCIV and Chamber of Commerce.
---------------------------------------------------------------------------

    In the Proposing Release, we requested comment on whether there are 
any particular difficulties in requiring registrants to provide 
hyperlinks to the exhibits identified in Item 601 of Regulation S-K 
that are filed with a registration statement or report, as proposed. 
Several commenters took this opportunity to provide their views on the 
liability issues concerning inadvertent or inaccurate hyperlinks. Two 
commenters expressed concern that Rule 105(c) of Regulation S-T would 
extend civil and antifraud liability to hyperlinks that are 
automatically created by software programs.\65\ Three commenters

[[Page 14134]]

contended that inaccurate or inactive hyperlinks should not give rise 
to any liability or other penalties.\66\ Two commenters stated 
registrants should not be required to amend a previously filed report 
to correct an inaccurate or failed hyperlink.\67\ One commenter 
suggested that we should allow a registrant to make a correction to an 
inaccurate hyperlink in the registrant's next report that includes an 
exhibit index.\68\ The other commenter suggested that we consider 
providing a mechanism to alert investors to inactive or obsolete 
hyperlinked exhibits and provide an efficient and simple process to 
correct such hyperlinks.\69\
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    \65\ See letters from CGCIV and Chamber of Commerce. In previous 
guidance, the Commission noted: ``Some word processing programs 
automatically transform inactive textual references to electronic 
addresses (URLs) to hyperlinks. In addition, some browsers transform 
URLs to hyperlinks. We do not wish to discourage filers from 
including URLs to their own Web sites or to our Web site at 
www.sec.gov in their filings. Filers who include these URLs in HTML 
filings, accordingly, should take reasonable steps when they create 
the document in order to prevent URLs from being converted into 
hyperlinks. If this is done, Rule 105 should not be read as imposing 
liability on any such hyperlinks that may be created after the 
filing is made.'' Release No. 33-7855 (Apr. 24, 2000) [81 FR 62689].
    \66\ See letters from Reed Smith, SFIG and SIFMA.
    \67\ See letters from E&Y and Reed Smith.
    \68\ See letter from Reed Smith.
    \69\ See letter from E&Y.
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3. Final Rule
    After considering the comments, we are adopting the amendments to 
Rule 105 of Regulation S-T substantially as proposed but with minor 
modifications. Under the final rules, registrants will be required to 
file in HTML format a registration statement or report subject to the 
exhibit filing requirements under Item 601 of Regulation S-K, and Forms 
20-F and F-10. While the affected registration statements and reports 
will be required to be filed in HTML pursuant to the amendments to Rule 
105, registrants may continue to file in ASCII any schedules or forms 
that are not subject to the exhibit filing requirements under Item 601, 
such as proxy statements, or other documents included with a filing, 
such as an exhibit.
    In response to comments, we are adopting a phase-in period for non-
accelerated filers \70\ and smaller reporting companies.\71\ Non-
accelerated filers and smaller reporting companies that submit filings 
in ASCII will have an additional one year after the effective date of 
the final rules to begin to comply with the rules. During the phase-in 
period, these filers may continue to file registration statements or 
reports in ASCII and will not need to include hyperlinks to the 
exhibits listed in the exhibit indexes of their filings. We are 
persuaded that a delay in the compliance date for these registrants may 
help mitigate some of the cost burdens for smaller reporting companies 
related to switching over to the HTML format.
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    \70\ Although the term ``non-accelerated filer'' is not defined 
in Commission rules, we use this term to refer to a reporting 
company that does not meet the definition of either an ``accelerated 
filer'' or a ``large accelerated filer'' under Exchange Act Rule 
12b-2.
    \71\ ``Smaller reporting company'' is defined in Securities Act 
Rule 405 [17 CFR 230.405], Exchange Act Rule 12b-2 [17 CFR 240.12b-
2], and Item 10(f)(1) of Regulation S-K [17 CFR 229.10(f)(1)].
---------------------------------------------------------------------------

    We are also adopting a phase-in period for certain filings on Form 
10-D. Currently, the staff is working on programming changes to EDGAR 
that will allow issuers to include the Form 10-D and Form ABS-EE in a 
single submission so that the required hyperlinks can be created at the 
time the Form 10-D is filed. The implementation of these programming 
changes will not be completed by the effective date of the final rules. 
Accordingly, we are delaying the compliance date with respect to any 
Form 10-D that will require hyperlinks to any exhibit filed with Form 
ABS-EE. We will publish a document on our Web site and in the Federal 
Register announcing the compliance date for Form 10-D when it is 
determined.
    A few commenters noted that it would not be possible to hyperlink 
to an exhibit that is filed for the first time with a registration 
statement or report because no web address would be available for that 
exhibit before the filing is made. Although these commenters make a 
valid point, as explained below, we do not believe this will prevent 
registrants from complying with the final rules. Rule 11 of Regulation 
S-T defines the term ``hyperlinks'' to mean the representation of an 
Internet address in a form that an Internet browser application can 
recognize as an Internet address.\72\ We used the term ``hyperlinks'' 
more generically in the Proposing Release to include, in addition to 
links to a previously filed exhibit that is being incorporated by 
reference into the registration statement or report, links from a 
registration statement or report to an exhibit that is being filed at 
the same time. As we noted in the Proposing Release, HTML has features 
that allow electronic documents prepared in this format to include 
links to another place within the same document or to a separate 
document. Thus, under the EDGAR system, registrants can include a link 
to an exhibit that is filed with a registration statement or report. In 
connection with the adoption of these amendments, we will be issuing an 
updated EDGAR Filer Manual that will describe the procedures needed to 
create a hyperlink to an exhibit that the registrant previously filed 
with a registration statement or report and the procedures needed to 
create a link to an exhibit that is being filed at the same time as the 
registration statement or report.
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    \72\ In the Proposing Release, we proposed a minor change to the 
definition of the term ``hypertext links or hyperlinks'' in Rule 11 
of Regulation S-T to delete the term ``hypertext links.'' We are 
adopting this change.
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    In response to the concerns of several commenters regarding the 
means to correct inaccurate exhibit hyperlinks, we are adding an 
instruction to Rule 105 stating that a registrant must correct a 
nonfunctioning hyperlink or hyperlink to the wrong exhibit by filing, 
in the case of a registration statement that is not yet effective, a 
pre-effective amendment to such registration statement, or in the case 
of a registration statement that is effective or an Exchange Act 
report, in the next Exchange Act periodic report that requires, or 
includes, an exhibit pursuant to Item 601 of Regulation S-K (or in the 
case of a foreign private issuer, pursuant to Form 20-F or Form F-
10).\73\ Furthermore, we note that where a filing contains an 
inaccurate exhibit hyperlink, the inaccurate hyperlink alone would not 
render the filing materially deficient, nor affect a registrant's 
eligibility to use short-form registration statements.
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    \73\ Once the registration statement is effective, the 
registrant must correct an inaccurate hyperlink in its next Exchange 
Act periodic report that contains an exhibit index, or 
alternatively, the registrant could correct the inaccurate hyperlink 
by filing a post-effective amendment to the registration statement.
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    In addition, we remind registrants that EDGAR does not accept 
documents containing web addresses that hyperlink to external Web 
sites.\74\ In light of the fact that many of the liability issues 
identified by commenters appear most relevant for hyperlinks to 
external Web sites, we do not believe that a reexamination of the 
liability treatment of hyperlinks is warranted at this time. However, 
as we continue to consider the expanded use of hyperlinks in Commission 
filings, we will bear these considerations in mind.
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    \74\ See Rule 105(b) of Regulation S-T. If a document is filed 
containing a hyperlink to an external Web site, EDGAR will reject 
the document and the electronic filer must resubmit the document 
without the hyperlink to the external Web site.
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III. Other Matters

    If any of the provisions of these rules, or the application thereof 
to any person or circumstance, is held to be invalid, such invalidity 
shall not affect other provisions or application of such provisions to 
other persons or circumstances that can be given effect without the 
invalid provision or application.

[[Page 14135]]

IV. Economic Analysis

    We are adopting amendments that will require registrants that file 
registration statements and reports that are subject to the exhibit 
requirements under Item 601 of Regulation S-K, or that file on Forms F-
10 or 20-F, to include a hyperlink to each exhibit identified in the 
exhibit index of these filings and to submit all such filings in HTML 
format.\75\
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    \75\ The amendments exclude exhibits filed with Form ABS-EE and 
XBRL exhibits.
---------------------------------------------------------------------------

    We are sensitive to the costs and benefits of the final rules. In 
this economic analysis, we examine the current regulatory framework and 
market practices, which together constitute a baseline for analysis, 
and discuss the anticipated economic effects of the amendments, 
relative to this baseline, and their potential effects on efficiency, 
competition, and capital formation.\76\ We also consider the potential 
costs and benefits of reasonable alternatives to the amendments.
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    \76\ Exchange Act Section 23(a)(2) [15 U.S.C. 78w(a)] requires 
us, when adopting rules, to consider the impact that any new rule 
would have on competition. In addition, Section 2(b) of the 
Securities Act [15 U.S.C. 77b(b)] and Section 3(f) of the Exchange 
Act [15 U.S.C. 78c(f)] direct us, when engaging in rulemaking that 
requires us 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.
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    Where practicable, we attempt to quantify the economic effects of 
the amendments; however, in certain cases, we are unable to do so 
because we lack necessary information. We do, however, provide a 
qualitative assessment of the likely economic effects. The proposing 
release requested comment on all aspects of the economic effects, 
including the costs and benefits of the proposals and possible 
alternatives to the proposed amendments. The Commission also solicited 
comment in the proposing release on whether the proposals, if adopted, 
would promote efficiency, competition, or capital formation, or have an 
impact or burden on competition.

A. Baseline

    The amendments will affect all registrants that file registration 
statements and reports that are required to include exhibits under Item 
601 of Regulation S-K, specifically Forms S-1, S-3, S-4, S-8, S-11, SF-
1, SF-3, F-1, F-3, and F-4 under the Securities Act and Forms 10, 10-K, 
10-Q, 8-K, and 10-D under the Exchange Act. In addition, the amendments 
will affect registrants that file on Forms F-10 and 20-F. Although 
registrants that currently file registration statements and reports in 
HTML format will not be affected by the requirement to file in HTML 
format, they will be required to include hyperlinks from the exhibits 
identified in the exhibit index to the exhibits that are filed with the 
document or that were previously filed with another document. Because 
the ASCII format does not support hyperlink capabilities, registrants 
that currently file these forms and reports in ASCII format will be 
required to file in HTML in addition to complying with the exhibit 
hyperlinking requirement.
    We estimate that, from October 1, 2015 to September 30, 2016, 9,221 
registrants filed either a registration statement or a report in HTML, 
while 152 registrants made filings in ASCII. Table 1 below shows the 
number of registration statements and reports that registrants filed 
with the Commission from October 1, 2015 to September 30, 2016. Table 1 
also presents the number of filings submitted in HTML format and ASCII 
format, respectively, including amendments. Because hyperlinking is not 
available in ASCII format, we present the baseline analysis of filings 
separately for HTML and ASCII formats.
---------------------------------------------------------------------------

    \77\ The number of Form 10s includes Forms 10-12B and 10-12G.
    \78\ The number of Form 8-Ks includes Form 8-K12B.

    Table 1--Number of Registration Statements and Reports Filed From
                  October 1, 2015 to September 30, 2016
------------------------------------------------------------------------
                                                         Securities Act
                                                          registration
                                                         statements and
       Number of filings (including  Amendments)          Exchange Act
                                                              forms
                                                       -----------------
                                                          HTML    ASCII
------------------------------------------------------------------------
Form S-1..............................................    2,295       12
Form S-3..............................................      940        6
Form S-4..............................................      716        0
Form S-8..............................................    1,988        1
Form S-11.............................................      128        0
Form SF-1.............................................        6        0
Form SF-3.............................................      154        0
Form F-1..............................................      237        0
Form F-3..............................................      113        0
Form F-4..............................................       90        0
Form F-10.............................................      117        0
Form 10 \77\..........................................      340       54
Form 20-F.............................................      751        0
Form 10-K.............................................    8,349       65
Form 10-Q.............................................   21,278      142
Form 8-K \78\.........................................   73,337      282
Form 10-D.............................................    5,947      236
------------------------------------------------------------------------

    As shown in Table 1, among the types of forms affected by the 
amendments, Forms S-1, S-8, 10-K, 10-Q, 10-D, and 8-K were the most 
frequently filed in HTML format from October 1, 2015 to September 30, 
2016. As a proxy for registrants' size, we used the filer status that 
registrants reported in their Form 10-K from October 1, 2015 to 
September 30, 2016. We found that 32.5% of the registration statements 
and reports (including amendments) filed in HTML format were filed by 
large accelerated filers, 21.3% by accelerated filers and 35.2% by 
smaller reporting companies or non-accelerated filers.\79\
---------------------------------------------------------------------------

    \79\ The remaining 11% of filings in HTML format from October 1, 
2015 to September 30, 2016 were filed by registrants whose filer 
status was not indicated.
---------------------------------------------------------------------------

    From October 1, 2015 to September 30, 2016, a limited set of form 
types were filed in ASCII format. In particular, Forms 8-K, 10-D, 10-Q 
and 10-K were most frequently filed in ASCII format. We found that, of 
the registration statements and reports (including amendments) filed in 
ASCII, 4.5% were filed by large accelerated filers, 0.8% by accelerated 
filers, and 56% by smaller reporting companies or non-accelerated 
filers.\80\
---------------------------------------------------------------------------

    \80\ The remaining 38.7% of sampled filings in ASCII format were 
filed by registrants whose filer status was not indicated.
---------------------------------------------------------------------------

    To draw a baseline indicative of the current disclosure practices 
by HTML filers, we selected a random sample of 600 filings of 
registration statements and reports (including amended filings) from 
October 1, 2015 to September 30, 2016. This sample included 146 
randomly selected Form 10-K filings and 454 randomly selected other 
filings in HTML format.
    The amendments will require registrants to include hyperlinks for 
all exhibits listed in the exhibit index, whether included with the 
filing or incorporated by reference from a previously filed document. 
Table 2 below shows the average and median number of exhibits \81\ 
listed in the random sample of 600 filings by the type of forms 
affected by the amendments.
---------------------------------------------------------------------------

    \81\ We did not include XBRL exhibits because these exhibits are 
not covered by the final rules.

[[Page 14136]]



                                                               Table 2--Number of Exhibits
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Number of exhibits listed in    Number of exhibits filed with        Number of exhibits
                                                     the index                       the form                incorporated by reference       Number of
                                         ------------------------------------------------------------------------------------------------     sampled
                                           Average \82\     Median \83\       Average         Median          Average         Median          filings
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form S-1................................            29.1            20.0            10.8             5.0            18.3             0.0              16
Form S-3................................            10.4            10.0             4.5             4.0             5.9             4.0              17
Form S-4................................            50.6            18.0            11.9             9.0            37.2            14.0               9
Form S-8................................             5.6             5.0             3.1             3.0             2.5             2.5              24
Form S-11...............................            24.7            30.0            14.3            10.0            10.3             0.0               3
Form SF-1...............................  ..............  ..............  ..............  ..............  ..............  ..............               0
Form SF-3...............................             8.4             6.0             6.1             4.0             2.3             2.0              11
Form F-1................................            21.8            22.5            20.6            22.5             1.1             0.0               8
Form F-3................................             8.0             7.5             4.8             4.0            3.25             1.5               8
Form F-4................................            20.2            23.0            15.2            17.0             1.0             0.5               5
Form F-10...............................            17.0            17.0            15.0            15.0             2.0             2.0               1
Form 10.................................             6.6             2.0             6.6             2.0             0.0             0.0               7
Form 20-F...............................            32.6            34.0            11.2             8.0            21.4            27.0               5
Form 10-K...............................            34.8            31.0             7.5             6.0            26.6            24.5             146
Form 10-Q...............................             7.1             5.5             4.0             4.0             3.1             0.5              50
Form 8-K................................             1.3             1.0             1.2             1.0             0.1             0.0             265
Form 10-D...............................             1.0             1.0             0.8             1.0             0.0             0.0              25
All Forms...............................            19.5            10.0             5.7             4.0            13.8             3.0             600
Forms S-1, S-4, S-11, F-1, F-4, F-10, 20-           33.4            28.0             8.8            11.0            23.8            18.0             193
 F and 10-K.............................
Other Forms & Reports...................             3.0             1.0             2.1             1.0             1.9             0.0             407
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 2 shows a significant variation in the number of exhibits 
listed in the exhibit index across different types of forms. Among the 
Securities Act registration statements, Forms S-1, S-4, S-11, F-1, F-4 
and F-10 typically contain a large number of exhibits, while among the 
Exchange Act reports, Forms 20-F and 10-K contain significantly more 
exhibits than other form types. Overall, Forms S-1, S-4, S-11, F-1, F-
4, F-10, 20-F and 10-K had a median number of 33 exhibits, compared to 
a median of three exhibits in the other nine types of registration 
statements and reports. Forms S-1, S-4, S-11, F-1, F-4, F-10, 20-F and 
10-K also had significantly more exhibits incorporated by reference 
than the other nine types of registration statements and reports 
affected by the amendments.
---------------------------------------------------------------------------

    \82\ Average represents the sum of number of exhibits divided by 
the number of sampled forms for each form type.
    \83\ Median represents the middle number of exhibits for each 
form type when the numbers of exhibits are listed from the smallest 
to the largest. For instance, for Forms S-1, the number of exhibits 
listed in the index ranged from 1 to 125, with 20 as the middle 
number.
---------------------------------------------------------------------------

    In general, the number of exhibits slightly decreases with a 
registrant's size for the sampled filings submitted from October 1, 
2015 to September 30, 2016. Of the 600 sampled filings, the filings by 
non-accelerated filers and smaller reporting companies had a median of 
five exhibits; filings by accelerated filers had a median of three 
exhibits; and large accelerated filers had a median of two exhibits.
    Of the 600 sampled filings, we found that the exhibit indexes of 
only 48 (8%) of the filings included hyperlinks. We found 14 out of 48 
filings included hyperlinks for all exhibits. In the 34 instances when 
registrants did not include hyperlinks for all exhibits, they were more 
likely to include hyperlinks to exhibits incorporated by reference. Of 
the sampled filings on Form S-1, S-4, S-11, F-1, F-4, F-10, 20-F and 
10-K, approximately 4% had exhibit indexes that contained hyperlinks 
for one or more exhibits in the index (``partially hyperlinked''). In 
particular, while we found four fully hyperlinked Form 10-Ks, 18 of the 
146 sampled Form 10-Ks were partially hyperlinked.
---------------------------------------------------------------------------

    \84\ Pursuant to Securities Act Rule 411 [17 CFR 230.411] and 
Exchange Act Rule 12b-23 [17 CFR 240.12b-23], registrants can, under 
certain conditions, incorporate information by reference in answer, 
or partial answer, to an item of a registration statement or report. 
Generally, the incorporated information must be filed as an exhibit 
to the registration statement or report. In our analysis of the 600 
sampled filings, we found several exhibits that were filed for this 
purpose.

                                        Table 3--Type of Forms From Which Exhibits Were Incorporated by Reference
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Other forms     Other forms
                                                                                                                           with exhibit       without
  Exhibit incorporated by reference from:     Form S-1     Form F-1    Form 10-K    Form 20-F     Form 8-K    Form 10-Q        index       exhibit index
                                                (%)          (%)          (%)          (%)          (%)          (%)        requirement     requirement
                                                                                                                                (%)          \84\ (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Into:
Form S-1..................................           20            0           14            0           31           11              22               1
Form S-3..................................           14            0            2            0           57           10               9               8
Form S-4..................................           42            0           10            0           24            6              10               8
Form S-8..................................           30            0            5            2           30           13              12               8
Form S-11.................................            0            0            0            0           45            3               0              52
Form SF-1.................................            0            0            0            0            0            0               0               0
Form SF-3.................................            0            0            0            0           44            0              56               0
Form F-1..................................            0            0            0           67            0            0               0              33

[[Page 14137]]

 
Form F-3..................................            0           77            0            4            0            0               0              19
Form F-4..................................            0            0            0            0            0            0               0             100
Form F-10.................................            0            0            0            0            0            0              97               3
Form 10...................................            0            0            0            0            0            0               0               0
Form 20-F.................................            1            7            0           73            0            0               1              18
Form 10-K.................................            8            0           19            0           43           18               7               4
Form 10-Q.................................            6            0           13            1           55           13               6               5
Form 8-K..................................           10            0           10            0           45           10               0              25
Form 10-D.................................            0            0            0            0            0            0               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Under the amendments, the hyperlink requirement will make exhibits 
incorporated by reference in the affected registration statements and 
reports more easily accessible. For the exhibits incorporated by 
reference that were listed in the 600 sampled filings, Table 3 shows 
the form types from which the exhibits were incorporated. The majority 
of exhibits were incorporated from the same registration statements and 
reports affected by the amendments. For example, exhibits in Forms S-1 
were largely incorporated from previously filed Forms 8-K, 10-K, S-1, 
and 10-Q. Only a small percentage of exhibits were incorporated from 
form types without an exhibit index requirement, such as proxy 
statements.
ASCII Filers
    We reviewed 200 registration statements and reports filed in ASCII 
format from October 1, 2015 to September 30, 2016. In particular, we 
reviewed 60 Form 10-Ks and a randomly selected sample of 140 other 
forms filed in ASCII format, including amendments. The exhibit indexes 
in the ASCII filings listed significantly lower average and median 
numbers of exhibits than in HTML filings. For example, the sampled Form 
10-Qs and 10-Q/As reported a median of one exhibit. The 60 Form 10-Ks 
and 10-K/As filed in ASCII format from October 1, 2015 to September 30, 
2016 included a median of two exhibits, mostly filed with the form. 
Given that the ASCII format does not support hyperlinks, no exhibit 
index included hyperlinks.

B. Potential Economic Effects

    Relative to unlinked cross-references, hyperlinks will not only 
supply users with the location of a specific exhibit, but also allow 
users to reach that location more easily and quickly. Requiring exhibit 
hyperlinks will help investors and other users to access a particular 
exhibit more efficiently as they will not need to search within the 
filing or through different filings made over time to locate the 
exhibit. Many commenters agreed that hyperlinking would make it easier 
for investors and other users to retrieve exhibit information from SEC 
filings.\85\ Several commenters agreed that hyperlinking would reduce 
the amount of time required for investors to access exhibit 
information.\86\
---------------------------------------------------------------------------

    \85\ See, e.g., letters from CII, E&Y, IAC and MDSBA.
    \86\ See letters from CII, CRT and IAC.
---------------------------------------------------------------------------

    We expect that hyperlinks will be more beneficial in reducing 
search costs in the case of exhibits incorporated by reference than in 
the case of exhibits filed with the filing, and in particular, we 
expect these benefits to be most pronounced in the case of 
incorporation by reference from a filing that was not recently filed 
because more recent filings are displayed first on the EDGAR search 
results page. Further, we expect hyperlinks will have greater benefits 
in the case of registrants that submit more filings. Overall, we 
believe the amendments will reduce search costs for investors. For 
example, depending on the nature of the business or size of the 
registrant, a registrant may file multiple registration statements or 
reports in a given quarter or fiscal year. Requiring exhibit hyperlinks 
will make it easier for investors and other users to find and access a 
particular exhibit that was originally filed with a previous filing.
    The final rule will also require registrants to include hyperlinks 
to all exhibits required by Item 601 of Regulation S-K, Form F-10 and 
Form 20-F in each amendment. We believe hyperlinking to exhibits filed 
with each pre-effective amendment will be particularly beneficial to 
investors who begin to make an investment decision before the 
registration statement becomes effective, such as investors considering 
the preliminary prospectus.\87\
---------------------------------------------------------------------------

    \87\ Several commenters supported requiring exhibit hyperlinks 
in pre-effective amendments. See letters from Davis Polk, Reed Smith 
and SIFMA.
---------------------------------------------------------------------------

    To the extent that hyperlinks ease the navigation process for 
investors and other users, hyperlinks may also facilitate a more 
thorough review of a registrant's registration statements and reports 
and encourage more effective monitoring over time. The potential 
reduction of search costs and the enhanced ability of investors to 
review a registrant's disclosure may result in more informed investment 
and voting decisions, potentially enhancing allocative efficiency and 
capital formation by registrants.
    As a result of the amendments, both HTML and ASCII registrants will 
incur compliance costs to include hyperlinks in their exhibit indexes. 
The cost of inserting a hyperlink to an exhibit incorporated by 
reference would likely be greater than the cost of inserting a link to 
an exhibit filed with the document. While the average cost itself of 
inserting a hyperlink is minimal,\88\ the total hyperlinking costs for 
registrants would be a function of two main factors: (1) How many 
registration statements and reports a registrant files that require an 
exhibit index; and (2) how many exhibits in the exhibit index of these 
registration statements and reports are either filed with the filing or 
incorporated by reference and would be subject to the hyperlinking 
requirement.
---------------------------------------------------------------------------

    \88\ For purposes of the Paperwork Reduction Act, we estimate 
that registrants will incur, on average, between one and four burden 
hours to hyperlink to required exhibits, depending on the specific 
form type. See Section IV.D below.
---------------------------------------------------------------------------

    For filers reporting in HTML, our baseline analysis indicates that 
few filers currently include fully hyperlinked exhibit indexes in 
registration statements and reports. Our analysis of a random sample of 
registration statements and reports filed between October 1, 2015 and 
September

[[Page 14138]]

30, 2016 indicates that approximately 8% of HTML filers included at 
least a partially hyperlinked exhibit index in their filings. For these 
HTML filers, the cost of fully hyperlinking their exhibit indexes could 
be less than for those HTML filers that have not previously hyperlinked 
their exhibit indexes.
    In addition to these costs, filers reporting in ASCII will incur 
costs to switch to HTML. While the registrants that file in ASCII and 
therefore will be affected by the amendment to require HTML are 
primarily small entities, we expect that the costs of switching to HTML 
will not be significant given the cost of software with built-in HTML 
and hyperlink features is minimal. In addition, the final rule will 
allow an extended phase-in period for non-accelerated filers and 
smaller reporting companies. The delay in compliance should mitigate 
some of the burdens for those entities that are more likely to be 
adversely affected by the cost of switching from making filings in 
ASCII to HTML.
    Overall, given the modest costs involved, we do not expect that the 
amendments will have significant competitive effects for registrants.

C. Alternatives

    We considered five alternatives to the final rules. First, instead 
of requiring hyperlinks in the exhibit index within registration 
statements and reports requiring an exhibit index under Item 601 of 
Regulation S-K and Forms F-10 and 20-F, we considered requiring 
registrants to include hyperlinks in a subset of these registration 
statements and reports. For example, we could have limited the 
hyperlinks requirement to exhibit indexes in those registration 
statements and reports that typically include lengthy exhibit indexes. 
Our analysis of a random sample of registration statements and reports 
filed from October 1, 2015 to September 30, 2016 indicates that exhibit 
indexes are more frequently included in filings on Forms S-1, S-8, 10-
K, 10-Q, 8-K, and 10-D, but are lengthier in Forms S-1, S-4, S-11, F-1, 
F-4, F-10, 20-F, and 10-K based on the average and median number of 
exhibits included in the exhibit index. For example, Forms 8-K and 10-Q 
are the forms most frequently filed but typically list a limited number 
of exhibits, most of which are included in the filing itself rather 
than incorporated by reference. Relative to the final rules, the 
alternative of limiting the scope of the exhibit hyperlinking 
requirement to fewer form types would lead to cost savings for 
registrants but also a smaller reduction in search costs for investors 
and other users.
    Second, instead of requiring registrants to hyperlink each exhibit 
included in the exhibit index, we considered requiring registrants to 
hyperlink only exhibits incorporated by reference. Our analysis of the 
random sample of filings submitted from October 1, 2015 to September 
30, 2016 indicates that, among the registration statements and reports, 
Forms 20-F and 10-K typically include a higher number of exhibits 
incorporated by reference. This alternative would lead to nominal cost 
savings for registrants but also a smaller reduction in search costs 
for investors, although search costs related to exhibits filed with the 
document would be relatively limited.
    Third, we considered requiring registrants to file and update a 
compilation of exhibits separately from the Form 10-K and other forms. 
A separate compilation of exhibits could have more prominence and make 
it easier for investors and other users to access relevant information 
on EDGAR, as there would be only one compilation for all exhibits 
regardless of what forms a registrant may file. Requiring a separate 
compilation, however, would impose an additional burden on registrants 
to prepare, file and update this disclosure and could make our 
disclosure regime more complex to the extent that relevant information 
is spread over multiple filings. Relatedly, several commenters 
suggested that a centralized exhibit page or a company profile landing 
page on EDGAR could provide more direct access to the exhibits.\89\ We 
are continuing to consider ways to further enhance the presentation and 
usability of the exhibit index on the EDGAR system.\90\
---------------------------------------------------------------------------

    \89\ See letters from CRT, Davis Polk and E&Y.
    \90\ See note 59 above.
---------------------------------------------------------------------------

    Fourth, we considered excluding ASCII filers from the requirement 
to hyperlink to each exhibit identified in the exhibit index and 
permitting them to continue filing in ASCII. Relative to the 
amendments, this alternative could be beneficial to ASCII filers as 
they would not incur the additional, although minimal, compliance costs 
of switching to HTML and hyperlinking their exhibit indexes. However, 
under this alternative, investors and other users of the information 
disclosed in ASCII filings would not benefit from reduced search costs. 
As noted above, the number of registrants affected by this amendment 
will be minimal, and the phase-in period for non-accelerated filers and 
smaller reporting companies should mitigate some of these costs.
    Fifth, given the relevance of organizational documents, such as 
articles of incorporation and by-laws, to understanding a registrant's 
corporate structure and operations, we considered requiring registrants 
to refile electronically on EDGAR their organizational documents 
previously filed in paper.\91\ We anticipate that the economic effects 
of this alternative would be minimal since only a limited number of 
registrants have not filed their articles of incorporation or by-laws 
in electronic format.\92\
---------------------------------------------------------------------------

    \91\ Several commenters suggested that it would be particularly 
beneficial to investors if organizational documents previously filed 
in paper were available on EDGAR. See, e.g., letters from CII and 
Reed Smith.
    \92\ See note 57 above.
---------------------------------------------------------------------------

V. Paperwork Reduction Act

A. Background

    Certain provisions of the final rules contain ``collection of 
information'' requirements within the meaning of the Paperwork 
Reduction Act of 1995 (``PRA'').\93\ We published a notice requesting 
comment on the collection of information requirements in the Proposing 
Release for the amendments, and we submitted these requirements to the 
Office of Management and Budget (``OMB'') for review in accordance with 
the PRA.\94\ The titles for the collections of information are:
---------------------------------------------------------------------------

    \93\ 44 U.S.C. 3501 et seq.
    \94\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.

``Form S-1'' (OMB Control No. 3235-0065);
``Form S-3'' (OMB Control No. 3235-0073);
``Form S-4'' (OMB Control No. 3235-0324);
``Form S-8'' (OMB Control No. 3235-0066);
``Form S-11'' (OMB Control No. 3235-0067);
``Form F-1'' (OMB Control No. 3235-0258);
``Form F-3'' (OMB Control No. 3235-0256);
``Form F-4'' (OMB Control No. 3235-0325);
``Form F-10'' (OMB Control No. 3235-0380);
``Form SF-1'' (OMB Control No. 3235-0707);
``Form SF-3'' (OMB Control No. 3235-0690);
``Form 10'' (OMB Control No. 3235-0064);
``Form 20-F'' (OMB Control No. 3235-0288);
``Form 10-K'' (OMB Control No. 3235-0063);
``Form 10-Q'' (OMB Control No. 3235-0070);
``Form 8-K'' (OMB Control No. 3235-0060);

[[Page 14139]]

``Form 10-D'' (OMB Control No. 3235-0604);
``Regulation S-K'' (OMB Control No. 3235-0071); and
``Regulation S-T'' (OMB Control No. 3235-0424).\95\
---------------------------------------------------------------------------

    \95\ The paperwork burdens from Regulations S-K and S-T are 
imposed through the forms that are subject to the requirements in 
these regulations and are reflected in the analysis of those forms. 
To avoid a PRA inventory reflecting duplicative burdens and for 
administrative convenience, we assign a one-hour burden to each of 
Regulation S-K and Regulation S-T.

    The forms, reports and Regulation S-K were adopted under the 
Securities Act and the Exchange Act and set forth the disclosure 
requirements for registration statements and reports filed by 
registrants to help investors make informed investment and voting 
decisions. Regulation S-T was adopted under the Securities Act and the 
Exchange Act and sets forth the requirements for the electronic 
submission of documents filed or otherwise submitted to the Commission. 
The hours and costs associated with preparing and filing the forms and 
reports constitute reporting and cost burdens imposed by each 
collection of information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information requirement unless it 
displays a currently valid OMB control number. Compliance with the 
information collections is mandatory. Responses to the information 
collections are not kept confidential and there is no mandatory 
retention period for the information disclosed.

B. Summary of the Final Amendments

    As described in more detail above, we are adopting amendments to 
Regulations S-K and S-T and Forms F-10 and 20-F to require registrants 
that file registration statements and reports subject to the exhibit 
requirements under Item 601 of Regulation S-K, or that file on Forms F-
10 and 20-F, to submit these registration statements and reports in 
HTML format and to include a hyperlink from each exhibit identified in 
the exhibit index of such forms to the exhibit as filed on EDGAR (other 
than an exhibit filed in XBRL or exhibits filed with Form ABS-EE). The 
final rules will require registrants to include hyperlinks to all 
exhibits required by Item 601, Form F-10 or Form 20-F in each amendment 
to a registration statement or report on these forms.

C. Summary of Comment Letters and Revisions to Proposals

    In the Proposing Release, we requested comment on our PRA burden 
hour and cost estimates and the analysis used to derive such estimates. 
We did not receive any comments that addressed our PRA analysis and 
burden estimates of the proposed amendments.
    In response to comments on the proposed amendments, we have made 
one change to the rule proposals that will affect the compliance 
burdens for issuers. Under the final rules, registrants will be 
required to include hyperlinks to all exhibits required by Item 601, 
Form F-10 or Form 20-F in each amendment to a registration statement or 
report.

D. Revisions to the Burden and Cost Estimates Burden

    We anticipate that the final amendments will increase the burdens 
and costs for registrants to prepare and file the affected forms. We 
believe the burdens associated with hyperlinking exhibits will remain 
minimal as the registrant, in preparing a filing, will already be 
preparing the exhibits and exhibit index for such filing and will have 
readily available all of the information necessary to create the 
hyperlinks. In addition, we assume that the average burden hours of 
requiring exhibit hyperlinks will vary based on the number of exhibits 
that are filed with an affected form. For purposes of the PRA, based on 
the average and median number of exhibits shown in Table 2 above, we 
estimate the average burden for a registrant to hyperlink to exhibits 
would be four hours for Forms 10-K and 20-F; three hours for Forms S-1, 
S-4, S-11, SF-1, F-1, F-4 and F-10; two hours for Forms S-3, S-8, SF-3, 
F-3, 10 and 10-Q; and one hour for Forms 10-D and 8-K.
    As a result of the change to the final rules described above, we 
have increased our burden estimates by one hour for all of the affected 
forms to reflect the burden for including hyperlinks to all required 
exhibits in each amendment to a registration statement or report.
    These estimates represent the average burden for all registrants, 
both large and small. In deriving our estimates, we recognize that the 
burdens will likely vary among individual registrants based on a number 
of factors, including the size and complexity of their operations.
    The tables below show the total annual compliance burden, in hours 
and in costs, of the collection of information resulting from the 
proposed amendments.\96\ The burden estimates were calculated by 
multiplying the estimated number of responses by the estimated average 
amount of time it would take an issuer to prepare and review the 
exhibit hyperlinks. The portion of the burden carried by outside 
professionals is reflected as a cost, while the portion of the burden 
carried by the issuer internally is reflected in hours. For purposes of 
the PRA, we estimate that 75% of the burden of preparation for Exchange 
Act reports is carried by the registrant internally and that 25% of the 
burden of preparation is carried by outside professionals retained by 
the registrant at an average cost of $400 per hour.\97\ For the 
registration statements on Forms 10, S-1, S-3, S-4, S-11, F-1, F-3, F-
4, SF-1 and SF-3, and Exchange Act report Form 20-F, we estimate that 
25% of the burden of preparation is carried by the company internally 
and that 75% of the burden of preparation is carried by outside 
professionals retained by the company at an average cost of $400 per 
hour. For the registration statement on Form S-8, we estimate that 50% 
of the burden of preparation is carried by the company internally and 
that 50% of the burden of preparation is carried by outside 
professionals.
---------------------------------------------------------------------------

    \96\ For convenience, the estimated hour and cost burdens in the 
table have been rounded to the nearest whole number.
    \97\ We recognize that the costs of retaining outside 
professionals may vary depending on the nature of the professional 
services, but for purposes of this PRA analysis, we estimate that 
such costs would be an average of $400 per hour. This estimate is 
based on consultations with several registrants, law firms and other 
persons who regularly assist registrants in preparing and filing 
reports with the Commission.

[[Page 14140]]



                                 Table 4--Incremental Paperwork Burden Under the Final Amendments for Exchange Act Forms
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Proposed
                                                 number of      Incremental        Total
             Exchange act forms                  affected      burden hours/    Incremental       75% company      25% professional   Professional costs
                                                 responses         form        burden hours
                                                         (A)             (B)     (C) = (A) *    (D) = (C) * 0.75    (E) = (C) * 0.25    (F) = (E) * $400
                                                                                         (B)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form 10.....................................             238               3             714                 178                 536            $214,200
Form 20-F \98\..............................             725               4           3,625                 906                2719           1,087,500
Form 10-K...................................           8,137               4          40,685              30,514              10,171           4,068,400
Form 10-Q...................................          22,907               3          68,721              51,541              17,180           6,872,100
Form 8-K....................................         118,387               2         236,774             177,580              59,194          23,677,400
Form 10-D...................................          13,014               2          26,028              19,521               6,507           2,602,800
                                             -----------------------------------------------------------------------------------------------------------
    Total...................................  ..............  ..............         376,547  ..................  ..................          38,522,400
--------------------------------------------------------------------------------------------------------------------------------------------------------


                       Table 5--Incremental Paperwork Burden Under the Final Amendments for Securities Act Registration Statements
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Proposed
                                                 number of      Incremental        Total
   Securities act registration statements        affected      burden hours/    incremental       25% company      75% professional   Professional costs
                                                 responses         form        burden hours
                                                         (A)             (B)     (C) = (A) *    (D) = (C) * 0.25    (E) = (C) * 0.75    (F) = (E) * $400
                                                                                         (B)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form S-1....................................             901               4           3,604                 901               2,703          $1,081,200
Form S-3....................................           1,082               3           3,246                 811               2,435             973,800
Form S-4....................................             619               4           2,476                 619               1,857             742,800
Form S-8 \99\...............................           2,200               3           6,600               3,300               3,300           1,320,000
Form S-11...................................             100               4             400                 100                 300             120,000
Form SF-1...................................               6               4              24                   6                  18               7,200
Form SF-3...................................              71               3             213                  53                 160              63,900
Form F-1....................................              63               4             252                  63                 189              75,600
Form F-3....................................             107               3             321                  80                 241              96,300
Form F-4....................................              68               4             272                  68                 204              81,600
Form F-10...................................              40               4             160                  40                 120              48,000
                                             -----------------------------------------------------------------------------------------------------------
    Total...................................  ..............  ..............          17,568  ..................  ..................           4,610,400
--------------------------------------------------------------------------------------------------------------------------------------------------------

VI. Final Regulatory Flexibility Act Analysis

    This Final Regulatory Flexibility Analysis (FRFA) has been prepared 
in accordance with the Regulatory Flexibility Act.\100\ This FRFA 
relates to final amendments that will require registrants to submit 
registration statements and reports subject to the exhibit requirements 
under Item 601 of Regulation S-K, or Forms 20-F and F-10 in HTML 
format, to include a hyperlink to each exhibit listed in the exhibit 
index of such registration statement or report.
---------------------------------------------------------------------------

    \98\ The calculations for Form 20-F reflect an allocation of a 
25% internal burden carried by the company and a 75% external burden 
carried by outside professionals.
    \99\ The calculation for Form S-8 reflects an allocation of a 
50% internal burden carried by the company and a 50% external burden 
carried by outside professionals.
    \100\ 5 U.S.C. 601 et seq.
---------------------------------------------------------------------------

A. Need for the Amendments

    The main purpose of the amendments is to improve investors' access 
to information--in particular, the ability of investors and other users 
to retrieve and access exhibits that are filed on EDGAR.

B. Significant Issues Raised by Public Comments

    In the Proposing Release, we requested comment on any aspect of the 
Initial Regulatory Flexibility Analysis (``IRFA''), including the 
number of small entities that would be affected by the proposed rules, 
the nature of the impact, how to quantify the number of small entities 
that would be affected, and how to quantify the impact of the proposed 
amendments. We did not receive comments specifically addressing the 
IRFA. Several commenters, however, addressed aspects of the proposed 
amendments that could potentially affect small entities. In particular, 
two commenters expressed concerned that the proposed HTML formatting 
requirement would place a disproportionate burden on smaller reporting 
companies and non-accelerated filers.\101\ These commenters advocated 
providing smaller reporting companies and non-accelerated filers with 
one additional year beyond the compliance date for accelerated filers 
to comply with the amendments.
---------------------------------------------------------------------------

    \101\ See letters from CGCIV and Chamber of Commerce.
---------------------------------------------------------------------------

C. Small Entities Subject to the Final Rules

    The final rules will affect some companies that are small entities. 
The Regulatory Flexibility Act defines ``small entity'' to mean ``small 
business,'' ``small organization,'' or ``small governmental 
jurisdiction.'' \102\ For purposes of the Regulatory Flexibility Act, 
under our rules, an issuer, other than an investment company, is a 
``small business'' or ``small organization'' if it had total assets of 
$5 million or less on the last day of its most recent fiscal year and 
is engaged or proposing to engage in an offering of securities that 
does not exceed $5 million.\103\ An investment company, including a 
business

[[Page 14141]]

development company,\104\ is considered to be a ``small business'' if 
it, together with other investment companies in the same group of 
related investment companies, has net assets of $50 million or less as 
of the end of its most recent fiscal year.\105\ We estimate that there 
are 837 issuers, other than investment companies, that will be subject 
to the final rules that may be considered small entities.\106\ In 
addition, we estimate that there are 34 investment companies that will 
be subject to the final rules that may be considered small entities.
---------------------------------------------------------------------------

    \102\ 5 U.S.C. 601(6).
    \103\ See Securities Act Rule 157 [17 CFR 230.157] and Exchange 
Act Rule 0-10(a) [17 CFR 240.0-10(a)].
    \104\ Business development companies are a category of closed-
end investment company that are not registered under the Investment 
Company Act [15 U.S.C. 80a-2(a)(48) and 80a-53-64].
    \105\ See Exchange Act Rule 0-10(a).
    \106\ This estimate is based on a review of XBRL data, where 
available, submitted with Form 10-K and Form 20-F filings with 
fiscal periods ending between January 31, 2015 and January 31, 2016.
---------------------------------------------------------------------------

D. Reporting, Recordkeeping, and Other Compliance Requirements

    The final rules will impose new compliance requirements for small 
entities. The final rules will require all registrants (including small 
entities) that file registration statements and reports that are 
subject to the exhibit requirements under Item 601 of Regulation S-K, 
or that file on Forms F-10 or 20-F, to file these forms in HTML format 
and to hyperlink to each exhibit (other than an exhibit filed in XBRL 
or exhibits filed with Form ABS-EE) identified in the exhibit index 
contained in the form. The final rules will also require registrants to 
include hyperlinks to all of the exhibits required by Item 601, Form 
10-F or Form 20-F in each amendment to a registration statement or 
report.

E. Agency Action To Minimize Effect on Small Entities

    The Regulatory Flexibility Act directs us to consider alternatives 
that would accomplish our stated objectives, while minimizing any 
significant adverse impact on small entities. In connection with the 
final rules, we considered the following alternatives:
     Establishing different compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities;
     Clarifying, consolidating or simplifying compliance and 
reporting requirements under the rules for small entities;
     Using performance rather than design standards; and
     Exempting small entities from all or part of the 
requirements.
    We believe the amendments to require the inclusion of hyperlinks in 
the exhibit index will impose only minimal burdens on registrants. 
Similarly, we believe the requirement to submit registration statements 
and reports in HTML format should not impose significant costs. During 
calendar year 2015, approximately 0.74% of the forms that would be 
affected by the proposed amendments were filed in ASCII, and we believe 
that the HTML format has largely replaced the ASCII format for these 
form types. The limited use of ASCII indicates that the final 
amendments will affect only a limited number of registrants on a one-
time basis. While the registrants that file forms in ASCII that would 
be affected by the proposal to require HTML are primarily small 
entities, we expect that the burden to switch from ASCII to HTML will 
not be significant because the software tools to file in HTML format 
are now widely used and available at a minimal cost. Accordingly, we do 
not believe that it is necessary to exempt small entities from the 
proposed amendments. For similar reasons, we have not sought to 
clarify, consolidate or simplify the proposed amendments' requirements 
for small entities.
    Nevertheless, to minimize the initial compliance burden on small 
entities and give them additional time to prepare for compliance with 
the final rules, we are adopting a phase-in period for non-accelerated 
filers and smaller reporting companies that submit filings in ASCII. 
These registrants will have one year after the effective date of the 
final rules to begin to comply with the rules. During the phase-in 
period, a non-accelerated filer or a smaller reporting company that 
submits filings in ASCII may continue to file registration statements 
or reports in ASCII and will not need to include hyperlinks to the 
exhibits listed in the exhibit indexes of its filings.
    The final rules use design rather than performance standards in 
order to promote uniform filing requirements for all registrants.

VII. Statutory Authority

    The amendments contained in this release are being adopted under 
the authority set forth in Sections 6, 7, 8, 10 and 19(a) of the 
Securities Act, and Sections 3, 12, 13, 15(d), 23(a) and 35A of the 
Exchange Act.

List of Subjects in 17 CFR Parts 229, 232, 239 and 249

    Reporting and recordkeeping requirements, Securities.

Text of the Final Amendments

    For the reasons set out in the preamble, 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 continues to read as follows:

    Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 
77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 
77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78l, 78m, 78n, 78n-1, 78o, 78u-
5, 78w, 78ll, 78 mm, 80a-8, 80a-9, 80a-20, 80a-29, 80a-30, 80a-
31(c), 80a-37, 80a-38(a), 80a-39, 80b-11 and 7201 et seq.; 18 U.S.C. 
1350; Sec. 953(b) Pub. L. 111-203, 124 Stat. 1904; Sec. 102(a)(3) 
Pub. L. 112-106, 126 Stat. 309; and Sec. 84001, Pub. L. 114-94, 129 
Stat. 1312.


0
2. Amend Sec.  229.601 by revising paragraph (a)(2) to read as follows:


Sec.  229.601  (Item 601) Exhibits.

    (a) * * *
    (2) Each registration statement or report shall contain an exhibit 
index, which must appear before the required signatures in the 
registration statement or report. For convenient reference, each 
exhibit shall be listed in the exhibit index according to the number 
assigned to it in the exhibit table. If an exhibit is incorporated by 
reference, this must be noted in the exhibit index. Each exhibit 
identified in the exhibit index (other than an exhibit filed in 
eXtensible Business Reporting Language or an exhibit that is filed with 
Form ABS-EE) must include an active link to an exhibit that is filed 
with the registration statement or report or, if the exhibit is 
incorporated by reference, an active hyperlink to the exhibit 
separately filed on EDGAR. If a registration statement or report is 
amended, each amendment must include hyperlinks to the exhibits 
required with the amendment. For a description of each of the exhibits 
included in the exhibit table, see paragraph (b) of this section.
* * * * *

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

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

    Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3, 
77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 
80a-8, 80a-29,

[[Page 14142]]

80a-30, 80a-37, 7201 et seq.; and 18 U.S.C. 1350, unless otherwise 
noted.
* * * * *

0
4. Amend Sec.  232.11 by removing the definition ``Hypertext links or 
hyperlinks'' and adding the definition ``Hyperlinks'' in alphabetical 
order to read as follows:


Sec.  232.11  Definition of terms used in part 232.

* * * * *
    Hyperlinks. The term hyperlinks means the representation of an 
Internet address in a form that an Internet browser application can 
recognize as an Internet address.
* * * * *

0
5. Amend Sec.  232.102 by revising paragraphs (a) and (d) to read as 
follows:


Sec.  232.102  Exhibits.

    (a) Exhibits to an electronic filing that have not previously been 
filed with the Commission shall be filed in electronic format, absent a 
hardship exemption. Previously filed exhibits, whether in paper or 
electronic format, may be incorporated by reference into an electronic 
filing to the extent permitted by Sec.  229.10(d) of this chapter, Rule 
411 under the Securities Act (Sec.  230.411 of this chapter), Rule 12b-
23 or 12b-32 under the Exchange Act (Sec.  240.12b-23 or Sec.  240.12b-
32 of this chapter), Rules 0-4, 8b-23, and 8b-32 under the Investment 
Company Act (Sec. Sec.  270.0-4, 270.8b-23 and 270.8b-32 of this 
chapter) and Rule 303 of Regulation S-T (Sec.  232.303). An electronic 
filer may, at its option, restate in electronic format any exhibit 
incorporated by reference that originally was filed in paper format.

    Note to paragraph (a): Exhibits to a Commission schedule filed 
pursuant to Section 13 or 14(d) of the Exchange Act may be filed in 
paper under cover of Form SE where such exhibits previously were 
filed in paper (prior to a registrant's becoming subject to mandated 
electronic filing or pursuant to a hardship exemption) and are 
required to be refiled pursuant to the schedule's general 
instructions. See Rule 311(b) of Regulation S-T (17 CFR 232.311(b)).

* * * * *
    (d) Each electronic filing requiring exhibits must include an 
exhibit index which must appear before the required signatures in the 
document. The index must list each exhibit filed, whether filed 
electronically or in paper. For electronic filings on Form F-10 (Sec.  
239.40 of this chapter), Form 20-F (Sec.  249.220f of this chapter), or 
filings subject to Item 601 of Regulation S-K (Sec.  229.601 of this 
chapter), each exhibit identified in the exhibit index (other than an 
exhibit filed in eXtensible Business Reporting Language or an exhibit 
that is filed with Form ABS-EE (Sec.  249.1401 of this chapter)) must 
include an active link to an exhibit that is filed with the document 
or, if the exhibit is incorporated by reference, an active hyperlink to 
the exhibit separately filed on EDGAR. Whenever a filer files an 
exhibit in paper pursuant to a temporary or continuing hardship 
exemption (Sec.  232.201 or Sec.  232.202) or pursuant to Sec.  
232.311, the filer must place the letter ``P'' next to the listed 
exhibit in the exhibit index of the electronic filing to reflect the 
fact that the filer filed the exhibit in paper. In addition, if the 
exhibit is filed in paper pursuant to Sec.  232.311, the filer must 
place the designation ``Rule 311'' next to the letter ``P'' in the 
exhibit index. If the exhibit is filed in paper pursuant to a temporary 
or continuing hardship exemption, the filer must place the letters 
``TH'' or ``CH,'' respectively, next to the letter ``P'' in the exhibit 
index. Whenever an electronic confirming copy of an exhibit is filed 
pursuant to a hardship exemption (Sec.  232.201 or Sec.  232.202(d)), 
the exhibit index should specify where the confirming electronic copy 
can be located; in addition, the designation ``CE'' (confirming 
electronic) should be placed next to the listed exhibit in the exhibit 
index.
* * * * *

0
6. Amend Sec.  232.105 by revising the section heading and paragraphs 
(b) and (c) and adding paragraph (d) to read as follows:


Sec.  232.105  Use of HTML and hyperlinks.

* * * * *
    (b) Electronic filers may not include in any HTML document 
hyperlinks to sites, locations, or documents outside the HTML document, 
except links to officially filed documents within the current 
submission and to documents previously filed electronically and located 
in the EDGAR database on the Commission's public Web site 
(www.sec.gov). Electronic filers also may include within an HTML 
document links to different sections within that single HTML document.
    (c) If a filer includes an external hyperlink within a filed 
document, the information contained in the linked material will not be 
considered part of the document for determining compliance with 
reporting obligations, but the inclusion of the link will cause the 
filer to be subject to the civil liability and antifraud provisions of 
the federal securities laws with reference to the information contained 
in the linked material.
    (d) Electronic filers submitting Form F-10 (Sec.  239.40 of this 
chapter), Form 20-F (Sec.  249.220f of this chapter), or a registration 
statement or report subject to Item 601 of Regulation S-K (Sec.  
229.601 of this chapter), must submit such registration statement or 
report in HTML and each exhibit identified in the exhibit index (other 
than an exhibit filed in eXtensible Business Reporting Language or an 
exhibit filed with Form ABS-EE (Sec.  249.1401 of this chapter)) must 
include an active link to an exhibit that is filed with the 
registration statement or report or, if the exhibit is incorporated by 
reference, an active hyperlink to the exhibit separately filed on 
EDGAR, unless such exhibit is filed in paper pursuant to a temporary or 
continuing hardship exemption under Rules 201 or 202 of Regulation S-T 
(Sec.  232.201 or Sec.  232.202) or pursuant to Rule 311 of Regulation 
S-T (Sec.  232.311).
    Instructions to paragraph (d): (1) No hyperlink is required for any 
exhibit incorporated by reference that has not been filed with the 
Commission in electronic format.
    (2) An electronic filer must correct an inaccurate or 
nonfunctioning link or hyperlink to an exhibit, in the case of a 
registration statement that is not yet effective, by filing an 
amendment to the registration statement containing the inaccurate or 
nonfunctioning link or hyperlink; or, in the case of a registration 
statement that has become effective or an Exchange Act report, an 
electronic filer must correct the inaccurate or nonfunctioning link or 
hyperlink in the next Exchange Act periodic report that requires, or 
includes, an exhibit pursuant to Item 601 of Regulation S-K (Sec.  
229.601 of this chapter) or, in the case of a foreign private issuer 
(as defined in Sec.  229.405 of this chapter), Form 20-F (Sec.  
249.220f of this chapter) or Form F-10 (Sec.  239.40 of this chapter). 
Alternatively, an electronic filer may correct an inaccurate or 
nonfunctioning link or hyperlink in a registration statement that has 
become effective by filing a post-effective amendment to the 
registration statement.

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

0
7. The authority citation for part 239 continues to read in part as 
follows:

    Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 
77sss, 78c, 78l, 78m, 78n, 78o(d), 78o-7 note, 78u-5, 78w(a), 78ll, 
78mm, 80a-2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 80a-26, 
80a-29, 80a-30, 80a-37, and Sec. 71003 and Sec. 84001, Pub. L. 114-
94, 129 Stat. 1312, unless otherwise noted.
* * * * *

[[Page 14143]]


0
8. Amend Form F-10 (referenced in Sec.  239.40) by revising paragraph D 
of General Instruction II to read as follows:

    Note: The text of Form F-10 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

United States Securities and Exchange Commission

Washington, DC 20549

Form F-10

Registration Statement Under the Securities Act of 1933

* * * * *

General Instructions

* * * * *

II. Application of General Rules and Regulations

* * * * *
    D. A registrant must file the registration statement in electronic 
format via the Commission's Electronic Data Gathering, Analysis, and 
Retrieval (EDGAR) system in accordance with the EDGAR rules set forth 
in Regulation S-T (17 CFR part 232). For assistance with technical 
questions about EDGAR or to request an access code, call the EDGAR 
Filer Support Office at (202) 551-8900. For assistance with the EDGAR 
rules, call the Office of Information Technology in the Division of 
Corporation Finance at (202) 551-3600.
    Include an exhibit index in the registration statement, which must 
appear before the required signatures in the document. The exhibit 
index must list each exhibit according to the letter or number assigned 
to it. If an exhibit is incorporated by reference, this must be noted 
in the exhibit index. Each exhibit identified in the exhibit index 
(other than an exhibit filed in eXtensible Business Reporting Language) 
must include an active link to an exhibit that is filed with the 
registration statement or, if the exhibit is incorporated by reference 
an active hyperlink to the exhibit separately filed on EDGAR. If the 
registration statement is amended, each amendment must include active 
hyperlinks to the exhibits required with the amendment. For paper 
filings, the pages of the manually signed original registration 
statement should be numbered in sequence, and the exhibit index should 
give the page number in the sequential numbering system where each 
exhibit can be found.
    If filing the registration statement in paper under a hardship 
exemption in Rule 201 or 202 of Regulation S-T (17 CFR 232.201 or 
232.202), or as otherwise permitted, a registrant must file with the 
Commission at its principal office five copies of the complete 
registration statement and any amendments, including exhibits and all 
other documents filed as a part of the registration statement or 
amendment. The registrant must bind, staple or otherwise compile each 
copy in one or more parts without stiff covers. The registrant must 
further bind the registration statement or amendment on the side or 
stitching margin in a manner that leaves the reading matter legible. 
The registrant must provide three additional copies of the registration 
statement or amendment without exhibits to the Commission.
* * * * *

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

0
9. The authority citation for part 249 continues to read in part as 
follows:

    Authority: 15 U.S.C. 78a et seq. and 7201 et seq.; 12 U.S.C. 
5461 et seq.; 18 U.S.C. 1350; Sec. 953(b) Pub. L. 111-203, 124 Stat. 
1904; Sec. 102(a)(3) Pub. L. 112-106, 126 Stat. 309 (2012), Sec. 107 
Pub. L. 112-106, 126 Stat. 313 (2012), and Sec. 72001 Pub. L. 114-
94, 129 Stat. 1312 (2015), unless otherwise noted.
* * * * *

0
10. Amend Form 20-F (referenced in Sec.  249.220f) by revising the 
fourth paragraph of the introductory text under ``Instructions as to 
Exhibits'' to read as follows:

    Note: The text of Form 20-F does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 20-F

* * * * *

Part III

* * * * *

Item 19. Exhibits

* * * * *

Instructions as to Exhibits

* * * * *
    Include an exhibit index in each registration statement or report 
you file, which must appear before the required signatures in the 
document. The exhibit index must list each exhibit according to the 
number assigned to it below. If an exhibit is incorporated by 
reference, this must be noted in the exhibit index. Each exhibit 
identified in the exhibit index (other than an exhibit filed in 
eXtensible Business Reporting Language) must include an active link to 
an exhibit that is filed with the registration statement or report or, 
if the exhibit is incorporated by reference an active hyperlink to the 
exhibit separately filed on EDGAR. If a registration statement or 
report is amended, each amendment must include active hyperlinks to the 
exhibits required with the amendment. For paper filings, the pages of 
the manually signed original registration statement should be numbered 
in sequence, and the exhibit index should give the page number in the 
sequential numbering system where each exhibit can be found.
* * * * *

    By the Commission.

    Dated: March 1, 2017.
Brent J. Fields,
Secretary.
[FR Doc. 2017-04365 Filed 3-16-17; 8:45 am]
BILLING CODE 8011-01-P