Electronic Filing and Revision of Form D, 10592-10642 [E8-3545]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 73, Number 39 (Wednesday, February 27, 2008)]
[Rules and Regulations]
[Pages 10592-10642]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3545]



[[Page 10591]]

-----------------------------------------------------------------------

Part IV





Securities and Exchange Commission





-----------------------------------------------------------------------



17 CFR Parts 230, 232, and 239



Electronic Filing and Revision of Form D; Final Rule

Federal Register / Vol. 73, No. 39 / Wednesday, February 27, 2008 / 
Rules and Regulations

[[Page 10592]]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 230, 232, and 239

[RELEASE NOS. 33-8891; 34-57280; 39-2453; IC-28145; FILE NO. S7-12-07]
RIN 3235-AJ87


Electronic Filing and Revision of Form D

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Securities and Exchange Commission is adopting rule 
amendments mandating the electronic filing of information required by 
Securities Act of 1933 Form D through the Internet. We also are 
adopting revisions to Form D and to Regulation D in connection with the 
electronic filing requirement. The revisions simplify and restructure 
Form D and update and revise its information requirements. The 
information required by Form D will be filed with us electronically 
through a new online filing system that will be accessible from any 
computer with Internet access. The data filed will be available on our 
Web site and will be interactive and searchable.

DATES: Effective Date: September 15, 2008 except the amendments to 
Sec.  232.101(c)(6) and Sec.  232.201(a) are effective March 28, 2008, 
Sec.  232.101(a)(1)(xiii) is effective March 16, 2009 and Sec.  
230.503T, Sec.  232.101(b)(10) and Sec.  239.500T are effective from 
September 15, 2008 to March 16, 2009.

FOR FURTHER INFORMATION CONTACT: Questions about this release should be 
addressed to Gerald J. Laporte, Chief, or Corey A. Jennings, Attorney-
Advisor, Office of Small Business Policy, Division of Corporation 
Finance, or Mark W. Green, Senior Special Counsel (Regulatory Policy), 
Division of Corporation Finance, Securities and Exchange Commission, 
100 F Street, NE., Washington, DC 20549-3628, (202) 551-3460.

SUPPLEMENTARY INFORMATION: We are adopting revisions to Rules 100,\1\ 
101,\2\ 104,\3\ 201,\4\ and 202 \5\ of Regulation S-T,\6\ Rules 502 \7\ 
and 503 \8\ of Regulation D,\9\ and Form D \10\ under the Securities 
Act of 1933 (``Securities Act'').\11\ We also are adding temporary Rule 
503T and Temporary Form D under the Securities Act and temporary Rule 
101(b)(10) of Regulation S-T.
---------------------------------------------------------------------------

    \1\ 17 CFR 232.100.
    \2\ 17 CFR 232.101.
    \3\ 17 CFR 232.104.
    \4\ 17 CFR 232.201.
    \5\ 17 CFR 232.202.
    \6\ 17 CFR 232.10 et seq.
    \7\ 17 CFR 230.502.
    \8\ 17 CFR 230.503.
    \9\ 17 CFR 230.501-508.
    \10\ 17 CFR 239.500.
    \11\ 15 U.S.C. 77a et seq.
---------------------------------------------------------------------------

Table of Contents

I. Executive Summary and Background
    A. History and Purpose of Form D
    B. Need to Update Form D and Require Electronic Filing
    1. Easing Filing Burdens
    2. Better Public Availability of Form D Information
    3. Federal and State Uniformity and Coordination; One-Stop 
Filing
    4. Improved Collection of Data for Commission Enforcement and 
Rulemaking Efforts
    C. Summary of Adopted Amendments
II. Discussion of Amendments
    A. Amendments to Form D Content Requirements
    1. Basic Identifying and Contact Information
    2. Additional Information About Issuer
    3. Identification of Claimed Exemptions and Exclusions
    4. Indication of Type of Filing
    a. General Requirements
    b. Amendment of Previously Filed Form D
    5. Information About Offering
    6. Signature and Submission
    B. Electronic Filing of Form D
    C. General Solicitation and General Advertising Issues Presented 
by Electronic Filing of Form D
III. Electronic Filing Procedure
    A. Mechanics
    B. Database Capabilities of Electronic Form D Repository
    C. System Implementation
IV. Paperwork Reduction Act Analysis
V. Cost-Benefit Analysis
VI. Consideration of Impact on Competition and Promotion of 
Efficiency, Competition and Capital Formation
VII. Final Regulatory Flexibility Act Analysis
VIII. Statutory Basis and Text of Amendments

I. Executive Summary and Background

A. History and Purpose of Form D

    On June 29, 2007, we issued a release in which we proposed for 
public comment rule amendments mandating the electronic filing of Form 
D through the Internet and revisions to that form.\12\ In this release, 
we are adopting the amendments substantially as proposed. As further 
described below, companies will be permitted to file Form D information 
voluntarily through the Internet when our new Form D electronic filing 
system becomes available on September 15, 2008 and will be required to 
file electronically through the Internet on and after March 16, 2009.
---------------------------------------------------------------------------

    \12\ We proposed the amendments in Release No. 33-8814 (June 29, 
2007) [72 FR 37376]. The comment letters we received in response to 
the proposing release were filed in File Number S7-12-07 and are 
available at https://www.sec.gov/comments/s7-12-07/s71207.shtml or 
from our Public Reference Room at 100 F Street, NE., Washington, DC 
20549.
---------------------------------------------------------------------------

    Form D serves as the official notice of an offering of securities 
made without registration under the Securities Act in reliance on an 
exemption provided by Regulation D.\13\ Both public and nonpublic 
companies file information using this form.
---------------------------------------------------------------------------

    \13\ Regulation D contains separate exemptions for limited 
offerings in Rules 504, 505 and 506. Form D also is to be used by 
issuers making offerings of securities without registration in 
reliance on the exemption contained in Section 4(6) of the 
Securities Act [15 U.S.C. 77d(6)]. Although we primarily discuss 
Regulation D in this release, the revised Form D also will continue 
to apply to Section 4(6) offerings. Regardless of the type of 
offering to which revised Form D applies, it will be required to be 
filed electronically after a transition period during which we will 
allow either paper or electronic filing.
---------------------------------------------------------------------------

    Regulation D was part of a Commission initiative in the early 1980s 
to provide a more coherent pattern of exemptive relief from the 
registration requirements of the Securities Act, and particularly to 
address the capital formation needs of small business.\14\ At the time, 
we intended the Form D filing requirement in Rule 503 of Regulation D 
to serve an important data collection objective.\15\ We expected that 
the empirical data derived from the Form D filings would enable us to 
better evaluate the effectiveness of Regulation D as a capital raising 
device and eventually to further tailor our rules to provide 
appropriate support for both capital formation, especially as it 
relates to small business, and investor protection.\16\
---------------------------------------------------------------------------

    \14\ We adopted Form D and Regulation D in 1982. Release No. 33-
6389 (Mar. 8, 1982) [47 FR 11251] (adopting Form D as a replacement 
for Forms 4(6), 146, 240 and 242). They had been proposed in the 
previous year. Release No. 33-6339 (Aug. 7, 1981) [46 FR 41791] 
(proposing Regulation D and Form D).
    \15\ We stated in the proposing release for the original Rule 
503:
    ``An important purpose of the notice * * * is to collect 
empirical data which will provide a basis for further action by the 
Commission either in terms of amending existing rules and 
regulations or proposing new ones * * *. Further, the proposed Form 
would allow the Commission to elicit information necessary in 
assessing the effectiveness of Regulation D as a capital raising 
device for small businesses.''
    Release No. 33-6339 (Aug. 7, 1981) [46 FR 41791, 41799].
    \16\ Release No. 33-6339 (Aug. 7, 1981) [46 FR 41791, 471799].
---------------------------------------------------------------------------

    We modified the requirements relating to Form D in 1986, making 
Form D a uniform notification form that could be filed with state 
securities

[[Page 10593]]

regulators.\17\ This effort was undertaken with the cooperation of the 
North American Securities Administrators Association (NASAA), the 
organization of state securities regulators, as part of the 
Commission's efforts to reduce the costs of capital formation for small 
business and to promote uniformity between federal and state securities 
regulation. At that time, we also eliminated the requirement to amend a 
Form D filing for an offering every six months during the course of the 
offering and the requirement to make a final Form D filing within 30 
days of the final sale in the offering. We left intact the requirement 
in Rule 503 to file a Form D notification within 15 days after the 
first sale of securities in an offering, leaving that as the sole 
current explicit requirement for a Form D filing.\18\
---------------------------------------------------------------------------

    \17\ Release No. 33-6663 (Oct. 2, 1986) [51 FR 36385].
    \18\ 17 CFR 230.503.
---------------------------------------------------------------------------

    In 1989, we amended the Regulation D exemptions to eliminate the 
filing of Form D information as a condition to their availability.\19\ 
At that time, we also added Rule 507 to Regulation D to provide an 
incentive for issuers to make a Form D filing, even though it was no 
longer a condition to the availability of the Regulation D 
exemptions.\20\ Specifically, Rule 507 disqualifies an issuer from 
using a Regulation D exemption in the future if it has been enjoined by 
a court for violating Rule 503 by failing to file the information 
required by Form D.\21\ Consequently, an issuer has an incentive to 
make a Form D filing to avoid the possibility that a court will enjoin 
the issuer for violating Rule 503 and, as a result, disqualify the 
issuer from using a Regulation D exemption in the future.
---------------------------------------------------------------------------

    \19\ Release No. 33-6825 (Mar. 15, 1989) [54 FR 11369].
    \20\ Id.
    \21\ On August 3, 2007, we issued a release proposing changes to 
Regulation D. See Release No. 33-8828 (Aug. 3, 2007) [72 FR 45116]. 
Among those changes were moving Regulation D's exemption 
disqualification provisions to a new subparagraph (e) of Rule 502 
and adopting a new exemption that would appear in a revised Rule 507 
of Regulation D. The Regulation D release also sought additional 
comment on the proposals we made in Release No. 33-8766 (Dec. 27, 
2006) [72 FR 400] that concerned accredited investors in certain 
private pooled investment vehicles. Since we have not adopted and 
are still considering the changes proposed in the Regulation D 
release and the accredited investor changes proposed in the private 
pooled investment vehicle release, the new Form D and its 
implementing rules do not reflect those changes, as did the Form D 
in the Form D proposing release. We are still considering the 
proposed changes to Form D that would be necessary to reflect 
adoption of the Regulation D and private pooled investment vehicle 
changes, and may adopt the Form D changes if we adopt the Regulation 
D and private pooled investment vehicle changes.
---------------------------------------------------------------------------

    In 1996, we proposed to eliminate the Form D filing requirement and 
replace it with an issuer obligation to complete a Form D and retain it 
for a period of time.\22\ At the time, our Task Force on Disclosure 
Simplification had suggested that the Commission consider the continued 
need for a Form D filing requirement.\23\ After reviewing comments on 
the proposal, we determined that the information collected in Form D 
filings was still useful to us ``in conducting economic and other 
analyses of the private placement market'' and retained the 
requirement.\24\ In 1998, we solicited public comment on, but did not 
propose, requiring electronic filing of the Form D notice.\25\ The 
public comments generally favored electronic filing in principle but 
expressed concern about Form D filers needing to follow the same 
procedures as then were required generally for filings through the 
Commission's electronic filing system, called the Electronic Data 
Gathering, Analysis and Retrieval or ``EDGAR'' system.
---------------------------------------------------------------------------

    \22\ Release No. 33-7301 (May 31, 1996) [61 FR 30405].
    \23\ SEC Task Force on Disclosure Simplification, Final Report 
17 (Mar. 5, 1996), available at https://www.sec.gov/news/studies/
smpl.txt.
    \24\ Release No. 33-7431, at 5 (July 18, 1997) [62 FR 39755, 
39756].
    \25\ Release No. 33-7541 (May 21, 1998) [63 FR 29168].
---------------------------------------------------------------------------

    In summary, our previous statements on Form D have suggested that, 
at the federal regulatory level, the Form D filing serves two primary 
purposes:
     Collection of data for use in the Commission's rulemaking 
efforts; and
     Enforcement of the federal securities laws, including 
enforcement of the exemptions in Regulation D.\26\
---------------------------------------------------------------------------

    \26\ Release No. 33-6389 (Mar. 8, 1982) [47 FR 11251] and 
Release No. 33-7431 (July 18, 1997) [62 FR 39755].
---------------------------------------------------------------------------

    The information submitted in Form D filings also is useful for 
other purposes. The staffs of state securities regulators and the 
Financial Industry Regulatory Authority (FINRA), the successor to the 
member firm regulatory functions of the National Association of 
Securities Dealers, Inc. and NYSE Regulation, Inc., also use Form D 
information to enforce securities laws and the rules of securities 
self-regulatory organizations. Form D filings also have become a source 
of information for investors. Our Web site advises potential investors 
in Regulation D offerings to check whether the company making the 
offering has filed a Form D notice and advises that ``[i]f the company 
has not filed a Form D, this should alert you that the company might 
not be in compliance with the federal securities laws.'' \27\ In 
addition, the information in Form D filings serves as a source of 
business intelligence for commercial information vendors, as well as 
for participants in the venture capital, private equity, and other 
industries that rely on Regulation D offerings and for competitors of 
companies that file Form D information. Academic researchers use Form D 
information to conduct empirical research aimed at improving the 
workings of these industries.\28\ Journalists use Form D information to 
report on capital-raising in these industries.\29\
---------------------------------------------------------------------------

    \27\ See https://www.sec.gov/answers/formd.htm.
    \28\ For a discussion of how academic researchers are using 
available data on private investments to improve the workings of the 
venture capital industry, see A. Ginsberg, Truth, or Consequences: 
Academic Researchers are Helping Policy Makers and Practitioners 
Understand the Problems Facing the Venture Capital Industry, 
Innovation Review 8 (Berkley Center for Entrepreneurial Studies, 
Fall 2002).
    \29\ See, e.g., R.J. Terry and B. Hammer, NEA Closes $2.5 
Billion Fund, Baltimore Bus. Journal, July 10, 2006.
---------------------------------------------------------------------------

B. Need To Update Form D and Require Electronic Filing

    Currently, much of the information required by Form D appears to be 
useful and justified in the interests of investor protection and 
capital formation.\30\ It also appears that some useful information 
that could be required by Form D is not required currently. On the 
other hand, Form D currently requires some information that may no 
longer be useful. Our staff receives many inquiries from market 
participants suggesting that Form D could be clarified and simplified. 
Moreover, the absence of an electronic system for filing Form D 
information prevents issuers from filing through efficient modern 
methods and limits the usefulness of the information collected on Form 
D. The rules we adopt today address deficiencies in the Form D data 
collection requirements and process.
---------------------------------------------------------------------------

    \30\ For example, information provided in response to the 
requirement to check the applicable specified exemptions from 
registration claimed by the issuer helps the Commission monitor and 
better evaluate use of the claimed exemptions in order to protect 
investors and facilitate the development of private and limited 
markets in which to raise capital.
---------------------------------------------------------------------------

1. Easing Filing Burdens
    Our new Form D rules are intended to ease the costs and burdens of 
preparing and filing Form D information. The informational requirements 
will be streamlined and updated. The instructions will be clarified and 
simplified. Issuers will file Form D information electronically through 
a new online filing system that will be

[[Page 10594]]

accessible from any computer with Internet access. Issuers will provide 
data by responding to discrete information requests. Appropriate data 
entries will be reviewed automatically for proper characters and 
consistency with entries in other fields. Data entry fields will be 
accompanied by links to instructions and other helpful information. We 
believe these system features, among others, will help facilitate a 
relatively easy-to-use filing process that will deliver accurate 
information quickly, reliably, and securely.\31\ The Form D filing will 
continue to be required within 15 days of an issuer's first sale in an 
offering without Securities Act registration in reliance on one or more 
of the exemptions provided in Regulation D, and the rules will clarify 
when amendments are required. Paper filing of Form D information will 
be eliminated after a transition period in which the information may be 
filed either electronically through the Internet or in paper.\32\
---------------------------------------------------------------------------

    \31\ The new online filing system is discussed in further detail 
in Part III of this release.
    \32\ Rule 101 of Regulation S-T, Rule 503 of Regulation D and 
the description of Form D will mandate electronic filing of Form D 
information subject to varied effective dates and temporary 
provisions, which together will permit the information to be filed 
either electronically through the Internet or in paper during the 
transition period. The transition period is discussed more fully in 
Part III.C below. Currently, our rules require issuers to file five 
paper copies of the Form D with us by mail or physical delivery to 
Commission headquarters. 17 CFR 230.503(a). The Commission received 
27,843 Form D filings in its most recently ended fiscal year, 2007.
---------------------------------------------------------------------------

2. Better Public Availability of Form D Information
    Requiring the electronic filing of Form D data through the Internet 
will make the information filed more readily available to regulators 
and members of the public.\33\ The information will be available on our 
Web site and, because the online filing system will automatically 
capture and tag data items, the data will be interactive and 
searchable. The Commission's public Web site at https://www.sec.gov will 
enable users to view the information in an easy-to-read format, 
download the information into an existing application, or create an 
application to use the information.
---------------------------------------------------------------------------

    \33\ Most filings made with us currently are filed 
electronically through our EDGAR system. We began to make EDGAR 
electronic filing mandatory in 1993. Initially, a number of forms--
including Form D--were excluded from mandated electronic filing. 
Since the launch of the EDGAR system, we have increased the number 
of forms that are required to be filed electronically, but Form D 
has remained a paper-only filing. It will continue to remain so 
until the September 15, 2008 effective date of voluntary electronic 
filing, when companies will be able to file Form D information 
either in paper or electronically until the end of the phase-in 
period on March 16, 2009. Beginning on that date, Form D information 
will be required to be filed electronically through the Internet.
---------------------------------------------------------------------------

    Unlike information filed with us electronically, paper filings are 
available from us only in person in our Public Reference Room or by 
means of a mail request. We charge a nominal fee for copies of Form D 
filings. Some Form D filings are available at higher cost from private 
vendors through the Internet and telephone requests.
3. Federal and State Uniformity and Coordination; One-Stop Filing
    For over 20 years, Form D has served as a means to promote federal 
and state uniformity and coordination in securities regulation by 
providing a uniform notification form that can be filed with the 
Commission and with state securities regulators.\34\ The contemplated 
electronic filing system for Form D information will continue that 
tradition and can enhance the utility of Form D as a means to promote 
uniformity and coordination between federal and state securities 
regulation.
---------------------------------------------------------------------------

    \34\ According to a unit of the American Bar Association, 48 
states, the District of Columbia, Puerto Rico, and the U.S. Virgin 
Islands accept filings on Form D. New York prescribes its own Form 
99. Florida does not require any filing for the types of 
transactions other jurisdictions require to be reported on Form D. 
See Report on Blue Sky Survey of the NSMIA Subcommittee, Committee 
on State Regulation of Securities, American Bar Association Business 
Law Section (Feb. 2006).
---------------------------------------------------------------------------

    The availability of Form D information filed with us through a 
searchable electronic database will enable both federal and state 
securities regulators to monitor the exempt securities transaction 
markets more effectively. The system also will permit improved 
coordination among federal and state regulators, which is essential to 
efficient and effective capital formation through exempt transactions, 
especially by smaller companies, and to investor protection. State 
securities regulators will be able to access the information on our Web 
site to learn if new Form D information of interest to them has been 
filed.
    The system will enhance uniformity and coordination even more if it 
results in ``one-stop filing,'' an approach we and NASAA are exploring. 
One-stop filing will enable companies to file Form D information both 
with us and with the states they designate in one electronic 
transaction. While that capability will not be available when Form D 
electronic filing with the Commission begins, we have been working 
actively with NASAA to achieve that capability as soon as practicable. 
We understand that NASAA is considering establishing its own new 
electronic system that would interface with our system and would 
receive filings and collect fees on behalf of participating state 
securities regulators.\35\ One-stop filing will reduce significantly 
the costs and burdens of preparing and filing Form D information with 
the Commission and with state securities regulators. This could 
represent a substantial savings for small businesses and others filing 
Form D information.
---------------------------------------------------------------------------

    \35\ The Commission's electronic filing system will not collect 
fees on behalf of any states.
---------------------------------------------------------------------------

    The commenters that responded to our Form D proposing release that 
addressed one-stop filing supported it,\36\ but some made suggestions 
and some expressed concerns.\37\ NASAA stated that it envisions a 
system that would direct issuers to a NASAA-hosted Web site that lists 
the fees for states a filer selects and enables the filer to make an 
electronic payment to those states that would include a modest service 
charge to defray costs of the site and service.\38\ NASAA also stated 
that it envisions that the electronic payment would be made by means of 
an electronic funds transfer or credit card transaction. NASAA further 
envisions that, after payment, the system would allow a completed Form 
D to be filed with the Commission and distributed by the NASAA-hosted 
site to the states selected by the filer. Finally, NASAA anticipates 
that the Commission would have no direct involvement or responsibility 
for the state distribution and payment system. Two commenters expressed 
concerns about one-stop filing, relating primarily to the prospects for 
timely state adoption \39\ and, in one case, the use of the electronic 
system as it relates to the National Securities Markets Improvement Act 
of 1996.\40\ Finally, one

[[Page 10595]]

commenter expressed hope that companies would continue to be able to 
file a Form D notice with a particular state or states and not with the 
Commission where the company is comfortable relying on the Section 4(2) 
exemption from registration at the federal level and no federal Form D 
would be required.\41\ We have considered these comments and will 
continue to consider them as we work with NASAA in an effort to 
establish one-stop filing.
---------------------------------------------------------------------------

    \36\ One commenter, for example, stated that if one-stop filing 
were implemented properly, it would reduce significantly the costs 
and burdens of preparing and filing Form D with the Commission and 
the states. See letter from American Bar Association, Section of 
Business Law, Committees on Federal Regulation of Securities and 
State Regulation of Securities (ABA).
    \37\ See letters from ABA, Coalition of Private Investment 
Companies (CPIC), Connecticut Department of Banking (Connecticut), 
Managed Funds Association (MFA), Massachusetts Securities Division 
(Massachusetts), NASAA and Pennsylvania Securities Commission 
(Pennsylvania).
    \38\ See letter from NASAA.
    \39\ See letters from ABA and MFA.
    \40\ See letter from ABA (``There are several aspects of `one-
stop' filing about which we have particular reservations emanating * 
* * partly from a desire to delineate clear boundaries as a result 
of federal preemption under the National Securities Markets 
Improvement Act of 1996 * * * .''). Section 102(a) of the National 
Securities Markets Improvement Act of 1996 (``NSMIA'') [Pub. L. No. 
104-290 110 Stat. 3416 (Oct. 11, 1996)] enacted new Section 18 of 
the Securities Act [15 U.S.C. 77r], which, in part, limits the 
authority of the states to regulate offers and sales of securities 
exempt under ``rules or regulations issued under section 4(2)'' of 
the Act [15 U.S.C. 77d(2)], which includes Rule 506 but not Rules 
504 or 505 of Regulation D.
    \41\ See letter from ABA.
---------------------------------------------------------------------------

4. Improved Collection of Data for Commission Enforcement and 
Rulemaking Efforts
    The conversion to electronic filing of Form D information through 
the Internet in an interactive data format will result in creation of a 
database of Form D information and allow us and others to better 
aggregate data on the private and limited offering securities markets 
and the use of the various Regulation D exemptions. Further, the 
software we will use for the Form D electronic filings will require 
that filers address each required data field in the form, thus reducing 
incomplete filings. Because of these and other features, our Form D 
electronic filing system should assist in our enforcement efforts and 
enhance our ability to use filed Form D information. The Form D 
information database will allow us to better evaluate our exemptive 
schemes on a continuing basis in order to facilitate capital formation 
in a manner consistent with investor protection. The evaluation could 
lead to improvements that would result in significant benefits to 
companies that rely on the Regulation D exemptions, especially smaller 
companies, as well as benefits to investors.

C. Summary of Adopted Amendments

    In sum, the amendments will:
     Mandate electronic filing of Form D information:
    [cir] After a phase-in period during which electronic filing will 
be voluntary; and
    [cir] Through an online filing system that will

0
Be accessible from any computer with Internet access; and
0
Capture and tag data items, so that the data will be interactive and 
viewable in an easy-to-read format; and
     Revise Form D's information requirements by:
    [cir] Permitting filers to identify all issuers in a multiple-
issuer offering in one Form D filing;
    [cir] Deleting the current requirement to identify as ``related 
persons'' owners of 10 percent or more of a class of the issuer's 
equity securities;
    [cir] Replacing the current requirement to provide a business 
description of the issuer with a requirement to classify the issuer by 
industry from a pre-established list of industries;
    [cir] Requiring revenue range information for the issuer, or net 
asset value range information in the case of hedge funds (subject to an 
option to decline to disclose);
    [cir] Requiring more specific information on the registration 
exemption claimed by the issuer in the Form D notice as well as 
information on any exclusion claimed from the definition of 
``investment company'' under the Investment Company Act of 1940 
(``Investment Company Act); \42\
---------------------------------------------------------------------------

    \42\ 15 U.S.C. 80a-1 et seq.
---------------------------------------------------------------------------

    [cir] Requiring reporting of the date of first sale in the 
offering;
    [cir] Specifying when amendments to a previously filed Form D 
notice are required by reason of mistakes of fact, errors or changes to 
information in a previously filed notice or the passage of a calendar 
year;
    [cir] Requiring reporting of whether the offering is expected to 
last over a year;
    [cir] Limiting reporting of the minimum investment amount accepted 
in the offering to the amount accepted from outside investors, so as 
not to affect employee stock ownership incentive plans adversely;
    [cir] Requiring CRD numbers for both individual recipients of sales 
compensation and associated broker-dealers;
    [cir] Replacing the current requirement to disclose information on 
a wide variety of expenses and applications of proceeds with a 
requirement to report expenses only as to amounts paid for sales 
commissions and, separately stated, finders' fees, and report use of 
proceeds only as to the amount of proceeds used to make payments to 
executive officers, directors and promoters;
    [cir] Replacing the current federal and state signature 
requirements with a combined signature requirement that includes an 
undertaking to provide offering documents to regulators on request 
(subject to applicable law), a consent to service of process and a 
certification that the issuer is not disqualified by rule from relying 
on an exemption claimed; and
    [cir] Permitting a limited amount of free writing in 
``clarification'' fields to the extent necessary to clarify certain 
information provided.
    The principal changes from the proposing release include:
     Permitting free writing to clarify responses to a total of 
five requests for information;
     Specifying that amendments to a previously filed Form D 
notice are required only for material mistakes of fact or errors, and 
not for any mistake of fact;
     Providing additional exceptions from changes that 
otherwise would require amendments to a previously filed Form D notice;
     Requiring an annual amendment to a Form D notice only if 
an entire calendar year has passed since the last filing, and not every 
year between January 1 and February 14; and
     Requiring expense and use of proceeds information on 
amounts paid for sales commissions, finders' fees, and payments to 
executive officers, directors and promoters, instead of eliminating 
those requirements.

II. Discussion of Amendments

    As noted above, we believe the revisions we adopt today will have a 
positive effect in many areas of interest to the Commission, state 
securities regulators, investors, and companies that rely on Regulation 
D exemptions. The revisions generally involve simplifying Form D, 
easing the burdens of complying with the requirements of the form, and 
modernizing the information capture process.
    For each offering of securities that is made without Securities Act 
registration in reliance on a claimed exemption under Regulation D, the 
issuer must file the information required by Form D with the Commission 
no later than 15 days after the first sale of securities. The form 
calls for issuers to provide basic identifying information and 
fundamental information about the offering. Some of the requirements of 
Form D have become outdated with the passage of time since the 
Commission adopted them. Further, some of the current form's 
requirements and instructions could be clarified and made less 
burdensome. The revisions we adopt today address these issues. In 
addition, the move to electronic filing necessitates several 
modifications. We generally are adopting the amendments substantially 
as proposed. Where we are not, we so note below.

[[Page 10596]]

A. Amendments To Form D Content Requirements

    Currently, Form D requires presentation of preliminary and other 
information required by five sections designated ``A'' through ``E.'' 
The revisions organize the information requirements around 16 numbered 
``items'' or categories of information. Instructions at the end of the 
form explain the requirements for each item. On the online form, terms 
and items at the front of the form will be linked to the instructions 
at the back, which will be available immediately by clicking on a 
particular term or item. In this regard, we are adding to the General 
Instructions a sentence that provides that terms used but not defined 
in the form that are defined in Rule 405 \43\ or Rule 501 \44\ have the 
meanings given to them in those rules. The sentence will clarify the 
application of Rule 501 and, to the extent it defines the term 
``promoter,'' Rule 405.\45\
---------------------------------------------------------------------------

    \43\ 17 CFR 230.405.
    \44\ 17 CFR 230.501.
    \45\ One commenter expressly supported defining the term 
``promoter'' in the instructions. See letter from Connecticut.
---------------------------------------------------------------------------

1. Basic Identifying and Contact Information
    New Form D generally carries over the requirements from current 
Form D for basic identifying and contact information and information 
about related persons, but modifies or omits some of these types of 
requirements. The requirements carried over, however, are restructured 
to reflect the electronic character of the filing.
    Item 1, similar to current Form D, requires basic identifying 
information, such as the name of the issuer of the securities, any 
previous names, the type of legal entity and the issuer's year and 
place of incorporation or organization.\46\ We are revising the form to 
provide specifically for the identification of multiple issuers in 
multiple-issuer offerings. Form D currently does not provide for this, 
sometimes raising questions as to how multiple-issuer offerings should 
be reported.\47\ Although we proposed to add to the form a requirement 
to supply the issuer's Commission file number, if any, we have decided 
not to adopt that requirement. We believe requiring the Commission file 
number would add a burden but would provide limited benefits because 
most Form D filers are nonpublic companies and, as a result, would not 
have a Commission file number. Furthermore, it is possible to use other 
required information to aid in identifying issuers.
---------------------------------------------------------------------------

    \46\ Issuers will specify their legal entity type (e.g., 
corporation or limited partnership).
    \47\ Currently, the Form D instructions do not specify whether 
all issuers in a multiple-issuer offering can be listed in the same 
Form D notice or whether each issuer must submit essentially the 
same notice. In this situation, the staff currently advises each 
issuer to submit a separate Form D notice because the filings are 
retrievable in our filing system only by reference to the name of 
one issuer. The changes clarify the requirements of this item and 
eliminate the burden on issuers to file what are essentially 
duplicate notices in order to comply with the requirement to file 
Form D information. The new online filing system will support 
multiple-issuer filings. As a result, all issuers easily can be 
identified in a single filing.
---------------------------------------------------------------------------

    With regard to identifying issuers, two commenters responded to our 
solicitation of comment on whether Form D should require CUSIP numbers 
and trading symbols. One commenter favored adding such a requirement in 
order to help parse information and facilitate automating filing 
notices.\48\ The other commenter, however, opposed adding the 
requirement as burdensome to issuers and resulting in information that 
is not useful.\49\ We believe that the system's data tagging features 
will facilitate parsing information and obtaining filing notices to 
such an extent that the burden of requiring CUSIP numbers and trading 
symbols would not be justified by the benefits to be gained.
---------------------------------------------------------------------------

    \48\ See letter from Pink Sheets LLC.
    \49\ See letter from ABA.
---------------------------------------------------------------------------

    In response to a comment letter,\50\ we have provided a place to 
identify an issuer as ``yet to be formed'' instead of providing a year 
of organization. The current Form D provides this alternative.
---------------------------------------------------------------------------

    \50\ See id.
---------------------------------------------------------------------------

    Two commenters expressed concern as to whether a filer would be 
able to specify its particular foreign place of incorporation or 
organization rather than just be able to indicate that the location is 
foreign.\51\ We confirm that the online filing system will enable 
issuers to specify particular foreign jurisdictions.
---------------------------------------------------------------------------

    \51\ See letters from ABA and Connecticut.
---------------------------------------------------------------------------

    Item 2, similar to current Form D, requires filers to provide place 
of business and telephone contact information.\52\
---------------------------------------------------------------------------

    \52\ Some information of the type that Items 2 and 3 require 
will automatically appear in appropriate places when the filer 
accesses the new online filing system. The system will replicate 
information provided by the filer in the course of obtaining the 
identifying information needed to access the new online filing 
system or in updating such information. The filer will be able to 
make changes to such information.
---------------------------------------------------------------------------

    The revised form will include instructions to clarify that post 
office box numbers and ``care of'' addresses are not acceptable as 
place of business information. One commenter asked that an issuer be 
permitted to provide a ``care of'' address because mail might not 
otherwise be delivered to the issuer where, for example, the issuer 
operates out of another entity's office and a separate address listing 
is precluded by lease restrictions or practical concerns.\53\ We 
acknowledge the concern, but reiterate our statement in the proposing 
release that this information is not collected for mailing purposes. 
The purpose of this information is to allow securities enforcement 
authorities to determine the location of the issuer's operations and 
personnel responsible for the offering. Post office box numbers and 
``care of'' addresses do not provide this information. In instances in 
which lease restrictions or other practical concerns arise, the issuer 
must make arrangements to provide acceptable place of business and 
contact information.
---------------------------------------------------------------------------

    \53\ See letter from ABA.
---------------------------------------------------------------------------

    The revised form will differ from the proposed form as to place of 
business and telephone contact information. The proposed version would 
have required place of business and telephone contact information in a 
multiple-issuer offering only for the primary issuer and would not have 
permitted such information for the other issuers. In the proposing 
release, we reasoned that issuers in multiple-issuer transactions 
typically have the same place of business, and we generally do not need 
more than one address to contact the responsible personnel for 
enforcement purposes. In this regard and upon further consideration 
after reviewing the public comment letters, we have decided that the 
revised form will differ in one respect--it will permit, but not 
require, such information for issuers other than the primary issuer in 
a multiple-issuer offering. In so revising the form, we believe we 
address the concerns expressed by two commenters. One commenter asked 
that we require such information for all the issuers in multiple-issuer 
offerings to accommodate states that currently require a separate Form 
D from every issuer in a multi-issuer offering, or alternatively, that 
we require a separate Form D from each of the issuers.\54\ The other 
commenter asked that we permit multiple issuers to provide separate 
addresses to avoid the implication that issuers are affiliated when 
they are not.\55\ We believe these concerns are adequately addressed by 
permitting all issuers to provide the information

[[Page 10597]]

because that enables issuers that are filing with states that otherwise 
would require separate Forms D to include the information if they wish 
to avoid filing the separate forms, if permitted by state law.
---------------------------------------------------------------------------

    \54\ See letter from Pennsylvania.
    \55\ See letter from ABA.
---------------------------------------------------------------------------

    One commenter asked that Form D require the name of a contact 
person for the primary issuer and any other issuers in a multiple-
issuer offering.\56\ The commenter stated that contact might be 
necessary in connection with the filing itself or in regard to 
litigation or enforcement or for other purposes. We believe, however, 
that address and telephone number information would be sufficient to 
make an initial contact and that it should be possible to proceed from 
that point to locate the most appropriate person based on the nature of 
the contact.
---------------------------------------------------------------------------

    \56\ See letter from NASAA.
---------------------------------------------------------------------------

    Item 3, similar to current Form D, requires information about 
related persons (executive officers, directors, and promoters).\57\ As 
proposed, however, we are deleting the current requirement that issuers 
identify as ``related persons'' owners of 10 percent or more of a class 
of their equity securities.\58\ In so proposing, we reasoned that
---------------------------------------------------------------------------

    \57\ The instructions to Item 3 clarify that disclosure will be 
required of each person who has functioned as a promoter of the 
issuer within the past five years of the later of the first sale of 
securities or the date upon which the Form D filing was required to 
be made.
    \58\ We also are revising Item 3 to enable an issuer to clarify 
its response. This change is discussed more fully in Part II.C 
below.
---------------------------------------------------------------------------

     Investors should continue to have access to this 
information, if it is material, in the private placement memorandum 
customarily supplied to them or in other information made available 
through the issuer; \59\
---------------------------------------------------------------------------

    \59\ Under some circumstances, an issuer must provide, rather 
than merely make available, beneficial holder information. For 
example, an issuer that offers securities to non-accredited 
investors without registration under the Securities Act in reliance 
on an exemption provided by Rule 505 [17 CFR 230.505] or 506 [17 CFR 
230.506] must provide beneficial holder information under the 
circumstances specified by Rule 502(b) [17 CFR 230.502(b)].
---------------------------------------------------------------------------

     We believe we can collect sufficient information to 
satisfy the regulatory objectives of Form D by requiring only the 
identification of executive officers, directors, and promoters; and
     Issuers that are not reporting companies have raised 
privacy concerns with respect to the requirement to identify 10 percent 
equity owners who are not executive officers, directors, or promoters 
because they do not already have to disclose this information, and the 
widespread availability of the information on our Web site may raise 
additional privacy concerns for these companies as they seek to raise 
capital through a private offering.\60\
---------------------------------------------------------------------------

    \60\ As we stated in the proposing release, from time to time 
issuers have asked us to grant confidential treatment to this 
information under Securities Act Rule 406 [17 CFR 230.406], but we 
have denied such requests consistently because the information 
currently is required by Form D. We estimated in the proposing 
release that about 95 percent of the companies filing Form D notices 
in 2006 were private companies, which frequently are not required to 
make public the names of their equity owners in accordance with the 
laws of the state or other jurisdiction of their organization.
---------------------------------------------------------------------------

    Two commenters explicitly supported the proposal to delete the 
requirement to report publicly the names and addresses of 10 percent or 
greater equity holders.\61\ Both commenters cited privacy concerns. One 
of the commenters also stated that individual investors would have 
access to the information to the extent relevant and omitting the 
information would save time and eliminate filing burdens.\62\
---------------------------------------------------------------------------

    \61\ See letters from ABA and MFA.
    \62\ See letter from ABA.
---------------------------------------------------------------------------

    Four commenters objected to the proposal to delete the requirement 
to disclose 10 percent or greater holders, citing the usefulness of the 
information and, in some cases, questioning the validity of privacy 
concerns.\63\ These commenters asserted, in essence, that the 
information is useful to:
---------------------------------------------------------------------------

    \63\ See letters from Chris Evans (claiming to represent the 
views of the vast majority of news organizations), Massachusetts, 
NASAA and Pennsylvania.
---------------------------------------------------------------------------

     State regulators because, for example, it enables them to 
determine whether the specified persons are disqualified from 
conducting an offering or have an enforcement history that warrants 
additional information and disclosure; \64\
---------------------------------------------------------------------------

    \64\ See letters citing one or more of these examples from 
Massachusetts, NASAA and Pennsylvania.
---------------------------------------------------------------------------

     The general public because it reveals the investment 
activity of public sector entities; \65\ and
---------------------------------------------------------------------------

    \65\ See letter from Chris Evans.
---------------------------------------------------------------------------

     Investors because this degree of ownership control is 
material and it cannot be assumed this information will be provided 
even if material, especially where disclosure or fraud may be an 
issue.\66\
---------------------------------------------------------------------------

    \66\ See letters from Massachusetts and NASAA.
---------------------------------------------------------------------------

    We have considered the differing views on whether to retain the 
requirement to report publicly the names and addresses of 10 percent or 
greater equity holders. We still believe it is appropriate to delete 
the requirement for the reasons discussed above and in the proposing 
release. In this regard, we note that Item 3 will continue the current 
Form D requirement to report executive officers and directors based on 
the functions people perform rather than their titles. Issuers are 
required to report the names and addresses of promoters whether they 
act directly or indirectly.\67\ We have modified the instructions to 
Item 3 slightly from the language proposed to clarify these 
requirements. As a result, the requirements should result in public 
reporting of all of a company's principal policymakers.
---------------------------------------------------------------------------

    \67\ The words ``directly or indirectly'' are used in the 
applicable definition of the term ``promoter'' in Rule 405.
---------------------------------------------------------------------------

    As proposed, we are deleting the requirement that issuers provide 
the name of the offering in Form D if the offering has a name. In so 
proposing, we stated that naming offerings reported on Form D is not as 
common today as it was before the 1986 tax reforms,\68\ when the 
current Form D requirement was adopted. We understand that some issuers 
have found this requirement to be unclear. For these reasons, we are 
deleting the requirement.
---------------------------------------------------------------------------

    \68\ Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085 
(Oct. 22, 1986).
---------------------------------------------------------------------------

2. Additional Information About Issuer
    Item 4 of the new Form D requires issuers to identify their 
industry group from a specified list. The requirement to provide 
industry group information replaces the current requirement in Form D 
to provide a description of the issuer's business.\69\ We believe 
simply selecting an industry group classification from a pre-
established list is less burdensome for issuers and more useful for the 
regulatory purposes underlying the Form D filing requirement. The 
industry group classifications will provide us better, and more easily 
retrievable, information about industries and offerings where we may 
have identified policy issues.\70\ As proposed, if a company selects 
the ``Pooled Investment Fund'' option, pop-up or other data fields will 
require the issuer also to select from among lower level options 
designating a specific type

[[Page 10598]]

of pooled investment fund and to select between ``yes'' and ``no'' as 
to whether the issuer is registered as an investment company under the 
Investment Company Act.
---------------------------------------------------------------------------

    \69\ The industry group list in the new form differs from the 
one in the proposing release primarily in two ways. First, the new 
form's list provides for additional choices under the heading 
``Energy'' in order to reduce the number of issuers that would need 
to choose the less helpful alternative of ``Other Energy.'' Second, 
the new form's list omits the specific choices that had been under 
the heading ``Business Services'' because we believe greater 
specificity is not necessary for issuers in that industry group.
    \70\ The instruction to Item 4 provides that an issuer or 
issuers that can be categorized in more than one industry group 
should be categorized based on the industry group that most 
accurately reflects the use of the bulk of the offering proceeds. 
The instruction also provides that, for purposes of responding to 
Item 4, the issuer should ``use the ordinary dictionary and commonly 
understood meanings of the terms identifying the industry groups.''
---------------------------------------------------------------------------

    We proposed that Item 5 would require all issuers, regardless of 
industry group, to either include revenue range information in the Form 
D filing or choose the ``Decline to Disclose'' option, which might be 
used if a private company considered its revenue range to be 
confidential information.\71\ We further proposed that, if the business 
were not intended to produce revenue, such as a fund that seeks asset 
appreciation, it could select the ``Not Applicable'' option. We 
continue to believe that this information will help us to determine the 
types and sizes of most issuers that rely on the Regulation D and 
Section 4(6) exemptions. For instance, as noted in the proposing 
release, this information will increase significantly the effectiveness 
of the data collected as a tool for assessing the use of the Regulation 
D exemptions for small businesses and other different sizes of issuers.
---------------------------------------------------------------------------

    \71\ The revenue range will be for the most recently completed 
fiscal year. Where an issuer has been in existence for less than a 
year, it will identify its revenues to date.
---------------------------------------------------------------------------

    We are adopting Item 5, as proposed, except as it will apply to 
issuers that classify themselves in Item 4 in the industry group 
``hedge funds'' or as pooled investment funds other than venture 
capital and private equity funds. In order to obtain information on the 
size of these issuers, Item 5 will request them to provide aggregate 
net asset value range information.\72\ Consistent with the revenue 
range requirement applicable to other issuers, however, these issuers 
will be given the option to ``Decline to Disclose'' that information or 
to specify that such information is ``Not Applicable.'' This addition 
responds to a comment letter stating that ``assets under management'' 
is a more meaningful measure of the size of such issuers than 
revenues.\73\ We believe we can obtain adequate size information about 
venture capital and private equity funds from the information on the 
total offering amount supplied in response to Item 13, because these 
types of funds typically do not engage in continuous offerings of 
indefinite amount, unlike hedge funds and some other types of pooled 
investment funds.
---------------------------------------------------------------------------

    \72\ The aggregate net asset value will be requested as of the 
most recent practicable date.
    \73\ See letter from MFA. Similarly, in commenting on Rel. No. 
33-8766 (Dec. 27, 2006) [72 FR 399], another commenter stated that 
it believed it would be useful to the Commission and investors if 
Form D would require information on pooled investment funds' assets 
under management. See letter from CPIC.
---------------------------------------------------------------------------

    One commenter suggested that we eliminate the ``Decline to 
Disclose'' option from the proposed revenue range requirement \74\ and 
another suggested that we eliminate the revenue range requirement 
entirely.\75\ The commenter that suggested we eliminate the ``Decline 
to Disclose'' option reasoned that elimination would be necessary to 
make the requirement effective as an information collection tool. The 
commenter that suggested that we eliminate the requirement entirely 
reasoned that many companies will opt out, reducing the integrity of 
the information collected and possibly causing people to draw negative 
inferences about the company. The commenter went on to state that 
revenue information is not necessary for a notice filing, and requiring 
it is inconsistent with the prohibition on general solicitation and 
general advertising that applies to many offerings required to be 
reported on Form D.\76\ We recognize that adopting the ``Decline to 
Disclose'' option will reduce the amount of information that we 
receive. We also recognize, however, that some companies may regard 
this type of information as confidential. Weighing these countervailing 
considerations in light of the importance of the information, we 
believe that, on balance, it is best to provide filing companies the 
option to decline to disclose their revenue range. Commenters did not 
specify any negative consequences that a company may suffer if it 
chooses to decline to disclose its revenue range. We believe the 
information will be useful for the reasons described above. Finally, we 
believe that revenue information in range form would not likely itself, 
or in combination with the other information the new form requires, 
raise general solicitation or general advertising issues.
---------------------------------------------------------------------------

    \74\ See letter from NASAA.
    \75\ See letter from ABA.
    \76\ See id. The ABA also stated that the form should not 
require asset value information for essentially the same reasons. A 
third commenter asked whether most private companies would decline 
to disclose, ``thus calling into question the purpose of [the 
item].'' The commenter did not suggest deleting the option to 
decline or deleting the entire requirement. See letter from 
Connecticut.
---------------------------------------------------------------------------

3. Identification of Claimed Exemptions and Exclusions
    Item 6 requires the issuer to identify the exemption or exemptions 
being claimed for the offering, from among Rule 504's \77\ paragraphs 
and subparagraphs, Rule 505, Rule 506, and Section 4(6), as applicable. 
This requirement, in general, is carried over from the current Form D 
requirement with added specificity, requiring the issuer to identify 
the specific paragraph or subparagraph of any Rule 504 exemption being 
claimed as well as any specific paragraph of Investment Company Act 
Section 3(c) \78\ that the issuer claims for an exclusion from the 
definition of ``investment company'' under the Investment Company 
Act.\79\ We are requiring this increased level of specificity and 
additional type of information in order to assist our policymaking and 
rulemaking efforts in various areas. Identification of a claimed 
exemption or exclusion often is key to analysis of the appropriateness 
of the claim. State securities regulators also use this information to 
determine the extent of their jurisdiction over the offering under 
NSMIA. Unlike the requirement in current Form D, however, Item 6 does 
not enable the issuer to check a box to indicate a claim to the Uniform 
Limited Offering Exemption (ULOE) from state securities law 
requirements. We believe that the ULOE box causes confusion and burdens 
for companies completing Form Ds without resulting in a significant 
amount of useful information. Most, if not all, companies claiming a 
ULOE exemption also will check the Rule 505 box, because Rule 505 is 
the Commission's companion exemption to the ULOE exemption.\80\ 
Similarly, revised Form D omits all other references to ULOE and the 
provisions that, in general, require specified information on a state-
by-state basis in an appendix to the form and require specified 
representations and undertakings. We believe that this information is 
burdensome to provide without sufficient benefits in terms of 
furthering the purposes of Form D.\81\
---------------------------------------------------------------------------

    \77\ 17 CFR 230.504.
    \78\ 15 U.S.C. 80a-3(c).
    \79\ The issuer will be able to select all the exclusions on 
which it relies. Regulation D provides an exemption from the 
Securities Act and not an exclusion from the definition of the term 
``investment company'' under the Investment Company Act. Some 
companies that use a Regulation D exemption, however, also are 
excluded from the definition of investment company under the 
Investment Company Act.
    \80\ See Release No. 33-7644 (Feb. 25, 1999) [64 FR 11090].
    \81\ One commenter expressed general agreement with our views 
regarding ULOE. See letter from ABA.
---------------------------------------------------------------------------

    One commenter supported our proposal to delete the appendix portion 
of current Form D, asserting that it is burdensome and without 
sufficient benefits, but two other commenters objected.\82\ Another 
commenter, without

[[Page 10599]]

expressly addressing the appendix, suggested that the form require 
related information.\83\ One commenter objected to deleting any part of 
the appendix, claiming that the information required provides macro-
level ownership information valuable to the Commission and other 
regulators in analyzing fund flows and capital sources in an otherwise 
opaque area.\84\ One commenter stated that it did not advocate 
retaining the appendix in its current form but that the appendix 
requires information such as the amount of securities sold by state and 
the number and type of investors (accredited/non-accredited) that is 
useful to state regulators for enforcement purposes.\85\ Finally, one 
commenter offered the related suggestion that the form should require 
issuers to specify the states in which they propose to offer or sell 
securities because that would provide useful information to state 
regulators in their efforts to uncover notice filing violations and 
other problems.\86\
---------------------------------------------------------------------------

    \82\ See letters from ABA, Chris Evans and Connecticut, 
respectively.
    \83\ See letter from Massachusetts.
    \84\ See letters from Chris Evans.
    \85\ See letter from Connecticut.
    \86\ See letter from Massachusetts.
---------------------------------------------------------------------------

    We believe the burden that would be imposed by a requirement to 
provide all information called for by the appendix or similar 
information is not justified by the value of the information in 
furthering the purposes of Form D. In this regard, under appropriate 
circumstances, state regulators still would be able to require this 
type of information.\87\ At present, the Commission does not require 
filing of information called for by the appendix, and most Form D 
filers do not file the appendix with us. They file appendix information 
only with those states that require it. We assume that states that 
require filing of appendix information that they are entitled to 
require may continue to do so. We also ass