Electronic Signatures in Regulation S-T Rule 302, 78224-78230 [2020-26166]
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Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Rules and Regulations
SECURITIES AND EXCHANGE
COMMISSION
Commission reference
17 CFR Parts 230, 232, 240, 249, and
270
[Release Nos. 33–10889; 34–90441; 39–
2534; IC–34096]
Electronic Signatures in Regulation S–
T Rule 302
Securities and Exchange
Commission.
ACTION: Final rule.
AGENCY:
We are adopting amendments
to Regulation S–T and the Electronic
Data Gathering, Analysis, and Retrieval
system (‘‘EDGAR’’) Filer Manual
(‘‘EDGAR Filer Manual’’ or ‘‘Filer
Manual’’) to permit the use of electronic
signatures in signature authentication
documents required under Regulation
S–T in connection with electronic
filings on EDGAR that are required to be
signed. We are also adopting
corresponding revisions to several rules
and forms under the Securities Act of
1933 (‘‘Securities Act’’), Securities
Exchange Act of 1934 (‘‘Exchange Act’’),
and Investment Company Act of 1940
(‘‘Investment Company Act’’) to permit
the use of electronic signatures in
signature authentication documents in
connection with certain other filings.
DATES: Effective December 4, 2020. The
incorporation by reference of the
EDGAR Filer Manual is approved by the
Director of the Federal Register as of
December 4, 2020.
FOR FURTHER INFORMATION CONTACT:
Charles Kwon, Office of Rulemaking, at
(202) 551–3430, Division of Corporation
Finance; Terri Jordan, Office of
Rulemaking, at (202) 551–6792, Division
of Investment Management; or Devin
Ryan, Office of Chief Counsel, at (202)
551–5550, Division of Trading and
Markets; U.S. Securities and Exchange
Commission, 100 F Street NE,
Washington, DC 20549.
SUPPLEMENTARY INFORMATION: We are
adopting amendments to the following
rules and forms to permit the use of
electronic signatures in signature
authentication documents in connection
with certain specified filings, including
electronic filings on EDGAR:
SUMMARY:
Commission reference
Securities Act 1:
Securities Act Rule 402
Securities Act Rule 471
Regulation S–T .....................
Rule 301 .........................
Rule 302 .........................
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CFR citation
(17 CFR)
§ 230.402.
§ 230.471.
§§ 232.10
through
232.903.
§ 232.301.
§ 232.302.
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Exchange Act 2:
Exchange Act Rule 12b–
11.
Exchange Act Rule 14d–
1.
Exchange Act Rule
15Fb1–1.
Exchange Act Rule 16a–
3.
Form CB .........................
Investment Company Act:
Investment Company Act
Rule 8b–11.
CFR citation
(17 CFR)
§ 240.12b–11.
§ 240.14d–1.
§ 240.15Fb1–
1.
§ 240.16a–3.
§ 249.480.
§ 270.8b–11.
We are also adopting an updated
EDGAR Filer Manual, Volume II:
‘‘EDGAR Filing’’ (Version 55)
(November 2020) that sets forth certain
requirements that the electronic signing
process must meet when electronic
signatures are used. The updated Filer
Manual is incorporated by reference
into the Code of Federal Regulations.3
I. Discussion
Regulation S–T, in conjunction with
the EDGAR Filer Manual and other
applicable rules, regulations, and forms,
governs the electronic submission of
documents filed with or otherwise
submitted to the Securities and
Exchange Commission (the
‘‘Commission’’) through EDGAR.4 Title
17, section 232.302(b) (Rule 302(b))
currently requires that each signatory to
an electronic filing manually sign a
signature page or other document
(‘‘authentication document’’) before or
at the time of the electronic filing to
authenticate, acknowledge, or otherwise
adopt the signature that appears in
typed form within the electronic filing.5
An electronic filer must retain the
authentication document with respect to
each signatory to the electronic filing for
a period of five years and must furnish
1 15
U.S.C. 77a et seq.
U.S.C. 78a et seq.
3 17 CFR 232.301.
4 Rule 10(a) of Regulation S–T [17 CFR 232.10a].
The EDGAR Filer Manual contains the technical
specifications needed for filers to make submissions
through the EDGAR system. The Commission
originally adopted the EDGAR Filer Manual on
April 1, 1993, with an effective date of April 26,
1993. Adoption of EDGAR Filer Manual, Release
No. 33–6986 (Apr. 1, 1993) [58 FR 18638 (Apr. 9,
1993)]. The amendments adopted in this
rulemaking do not apply to the notarized signature
requests for EDGAR access pursuant to the
requirements of Rule 10(b) of Regulation S–T.
Moreover, the authentication document discussed
herein is distinct from the authentication document
referenced in Volume I of the Filer Manual in
connection with Rule 10(b) notarized
authentication documents.
5 Pursuant to Rule 302(a) of Regulation S–T,
signatures required in any electronic submission
must be in typed form.
2 15
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a copy of it to the Commission or its
staff upon request.6
The Commission has stated that the
authentication document requirement in
Rule 302(b) ‘‘was established to provide
a satisfactory means by which
signatories could authenticate and adopt
their typed signatures appearing on filed
documents for evidentiary purposes.’’ 7
In March 2020, the Commission staff
provided its views on, among other
things, complying with this requirement
when considering the public health and
safety concerns related to COVID–19.8
In April 2020, the Commission received
a rulemaking petition requesting that we
permit the use of electronic signatures
when executing authentication
documents under Rule 302(b).9 The
rulemaking petition states, among other
things, that ‘‘the current COVID–19
situation has . . . significantly
increased the difficulties associated
with obtaining manual ‘wet’ signatures’’
and that ‘‘[i]mprovements in electronic
signature software technology make it
possible to confirm (with at least equal
confidence to the collection of manual
signatures) who has signed a document
and when it was signed.’’ In June 2020,
nearly 100 public companies jointly
6 See Rule 302(b) of Regulation S–T. As discussed
below, certain rules and forms under the Securities
Act and the Exchange Act also require
authentication documents in connection with
certain filings when these filings contain typed,
rather than manual, signatures. References to
‘‘authentication documents’’ in this release refers to
such documents as required by Rule 302(b) or these
other rules and forms, as the context requires.
7 Application of the Electronic Signatures in
Global and National Commerce Act to Record
Retention Requirements Pertaining to Issuers under
the Securities Act of 1933, Securities Exchange Act
of 1934 and Regulation S–T, Release No. 33–7985
(June 14, 2001) [66 FR 33175 (June 21, 2001)] (citing
Rulemaking for EDGAR System, Release No. 33–
6977, Section III.F.2 (Feb. 23, 1993) [58 FR 14628
(Mar. 18, 1993)]). In the 2001 release, the
Commission issued guidance stating that the
requirements to retain authentication documents
are not subject to the Electronic Signatures in
Global and National Commerce Act (‘‘E–SIGN
Act’’), because ‘‘authentication documents are
records generated principally for governmental
purposes rather than in connection with a business,
consumer or commercial transaction.’’
8 See Staff Statement Regarding Rule 302(b) of
Regulation S–T in Light of COVID–19 Concerns
(Mar. 24, 2020), available at https://www.sec.gov/
corpfin/announcement/rule-302b-regulation-s-tcovid-19-update.
9 Specifically, the rulemaking petition requested
that the Commission amend Rule 11 and Rule 302
of Regulation S–T, as well as any other necessary
rules and forms, to permit the use of electronic
signatures in addition to manual signatures when
executing authentication documents under Rule
302 and to provide that authentication documents
may be retained physically or electronically for the
requisite five-year period. See letter from Wilson
Sonsini Goodrich & Rosati, Fenwick & West LLP,
and Cooley LLP, available at https://www.sec.gov/
rules/petitions/2020/petn4-760.pdf.
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submitted a letter in support of the
rulemaking petition.10
After considering the widespread use
of electronic signatures and
technological developments in the
authentication and security of electronic
signatures,11 and the issues raised in the
rulemaking petition, we have
reevaluated the requirement that
signatories may only manually sign
authentication documents under Rule
302(b). As a result, we are amending
Rule 302(b) to permit a signatory to an
electronic filing who follows certain
procedures discussed herein to sign an
authentication document through an
electronic signature that meets certain
requirements specified in the EDGAR
Filer Manual.12 This amendment will
provide additional flexibility in
complying with the authentication
document requirement by providing
signatories with the option of signing an
authentication document either
manually or electronically, while
requiring the signing process for an
electronic signature to meet certain
conditions that are consistent with the
evidentiary purposes of the
authentication document. The existing
requirements of Rule 302(b) will be
otherwise unchanged, including the
requirements that an electronic filer
retain the authentication document for a
period of five years and furnish a copy
of it upon request to the Commission or
its staff.13
We are setting forth the requirements
for the electronic signature signing
process in the EDGAR Filer Manual,
which will specify that, when a
signatory signs an authentication
document using an electronic signature,
the signing process for the electronic
signature must, at a minimum:
• Require the signatory to present a
physical, logical, or digital credential
that authenticates the signatory’s
individual identity;
• Reasonably provide for nonrepudiation of the signature;
• Provide that the signature be
attached, affixed, or otherwise logically
associated with the signature page or
document being signed; and
10 See comment letter from Richard Blake, et al.,
available at https://www.sec.gov/comments/4-760/
4760-7278993-217809.pdf. We have not received
any letters that oppose the rulemaking petition.
11 See discussion in Section IV. Economic
Analysis infra.
12 We are also adopting amendments to Rule
302(a) of Regulation S–T to update the definition
of ‘‘signature,’’ by revising ‘‘electronic entry’’ to
‘‘computer representation,’’ ‘‘letters’’ to ‘‘symbols,’’
and by removing references to obsolete terminology
(‘‘magnetic impulse’’). This amendment does not
change the substance or intended meaning of the
definition.
13 See new Rules 302(b)(1) and (b)(3).
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• Include a timestamp to record the
date and time of the signature.14
These requirements are intended to be
technologically neutral and allow for
different types and forms of electronic
signatures, provided that the signing
process satisfies a number of conditions
that relate to the validity and
enforceability of an electronic signature.
The signing process must incorporate a
security procedure that requires the
authentication of a signatory’s
individual identity through a physical,
logical, or digital credential, and the
signing process must reasonably provide
for the non-repudiation of the electronic
signature. The signing process
requirements also provide that the
signature be logically associated with
the signature page or document being
signed, thereby providing the signatory
with notice of the nature and substance
of the document and an opportunity to
review it before signing, and that the
electronic signature be linked to the
signature page or document in a manner
that allows for later confirmation that
the signatory signed the signature page
or document. Finally, given that a
signatory must execute an
authentication document pursuant to
Rule 302(b) before or at the time an
electronic filing is made, the signing
process must include a timestamp that
records the date and time of the
electronic signature.
We have included a requirement in
new Rule 302(b)(2) that, before a
signatory initially uses an electronic
signature to sign an authentication
document, the signatory must manually
sign a document attesting that the
signatory agrees that the use of an
electronic signature in any
authentication document constitutes the
legal equivalent of such individual’s
manual signature for purposes of
authenticating the signature to any filing
for which it is provided (‘‘initial
electronic signature authentication
14 For purposes of the process requirements
underlying the electronic signature of
authentication documents, we are defining the
terms ‘‘electronic signature,’’ ‘‘credential,’’ and
‘‘non-repudiation’’ in the EDGAR Filer Manual. The
term ‘‘electronic signature’’ is defined as an
electronic sound, symbol, or process, attached to or
logically associated with a record and executed or
adopted by a person with the intent to sign the
record. While this definition is consistent with the
widely used definition of the term ‘‘electronic
signature’’ in the E–SIGN Act, 15 U.S.C. 7006, we
continue to believe that the E–SIGN Act does not
apply to the Commission’s requirements related to
authentication documents. See supra note 7. The
term ‘‘credential’’ is defined as an object or data
structure exclusively possessed and controlled by
an individual to assert identity and provide for
authentication. The term ‘‘non-repudiation’’ is
defined as assurance that an individual cannot
falsely deny having performed a particular action.
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document’’).15 An electronic filer must
retain this manually signed document
for as long as the signatory may use an
electronic signature to sign an
authentication document and for a
minimum period of seven years after the
date of the most recent electronically
signed authentication document.
Pursuant to Rule 302(b)(3), the
electronic filer shall furnish a copy of it
upon request to the Commission or its
staff.16
In addition, we are amending certain
rules and forms under the Securities
Act, Exchange Act, and Investment
Company Act to allow the use of
electronic signatures in authentication
documents in connection with certain
other filings when these filings contain
typed, rather than manual, signatures.17
These amendments extend comparable
treatment to these filers in allowing
electronically signed authentication
documents under generally the same
conditions applicable to electronic filers
under Rule 302(b).18
Along with the adoption of an
updated EDGAR Filer Manual, we are
amending Rule 301 of Regulation S–T to
provide for the incorporation by
reference into the Code of Federal
Regulations of the current revisions.
This incorporation by reference was
approved by the Director of the Federal
Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. The updated
EDGAR Filer Manual is available at
https://www.sec.gov/info/edgar/
edmanuals.htm. The EDGAR Filer
Manual also is available for website
viewing and printing in the
15 See new Rule 302(b)(2). Additionally, Section
6(a) of the Securities Act provides that signatures
to any Securities Act registration statement shall be
presumed to have been written by authority of the
person(s) who signed it, and the burden of proof,
in the event such authority shall be denied, shall
be upon the denying party. See 15 U.S.C. 77f(a).
16 A manually signed document under Rule
302(b), including an initial electronic signature
authentication document or a manually signed
authentication document, may be stored via
electronic means. See new Rule 302(b)(3).
17 Securities Act Rules 402(e) and 471(b);
Exchange Act Rules 12b–11(d), 14d–1(h), 16a–3(i)
and, 15Fb1–1; Form CB; and Investment Company
Act Rule 8b–11. Rules 402(e), 471(b), 12b–11(d),
14d–1(h); 16a–3(i); and 8b–11 allow manual, typed,
duplicated, or faxed signatures on paper filings,
with a manual signature retention requirement for
typed, duplicated, or faxed signatures. See Phase
One Recommendation of Task Force on Disclosure
Simplification, Release No. 33–7300 (May 31, 1996)
[61 FR 30397 (June 14, 1996)] at 30400 (stating that
the Commission was adopting these requirements
‘‘to provid[e] comparable treatment to both paper
and electronic filers’’ with respect to the signature
and authentication requirements). The signature
requirements in Rules 12b–11(d) and 14d–1(h)
apply solely with respect to the scope of regulation
defined in Rules 12b–11 and 14d–1(a), respectively.
18 The amendments to these rules include a cross
reference to the requirements set forth in Rule
302(b) of Regulation S–T.
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Commission’s Public Reference Room,
100 F Street NE, Washington, DC 20549,
on official business days between the
hours of 10:00 a.m. and 3:00 p.m.
II. Procedural and Other Matters
The Administrative Procedure Act
(‘‘APA’’) generally requires an agency to
publish notice of a rulemaking in the
Federal Register and provide an
opportunity for public comment.19 This
requirement does not apply, however, to
rules of agency organization, procedure,
or practice,20 or if the agency ‘‘for good
cause finds . . . that notice and public
procedure thereon are impracticable,
unnecessary, or contrary to the public
interest.’’ 21 We find that these
amendments relate to agency
procedures or practice and do not
substantially alter the rights and
obligations of non-agency parties. We
also find that notice and comment are
unnecessary because the amendments
merely provide an optional alternative
method for signatories to sign
authentication documents pursuant to
Rule 302(b) and corresponding
provisions in our rules and forms. It
follows that the amendments do not
require analysis under the Regulatory
Flexibility Act or a report to Congress
under the Small Business Regulatory
Fairness Act.22
The APA generally requires that an
agency publish an adopted rule in the
Federal Register at least 30 days before
it becomes effective.23 This
requirement, however, does not apply if
the agency finds good cause for making
the rule effective sooner.24 For the same
reasons we are forgoing notice and
comment, the Commission finds good
cause to make these amendments
effective upon publication in the
Federal Register. We further believe
signatories and electronic filers should
have the option of using electronic
signatures in authentication documents
as soon as practicable and find there is
good cause for these amendments to
take effect upon publication in the
Federal Register. We also believe the
amendments relieve a restriction in that
execution of authentication documents
19 See
5 U.S.C. 553(b) and (c).
U.S.C. 553(b)(3)(A).
21 5 U.S.C. 553(b)(3)(B).
22 See 5 U.S.C. 601(2) (for purposes of a
Regulatory Flexibility Act analysis, the term ‘‘rule’’
means any rule for which the agency publishes a
general notice of proposed rulemaking) and 5 U.S.C.
804(3)(C) (for purposes of Congressional review of
agency rulemaking, the term ‘‘rule’’ does not
include any rule of agency organization, procedure,
or practice that does not substantially affect the
rights or obligations of non-agency parties).
23 5 U.S.C. 553(d)(3).
24 Id.
20 5
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no longer will be limited to manual or
‘‘wet’’ signatures.25
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.
III. Paperwork Reduction Act
Certain provisions of our rules and
forms contain ‘‘collection of
information’’ requirements within the
meaning of the Paperwork Reduction
Act of 1995 (‘‘PRA’’).26 The hours and
costs associated with preparing and
filing forms and retaining records—
including those associated with
signature authentication requirements—
constitute reporting and cost burdens
imposed by the collection of
information requirements. 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
Office of Management and Budget
control number. Compliance with the
information collections is mandatory.
The paperwork burden associated with
the Commission’s signature
authentication requirements is imposed
through the forms that are subject to
those requirements and is reflected in
the analysis of those forms. Responses
to these information collections are not
kept confidential and there is no
mandatory retention period for the
information disclosed, although filers
are required to retain an authentication
document for a period of five years.
As noted above, the amendments do
not substantively alter the
authentication document requirements,
but rather provide an optional
alternative method for signatories to
sign authentication documents
electronically. Although the
requirements underlying the use of an
electronic signature differ somewhat
from those for use of a manual signature
in connection with an authentication
document (e.g., an initial electronic
signature authentication document will
be required to be retained for seven
years), on balance, we expect the
amendments to incrementally ease the
burden associated with executing such
a document. It is difficult to predict how
many filers will take advantage of the
alternative signing method; however, we
expect a filer would utilize this optional
method only if it determines that the
25 5
U.S.C. 553(d)(1).
U.S.C. 3501 et seq.
26 44
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burdens of this alternative method are
less than existing methods. Given the
incremental nature of the amendments
and in order to avoid overestimating any
potential reduction in paperwork
burdens, we are not revising any burden
and cost estimates in connection with
these amendments.
IV. Economic Analysis
The final amendments provide
signatories with additional flexibility in
connection with documents filed with
the Commission, including electronic
filings made on EDGAR, by permitting
the use of electronic signatures in
authentication documents. Due to
technological advances that have
enabled electronic signatures to become
as credible as their manual, ‘‘wet’’
counterparts and the potential for
efficiency gains, we believe providing
such flexibility is justified. Below, we
consider the benefits and costs, as well
as the effects on efficiency, competition,
and capital formation that we anticipate
will result from the final amendments.27
We evaluate the economic effects of the
amendments relative to a baseline
which includes the current regulatory
requirements applicable to filers and
signatories, as discussed in Section I
above, as well as current practices.
These requirements apply to both
electronic and paper filers. The vast
majority of Commission filings must be
made electronically.28 Based on
information from 2019, the Commission
received approximately 644,000
electronic filings from approximately
131,000 filers. By contrast staff analysis
of filings in EDGAR identified 4,881
scanned paper filings from 2,603 filers
in 2019.
Developments in cryptography and
computing have enabled the
development of digital signatures that
are at least as credible as manual
signatures. Digital signatures available
today can: (i) Assure users that signed
documents have not been altered; (ii)
identify the signatory; and (iii) make it
27 Section 3(f) of the Exchange Act, Section 2(b)
of the Securities Act, and Section 2(c) of the
Investment Company Act state that when engaging
in rulemaking that requires us to consider or
determine whether an action is necessary or
appropriate in (or, with respect to the Investment
Company Act, consistent with) the public interest,
we must consider, in addition to the protection of
investors, whether the action will promote
efficiency, competition, and capital formation.
Additionally, Section 23(a)(2) of the Exchange Act
requires us, when making rules or regulations under
the Exchange Act, to consider, among other matters,
the impact that any such rule or regulation would
have on competition and states that the
Commission shall not adopt any such rule or
regulation which would impose a burden on
competition that is not necessary or appropriate in
furtherance of the Exchange Act.
28 17 CFR 230.101.
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impossible for a signatory to deny
signing the document.29 Moreover,
digital signature systems can be
deployed on a broad range of computing
platforms,30 and are widely accessible at
low cost.
Technological developments have
also increased the efficiency of
electronic communication relative to
reliance on the mail. Remote work, as
opposed to work on a business’s
premises, has increased for
management, professional, and related
occupations.31 These changes have been
facilitated by developments in
technology and communications
infrastructure,32 as a greater volume of
business communication now occurs
electronically, rather than through
paper, workers in these occupations
have adapted to electronic
communications. Further, remote work
has increased substantially in recent
months due to the COVID–19 pandemic.
Survey evidence collected during the
pandemic shows that a substantial
proportion of the U.S. labor force now
works from home full time.33 At the
same time, measures related to COVID–
19 have, at the margin, increased the
time associated with printing and
mailing, and in some cases have
increased the risk of delay.34 In
response to lengthier or less certain
printing and mailing times, filers may
incur additional costs by hastening
internal processes to meet external
deadlines.
We expect the amendments to Rule
302(b), and the related amendments to
certain rules and forms under the
Securities Act, the Exchange Act, and
the Investment Company Act will result
in cost savings for those filers whose
29 See William Kuechler & Fritz H. Grupe, Digital
Signatures: A Business View, 19(4) Info. Sys. Mgmt.
19 (2003).
30 Id.
31 See Rachel M. Krantz-Kent, Where did workers
perform their jobs in the early 21st century?, U.S.
Bureau of Lab. Stat.: Monthly Lab. Rev. (July 2019),
available at: https://doi.org/10.21916/mlr.2019.16
(last accessed October 22, 2020).
32 Id.
33 See Erik Brynjolfsson et al., COVID–19 and
remote work: an early look at US data (Nat’l Bureau
of Economic Research, No. w27344, 2020). See also
May Wong, Stanford Research Provides a Snapshot
of a New Working-From-Home Economy (June 29,
2020), available at: https://news.stanford.edu/2020/
06/29/snapshot-new-working-home-economy/ (last
accessed Oct. 13, 2020).
34 For example, The U.S. Postal Service
announced that certain two-day and three-day
service commitments were extended to three days
and four days, respectively, and suspended services
or service guarantees for international shipments.
Private carriers similarly suspended guarantees. See
e.g., USPS® Coronavirus Updates: Expected
Delivery Changes, USPS: FAQ (Apr. 17, 2020)
available at: https://faq.usps.com/s/article/USPSCoronavirus-Updates-Expected-Delivery-Changes
(last accessed Oct. 10, 2020).
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signatories sign an authentication
document by using an electronic
signature. Filers who choose this option
would no longer be required to have a
signatory manually sign a signature page
or other document and convey that
document to the filer for each typed
signature they provide in each filing
that is made. Thus filers and signatories
would not incur related costs of printing
or mailing such a document in
connection with each typed signature
and may experience cost reductions to
the extent that retaining electronic
authentication documents is less costly
than retaining manual authentication
documents. It is difficult to quantify
cost savings per filing as they would
depend on the nature of the filing and
the circumstances of the individual
signatories.35 Further, cost savings per
filer would depend on the number and
nature of filings each filer must make.36
To the extent that the amendments
make filers’ compliance programs more
efficient and less expensive, filers may
be able to reallocate resources otherwise
used for printing or mailing
authentication documents to more
productive uses. Filers may experience
greater cost savings to the extent they
choose to incorporate processes for
electronic signatures in the design of
their overall compliance programs and
such processes are lower cost than their
manual equivalents.
We do not expect the amendments to
Rule 302(b) to impose substantial
additional costs on filers because filers
will be permitted to continue to use
manually signed authentication
documents and existing policies and
procedures if they choose to do so.
Because the electronic signing process
for authentication documents would be
optional, we expect that filers would
avail themselves of this option only to
the extent that the potential benefits
justified any associated costs.
35 Analysis of electronic filers in EDGAR in 2019
demonstrates substantial variation in the number of
signatories per filing. For example, we estimate
99.0% of 6,660 Form 10–K filings included more
than one signatory in 2019, while only 1.6% of
14,884 Form 497 filings included more than one
signatory in 2019. Staff were able to identify
approximately 105,000 electronic filings with
multiple signatories in 2019 by searching for
signature tags in all electronic filings. Although this
method may fail to identify certain filings with
multiple signatories that do not tag individual
signatures, this sample serves to demonstrate the
degree of variability in the number of signatories
across form types.
36 Analysis of electronic filers in EDGAR in 2019
demonstrates a high degree in variation in the
number of filings per filer. Staff estimate that the
median number of filings per filer across the full
sample of filers was two, however, the 25 filers with
the largest number of filings in 2019 each submitted
more than 850 filings.
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78227
Filers that choose to avail themselves
of the ability to use electronic signatures
in authentication documents may need
to update their compliance systems to
ensure that a signatory manually signs
a document attesting that the signatory
agrees that the use of an electronic
signature in any authentication
document constitutes the legal
equivalent of such individual’s manual
signature, before first utilizing an
electronic signature to sign an
authentication document. Further, filers
must retain this initial signature
authentication document for a
minimum period of seven years after the
date of the most recent electronically
signed authentication document, and
must furnish a copy of it upon request
to the Commission or its staff. However,
we generally expect these one-time costs
to be relatively low, and once such a
filer has updated its systems, we do not
believe these substantive requirements
will result in additional on-going costs
because producing and retaining
authentication documents are existing
requirements under Rule 302(b).
Additionally, such filers may incur
costs associated with compliance with
the electronic signing process
requirements prescribed in the EDGAR
Filer Manual. These costs include initial
costs related to identifying and
acquiring software capable of producing
electronic signatures that meet the
updated process requirements and
likely also include annual fees
associated with ongoing use of
electronic signature software.
We do not expect the amendments to
have meaningful effects on competition
or capital formation. As noted above,
the amendments may improve
efficiency, to the extent that they permit
filers to lower the costs associated with
complying with the amended rules. The
amendments could reduce the variable
cost (cost per filing) associated with
meeting Commission filing
requirements. If meeting Commission
filing requirements involves high fixed
costs then this reduction in variable
costs could reduce the average cost of
filing for high-volume filers more than
for low-volume filers. Similarly, a filer’s
printing and mailing costs under the
baseline depend both on the number of
signatures required for its filings and the
need for mailing manual signature pages
to a central location. Thus, filers that
have a larger number of signatories, or
have signatories that are more
geographically dispersed, likely would
experience greater cost savings than
filers with fewer or less-dispersed
signatories.
Finally, we considered alternative
ways of permitting the use of electronic
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signatures in authentication documents.
The Commission could have chosen not
to adopt a requirement to create or
retain an initial electronic signature
authentication document. Such an
alternative would have increased cost
savings for filers, but could have
undermined the evidentiary value of the
authentication document. The
Commission also considered longer or
shorter retention periods for
authentication documents. Longer
(shorter) retention periods could
increase (decrease) the costs associated
with storing authentication documents,
while potentially increasing
(decreasing) the evidentiary benefits of
such documents.
Authority: 15 U.S.C. 77b, 77b note, 77c,
77d, 77f, 77g, 77h, 77j, 77r, 77s, 77z–3, 77sss,
78c, 78d, 78j, 78l, 78m, 78n, 78o, 78o–7 note,
78t, 78w, 78ll(d), 78mm, 80a–8, 80a–24, 80a–
28, 80a–29, 80a–30, and 80a–37, and Pub. L.
112–106, sec. 201(a), sec. 401, 126 Stat. 313
(2012), unless otherwise noted.
V. Statutory Authority
The amendments contained in this
release are being adopted under the
authority in Sections 6, 7, 8, 10, and
19(a) of the Securities Act of 1933,37
Sections 3, 12, 13, 14, 15, 15B, 23, and
35A of the Securities Exchange Act of
1934,38 Section 319 of the Trust
Indenture Act of 1939,39 and Sections 8,
30, 31, and 38 of the Investment
Company Act of 1940.40
*
List of Subjects
17 CFR Part 230
Investment companies, Reporting and
recordkeeping requirements, Securities.
17 CFR Part 232
Incorporation by reference, Reporting
and recordkeeping requirements,
Securities.
17 CFR Part 240
Brokers, Fraud, Reporting and
recordkeeping requirements, Securities.
17 CFR Part 249
Brokers, Reporting and recordkeeping
requirements, Securities.
17 CFR Part 270
Investment companies, Reporting and
recordkeeping requirements, Securities.
Text of the Amendments
In accordance with the foregoing, title
17, chapter II of the Code of Federal
Regulations is amended as follows:
PART 230—GENERAL RULES AND
REGULATIONS, SECURITIES ACT OF
1933
1. The authority citation for part 230
continues to read in part as follows:
■
37 15
U.S.C. 77f, 77g, 77h, 77j, and 77s(a).
U.S.C. 78c, 78l, 78m, 78n, 78o, 78o–4, 78w,
and 78ll.
39 15 U.S.C. 77sss.
40 15 U.S.C. 80a–8, 80a–29, 80a–30, and 80a–37.
38 15
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16:15 Dec 03, 2020
Jkt 253001
*
*
*
*
*
Sections 230.400 to 230.499 issued under
secs. 6, 8, 10, 19, 48 Stat. 78, 79, 81, and 85,
as amended (15 U.S.C. 77f, 77h, 77j, and 77s).
*
*
*
*
*
2. Amend § 230.402 by revising
paragraph (e) to read as follows:
■
Such authentication document shall be
executed before or at the time the filing
is made and shall be retained by the
registrant for a period of five years. The
requirements set forth in § 232.302(b)
must be met with regards to the use of
an electronically signed authentication
document pursuant to this paragraph
(b). Upon request, the registrant shall
furnish to the Commission or its staff a
copy of any or all documents retained
pursuant to this section.
§ 230.402 Number of copies; binding;
signatures.
PART 232 REGULATION S–T—
GENERAL RULES AND REGULATIONS
FOR ELECTRONIC FILINGS
*
■
*
*
*
*
*
*
*
*
(e) Signatures. Where the Act or the
rules thereunder, including paragraphs
(a) and (c) of this section, require a
document filed with or furnished to the
Commission to be signed, such
document shall be manually signed, or
signed using either typed signatures or
duplicated or facsimile versions of
manual signatures. Where typed,
duplicated, or facsimile signatures are
used, each signatory to the filing shall
manually or electronically sign a
signature page or other document
authenticating, acknowledging, or
otherwise adopting his or her signature
that appears in the filing
(‘‘authentication document’’). Such
authentication document shall be
executed before or at the time the filing
is made and shall be retained by the
registrant for a period of five years. The
requirements set forth in § 232.302(b)
must be met with regards to the use of
an electronically signed authentication
document pursuant to this paragraph
(e). Upon request, the registrant shall
furnish to the Commission or its staff a
copy of any or all documents retained
pursuant to this section.
■ 3. Amend § 230.471 by revising
paragraph (b) to read as follows:
§ 230.471
Signatures to amendments.
*
*
*
*
*
(b) Where the Act or the rules
thereunder require a document filed
with or furnished to the Commission to
be signed, such document shall be
manually signed, or signed using either
typed signatures or duplicated or
facsimile versions of manual signatures.
Where typed, duplicated, or facsimile
signatures are used, each signatory to
the filing shall manually or
electronically sign a signature page or
other document authenticating,
acknowledging, or otherwise adopting
his or her signature that appears in the
filing (‘‘authentication document’’).
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4. The authority citation for part 232
continues to read as follows:
Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j,
77s(a), 77z–3, 77sss(a), 78c(b), 78l, 78m, 78n,
78o(d), 78w(a), 78ll, 80a–6(c), 80a–8, 80a–29,
80a–30, 80a–37, 7201 et seq.; and 18 U.S.C.
1350, unless otherwise noted.
Section 232.302 is also issued under secs.
3(a) and 302, Pub. L. No. 107–204, 116 Stat.
745.
■
5. Revise § 232.301 to read as follows:
§ 232.301
EDGAR Filer Manual.
Filers must prepare electronic filings
in the manner prescribed by the EDGAR
Filer Manual, promulgated by the
Commission, which sets forth the
technical formatting requirements for
electronic submissions. The
requirements for becoming an EDGAR
Filer and updating company data are set
forth in the updated EDGAR Filer
Manual, Volume I: ‘‘General
Information,’’ Version 35 (January
2020). The requirements for filing on
EDGAR are set forth in the updated
EDGAR Filer Manual, Volume II:
‘‘EDGAR Filing,’’ Version 55 (November
2020). All of these provisions have been
incorporated by reference into the Code
of Federal Regulations, which action
was approved by the Director of the
Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. You
must comply with these requirements in
order for documents to be timely
received and accepted. The EDGAR
Filer Manual is available at https://
www.sec.gov/info/edgar/
edmanuals.htm. The EDGAR Filer
Manual is also available for website
viewing and printing in the
Commission’s Public Reference Room,
100 F Street NE, Washington, DC 20549,
on official business days between the
hours of 10 a.m. and 3 p.m. You can
also inspect the document at the
National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, email fedreg.legal@
nara.gov, or go to: https://
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www.archives.gov/federal-register/cfr/
ibrlocations.html.
■ 6. Amend § 232.302 by revising
paragraphs (a) and (b) to read as follows:
§ 232.302
Signatures.
(a) Required signatures to, or within,
any electronic submission (including,
without limitation, signatories within
the certifications required by
§§ 240.13a–14, 240.15d–14, and
270.30a–2 of this chapter) must be in
typed form rather than manual format.
Signatures in an HTML document that
are not required may, but are not
required to, be presented in an HTML
graphic or image file within the
electronic filing, in compliance with the
formatting requirements of the EDGAR
Filer Manual. When used in connection
with an electronic filing, the term
‘‘signature’’ means a computer
representation of any symbol or series of
symbols comprising a name executed,
adopted, or authorized as a signature.
Signatures are not required in unofficial
PDF copies submitted in accordance
with § 232.104.
(b)(1) Each signatory to an electronic
filing (including, without limitation,
each signatory to the certifications
required by §§ 240.13a–14, 240.15d–14
and 270.30a–2 of this chapter) shall
manually or electronically sign a
signature page or other document
authenticating, acknowledging, or
otherwise adopting his or her signature
that appears in typed form within the
electronic filing (‘‘authentication
document’’). Such authentication
document shall be executed before or at
the time the electronic filing is made
and shall be retained by the filer for a
period of five years. An electronically
signed authentication document
pursuant to this paragraph (b)(1) must
meet the requirements set forth in the
EDGAR Filer Manual.
(2) Before a signatory may
electronically sign an authentication
document pursuant to paragraph (b)(1)
of this section, such signatory must
manually sign a document attesting that,
when using electronic signatures for
purposes of paragraph (b)(1) of this
section, the signatory agrees that the use
of such electronic signature constitutes
the legal equivalent of such individual’s
manual signature for purposes of
authenticating the signature to any filing
for which it is provided. An electronic
filer must retain this document for as
long as the signatory may use an
electronic signature to satisfy the
requirements of paragraph (b)(1) of this
section and for a minimum period of
seven years after the date of the most
recent electronically signed
authentication document.
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16:15 Dec 03, 2020
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(3) Upon request, an electronic filer
shall furnish to the Commission or its
staff a copy of any or all documents
retained pursuant to this section. A
manually signed document under
paragraph (b)(1) or (2) of this section,
including an initial electronic signature
authentication document or a manually
signed authentication document, may be
retained and stored via electronic
means.
*
*
*
*
*
78229
an electronically signed authentication
document pursuant to this paragraph
(d). Upon request, the filer shall furnish
to the Commission or its staff a copy of
any or all documents retained pursuant
to this section.
■ 9. Amend § 240.14d–1 by revising
paragraph (h) to read as follows:
§ 240.14d–1 Scope of and definitions
applicable to Regulations 14D and 14E.
*
*
*
*
*
(h) Signatures. Where the Act or the
PART 240—GENERAL RULES AND
rules, forms, reports or schedules
REGULATIONS, SECURITIES
thereunder require a document filed
EXCHANGE ACT OF 1934
with or furnished to the Commission to
be signed, such document shall be
■ 7. The authority citation for part 240
manually signed, or signed using either
continues to read, in part, as follows:
typed signatures or duplicated or
Authority: 15 U.S.C. 77c, 77d, 77g, 77j,
facsimile versions of manual signatures.
77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn,
Where typed, duplicated, or facsimile
77sss, 77ttt, 78c, 78c–3, 78c–5, 78d, 78e, 78f,
signatures are used, each signatory to
78g, 78i, 78j, 78j–1, 78k, 78k–1, 78l, 78m,
the filing shall manually or
78n, 78n–1, 78o, 78o–4, 78o–10, 78p, 78q,
electronically sign a signature page or
78q–1, 78s, 78u–5, 78w, 78x, 78dd, 78ll,
78mm, 80a–20, 80a–23, 80a–29, 80a–37, 80b– other document authenticating,
3, 80b–4, 80b–11, and 7201 et seq., and 8302; acknowledging, or otherwise adopting
7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18
his or her signature that appears in the
U.S.C. 1350; Pub. L. 111–203, 939A, 124 Stat. filing (‘‘authentication document’’).
1376 (2010); and Pub. L. 112–106, secs. 503
Such authentication document shall be
and 602, 126 Stat. 326 (2012), unless
executed before or at the time the filing
otherwise noted.
is made and shall be retained by the
*
*
*
*
*
filer for a period of five years. The
Sections 240.12b–1 to 240.12b–36 also
requirements set forth in § 232.302(b)
issued under secs. 3, 12, 13, 15, 48 Stat. 892,
as amended, 894, 895, as amended; 15 U.S.C. must be met with regards to the use of
an electronically signed authentication
78c, 78l, 78m, and 78o.
document pursuant to this paragraph
*
*
*
*
*
(h). Upon request, the filer shall furnish
Section 240.14d–1 is also issued under 15
to the Commission or its staff a copy of
U.S.C. 77g, 77j, 77s(a), 77ttt(a), 80a–37.
any or all documents retained pursuant
*
*
*
*
*
to this section.
■ 8. Amend § 240.12b–11 by revising
■
10. Amend § 240.15Fb1–1 by revising
paragraph (d) to read as follows:
paragraphs (b) and (d) to read as
§ 240.12b–11 Number of copies;
follows:
signatures; binding.
*
*
*
*
*
(d) Signatures. Where the Act or the
rules, forms, reports or schedules
thereunder, including paragraph (b) of
this section, require a document filed
with or furnished to the Commission to
be signed, such document shall be
manually signed, or signed using either
typed signatures or duplicated or
facsimile versions of manual signatures.
Where typed, duplicated, or facsimile
signatures are used, each signatory to
the filing shall manually or
electronically sign a signature page or
other document authenticating,
acknowledging, or otherwise adopting
his or her signature that appears in the
filing (‘‘authentication document’’).
Such authentication document shall be
executed before or at the time the filing
is made and shall be retained by the
filer for a period of five years. The
requirements set forth in § 232.302(b)
must be met with regards to the use of
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§ 240.15Fb1–1
*
Signatures.
*
*
*
*
(b) Each signatory to an electronic
filing (including, without limitation,
each signatory to the forms and
certifications required by §§ 240.15Fb2–
1, 240.15Fb2–4, and 240.15Fb6–2) shall
manually or electronically sign a
signature page or other document
authenticating, acknowledging, or
otherwise adopting his or her signature
that appears in typed form within the
electronic filing (‘‘authentication
document’’). Such authentication
document shall be executed before or at
the time the electronic filing is made.
The requirements set forth in
§ 232.302(b) must be met with regards to
the use of an electronically signed
authentication document pursuant to
this paragraph (b). Upon request, the
security-based swap dealer or major
security-based swap participant shall
furnish to the Commission or its staff a
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copy of any or all documents retained
pursuant to this paragraph (b).
*
*
*
*
*
(d) Each manually or electronically
signed signature page or other document
authenticating, acknowledging, or
otherwise adopting his or her signature
that appears in typed form within the
electronic filing (‘‘authentication
document’’)—
(1) On Schedule F to Form SBSE
(§ 249.1600 of this chapter), SBSE–A
(§ 249.1600a of this chapter), or SBSE–
BD (§ 249.1600b of this chapter), as
appropriate, shall be retained by the
filer until at least three years after the
form or certification has been replaced
or is no longer effective;
(2) On Form SBSE–C (§ 249.1600c of
this chapter) shall be retained by the
filer until at least three years after the
Form was filed with the Commission.
■ 11. Amend § 240.16a–3 by revising
paragraph (i) to read as follows:
§ 240.16a–3
holdings.
Reporting transactions and
*
*
*
*
*
(i) Signatures. Where Section 16 of
the Act, or the rules or forms
thereunder, require a document filed
with or furnished to the Commission to
be signed, such document shall be
manually signed, or signed using either
typed signatures or duplicated or
facsimile versions of manual signatures.
Where typed, duplicated, or facsimile
signatures are used, each signatory to
the filing shall manually or
electronically sign a signature page or
other document authenticating,
acknowledging, or otherwise adopting
his or her signature that appears in the
filing (‘‘authentication document’’).
Such authentication document shall be
executed before or at the time the filing
is made and shall be retained by the
filer for a period of five years. The
requirements set forth in § 232.302(b)
must be met with regards to the use of
an electronically signed authentication
document pursuant to this paragraph (i).
Upon request, the filer shall furnish to
the Commission or its staff a copy of any
or all documents retained pursuant to
this section.
*
*
*
*
*
PART 249—FORMS, SECURITIES
EXCHANGE ACT OF 1934
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,
Jkt 253001
*
*
*
*
13. Amend Form CB (referenced in
§ 249.480) by amending General
Instruction II.B to read as follows:
■
Note: The text of Form CB does not, and
this amendment will not, appear in the Code
of Federal Regulations.
United States
Securities and Exchange Commission
Washington, DC 20549
Form CB
*
*
*
*
*
B. When submitting the Form CB in
electronic format, the persons specified
in Part IV must provide signatures in
accordance with Regulation S–T Rule
302 (17 CFR 232.302). When submitting
the Form CB in paper, the persons
specified in Part IV must sign the
original and at least one copy of the
Form and any amendments. You must
conform any unsigned copies. The
specified persons may provide typed or
facsimile signatures in accordance with
Securities Act Rule 402(e) (17 CFR
230.402(e)) or Exchange Act Rule 12b–
11(d) (17 CFR 240.12b–11(d)) as long as
the filer retains copies of signatures
manually or electronically signed by
each of the specified persons for five
years. The requirements set forth in
Regulation S–T Rule 302(b) (17 CFR
232.302(b)) must be met with regards to
the use of an electronically signed
signature page.
*
*
*
*
*
PART 270—RULES AND
REGULATIONS, INVESTMENT
COMPANY ACT OF 1940
14. The authority citation for part 270
continues to read, in part, as follows:
■
Authority: 15 U.S.C. 80a–1 et seq., 80a–
34(d), 80a–37, 80a–39, and Pub. L. 111–203,
sec. 939A, 124 Stat. 1376 (2010), unless
otherwise noted.
*
*
*
*
*
Section 270.8b–11 is also issued under 15
U.S.C. 77s, 80a–8, and 80a–37.
*
*
*
*
*
15. Amend § 270.8b–11 by revising
paragraph (e) to read as follows:
■
Number of copies; signatures;
*
12. The general authority citation for
part 249 continues to read as follows:
16:15 Dec 03, 2020
*
§ 270.8b–11
binding.
■
VerDate Sep<11>2014
129 Stat. 1312 (2015), unless otherwise
noted.
*
*
*
*
(e) Signatures. Where the Act or the
rules thereunder, including paragraph
(c) of this section, require a document
filed with or furnished to the
Commission to be signed, the document
should be manually signed, or signed
using either typed signatures or
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Sfmt 4700
duplicated or facsimile versions of
manual signatures. When typed,
duplicated, or facsimile signatures are
used, each signatory to the filing shall
manually or electronically sign a
signature page or other document
authenticating, acknowledging, or
otherwise adopting his or her signature
that appears in the filing
(‘‘authentication document’’). Execute
each such authentication document
before or at the time the filing is made
and retain for a period of five years. The
requirements set forth in § 232.302(b)
must be met with regards to the use of
an electronically signed authentication
document pursuant to this paragraph
(e). Upon request, the registrant shall
furnish to the Commission or its staff a
copy of any or all documents retained
pursuant to this section.
By the Commission.
Dated: November 17, 2020.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2020–26166 Filed 12–3–20; 8:45 am]
BILLING CODE 8011–01–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Part 214
[Docket No. FR–6215–I–02]
RIN 2502–ZA34
Housing Counseling Program:
Revision of the Certification Timeline
Office of the Assistant
Secretary for Housing—Federal Housing
Commissioner, HUD.
ACTION: Final rule.
AGENCY:
This final rule follows HUD’s
interim final rule (the interim rule)
published on August 5, 2020. The
interim rule extended the deadline by
which participating agencies and
counselors must comply with
certification requirements in HUD’s
Housing Counseling Program from
August 1, 2020 to August 1, 2021. The
reason for the extension is that due to
the COVID–19 national emergency, a
large number of housing counselors
would have been unable to get certified
by the end of the grace period, resulting
in a loss of Federal funding for some
HUD-approved housing counseling
agencies and loss of the ability to
provide counseling that is required or
provided in numerous HUD programs.
HUD considered public comment on the
interim rule. This rule makes the
interim rule a final rule, without
change.
SUMMARY:
E:\FR\FM\04DER1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 234 (Friday, December 4, 2020)]
[Rules and Regulations]
[Pages 78224-78230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26166]
[[Page 78224]]
=======================================================================
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 230, 232, 240, 249, and 270
[Release Nos. 33-10889; 34-90441; 39-2534; IC-34096]
Electronic Signatures in Regulation S-T Rule 302
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are adopting amendments to Regulation S-T and the
Electronic Data Gathering, Analysis, and Retrieval system (``EDGAR'')
Filer Manual (``EDGAR Filer Manual'' or ``Filer Manual'') to permit the
use of electronic signatures in signature authentication documents
required under Regulation S-T in connection with electronic filings on
EDGAR that are required to be signed. We are also adopting
corresponding revisions to several rules and forms under the Securities
Act of 1933 (``Securities Act''), Securities Exchange Act of 1934
(``Exchange Act''), and Investment Company Act of 1940 (``Investment
Company Act'') to permit the use of electronic signatures in signature
authentication documents in connection with certain other filings.
DATES: Effective December 4, 2020. The incorporation by reference of
the EDGAR Filer Manual is approved by the Director of the Federal
Register as of December 4, 2020.
FOR FURTHER INFORMATION CONTACT: Charles Kwon, Office of Rulemaking, at
(202) 551-3430, Division of Corporation Finance; Terri Jordan, Office
of Rulemaking, at (202) 551-6792, Division of Investment Management; or
Devin Ryan, Office of Chief Counsel, at (202) 551-5550, Division of
Trading and Markets; U.S. Securities and Exchange Commission, 100 F
Street NE, Washington, DC 20549.
SUPPLEMENTARY INFORMATION: We are adopting amendments to the following
rules and forms to permit the use of electronic signatures in signature
authentication documents in connection with certain specified filings,
including electronic filings on EDGAR:
------------------------------------------------------------------------
Commission reference CFR citation (17 CFR)
------------------------------------------------------------------------
Securities Act \1\:
Securities Act Rule 402............... Sec. 230.402.
Securities Act Rule 471............... Sec. 230.471.
Regulation S-T............................ Sec. Sec. 232.10 through
232.903.
Rule 301.............................. Sec. 232.301.
Rule 302.............................. Sec. 232.302.
Exchange Act \2\:
Exchange Act Rule 12b-11.............. Sec. 240.12b-11.
Exchange Act Rule 14d-1............... Sec. 240.14d-1.
Exchange Act Rule 15Fb1-1............. Sec. 240.15Fb1-1.
Exchange Act Rule 16a-3............... Sec. 240.16a-3.
Form CB............................... Sec. 249.480.
Investment Company Act:
Investment Company Act Rule 8b-11..... Sec. 270.8b-11.
------------------------------------------------------------------------
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\1\ 15 U.S.C. 77a et seq.
\2\ 15 U.S.C. 78a et seq.
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We are also adopting an updated EDGAR Filer Manual, Volume II:
``EDGAR Filing'' (Version 55) (November 2020) that sets forth certain
requirements that the electronic signing process must meet when
electronic signatures are used. The updated Filer Manual is
incorporated by reference into the Code of Federal Regulations.\3\
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\3\ 17 CFR 232.301.
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I. Discussion
Regulation S-T, in conjunction with the EDGAR Filer Manual and
other applicable rules, regulations, and forms, governs the electronic
submission of documents filed with or otherwise submitted to the
Securities and Exchange Commission (the ``Commission'') through
EDGAR.\4\ Title 17, section 232.302(b) (Rule 302(b)) currently requires
that each signatory to an electronic filing manually sign a signature
page or other document (``authentication document'') before or at the
time of the electronic filing to authenticate, acknowledge, or
otherwise adopt the signature that appears in typed form within the
electronic filing.\5\ An electronic filer must retain the
authentication document with respect to each signatory to the
electronic filing for a period of five years and must furnish a copy of
it to the Commission or its staff upon request.\6\
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\4\ Rule 10(a) of Regulation S-T [17 CFR 232.10a]. The EDGAR
Filer Manual contains the technical specifications needed for filers
to make submissions through the EDGAR system. The Commission
originally adopted the EDGAR Filer Manual on April 1, 1993, with an
effective date of April 26, 1993. Adoption of EDGAR Filer Manual,
Release No. 33-6986 (Apr. 1, 1993) [58 FR 18638 (Apr. 9, 1993)]. The
amendments adopted in this rulemaking do not apply to the notarized
signature requests for EDGAR access pursuant to the requirements of
Rule 10(b) of Regulation S-T. Moreover, the authentication document
discussed herein is distinct from the authentication document
referenced in Volume I of the Filer Manual in connection with Rule
10(b) notarized authentication documents.
\5\ Pursuant to Rule 302(a) of Regulation S-T, signatures
required in any electronic submission must be in typed form.
\6\ See Rule 302(b) of Regulation S-T. As discussed below,
certain rules and forms under the Securities Act and the Exchange
Act also require authentication documents in connection with certain
filings when these filings contain typed, rather than manual,
signatures. References to ``authentication documents'' in this
release refers to such documents as required by Rule 302(b) or these
other rules and forms, as the context requires.
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The Commission has stated that the authentication document
requirement in Rule 302(b) ``was established to provide a satisfactory
means by which signatories could authenticate and adopt their typed
signatures appearing on filed documents for evidentiary purposes.'' \7\
In March 2020, the Commission staff provided its views on, among other
things, complying with this requirement when considering the public
health and safety concerns related to COVID-19.\8\ In April 2020, the
Commission received a rulemaking petition requesting that we permit the
use of electronic signatures when executing authentication documents
under Rule 302(b).\9\ The rulemaking petition states, among other
things, that ``the current COVID-19 situation has . . . significantly
increased the difficulties associated with obtaining manual `wet'
signatures'' and that ``[i]mprovements in electronic signature software
technology make it possible to confirm (with at least equal confidence
to the collection of manual signatures) who has signed a document and
when it was signed.'' In June 2020, nearly 100 public companies jointly
[[Page 78225]]
submitted a letter in support of the rulemaking petition.\10\
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\7\ Application of the Electronic Signatures in Global and
National Commerce Act to Record Retention Requirements Pertaining to
Issuers under the Securities Act of 1933, Securities Exchange Act of
1934 and Regulation S-T, Release No. 33-7985 (June 14, 2001) [66 FR
33175 (June 21, 2001)] (citing Rulemaking for EDGAR System, Release
No. 33-6977, Section III.F.2 (Feb. 23, 1993) [58 FR 14628 (Mar. 18,
1993)]). In the 2001 release, the Commission issued guidance stating
that the requirements to retain authentication documents are not
subject to the Electronic Signatures in Global and National Commerce
Act (``E-SIGN Act''), because ``authentication documents are records
generated principally for governmental purposes rather than in
connection with a business, consumer or commercial transaction.''
\8\ See Staff Statement Regarding Rule 302(b) of Regulation S-T
in Light of COVID-19 Concerns (Mar. 24, 2020), available at https://www.sec.gov/corpfin/announcement/rule-302b-regulation-s-t-covid-19-update.
\9\ Specifically, the rulemaking petition requested that the
Commission amend Rule 11 and Rule 302 of Regulation S-T, as well as
any other necessary rules and forms, to permit the use of electronic
signatures in addition to manual signatures when executing
authentication documents under Rule 302 and to provide that
authentication documents may be retained physically or
electronically for the requisite five-year period. See letter from
Wilson Sonsini Goodrich & Rosati, Fenwick & West LLP, and Cooley
LLP, available at https://www.sec.gov/rules/petitions/2020/petn4-760.pdf.
\10\ See comment letter from Richard Blake, et al., available at
https://www.sec.gov/comments/4-760/4760-7278993-217809.pdf. We have
not received any letters that oppose the rulemaking petition.
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After considering the widespread use of electronic signatures and
technological developments in the authentication and security of
electronic signatures,\11\ and the issues raised in the rulemaking
petition, we have reevaluated the requirement that signatories may only
manually sign authentication documents under Rule 302(b). As a result,
we are amending Rule 302(b) to permit a signatory to an electronic
filing who follows certain procedures discussed herein to sign an
authentication document through an electronic signature that meets
certain requirements specified in the EDGAR Filer Manual.\12\ This
amendment will provide additional flexibility in complying with the
authentication document requirement by providing signatories with the
option of signing an authentication document either manually or
electronically, while requiring the signing process for an electronic
signature to meet certain conditions that are consistent with the
evidentiary purposes of the authentication document. The existing
requirements of Rule 302(b) will be otherwise unchanged, including the
requirements that an electronic filer retain the authentication
document for a period of five years and furnish a copy of it upon
request to the Commission or its staff.\13\
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\11\ See discussion in Section IV. Economic Analysis infra.
\12\ We are also adopting amendments to Rule 302(a) of
Regulation S-T to update the definition of ``signature,'' by
revising ``electronic entry'' to ``computer representation,''
``letters'' to ``symbols,'' and by removing references to obsolete
terminology (``magnetic impulse''). This amendment does not change
the substance or intended meaning of the definition.
\13\ See new Rules 302(b)(1) and (b)(3).
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We are setting forth the requirements for the electronic signature
signing process in the EDGAR Filer Manual, which will specify that,
when a signatory signs an authentication document using an electronic
signature, the signing process for the electronic signature must, at a
minimum:
Require the signatory to present a physical, logical, or
digital credential that authenticates the signatory's individual
identity;
Reasonably provide for non-repudiation of the signature;
Provide that the signature be attached, affixed, or
otherwise logically associated with the signature page or document
being signed; and
Include a timestamp to record the date and time of the
signature.\14\
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\14\ For purposes of the process requirements underlying the
electronic signature of authentication documents, we are defining
the terms ``electronic signature,'' ``credential,'' and ``non-
repudiation'' in the EDGAR Filer Manual. The term ``electronic
signature'' is defined as an electronic sound, symbol, or process,
attached to or logically associated with a record and executed or
adopted by a person with the intent to sign the record. While this
definition is consistent with the widely used definition of the term
``electronic signature'' in the E-SIGN Act, 15 U.S.C. 7006, we
continue to believe that the E-SIGN Act does not apply to the
Commission's requirements related to authentication documents. See
supra note 7. The term ``credential'' is defined as an object or
data structure exclusively possessed and controlled by an individual
to assert identity and provide for authentication. The term ``non-
repudiation'' is defined as assurance that an individual cannot
falsely deny having performed a particular action.
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These requirements are intended to be technologically neutral and
allow for different types and forms of electronic signatures, provided
that the signing process satisfies a number of conditions that relate
to the validity and enforceability of an electronic signature. The
signing process must incorporate a security procedure that requires the
authentication of a signatory's individual identity through a physical,
logical, or digital credential, and the signing process must reasonably
provide for the non-repudiation of the electronic signature. The
signing process requirements also provide that the signature be
logically associated with the signature page or document being signed,
thereby providing the signatory with notice of the nature and substance
of the document and an opportunity to review it before signing, and
that the electronic signature be linked to the signature page or
document in a manner that allows for later confirmation that the
signatory signed the signature page or document. Finally, given that a
signatory must execute an authentication document pursuant to Rule
302(b) before or at the time an electronic filing is made, the signing
process must include a timestamp that records the date and time of the
electronic signature.
We have included a requirement in new Rule 302(b)(2) that, before a
signatory initially uses an electronic signature to sign an
authentication document, the signatory must manually sign a document
attesting that the signatory agrees that the use of an electronic
signature in any authentication document constitutes the legal
equivalent of such individual's manual signature for purposes of
authenticating the signature to any filing for which it is provided
(``initial electronic signature authentication document'').\15\ An
electronic filer must retain this manually signed document for as long
as the signatory may use an electronic signature to sign an
authentication document and for a minimum period of seven years after
the date of the most recent electronically signed authentication
document. Pursuant to Rule 302(b)(3), the electronic filer shall
furnish a copy of it upon request to the Commission or its staff.\16\
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\15\ See new Rule 302(b)(2). Additionally, Section 6(a) of the
Securities Act provides that signatures to any Securities Act
registration statement shall be presumed to have been written by
authority of the person(s) who signed it, and the burden of proof,
in the event such authority shall be denied, shall be upon the
denying party. See 15 U.S.C. 77f(a).
\16\ A manually signed document under Rule 302(b), including an
initial electronic signature authentication document or a manually
signed authentication document, may be stored via electronic means.
See new Rule 302(b)(3).
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In addition, we are amending certain rules and forms under the
Securities Act, Exchange Act, and Investment Company Act to allow the
use of electronic signatures in authentication documents in connection
with certain other filings when these filings contain typed, rather
than manual, signatures.\17\ These amendments extend comparable
treatment to these filers in allowing electronically signed
authentication documents under generally the same conditions applicable
to electronic filers under Rule 302(b).\18\
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\17\ Securities Act Rules 402(e) and 471(b); Exchange Act Rules
12b-11(d), 14d-1(h), 16a-3(i) and, 15Fb1-1; Form CB; and Investment
Company Act Rule 8b-11. Rules 402(e), 471(b), 12b-11(d), 14d-1(h);
16a-3(i); and 8b-11 allow manual, typed, duplicated, or faxed
signatures on paper filings, with a manual signature retention
requirement for typed, duplicated, or faxed signatures. See Phase
One Recommendation of Task Force on Disclosure Simplification,
Release No. 33-7300 (May 31, 1996) [61 FR 30397 (June 14, 1996)] at
30400 (stating that the Commission was adopting these requirements
``to provid[e] comparable treatment to both paper and electronic
filers'' with respect to the signature and authentication
requirements). The signature requirements in Rules 12b-11(d) and
14d-1(h) apply solely with respect to the scope of regulation
defined in Rules 12b-11 and 14d-1(a), respectively.
\18\ The amendments to these rules include a cross reference to
the requirements set forth in Rule 302(b) of Regulation S-T.
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Along with the adoption of an updated EDGAR Filer Manual, we are
amending Rule 301 of Regulation S-T to provide for the incorporation by
reference into the Code of Federal Regulations of the current
revisions. This incorporation by reference was approved by the Director
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The updated EDGAR Filer Manual is available at https://www.sec.gov/info/edgar/edmanuals.htm. The EDGAR Filer Manual also is
available for website viewing and printing in the
[[Page 78226]]
Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m.
II. Procedural and Other Matters
The Administrative Procedure Act (``APA'') generally requires an
agency to publish notice of a rulemaking in the Federal Register and
provide an opportunity for public comment.\19\ This requirement does
not apply, however, to rules of agency organization, procedure, or
practice,\20\ or if the agency ``for good cause finds . . . that notice
and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.'' \21\ We find that these amendments
relate to agency procedures or practice and do not substantially alter
the rights and obligations of non-agency parties. We also find that
notice and comment are unnecessary because the amendments merely
provide an optional alternative method for signatories to sign
authentication documents pursuant to Rule 302(b) and corresponding
provisions in our rules and forms. It follows that the amendments do
not require analysis under the Regulatory Flexibility Act or a report
to Congress under the Small Business Regulatory Fairness Act.\22\
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\19\ See 5 U.S.C. 553(b) and (c).
\20\ 5 U.S.C. 553(b)(3)(A).
\21\ 5 U.S.C. 553(b)(3)(B).
\22\ See 5 U.S.C. 601(2) (for purposes of a Regulatory
Flexibility Act analysis, the term ``rule'' means any rule for which
the agency publishes a general notice of proposed rulemaking) and 5
U.S.C. 804(3)(C) (for purposes of Congressional review of agency
rulemaking, the term ``rule'' does not include any rule of agency
organization, procedure, or practice that does not substantially
affect the rights or obligations of non-agency parties).
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The APA generally requires that an agency publish an adopted rule
in the Federal Register at least 30 days before it becomes
effective.\23\ This requirement, however, does not apply if the agency
finds good cause for making the rule effective sooner.\24\ For the same
reasons we are forgoing notice and comment, the Commission finds good
cause to make these amendments effective upon publication in the
Federal Register. We further believe signatories and electronic filers
should have the option of using electronic signatures in authentication
documents as soon as practicable and find there is good cause for these
amendments to take effect upon publication in the Federal Register. We
also believe the amendments relieve a restriction in that execution of
authentication documents no longer will be limited to manual or ``wet''
signatures.\25\
---------------------------------------------------------------------------
\23\ 5 U.S.C. 553(d)(3).
\24\ Id.
\25\ 5 U.S.C. 553(d)(1).
---------------------------------------------------------------------------
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.
III. Paperwork Reduction Act
Certain provisions of our rules and forms contain ``collection of
information'' requirements within the meaning of the Paperwork
Reduction Act of 1995 (``PRA'').\26\ The hours and costs associated
with preparing and filing forms and retaining records--including those
associated with signature authentication requirements--constitute
reporting and cost burdens imposed by the collection of information
requirements. 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 Office of Management and Budget control
number. Compliance with the information collections is mandatory. The
paperwork burden associated with the Commission's signature
authentication requirements is imposed through the forms that are
subject to those requirements and is reflected in the analysis of those
forms. Responses to these information collections are not kept
confidential and there is no mandatory retention period for the
information disclosed, although filers are required to retain an
authentication document for a period of five years.
---------------------------------------------------------------------------
\26\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------
As noted above, the amendments do not substantively alter the
authentication document requirements, but rather provide an optional
alternative method for signatories to sign authentication documents
electronically. Although the requirements underlying the use of an
electronic signature differ somewhat from those for use of a manual
signature in connection with an authentication document (e.g., an
initial electronic signature authentication document will be required
to be retained for seven years), on balance, we expect the amendments
to incrementally ease the burden associated with executing such a
document. It is difficult to predict how many filers will take
advantage of the alternative signing method; however, we expect a filer
would utilize this optional method only if it determines that the
burdens of this alternative method are less than existing methods.
Given the incremental nature of the amendments and in order to avoid
overestimating any potential reduction in paperwork burdens, we are not
revising any burden and cost estimates in connection with these
amendments.
IV. Economic Analysis
The final amendments provide signatories with additional
flexibility in connection with documents filed with the Commission,
including electronic filings made on EDGAR, by permitting the use of
electronic signatures in authentication documents. Due to technological
advances that have enabled electronic signatures to become as credible
as their manual, ``wet'' counterparts and the potential for efficiency
gains, we believe providing such flexibility is justified. Below, we
consider the benefits and costs, as well as the effects on efficiency,
competition, and capital formation that we anticipate will result from
the final amendments.\27\ We evaluate the economic effects of the
amendments relative to a baseline which includes the current regulatory
requirements applicable to filers and signatories, as discussed in
Section I above, as well as current practices. These requirements apply
to both electronic and paper filers. The vast majority of Commission
filings must be made electronically.\28\ Based on information from
2019, the Commission received approximately 644,000 electronic filings
from approximately 131,000 filers. By contrast staff analysis of
filings in EDGAR identified 4,881 scanned paper filings from 2,603
filers in 2019.
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\27\ Section 3(f) of the Exchange Act, Section 2(b) of the
Securities Act, and Section 2(c) of the Investment Company Act state
that when engaging in rulemaking that requires us to consider or
determine whether an action is necessary or appropriate in (or, with
respect to the Investment Company Act, consistent with) the public
interest, we must consider, in addition to the protection of
investors, whether the action will promote efficiency, competition,
and capital formation. Additionally, Section 23(a)(2) of the
Exchange Act requires us, when making rules or regulations under the
Exchange Act, to consider, among other matters, the impact that any
such rule or regulation would have on competition and states that
the Commission shall not adopt any such rule or regulation which
would impose a burden on competition that is not necessary or
appropriate in furtherance of the Exchange Act.
\28\ 17 CFR 230.101.
---------------------------------------------------------------------------
Developments in cryptography and computing have enabled the
development of digital signatures that are at least as credible as
manual signatures. Digital signatures available today can: (i) Assure
users that signed documents have not been altered; (ii) identify the
signatory; and (iii) make it
[[Page 78227]]
impossible for a signatory to deny signing the document.\29\ Moreover,
digital signature systems can be deployed on a broad range of computing
platforms,\30\ and are widely accessible at low cost.
---------------------------------------------------------------------------
\29\ See William Kuechler & Fritz H. Grupe, Digital Signatures:
A Business View, 19(4) Info. Sys. Mgmt. 19 (2003).
\30\ Id.
---------------------------------------------------------------------------
Technological developments have also increased the efficiency of
electronic communication relative to reliance on the mail. Remote work,
as opposed to work on a business's premises, has increased for
management, professional, and related occupations.\31\ These changes
have been facilitated by developments in technology and communications
infrastructure,\32\ as a greater volume of business communication now
occurs electronically, rather than through paper, workers in these
occupations have adapted to electronic communications. Further, remote
work has increased substantially in recent months due to the COVID-19
pandemic. Survey evidence collected during the pandemic shows that a
substantial proportion of the U.S. labor force now works from home full
time.\33\ At the same time, measures related to COVID-19 have, at the
margin, increased the time associated with printing and mailing, and in
some cases have increased the risk of delay.\34\ In response to
lengthier or less certain printing and mailing times, filers may incur
additional costs by hastening internal processes to meet external
deadlines.
---------------------------------------------------------------------------
\31\ See Rachel M. Krantz-Kent, Where did workers perform their
jobs in the early 21st century?, U.S. Bureau of Lab. Stat.: Monthly
Lab. Rev. (July 2019), available at: https://doi.org/10.21916/mlr.2019.16 (last accessed October 22, 2020).
\32\ Id.
\33\ See Erik Brynjolfsson et al., COVID-19 and remote work: an
early look at US data (Nat'l Bureau of Economic Research, No.
w27344, 2020). See also May Wong, Stanford Research Provides a
Snapshot of a New Working-From-Home Economy (June 29, 2020),
available at: https://news.stanford.edu/2020/06/29/snapshot-new-working-home-economy/ (last accessed Oct. 13, 2020).
\34\ For example, The U.S. Postal Service announced that certain
two-day and three-day service commitments were extended to three
days and four days, respectively, and suspended services or service
guarantees for international shipments. Private carriers similarly
suspended guarantees. See e.g., USPS[supreg] Coronavirus Updates:
Expected Delivery Changes, USPS: FAQ (Apr. 17, 2020) available at:
https://faq.usps.com/s/article/USPS-Coronavirus-Updates-Expected-Delivery-Changes (last accessed Oct. 10, 2020).
---------------------------------------------------------------------------
We expect the amendments to Rule 302(b), and the related amendments
to certain rules and forms under the Securities Act, the Exchange Act,
and the Investment Company Act will result in cost savings for those
filers whose signatories sign an authentication document by using an
electronic signature. Filers who choose this option would no longer be
required to have a signatory manually sign a signature page or other
document and convey that document to the filer for each typed signature
they provide in each filing that is made. Thus filers and signatories
would not incur related costs of printing or mailing such a document in
connection with each typed signature and may experience cost reductions
to the extent that retaining electronic authentication documents is
less costly than retaining manual authentication documents. It is
difficult to quantify cost savings per filing as they would depend on
the nature of the filing and the circumstances of the individual
signatories.\35\ Further, cost savings per filer would depend on the
number and nature of filings each filer must make.\36\ To the extent
that the amendments make filers' compliance programs more efficient and
less expensive, filers may be able to reallocate resources otherwise
used for printing or mailing authentication documents to more
productive uses. Filers may experience greater cost savings to the
extent they choose to incorporate processes for electronic signatures
in the design of their overall compliance programs and such processes
are lower cost than their manual equivalents.
---------------------------------------------------------------------------
\35\ Analysis of electronic filers in EDGAR in 2019 demonstrates
substantial variation in the number of signatories per filing. For
example, we estimate 99.0% of 6,660 Form 10-K filings included more
than one signatory in 2019, while only 1.6% of 14,884 Form 497
filings included more than one signatory in 2019. Staff were able to
identify approximately 105,000 electronic filings with multiple
signatories in 2019 by searching for signature tags in all
electronic filings. Although this method may fail to identify
certain filings with multiple signatories that do not tag individual
signatures, this sample serves to demonstrate the degree of
variability in the number of signatories across form types.
\36\ Analysis of electronic filers in EDGAR in 2019 demonstrates
a high degree in variation in the number of filings per filer. Staff
estimate that the median number of filings per filer across the full
sample of filers was two, however, the 25 filers with the largest
number of filings in 2019 each submitted more than 850 filings.
---------------------------------------------------------------------------
We do not expect the amendments to Rule 302(b) to impose
substantial additional costs on filers because filers will be permitted
to continue to use manually signed authentication documents and
existing policies and procedures if they choose to do so. Because the
electronic signing process for authentication documents would be
optional, we expect that filers would avail themselves of this option
only to the extent that the potential benefits justified any associated
costs.
Filers that choose to avail themselves of the ability to use
electronic signatures in authentication documents may need to update
their compliance systems to ensure that a signatory manually signs a
document attesting that the signatory agrees that the use of an
electronic signature in any authentication document constitutes the
legal equivalent of such individual's manual signature, before first
utilizing an electronic signature to sign an authentication document.
Further, filers must retain this initial signature authentication
document for a minimum period of seven years after the date of the most
recent electronically signed authentication document, and must furnish
a copy of it upon request to the Commission or its staff. However, we
generally expect these one-time costs to be relatively low, and once
such a filer has updated its systems, we do not believe these
substantive requirements will result in additional on-going costs
because producing and retaining authentication documents are existing
requirements under Rule 302(b). Additionally, such filers may incur
costs associated with compliance with the electronic signing process
requirements prescribed in the EDGAR Filer Manual. These costs include
initial costs related to identifying and acquiring software capable of
producing electronic signatures that meet the updated process
requirements and likely also include annual fees associated with
ongoing use of electronic signature software.
We do not expect the amendments to have meaningful effects on
competition or capital formation. As noted above, the amendments may
improve efficiency, to the extent that they permit filers to lower the
costs associated with complying with the amended rules. The amendments
could reduce the variable cost (cost per filing) associated with
meeting Commission filing requirements. If meeting Commission filing
requirements involves high fixed costs then this reduction in variable
costs could reduce the average cost of filing for high-volume filers
more than for low-volume filers. Similarly, a filer's printing and
mailing costs under the baseline depend both on the number of
signatures required for its filings and the need for mailing manual
signature pages to a central location. Thus, filers that have a larger
number of signatories, or have signatories that are more geographically
dispersed, likely would experience greater cost savings than filers
with fewer or less-dispersed signatories.
Finally, we considered alternative ways of permitting the use of
electronic
[[Page 78228]]
signatures in authentication documents. The Commission could have
chosen not to adopt a requirement to create or retain an initial
electronic signature authentication document. Such an alternative would
have increased cost savings for filers, but could have undermined the
evidentiary value of the authentication document. The Commission also
considered longer or shorter retention periods for authentication
documents. Longer (shorter) retention periods could increase (decrease)
the costs associated with storing authentication documents, while
potentially increasing (decreasing) the evidentiary benefits of such
documents.
V. Statutory Authority
The amendments contained in this release are being adopted under
the authority in Sections 6, 7, 8, 10, and 19(a) of the Securities Act
of 1933,\37\ Sections 3, 12, 13, 14, 15, 15B, 23, and 35A of the
Securities Exchange Act of 1934,\38\ Section 319 of the Trust Indenture
Act of 1939,\39\ and Sections 8, 30, 31, and 38 of the Investment
Company Act of 1940.\40\
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\37\ 15 U.S.C. 77f, 77g, 77h, 77j, and 77s(a).
\38\ 15 U.S.C. 78c, 78l, 78m, 78n, 78o, 78o-4, 78w, and 78ll.
\39\ 15 U.S.C. 77sss.
\40\ 15 U.S.C. 80a-8, 80a-29, 80a-30, and 80a-37.
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List of Subjects
17 CFR Part 230
Investment companies, Reporting and recordkeeping requirements,
Securities.
17 CFR Part 232
Incorporation by reference, Reporting and recordkeeping
requirements, Securities.
17 CFR Part 240
Brokers, Fraud, Reporting and recordkeeping requirements,
Securities.
17 CFR Part 249
Brokers, Reporting and recordkeeping requirements, Securities.
17 CFR Part 270
Investment companies, Reporting and recordkeeping requirements,
Securities.
Text of the Amendments
In accordance with the foregoing, title 17, chapter II of the Code
of Federal Regulations is amended as follows:
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
0
1. The authority citation for part 230 continues to read in part as
follows:
Authority: 15 U.S.C. 77b, 77b note, 77c, 77d, 77f, 77g, 77h,
77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78o-
7 note, 78t, 78w, 78ll(d), 78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-
30, and 80a-37, and Pub. L. 112-106, sec. 201(a), sec. 401, 126
Stat. 313 (2012), unless otherwise noted.
* * * * *
Sections 230.400 to 230.499 issued under secs. 6, 8, 10, 19, 48
Stat. 78, 79, 81, and 85, as amended (15 U.S.C. 77f, 77h, 77j, and
77s).
* * * * *
0
2. Amend Sec. 230.402 by revising paragraph (e) to read as follows:
Sec. 230.402 Number of copies; binding; signatures.
* * * * *
* * * * *
(e) Signatures. Where the Act or the rules thereunder, including
paragraphs (a) and (c) of this section, require a document filed with
or furnished to the Commission to be signed, such document shall be
manually signed, or signed using either typed signatures or duplicated
or facsimile versions of manual signatures. Where typed, duplicated, or
facsimile signatures are used, each signatory to the filing shall
manually or electronically sign a signature page or other document
authenticating, acknowledging, or otherwise adopting his or her
signature that appears in the filing (``authentication document'').
Such authentication document shall be executed before or at the time
the filing is made and shall be retained by the registrant for a period
of five years. The requirements set forth in Sec. 232.302(b) must be
met with regards to the use of an electronically signed authentication
document pursuant to this paragraph (e). Upon request, the registrant
shall furnish to the Commission or its staff a copy of any or all
documents retained pursuant to this section.
0
3. Amend Sec. 230.471 by revising paragraph (b) to read as follows:
Sec. 230.471 Signatures to amendments.
* * * * *
(b) Where the Act or the rules thereunder require a document filed
with or furnished to the Commission to be signed, such document shall
be manually signed, or signed using either typed signatures or
duplicated or facsimile versions of manual signatures. Where typed,
duplicated, or facsimile signatures are used, each signatory to the
filing shall manually or electronically sign a signature page or other
document authenticating, acknowledging, or otherwise adopting his or
her signature that appears in the filing (``authentication document'').
Such authentication document shall be executed before or at the time
the filing is made and shall be retained by the registrant for a period
of five years. The requirements set forth in Sec. 232.302(b) must be
met with regards to the use of an electronically signed authentication
document pursuant to this paragraph (b). Upon request, the registrant
shall furnish to the Commission or its staff a copy of any or all
documents retained pursuant to this section.
PART 232 REGULATION S-T--GENERAL RULES AND REGULATIONS FOR
ELECTRONIC FILINGS
0
4. The authority citation for part 232 continues to read as follows:
Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3,
77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c),
80a-8, 80a-29, 80a-30, 80a-37, 7201 et seq.; and 18 U.S.C. 1350,
unless otherwise noted.
Section 232.302 is also issued under secs. 3(a) and 302, Pub. L.
No. 107-204, 116 Stat. 745.
0
5. Revise Sec. 232.301 to read as follows:
Sec. 232.301 EDGAR Filer Manual.
Filers must prepare electronic filings in the manner prescribed by
the EDGAR Filer Manual, promulgated by the Commission, which sets forth
the technical formatting requirements for electronic submissions. The
requirements for becoming an EDGAR Filer and updating company data are
set forth in the updated EDGAR Filer Manual, Volume I: ``General
Information,'' Version 35 (January 2020). The requirements for filing
on EDGAR are set forth in the updated EDGAR Filer Manual, Volume II:
``EDGAR Filing,'' Version 55 (November 2020). All of these provisions
have been incorporated by reference into the Code of Federal
Regulations, which action was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You must
comply with these requirements in order for documents to be timely
received and accepted. The EDGAR Filer Manual is available at https://www.sec.gov/info/edgar/edmanuals.htm. The EDGAR Filer Manual is also
available for website viewing and printing in the Commission's Public
Reference Room, 100 F Street NE, Washington, DC 20549, on official
business days between the hours of 10 a.m. and 3 p.m. You can also
inspect the document at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, email [email protected], or go to: https://
[[Page 78229]]
www.archives.gov/federal-register/cfr/ibrlocations.html.
0
6. Amend Sec. 232.302 by revising paragraphs (a) and (b) to read as
follows:
Sec. 232.302 Signatures.
(a) Required signatures to, or within, any electronic submission
(including, without limitation, signatories within the certifications
required by Sec. Sec. 240.13a-14, 240.15d-14, and 270.30a-2 of this
chapter) must be in typed form rather than manual format. Signatures in
an HTML document that are not required may, but are not required to, be
presented in an HTML graphic or image file within the electronic
filing, in compliance with the formatting requirements of the EDGAR
Filer Manual. When used in connection with an electronic filing, the
term ``signature'' means a computer representation of any symbol or
series of symbols comprising a name executed, adopted, or authorized as
a signature. Signatures are not required in unofficial PDF copies
submitted in accordance with Sec. 232.104.
(b)(1) Each signatory to an electronic filing (including, without
limitation, each signatory to the certifications required by Sec. Sec.
240.13a-14, 240.15d-14 and 270.30a-2 of this chapter) shall manually or
electronically sign a signature page or other document authenticating,
acknowledging, or otherwise adopting his or her signature that appears
in typed form within the electronic filing (``authentication
document''). Such authentication document shall be executed before or
at the time the electronic filing is made and shall be retained by the
filer for a period of five years. An electronically signed
authentication document pursuant to this paragraph (b)(1) must meet the
requirements set forth in the EDGAR Filer Manual.
(2) Before a signatory may electronically sign an authentication
document pursuant to paragraph (b)(1) of this section, such signatory
must manually sign a document attesting that, when using electronic
signatures for purposes of paragraph (b)(1) of this section, the
signatory agrees that the use of such electronic signature constitutes
the legal equivalent of such individual's manual signature for purposes
of authenticating the signature to any filing for which it is provided.
An electronic filer must retain this document for as long as the
signatory may use an electronic signature to satisfy the requirements
of paragraph (b)(1) of this section and for a minimum period of seven
years after the date of the most recent electronically signed
authentication document.
(3) Upon request, an electronic filer shall furnish to the
Commission or its staff a copy of any or all documents retained
pursuant to this section. A manually signed document under paragraph
(b)(1) or (2) of this section, including an initial electronic
signature authentication document or a manually signed authentication
document, may be retained and stored via electronic means.
* * * * *
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
0
7. The authority citation for part 240 continues to read, in part, as
follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3,
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f,
78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4,
78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78dd, 78ll, 78mm,
80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, and 7201 et
seq., and 8302; 7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C.
1350; Pub. L. 111-203, 939A, 124 Stat. 1376 (2010); and Pub. L. 112-
106, secs. 503 and 602, 126 Stat. 326 (2012), unless otherwise
noted.
* * * * *
Sections 240.12b-1 to 240.12b-36 also issued under secs. 3, 12,
13, 15, 48 Stat. 892, as amended, 894, 895, as amended; 15 U.S.C.
78c, 78l, 78m, and 78o.
* * * * *
Section 240.14d-1 is also issued under 15 U.S.C. 77g, 77j,
77s(a), 77ttt(a), 80a-37.
* * * * *
0
8. Amend Sec. 240.12b-11 by revising paragraph (d) to read as follows:
Sec. 240.12b-11 Number of copies; signatures; binding.
* * * * *
(d) Signatures. Where the Act or the rules, forms, reports or
schedules thereunder, including paragraph (b) of this section, require
a document filed with or furnished to the Commission to be signed, such
document shall be manually signed, or signed using either typed
signatures or duplicated or facsimile versions of manual signatures.
Where typed, duplicated, or facsimile signatures are used, each
signatory to the filing shall manually or electronically sign a
signature page or other document authenticating, acknowledging, or
otherwise adopting his or her signature that appears in the filing
(``authentication document''). Such authentication document shall be
executed before or at the time the filing is made and shall be retained
by the filer for a period of five years. The requirements set forth in
Sec. 232.302(b) must be met with regards to the use of an
electronically signed authentication document pursuant to this
paragraph (d). Upon request, the filer shall furnish to the Commission
or its staff a copy of any or all documents retained pursuant to this
section.
0
9. Amend Sec. 240.14d-1 by revising paragraph (h) to read as follows:
Sec. 240.14d-1 Scope of and definitions applicable to Regulations 14D
and 14E.
* * * * *
(h) Signatures. Where the Act or the rules, forms, reports or
schedules thereunder require a document filed with or furnished to the
Commission to be signed, such document shall be manually signed, or
signed using either typed signatures or duplicated or facsimile
versions of manual signatures. Where typed, duplicated, or facsimile
signatures are used, each signatory to the filing shall manually or
electronically sign a signature page or other document authenticating,
acknowledging, or otherwise adopting his or her signature that appears
in the filing (``authentication document''). Such authentication
document shall be executed before or at the time the filing is made and
shall be retained by the filer for a period of five years. The
requirements set forth in Sec. 232.302(b) must be met with regards to
the use of an electronically signed authentication document pursuant to
this paragraph (h). Upon request, the filer shall furnish to the
Commission or its staff a copy of any or all documents retained
pursuant to this section.
0
10. Amend Sec. 240.15Fb1-1 by revising paragraphs (b) and (d) to read
as follows:
Sec. 240.15Fb1-1 Signatures.
* * * * *
(b) Each signatory to an electronic filing (including, without
limitation, each signatory to the forms and certifications required by
Sec. Sec. 240.15Fb2-1, 240.15Fb2-4, and 240.15Fb6-2) shall manually or
electronically sign a signature page or other document authenticating,
acknowledging, or otherwise adopting his or her signature that appears
in typed form within the electronic filing (``authentication
document''). Such authentication document shall be executed before or
at the time the electronic filing is made. The requirements set forth
in Sec. 232.302(b) must be met with regards to the use of an
electronically signed authentication document pursuant to this
paragraph (b). Upon request, the security-based swap dealer or major
security-based swap participant shall furnish to the Commission or its
staff a
[[Page 78230]]
copy of any or all documents retained pursuant to this paragraph (b).
* * * * *
(d) Each manually or electronically signed signature page or other
document authenticating, acknowledging, or otherwise adopting his or
her signature that appears in typed form within the electronic filing
(``authentication document'')--
(1) On Schedule F to Form SBSE (Sec. 249.1600 of this chapter),
SBSE-A (Sec. 249.1600a of this chapter), or SBSE-BD (Sec. 249.1600b
of this chapter), as appropriate, shall be retained by the filer until
at least three years after the form or certification has been replaced
or is no longer effective;
(2) On Form SBSE-C (Sec. 249.1600c of this chapter) shall be
retained by the filer until at least three years after the Form was
filed with the Commission.
0
11. Amend Sec. 240.16a-3 by revising paragraph (i) to read as follows:
Sec. 240.16a-3 Reporting transactions and holdings.
* * * * *
(i) Signatures. Where Section 16 of the Act, or the rules or forms
thereunder, require a document filed with or furnished to the
Commission to be signed, such document shall be manually signed, or
signed using either typed signatures or duplicated or facsimile
versions of manual signatures. Where typed, duplicated, or facsimile
signatures are used, each signatory to the filing shall manually or
electronically sign a signature page or other document authenticating,
acknowledging, or otherwise adopting his or her signature that appears
in the filing (``authentication document''). Such authentication
document shall be executed before or at the time the filing is made and
shall be retained by the filer for a period of five years. The
requirements set forth in Sec. 232.302(b) must be met with regards to
the use of an electronically signed authentication document pursuant to
this paragraph (i). Upon request, the filer shall furnish to the
Commission or its staff a copy of any or all documents retained
pursuant to this section.
* * * * *
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
0
12. The general authority citation for part 249 continues to read 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
13. Amend Form CB (referenced in Sec. 249.480) by amending General
Instruction II.B to read as follows:
Note: The text of Form CB does not, and this amendment will
not, appear in the Code of Federal Regulations.
United States
Securities and Exchange Commission
Washington, DC 20549
Form CB
* * * * *
B. When submitting the Form CB in electronic format, the persons
specified in Part IV must provide signatures in accordance with
Regulation S-T Rule 302 (17 CFR 232.302). When submitting the Form CB
in paper, the persons specified in Part IV must sign the original and
at least one copy of the Form and any amendments. You must conform any
unsigned copies. The specified persons may provide typed or facsimile
signatures in accordance with Securities Act Rule 402(e) (17 CFR
230.402(e)) or Exchange Act Rule 12b-11(d) (17 CFR 240.12b-11(d)) as
long as the filer retains copies of signatures manually or
electronically signed by each of the specified persons for five years.
The requirements set forth in Regulation S-T Rule 302(b) (17 CFR
232.302(b)) must be met with regards to the use of an electronically
signed signature page.
* * * * *
PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940
0
14. The authority citation for part 270 continues to read, in part, as
follows:
Authority: 15 U.S.C. 80a-1 et seq., 80a-34(d), 80a-37, 80a-39,
and Pub. L. 111-203, sec. 939A, 124 Stat. 1376 (2010), unless
otherwise noted.
* * * * *
Section 270.8b-11 is also issued under 15 U.S.C. 77s, 80a-8, and
80a-37.
* * * * *
0
15. Amend Sec. 270.8b-11 by revising paragraph (e) to read as follows:
Sec. 270.8b-11 Number of copies; signatures; binding.
* * * * *
(e) Signatures. Where the Act or the rules thereunder, including
paragraph (c) of this section, require a document filed with or
furnished to the Commission to be signed, the document should be
manually signed, or signed using either typed signatures or duplicated
or facsimile versions of manual signatures. When typed, duplicated, or
facsimile signatures are used, each signatory to the filing shall
manually or electronically sign a signature page or other document
authenticating, acknowledging, or otherwise adopting his or her
signature that appears in the filing (``authentication document'').
Execute each such authentication document before or at the time the
filing is made and retain for a period of five years. The requirements
set forth in Sec. 232.302(b) must be met with regards to the use of an
electronically signed authentication document pursuant to this
paragraph (e). Upon request, the registrant shall furnish to the
Commission or its staff a copy of any or all documents retained
pursuant to this section.
By the Commission.
Dated: November 17, 2020.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2020-26166 Filed 12-3-20; 8:45 am]
BILLING CODE 8011-01-P
