Regulation 13D-G states that Schedules 13D and 13G should be prepared in accordance with Regulation S-T, which governs the preparation and submission of documents filed electronically on the Commission’s EDGAR system.417 In accordance with 17 CFR 232.12, electronic filings may be submitted to the Commission Monday through Friday, except Federal holidays, from 6 a.m. to 10 p.m. Eastern Time.418 Under Rule 13(a) of Regulation S-T, however, most filings must be submitted by direct transmission commencing on or before 5:30 p.m. Eastern Time in order to be deemed filed on the same business day.419
Most filings submitted by direct transmission commencing after 5:30 p.m. will be deemed filed as of the next business day.420 Rule 13(a)(4) of Regulation S-T, however, sets forth certain exceptions from that 5:30 p.m. “cut-off” time. Specifically, it provides that certain filings—namely, Forms 3, 4 and 5, Form 144, and Schedule 14N—“submitted by direct transmission on or before 10 p.m. [Eastern Time] shall be deemed filed on the same business day.”421 Rule 13(a)(4), therefore, effectively extends the “cut-off” time for these filings from 5:30 p.m. to 10 p.m.
In addition, Rule 201 of Regulation S-T and 17 CFR 232.202 (“Rule 202 of Regulation S-T”) address hardship exemptions from EDGAR filing requirements, and Rule 13(b) of Regulation S-T addresses the related issue of filing date adjustments. A filer may obtain a temporary hardship exemption under current Rule 201 of Regulation S-T if it experiences unanticipated technical difficulties that prevent the timely submission of an electronic filing by submitting a properly formatted paper copy of the filing under cover of Form TH.422 Alternatively, instead of pursuing a hardship exemption, a filer may request a filing date adjustment under Rule 13(b) of Regulation S-T. That rule addresses circumstances in which a filer attempts in good faith to file a document with the Commission in a timely manner, but the filing is delayed due to technical difficulties beyond the filer’s control.423 In those instances, the filer may request a filing date adjustment.424 The staff may grant the request if it appears that the adjustment is appropriate and consistent with the public interest and the protection of investors.425
a. Proposed Amendments
In the Proposing Release, the Commission proposed to amend Rule 13(a)(4) of Regulation S-T to provide that any Schedule 13D or Schedule 13G, including any amendments thereto, submitted by direct transmission on or before 10 p.m. Eastern Time on a given business day will be deemed filed on the same business day.426 Conversely, under the proposed amendment, any Schedule 13D or 13G filing not submitted by direct transmission by 10 p.m. on its due date will be assigned a filing date of the next business day, and for purposes of compliance with the applicable reporting requirements, would be considered late. The Commission proposed this extension of the “cut-off” time to ease filers’ administrative burdens in connection with the proposed accelerated filing deadlines for Schedule 13D and 13G filings, including those filers located in different time zones.427
The Commission also proposed to amend Rule 201(a) of Regulation S-T to remove a Schedule 13D or 13G filer’s ability to rely on a temporary hardship exemption under that rule. The Commission noted that this proposal would be consistent with the treatment of Forms 3, 4, and 5, which have a 10 p.m. “cut-off” time under Rule 13(a)(4) of Regulation S-T and are ineligible for a temporary hardship exemption under Rule 201(a) of Regulation S-T.428 The Commission also based this proposal on the following factors: the relative ease of using the EDGAR on-line filing system; the proposed extended 10 p.m. Eastern Time filing deadline; the limited value to the public of paper filings; and the availability of a filing date adjustment under the same circumstances as a temporary hardship exemption would have been available but for the proposed amendment.429
b. Comments Received
Commenters largely supported the proposed amendments to Rules 13(a)(4) and 201(a) of Regulation S-T,430 with only one commenter expressly opposing the proposed amendment to Rule 201(a) of Regulation S-T.431 One of the supporting commenters asserted that additional time to file would be critical under the Commission’s proposed acceleration of the Schedule 13D and 13G filing deadlines.432 Another supporting commenter noted that the proposed amendment to Rule 13(a)(4) would conform to the section 16 filing deadlines and help ease the compliance burdens of shortened filing deadlines and time zone differences.433
Some commenters also made recommendations in connection with the proposed amendments to Rules 13(a)(4) and 201(a) of Regulation S-T. One supporting commenter recommended that the Commission extend filer support hours beyond 6 p.m. Eastern Time.434 Another commenter, which neither clearly supported nor opposed the proposed amendment to Rule 201(a), stated that it would not object to making a temporary hardship exemption unavailable to Schedules 13D and 13G filers as long as a filer may request a filing date adjustment under Rule 13(b) of Regulation S-T if it experiences unanticipated technical difficulties that prevent the timely submission of an electronic filing.435
c. Final Amendments
We are amending Rules 13(a)(4) and 201(a) of Regulation S-T as proposed. Thus, the filing “cut-off” time for Schedules 13D and 13G under Rule 13(a)(4) of Regulation S-T will be extended from 5:30 p.m. to 10 p.m. Eastern Time. In addition, the temporary hardship exemption under Rule 201(a) of Regulation S-T will be made unavailable for Schedule 13D and 13G filers. Schedule 13D and 13G filers will, however, remain eligible to request a filing date adjustment under Rule 13(b) of Regulation S-T.436
We are adopting these amendments as proposed for the same reasons the Commission discussed in the Proposing Release,437 which were largely supported by the commenters.438 We note that a commenter also requested that we extend filer support hours beyond 6 p.m. Eastern Time.439 As the Commission noted in the Proposing Release, however, the amendment to Rule 13(a)(4) of Regulation S-T mirrors the existing filing “cut-off” time for Forms 3, 4, and 5.440 In extending the filing “cut-off” time for those forms, the Commission declined to extend filer support hours.441 We also decline to do so here in light of the relative ease of using the EDGAR on-line filing system, the extension of the “cut-off” time by four and a half hours, and the availability of a filing date adjustment if the filer experiences unanticipated technical difficulties as previously described.