Rule2021-26528
Holding Foreign Companies Accountable Act Disclosure
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 9, 2021
Effective
January 10, 2022
Issuing agencies
Securities and Exchange Commission
Abstract
We are adopting amendments to finalize interim final rules that revised Forms 20-F, 40-F, 10-K, and N-CSR to implement the disclosure and submission requirements of the Holding Foreign Companies Accountable Act ("HFCA Act"). The final amendments apply to registrants that the Securities and Exchange Commission ("Commission") identifies as having filed an annual report with an audit report issued by a registered public accounting firm that is located in a foreign jurisdiction and that the Public Company Accounting Oversight Board ("PCAOB") is unable to inspect or investigate completely because of a position taken by an authority in that jurisdiction. Consistent with the HFCA Act, the amendments require the submission of documentation to the Commission establishing that such a registrant is not owned or controlled by a governmental entity in that foreign jurisdiction and also require disclosure in a foreign issuer's annual report regarding the audit arrangements of, and governmental influence on, such registrants.
Full Text
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<title>Federal Register, Volume 86 Issue 234 (Thursday, December 9, 2021)</title>
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[Federal Register Volume 86, Number 234 (Thursday, December 9, 2021)]
[Rules and Regulations]
[Pages 70027-70044]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26528]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 200, 232, and 249
[Release No. 34-93701; IC-34431; File No. S7-03-21]
RIN 3235-AM84
Holding Foreign Companies Accountable Act Disclosure
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
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SUMMARY: We are adopting amendments to finalize interim final rules
that revised Forms 20-F, 40-F, 10-K, and N-CSR to implement the
disclosure and submission requirements of the Holding Foreign Companies
Accountable Act (``HFCA Act''). The final amendments apply to
registrants that the Securities and Exchange Commission
(``Commission'') identifies as having filed an annual report with an
audit report issued by a registered public accounting firm that is
located in a foreign jurisdiction and that the Public Company
Accounting Oversight Board (``PCAOB'') is unable to inspect or
investigate completely because of a position taken by an authority in
that jurisdiction. Consistent with the HFCA Act, the amendments require
the submission of documentation to the Commission establishing that
such a registrant is not owned or controlled by a governmental entity
in that foreign jurisdiction and also require disclosure in a foreign
issuer's annual report regarding the audit arrangements of, and
governmental influence on, such registrants.
DATES: The amendments are effective on January 10, 2022, except for the
addition of Sec. 232.405(c)(1)(iii)(C), which is effective from
January 10, 2022, until July 1, 2023.
FOR FURTHER INFORMATION CONTACT: Luna Bloom, Office Chief, at (202)
551-3430, in the Office of Rulemaking, Division of Corporation Finance;
Theodore Venuti, Assistant Director, at (202) 551-5658, in the Office
of Market Supervision, Division of Trading and Markets; or Blair
Burnett, Senior Counsel, at (202) 551-6792, in the Investment Company
Regulation Office, Division of Investment Management; 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.
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Commission reference CFR citation (17 CFR)
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Regulation S-T:
Rule 405............................................... Sec. 232.405.
Securities Exchange Act of 1934 (Exchange Act):\1\
Form 20-F.............................................. Sec. 249.220f.
Form 40-F.............................................. Sec. 249.240f.
Form 10-K.............................................. Sec. 249.310.
Exchange Act and Investment Company Act of 1940 (Investment
Company Act):\2\
Form N-CSR............................................. Sec. Sec. 249.331 and 274.128.
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Table of Contents
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\1\ 15 U.S.C. 78a et seq.
\2\ 15 U.S.C. 80a-1 et seq.
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I. Introduction
II. Discussion of Amendments
A. Documentation Submission Requirements
1. Interim Final Amendments
2. Comments
3. Final Amendments
B. Disclosure Requirements
1. Interim Final Amendments
2. Comments
3. Final Amendments
C. Inline XBRL Tagging
D. Timing Issues
E. Determination of Commission-Identified Issuer
F. Process for Trading Prohibition
1. HFCA Act Trading Prohibitions
2. Process for Imposing a HFCA Act Trading Prohibition
3. Process for Terminating Trading Prohibitions; Required
Certification
G. Amendment to the Delegations of Authority of the Commission
III. Procedural and Other Matters
IV. Economic Analysis
A. Introduction and Broad Economic Considerations
B. Baseline
1. Regulatory Baseline
2. Affected Parties
C. Economic Effects
1. Benefits and Costs of HFCA Act Disclosure Requirements
2. Benefits and Costs of HFCA Act Submission Requirement
3. Impact on Efficiency, Competition, and Capital Formation
V. Paperwork Reduction Act
A. Background
B. Summary of the Amendments
C. Burden and Cost Estimates Related to the Amendments
VI. Statutory Authority
I. Introduction
On March 18, 2021,\3\ the Commission adopted interim final
amendments to Form 10-K, Form 20-F, Form 40-F, and Form N-CSR to
implement the disclosure and submission requirements of Sections 2 and
3 of the HFCA Act,\4\ which became law on December 18, 2020. Section 2
of the HFCA Act amended Section 104 of the Sarbanes-Oxley Act of 2002
(``Sarbanes-Oxley Act'') \5\ by adding Section 104(i) to the Sarbanes-
Oxley Act. Section 104(i)(2) of
[[Page 70028]]
the Sarbanes-Oxley Act requires the Commission to identify each
``covered issuer'' \6\ that has retained a registered public accounting
firm \7\ to issue an audit report \8\ where that registered public
accounting firm has a branch or office \9\ that:
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\3\ See Holding Foreign Companies Accountable Act Disclosure,
Release No. 34-91364 (Mar. 18, 2021) [86 FR 17528 (Apr. 5, 2021)]
(``Interim Final Release'').
\4\ Public Law 116-222, 134 Stat. 1063 (Dec. 18, 2020).
\5\ 15 U.S.C. 7214 (as amended by Pub. L. 116-222).
\6\ See Section 104(i)(1)(A) of the Sarbanes-Oxley Act (defining
a ``covered issuer'' as an issuer that is required to file reports
under Section 13 (15 U.S.C. 78m) or Section 15(d) (15 U.S.C. 78o(d))
of the Exchange Act). In this release, we refer to issuers filing
Exchange Act reports as ``registrants.'' We use the term ``issuers''
when referring to the HFCA Act, but refer to ``registrants'' when
discussing the forms and form requirements.
\7\ We use the terms ``registered public accounting firm'' and
``auditor'' interchangeably to mean public accounting firms that,
among other things, prepare accountant's reports on U.S. public
companies and are required to register with the PCAOB. The term
``accountant's report'' is defined in 17 CFR 210.1-02(a)(1) (Rule 1-
02(a)(1) of Regulation S-X), with regard to financial statements, as
a document in which an independent public or certified public
accountant indicates the scope of the audit (or examination) that
the accountant has made and sets forth that accountant's opinion
regarding the financial statements taken as a whole, or an assertion
to the effect that an overall opinion cannot be expressed.
\8\ The HFCA Act uses the term ``audit report.'' As noted above,
see supra note 7, for the purposes of this release and the final
amendments, the term ``audit report'' has the same meaning as
``accountants' report'' in Rule 1-02(a)(1) of Regulation S-X.
\9\ Where a branch or office of an international firm network is
a separate legal entity from the U.S.-based or international firm
network, and that branch or office signs the audit report in its own
name, the Commission will look to the PCAOB determination for that
branch or office and not apply that determination to the U.S.-based
or other branches or offices of that firm network that are not based
in the PCAOB-identified foreign jurisdiction.
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<bullet> Is located in a foreign jurisdiction; and
<bullet> The PCAOB has determined that it is unable to inspect or
investigate completely because of a position taken by an authority in
the foreign jurisdiction.\10\
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\10\ On September 22, 2021, the PCAOB adopted PCAOB Rule 6100,
Board Determinations Under the Holding Foreign Companies Accountable
Act, which was approved by the Commission on November 4, 2021. See
Public Company Accounting Oversight Board; Order Granting Approval
of Proposed Rule Governing Board Determinations Under the Holding
Foreign Companies Accountable Act, Release No. 34-93527 (Nov. 4,
2021) [86 FR 62581 (Nov. 10, 2021]. The PCAOB Rule 6100 establishes
a framework for the PCAOB to make its determinations required by the
HFCA Act. Specifically, PCAOB Rule 6100 establishes the manner of
the PCAOB's determinations; the factors the PCAOB will evaluate and
the documents and information it will consider when assessing
whether a determination is warranted; the form, public availability,
effective date, and duration of such determinations; and the process
by which the PCAOB will reaffirm, modify, or vacate any such
determinations. In this release, we refer to a registered public
accounting firm that the PCAOB has determined that it is unable to
inspect or investigate completely because of a position taken by an
authority in the foreign jurisdiction as a ``PCAOB-Identified
Firm.''
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Once identified, Section 104(i)(2)(B) of the Sarbanes-Oxley Act
requires these covered issuers, which we refer to as ``Commission-
Identified Issuers'' in this release, to submit documentation to the
Commission establishing that they are not owned or controlled by a
governmental entity in that foreign jurisdiction.\11\ Additionally,
Section 3 of the HFCA Act lists additional disclosure requirements for
Commission-Identified Issuers that are ``foreign issuers'' \12\
(``Commission-Identified Foreign Issuers'').
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\11\ In addition to this submission requirement, pursuant to
Section 104(i)(3) of the Sarbanes-Oxley Act, as added by Section 2
of the HFCA Act, if an issuer is a Commission-Identified Issuer for
three consecutive years, the Commission must prohibit the securities
of the issuer from being traded on a national securities exchange or
through any other method that is within the jurisdiction of the
Commission to regulate, including through ``over-the-counter''
trading. 15 U.S.C. 7214(i)(3).
\12\ See 17 CFR 240.3b-4 (``Exchange Act Rule 3b-4''). Under
Exchange Act Rule 3b-4, the term ``foreign issuer'' means any issuer
that is a foreign government, a national of any foreign country, or
a corporation or other organization incorporated or organized under
the laws of any foreign country.
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We received a number of comment letters in response to the interim
final amendments. While several commenters generally supported
them,\13\ some provided specific suggestions on how to improve them or
otherwise implement the HFCA Act,\14\ and others opposed \15\ the
interim final amendments. Generally, commenters supporting the interim
final amendments stated that the amendments effectively provided for
timely implementation of the HFCA Act \16\ and also informed investors
about the level of ownership and control the Chinese Government has in
listed companies.\17\ Additionally, commenters supporting the interim
final amendments asserted that they agreed with the objective of the
HFCA Act and were concerned about the lack of transparency into Chinese
companies.\18\
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\13\ See letters from American Securities Association (May 5,
2021) (``ASA''), Council of Institutional Investors (May 5, 2021)
(``CII''), U.S. Chamber of Commerce (May 21, 2021) (``Chamber''),
United States Senator Dan Sullivan et al. (Aug. 9, 2021) (``Sen.
Sullivan et al.''), and United States Senator John Kennedy (Apr. 28,
2021) (``Sen. Kennedy'').
\14\ See letters from ICI Global (May 5, 2021) (``ICI''),
Jessica Kelly (Apr. 30, 2021) (``Kelly''), Professor Curtis J.
Milhaupt and Professor Lauren Yu-Hsin Lin (Apr. 5, 2021) (``Profs.
Milhaupt and Lin''), New York Stock Exchange LLC (May 12, 2021)
(``NYSE''), and Professor Emmanuel T. De George et al. (May 4, 2021)
(``U.S. Acctg. Academics'').
\15\ See letters from Blank Rome LLP (May 5, 2021) (``Blank
Rome''); China Petroleum & Chemical Corporation (Apr. 30, 2021)
(``China Petroleum''); China Southern Airlines Company Limited (Apr.
30, 2021) (``China Southern''); Professor Jie et al. (May 3, 2021)
(``Chinese Legal Academics''); Shanshan Xu (May 2, 2021) (``Xu'');
and Yum China Holdings, Inc. (May 4, 2021) (``Yum'').
\16\ See, e.g., letter from ICI.
\17\ See, e.g., letter from ASA.
\18\ See, e.g., letter from Chamber.
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On the other hand, commenters opposing the amendments stated that
the amendments were repetitive of disclosure that is already provided
and would result in unnecessary compliance costs,\19\ were unfair to
Chinese registrants,\20\ may bring adverse effects to the interests of
global investors in Commission-Identified Issuers,\21\ and did not
account for regulations in other jurisdictions.\22\ Some of these
commenters also argued that any conflicts of relevant laws in different
jurisdictions that inhibit PCAOB inspection should be resolved through
the cooperation of regulators from the different jurisdictions.\23\
Many of these comments reflect general opposition to the design and
operation of the HFCA Act itself. Where commenters addressed aspects of
the statute that Congress left to the Commission to implement, we have
responded to those comments below, in our discussion of the final
amendments.
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\19\ See letter from China Petroleum.
\20\ See letters from Chinese Legal Academics and China
Petroleum.
\21\ See letters from Blank Rome, Chinese Legal Academics, China
Southern, and Yum.
\22\ See letters from China Southern and Xu.
\23\ See letters from Blank Rome, Chinese Legal Academics, China
Southern, China Petroleum, and Xu.
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II. Discussion of Amendments
A. Documentation Submission Requirements
1. Interim Final Amendments
As discussed above, Section 2 of the HFCA Act amended Section
104(i)(2) of the Sarbanes-Oxley Act to require any Commission-
Identified Issuer to submit to the Commission documentation
establishing that the issuer is not owned or controlled by a
governmental entity in the relevant foreign jurisdiction.\24\ The
Commission amended Form 10-K, Form 20-F, Form 40-F, and Form N-CSR to
implement this provision. The submission requirement applies to all
Commission-Identified Issuers. The interim final amendments required
this documentation to be submitted electronically to the Commission on
a supplemental basis \25\ through the Electronic Data Gathering,
Analysis, and Retrieval (``EDGAR'') system on or
[[Page 70029]]
before the due date of the relevant annual report form.
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\24\ See Section 104(i)(2)(A) of the Sarbanes-Oxley Act. The
interim final amendments met the Section 104(i)(4) of the Sarbanes-
Oxley Act mandate that the Commission adopt rules establishing the
manner and form in which such submissions will be made no later than
90 days after enactment.
\25\ For purposes of the interim final amendments, use of the
term ``supplemental'' did not have the meaning of ``supplemental
information'' in 17 CFR 240.12b-4. This is true for the final
amendments we are adopting in this release as well.
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Although the interim final amendments prescribed the timing and
means by which such submissions were made, neither they nor the HFCA
Act specified the particular types of documentation that could or
should be submitted for this purpose. Moreover, in the Interim Final
Release, the Commission recognized that available documentation could
vary depending upon the organizational structure and other factors
specific to the registrant. Thus, registrants had flexibility under the
interim final amendments to determine how best to satisfy this
requirement.
2. Comments
One commenter recommended that registrants make the submission of
documentation establishing that the issuer is not owned or controlled
by a governmental entity in the foreign jurisdiction of the PCAOB-
Identified Firm in the form of a certification, but did not support
requiring the submission to be filed in a Form 8-K because it should
not be classified as a ``material event'' and did not support requiring
disclosure that a registrant is a Commission Identified issuer under
Form 8-K.\26\ This commenter suggested that making the submission
publicly available or filed as an exhibit would exceed the actions
authorized by the HFCA Act and indicated that registrants may wish to
seek confidential treatment for some or all of the submission. The
commenter also suggested that we establish a universal due date for the
submission requirement that is later than the due date for the annual
report to provide registrants additional time to prepare the submission
and reduce the costs of compliance, and that we should not make the
determinations of Commission-Identified Issuers more often than
annually.
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\26\ See letter from Yum.
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Additionally, the commenter recommended that a registrant retain
flexibility over the type of documentation a Commission-Identified
Issuer must submit to establish that it is not owned or controlled by a
governmental entity in the foreign jurisdiction based on its facts and
circumstances, but indicated that publication of non-exclusive methods
to satisfy the requirement would be valuable. This commenter suggested
potential non-exclusive methods to show there is no ownership or
control, such as there has been no Schedule 13D or 13G filing by a
government related entity in the foreign jurisdiction, there are no
material contracts with a foreign governmental party, or there is no
foreign government representative on the board.
Another commenter recommended additional guidance on the meaning of
``owned or controlled.'' \27\ The commenter suggested that the
amendments use the term ``significant influence'' under U.S. Generally
Accepted Accounting Principles (``U.S. GAAP'') and incorporate specific
examples including: (1) Where a government entity or affiliate has 20
percent or greater ownership or voting interest; (2) existence and
effect of potential voting rights that are currently exercisable or
convertible; (3) when an entity is represented on the board of
directors or equivalent governing body of the investee entity; and (4)
an entity's participation in policy-making processes, including
participation in decisions about dividends or other distributions.
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\27\ See letter from U.S. Acctg. Academics.
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3. Final Amendments
We are finalizing the interim final amendments with respect to the
submission requirements without modification. The amendments require
any Commission-Identified Issuer to submit to the Commission through
EDGAR,\28\ on or before the due date of the relevant annual report
form, documentation establishing that the issuer is not owned or
controlled by a governmental entity in the foreign jurisdiction of the
PCAOB-Identified Firm. This submission will be made publicly available
on EDGAR, which we believe is consistent with the HFCA Act given its
focus on transparency.\29\
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\28\ The final amendments do not specify the manner in which a
registrant must submit the required documentation on EDGAR. A
registrant could submit the documentation with its annual report; on
Forms 8-K or 6-K, as applicable; or using another appropriate
method.
\29\ See letter from Sen. Kennedy (stating that the purpose of
the legislation ``is to make relevant information about publicly
traded firms explicit and easily accessible to investors'').
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Additionally, the final amendments continue to permit Commission-
Identified Issuers to determine the appropriate documentation to submit
in response to the requirement, based on their organizational structure
and other registrant-specific factors. We decline to provide an
exclusive or non-exclusive list of what documentation may demonstrate
that the registrant is not owned or controlled by the relevant
governmental entity. We believe that such a list may be too limiting or
become the de facto means of satisfying the requirement. We believe
that Commission-Identified Issuers should instead make a determination
of what documentation meets the requirement for their particular
company. We also believe that not prescribing the specific
documentation Commission-Identified Issuers must submit will limit
compliance costs and could result in more relevant information being
provided to investors.
Moreover, although the terms are not defined in the statute, we
believe that the meaning of the terms ``owned or controlled,''
``owned,'' and ``controlling financial interest'' in the HFCA Act
reference a person's or governmental entity's ability to ``control''
the registrant as that term is used in the Exchange Act and the
Exchange Act rules.
One commenter suggested that the amendments use the term
``significant influence'' under U.S. GAAP and incorporate a specified
list of examples. We note, however, that the HFCA Act refers to the
Exchange Act and the Commission's Exchange Act rules. Therefore, we
believe the terms ``owned or controlled,'' ``owned,'' and ``controlling
financial interest'' used in the HFCA Act are reasonably read to have
the same meaning as the term ``control'' as used in the Exchange Act
and the Exchange Act rules. Moreover, registrants should generally
understand the concept of ``control'' and so incorporating the same
meaning will result in consistent application of the concept across
different regulatory contexts.
B. Disclosure Requirements
1. Interim Final Amendments
Section 3 of the HFCA Act requires a Commission-Identified Foreign
Issuer to provide the following additional disclosures in its annual
report for the year that the Commission so identifies the issuer: \30\
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\30\ The HFCA Act requires these disclosures in the issuer's
Form 10-K, Form 20-F, or a form that is the equivalent of, or
substantially similar to, these forms. The disclosures required by
Section 3 of the HFCA Act are also required in transition reports
filed on Forms 10-K and in transition reports on Form 20-F that
include audited financial statements. The disclosures should address
the transition period as if it were a fiscal year.
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<bullet> That, during the period covered by the form, the PCAOB-
Identified Firm that has prepared an audit report for the issuer; \31\
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\31\ The registered public accounting firm referenced in the
statute means a PCAOB-Identified Firm. See supra notes 7 through 10.
The interim final amendments included slightly different terms than
those in the statutory language to clarify this and other points.
Specifically, the interim final amendments required a Commission-
Identified Foreign Issuer to disclose that, for the immediately
preceding annual financial statement period, a registered public
accounting firm that the PCAOB was unable to inspect or investigate
completely, because of a position taken by an authority in the
foreign jurisdiction, issued an audit report for the registrant. For
the same reasons, the final amendments include the same terms used
in the interim final amendments for clarification as well.
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[[Page 70030]]
<bullet> The percentage of the shares of the issuer owned by
governmental entities in the foreign jurisdiction in which the issuer
is incorporated or otherwise organized;
<bullet> Whether governmental entities in the applicable foreign
jurisdiction with respect to that registered public accounting firm
have a controlling financial interest with respect to the issuer;
<bullet> The name of each official of the Chinese Communist Party
(``CCP'') who is a member of the board of directors of the issuer or
the operating entity with respect to the issuer; and
<bullet> Whether the articles of incorporation of the issuer (or
equivalent organizing document) contains any charter of the CCP,
including the text of any such charter.
Although Section 3 of the HFCA Act does not mandate specific rule
or form changes, the Commission stated its belief in the Interim Final
Release that amending Commission forms to include the new disclosure
requirements will help registrants comply with the HFCA Act. The
Commission therefore amended Form 10-K, Form 20-F, Form 40-F,\32\ and
Form N-CSR \33\ to reflect the disclosure requirements in Section 3 of
the HFCA Act.
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\32\ As we noted in the Interim Final Release, in reviewing the
Commission's forms, we determined that Form 40-F is an equivalent or
substantially similar form filed by foreign issuers. The Form 40-F
is a form that may be used by Canadian issuers that seek to offer
their securities in the United States and is used by those issuers
for annual reports filed under Section 13(a) or Section 15(d) of the
Exchange Act. As such, even though the form is not expressly named
in the HFCA Act, its use by issuers for annual reports filed under
Section 13(a) and Section 15(d) establishes the form as equivalent
or substantially similar to the Form 10-K and Form 20-F.
\33\ Form N-CSR is an annual reporting form used by registered
investment companies that are affected by the HFCA Act to file their
audited financial statements with the Commission. Although Form N-
CSR is not specifically identified in the HFCA Act, as we indicated
in the Interim Final Release, its use by these registered investment
companies for annual reports filed under Section 13(a) and Section
15(d) establishes the form as equivalent or substantially similar to
the Form 10-K and Form 20-F.
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The interim final amendments required a registrant to provide the
disclosure for each year in which the registrant is a Commission-
Identified Foreign Issuer. Because the period covered by the forms
looks back at the prior year, a Commission-Identified Foreign Issuer
that was identified in the prior year would have been required to
provide the HFCA Act Section 3 disclosure in its annual report for the
year in which it was identified, even if the registrant's subsequent
filing includes an audit report issued by a registered public
accounting firm that is a not a PCAOB Identified Firm (``non-PCAOB
Identified Firm'').
In addition, the interim final amendments added an instruction in
each of Form 20-F and Form 40-F to specify that the disclosure applies
to annual reports, and not to registration statements.\34\
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\34\ While Form 20-F and Form 40-F may be used as an initial
registration form, the Commission noted its belief in the Interim
Final Release that, in the context of Section 3 of the HFCA Act,
which linked the Form 20-F requirement to the Form 10-K requirement,
the disclosure was intended to be required when the form is used as
an annual report.
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2. Comments
Commenters in one letter stated that registrants typically are not
providing the detailed disclosures required by the HFCA Act and that
current risk factor disclosure tends to be insufficient for investors
to understand the consequences of non-inspection.\35\ Other commenters
in a separate letter recommended that the disclosure requirement
relating to identification of officials of the CCP that are members of
the board of directors is vague and may be unhelpful because the
concept of ``official of the CCP'' is susceptible to variation.\36\ The
commenter stated that virtually all executives of Chinese state-owned
enterprises are members of the CCP as are many executives of private
firms. This commenter further stated that very little information about
the degree of control exercised by the Chinese Government and CCP over
a registrant can be gleaned solely from disclosure of a reference to
the CCP charter in the company's articles of incorporation.
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\35\ See letter from U.S. Acctg. Academics.
\36\ See letter from Profs. Milhaupt and Lin.
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The commenter recommended requiring disclosure of each board
member's current and past positions and ranks within the Chinese
Government or CCP and whether the board member serves on the
registrant's internal Communist Party Committee (suggesting such
disclosure would provide material information about an individual's
links to the Chinese party-state and, by extension, the degree of
influence the party-state exerts over the company). Additionally, the
commenter recommended disclosure of all provisions in a registrant's
articles of incorporation that reference the CCP or the company's
internal Communist Party Committee.
This commenter stated that since many companies with Chinese
operations are listed in the United States using variable interest
entity (``VIE'') structures incorporated in jurisdictions outside of
China, the disclosure requirements could be read as not requiring
disclosure of Chinese Government ownership of shares of the registrant.
The commenter recommended that the amendments clarify that
``Commission-Identified Foreign Issuers are required to disclose the
percentage of shares of the registrant owned by governmental entities
in the foreign jurisdiction in which the registrant is incorporated or
otherwise organized, or in which the registrant's operating entity is
incorporated.''
Another commenter recommended that the Commission consider whether
risks are heightened for registrants using a VIE structure, given that
the structure could block meaningful disclosure of financial and
political information.\37\ A different commenter also noted concerns
with VIE and dual-class structures, which are complex and involve risks
that the commenter believes are not fully understood by many market
participants.\38\ This commenter recommended additional disclosure
guidance for VIE and dual-class stock structures for investors to more
fully understand the ownership or control of those registrants subject
to the HFCA Act.
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\37\ See letter from Kelly.
\38\ See letter from CII.
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Moreover, one commenter suggested that we consider distinguishing
registrants that list exclusively on a U.S. exchange from those that
have a secondary listing overseas, noting the Commission's assessment
in the Interim Final Release that 79 percent of registrants covered by
the HFCA Act disclose listing only on a U.S. national exchange.\39\
Another commenter suggested vigilance relating to firms that switch
between U.S. and foreign jurisdictions to reset the clock or switch to
auditors operating only nominally in the United States.\40\
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\39\ See letter from Kelly (citing Interim Final Release, supra
note 3, at 17538, n. 54).
\40\ See letter from U.S. Acctg. Academics.
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3. Final Amendments
We are finalizing the disclosure requirements for Commission-
Identified Foreign Issuers with a minor modification to the interim
final amendments. As with the interim final amendments, we are adopting
amendments to Form 10-K to revise Part II, Item 9C, Form 20-F to revise
Part II, Item 16I, Form 40-F to revise
[[Page 70031]]
paragraph B.18, and Form N-CSR to revise paragraph (j) of Item 4. The
amended language in these forms is the same as the language in the
interim final amendments, with the exception of the modification
pertaining to VIE structures described below, and requires a
Commission-Identified Foreign Issuer to provide the disclosures
discussed above that are required by the HFCA Act.\41\
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\41\ See supra Section II.B.1.
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We do not believe it is necessary to explain further what is meant
by ``official of the CCP'' or require additional disclosures relating
to this matter at this time. We believe the term is clear from the HFCA
Act and our amendments. Moreover, we are not adopting additional
disclosure requirements suggested by some commenters, as they would
exceed the HFCA Act's requirements and are outside the scope of this
rulemaking.
We note commenters' concerns that the interim final amendments
could be interpreted to mean that a Commission-Identified Foreign
Issuer listed in the United States using VIE or similar corporate
structures that is incorporated or otherwise organized in one
jurisdiction, but that has a consolidated operating company
incorporated or otherwise organized in another jurisdiction, may not be
required to disclose government ownership of shares of the operating
company.\42\ That was not the intent of the interim final amendments,
and we do not believe this is consistent with the intent of the HFCA
Act. Therefore, we believe that a registrant should provide the
required disclosure associated with a consolidated operating company
through a VIE structure or other similar structures. Also, we do not
believe that a registrant should be able to avoid the HFCA Act's
requirements by using a VIE structure or other similar structures.
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\42\ See letters from CII, Kelly, and Profs. Milhaupt and Lin.
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Therefore, the final amendments modify the interim final amendments
to make clear that the registrant must, in addition to providing the
required disclosures for the Commission-Identified Foreign Issuer, look
through a VIE or any structure that results in additional foreign
entities being consolidated in the financial statements of the
registrant and provide the required disclosures about any consolidated
operating company or companies in the relevant jurisdiction. Thus, the
amended forms state that any Commission-Identified Foreign Issuer that
uses a VIE or any structure that results in additional foreign entities
being consolidated in the financial statements of the registrant must
provide the required disclosures for itself and its consolidated
foreign operating entities.
C. Inline XBRL Tagging
In the Interim Final Release, we sought comment on whether to
introduce structured data tagging requirements pertaining to the
auditor name and jurisdiction on the audit report signed by the
registered public accounting firm in the registrant's Form 10-K, Form
20-F, and Form 40-F. We suggested that such tagging would provide
machine-readable data directly from the registrant identifying the
audit firm retained by it, and may therefore facilitate the
Commission's determination of the registrants it should designate as
Commission-Identified Issuers. Two commenters recommended an eXtensible
Business Reporting Language (``XBRL'') structured tagging
requirement.\43\ One of these commenters recommended tagging the
auditor name, branch office, and PCAOB jurisdiction as listed on the
Form AP, and the other commenter suggested tagging the auditor's name
and jurisdiction as set forth on the audit report.\44\
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\43\ See letters from U.S. Acctg. Academics and CII.
\44\ See letter from U.S. Acctg. Academics.
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Consistent with these commenters' suggestions, the final amendments
include a new tagging requirement to facilitate the Commission's
accurate and efficient identification of Commission-Identified Issuers.
To implement this requirement, in December 2021, the Document Entity
and Information (``DEI'') taxonomy will be updated to include three
additional data elements, applicable to annual report filings on Forms
10-K, 20-F, and 40-F that are submitted with XBRL presentations.\45\
Those three data elements will identify the auditor (or auditors) who
have provided opinions related to the financial statements presented in
the registrant's annual report, the location where the auditor's report
has been issued, and the PCAOB ID Number(s) of the audit firm(s) or
branch(es) providing the opinion(s).
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\45\ We expect that the revised DEI Taxonomy will be published
as ``dei-2021q4.'' A draft of the taxonomies was published for
comment on September 1, 2021 at <a href="https://xbrl.sec.gov/dei/2021q4/">https://xbrl.sec.gov/dei/2021q4/</a>.
See DRAFT 20201Q4 and Draft 2022 SEC Taxonomies, available at
<a href="https://www.sec.gov/structureddata/announcement/osd-announcement-081621-draft-cef-and-vip-taxonomies-update">https://www.sec.gov/structureddata/announcement/osd-announcement-081621-draft-cef-and-vip-taxonomies-update</a>. See Also Release Notes
for CEF and DEI Taxonomies 2021Q4 DRAFT, U.S. Sec. Exch. & Comm'n
(Sept. 1, 2021), available at <a href="https://xbrl.sec.gov/doc/releasenotes-2021q4-draft.pdf">https://xbrl.sec.gov/doc/releasenotes-2021q4-draft.pdf</a>. We are not making similar updates to the DEI
taxonomy for Form N-CSR because the Commission currently collects on
Form N-CEN (referenced in 17 CFR 249.330) information regarding a
fund's auditor in a structured data format.
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When the updated DEI taxonomy is published, deployed to EDGAR, and
announced as part of the newly-adopted EDGAR Filer Manual for the
relevant release in December 2021, all registrants will be required to
use the updated taxonomy, or a subsequently adopted version of the
taxonomy, for any annual report filed for a period ended after December
15, 2021.
We are adding a new paragraph to Rule 405 of Regulation S-T to
clarify that registrants must use the new data elements. The paragraph
will remain part of Regulation S-T until the 2021 DEI taxonomy has been
removed from EDGAR in 2023. Because we are not adopting a change to the
underlying forms, for registrants that are filing their financial
statements using Inline XBRL, the final amendments leave placement of
the underlying tags within the annual report up to the registrant.\46\
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\46\ The new DEI tagged data elements, particularly the PCAOB ID
Number, are not new disclosure requirement themselves (e.g., not
changing the current form and content of the independent auditor's
report), but are necessary for EDGAR and the staff to process the
forms, akin to an EDGAR header data element. The data elements will
to assist the Commission and its staff in performing the required
identification activity required by the Act.
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D. Timing Issues
The HFCA Act was enacted on December 18, 2020 and provides for
identification of the issuers required to file reports under Section 13
or 15(d) of the Exchange Act during a year that begins ``after the date
of enactment'' of the HFCA Act. Given this statutory language, and in
response to some commenters,\47\ we reiterate that a registrant will
not be subject to a non-inspection year determination for any fiscal
year ending on or prior to December 18, 2020. Accordingly, the
Commission will identify registrants pursuant to the HFCA Act based on
the PCAOB's determination and on registrants' annual reports for fiscal
years beginning after December 18, 2020. The earliest that the
Commission could identify a Commission-Identified Issuer would be after
registrants file their annual reports for 2021 and identify the
accounting firm that audited their financial statements.
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\47\ See letters from ASA, Chamber, and NYSE.
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A registrant will be required to comply with the submission and
disclosure requirements in the annual report for each year in which it
was so identified. This means that if a registrant is identified as
being a Commission-Identified Issuer based on
[[Page 70032]]
its annual report filing made in 2022 for the fiscal year ended
December 31, 2021, the registrant will be required to comply with the
submission and, if applicable, the disclosure requirements in its
annual report filing covering the fiscal year ended December 31, 2022,
that the registrant is required to file in 2023.
E. Determination of Commission-Identified Issuer
In the Interim Final Release, the Commission stated that it will
provide appropriate notice once it has established the process by which
it will begin to identify registrants pursuant to the HFCA Act. In this
regard, the Commission acknowledged that a registrant will not be
required to comply with the submission or disclosure requirements until
the Commission identifies a registrant as having a non-inspection year.
The Commission also indicated that it was considering making the
determination of Commission-Identified Issuers on an annual basis based
on the audit report contained in a registrant's annual report filed
with the Commission for the most recently completed fiscal year
preceding the date of the Commission determination. Additionally, the
Commission stated that a registered public accounting firm is
``retained'' by a registrant, as that term is used in Section 104(i) of
the Sarbanes-Oxley Act, when the registered public accounting firm
signs the accountant's report on the registrant's consolidated
financial statements that is included in a registrant's Exchange Act
report. The Commission requested comment on whether it should publish a
list of Commission-Identified Issuers on its website or whether
Commission-Identified Issuers should be identified on EDGAR. Finally,
the Commission asked how it should address any potential errors in
identification relating to a registrant's status if the list is made
public and whether it should issue guidance or prescribe rules relating
to disclosure or procedures for identification of errors relating to a
registrant's status.
A few commenters suggested that the Commission should make the
Commission-Identified Issuer determination based on the registrant's
fiscal year end.\48\ One commenter stated that the Commission should
make determinations and provide notice to registrants as early as
possible after a registrant's filing of its annual report.\49\ Some
commenters recommended publishing the list of Commission-Identified
Issuers on the Commission's website,\50\ while one commenter
recommended providing the information on EDGAR for efficient and rapid
identification.\51\
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\48\ See letters from Chamber (recommending 30 or 45 days after
the filing deadline for the annual report), U.S. Acctg. Academics,
and Yum.
\49\ See letter from Yum.
\50\ See letters from ASA, Chamber, and U.S. Acctg. Academics.
\51\ See letter from CII.
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One commenter suggested that providing a list or identifying
Commission-Identified Issuers on EDGAR is unnecessary and doing so
would go beyond the statutory mandate.\52\ Some commenters indicated
that the Commission should notify directly any registrants that it has
determined to be Commission-Identified Issuers prior to publishing the
list, in light of the potential market impact on these issuers and to
ensure accuracy of such a list.\53\ Yet another commenter recommended
that the Commission provide guidance rather than prescribe rules
relating to disclosure or procedures to correct errors relating to the
Commission's inclusion of a registrant on its Commission-Identified
Issuer list to provide flexibility to the Commission and
registrants.\54\
---------------------------------------------------------------------------
\52\ See letter from Yum.
\53\ See letters from Chamber and Yum.
\54\ See letter from Yum.
---------------------------------------------------------------------------
One commenter noted potential discrepancies between the three
primary sources of public data that could be used to determine
Commission-Identified Issuers: (1) The PCAOB's published list of audit
reports in jurisdictions where authorities deny access, (2) the PCAOB's
Form AP database, and (3) registrants' annual reports filed on
EDGAR.\55\ According to the commenter, these potential discrepancies
raise a concern regarding the information on which the Commission would
base its determination. The commenter also argued that, in situations
with multiple audit reports in an annual report filing, the
``retained'' auditor should be ``the auditor who signs off on the
current (or more recent) fiscal-year financial statements.''
---------------------------------------------------------------------------
\55\ See letter from U.S. Acctg. Academics.
---------------------------------------------------------------------------
Based on our further consideration and the input of commenters, we
have determined to institute the following procedures for preparing and
publishing the Commission-Identified Issuer list. We agree with the
commenter who suggested that registrants should be identified as early
as possible after the filing of an annual report and on a rolling
basis.\56\ Accordingly, promptly after the filing of an annual report,
the Commission will evaluate, using Inline XBRL tagging or other
structured data, whether the annual report contains an audit report
signed by a PCAOB-Identified Firm.\57\
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\56\ See supra note 49.
\57\ In response to the commenter that raised concerns regarding
the potential discrepancies between primary sources of data from
which the Commission may generate its list, we note that we intend
to base a determination on whether a registrant is a Commission
Identified Issuer based on the audit report included in their annual
report filing. We do not believe that the determination should be
made based on Form AP filings because these are not filings made by
the registrant.
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We continue to believe that a registered public accounting firm is
``retained'' by a registrant, as that term is used in Section 104(i) of
the Sarbanes-Oxley Act, when the registered public accounting firm
signs the accountant's report on the registrant's consolidated
financial statements that is included in a registrant's Exchange Act
report. However, we are taking a different approach than the one
suggested by a commenter regarding instances where an annual report may
contain multiple audit reports. In situations where an annual report
for an issuer other than a registered investment company registrant
organized as a series company contains multiple accountant's reports or
involves more than one registered public accounting firm, only the
registered public accounting firm or firms that serve as ``principal
accountant'' within the meaning of 17 CFR 210.2-05 (Rule 2-05 of
Regulation S-X) and AS 1205: Part of the Audit Performed by Other
Independent Auditors will, upon signing the accountant's report on the
registrant's consolidated financial statements, be deemed ``retained''
for purposes of Section 104(i) of the Sarbanes-Oxley Act and the
Commission's determination of whether the registrant should be a
Commission Identified Issuer. For a registered investment company
registrant organized as a series company, each series will be deemed to
``retain'' the public accounting firm that signs the audit report for
the series.
Once a registrant has been identified as described above,\58\ the
Commission \59\ will ``provisionally identify'' such issuer as a
Commission-Identified Issuer on the Commission's website at
<a href="http://www.sec.gov/HFCAA">www.sec.gov/HFCAA</a>. The Commission website will clearly delineate
between provisional identifications and ``conclusive identifications,''
and
[[Page 70033]]
registrants will not be a Commission-Identified Issuer until a
conclusive determination has been made. For a period of 15 business
days \60\ after the provisional identification, a registrant may
contact the Commission by email \61\ if it believes it has been
incorrectly identified and may provide evidence supporting such claims.
The Commission will respond to the registrant by email with respect to
its analysis of such evidence and its determination. If the Commission
agrees with the registrant's analysis, the Commission will notify the
registrant and will remove the registrant from the provisional
identification list. On the other hand, if the Commission does not
agree that the registrant has been incorrectly identified, the
determination that the registrant is a Commission-Identified Issuer
will be conclusive. If the registrant does not contact the Commission
to dispute the provisional identification, the determination that the
registrant is a Commission-Identified Issuer will be conclusive 15
business days after the provisional identification.\62\
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\58\ See supra Section II.D.
\59\ As discussed below, see infra Section II.G, the Commission
is adopting 17 CFR 200.30-1(m) (new Rule 30-1(m)) that delegates
Commission authority to the Director of the Division of Corporation
Finance to identify a registrant as a Commission-Identified Issuer.
\60\ The term ``business day'' means any day, other than
Saturday, Sunday, or a Federal holiday.
\61\ The email address will be provided on the <a href="http://www.sec.gov/HFCAA">www.sec.gov/HFCAA</a>
website when or before the provisional Commission-Identified Issuer
list is first populated.
\62\ In no event would the conclusive determination be made
before expiration of the 15-business-day period.
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We did not accept the suggestion of one commenter that the staff
contact each individual registrant that has been identified for
inclusion in the list because we believe website posting will provide
sufficient notice and we are concerned that such procedures could
further delay issuer identification, which would be to the detriment of
investors. Additionally, under the PCAOB Rule 6100, the PCAOB will
notify each PCAOB-Identified Firm of its determination and will also
publish the list on its website. As such, we do not believe provisional
identification of issuers on the Commission website will have a
significant additional market impact. Finally, we considered but
determined not to publish the list of Commission-Identified Issuers on
EDGAR. The EDGAR system is designed to retain filings by and about
individual registrants, rather than present collated information.
Consequently, the EDGAR system will not provide a mechanism to publish
a list on EDGAR that includes a number of registrants grouped together.
In addition to identifying Commission-Identified Issuers, the list
published on the Commission website will indicate the number of
consecutive years a Commission-Identified Issuer has been published on
the list and whether it has been subject to any prior trading
prohibitions under the HFCA Act. We believe it is appropriate to
include this information on the list because of the significance of the
trading prohibition requirements set forth in Section 104(i)(3) of the
Sarbanes-Oxley Act, as discussed in greater detail below.\63\
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\63\ See infra Section II.F.
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F. Process for Trading Prohibition
1. HFCA Act Trading Prohibitions
Section 104(i)(3) of the Sarbanes-Oxley Act requires the Commission
to prohibit the trading on a national securities exchange or through
any other method which is within the jurisdiction of the Commission to
regulate, including through over-the-counter trading, of the securities
of certain Commission-Identified Issuers (``trading prohibition'').
Section 104(i)(3)(A) of the Sarbanes-Oxley Act requires the Commission
to impose a trading prohibition on a registrant that is determined to
be a Commission-Identified Issuer for three consecutive years
(``initial trading prohibition''). Section 104(i)(3)(B) of the
Sarbanes-Oxley Act provides that the Commission shall end an initial
trading prohibition if the issuer certifies to the Commission that it
``has retained a registered public accounting firm that the [PCAOB] has
inspected'' to the satisfaction of the Commission.\64\ Furthermore, if
the Commission ends a trading prohibition under Section 104(i)(3)(B) of
the Sarbanes-Oxley Act and, thereafter, the registrant is again
determined to be a Commission-Identified Issuer, Section 104(i)(3)(C)
of the Sarbanes-Oxley Act requires the Commission to impose on such
issuer a trading prohibition for a minimum of five years (``subsequent
trading prohibition''). Section 104(i)(3)(D) of the Sarbanes-Oxley Act
provides that the Commission shall end a subsequent trading prohibition
if, after the end of the five-year period, the issuer certifies to the
Commission that it ``will retain'' a non-PCAOB-Identified Firm.\65\
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\64\ For purposes of terminating an initial trading prohibition
or subsequent trading prohibition, the Commission will terminate the
prohibition if the retained firm is a non-PCAOB-Identified Firm.
\65\ The five-year period begins on the date on which the
Commission imposes a subsequent trading prohibition. See Section
104(i)(3)(D) of the Sarbanes-Oxley Act.
---------------------------------------------------------------------------
In the Interim Final Release, the Commission specifically requested
comment on any considerations it should take into account while
determining how to best implement the trading prohibition requirements
set forth in Section 104(i)(3) of the Sarbanes-Oxley Act.\66\ A few
commenters supported the prompt implementation of the trading
prohibition.\67\ One of these commenters suggested that any deferral of
the commencement beyond 2024 would be inconsistent with the HFCA
Act.\68\
---------------------------------------------------------------------------
\66\ See Interim Final Release supra note 3, at 17533.
\67\ See letters from CII and Sen. Sullivan et al.
\68\ See letter from CII.
---------------------------------------------------------------------------
Other commenters noted the importance of clear rules relating to
the trading prohibition.\69\ One of these commenters highlighted the
importance of the Commission establishing a ``transparent and well
communicated'' process with clear information and adequate notice of
delisting to minimize disruption to investors in such entities.\70\
This commenter indicated that a ``transparent process that provides
clear information and adequate notice'' is necessary to provide market
participants with the information they need to make investment
decisions in a timely manner.
---------------------------------------------------------------------------
\69\ See letters from ICI and NYSE.
\70\ See letter from ICI.
---------------------------------------------------------------------------
Another commenter recommended that the precise date on which any
trading prohibition applies to an issuer's securities be made public by
the Commission as soon as possible and that we allow no flexibility or
ambiguity regarding the date on which the trading prohibition
applies.\71\ This commenter further recommended clarifying whether a
trading prohibition would include derivatives, such as options and
swaps based on the Commission-Identified Issuer's securities, and that
the Commission should clearly establish the impact of a trading
prohibition on any other securities market activities, such as
clearance and settlement and options exercise and assignment. Another
commenter stated that the Commission should take steps to prohibit the
trading of Commission-Identified Issuer's securities on margin to avoid
creating unnecessary risks that will disrupt markets and needlessly
harm small investors and prohibit the inclusion of Chinese companies in
passive index funds.\72\ On the other
[[Page 70034]]
hand, some commenters generally opposed the trading prohibition
required by the HFCA Act, arguing that the trading prohibition would
damage U.S. capital markets and harm U.S. investors.\73\
---------------------------------------------------------------------------
\71\ See letter from NYSE. This commenter recommended clarifying
whether a trading prohibition would commence: (i) On January 1 of
the third year following the Commission's determination that a
registrant is a Commission-Identified Issuer; or (ii) three years
after the date on which the Commission makes its determination that
a registrant is a Commission-Identified Issuer. See also infra note
82 and accompanying text.
\72\ See letter from ASA.
\73\ See letters from Blank Rome, China Southern, Chinese Legal
Academics, Kelly, and Yum.
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We agree with those commenters \74\ who stated that the prompt
implementation of the trading prohibition requirements of Section
104(i)(3) of the Sarbanes-Oxley Act is consistent with the HFCA
Act.\75\ In response to commenters opposed to implementing the trading
prohibitions,\76\ we point to the statutory mandate to impose trading
prohibitions under the HFCA Act.\77\ We agree with commenters \78\ that
a clear and transparent process for implementing and terminating a
trading prohibition, and advance notice of such process, will assist
market participants, minimize disruptions to the investors, and help to
maintain fair and orderly markets. Accordingly, we have determined that
it is appropriate to notify issuers, investors, and other market
participants of the procedures by which the Commission will impose an
initial or subsequent trading prohibition and terminate an initial or
subsequent trading prohibition, including how issuers may certify that
they have or will retain a non-PCAOB-Identified Firm pursuant to
Section 104(i)(3)(B) or (D) of the Sarbanes-Oxley Act.\79\
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\74\ See supra notes 67 to 68. As noted above, the earliest that
Commission could identify Commission-Identified Issuers would be
after companies file their annual reports for 2021 and identify the
accounting firm that audited their financial statements that, for
calendar year issuers, would be spring of 2022. As a result, the
earliest any trading prohibitions required by Section 104(i)(3) of
the Sarbanes-Oxley Act would apply would be in 2024, once any issuer
has been a Commission-Identified Issuer for three consecutive years
(2022, 2023, and 2024).
\75\ See, e.g., Sarbanes-Oxley Act, Sections 104(i)(1)(B)
(defining the term ``non-inspection year'' to mean a year ``(i)
during which the Commission identifies the covered issuer under
paragraph (2)(A) with respect to every report described in
subparagraph (A) filed by the covered issuer during that year; and
(ii) that begins after the date of enactment of this subsection'')
and 104(i)(3)(A) (requiring the Commission to impose a trading
prohibition if the Commission determines a covered issuer has three
consecutive non-inspection years).
\76\ See supra note 73.
\77\ See supra note 65.
\78\ See supra note 69.
\79\ We note that unlike other provisions of the HFCA Act, the
Commission is not required to undertake rulemaking to implement the
trading prohibitions of Section 104(i)(3) of the Sarbanes-Oxley Act.
See, e.g., Section 104(i)(4) of the Sarbanes-Oxley Act (requiring
the Commission to issue rules establishing the manner and form for
an issuer to submit documentation that it is not owned or controlled
by a government entity in a foreign jurisdiction).
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2. Process for Imposing a HFCA Act Trading Prohibition
As an initial matter, we have set forth above a clear and
transparent process for identifying Commission-Identified Issuers that
provides issuers with an opportunity to dispute their status as a
Commission-Identified Issuer.\80\ In addition, the Commission has
stated that it will publicly disclose on its website the list of
Commission-Identified Issuers, the number of consecutive years that an
issuer has been identified as a Commission-Identified Issuer, and the
application of any prior trading prohibition to an issuer.\81\ As a
result, investors and market participants should have sufficient notice
regarding whether a security that they hold or plan to hold is issued
by a Commission-Identified Issuer and of the risk that such security
may be subject to a trading prohibition in the future, including the
timeline for implementation of such trading prohibition if the issuer
remains a Commission-Identified Issuer. Furthermore, an initial trading
prohibition would not be imposed until an issuer has been a Commission-
Identified Issuer for three consecutive years. Thus, issuers will have
a period of three years to retain a non-PCAOB-Identified Firm before an
initial trading prohibition would be imposed, and investors would have
the same period of time in which to determine what action, if any, to
take regarding their investments in any Commission-Identified Issuer.
---------------------------------------------------------------------------
\80\ See supra Section II.E.
\81\ See id.
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Given the procedural protections afforded to issuers pursuant to
the Commission's approach provided herein and the fact that issuers and
the investing public will have had sufficient notice of an issuer's
status as a Commission-Identified Issuer over a period of three years,
we believe that it is appropriate and consistent with the protection of
investors for the Commission to impose an initial trading prohibition
and issue an order prohibiting the trading of an issuer's securities
\82\ on a national securities exchange and in the over-the-counter
market as soon as practicable after the issuer has been determined to
be a Commission-Identified Issuer for three consecutive years.\83\
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\82\ A commenter asked for clarification of the impact of a
trading prohibition on derivative securities. See letter from NYSE.
The Sarbanes-Oxley Act, as amended by the HFCA Act, states that the
Commission ``shall prohibit the securities of the covered issuer
from being traded . . . .'' Section 104(i)(3)(A) of the Sarbanes-
Oxley Act (emphasis added). Accordingly, to the extent the
derivative security is issued by the Commission-Identified Issuer
subject to the trading prohibition, that derivative security would
also be subject to the trading prohibition. For example, if a
Commission-Identified Issuer that is subject to a trading
prohibition has issued equity securities and warrants on such equity
securities, both the equity securities and the warrants would be
prohibited from trading. However, we understand that most exchange-
traded standardized equity options are issued by the Options
Clearing Corporation, rather than the issuer of the underlying
equity. See, e.g., Financial Industry Regulatory Authority Rule
2360(a)(32) (defining ``standardized equity option''). As another
example, we understand that security-based swaps are generally
entered into bilaterally between security-based swap dealers and/or
eligible contract participants and are not issued by the issuer of
the underlying equity securities. See Treatment of Certain
Communications Involving Security-Based Swaps That May Be Purchased
Only by Eligible Contract Participants, Release No. 33-10450 (Jan.
5, 2018) [83 FR 2046, 2051 n.60 (Jan. 16, 2018)] However, we further
note that the imposition of a trading prohibition with respect to
the underlying security of a derivative may itself have an impact on
the derivative security, apart from the requirements of the
Sarbanes-Oxley Act. And while this commenter requested the
Commission to establish the impact of the trading prohibitions on
any other securities market activities, such as clearance and
settlement and options exercise and assignment, we note that there
are already rules and processes in place in the securities markets
to address when an equity security is subject to a trading halt, and
those processes would generally apply with respect to a trading
prohibition the same as they would with respect to any other trading
halt. See, e.g., Chicago Board Options Exchange Rules 4.4
(Withdrawal of Approval of Underlying Securities) and 502 (Trading
Halts); Options Clearing Corporation Information Memo #30049 (Review
of Trading Halt Processing).
\83\ Those interested in providing feedback or discussing issues
that may arise as a result of an initial trading prohibition or a
subsequent trading prohibition may contact the Commission at the
email address that will be provided on the <a href="http://www.sec.gov/HFCAA">www.sec.gov/HFCAA</a>
website.
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An order issuing an initial trading prohibition would provide that
such trading prohibition will be effective on the fourth business day
after the order is published by the Commission.\84\ We believe that
providing a short delay in effectiveness of an initial trading
prohibition appropriately addresses concerns regarding the risk to
investors in U.S. markets of continued trading of Commission-Identified
Issuers while also providing appropriate notice to investors and other
market participants in order to make investment decisions. Moreover,
the Commission believes this procedure will inform investors when a
trading prohibition will be imposed and when it will become
effective.\85\
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\84\ For example, if an order issuing a trading prohibition is
published by the Commission on a Monday, the trading prohibition
would be effective starting at 12:00 a.m. (Washington DC time) the
Friday of that week.
\85\ While the HFCA Act does not address the delisting of
securities from a national securities exchange, the existing rules
of national securities exchanges that list issuers that are subject
to an initial trading prohibition are applicable to delisting of
such issuers' securities, as appropriate.
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[[Page 70035]]
Similarly, with respect to the imposition of a subsequent trading
prohibition, the Commission would issue an order prohibiting the
trading of an issuer's securities on a national securities exchange and
in the over-the-counter market as soon as practicable after the issuer
is again identified as a Commission-Identified Issuer. An order issuing
a subsequent trading prohibition would provide that the trading
prohibition will be effective on the fourth business day after the
order is published by the Commission.\86\ As with the process for
issuing an initial trading prohibition, we believe that this procedure
appropriately addresses concerns regarding the risk to investors in
U.S. markets of continued trading of Commission-Identified Issuers that
have previously been subject to an initial trading prohibition while
also providing appropriate notice to investors and other market
participants in order to make investment decisions. We believe that the
application of a prior trading prohibition, the ability of an issuer to
dispute its status as a Commission-Identified Issuer, the public
availability of the provisional list of Commission-Identified
Issuers,\87\ and an issuer's repeat use of a registered public
accounting firm that the PCAOB is unable to inspect or investigate
completely warrant the same short delay in the effectiveness of a
subsequent trading prohibition as in an initial trading prohibition. In
addition, we believe this procedure will inform investors when a
subsequent trading prohibition will be imposed and become
effective.\88\
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\86\ See supra note 84.
\87\ We note that a provisional list of issuers that may be
identified as Commission-Identified Issuers will be made publicly
available before it is finalized. Accordingly, investors and other
market participants would have access to the provisional list and
would therefore have notice that a subsequent trading prohibition
may be forthcoming. See supra Section II.E.
\88\ While the HFCA Act does not address the delisting of
securities from a national securities exchange, the existing rules
of national securities exchanges that list issuers that are subject
to a subsequent trading prohibition are applicable to delisting of
such issuers' securities, as appropriate.
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3. Process for Terminating Trading Prohibitions; Required Certification
Section 104(i)(3)(B) of the Sarbanes-Oxley Act provides that the
Commission shall terminate an initial trading prohibition if a
Commission-Identified Issuer certifies to the Commission that the
issuer has retained a registered public accounting firm that the PCAOB
has inspected to the satisfaction of the Commission.\89\ Section
104(i)(3)(D) of the Sarbanes-Oxley Act also provides that the
Commission shall terminate a subsequent trading prohibition if the
Commission-Identified Issuer certifies to the Commission that the
issuer will retain a registered public accounting firm that the PCAOB
is able to inspect under this section.\90\
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\89\ See Section 104(i)(3)(B) of the Sarbanes-Oxley Act.
\90\ See Section 104(i)(3)(D) of the Sarbanes-Oxley Act.
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As a general matter, the retention of a registered public
accounting firm does not guarantee that the newly engaged accounting
firm will be the firm that issues an audit report on the financial
statements of the issuer. Specifically, an issuer could retain more
than one audit firm or retain a non-PCAOB-Identified Firm and
subsequently replace the non-PCAOB-Identified Firm with a PCAOB-
Identified Firm. Thus, in order to achieve the result that the retained
non-PCAOB-Identified Firm is actually performing the audit, we believe
it appropriate and consistent with the protection of investors that,
for a Commission-Identified Issuer to certify consistent with Section
104(i)(3)(B) of the Sarbanes-Oxley Act, a Commission-Identified Issuer
must file financial statements that include an audit report signed by a
non-PCAOB-Identified Firm. Such a certification made by a Commission-
Identified Issuer subject to an initial trading prohibition will
terminate an initial trading prohibition.
Accordingly, a Commission-Identified Issuer subject to an initial
trading prohibition can make the required certification that it ``has
retained'' a non-PCAOB-Identified Firm to the satisfaction of the
Commission only if such certification is preceded or accompanied by the
filing of an annual report or an amended annual report with financial
statements that include an audit report on the consolidated financial
statements signed by a non-PCAOB-Identified Firm. We believe that
lifting the trading prohibition prior to the Commission-Identified
Issuer filing financial statements that include such an audit report
would place investors at risk by commencing trading in a security for
which the latest three annual reports filed with the Commission are
audited by a PCAOB-Identified Firm. In addition, lifting the trading
prohibition prior to the issuer filing financial statements that
include an audit report on the consolidated financial statements signed
by a non-PCAOB-Identified Firm could place investors at risk by
commencing trading in a security that could potentially become subject
to a subsequent trading prohibition lasting a minimum of five years if
the issuer does in fact use a PCAOB-Identified Firm to perform its
audit for its next annual report. Therefore, we believe it would be
appropriate to terminate an initial trading prohibition only after
investors and regulators have access to financial statements that
include an audit report on the consolidated financial statements signed
by a non-PCAOB-Identified Firm.
Similarly, we believe that a Commission-Identified Issuer that is
subject to a subsequent trading prohibition should make at least the
same showing to end trading prohibition as a Commission-Identified
Issuer that is subject to an initial trading prohibition. Accordingly,
for a Commission-Identified Issuer to certify consistent with Section
104(i)(3)(D) of the Sarbanes-Oxley Act, a Commission-Identified Issuer
must file, either with or prior to its certification, an annual report
or amended annual report with financial statements that include an
audit report signed by a non-PCAOB-Identified Firm. Such a
certification made by a Commission-Identified Issuer subject to a
subsequent trading prohibition will terminate a subsequent trading
prohibition.\91\ We believe that the concerns described above with
respect to an initial trading prohibition are even greater with
Commission-Identified Issuers subject to a subsequent trading
prohibition as a result of a repeated reliance on a PCAOB-Identified
Firm. Further, an issuer subject to a subsequent trading prohibition
would have at least five years to retain a non-PCAOB-Identified Firm to
audit its financials before a subsequent trading prohibition could be
terminated by the Commission.
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\91\ The certification could be signed by any individual that is
duly authorized to execute and deliver such a certification on
behalf of the Commission-Identified Issuer.
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As described above, a Commission-Identified Issuer subject to an
initial or subsequent trading prohibition must certify that it has or
will retain a non-PCAOB-Identified Firm for the Commission to end a
trading prohibition,\92\ and such certification would be submitted at
the same time as, or after, the issuer files an annual or amended
annual report with financial statements that include an audit report
signed by a non-PCAOB-Identified Firm.\93\ Once the Commission receives
the certification and has verified that the issuer has in fact filed an
annual or
[[Page 70036]]
amended annual report with financial statements that include an audit
report signed by a non-PCAOB-Identified Firm, the Commission shall as
soon as practicable issue an order ending the initial or subsequent
trading prohibition, as the case may be. An order ending an initial or
subsequent trading prohibition will provide that the termination of the
trading prohibition will be effective the next business day after the
order is published by the Commission. We believe that once an issuer
has certified to the satisfaction of the Commission that it has
retained a non-PCAOB-Identified Firm, termination of the trading
prohibition should not be delayed.
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\92\ See Sections 104(i)(3)(B) and (D) of the Sarbanes-Oxley
Act. Section 104(i)(3)(D) of the Sarbanes-Oxley Act further provides
that, with respect to a subsequent trading prohibition, the issuer
may not submit such certification until after the end of the five-
year period.
\93\ Any certification should be submitted in accordance with
the EDGAR Filer Manual.
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G. Amendment to the Delegations of Authority of the Commission
The Commission is adopting new Rule 30-1(m) that delegates
Commission authority to the Director of the Division of Corporation
Finance to identify a registrant as a Commission-Identified Issuer.
This delegated authority is designed to conserve Commission resources
by permitting Commission staff to carry out the procedures described
herein in connection with the identification of Commission-Identified
Issuers. The Commission staff may nevertheless submit matters to the
Commission for consideration, as it deems appropriate.
III. Procedural and Other Matters
If any of the provisions of these rules, or the application thereof
to any person or circumstance, is held to be invalid, such invalidity
shall not affect other provisions or application of such provisions to
other persons or circumstances that can be given effect without the
invalid provision or application.
Pursuant to the Congressional Review Act, the Office of Information
and Regulatory Affairs has designated these rules as not a ``major
rule,'' as defined by 5 U.S.C. 804(2).
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. This requirement does not
apply, however, if the agency ``for good cause finds . . . that notice
and public procedure are impracticable, unnecessary, or contrary to the
public interest.'' Section 2 of the HFCA Act requires Commission
rulemaking within 90 days of the date of enactment in order to
``establish the manner and form in which a covered issuer shall make a
submission required under paragraph (2)(B).'' Furthermore, Section 3 of
the HFCA Act requires certain disclosure from issuers, and the
amendments to Form 10-K, Form 20-F, Form 40-F, and Form N-CSR clarify
issuers' obligations under the HFCA Act. Because the interim final
amendments conformed the specified forms to the requirements of a newly
enacted statute and in light of the 90-day rulemaking directive in
Section 2 of the HFCA Act, the Commission found in the Interim Final
Release that notice and public comment were impracticable and
unnecessary.\94\ The revisions to the interim final amendments being
adopted in this release are in response to feedback received on
requests for comment in the Interim Final Release.
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\94\ Accordingly, the interim final amendments did not require a
final regulatory flexibility analysis under the Regulatory
Flexibility Act. See 5 U.S.C. 604(a) (requiring a final regulatory
flexibility analysis only for rules required by the APA or other law
to publish a general notice of proposed rulemaking). For the same
reason, these amendments do not require a final regulatory
flexibility analysis).
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IV. Economic Analysis
A. Introduction and Broad Economic Considerations
As discussed above, we are finalizing amendments to Form 10-K, Form
20-F, Form 40-F, and Form N-CSR that implemented the disclosure and
submission requirements of the HFCA Act. We are mindful of the costs
imposed by, and the benefits obtained from, our rules. In this section,
we analyze potential economic effects stemming from the amendments.\95\
We analyze these effects against a baseline that consists of the
current regulatory framework and current market practices.
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\95\ Exchange Act Section 3(f) requires the Commission, when
engaging in rulemaking where it is required to consider or determine
whether an action is necessary or appropriate in the public
interest, to consider, in addition to the protection of investors,
whether the action will promote efficiency, competition, and capital
formation. Further, Exchange Act Section 23(a)(2) requires the
Commission, when making rules under the Exchange Act, to consider
the impact that the rules would have on competition and prohibits
the Commission from adopting any rule that would impose a burden on
competition that is not necessary or appropriate in furtherance of
the purposes of the Exchange Act. Additionally, Section 2(c) of the
Investment Company Act requires us, when engaging in rulemaking that
requires us to consider or determine whether an action is consistent
with the public interest, to also consider, in addition to the
protection of investors, whether the action will promote efficiency,
competition, and capital formation. Although we are adopting
amendments to Form N-CSR to implement the HFCA Act as applied to
registered investment companies, based on recent Form N-CEN filings,
no registered investment company reported having retained a
registered public accounting firm located in a foreign jurisdiction
for the preparation of the company's financial statements. Based on
this data, and Commission staff experience, we estimate that no
registered investment companies will be subject to the requirements
of the interim final amendments upon the rule's adoption.
Accordingly, we do not expect any economic effects associated with
the amendment to Form N-CSR.
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We are finalizing the interim final amendments with a modification
to clarify that a Commission-Identified Foreign Issuer listed in the
United States using VIE or any structure that results in additional
foreign entities being consolidated in the financial statements of the
registrant, must provide the HFCA Act's required disclosures regarding
government ownership of shares of the operating company. We also are
adding a requirement for registrants to tag the name, jurisdiction, and
the PCAOB ID Number(s) of the audit firm(s) that sign the audit report
accompanying a registrant's Form 10-K, Form 20-F, and Form 40-F. In
this economic analysis, we discuss the economic effects arising from
the interim final amendments as finalized, including the modifications
discussion above. Where possible, we have attempted to quantify the
expected economic effects of the amendments. Some of the potential
economic effects are inherently difficult to quantify. In some
instances, we lack the information or data necessary to provide
reasonable estimates for the economic effects of the amendments. Where
we cannot quantify the relevant economic effects, we discuss them in
qualitative terms.
The new disclosure requirements will increase transparency about
the reliability of affected issuers' financial statements as well as
the characteristics of their ownership and control structures. High-
quality disclosures, including high-quality financial statements, are a
cornerstone of well-functioning capital markets.\96\ Such disclosures
reduce information asymmetries between investors and issuers, with
positive effects on price efficiency and capital allocation.\97\
Broadly speaking, academic research shows that increasing the quality
of financial reporting improves price efficiency and reduces an
issuer's cost of capital.\98\
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\96\ See, e.g., Christian Leuz & Peter Wysocki, The Economics of
Disclosure and Financial Reporting Regulation, 54 J. Acct. Research
525 (2016); and Anne Beyer, Daniel Cohen, Thomas Lys & Beverly
Walther, The Financial Reporting Environment: Review of the Recent
Literature, 50 J. Acct. Econ 296 (2010).
\97\ See, e.g., Douglas W. Diamond & Robert E. Verrecchia,
Disclosure, Liquidity, and the Cost of Capital, 46 J. FIN. 1325
(1991).
\98\ See, e.g., Stephen Brown & Stephen A. Hillegeist, How
Disclosure Quality Affects the Level of Information Asymmetry, 12
Rev. Account. Stud. 443 (2007) (showing how better disclosure
quality reduces information asymmetry); Nilabhra Bhattacharya,
Hemang Desai, & Kumar Venkataraman, Does Earnings Quality Affect
Information Asymmetry? Evidence from Trading Costs, 30 Cont.
Account. Res. 482 (2013) (showing that earnings quality reduces
information asymmetry); Partha Sengupta, Corporate Disclosure
Quality and the Cost of Debt, 73 Account. Rev. 459 (1998) (showing
that high disclosure quality reduces the cost of debt); Christine
Botosan, Disclosure Level and the Cost of Equity Capital, 72 Acc.
Rev. 323 (1997) (finding that disclosure quality reduces the cost of
equity for firms with low analyst coverage); Mark E. Evans,
Commitment and Cost of Equity Capital: An Examination of Timely
Balance Sheet Disclosure in Earnings Announcements, 33 Cont.
Account. Res. 1136 (2016) (finding that ``firms which consistently
disclose balance sheet detail in relatively timely earnings
announcements have lower costs of capital compared to other
firms''); For a survey of financial reporting research, see Anne
Beyer, Daniel A. Cohen, Thomas Z. Lys, & Beverly R. Walther, The
Financial Reporting Environment: Review of the Recent Literature, 50
J. Account. Econ. 296 (2010).
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[[Page 70037]]
Financial reporting quality is in part determined by audit quality.
According to some academic studies, PCAOB oversight has led to
improvements in audit quality and to increased investor confidence in
the quality of the audited financial statements.\99\ However, when the
PCAOB is unable to inspect some auditors there is a lack of
transparency with respect to the audit quality provided by such firms.
As a result, there may be uncertainty regarding the reliability of the
financial information of issuers audited by firms that are not
inspected, which can potentially lead to suboptimal investment
decisions by investors.
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\99\ See, e.g., Daniel Aobdia, The Impact of the PCAOB
Individual Engagement Inspection Process--Preliminary Evidence, 93
Account. Rev. 53 (2018) (concluding that ``both audit firms and
clients care about the PCAOB individual engagement inspection
process and, in several instances, gravitate toward the level set by
the Part I Finding bar''); Mark L. DeFond & Clive S. Lennox, Do
PCAOB Inspections Improve the Quality of Internal Control Audits?,
55 J. Account. Res. 591 (2017) (finding evidence consistent with
``PCAOB inspections improving the quality of internal control audits
by prompting auditors to remediate deficiencies in their audits of
internal controls''); Brandon Gipper, Christian Leuz, & Mark
Maffett, Public Oversight and Reporting Credibility: Evidence from
the PCAOB Audit Inspection Regime, 33 Rev. Financ. Stud. 4532
(concluding that ``consistent with an increase in reporting
credibility after the introduction of public audit oversight, we
find that capital market responses to earnings surprises increase
significantly'').
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In addition, academic literature provides evidence of varying types
of impact of ownership and control structures on firm value.\100\
Government ownership, in particular, can be related to both risks and
benefits for investors. Evidence in the literature highlights
inefficiencies and expropriation risks as a result of government
ownership or control, whereas other studies provide evidence of easier
access to financing.\101\ Effects from government ownership or control
on firm value may be further amplified when the regulatory environment
in the foreign jurisdiction is weak, and when there is heightened
political risk.\102\
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\100\ See, e.g., Andrei Shleifer & Robert Vishny, A Survey of
Corporate Governance, 52 J. Fin. 737 (1997) (discussing both the
theory and empirical evidence on the effect of large shareholders on
firm value).
\101\ See, e.g., Ginka Borisova, Veljko Fotak, Kateryna Holland
& William Megginson, Government Ownership and the Cost of Debt:
Evidence from Government Investments in Publicly Traded Firms, 118
J. Fin. Econ. 168 (2015) (showing that during times of firm-specific
or economy-wide distress, the dominant effect of state equity
ownership is a reduction in the cost of debt, consistent with an
implicit debt guarantee of government ownership); Gongmen Chen,
Michael Firth & Liping Xu, Does the Type of Ownership Control
Matter? Evidence from China's Listed Companies, 33 J. Bank. Finance
171 (2009) (finding evidence that the type of government ownership
affects value and performance).
\102\ See, e.g., Laura Liu, Haibing Shu & John Wei, The Impacts
of Political Uncertainty on Asset Prices: Evidence from the Bo
Scandal in China, 125 J. Fin. Econ. 286 (2017) (concluding that
political uncertainty is a priced risk as evidenced by stock price
reactions following the 2012 Bo Xilai political scandal in China;
the study shows amplified effects on prices for state-owned
enterprises and politically connected companies); Bryan Kelly, Lubos
Pastor & Pietro Veronesi, The Price of Political Uncertainty: Theory
and Evidence from the Option Market, 71 J. FIN. 2417 (2016) (finding
that options whose lives span political events tend to be more
expensive, and that such protection is more valuable in a weaker
economy and amid higher political uncertainty).
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The required disclosures and submissions will reduce uncertainty
about characteristics that may affect firm value and risk and therefore
could facilitate investors' capital allocation decisions. Some of the
information required to be disclosed under the amendments may be
otherwise available to investors through other sources or overlap with
existing mandated disclosures.\103\ In such cases, we expect the
required disclosures could nevertheless reduce search costs for
investors and potentially enhance investor protection. In addition, the
submission requirement will provide some reassurance to investors that
Commission-Identified Issuers that do not disclose any ownership or
control by governmental entities (in foreign jurisdictions that prevent
PCAOB inspections) are not, in fact, owned or controlled by such
entities.
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\103\ See infra Section IV.B.1.
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The amendments will impose compliance costs on issuers that may
vary based on characteristics of their audit arrangements and ownership
structure. Although these compliance costs, in and of themselves, may
not be significant for most firms, the costs may nonetheless cause
certain issuers to accelerate their response to other aspects of the
HFCA Act, such as switching audit firms or exiting the U.S. markets
altogether. Those effects are likely to be much more significant than
the comparatively limited benefits and costs associated with the
interim final amendments.
B. Baseline
1. Regulatory Baseline
The regulatory baseline for these amendments includes the interim
final amendments adopted on March 18, 2021, and the PCAOB Rule 6100,
Board Determinations Under the Holding Foreign Companies Accountable
Act, adopted the PCAOB on September 22, 2021 and approved by the
Commission on November 4, 2021.\104\
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\104\ See supra note 10.
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The disclosures and submissions required by the amendments will
provide the Commission, as well as market participants, with more
readily accessible and comparable information regarding a number of
Commission-Identified Issuers' characteristics, namely: (1) The extent
of ownership or control by a governmental entity in a jurisdiction
where the PCAOB is unable to inspect or investigate completely because
of a position taken by an authority in that jurisdiction, (2) the use
of a registered public accounting firm in preparation of an audit
report that the PCAOB is unable to fully inspect, (3) the presence and
identity of any official of the CCP who is a member of the board of
directors, and (4) the presence and specific text of any charter of the
CCP contained in the registrant's articles of incorporation (or
equivalent organizing document). We therefore analyze the extent to
which such requirements will change existing regulatory requirements or
the current practices of potentially affected registrants.
Compliance with the HFCA Act will require disclosures and
submissions pertaining to the ownership or control of a registrant by a
governmental entity in the foreign jurisdiction of the registered
public accounting firm that the PCAOB is unable to inspect or
investigate completely. In practice, many registrants already include
disclosures similar to the information required by the HFCA Act in the
portions of their respective periodic reports pertaining to registrant-
specific risks.\105\ Others provide detailed diagrams to illustrate
their ownership structure within their descriptions of business or
otherwise seek to inform readers of their VIE arrangements within the
financial statements included in
[[Page 70038]]
periodic disclosures.\106\ The levels of detail and specificity
associated with these disclosures vary, however, and the information
often is not easily comparable across filings given that similar
disclosures may not occur within the same item or section of the
report.\107\
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\105\ For example, some registrants may provide these
disclosures in response to 17 CFR 229.105 (Item 105 of Regulation S-
K) (requiring a registrant to disclose a discussion of the material
factors that make an investment in the registrant or offering
speculative or risky).
\106\ See Financial Accounting Standards Board Interpretation
No. 46, Consolidation of Variable Interest Entities.
\107\ See, e.g., Justin Hopkins, Mark H. Lang & Jianxin (Donny)
Zhao, The Rise of US-Listed VIEs from China: Balancing State Control
and Access to Foreign Capital, Darden Business School (Working Paper
No. 3119912), Kenan Institute of Private Enterprise Research Paper
No. 19-17 (2018), available at <a href="http://dx.doi.org/10.2139/ssrn.3119912">http://dx.doi.org/10.2139/ssrn.3119912</a> (finding that, Chinese firms disclose using a VIE
structure in 42 percent of reviewed year 2013 Forms 10-K, where
``some firms simply mention the VIE structure in passing, while
others explicitly disclose the legal risks of the VIE, documenting
which specific subsidiaries utilize the VIE and provide pro forma
balance sheets and income statements for these subsidiaries, as well
as summarizing the specific contracts including the parties and
terms''). See also, Paul Gillis& Michelle R. Lowry, Son of Enron:
Investors Weigh the Risks of Chinese variable Interest Entities, 26
J. Appl. Corp. Fin. 61 (2014).
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One notable exception to this variation in disclosures, however, is
the disclosure by registrants of the PCAOB's inability to conduct
inspections of their respective independent audit firms. We observe a
highly similar type and pattern of disclosure regarding the PCAOB's
inability to inspect those firms included in the majority of the
potential Commission-Identified Issuers' Item 3 (for Form 20-F filers)
and Item 1A (for Form 10-K filers) discussion of risk factors.\108\
Such disclosures are readily accessible using the keyword search
functionality on the Commission's EDGAR website.\109\ In addition,
similar identification of registrants whose independent auditors were
not fully inspected by the PCAOB due to limitations and restrictions
imposed by authorities in foreign jurisdictions has historically been
available via the PCAOB's dedicated ``Public Companies that are Audit
Clients of PCAOB-Registered Firms from Non-U.S. Jurisdictions where the
PCAOB is Denied Access to Conduct Inspections'' web page.\110\
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\108\ Staff conducted a review of annual report disclosures
using a combination of Intelligize searches and a manual review of
select filings of Forms 10-K and 20-F. Highly similar language
describing the potential risks associated with the PCAOB's inability
to conduct inspections appeared across at least 65% of annual
reports filed within the same year, including reviewed periods that
predate the initial introduction of the HFCA Act legislation in
2019. As no single audit firm currently serves more than, at
maximum, 20% of potential Commission-Identified Issuers, the
inclusion of standard disclosures across registrants does not appear
to be attributable to the practices of any individual audit firm.
See infra note 117 for a description of the sample identification
methodology.
\109\ Available at <a href="https://www.sec.gov/edgar/search/">https://www.sec.gov/edgar/search/</a>.
\110\ Available at <a href="https://pcaobus.org/oversight/international/denied-access-to-inspections">https://pcaobus.org/oversight/international/denied-access-to-inspections</a>.
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Under the amendments, Commission-Identified Foreign Issuers will
also be required to disclose the presence and identity of any official
of the CCP who is a member of its board of directors in addition to the
percentage of the shares of the issuer owned by governmental entities
in the foreign jurisdiction in which the issuer is incorporated or
otherwise organized and whether governmental entities in the applicable
foreign jurisdiction with respect to that registered public accounting
firm have a controlling financial interest with respect to the issuer.
At present, some of this information may be elicited by Form 10-K
disclosure requirements \111\ or Form 20-F disclosure
requirements.\112\ Because Form 10-K, Part III disclosures may be
incorporated by reference from the registrant's definitive proxy
statement if filed within 120 days of the related Form 10-K fiscal year
end, or alternatively filed as a Form 10-K amendment by the same 120
day deadline, such disclosures are not currently uniformly present in
the annual report filings of the potentially affected issuers.
Moreover, there are currently no requirements that such disclosures
must include the political party affiliation or party posts of those
responsible for registrants' management and oversight, including but
not limited to members of the board. Nor is there a requirement to
systematically disclose the identity and ownership stake of any person
or group of persons--including government entities--who directly or
indirectly acquire or have beneficial ownership of less than five
percent of a class of a Commission-Identified Issuer's securities.
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\111\ See 17 CFR 229.401 (Item 401 of Regulation S-K), 17 CFR
229.403 (Item 403 of Regulation S-K), and 17 CFR 229.404 (Item 404
of Regulation S-K), required under Items 10, 12 and 13 of Form 10-K.
Item 401 of Regulation S-K requires disclosure relating to the
identification of directors and a brief description of their
business experience. Item 403 of Regulation S-K requires disclosure
with respect to any person or group that beneficially owns more than
five percent of any class of the registrant's voting securities, as
well as ownership information of executive officers and directors of
the registrant. Item 404 of Regulation S-K requires disclosure of
transactions between the registrant and related persons, such as
officers, directors and significant shareholders.
\112\ See Items 6 and 7 of Form 20-F. Item 6 of Form 20-F
requires disclosure relating to the identification and share
ownership of directors and senior management. Item 7 of Form 20-F
requires disclosure with respect to beneficial owners of more than
five percent of any class of the registrant's voting securities,
disclosure with respect to related party transactions, as well as
disclosure of whether the company is directly or indirectly owned or
controlled by another corporation or foreign government and the
nature of that control.
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Finally, under the amendments, Commission-Identified Foreign
Issuers will be required to state whether the articles of incorporation
of the issuer (or equivalent organizing document) contains any charter
of the CCP, including the text of any such charter. While periodic
reporting requirements currently instruct registrants to include a
complete copy of the articles of incorporation and bylaws as an exhibit
to the annual report,\113\ there are no requirements to identify the
political or textual origins of any portion of a registrant's articles
of incorporation. In practice, given that a registrant may simply
indicate in its annual report exhibit index that such articles are
incorporated by reference,\114\ few filers include the full text of
such articles, bylaws, or charters in annual report filings after
initially doing so at the time of initial public offering (``IPO'')
registration. Similarly, amended or revised versions of the
registrant's articles of incorporation and bylaws are generally not
included in the annual report filing, but are incorporated by reference
as well. In these cases, locating the submission to which the
registrant's complete and most recent version of its articles of
incorporation are attached in their entirety requires a search and
review of the registrant's current reports (on Forms 8-K or 6-K).\115\
Therefore, under current regulatory requirements and in practice, the
majority of annual reports filed by potential Commission-Identified
Foreign Issuers do not include, either in part or in complete form, the
registrant's articles of incorporation, from which the reader might
assess the presence or absence of text from the charter of the CCP.
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\113\ See Item 19, Instruction 1 of Form 20-F and 17 CFR
229.601(b)(3)(i).
\114\ See 17 CFR 240.12b-23(c).
\115\ The requirement to submit a Form 6-K in such cases by
registrants that use Form 20-F to file annual reports depends upon
the current reporting requirements of the relevant foreign
jurisdiction. Because potential Commission-Identified Issuers
domiciled, incorporated, or organized in China are required by
Chapter 5 Article 27 of the Regulations of the People's Republic of
China on Administration of Company Registration to file a complete
copy of the revised articles within 30 days of such changes, a
similar requirement to promptly furnish a Form 6-K including the
complete revised articles of incorporation also applies. This
document may then be incorporated by reference in the registrant's
subsequent annual reports. Analogous requirements for registrants
using domestic forms are outlined in Form 8-K, Item 5.03.
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[[Page 70039]]
2. Affected Parties <SUP>116</SUP>
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\116\ As noted above, the amendments may accelerate responses to
other aspects of the HFCA Act, such as switching audit firms or
exiting the U.S. markets altogether. These responses could impact
parties beyond those identified below (e.g., audit firms). For
purposes of this economic analysis, we focus on those parties
affected by the interim final amendments.
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a. Registrants
Registrants subject to periodic reporting requirements under the
Exchange Act will not be affected by the amendments unless and until
they are Commission-Identified Issuers. Commission identification of
such issuers is in turn contingent upon initial identification of
affected registered public accounting firms that are retained by
registrants with periodic disclosure obligations. Based upon a review
of such registrants in calendar year 2020, we identified 273
registrants for whom future identification as a Commission-Identified
Issuer might occur, based on current facts and circumstances.\117\ Of
these potential Commission-Identified Issuers candidates, 18.2 percent
filed annual disclosures using Form 10-K while 78.2 percent are Form
20-F filers. No filings submitted by potential candidates were made
using Forms 40-F or N-CSR. Among filers, approximately 22 percent were
incorporated in the United States while 78 percent were incorporated in
foreign jurisdictions, including 4.8 percent who self-disclosed to be
state-owned enterprises. These registrants' securities either are
listed on a national exchange (88.7 percent), OTC-listed (9.9 percent),
or report no U.S. listing (1.5 percent).\118\ Of the 273 Commission-
Identified Issuers, five are listed in the Annex to Executive Order
14032 as issuers that are affiliated with the Chinese military.\119\
Additionally, a recent study found that 42 percent of US-listed Chinese
firms disclosed using a VIE structure in year 2013.\120\
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\117\ Analysis is based on staff review of data obtained from
the PCAOB (see supra note 110), Audit Analytics, manual review of
all annual reports filed by foreign issuers using Forms 20-F, 40-F,
or an amendment thereto in calendar year 2020, and review of
securities registered in calendar year 2020 by foreign issuers. This
analysis may potentially be viewed as an upper bound on the future
number of registrants that may be affected by the HFCA requirements
as clients of those firms previously identified by the PCAOB.
\118\ Using a more conservative approach that looked only to
registrants with at least one annual report filed after the
introduction of the HFCA Act, we further estimate that in calendar
year 2020, 194 registrants submitted an annual report (Form 10-K,
20-F, or an amendment) whose auditor was previously identified by
the PCAOB (see supra note 110) as a registered firm from a non-U.S.
jurisdiction where necessary access to conduct oversight was denied
due to a position taken by local authorities. Based on our
historical analysis of these registrants, 18 percent submitted
annual reports using a domestic form, while 82 percent and zero
percent submitted their annual reports via foreign filings Form 20-F
and Form 40-F, respectively. Based on the same population of
registrants, we estimate that approximately three percent of
potentially affected registrants disclosed their securities as
listed on two or more foreign exchanges, approximately nine percent
listed on only one foreign exchange, while approximately 79 percent
only disclosed listing on a U.S. national exchange. Of these
registrants, 13 (equal to six percent) self-identified in their 2020
disclosures as state-owned enterprises.
\119\ Executive Order 14032, titled ``Addressing the Threat From
Securities Investments That Finance Certain Companies of the
People's Republic of China,'' was signed by United States President
Joe Biden on June 3, 2021, and came into effect on August 2, 2021
[86 FR 30145, (June 7, 2021)]. It generally prohibits U.S. persons
from purchasing or selling securities of issuers identified as
Communist Chinese Military-Industrial Companies. The annex to the
Executive order includes a list of such companies as determined by
the US Treasury.
\120\ Justin Hopkins, Mark H. Lang & Jianxin (Donny) Zhao, The
Rise of US-Listed VIEs from China: Balancing State Control and
Access to Foreign Capital, Darden Business School Working Paper No.
3119912, Kenan Institute of Private Enterprise Research Paper No.
19-17 (2018), available at <a href="http://dx.doi.org/10.2139/ssrn.3119912">http://dx.doi.org/10.2139/ssrn.3119912</a>.
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b. Investors
The amendments may impact both current investors in affected
registrants as well as potential investors that may consider investing
in these registrants in the future. As mentioned above, at least some
of the information elicited by the required disclosures is likely to be
available already to investors through various existing channels, such
as vendor databases or various third-party reports, but at varying
costs. As such, we expect that the required disclosures are likely to
affect mostly retail investors who directly invest or consider
investing in affected registrants since it may be more costly for these
investors to obtain such information absent the required disclosures.
Institutional or other sophisticated investors may also be impacted by
the amendments; however, we expect that such impact might be limited
given their resources to obtain the required information from other
sources (e.g., vendor databases), when such sources are available.
C. Economic Effects
1. Benefits and Costs of HFCA Act Disclosure Requirements
For Commission-Identified Foreign Issuers, the amendments will
require specific disclosures to be made in these registrants' annual
reports.\121\ In general, as discussed above, the required disclosures
elicit information that some academic literature has found is value-
relevant to investors. As such, we expect the required disclosures to
be beneficial to investors because they are likely to reduce search
costs when the information in the required disclosure is otherwise
available through diverse sources or existing disclosures, and also
potentially provide investors with information about aspects of these
registrants' governance characteristics that otherwise might not be
available or relatively costly to obtain. We do not expect significant
compliance costs for Commission-Identified Foreign Issuers given that
these registrants likely already possess the information required by
the amendment; however, registrants may incur additional compliance
costs if the required information is not readily accessible to them or
needs to be formatted for the required disclosure.
---------------------------------------------------------------------------
\121\ See supra Section II.B for a detailed description of the
disclosure requirements mandated by Section 3 of the HFCA Act.
---------------------------------------------------------------------------
a. Investors
The amendments will require disclosure that a registered public
accounting firm that the PCAOB is unable to inspect or investigate
completely because of a position taken by an authority in the foreign
jurisdiction has issued an audit report for the registrant. The
disclosure will provide transparency about the inspection status of the
engaged audit firm. As discussed above, the academic literature
provides evidence that the PCAOB's oversight has led to improvements in
audit quality and financial reporting quality, for both domestic and
foreign issuers. The inability of the PCAOB to inspect the auditors of
these registrants could generate uncertainty regarding their financial
reporting quality. Thus, to the extent this information is new to
investors,\122\ we expect the specific required disclosure to
potentially facilitate investors' capital allocation decisions. We
further expect that the presentation of such information in a
standardized form in the annual report is likely to be helpful to
investors by reducing their search costs.
---------------------------------------------------------------------------
\122\ See supra Section IV.B.1 for a description of current
practice and regulatory requirements regarding disclosure of the
registrant's auditor inspection status.
---------------------------------------------------------------------------
The amendments will require disclosure of the percentage of the
shares of the registrant owned by a government entity in the foreign
jurisdiction. As discussed above, government ownership is information
that is likely relevant to investors' capital allocation decisions. For
example, disclosure of government ownership may allow investors to
better assess potential political risks/effects
[[Page 70040]]
related to government ownership in the foreign jurisdiction that may
influence the value of their investment. These benefits would be
limited to the extent that affected registrants already provide
disclosure relevant to assessing such risks.
In addition to the disclosure of ownership through equity holdings,
the amendments will require affected registrants to disclose whether a
governmental entity has a controlling financial interest in the
registrant. We expect such disclosure may benefit investors as it could
provide information about other mechanisms, besides direct equity
ownership, such as control through a pyramidal ownership structure that
might allow a governmental entity to influence registrants' operational
and other decisions. This information would provide additional insight
into potential risks to investors that might arise from such control/
ownership structures.\123\ One commenter agreed that such disclosure
will be informative for investors.\124\
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\123\ See, e.g., Jesse Fried & Ehud Kamar, Alibaba: A Case Study
of Synthetic Control, European Corporate Governance Institute
Working Paper Series in Law, Paper No 533/2020 (2020) (concluding
that control of a firm can be exerted not only through equity, but
through a mixture of employment, contractual, and commercial
arrangements).
\124\ See letter from ASA.
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The amendments also require disclosure of board members'
affiliations with the CCP and whether the articles of incorporation of
the registrant (or equivalent organizing document) includes any charter
of the CCP, including the text of any such charter. These disclosures
will enhance existing information on the composition of the board and
could increase insight into its quality and the related consequences
for firm value. One study shows that the degree of a board's political
affiliation in China is related to firm value, and this varies based on
facts and circumstances.\125\ For example, political affiliation of
board members may imply that their incentives may not align with
shareholders' interests. Under different circumstances, politically-
connected board members may facilitate the execution of financing
transactions for the registrant. To the extent that these disclosures
may benefit investors by facilitating their efforts to evaluate
characteristics of registrants that may have an impact on the value of
their investments, these specific disclosures may facilitate investors'
capital allocation decisions and potentially increase investor
protection.
---------------------------------------------------------------------------
\125\ See Lihong Wang, Protection or Expropriation: Politically
Connected Independent Directors in China, 55 J. Bank. Fin. 92 (2015)
(using a sample of Chinese listed firms over the 2003-2012 period,
the study finds that while the presence of politically connected
independent directors is related to increased firm value for private
firms, the presence of politically connected independent directors
is related to lower firm value for state-owned enterprises
(``SOEs''). The study also finds an increase in related-party
transactions for Chinese listed firms with politically connected
independent directors).
---------------------------------------------------------------------------
In a modification to the interim final rule, the final rules will
specify that the registrant must look through a VIE or any structure
that results in additional foreign entities being consolidated in the
financial statements of the registrant and provide disclosure about the
operating company in the relevant jurisdiction. Thus, any Commission-
Identified Foreign Issuer that uses a VIE or other similar corporate
structure will be required to provide the required disclosures for
itself and its foreign operating entity. This change will benefit
investors by providing more accurate information regarding the true
ownership structure of Commission-Identified Foreign Issuers. One
commenter suggested that a VIE structure could block meaningful
disclosure of financial and political information.\126\
---------------------------------------------------------------------------
\126\ See letter from Kelly.
---------------------------------------------------------------------------
In another change from the interim final rule, the final amendments
will include a new Inline XBRL tagging requirement: Registrants will
have to tag the auditor name, jurisdiction, and the PCAOB ID Number(s)
of the audit firm(s) that appear on the audit report signed by the
registered public accounting firm in the registrant's Form 10-K, Form
20-F, and Form 40-F. Such tagging requirement will likely benefit
investors by providing them with machine-readable information on
auditors directly from a registrant's annual report, thus allowing them
to identify registrants with auditors from jurisdictions that do not
allow PCAOB oversight. This change will also facilitate the
Commission's accurate and efficient identification of Commission-
Identified Issuers. Since registrants already use Inline XBRL tagging
in their annual reports and other filings with the commission, and the
information on auditor name and jurisdiction is readily available to
them, we do not believe this change will result in a significant cost
increase for them.
b. Registrants
The required disclosures are likely to impose some compliance costs
on Commission-Identified Foreign Issuers. One commenter asserted that
the proposed disclosures were repetitive of disclosure that is already
provided and would result in unnecessary compliance costs.\127\ We do
not expect these compliance costs to be significant since these
registrants likely already possess the information required by the
amendments. However, to the extent that such information is not readily
accessible or needs to be formatted to comply with the required
disclosure, registrants would incur additional costs.\128\
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\127\ See letter from China Petroleum.
\128\ For the purpose of the Paperwork Reduction Act (``PRA''),
44 U.S.C. 3501 et seq., we estimate that affected registrants will
incur on average one burden hour to prepare and review the
information needed for the HFCA Act Section 3 disclosure
requirements. See infra Section V.C.
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The required disclosures may impact the cost of capital for some
affected registrants. As discussed above, empirical evidence suggests
that the information elicited by the required disclosures is, in
general, related to potential risks and more broadly to firm
value.\129\ We discuss the potential impact of the required disclosures
on affected registrants' cost of capital further below, but note that
the magnitude of any such impact is likely to be moderated depending on
the extent information is otherwise available to investors.
---------------------------------------------------------------------------
\129\ See supra Section IV.A.
---------------------------------------------------------------------------
The required disclosure regarding the use of a non-inspected firm
to audit the registrant's annual report, which will now be required in
a standardized manner, may lead investors to re-evaluate potential
risks related to financial reporting quality due to the inability of
the PCAOB to inspect the auditors of these registrants. Some academic
literature finds that PCAOB oversight is broadly related to
improvements of audit quality, and also investor perceptions of such
audit quality.\130\ As described above, many registrants already
disclose the risks or decreased benefits associated with using a non-
inspected auditor.\131\ Given the extent to which information
specifically required in the new disclosures overlaps with disclosures
already observed in practice, in addition to the information being
available from other sources such as the PCAOB, we expect the impact of
these specific required disclosures on affected registrants' cost of
capital to be small.
---------------------------------------------------------------------------
\130\ See id.
\131\ See supra Section IV.B.1.
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Section 3 of the HFCA Act also requires registrants to disclose
information in a standardized manner in annual reports about their
ownership and control structures, including the magnitude of direct
equity ownership
[[Page 70041]]
by a government in non-cooperating foreign jurisdictions and the degree
of control a government in the non-cooperating jurisdiction may exert
on the registrant through channels other than ownership. Providing
standardized disclosure could facilitate more efficient comparisons of
government ownership and control information across Commission-
Identified Foreign Issuers and thus reduce investor search costs.
The amendments also will require registrants to disclose
information about potential additional links to the CCP. Such
disclosure is likely to be informative of the registrant's governance,
and may also lead investors to re-assess potential political risks that
may not have been previously known through existing registrants'
disclosures. For example, such links between the registrant and the CCP
may indicate increased political influence on registrants' decision-
making processes and consequent impacts on registrants' value. While
some, but not all, of the information in the required disclosures may
already be publicly available through disclosures in forms other than
in annual reports, the content of such disclosures may not be
standardized across registrants. We expect these specific disclosures
may potentially impact registrants' cost of capital, particularly for
registrants about which such information is not otherwise known by the
market.
2. Benefits and Costs of HFCA Act Submission Requirement
The amendments implementing the submission requirement of Section
104(i)(1)(B) of the Sarbanes-Oxley Act (as added by Section 2 of the
HFCA Act) provide that a Commission-Identified Issuer that is not owned
or controlled by a foreign governmental entity in a foreign
jurisdiction that prevents PCAOB inspections must submit documentation
to the Commission that establishes that the registrant is not so owned
or controlled. As discussed above, the amendments specify that if an
affected registrant is owned or controlled by a foreign governmental
entity, it will not be required to submit such documentation. We
estimate in the baseline that a large majority of current registrants
that are potential future Commission-Identified Issuers are also
foreign issuers that will be subject to the disclosures required by
Section 3 of the HFCA Act. Therefore, we expect the submission
requirement to serve as a complement to these required disclosures.
a. Investors
We anticipate that requiring Commission-Identified Issuers to
provide documentation to support a lack of foreign control will provide
further reassurance to investors that the registrants' disclosures in
this regard are materially accurate and complete. In particular,
because the submission requirement generally would apply to those
Commission-Identified Issuers who otherwise do not disclose that they
are owned or controlled by a foreign governmental entity, this
requirement will provide some reassurance to investors that such
control does not exist. We believe that greater certainty about which
Commission-Identified Issuers lack governmental ownership and control
may improve investors' assessments of the risks of investing in
Commission-Identified Issuers' securities. One commenter suggested that
registrants typically are not providing the detailed disclosures
required by the HFCA Act and that current risk factor disclosure tends
to be insufficient for investors to understand the consequences of non-
inspection.\132\ Since the submitted documentation will be publicly
available, we expect the reassurance benefit to be larger than if the
submission were available only to the Commission. Because affected
registrants will have flexibility to determine the specific types of
documentation to submit to the Commission, we expect the magnitude of
the reassurance benefit to depend on the nature of information issuers
submit. We generally expect this reassurance benefit to be limited
given the HFCA Act's required Section 3 disclosure and other
information about ownership and control required by existing Commission
rules.\133\
---------------------------------------------------------------------------
\132\ See letter from U.S. Acctg. Academics.
\133\ See supra Section IV.B.1 for a description of current
regulatory requirements regarding disclosure of ownership and
control more generally.
---------------------------------------------------------------------------
Because we expect the submission requirement to impose (on average)
only minor compliance costs on affected registrants and no other
significant costs, we also do not generally expect any significant
negative effects on investors from this requirement, such as a
reduction in the prices of affected registrants' securities they
currently own.
b. Registrants
Commission-Identified Issuers who lack ownership or control by a
governmental entity in the foreign jurisdiction of the registered
public accounting firm that the PCAOB is unable to inspect or
investigate completely will incur some direct compliance costs related
to producing the documentation they will be required to submit to the
Commission. The magnitude of these compliance costs will depend on how
easily the affected registrants can produce documentation to satisfy
the submission requirement. The amendments do not specify particular
types of documentation that can or must be submitted to satisfy this
requirement. Affected registrants will thus have flexibility to
determine how best to establish that they are not owned or controlled
by a foreign governmental entity. This should help limit compliance
costs, as registrants will be able to produce documentation that is
suited to their particular circumstances. At the same time, at least as
an initial matter, uncertainty about the scope of the requirement could
lead some registrants to seek additional advice from attorneys and
other advisers, which could marginally increase compliance costs.
Overall, because we expect that affected registrants will have
information readily available about their ownership structures and
controlling parties, we expect the direct compliance costs associated
with this requirement will be minor.\134\
---------------------------------------------------------------------------
\134\ See supra note 128.
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3. Impact on Efficiency, Competition, and Capital Formation
As discussed above, the required disclosures may provide new or
more easily accessible information about whether registrants have
retained non-inspected registered auditors and whether such registrants
are owned or controlled by governmental entities of the foreign
jurisdictions that prevent PCAOB inspections. To the extent this
disclosed information is new or reduces search costs, we expect it
could potentially reduce information asymmetries in securities markets,
thereby improving price efficiency and helping investors achieve more
efficient portfolio allocations. Overall, we believe that any
efficiency gains will be modest since the potential increase in
informational content and reduction in search costs to investors is
likely to be limited given existing disclosures.
To the extent the amendments will reduce information asymmetries,
affected registrants may experience a change in cost of capital (either
a reduction or an increase is possible, depending on circumstances),
which may in turn affect capital formation. However, similar to any
effects on efficiency, we expect such capital formation effects to be
small in aggregate. Likewise, we do not expect
[[Page 70042]]
the amendments to significantly impact overall competition, based on
the expected low compliance costs for registrants and the expected
limited incremental impact on investors' information environment.
However, we do not rule out that there could be instances where the
required disclosures provide new information about some registrants
that could potentially impact (either positively or negatively) their
individual competitive situation due to investors' reassessment of such
registrants' risk and prospects.
V. Paperwork Reduction Act
A. Background
Certain provisions of Form 10-K and Form 20-F that will be affected
by the amendments contain ``collection of information'' requirements
within the meaning of the PRA.\135\ The Commission is submitting the
final amendments to the Office of Management and Budget (``OMB'') for
review in accordance with the PRA.\136\ The titles for the collections
of information are:
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\135\ See supra note 128. As noted in the Economic Analysis
section, see supra Section IV, based on recent Form 40-F filings, no
Form 40-F registrants reported having retained a registered public
accounting firm located in a foreign jurisdiction that we believe
the PCAOB may determine it is unable to inspect or investigate
completely because of a position taken by an authority in that
foreign jurisdiction, and therefore we estimate that no Form 40-F
registrants will be subject to the requirements of the final
amendments upon their adoption. Accordingly, we are not making any
revisions to the PRA burden estimates for Form 40-F at this time.
Additionally, based on recent Form N-CEN filings, no registered
investment company reported having retained a registered public
accounting firm located in a foreign jurisdiction, and therefore we
estimate that no registered investment companies will be subject to
the requirements of the final amendments upon their adoption.
Accordingly, we are not making any revisions to the PRA burden
estimates for Form N-CSR at this time. See supra note 33.
\136\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
---------------------------------------------------------------------------
<bullet> ``Form 10-K'' (OMB Control No. 3235-0063); and
<bullet> ``Form 20-F'' (OMB Control No. 3235-0288).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information requirement unless it
displays a currently valid OMB control number. Compliance with the
information collections is mandatory. Responses to the information
collections are not kept confidential and there is no mandatory
retention period for the information disclosed. The affected forms were
adopted under the Exchange Act and set forth the disclosure
requirements for annual reports filed by registrants to help investors
make informed investment decisions. The hours and costs associated with
preparing and filing the forms constitute reporting and cost burdens
imposed by each collection of information.
B. Summary of the Amendments
As described in more detail above, we are adopting final amendments
to implement the disclosure and submission requirements of the HFCA
Act. The amendments will require certain disclosure from foreign
issuers relating to foreign jurisdictions that prevent PCAOB
inspections and require all applicable registrants to submit
documentation to the Commission establishing that such a covered issuer
is not owned or controlled by a governmental entity in that foreign
jurisdiction.
C. Burden and Cost Estimates Related to the Amendments
We anticipate that new disclosure and submission requirements will
increase the burdens and costs for these registrants. We derived our
burden hour and cost estimates by estimating the average amount of time
it would take a registrant to prepare and review the required
disclosure and submission, as well as the average hourly rate for
outside professionals who assist with such preparation. In addition,
our burden estimates are based on several assumptions. For the HFCA Act
Section 3 disclosure requirements we estimated the number of affected
registrants by determining the number of foreign issuer registrants
that retained registered public accounting firms that issued an audit
report and are located in a jurisdiction where obstacles to PCAOB
inspections exist. For the Section 104(i)(1)(B) of the Sarbanes-Oxley
Act (as added by Section 2 of the HFCA Act) submission requirements, we
estimated the number of affected registrants by determining the number
of registrants that retained registered public accounting firms that
issued an audit report and are located in a jurisdiction where
obstacles to PCAOB inspections exist. Based on these estimates, for
purposes of the PRA, we estimate that there will be:
<bullet> No affected Form 10-K filers for the HFCA Act Section 3
disclosure requirements and 55 affected filers for the Section
104(i)(1)(B) of the Sarbanes-Oxley Act submission requirement; and
<bullet> Two hundred and twenty affected Form 20-F filers for the
HFCA Act Section 3 disclosure requirements and 206 affected filers for
the Section 104(i)(1)(B) of the Sarbanes-Oxley Act submission
requirement.\137\
---------------------------------------------------------------------------
\137\ See supra Section IV.B.2.a. Based on the data and analysis
described in Section IV above, for purposes of the PRA we estimate
that approximately 275 registrants may be affected by the rules, of
which we estimate 20 percent are U.S. registrants that file on Form
10-K (55 registrants) and 80 percent are foreign issuers that file
on Form 20-F (220 registrants). For purposes of the HFCA Act Section
3 disclosure requirement, we estimate that only foreign filers
filing on Form 20-F will be required to provide the disclosure (220
registrants). For purposes of the Section 104(i)(1)(B) of the
Sarbanes-Oxley Act submission requirement, we estimate that
approximately five percent of the affected registrants are state-
owned entities and will not be required to prepare the submission.
As a result, we estimate that U.S. registrants that file on Form 10-
K (55 registrants) and foreign issuers that file on Form 20-F but
are not state-owned entities (206) will be required to provide the
submission.
---------------------------------------------------------------------------
Commission-Identified Issuers will generally have information
readily available about their audit arrangements, ownership structures,
and controlling parties. Therefore, we estimate that the average
incremental burden for an affected registrant to prepare the submission
would be one hour and for an affected registrant that is a foreign
issuer to prepare the disclosure would be one hour. These estimates
represent the average burdens for all affected registrants, both large
and small.\138\ In deriving our estimates, we recognize that the
burdens will likely vary among individual registrants based on a number
of factors, including the size and complexity of their operations. We
believe that some registrants will experience costs in excess of this
average and some registrants may experience less than the average
costs.
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\138\ As discussed above in Section II.C., the final amendments
also include structured data tagging requirements pertaining to the
auditor name and jurisdiction on the audit report signed by the
registered public accounting firm in the registrant's Form 10-K,
Form 20-F, and Form 40-F. However, we believe that any associated
burden resulting from this requirement will be encompassed within
the overall PRA burden estimates for these forms because the final
amendments add only a few discrete data points to an affected
registrant's existing tagging obligations. Affected registrant are
currently required to tag specified information in the relevant
forms. See generally 17 CFR 232.405 (Rule 405 Regulation S-T) and
232.406 (Rule 406 of Regulation S-T), paragraphs 101 and 104 to
``Instructions as to Exhibits'' in Form 20-F, paragraphs 15 and 17
to General Instruction B in Form 40-F.
---------------------------------------------------------------------------
The table below shows the total annual compliance burden, in hours
and in costs, of the collection of information resulting from the final
amendments.\139\ The burden estimates were calculated by multiplying
the estimated number of responses by the estimated average amount of
time it would take a registrant to prepare and
[[Page 70043]]
review the required information. The portion of the burden carried by
outside professionals is reflected as a cost, while the portion of the
burden carried by the registrant internally is reflected in hours. For
purposes of the PRA, we estimate that 75 percent of the burden of
preparation of Form 10-K and Form 20-F is carried by the registrant
internally and that 25 percent of the burden of preparation is carried
by outside professionals retained by the registrant at an average cost
of $400 per hour.\140\
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\139\ The table's estimated number of responses aggregates the
responses for both the disclosure requirement and the submission
requirement. Some registrants will be counted twice, once for each
response. For convenience, the estimated hour and cost burdens in
the table have been rounded to the nearest whole number.
\140\ We recognize that the costs of retaining outside
professionals may vary depending on the nature of the professional
services, but for purposes of this PRA analysis, we estimate that
such costs will be an average of $400 per hour. This estimate is
based on consultations with several registrants, law firms and other
persons who regularly assist registrants in preparing and filing
periodic reports with the Commission.
Table 1--Incremental Paperwork Burden Under the Final Amendments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated
number of Incremental Total incremental
affected burden hours/ burden hours 75% Company 25% Professional Professional costs
responses form
(A) (B) (C) = (A) * (B) (D) = (C) * 0.75 (E) = (C) * 0.25 (F) = (E) * $400
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form 10-K (submission)...................... 55 1 55 41 14 $5,600
Form 20-F (submission)...................... 206 1 206 155 52 20,800
Form 20-F (disclosure)...................... 220 1 220 165 55 22,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
VI. Statutory Authority
The amendments contained in this release are being adopted under
the authority set forth in Sections 2 and 3 of the HFCA Act, Section
104 of the Sarbanes-Oxley Act, Sections 3, 12, 13, 15(d), and 23(a) of
the Exchange Act, and Sections 8(b), 24(a), 30(a), and 38(a) of the
Investment Company Act.
List of Subjects in 17 CFR Parts 200, 232, and 249
Reporting and recordkeeping requirements, Securities.
Text of Rule Amendments
In accordance with the foregoing, the Commission amends title 17,
chapter II of the Code of Federal Regulations as follows:
PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND
REQUESTS
Subpart A--Organization and Program Management
0
1. The authority citation for part 200, subpart A, continues to read,
in part, as follows:
Authority: 15 U.S.C. 77c, 77o, 77s, 77z-3, 77sss, 78d, 78d-1,
78d-2, 78o-4, 78w, 78ll(d), 78mm, 80a-37, 80b-11, 7202, and 7211 et
seq., unless otherwise noted.
* * * * *
Section 200.30-1 is also issued under 15 U.S.C. 77f, 77g, 77h,
77j, 78c(b) 78l, 78m, 78n, 78o(d).
* * * * *
0
2. Amend Sec. 200.30-1 by adding to paragraph (m) to read as follows:
Sec. 200.30-1 Delegation of authority to Director of Division of
Corporation Finance.
* * * * *
(m) With respect to Section 104(i)(2)(A) of the Sarbanes-Oxley Act
of 2002 (15 U.S.C. 7214 (as amended by Pub. L. 116-222)), to identify
each ``covered issuer,'' as that term is defined in Section
104(i)(1)(A) of the Sarbanes-Oxley Act of 2002, that has retained a
registered public accounting firm to issue an audit report where that
registered public accounting firm has a branch or office that is
located in a foreign jurisdiction and Public Company Accounting
Oversight Board has determined that it is unable to inspect or
investigate completely because of a position taken by an authority in
the foreign jurisdiction.
PART 232--REGULATION S-T--GENERAL RULES AND REGULATIONS FOR
ELECTRONIC FILINGS
0
3. The general 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.
* * * * *
0
4. Effective January 10, 2022, through July 1, 2023, amend Sec.
232.405 by adding paragraph (c)(1)(iii)(C) to read as follows:
Sec. 232.405 Interactive Data File submissions.
* * * * *
(c) * * *
(1) * * *
(iii) * * *
(C) Additional elements. Annual reports on forms 10-K, 20-F or 40-F
filed for periods after December 15, 2021, must contain all applicable
data elements from the most recently updated relevant standard
taxonomy; and
* * * * *
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
0
5. The general authority citation for part 249 and sectional authority
citations for Sec. Sec. 249.220f, 249.240f, 249.310, and 249.331
continue 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), Sec. 72001 Pub. L. 114-94,
129 Stat. 1312 (2015), and secs. 2 and 3 Pub. L. 116-222, 134 Stat.
1063 (2020), unless otherwise noted.
Section 249.220f is also issued under secs. 3(a), 202, 208, 302,
306(a), 401(a), 401(b), 406 and 407, Pub. L. 107-204, 116 Stat. 745,
and secs. 2 and 3, Pub. L. 116-222, 134 Stat. 1063.
Section 249.240f is also issued under secs. 3(a), 202, 208, 302,
306(a), 401(a), 406 and 407, Pub. L. 107-204, 116 Stat. 745.
* * * * *
Section 249.310 is also issued under secs. 3(a), 202, 208, 302,
406 and 407, Pub. L. 107-204, 116 Stat. 745.
* * * * *
Section 249.331 is also issued under 15 U.S.C. 78j-1, 7202,
7233, 7241, 7264, 7265; and 18 U.S.C. 1350.
* * * * *
0
6. Amend Form 20-F (referenced in Sec. 249.220f) by revising Item
16I.(b) to read as follows:
Note: The text of Form 20-F does not, and this amendment will
not, appear in the Code of Federal Regulations.
[[Page 70044]]
United States Securities and Exchange Commission
Washington, DC 20549
Form 20-F
* * * * *
Part II
* * * * *
Item 16I. Disclosure Regarding Foreign Jurisdictions That Prevent
Inspections
* * * * *
(b) A registrant that is a foreign issuer, as defined in 17 CFR
240.3b-4, identified by the Commission pursuant to Section 104(i)(2)(A)
of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7214(i)(2)(A)) as having
retained, for the preparation of the audit report on its financial
statements included in the Form 20-F, a registered public accounting
firm that has a branch or office that is located in a foreign
jurisdiction and that the Public Company Accounting Oversight Board has
determined it is unable to inspect or investigate completely because of
a position taken by an authority in the foreign jurisdiction, for each
year in which the registrant is so identified, must provide the below
disclosures. Also, any such identified foreign issuer that uses a
variable-interest entity or any similar structure that results in
additional foreign entities being consolidated in the financial
statements of the registrant is required to provide the below
disclosures for itself and its consolidated foreign operating entity or
entities. A registrant must disclose:
* * * * *
0
7. Amend Form 40-F (referenced in Sec. 249.240f) by revising paragraph
B.18(b) to read as follows:
Note: The text of Form 40-F does not, and this amendment will
not, appear in the Code of Federal Regulations.
United States Securities and Exchange Commission
Washington, DC 20549
Form 40-F
* * * * *
General Instructions
* * * * *
B. Information To Be Filed on This Form
(18) Disclosure Regarding Foreign Jurisdictions That Prevent
Inspections
* * * * *
(b) A registrant that is a foreign issuer, as defined in 17 CFR
240.3b-4, identified by the Commission pursuant to Section 104(i)(2)(A)
of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7214(i)(2)(A)) as having
retained, for the preparation of the audit report on its financial
statements included in the Form 40-F, a registered public accounting
firm that has a branch or office that is located in a foreign
jurisdiction and that the Public Company Accounting Oversight Board has
determined it is unable to inspect or investigate completely because of
a position taken by an authority in the foreign jurisdiction, for each
year in which the registrant is so identified, must provide the below
disclosures. Also, any such identified foreign issuer that uses a
variable-interest entity or any similar structure that results in
additional foreign entities being consolidated in the financial
statements of the registrant is required to provide the below
disclosures for itself and its consolidated foreign operating entity or
entities. A registrant must disclose:
* * * * *
0
8. Amend Form 10-K (referenced in Sec. 249.310) by revising Item 9C(b)
to Part II to read as follows:
Note: The text of Form 10-K does not, and this amendment will
not, appear in the Code of Federal Regulations.
United States Securities and Exchange Commission
Washington, DC 20549
Form 10-K
* * * * *
Part II
* * * * *
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent
Inspections
(b) A registrant that is a foreign issuer, as defined in 17 CFR
240.3b-4, identified by the Commission pursuant to Section 104(i)(2)(A)
of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7214(i)(2)(A)) as having
retained, for the preparation of the audit report on its financial
statements included in the Form 10-K, a registered public accounting
firm that has a branch or office that is located in a foreign
jurisdiction and that the Public Company Accounting Oversight Board has
determined it is unable to inspect or investigate completely because of
a position taken by an authority in the foreign jurisdiction, for each
year in which the registrant is so identified, must provide the below
disclosures. Also, any such identified foreign issuer that uses a
variable-interest entity or any similar structure that results in
additional foreign entities being consolidated in the financial
statements of the registrant is required to provide the below
disclosures for itself and its consolidated foreign operating entity or
entities. A registrant must disclose:
* * * * *
0
9. Amend Form N-CSR (referenced in Sec. Sec. 249.331 and 274.128) by
revising paragraph (j) to Item 4 to read as follows:
Note: The text of Form N-CSR does not, and this amendment will
not, appear in the Code of Federal Regulations.
United States Securities And Exchange Commission
Washington, DC 20549
Form N-CSR
* * * * *
Item 4. Principal Accountant Fees and Services
* * * * *
(j) A registrant that is a foreign issuer, as defined in 17 CFR
240.3b-4, identified by the Commission pursuant to Section 104(i)(2)(A)
of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7214(i)(2)(A)), as having
retained, for the preparation of the audit report on its financial
statements included in the Form N-CSR, a registered public accounting
firm that has a branch or office that is located in a foreign
jurisdiction and that the Public Company Accounting Oversight Board has
determined it is unable to inspect or investigate completely because of
a position taken by an authority in the foreign jurisdiction, for each
year in which the registrant is so identified, must provide the below
disclosures. Also, any such identified foreign issuer that uses a
variable-interest entity or any similar structure that results in
additional foreign entities being consolidated in the financial
statements of the registrant is required to provide the below
disclosures for itself and its consolidated foreign operating entity or
entities. A registrant must disclose:
* * * * *
By the Commission.
Dated: December 2, 2021.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2021-26528 Filed 12-8-21; 8:45 am]
BILLING CODE 8011-01-P
</pre></body>
</html>Indexed from Federal Register on December 9, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.