holding foreign companies accountable act timeline

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If we introduced such a requirement, should the information be required to be tagged in Inline XBRL? 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). include documents scheduled for later issues, at the request Would the requirements be more appropriate in a different part of the Form N-CSR?

Therefore we estimate that the average incremental burden for an affected registrant to prepare the submission would be 1 hour and for an affected registrant that is a foreign issuer to prepare the disclosure would be 1 hour.

Thus, as an initial matter, registrants will have flexibility under the interim final amendments to determine how best to satisfy this requirement. 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.

The SEC will then provisionally identify the issuer as a Commission-Identified Issuer on the SECs website at www.sec.gov/HFCAA. [11] Although Form N-CSR is not specifically identified in the HFCA Act, 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. 15. Companies whose auditors fail to be inspected by the PCAOB for three consecutive years will be subject to mandatory delisting.

(18) Disclosure Regarding Foreign Jurisdictions that Prevent Inspections. to Part II to read as follows: The text of Form 10-K does not, and this amendment will not, appear in the Code of Federal Regulations.

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Although the term owned or controlled is not defined in the HFCA Act, the SEC believes the term has the same meaning as the term control under the Exchange Act and Exchange Act rules.3 Moreover, the SEC declined to provide a list of what documentation may demonstrate that the Commission-Identified Issuer is not owned or controlled by the relevant governmental entity. This page was last edited on 9 April 2022, at 17:37.

48. Section 3 of the HFCA Act requires certain disclosures by a Commission-Identified Foreign Issuer to appear in an annual report that covers a non-inspection year. Similarly, Section 104(i)(2)(B) of the Sarbanes-Oxley Act[23]

The disclosures and submissions required by the amendments will potentially 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). Subscribe to receive the latest insights and news from Akin Gump. (a) A registrant identified by the Commission pursuant to Section 104(i)(2)(A) of the Sarbanes-Oxley Act of 2002 (15 U.S.C.

As mentioned earlier, implementation of such trading prohibitions will be addressed separately.

on In accordance with the foregoing, the Commission amends title 17, chapter II of the Code of Federal Regulations as follows: 1. These estimates represent the average burdens for all affected registrants, both large and small. We therefore analyze the extent to which such requirements will change existing regulatory requirements or the current practices of potentially affected registrants. 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. For example, a person or entity that owns a small percentage of shares or that is represented on the board of directors may have control if they have the ability directly or indirectly to affect a companys management or policies.

In addition, our burden estimates are based on several assumptions. 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. In addition to the disclosure of ownership though equity holdings, the amendments will require affected registrants to disclose whether a governmental entity has a controlling financial interest in the registrant. On September 22, 2021, the Public Company Accounting Oversight Board (the PCAOB) adopted a final rule (the Final Rule) implementing the Holding Foreign Companies Accountable Act (the HFCAA), which became law in December 2020 and prohibits foreign companies from listing their securities on U.S. exchanges if the company has been unavailable for PCAOB inspection or investigation for three consecutive years. on documents in the last year, by the Centers for Medicare & Medicaid Services 2. Rev.

[35] See supra section IV.B.1 for a description of current regulatory requirements regarding disclosure of ownership and control more generally. The identification would be 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. In addition, the adopting releaseestablishes the SECs procedures for (i) determining whether a registrant is a Commission-Identified Issuer under the HFCA Act and (ii) prohibiting the trading of a Commission-Identified Issuers securities. 07/21/2022, 210 Commission-Identified Issuer Determination. L. 114-94, 129 Stat.

Available at https://pcaobus.org/oversight/international/denied-access-to-inspections. 71. *x !YW-;ab+S'=c6k/U%EO.6(t *R[E%9yB >TT] (Jt bBHTWz9* Section 3 of the HFCA Act requires a Commission-Identified Foreign Issuer to provide certain additional disclosure in its annual report for the year that the Commission so identifies the issuer. Section 104(i)(1)(B) of the Sarbanes-Oxley Act[22] The following Gibson Dunn attorneys assisted in preparing this update: Michael Scanlon, David Lee, David Ware, and Maggie Zhang. 2022 Akin Gump Strauss Hauer & Feld LLP. The SEC will impose an initial trading prohibition on a registrant as soon as practicable after it is conclusively identified as a Commission-Identified Issuer for three consecutive years. 1841 0 obj <> endobj documents in the last year, by the Fish and Wildlife Service Similarly, would the disclosure be more appropriate in a different part of the Form 20-F or Form 40-F? For example, would clarification of the phrase operating entity with respect to Start Printed Page 17533the registrant be helpful or is the term generally understood? we expect the specific required disclosure to potentially facilitate investors' capital allocation decisions. 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 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. See, e.g., Douglas W. Diamond & Robert E. Verrecchia, Disclosure, Liquidity, and the Cost of Capital, 46 J. FIN 1325 (1991). The interim final amendments will 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. Register documents. Note to paragraph (18) of General Instruction B: Instruction (B)(18) only applies to annual reports, and not to registration statements on Form 40-F. 4. If we publish a list of Commission-Identified Issuers, how should the Commission address any potential errors in identification relating to a registrant's status?

26. 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 must electronically submit to the Commission on a supplemental basis documentation that establishes that the registrant is not owned or controlled by a governmental entity in the foreign jurisdiction.

At this time, however, it is unclear whether the SEC will propose to implement the HFCAA in its entirety when it issues its proposed rules to implement the PWG recommendations. 65. Use the PDF linked in the document sidebar for the official electronic format. These companies have a combined market capitalization of more than $1.8 trillion.

documents in the last year, by the Transportation Department Section 249.220f is also issued under secs. The required disclosures may impact the cost of capital for some affected registrants. The Final Rule (availablehere) requires U.S. Securities and Exchange Commission (the SEC) approval before it goes into effect. Use the Commission's internet comment form (. The bill would increase accountability for Chinese companies that refuse to submit to U.S. financial oversight and close a loophole that Chinese companies use to avoid such oversight. documents in the last year, 476

[61] The earliest that the SEC could identify a Commission-Identified Issuer would be after companies file their annual reports for 2021 (i.e., spring 2022 for calendar-year issuers). [11], United States Senate Committee on Banking, Housing, and Urban Affairs, United States Securities and Exchange Commission, Public Company Accounting Oversight Board, "Senate passes bill that could delist Chinese companies from U.S. stock exchanges", "Bill to delist Chinese stocks moving at 'warp speed' as a crackdown gains bipartisan support", "Latest U.S. documents in the last year, 12 has no substantive legal effect. (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. See Exchange Act Section 13(d), 17 CFR 210.1-02(g), and 17 CFR 240.12b-2.

To end an initial or subsequent trading prohibition, a Commission-Identified Issuer must certify that it has retained or will retain a non-PCAOB-Identified Firm.

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 estimated 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 46) 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. Comments may be submitted by any of the following methods: All submissions should refer to File Number S7-03-21. Should we introduce this structured data tagging requirement for Form N-CSR? 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. 1904; Sec. We are adopting interim final amendments to reflect the disclosure requirements in Section 3 of the HFCA Act.

The amendments also will require registrants to disclose information about potential additional links to the CCP. Learn more here. 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. documents in the last year, by the Consumer Product Safety Commission

A bipartisan Washington is finally waking up to the China threat and its time for Wall Street to do the same. 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.

The amendments to Form N-CSR are located in an existing item entitled Principal Accountant Fees and Services.. d. Commission-Identified Issuers that are owned or controlled by a foreign governmental entity are not required to submit documentation to the Commission. The disclosures are required to be included in the covered issuers annual report on Form 10-K or Form 20-F and must include the following information: (1) that, during the period covered by the covered form, such a registered public accounting firm has prepared an audit report for the issuer; (2) 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; (3) 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; (4) the name of each official of the Chinese Communist Party who is a member of the board of directors of, (B) the operating entity with respect to the issuer; and, (5) whether the articles of incorporation of the issuer (or equivalent organizing document) contains any charter of the Chinese Communist Party, including the text of any such charter.. to reflect the disclosure requirements in Section 3 of the HFCA Act. [79fi@, Notably, the PWG recommendation proposed a transition period until January 1, 2022 for currently listed companies to come into compliance, in order to reduce market disruption. Would the disclosure be more appropriate in a different part of the Form 10-K, such as in Part III where the information could be incorporated from the proxy statement? A registrant that is owned or controlled by a foreign governmental entity is not required to submit such documentation. of Form 10-K, Item 16I. 3. The general authority citation for part 249 and sectional authority citation for 249.220f are revised to read as follows: Authority: By continuing to browse our website, you consent to our use of cookies as set forth in our. Corp. Fin. b.

Sarbanes-Oxley requires that both domestic and foreign audit firms that prepare or issue an audit opinion for a company that issues securities in the United States produce the underlying audit work papers at the request of the PCAOB or the US Securities and Exchange Commission (SEC). We are adopting interim final amendments to the following forms.

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. the material on FederalRegister.gov is accurately displayed, consistent with puppet obama american country national anti linked medical laws