

[Federal Register: December 21, 2006 (Volume 71, Number 245)]
[Rules and Regulations]               
[Page 76580-76599]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de06-5]                         

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SECURITIES AND EXCHANGE COMMISSION

17 CFR PARTS 210, 228, 229, 240 and 249

[RELEASE NOS. 33-8760; 34-54942; File No. S7-06-03]
RIN 3235-AJ64

 
Internal Control Over Financial Reporting in Exchange Act 
Periodic Reports of Non-Accelerated Filers and Newly Public Companies

AGENCY: Securities and Exchange Commission.

ACTION: Final rule; extension of compliance dates; request for comment 
on Paperwork Reduction Act burden estimates.

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SUMMARY: We are extending further for smaller public companies the 
dates that were published on September 29, 2005, in Release No. 33-8618 
[70 FR 56825], for their compliance with the internal control reporting 
requirements mandated by Section 404 of the Sarbanes-Oxley Act of 2002. 
Under the extension, a non-accelerated filer is not required to provide 
management's report on internal control over financial reporting until 
it files an annual report for its first fiscal year ending on or after 
December 15, 2007. If we have not issued additional guidance for 
management on how to complete its

[[Page 76581]]

assessment of internal control over financial reporting in time to be 
of sufficient assistance in connection with annual reports filed for 
fiscal years ending on or after December 15, 2007, we will consider 
whether we should further postpone this date. A non-accelerated filer 
is not required to file the auditor's attestation report on internal 
control over financial reporting until it files an annual report for 
its first fiscal year ending on or after December 15, 2008. We will 
consider further postponing this date after we consider the anticipated 
revisions to Auditing Standard No. 2. Management's report included in a 
non-accelerated filer's annual report during the filer's first year of 
compliance with the Section 404(a) requirements will be deemed 
``furnished'' rather than filed. Management's report for foreign 
private issuers filing on Form 20-F or 40-F that are accelerated filers 
(but not large accelerated filers) also will be deemed furnished rather 
than filed for the year that such issuers are only required to provide 
management's report. Companies that only provide management's report 
during their first year of compliance in accordance with our rules must 
state in the annual report that the report does not include the 
auditor's attestation report and that the company's registered public 
accounting firm has not attested to management's report on the 
company's internal control over financial reporting.
    We also are adopting amendments that provide for a transition 
period for a newly public company before it becomes subject to the 
internal control over financial reporting requirements. Under the new 
amendments, a company will not become subject to these requirements 
until it either had been required to file an annual report for the 
prior fiscal year with the Commission or had filed an annual report 
with the Commission for the prior fiscal year. A newly public company 
is required to include a statement in its first annual report that the 
annual report does not include either management's assessment on the 
company's internal control over financial reporting or the auditor's 
attestation report.

DATES: Effective Date: The effective date published on June 18, 2003, 
in Release No. 33-8238 [68 FR 36636], remains August 14, 2003. The 
effective date of this document is February 20, 2007 except Temporary 
Sec.  210.2-02T(c), Temporary Sec.  228.308T, Temporary Sec.  229.308T, 
Temporary Item 15T of Form 20-F (Sec.  249.220f), Temporary Instruction 
3T of General Instruction B(6) of Form 40-F (Sec.  249.240f), Temporary 
Item 4T of Form 10-Q (Sec.  249.308a), Temporary Item 3A(T) of Form 10-
QSB (Sec.  249.308b), Temporary Item 9A(T) of Form 10-K (Sec.  
249.310), and Temporary Item 8A(T) of Form 10-KSB (Sec.  249.310b) are 
effective from February 20, 2007 to June 30, 2009. Temporary Sec.  
210.2-02T(a) remains effective from September 14, 2006 to December 31, 
2007.
    Compliance Dates: The compliance dates are extended as follows: A 
company that does not meet the definition of either an ``accelerated 
filer'' or a ``large accelerated filer,'' as these terms are defined in 
Rule 12b-2 under the Securities Exchange Act of 1934, is not required 
to comply with the requirement to provide management's report on 
internal control over financial reporting until it files an annual 
report for its first fiscal year ending on or after December 15, 2007. 
Non-accelerated filers must begin to comply with the provisions of 
Exchange Act Rule 13a-15(d) or 15d-15(d), whichever applies, requiring 
an evaluation of changes to internal control over financial reporting 
requirements with respect to the company's first periodic report due 
after the first annual report that must include management's report on 
internal control over financial reporting. The extended compliance also 
applies to the amendments of Exchange Act Rule 13a-15(a) or 15d-15(a) 
relating to the maintenance of internal control over financial 
reporting. We also are extending the compliance date to permit a non-
accelerated filer to omit the portion of the introductory language in 
paragraph 4 as well as language in paragraph 4(b) of the certification 
required by Exchange Act Rules 13a-14(a) and 15d-14(a) that refers to 
the certifying officers' responsibility for designing, establishing and 
maintaining internal control over financial reporting for the company, 
until it files an annual report that includes a report by management on 
the effectiveness of the company's internal control over financial 
reporting.
    A company that does not meet the definition of either an 
accelerated filer or a large accelerated filer is not required to 
comply with the requirement to provide the auditor's attestation report 
on internal control over financial reporting until it files an annual 
report for its first fiscal year ending on or after December 15, 2008. 
Furthermore, until this type of company becomes subject to the auditor 
attestation report requirement, the registered public accounting firm 
retained by the company need not comply with the obligation in Rule 2-
02(f) of Regulation S-X. Rule 2-02(f) requires every registered public 
accounting firm that issues or prepares an accountant's report that is 
included in an annual report filed by an Exchange Act reporting company 
(other than a registered investment company) containing an assessment 
by management of the effectiveness of the company's internal control 
over financial reporting to attest to, and report on, such assessment.
    Comment Date: Comments regarding the collection of information 
requirements within the meaning of the Paperwork Reduction Act of 1995 
should be received on or before January 22, 2007.
    ADDRESSES: Comments may be submitted by any of the following 
methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/final.shtml.
);     Send an e-mail to rule-comments@sec.gov. Please include 

File Number S7-06-03 on the subject line; or
     Use the Federal Rulemaking Portal (http://www.regulations.gov
). Follow the instructions for submitting comments.


Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.
    All submissions should refer to File Number S7-06-03. This file 
number should be included on the subject line if e-mail is used. To 
help us process and review your comments more efficiently, please use 
only one method. The Commission will post all comments on the 
Commission's Internet Web site (http://www.sec.gov/rules/final.shtml). 

Comments are also available for public inspection and copying in the 
Commission's Public Reference Room, 100 F Street, NE., Washington, DC 
20549. All comments received will be posted without change; we do not 
edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT: Sean Harrison, Steven G. Hearne, or 
Katherine Hsu, Special Counsels, Office of Rulemaking, Division of 
Corporation Finance, at (202) 551-3430, U.S. Securities and Exchange 
Commission, 100 F Street, NE., Washington, DC 20549-3628.
    SUPPLEMENTARY INFORMATION: We are amending certain internal control 
over financial reporting requirements in

[[Page 76582]]

Rules 13a-14,\1\ 13a-15,\2\ 15d-14,\3\ and 15d-15 \4\ under the 
Securities Exchange Act of 1934,\5\ Item 308 of Regulations S-K \6\ and 
S-B,\7\ Item 15 of Form 20-F,\8\ General Instruction B(6) of Form 40-
F,\9\ and Rule 2-02(f) \10\ of Regulation S-X.\11\ We also are adding 
the following temporary provisions: Rule 2-02T of Regulation S-X, Item 
308T of Regulations S-K and S-B, Item 3A(T) of Form 10-QSB, Item 4T of 
Form 10-Q, Item 8A(T) of Form 10-KSB, Item 9A(T) of Form 10-K, Item 15T 
of Form 20-F, and Instruction 3T of General Instruction B(6) of Form 
40-F.
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    \1\ 17 CFR 240.13a-14.
    \2\ 17 CFR 240.13a-15.
    \3\ 17 CFR 240.15d-14.
    \4\ 17 CFR 240.15d-15.
    \5\ 15 U.S.C. 78a et seq.
    \6\ 17 CFR 229.10 et seq.
    \7\ 17 CFR 228.10 et seq.
    \8\ 17 CFR 249.220f.
    \9\ 17 CFR 249.240f.
    \10\ 17 CFR 210.2-02(f).
    \11\ 17 CFR 210.1-01 et seq.
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I. Background

    On June 5, 2003,\12\ the Commission adopted several amendments to 
its rules and forms implementing Section 404 of the Sarbanes-Oxley Act 
of 2002.\13\ Among other things, these amendments require companies, 
other than registered investment companies, to include in their annual 
reports filed with us a report of management, and an accompanying 
auditor's attestation report, on the effectiveness of the company's 
internal control over financial reporting, and to evaluate, as of the 
end of each fiscal quarter, or year in the case of a foreign private 
issuer filing its annual report on Form 20-F or Form 40-F, any change 
in the company's internal control over financial reporting that 
occurred during the period that has materially affected, or is 
reasonably likely to materially affect, the company's internal control 
over financial reporting.
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    \12\ See Release No. 33-8238 (June 5, 2003) [68 FR 36636].
    \13\ 15 U.S.C. 7262.
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    Under the compliance dates that we originally established, 
companies meeting the definition of an ``accelerated filer'' in 
Exchange Act Rule 12b-2 \14\ would have become subject to the internal 
control reporting requirements with respect to the first annual report 
that they filed for a fiscal year ending on or after June 15, 2004. 
Non-accelerated filers \15\ would not have become subject to the 
requirements until they filed an annual report for a fiscal year ending 
on or after April 15, 2005. The Commission provided a lengthy 
compliance period for these requirements in light of the substantial 
time and resources needed by companies to implement the rules 
properly.\16\ In addition, we believed that a corresponding benefit to 
investors would result from an extended transition period that allowed 
companies to implement the new requirements carefully, and noted that 
an extended period would provide additional time for the Public Company 
Accounting Oversight Board (the PCAOB) to consider relevant factors in 
determining and implementing new attestation standards for registered 
public accounting firms.\17\
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    \14\ 17 CFR 240.12b-2.
    \15\ Although the term ``non-accelerated filer'' is not defined 
in our rules, we use it throughout this release to refer to an 
Exchange Act reporting company that does not meet the Exchange Act 
Rule 12b-2 definitions of either an ``accelerated filer'' or a 
``large accelerated filer.''
    \16\ See Release No. 33-8238.
    \17\ Under the Sarbanes-Oxley Act, the PCAOB was granted 
authority to set auditing and attestation standards for registered 
public accounting firms.
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    In February 2004, we extended the compliance dates for accelerated 
filers to fiscal years ending on or after November 15, 2004, and for 
non-accelerated filers and for foreign private issuers to fiscal years 
ending on or after July 15, 2005.\18\ The primary purpose of this 
extension was to provide additional time for companies' auditors to 
implement Auditing Standard No. 2, which the PCAOB had issued in final 
form in June 2004.\19\
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    \18\ See Release No. 33-8392 (Feb. 24, 2004) [69 FR 9722].
    \19\ See Release No. 34-49884 File No. PCAOB 2004-03 (June 17, 
2004) [69 FR 35083]. Auditing Standard No. 2, An Audit of Internal 
Control Over Financial Reporting Performed in Connection with an 
Audit of Financial Statements, provides the professional standards 
and related performance guidance for independent auditors to attest 
to, and report on, management's assessment of the effectiveness of 
companies' internal control over financial reporting.
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    In March 2005, we approved a further one-year extension of the 
compliance dates for non-accelerated filers and for all foreign private 
issuers filing annual reports on Form 20-F or 40-F in view of the 
efforts by the Committee of Sponsoring Organizations of the Treadway 
Commission (``COSO'') to provide more guidance on how the COSO 
framework on internal control can be applied to smaller public 
companies.\20\ We also acknowledged the significant efforts being 
expended by many foreign private issuers to apply the International 
Financial Reporting Standards.
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    \20\ Release No. 33-8545 (Mar. 2, 2005) [70 FR 11528].
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    Most recently, in September 2005, we again extended the compliance 
dates for the internal control over financial reporting requirements 
applicable to companies that are non-accelerated filers.\21\ Based on 
the September 2005 extension, domestic and foreign non-accelerated 
filers were scheduled to comply with the internal control over 
financial reporting requirements beginning with annual reports filed 
for their first fiscal year ending on or after July 15, 2007. This 
extension was based primarily on our desire to have the additional 
guidance in place that COSO had begun to develop to assist smaller 
companies in applying the COSO framework. In addition, the extension 
was consistent with a recommendation made by the SEC Advisory Committee 
on Smaller Public Companies.
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    \21\ See Release No. 33-8618 (Sept. 22, 2005) [70 FR 56825].
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    Since we granted that extension last year, a number of events 
related to internal control over financial reporting assessments have 
occurred. Most recently, on July 11, 2006, COSO and its Advisory Task 
Force issued Guidance for Smaller Public Companies Reporting on 
Internal Control over Financial Reporting.\22\ The guidance is intended 
to assist the management of smaller companies in understanding and 
applying the COSO framework. It outlines 20 fundamental principles 
associated with the five key components of internal control described 
in the COSO framework, defines each principle, describes a variety of 
approaches that smaller companies can use to apply the principles to 
financial reporting, and includes examples of how smaller companies 
have applied the principles.
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    \22\ See SEC Press Release No. 2006-114 (July 11, 2006) at 
http://www.sec.gov/news/press/2006/2006-114.htm.

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    In addition, on April 23, 2006, the SEC Advisory Committee on 
Smaller Public Companies submitted its final report to the 
Commission.\23\ The final report includes recommendations designed to 
address the potential impact of the internal control reporting 
requirements on smaller public companies. Specifically, the Advisory 
Committee recommended that certain smaller public companies be provided 
exemptive relief from the management report requirement and from 
external auditor involvement in the Section 404 process under certain 
conditions unless and until a framework for assessing internal control 
over financial reporting is developed that recognizes the

[[Page 76583]]

characteristics and needs of these companies.
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    \23\ See Final Report of the Advisory Committee on Smaller 
Public Companies to the United States Securities and Exchange 
Commission (Apr. 23, 2006), available at http://www.sec.gov/info/smallbus/acspc.shtml
.

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    In April 2006, the U.S. Government Accountability Office (GAO) 
issued a report entitled Sarbanes-Oxley Act, Consideration of Key 
Principles Needed in Addressing Implementation for Smaller Public 
Companies.\24\ This report recommended that the Commission consider 
whether the currently available guidance, particularly the guidance on 
management's assessment, is sufficient or whether additional action is 
needed to help companies comply with the internal control over 
financial reporting requirements. The report indicates that 
management's implementation and assessment efforts were largely driven 
by Auditing Standard No. 2 because guidance at a similar level of 
detail was not available for management's implementation and assessment 
process. Furthermore, the report recommended that the Commission 
coordinate its efforts with the PCAOB so that the Section 404-related 
audit standards and guidance are consistent with any additional 
guidance applicable to management's assessment of internal control over 
financial reporting.\25\
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    \24\ U.S. Govt. Accountability Office, Report to the Committee 
on Small Business and Entrepreneurship, U.S. Senate: Sarbanes-Oxley 
Act: Consideration of Key Principles Needed in Addressing 
Implementation for Smaller Public Companies (April 2006).
    \25\ See GAO Report at 52-53, 58.
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    Finally, on May 10, 2006, the Commission and the PCAOB sponsored a 
roundtable to elicit feedback from companies, their auditors, board 
members, investors, and others regarding their experiences during the 
accelerated filers' second year of compliance with the internal control 
over financial reporting requirements.\26\ Several of the comments 
provided at, and in connection with, the roundtable suggested that 
additional management guidance would be useful, particularly for 
smaller public companies, and also expressed support for revisions to 
the PCAOB's Auditing Standard No. 2.\27\
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    \26\ Materials related to the roundtable, including an archived 
broadcast and a transcript of the roundtable, are available on-line 
at http://www.sec.gov/spotlight/soxcomp.htm.

    \27\ See, for example, letters from the Biotech Industry 
Association, American Electronics Association, Emerson Electric 
Institute, U.S. Chamber of Commerce and Joseph A. Grundfest. These 
letters are available in File No. 4-511, at http://www.sec.gov/news/press/4-511.shtml
.

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II. Extension of Internal Control Reporting Compliance Dates for Non-
Accelerated Filers

    On May 17, 2006, the Commission and the PCAOB each announced a 
series of actions that they intended to take to improve the 
implementation of the Section 404 internal control over financial 
reporting requirements.\28\ These actions included:
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    \28\ See SEC Press Release 2006-75 (May 17, 2006), ``SEC 
Announces Next Steps for Sarbanes-Oxley Implementation'' and PCAOB 
Press Release (May 17, 2006), ``Board Announces Four-Point Plan to 
Improve Implementation of Internal Control Reporting Requirements.''
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     Issuance of a concept release \29\ soliciting comment on a 
variety of issues that might be included in future Commission guidance 
for management to assist in its performance of a top-down, risk-based 
assessment of internal control over financial reporting;
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    \29\ Release No. 34-54122 (July 11, 2006) [71 FR 40866].
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     Consideration of additional guidance from COSO;
     Revisions to Auditing Standard No. 2;
     Reinforcement of auditor efficiency through PCAOB 
inspections and Commission oversight of the PCAOB's audit firm 
inspection program;
     Development, or facilitation of development, of 
implementation guidance for auditors of smaller public companies;
     Continuation of PCAOB forums on auditing in the small 
business environment; and
     Provision of an additional extension of the compliance 
dates of the internal control reporting requirements for non-
accelerated filers.
    Consistent with this announcement, on August 9, 2006, we proposed 
to extend further the date for complying with the internal control over 
financial reporting requirements for domestic and foreign non-
accelerated filers.\30\ Approximately 44% of domestic companies filing 
periodic reports are non-accelerated filers, and an estimated 38% of 
the foreign private issuers subject to Exchange Act reporting are non-
accelerated filers.\31\ Prior to today's actions, non-accelerated 
filers were scheduled to begin complying with the management report 
requirement in Item 308(a) of Regulations S-K and S-B and the auditor 
attestation requirement in Item 308(b) of Regulations S-K and S-B for 
their fiscal years ending on or after July 15, 2007. We proposed to 
postpone for five months (from fiscal years ending on or after July 15, 
2007 to fiscal years ending on or after December 15, 2007) the date by 
which non-accelerated filers must begin to include management's report. 
We also proposed to extend the compliance date for a non-accelerated 
filer regarding the auditor attestation report requirement for 17 
months--until it files an annual report for a fiscal year ending on or 
after December 15, 2008.\32\
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    \30\ Release No. 33-8731 (Aug. 9, 2006) [71 FR 47060].
    \31\ The percentage of domestic filing companies, excluding 
Investment Company Act of 1940 filers, that is categorized as non-
accelerated filers is based on public float where available (or 
market capitalization, otherwise) from Datastream as of December 31, 
2005. The estimated percentage of foreign private issuers that are 
non-accelerated filers is based on market capitalization data from 
Datastream as of December 31, 2005.
    \32\ We also proposed and are extending the compliance dates for 
the auditor attestation report requirement appearing in Item 15(c) 
of Form 20-F and General Instruction B(6) of Form 40-F with respect 
to foreign private issuers that are non-accelerated filers.
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    Furthermore, in a separate release also issued on August 9, 2006, 
we adopted an extension of the date for complying with the auditor 
attestation requirement for foreign private issuers that meet the 
Exchange Act definition of an accelerated filer, but not a large 
accelerated filer, and that file their annual reports on Form 20-F or 
40-F, so that such issuers would not be subject to the auditor 
attestation requirement until a year after they first begin complying 
with the management report requirement.\33\
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    \33\ Release No. 33-8730A (Aug. 9, 2006) [71 FR 47056].
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    We received letters from a total of 36 commenters on the proposed 
extension of the internal control over financial reporting compliance 
dates for non-accelerated filers.\34\ Thirty-five of these commenters 
generally supported the proposed extension.\35\ Many of these 
commenters believed that the extension would reduce compliance costs 
for smaller companies and provide them

[[Page 76584]]

with additional time to develop best practices for compliance and 
greater efficiencies in preparing management reports.\36\ Some 
commenters suggested that the Commission extend the compliance date 
associated with the management report requirement for an even longer 
period of time than proposed.\37\ The commenter that did not express 
support for the proposed extension opposed, in particular, the 17-month 
extension of the auditor attestation compliance date.\38\
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    \34\ The public comments we received are available for 
inspection in the Commission's Public Reference Room at 100 F 
Street, NE., Washington DC 20549 in File No. S7-06-03. They are also 
available on-line at http://www.sec.gov/rules/proposed/s70603.shtml.

    \35\ See letters from American Bar Association (ABA), American 
Bankers Association, America's Community Bankers (ACB), American 
Institute of Certified Public Accountants (AICPA), BDO Seidman, LLP 
(BDO), Biotechnology Industry Organization and eight other 
commenters (BIO), Callidus Software Inc. (Callidus), Calix Networks, 
Inc. (Calix), Core-Mark International, Inc. (Core-Mark), Cravath, 
Swaine & Moore LLP (Cravath), Davis Polk & Wardwell (Davis Polk), 
Deloitte Touche LLP (Deloitte), Ernst & Young (E&Y), Financial 
Executives International (FEI), James Finn (J. Finn), Grant Thornton 
LLP (Grant Thorton), Graybar Electric (Graybar), Hermes Equity 
Ownership Services Ltd. (Hermes), Independent Community Bankers of 
America (ICBA), Idaho Independent Bank (IIB), IncrediMail Ltd., 
Institute of Public Auditors of Germany (IDW), Key Technology (Key), 
KPMG LLP (KPMG), LaCrosse Footwear, Inc. (LaCrosse), Congressman 
Stephen F. Lynch (Congressman Lynch), George Merkl (G. Merkl), 
MOCON, Inc. (MOCON), National Venture Capital Association (NVCA), 
PricewaterhouseCoopers LLP (PwC), Priority Fulfillment Services, 
Inc. (PFS), The Office of Advocacy of the Small Business 
Administration (SBA), Telecommunications Industry Association (TIA), 
Village Super Market, Inc. (Village) and Washington Legal 
Foundation.
    \36\ See, for example, letters from Core-Mark, FEI, J. Finn, 
Graybar, and Village.
    \37\ See, for example, letters from ABA, ACB, Davis Polk, ICBA, 
and MOCON.
    \38\ See letter from Council of Institutional Investors (CII). 
This commenter indicated that it would not oppose one additional 
modest extension of the compliance date for the internal control 
over financial reporting requirements for non-accelerated filers.
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    We are adopting the extension of the compliance dates substantially 
as proposed. In response to public comment, we are adding a requirement 
that a non-accelerated filer clearly disclose in management's report 
that management's assessment of internal control has not been attested 
to by the auditor, if it is providing only management's report during 
its first year of compliance with the Section 404 requirements.\39\
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    \39\ See paragraph 4 of Item 308T of Regulations S-K and S-B, 
paragraph 4 of Item 15T of Form 20-F, and Instruction 3T of General 
Instruction B(6) of Form 40-F.
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    Some commenters suggested that the Commission broaden the scope of 
relief so that the extended compliance dates would still cover 
companies that currently are non-accelerated filers even if they become 
accelerated filers or large accelerated filers before December 15, 
2008.\40\ We are not adopting this relief as proposed. Consistent with 
the Exchange Act Rule 12b-2 definition of an accelerated filer and of a 
large accelerated filer, companies should determine their accelerated 
filing status at the end of the fiscal year in order to determine 
whether the extension is applicable to them.
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    \40\ See letters from Callidus, Core-Mark, IIB, PFS, and 
Village.
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    Pursuant to the extension, a non-accelerated filer must begin to 
provide management's report on internal control over financial 
reporting in an annual report it files for its first fiscal year ending 
on or after December 15, 2007.\41\ Non-accelerated filers must begin to 
comply with the provisions of Exchange Act Rule 13a-15(d) or 15d-
15(d),\42\ whichever applies, requiring an evaluation of changes to 
internal control over financial reporting requirements with respect to 
the company's first periodic report due after the first annual report 
that must include management's report on internal control over 
financial reporting. The extended compliance date also applies to the 
amendments of Exchange Act Rule 13a-15(a) or 15d-15(a) \43\ relating to 
the maintenance of internal control over financial reporting. Under the 
extension, a non-accelerated filer must begin to provide the auditor 
attestation report in the annual report it files for its first fiscal 
year ending on or after December 15, 2008. We believe that these 
changes will make the internal control reporting process more efficient 
and effective, while preserving the intended benefits of the internal 
control over financial reporting provisions to investors.
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    \41\ While the definition of an accelerated filer in Exchange 
Act Rule 12b-2 previously has had applicability only for a foreign 
private issuer that files its Exchange Act periodic reports on Forms 
10-K and 10-Q, the definition by its terms does not exclude foreign 
private issuers. A foreign private issuer that is a large 
accelerated filer under the Exchange Act Rule 12b-2 definition, and 
that files its annual reports on Form 20-F or Form 40-F, must begin 
to comply with the internal control over financial reporting and 
related requirements in the annual report for its first fiscal year 
ending on or after July 15, 2006. A foreign private issuer that is 
an accelerated filer, but not a large accelerated filer, under the 
definition in Rule 12b-2 of the Exchange Act, and that files its 
annual report on Form 20-F or Form 40-F, must begin to comply with 
the requirement to provide the auditor's attestation report on 
internal control over financial reporting in the annual report filed 
for its first fiscal year ending on or after July 15, 2007. A 
foreign private issuer that is not an accelerated filer under the 
Exchange Act Rule 12b-2 definition is required, under this 
extension, to begin to comply with the management report requirement 
in its annual report for its first fiscal year ending on or after 
December 15, 2007.
    \42\ 17 CFR 240.13a-15(d) and 17 CFR 240.15d-15(d).
    \43\ 17 CFR 240.13a-15(a) and 17 CFR 240.15d-15(a).
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    We estimate that fewer than 15% of all non-accelerated filers will 
have a fiscal year ending between July 15, 2007 and December 15, 
2007.\44\ Therefore, the extension of the compliance date of the 
management report requirement to December 15, 2007 will not impact the 
majority of non-accelerated filers in 2007, including those with a 
calendar year-end. Our intention is to provide all non-accelerated 
filers, none of which is yet required to comply with the Section 404 
requirements, with the benefit of the management guidance that the 
Commission plans to issue and the recently issued COSO guidance on 
understanding and applying the COSO framework, before planning and 
conducting their internal control assessments. We expect that extending 
the implementation of the management report requirement for another 
five months will provide sufficient time for the Commission to issue 
final guidance to assist in management's performance of a top-down, 
risk-based and scalable assessment of controls over financial 
reporting.\45\ If such guidance is not finalized in time to be of 
assistance to management of non-accelerated filers in connection with 
their assessments as of the end of the fiscal year for the annual 
reports filed for fiscal years ending on or after December 15, 2007, we 
will consider further postponing this compliance date.
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    \44\ The percent of all non-accelerated filers is categorized 
using float where available (or market capitalization, otherwise) 
using Datastream as of December 31, 2005 and excludes 1940 Act 
filers. Fiscal year ends are also from Datastream.
    \45\ We anticipate issuing the proposed guidance for management 
by mid-December 2006. See SEC Press Release No. 2006-172 (Oct. 11, 
2006) at http://www.sec.gov/news/press/2006/2006-172.htm.

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    The extension of the date for complying with the management report 
requirement permits non-accelerated filers to complete only 
management's report on internal control over financial reporting in the 
first year of compliance. As noted in the Proposing Release, we have 
several reasons for deferring the implementation of the auditor 
attestation report requirement for an additional year after the 
implementation of the management report requirement. First, we believe 
that the deferred implementation affords non-accelerated filers and 
their auditors the benefit of anticipated changes by the PCAOB to 
Auditing Standard No. 2, subject to Commission approval, as well as any 
implementation guidance that the PCAOB plans to issue for auditors of 
smaller public companies. We will consider further postponing this date 
after we consider the anticipated revisions to Auditing Standard No. 2.
    Second, we believe that the deferred implementation of the auditor 
attestation requirement should save non-accelerated filers the full 
potential costs associated with the initial auditor's attestation to, 
and report on, management's assessment of internal control over 
financial reporting during the period that changes to Auditing Standard 
No. 2 are being considered and implemented, and the PCAOB is 
formulating guidance that will be specifically directed to auditors of 
smaller companies. Public commenters previously have asserted that the 
internal control reporting compliance costs are likely to be 
disproportionately higher for smaller public companies than larger 
ones, and that the auditor's fee represents a large percentage of those 
costs. Furthermore, we have learned from public comments, including our 
roundtables on implementation of the internal control

[[Page 76585]]

reporting provisions,\46\ that while companies incur increased internal 
costs in the first year of compliance as well due to ``deferred 
maintenance'' items (e.g., documentation, remediation, etc.), these 
costs may decrease in the second year. Therefore, postponing the costs 
that result from the auditor's attestation report until the second year 
may help non-accelerated filers to smooth the significant cost spike 
that many accelerated filers experienced in their first year of 
compliance with the Section 404 requirements.
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    \46\ Materials related to the Commission's 2005 Roundtable 
Discussion on Implementation of Internal Control Reporting 
Provisions and 2006 Roundtable on Second-year Experiences with 
Internal Control Reporting and Auditing Provisions, including the 
archived roundtable broadcasts, are available at http://www.sec.gov/spotlight/soxcomp.htm
.

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    One commenter that opposed the 17-month extension of the compliance 
date for the auditor attestation requirement noted that there is 
anecdotal evidence that smaller companies have not taken advantage of 
the previous extensions for non-accelerated filers.\47\ Unlike the 
previous extensions, however, which provided for an extension for both 
the management report requirement and the auditor attestation 
requirement, the extension that we are adopting now requires management 
of non-accelerated filers to examine their companies' internal control 
over financial report reporting (and to permit investors to see and 
evaluate the results of management's first compliance efforts) while 
enabling management to more gradually prepare for full compliance with 
the Section 404 requirements and to gain some efficiencies in the 
process of reviewing and evaluating the effectiveness of internal 
control over financial reporting before becoming subject to the auditor 
attestation requirement. Finally, deferred implementation should 
provide the Commission and the PCAOB with additional time to consider 
the public comments we received in response to the questions we raised 
in the Concept Release \48\ on management guidance related to the 
appropriate role of the auditor in evaluating management's internal 
control assessment process.\49\
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    \47\ See letter from CII.
    \48\ Release No. 34-54122. The comment period for the Concept 
Release closed on September 18, 2006, and the letters that we 
received on the Concept Release are available in File No. S7-11-06, 
at http://www.sec.gov/comments/s7-11-06/s71106.shtml.

    \49\ Six commenters agreed that an extension will provide the 
Commission with additional time to consider the comments to the 
questions raised in the Concept Release. See letters from FEI, 
Hermes, ICBA, G. Merkl, NVCA, and ICBA.
---------------------------------------------------------------------------

    Several commenters supported the sequential implementation of the 
management assessment and auditor attestation requirements, which we 
are adopting.\50\ Some agreed that the deferred implementation of the 
auditor report requirement would help smaller companies reduce the 
overall cost of compliance with the internal control over financial 
reporting requirements.\51\ Some commenters opposed the deferred 
implementation of the auditor attestation requirement,\52\ while some 
other commenters expressed concerns over the proposal without expressly 
opposing it.\53\ For example, commenters questioned whether during the 
year in which management's report is not attested to by the auditor, 
there will be a greater risk that management will fail to report 
material weaknesses,\54\ or whether there will be a lack of meaningful 
disclosure provided by management's assessment of internal control over 
financial reporting.\55\ We acknowledge that investors will not receive 
the full assurance that a management assessment that has been attested 
to by an auditor would provide. Nevertheless, we believe that the 
graduated introduction of the 404 requirements will provide more 
meaningful benefit to investors more quickly than either the immediate 
introduction of both requirements or further delays in implementing the 
management report requirement.\56\ This graduated approach will allow 
management to gain efficiencies in reporting without the full cost of 
an attestation and allow investors to review important information that 
would be otherwise unavailable.
---------------------------------------------------------------------------

    \50\ See letters from ACB, Cravath, FEI, J. Finn, Hermes, ICBA, 
LaCrosse, G. Merkl, MOCON, and SBA.
    \51\ See, for example, letters from FEI, Hermes, and SBA.
    \52\ See, for example, letters from ABA, CII, IDW, and PwC.
    \53\ See, for example, letters from AICPA, BDO, Davis Polk, 
Deloitte, and E&Y.
    \54\ See, for example, letters from AICPA, Grant Thorton, IDW, 
PwC, and Deloitte. The letter from CII, which also opposed the 
deferred implementation of the auditor attestation requirement, 
stated, in general, that smaller companies are prone to more 
misstatements and restatements of financial information, and make up 
the bulk of accounting fraud cases.
    \55\ See, for example, letters from IDW.
    \56\ See also letter from KPMG.
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    We received some comments noting that the different schedules for 
implementing the two requirements on internal control over financial 
reporting might cause confusion to investors and the capital 
markets.\57\ Also, several commenters, in response to a specific 
request for comment, expressed support for a requirement that non-
accelerated filers disclose in its annual report that management's 
assessment has not been attested to by the auditor during the year that 
the auditor's attestation is not required.\58\ In response to these 
comments that we received, we are adopting an additional disclosure 
requirement to Item 308 of Regulations S-K and S-B, Item 15 of Form 20-
F, and General Instruction B(6) of Form 40-F.\59\ Non-accelerated 
filers will be now required to include a statement in management's 
report on internal control over financial reporting in substantially 
the following form:
---------------------------------------------------------------------------

    \57\ See, for example, letters from CII and PwC.
    \58\ See letters from AICPA, BDO, Deloitte, E&Y, Grant Thorton, 
and KPMG.
    \59\ See paragraph 4 of Item 308T of Regulations S-K and S-B, 
paragraph 4 of Item 15T of Form 20-F, and Instruction 3T of General 
Instruction B(6) of Form 40-F.

    This annual report does not include an attestation report of the 
company's registered public accounting firm regarding internal 
control over financial reporting. Management's report was not 
subject to attestation by the company's registered public accounting 
firm pursuant to temporary rules of the Securities and Exchange 
Commission that permit the company to provide only management's 
---------------------------------------------------------------------------
report in this annual report.

    In the Proposing Release, we indicated that we had issued a 
separate release to extend the date by which a foreign private issuer 
that is an accelerated filer (but not a large accelerated filer) and 
that files its annual report on Form 20-F or 40-F must begin to comply 
with the auditor attestation report portion of the Section 404 
requirements. We requested comment on whether we should consider taking 
additional actions specifically with respect to foreign private 
issuers. Like non-accelerated filers, these foreign private issuers 
will provide only management's report during their first year of 
compliance with the internal control over financial reporting 
requirements.\60\ Some commenters expressed support for the delayed 
audit report compliance date for these issuers and thought it was 
appropriate for us to take similar action with respect to both non-
accelerated filers and the foreign private issuers.\61\ To maintain 
consistency among the revised requirements, we are adopting the same 
type of disclosure requirement for foreign private issuers that are 
accelerated filers that we are adopting for the non-accelerated filers.
---------------------------------------------------------------------------

    \60\ Release No. 33-8730A.
    \61\ See, for example, letters from E&Y and FEI.
---------------------------------------------------------------------------

    One commenter noted that disagreements over whether management 
failed to report a material

[[Page 76586]]

weakness could create conflict between management and the auditor,\62\ 
and two other commenters noted that disagreements could also arise if 
the auditor does not agree with management's approach or methodology 
for testing internal control over financial reporting.\63\ As noted in 
the Proposing Release, during the year that non-accelerated filers are 
only required to provide management's report, we encourage frequent and 
frank dialogue among management, auditors and audit committees to 
improve internal controls and the financial reports upon which 
investors rely. We believe that management should not fear that a 
discussion of internal controls with, or a request for assistance or 
clarification from, the company's auditor will itself be deemed a 
deficiency in internal control or constitute a violation of our 
independence rules as long as management determines the accounting to 
be used and does not rely on the auditor to design or implement its 
controls.\64\ We believe that open dialogue between management and 
auditors may help to ameliorate some of the concerns of commenters 
regarding disagreements between these parties in the second year of 
compliance with the internal control reporting provisions.
---------------------------------------------------------------------------

    \62\ See letter from IDW.
    \63\ See, for example, letters from Davis Polk and G. Merkl.
    \64\ See Commission Statement on Implementation of Internal 
Control Requirements, Press Release No. 2005-74 (May 16, 2005), 
available at http://www.sec.gov/news/press/2005-74.htm.

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    Nevertheless, as noted in the Proposing Release, we acknowledge 
that a company that files only a management report during its first 
year of compliance with the Section 404 requirements may become subject 
to more second-guessing as a result of separating the management and 
auditor reports than under the current requirements. For example, 
management may conclude that the company's internal control over 
financial reporting is effective when only management's report is filed 
in the first year of compliance, but the auditor may come to a contrary 
conclusion in its report filed in the subsequent year, and as a result, 
the company's previous assessment may be called into question. To 
further address this, we proposed a temporary amendment whereby the 
management report included in the non-accelerated filer's annual report 
during the first year of compliance would be deemed ``furnished'' 
rather than ``filed.'' \65\
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    \65\ Management's report is not be deemed to be filed for 
purposes of Section 18 of the Exchange Act [15 U.S.C. 78r] or 
otherwise subject to the liabilities of that section, unless the 
issuer specifically states that the report is to be considered 
``filed'' under the Exchange Act or incorporates it by reference 
into a filing under the Securities Act or the Exchange Act.
---------------------------------------------------------------------------

    Almost all of the commenters remarking on this aspect of the 
proposal supported it.\66\ We are adopting this provision as proposed. 
Commenters also supported our corresponding proposal \67\ to afford 
similar relief to foreign private issuers that are accelerated filers 
(but not large accelerated filers), that like non-accelerated filers, 
will only provide management's report during their first year of 
compliance with the internal control over financial reporting 
requirements. We are adopting that provision as well.\68\
---------------------------------------------------------------------------

    \66\ Eight commenters supported the proposed revision to deem 
the management's report on internal control over financial reporting 
to be ``furnished'' rather than ``filed'' during the first year that 
non-accelerated filers are required to complete only management's 
report on internal control over financial reporting. See letters 
from ACB, Cravath, Deloitte, E&Y, FEI, Hermes, LaCrosse, and G. 
Merkl. But see letter from IDW.
    \67\ See, for example, letters from E&Y, FEI, Hermes, and G. 
Merkl.
    \68\ See paragraph (b) of Item 15T of Form 20-F and Instruction 
3T to General Instruction B(6) of Form 40-F.
---------------------------------------------------------------------------

    We also are extending the compliance date to permit a non-
accelerated filer to omit the portion of the introductory language in 
paragraph 4 as well as language in paragraph 4(b) of the certification 
required by Exchange Act Rules 13a-14(a) and 15d-14(a) \69\ that refers 
to the certifying officers' responsibility for designing, establishing 
and maintaining internal control over financial reporting for the 
company, until it files an annual report that includes a report by 
management on the effectiveness of the company's internal control over 
financial reporting. This language is required to be provided in the 
first annual report required to contain management's internal control 
report and in all periodic reports filed thereafter.
---------------------------------------------------------------------------

    \69\ 17 CFR 240.13a-14(a) and 240.15d-14(a).
---------------------------------------------------------------------------

    Finally, we are clarifying that, until a non-accelerated filer 
becomes subject to the auditor attestation report requirement, the 
registered public accounting firm retained by the non-accelerated filer 
need not comply with the obligation in Rule 2-02(f) of Regulation S-X. 
Rule 2-02(f) requires every registered public accounting firm that 
issues or prepares an accountant's report that is included in an annual 
report filed by an Exchange Act reporting company (other than a 
registered investment company) containing an assessment by management 
of the effectiveness of the company's internal control over financial 
reporting to attest to, and report on, such assessment.
    The extended compliance periods do not, in any way, alter 
requirements regarding internal control that already are in effect with 
respect to non-accelerated filers, including, without limitation, 
Section 13(b)(2) of the Exchange Act \70\ and the rules thereunder.
---------------------------------------------------------------------------

    \70\ 15 U.S.C. 78m(b)(2).
---------------------------------------------------------------------------

III. Transition Period for Compliance With the Internal Control Over 
Financial Reporting Requirements by Newly Public Companies

A. Proposed Amendment and Public Comments

    In the Proposing Release, we also proposed to add a transition 
period for newly public companies before they become subject to 
compliance with the internal control over financial reporting 
requirements. Under the rules existing prior to the amendments, after 
all Exchange Act reporting companies have been phased-in and are 
required to comply fully with the internal control reporting 
provisions, any company undertaking an initial public offering or 
registering a class of securities under the Exchange Act for the first 
time would have been required to comply with those provisions as of the 
end of the fiscal year in which it became a public company.
    For many companies, preparation of the first annual report on Form 
10-K, 10-KSB, 20-F or 40-F is a comprehensive process involving the 
audit of financial statements, compilation of information that is 
responsive to many new public disclosure requirements and review of the 
report by the company's executive officers, board of directors and 
legal counsel. Requiring a newly public company and its auditor to 
complete the management report and auditor attestation report on the 
effectiveness of the company's internal control over financial 
reporting within the same timeframe imposes an additional burden on 
newly public companies.
    The Proposing Release also specifically recognized the burden that 
preparing the reports imposed on companies, including foreign 
companies, that become subject to Section 15(d) after filing a 
registration statement under the Securities Act of 1933 \71\ but may be 
eligible to terminate their periodic filing obligations after filing 
just one annual report.\72\ In light

[[Page 76587]]

of the compliance burden of these requirements, we proposed to provide 
a transition period for newly public companies.
---------------------------------------------------------------------------

    \71\ 15 U.S.C. 77a et seq.
    \72\ A transition period also would provide relief for foreign 
companies that become subject to the Exchange Act reporting 
requirements by virtue of Exchange Act Rule 12g-3 [17 CFR 240.12g-3] 
in connection with a transaction which is not registered under the 
Securities Act that constitutes an exchange offer for the securities 
of, or business combination with, a company that has reporting 
obligations under the Exchange Act. The relief, as adopted, would 
thus apply to an unregistered foreign company that succeeds to the 
reporting obligations of a registered foreign company under Rule 
12g-3 in connection with an acquisition transaction effected under, 
for example, Securities Act Section 3(a)(10) [15 U.S.C. 77c(a)(10)] 
or Securities Act Rule 802 [17 CFR 230.802].
---------------------------------------------------------------------------

    Specifically, we proposed that a newly public company would not 
need to comply with our internal control over financial reporting 
requirements in the first annual report that it files with the 
Commission.\73\ Rather, the company would begin to comply with these 
requirements in the second annual report that it is required to file 
with the Commission. We stated our belief in the Proposing Release that 
providing additional time for a newly public company to conduct its 
first assessment of internal control over financial reporting would 
benefit investors by making implementation of the internal control 
reporting requirements more effective and efficient and reducing the 
costs that a company faces in its first year as a public company. We 
also expressed a belief that the proposed transition period would limit 
any interference by our rules with a company's business decision 
regarding the timing and use of resources relating to its initial U.S. 
listing or public offering.
---------------------------------------------------------------------------

    \73\ See Release No. 33-8731 (Aug. 9, 2006) [71 FR 47060].
---------------------------------------------------------------------------

    We received 22 comment letters addressing our proposal on newly 
public companies.\74\ Most of these commenters supported our efforts to 
reduce the burden of compliance with our internal control over 
financial reporting requirements by providing a transition period for 
those companies.\75\
---------------------------------------------------------------------------

    \74\ See letters from ABA, ACB, AICPA, BDO, BIO, Calix, CII, 
Core Mark, Cleary, Cravath, Davis Polk, Deloitte, E&Y, Grant 
Thornton, Graybar, Hermes, G. Merkl, NVCA, PFS, PwC, SBA and TIA.
    \75\ See, for example, letters from ABA, ACB, AICPA, BDO, BIO, 
Calix, Cravath, Cleary, Davis Polk, Grant Thornton, Graybar, Hermes, 
NVCA, PFS, SBA, and TIA.
---------------------------------------------------------------------------

B. Discussion of Final Amendment

    After consideration of the public comments that were received, we 
are adopting the newly public company amendments substantially as 
proposed. We are therefore amending the rules to provide that a newly 
public company does not need to comply with our internal control over 
financial reporting requirements in the first annual report that it 
files with the Commission.\76\ As noted, there was broad support from 
commenters for a transition period postponing compliance with these 
requirements until the second annual report filed with the 
Commission.\77\ One commenter suggested that the transition period was 
of ``critical importance'' for effective and meaningful compliance with 
Section 404 requirements by newly public companies.\78\
---------------------------------------------------------------------------

    \76\ Instruction 1 to Item 308 of Regulations S-B and S-K, Item 
15 of Form 20-F, and General Instruction B(6) of Form 40-F, and 
Exchange Act Rules 13a-15(a), (c) and (d) and 15d-15(a), (c) and 
(d). The definition of an accelerated filer was based, in part, on 
the requirements for registration of primary offerings for cash on 
Form S-3. See Section II.B.3 in Release No. 33-8128 (Sept. 5, 2002) 
[67 FR 58480] and Section I in Release No. 33-8644 (Dec. 21, 2005) 
[70 FR 76626]. In some situations, a newly formed public company may 
seek to use another entity's reporting history for purposes of using 
Form S-3. For example, a spun-off entity may attempt to use its 
parent's reporting history or a newly formed holding company may 
seek to use its predecessor's reporting history. Because of the 
inter-relationship between Form S-3 eligibility and accelerated 
filer status, we believe that, to the extent a newly formed public 
company seeks to use and is deemed eligible to use Form S-3 on the 
basis of another entity's reporting history, that company would also 
be an accelerated filer and therefore required to comply with Items 
308(a) and 308(b) of Regulation S-K in the first annual report that 
it files.
    \77\ See n. 75 above.
    \78\ See letter from Cleary.
---------------------------------------------------------------------------

    Two commenters objected to the proposed relief, noting the 
importance of the internal control over financial reporting 
requirements to the Sarbanes-Oxley Act reforms.\79\ We believe that the 
one-year transition period strikes an appropriate balance by requiring 
newly public companies to develop and implement effective internal 
controls and procedures, while allowing management some time to more 
cost-effectively conduct their entry into the public markets and gain 
efficiencies in preparation for compliance with our internal control 
over financial reporting requirements. As noted below, we are also 
requiring clear disclosure by newly public companies that they are not 
required to include either a report by management or an auditor's 
attestation report on internal control over financial reporting in 
their first annual report so that investors can consider that 
information when making their investing decisions.
---------------------------------------------------------------------------

    \79\ See, for example, letters from CII and Deloitte.
---------------------------------------------------------------------------

    One commenter sought clarification on the transition period,\80\ 
and others suggested expanding the transition period for newly public 
companies to allow them more time to comply with the requirements.\81\ 
We are adopting amendments to provide that a registrant need not comply 
with the internal control over financial reporting requirements ``until 
it either had been required to file an annual report pursuant to 
section 13(a) or 15(d) of the Act for the prior fiscal year or had 
filed an annual report with the Commission for the prior fiscal year.'' 
\82\ The amendments require a newly public company to fully comply with 
the internal control over financial reporting requirements when filing 
its second annual report with the Commission, allowing a company at 
least one annual reporting period from the time it becomes a public 
company to prepare for compliance. A newly public company also need not 
comply with the provisions of Exchange Act Rule 13a-15(d) or 15d-15(d), 
requiring an evaluation of changes to internal control over financial 
reporting requirements, or comply with the provisions of Exchange Act 
Rule 13a-15(a) or 15d-15(a) relating to the maintenance of internal 
control over financial reporting until the first periodic report due 
after the first annual report that must include management's report on 
internal control over financial reporting.\83\
---------------------------------------------------------------------------

    \80\ See letter from BDO. BDO sought clarification in the 
commentary regarding the application of the transition rules to a 
company that becomes an Exchange Act registrant after its year-end 
but before it is required to file financial statements for the year 
that just ended.
    \81\ See, for example, letters from ACB, Core-Mark and Davis 
Polk. Davis Polk suggested slightly expanding the deferral to 
require compliance after the filing of an annual report other than 
for a fiscal year ending before the company went public. ACB more 
broadly suggested extending the transition period to correspond to 
the timeframe for non-accelerated filers, not requiring compliance 
until the second annual report beginning with fiscal years ending on 
or after December 31, 2008. Core-Mark suggested expanding the 
deferral to apply to the first two annual reports filed.
    \82\ See n. 76 above. This transition period applies to 
companies conducting an initial public offering (equity or debt) or 
a registered exchange offer or that otherwise become subject to the 
Exchange Act reporting requirements. For these purposes, a newly 
public company that has filed a special financial report under 
Exchange Act Rule 15d-2 [17 CFR 240.15d-2] or that has filed a 
transition report on Form 10-K, 10-KSB, 20-F, or 40-F under Exchange 
Act Rule 13a-10 [17 CFR 240.13a-10] or Rule 15d-10 [17 CFR 240.15d-
10] will have filed an annual report. As a result, a newly public 
company that files a special financial report or a transition report 
will be required to fully comply with the internal control over 
financial reporting requirements when filing an annual report for 
its next fiscal year.
    \83\ SEC staff provided its views on the disclosure of changes 
or improvements to controls made as a result of preparing for the 
registrant's first management report on internal control over 
financial reporting. See Question 9 in Management's Report on 
Internal Control Over Financial Reporting and Certification of 
Disclosure in Exchange Act Periodic Reports Frequently Asked 
Questions (revised October 6, 2004), at http://www.sec.gov/info/accountants/controlfaq1004.htm
.

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

    The amendments also permit a newly public company, during the 
transition period, to omit the portion of the

[[Page 76588]]

introductory language in paragraph 4 as well as language in paragraph 
4(b) of the certification required by Exchange Act Rules 13a-14(a) and 
15d-14(a) that refers to the certifying officers' responsibility for 
designing, establishing and maintaining internal control over financial 
reporting for the company, until it files an annual report that 
includes a report by management on the effectiveness of the company's 
internal control over financial reporting. This language is required to 
be provided in the first annual report required to contain management's 
internal control report and in all periodic reports filed thereafter.
    One commenter suggested that if the Commission decides to provide 
for a transition period, prominent disclosure by the company and the 
auditor should be required indicating that the company is not yet 
required to comply with and there has been no management assessment or 
audit of the company's internal control over financial reporting.\84\ 
We agree that newly public companies should include a statement in 
their annual report alerting investors about the company's obligations 
with respect to the internal control over financial reporting 
provisions. Therefore, we are adding a requirement that newly public 
companies that are relying on the transition rules must include a 
statement in the first annual report that they file that the report 
does not include management's assessment report or the auditor's 
attestation report.\85\ This disclosure is consistent with the 
disclosure that non-accelerated filers and foreign private issuers will 
have to include in their annual reports during the year that they are 
not required to comply with the auditor attestation requirement.
---------------------------------------------------------------------------

    \84\ See letter from Deloitte.
    \85\ See Instruction 1 to Item 308 of Regulations S-B and S-K, 
Item 15 of Form 20-F, and General Instruction B(6) of Form 40-F.
---------------------------------------------------------------------------

IV. Paperwork Reduction Act

    As discussed in the Proposing Release, we submitted a request for 
approval of the ``collection of information'' requirements contained in 
the amendments to the Office of Management and Budget (``OMB'') in 
accordance with the Paperwork Reduction Act of 1995 (``PRA'') \86\ in 
connection with our original proposal and adoption of the rule and form 
amendments implementing the Section 404 requirements.\87\ OMB approved 
these requirements. The new disclosure amendments that we are adopting 
today contain collection of information requirements within the meaning 
of PRA.
---------------------------------------------------------------------------

    \86\ 44 U.S.C. 3501 et seq. and 5 CFR 1320.11.
    \87\ See Section IV. of Release No. 33-8238.
---------------------------------------------------------------------------

    The titles for the collections of information are: \88\
---------------------------------------------------------------------------

    \88\ The paperwork burden from Regulations S-K and S-B is 
imposed through the forms that are subject to the requirements in 
those Regulations and is reflected in the analysis of those forms. 
To avoid a Paperwork Reduction Act inventory reflecting duplicative 
burdens, for administrative convenience we estimate the burdens 
imposed by each of Regulations S-K and S-B to be a total of one 
hour.
---------------------------------------------------------------------------

    (1) ``Regulation S-B'' (OMB Control No. 3235-0417);
    (2) ``Regulation S-K'' (OMB Control No. 3235-0071);
    (3) ``Form 10-K'' (OMB Control No. 3235-0063);
    (4) ``Form 10-KSB'' (OMB Control No. 3235-0420);
    (5) ``Form 20-F'' (OMB Control No. 3235-0288); and
    (6) ``Form 40-F'' (OMB Control No. 3235-0381).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information such as Form 10-K or Form 
20-F unless it displays a currently valid OMB control number.
    The amendments to Regulation S-B, Regulation S-K, Form 10-K, Form 
10-KSB, Form 20-F and Form 40-F adopted in this release require non-
accelerated filers and foreign private issuers that are accelerated 
filers (but not large accelerated filers) to include a statement in 
management's report on the company's internal control over financial 
reporting in the annual report in which the company is not required to 
include the auditor attestation requirement. The statement should 
disclose that the annual report does not contain a report by the 
company's registered public accounting firm on management's report of 
the company's internal control over financial reporting, and 
management's report was not subject to attestation by the accounting 
firm pursuant to temporary rules of the Commission that permit the 
company to provide only management's report in the annual report. The 
amendments we are adopting also require newly public companies to 
provide a similar statement in their first annual report to reflect the 
transition schedule we are adopting for those companies. We are 
requesting comment in this release with regard to the collections of 
information requirements for these amendments.
    The requirements are designed to avoid investor confusion regarding 
application of the internal control over financial reporting 
requirements to non-accelerated filers for their fiscal years ending on 
or after December 15, 2007 but before December 15, 2008; to foreign 
private issuers that are accelerated filers (but not large accelerated 
filers) for their fiscal years ending on or after July 15, 2006 but 
before July 15, 2007; and to newly public companies for the first 
annual report that they are required to file. The requirements are 
mandatory. The respondents to the collection of information requests 
here will be: (1) Non-accelerated filers that do not file an auditor's 
attestation report for a fiscal year ending on or after December 15, 
2007 but before December 15, 2008; (2) foreign private issuers filing 
on Form 20-F or Form 40-F that are accelerated filers (but not large 
accelerated filers) that do not file an auditor's attestation report 
for a fiscal year ending on or after July 15, 2006 but before July 15, 
2007; and (3) newly public companies that do not comply with the 
internal control over financial reporting requirements in the first 
annual report filed with the Commission in accordance with the new 
rules.
    Form 10-K prescribes information that registrants must disclose 
annually to the market about its business. Form 10-KSB prescribes 
information that registrants that are ``small business issuers'' as 
defined under our rules must disclose annually to the market about its 
business. Form 20-F is used by foreign private issuers to either 
register a class of securities under the Exchange Act or provide an 
annual report required under the Exchange Act. Form 40-F is used by 
foreign private issuers to file reports under the Exchange Act after 
having registered securities under the Securities Act and by certain 
Canadian registrants.
    For the purposes of the Paperwork Reduction Act, we estimate that, 
over a 3-year period, the annual incremental burden imposed by the 
disclosure amendments will average 15 minutes per form. We have based 
our estimates of the effects that these additional disclosure 
requirements would have on the Forms 10-K, 10-KSB, 20-F and 40-F 
primarily based on our review of the most recently completed PRA 
submissions for those collections of information, and those 
requirements in those Regulations and Forms.

Form 10-K

    For purposes of the PRA, we estimate that the amendments affecting 
the Form 10-K collection of information requirements will increase the 
annual paperwork burden by approximately 1,289 hours of company 
personnel time and a cost of approximately $171,294 for the services of 
outside

[[Page 76589]]

professionals.\89\ Based on our research into the number of non-
accelerated filers in 2004 and 2005, we estimate that approximately 
6,025 annual reports filed on Form 10-K would be filed by non-
accelerated filers that could be subject to the additional disclosure 
requirement that we are adopting for non-accelerated filers. This 
estimate is based on the assumption that the number of annual responses 
on Form 10-K is 10,041.\90\ Based on our review of the number of newly 
public companies in 2005, we estimate that approximately 853 companies 
filing on Form 10-K would be subject to the additional disclosure 
requirement that we are adopting for newly public companies. We 
estimate that the incremental burden for the newly public company 
amendments for Form 10-K is 213 hours.
---------------------------------------------------------------------------

    \89\ This estimate is based on the assumed 75% and 25% split of 
the burden hours between internal staff and external professionals, 
and an hourly rate of $400 for external professionals. The hourly 
cost estimate is based on consultations with several registrants and 
law firms and other persons who regularly assist registrants in 
preparing and filing periodic reports with the Commission.
    \90\ This number is based on the number of responses made in the 
period from October 1, 2005 through September 30, 2006.
---------------------------------------------------------------------------

Form 10-KSB

    For purposes of the PRA, we estimate that the amendments affecting 
the Form 10-KSB collection of information requirements will increase 
the annual paperwork burden by approximately 980 hours of company 
personnel time and a cost of approximately $130,709 for the services of 
outside professionals. Based on our research into the number of non-
accelerated filers in 2004 and 2005, we estimate that all (4,819) of 
the annual reports filed on Form 10-KSB would be filed by non-
accelerated filers that could be subject to the additional disclosure 
requirement that we are adopting for non-accelerated filers. This 
estimate is based on the assumption that the number of annual responses 
on Form 10-KSB is 4,819.\91\ Based on our review into the number of 
newly public companies in 2005, we estimate that approximately 409 
companies filing on Form 10-KSB would be subject to the additional 
disclosure requirement that we are adopting for newly public companies. 
We estimate that the incremental burden for the newly public company 
amendments for Form 10-KSB is 102 hours.
---------------------------------------------------------------------------

    \91\ This number is based on the number of responses made in the 
period from October 1, 2005 through September 30, 2006.
---------------------------------------------------------------------------

Form 20-F

    For purposes of the PRA, we estimate that the amendments affecting 
the Form 20-F collection of information requirements will increase the 
annual paperwork burden by approximately 36 hours of company personnel 
time and a cost of approximately $42,809 for the services of outside 
professionals.\92\ Based on our review into the percentage of total 
foreign private issuers that were non-accelerated filers in 2005, we 
estimate that 40% (or 471) of the annual reports filed on Form 20-F 
would be filed by non-accelerated filers that could be subject to the 
additional disclosure requirement that we are adopting for non-
accelerated filers. Based on our review into the percentages of foreign 
private issuers that were accelerated filers (but not large accelerated 
filers) in 2005, we estimate that 21% (or 247) of the annual reports 
filed on 20-F would be accelerated filers and not large accelerated 
filers. These estimates are based on the assumption that the number of 
annual responses on Form 20-F is 1177.\93\ Based on our review of the 
number of newly public companies in 2005, we estimate that 
approximately 100 companies filing on Form 20-F would be subject to the 
additional disclosure requirement that we are adopting for newly public 
companies. We estimate that the incremental burden for the newly public 
company amendments for Form 20-F is 25 hours.
---------------------------------------------------------------------------

    \92\ The burden allocation for Forms 20-F and 40-F, however, use 
a 25% internal to 75% outside professional allocation to reflect the 
fact that foreign private issuers rely more heavily on outside 
professionals for the preparation of these forms.
    \93\ This number is based on the number of responses made in the 
period from October 1, 2005 through September 30, 2006.
---------------------------------------------------------------------------

Form 40-F

    For purposes of the PRA, we estimate that the amendments affecting 
the Form 40-F collection of information requirements will increase the 
annual paperwork burden by approximately 27 hours of company personnel 
time and a cost of approximately $8,002 for the services of outside 
professionals. Based on recent research into the percentage of total 
foreign private issuers that are non-accelerated filers, we estimate 
that 40% (or 88) of the annual reports filed on Form 40-F would be 
filed by non-accelerated filers that could be subject to the additional 
disclosure requirement that we are adopting for non-accelerated filers. 
Based on our review into the percentages of foreign private issuers 
that were accelerated filers (but not large accelerated filers) in 
2005, we estimate that 21% (or 46) of the annual reports filed on 40-F 
would be accelerated filers and not large accelerated filers. These 
estimates are based on the assumption that the number of annual 
responses on Form 40-F is 220.\94\ Based on our review of the number of 
newly public companies in 2005, we estimate that approximately 19 
companies filing on Form 40-F would be subject to the additional 
disclosure requirement that we are adopting for newly public companies. 
We estimate that the incremental burden for the newly public company 
amendments for Form 40-F is 5 hours.
---------------------------------------------------------------------------

    \94\ This number is based on the number of responses made in the 
period from October 1, 2005 through September 30, 2006.
---------------------------------------------------------------------------

Request for Comment

    We solicit comment on the expected effects of the amendments on 
Regulations S-B and S-K, Form 20-F and Form 40-F under the PRA. In 
particular, we solicit comment on:
     How accurate are our burden and cost estimates for Forms 
10-K, 10-KSB, 20-F and 40-F;
     Whether the amendments are necessary to avoid investor 
confusion regarding the internal control over financial reporting 
requirements for non-accelerated filers and newly public companies;
     Whether there are ways to enhance the quality, utility, 
and clarity of the information to be collected; and
     Whether there are ways to minimize the burden of the 
additional disclosure requirements on non-accelerated filers and newly 
public companies.
    Any member of the public may direct to us any comments concerning 
these burden and cost estimates and any suggestions for reducing the 
burdens and costs. Persons who desire to submit comments on the 
collections of information requirements should direct their comments to 
the OMB, Attention: Desk Officer for the Securities and Exchange 
Commission, Office of Information and Regulatory Affairs, Washington, 
DC 20503, or send an e-mail to David_Rostker@omb.eop.gov, and send a 
copy of the comments to Nancy M. Morris, Secretary, Securities and 
Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090, with 
reference to File No. S7-06-03. Requests for materials submitted to the 
OMB by us with regard to these collections of information should be in 
writing, refer to File No. S7-06-03, and be submitted to the Securities 
and Exchange Commission, Records Management, Office of Filings and 
Information Services, 100 F Street, NE., Washington, DC 20549. Because 
the OMB is required to make a decision

[[Page 76590]]

concerning the collections of information between 30 and 60 days after 
publication, your comments are best assured of having their full effect 
if the OMB receives them within 30 days of publication.

V. Cost-Benefit Analysis

A. Benefits

    The extension of the compliance dates is intended to make 
implementation of the internal control reporting requirements more 
efficient and cost-effective for non-accelerated filers. First, the 
extension postpones for 5 months (from fiscal years ending on or after 
July 15, 2007 until fiscal years ending on or after December 15, 2007) 
the date by which non-accelerated filers must begin to include a report 
by management assessing the effectiveness of the company's internal 
control over financial reporting. Based on our estimates, we believe 
that fewer than 15% of all non-accelerated filers have a fiscal year 
ending between July 15, 2007 and December 15, 2007.\95\ In addition, 
under the extension, a non-accelerated filer is not required to include 
an auditor attestation report on management's assessment of internal 
control over financial reporting until it files an annual report for 
its first fiscal year ending on or after December 15, 2008. As a 
result, all non-accelerated filers are required to complete only 
management's assessment in their first year of compliance with the 
Section 404 requirements.
---------------------------------------------------------------------------

    \95\ See n. 44 above.
---------------------------------------------------------------------------

    We believe that the following benefits will flow from an additional 
postponement of the dates by which non-accelerated filers must comply 
with the internal control reporting requirements:
     Auditors of non-accelerated filers will have more time to 
conform their initial attestation reports on management's assessment of 
internal control over financial reporting to the changes to the 
auditing attestation standard and other actions that the PCAOB 
determines to take;
     Non-accelerated filers will save opportunity costs 
associated with their initial audit of internal control over financial 
reporting while changes to the auditing standard are being considered 
and implemented and the PCAOB is developing, or facilitating the 
development of, additional guidance that will be specifically directed 
to auditors of smaller public companies;
     Management of non-accelerated filers are able to begin the 
process of assessing the effectiveness of internal control over 
financial reporting before their auditors attest to such assessment 
(and investors can begin to see and evaluate the results of their 
initial efforts); and
     Non-accelerated filers with a fiscal year ending between 
July 15, 2007 and December 15, 2007 have additional time to consider 
the management guidance to be issued by the Commission and the recently 
issued COSO guidance on understanding and applying the COSO framework, 
before planning and conducting their first internal control assessment.
    Many public commenters on the Proposing Release and on previous 
occasions have asserted that the internal control reporting compliance 
costs are likely to be disproportionately higher for smaller public 
companies than larger ones, and that the audit fee represents a large 
percentage of those costs.\96\ We acknowledge that some non-accelerated 
filers may incur audit fee costs in the first year that they provide 
management's report due to the fact that management may engage in a 
dialogue with their auditors regarding their assessment of the 
company's internal control over financial reporting. Nevertheless, we 
believe that the potential cost savings derived from the year that the 
non-accelerated filers are not required to include an auditor's 
attestation report on management's assessment of the effectiveness of 
their internal control over financial reporting will likely be 
substantial. The cost that a non-accelerated filer will save as a 
result of the extension of the auditor attestation report is likely to 
vary significantly.\97\
---------------------------------------------------------------------------

    \96\ See, for example, letters on the Proposing Release from FEI 
and SBA.
    \97\ Numerous cost surveys have been made public citing the high 
cost of compliance with the Section 404 requirements. For a 
sampling, see surveys from CRA International (Apr. 2006), FEI (Mar. 
2006), Foley & Lardner LLP (June 2006), ICBA (Mar. 2005), NASDAQ and 
American Electronics Association (Oct. 2005), and the Business 
Roundtable (Mar. 2006). Note that many of these studies do not 
isolate the cost of the auditor's attestation; some studies discuss 
full audit costs or other fees. The Commission has not independently 
verified the reliability or accuracy of the survey data.
---------------------------------------------------------------------------

    Additionally, we have previously learned from public comments, 
including our roundtables on implementation of the internal control 
reporting provisions,\98\ that while companies incur increased internal 
costs in the first year of compliance in part due to ``deferred 
maintenance'' items (e.g., documentation, remediation, etc.), these 
costs may decrease in the second year. Therefore, we believe that 
postponing many of the auditor costs until the second year will help 
non-accelerated filers smooth the significant cost spike that many 
accelerated filers have experienced in their first year of compliance. 
Many commenters agreed that the deferred implementation of the auditor 
attestation requirement would relieve smaller companies from regulatory 
costs.\99\ One commenter noted that the additional time will provide 
time for smaller companies to not only learn from the guidance that the 
Commission and PCAOB plan to issue but also the experiences of larger 
public companies.\100\
---------------------------------------------------------------------------

    \98\ Materials related to the Commission's 2005 Roundtable 
Discussion on Implementation of Internal Control Reporting 
Provisions and 2006 Roundtable on Second-year Experiences with 
Internal Control Reporting and Auditing Provisions, including the 
archived roundtable broadcasts, are available at http://www.sec.gov/spotlight/soxcomp.htm
.

    \99\ See, for example, letters from Cravath, Hermes, LaCrosse, 
and SBA.
    \100\ See, for example, letter from FEI.
---------------------------------------------------------------------------

    We also are adopting amendments that provide for a transition 
period before a newly public company is required to comply with Section 
404 requirements. We think that the benefits of the transition period 
for newly public companies include the following:
     Companies that are going public are able to concentrate on 
their initial securities offering without the additional burden of 
becoming subject to the Section 404 requirements soon after the 
offering;
     Newly public companies are able to prepare their first 
annual report without the additional burden of having to comply with 
the Section 404 requirements at the same time;
     The quality of newly public companies' first compliance 
efforts may improve due to the additional time that the companies have 
to prepare to satisfy the Section 404 requirements; and
     The transition period reduces the incentive that the 
previous rules created for a company that plans to go public to time 
its initial public offering to defer compliance with the Section 404 
requirements for as long as possible after the offering.
    The comments that we received generally supported the transition 
period for newly public companies and our rationale for adopting the 
amendments. Several commenters agreed that the Section 404 requirements 
act as a barrier to becoming a public company and increase the cost of 
going public.\101\ Because 404 compliance costs vary by size and 
complexity of the company, it is difficult to quantify precisely the 
cost-

[[Page 76591]]

savings that these amendments may afford to newly public 
companies.\102\
---------------------------------------------------------------------------

    \101\ See letters from ABA, Calix, Core-Mark, Cravath, Davis 
Polk, E&Y, and SBA.
    \102\ In its comment letter, the SBA cites various data 
regarding Section 404 compliance costs.
---------------------------------------------------------------------------

    One commenter offered a study on companies with internal control 
deficiencies disclosures and their cost of capital, which we have 
considered in our analysis.\103\ While we note that the potential costs 
due to a lack of assurance, we believe the counterbalancing benefits 
and clear disclosure to investor regarding the internal control 
requirements justify our actions. Another venture capital association 
did not anticipate a major change in the cost and effort of an initial 
public offering to diminish until ``the overall 404 cost-benefit 
ratio'' is brought into balance, as venture-backed companies would 
still begin the process of obtaining a clean opinion from the auditor 
long before the public offering.\104\ While we recognize that newly 
public companies will still incur costs in preparation for the 
implementation of the internal control requirements, we believe that 
the savings from the transition period for these companies may still be 
substantial, as the newly public companies will not be required to 
include either management's report on the company's internal control 
over financial reporting or the auditor's attestation on management's 
report in their first annual report.
---------------------------------------------------------------------------

    \103\ See letter from CII (citing Hollis Ashbaugh-Skaife et al., 
The Effect of Internal Control Deficiencies on Firm Risk and Cost of 
Equity Capital (April 2006)). The study found that companies with 
internal control deficiencies exhibit higher costs of capital and 
those that subsequently receive an unqualified auditor attestation 
report on the company's internal control over financial reporting 
exhibit a decrease to their market-adjusted cost of capital. Another 
study cited by the Hollis study found no evidence of an effect on 
the cost of capital for internal control disclosures. See Ogneva, 
Subramanyam, and Reaghunandan, Internal Control Weaknesses and Cost 
of Equity: Evidence from SOX Section 404 Disclosures (2006).
    \104\ See letter from NVCA.
---------------------------------------------------------------------------

    We also are adopting a requirement that requires a newly public 
company to disclose in the first annual report that it files that it 
has not included either management's report on internal control or the 
auditor's attestation report. Our intention is that this requirement 
will provide clarity to investors and the capital markets regarding the 
Section 404 requirements of a newly public company.

B. Costs

    Under the extension, investors in companies that are non-
accelerated filers will have to wait longer to review an attestation 
report by the companies' auditor on management's assessment of internal 
control over financial reporting. The extension may create a risk that, 
without the auditor's attestation to management's assessment process, 
some issuers may conclude that the company's internal control over 
financial reporting is effective without conducting an assessment that 
is as thorough, careful and as appropriate to the issuers' 
circumstances as they would conduct if the auditor were involved.
    We received many comments on these potential costs. Several 
commenters believed that management's assessment of internal control 
would provide useful disclosure to investors even without the auditor's 
attestation report; \105\ however, other commenters expressed concern 
whether management's report, absent the auditor's attestation, would 
provide meaningful disclosure \106\ or would fail to identify a 
material weakness in the company's internal control over financial 
reporting.\107\ One accounting firm noted that even though there is an 
increased risk that a material weakness will go undetected, the benefit 
that furnishing management's report provides to investors outweighs 
that risk.\108\ One commenter also noted that if standards are revised 
between the first and second year of compliance with the internal 
control reporting requirements for non-accelerated filers, the deferred 
implementation of the audit attestation requirement could result in 
overlapping expenditures and misallocation of resources.\109\ On 
balance, we believe that the graduated introduction of the 404 
requirements will give investors more useful information at lower 
overall costs.
---------------------------------------------------------------------------

    \105\ See letters from Deloitte, E&Y, FEI, Hermes, KPMG and G. 
Merkl.
    \106\ See, for example, letter from IDW.
    \107\ See letters from AICPA, Deloitte, Grant Thorton, IDW, and 
PwC.
    \108\ See letter from KPMG. This commenter noted that the 
formality and discipline that will be introduced after non-
accelerated filers begin to comply with the requirement for 
management's report will lead to more effective management 
evaluations and more meaningful management disclosures.
    \109\ See letter from ABA.
---------------------------------------------------------------------------

    Some commenters questioned whether the sequential implementation of 
the management report requirement and the auditor attestation 
requirement would cause confusion to investors and the capital 
markets.\110\ Several commenters, in response to the Commission's 
request for public comment, supported a requirement that a non-
accelerated filer, during its first year of compliance with the 
management report requirement, should clearly disclose that 
management's report has not been attested to by the auditor.\111\ In 
response to comment, we have adopted this disclosure requirement for 
the year that non-accelerated filers and foreign private issuers that 
are accelerated filers (but not large accelerated filers) are only 
required to provide management's report.
---------------------------------------------------------------------------

    \110\ See, for example, letters from ABA, CII, and PwC.
    \111\ See letters from AICPA, BDO, Deloitte, E&Y, Grant Thorton, 
and KPMG.
---------------------------------------------------------------------------

    Another potential cost of the extension in the form of increased 
litigation risk may be created by the phasing-in of the auditor's 
attestation report on management's assessment if, in year one, 
management concludes that the company's internal control over financial 
reporting is effective, but the auditor comes to a contrary conclusion 
the following year, thereby calling into question management's earlier 
conclusion. We have mitigated the risk by adopting an amendment that 
the management report be furnished to, rather than filed with, the 
Commission in the first year of compliance.
    A potential cost of the transition period for newly public 
companies is that investors may be subject to uncertainty as to the 
effectiveness of a newly public company's internal control over 
financial reporting for a longer period of time than under previous 
requirements. One commenter argued that the safeguard provided by the 
Section 404 requirements could be of increased importance for newly 
public companies and their investors, because those companies are often 
less sophisticated and lack the market following that provide 
safeguards.\112\ As we noted, we are also requiring clear disclosure by 
newly public companies that they are not required to include either a 
report by management or an auditor's attestation report on internal 
control over financial reporting in their first annual report so that 
investors can consider that information when making their investing 
decisions.
---------------------------------------------------------------------------

    \112\ See letter from Deloitte.
---------------------------------------------------------------------------

    The additional disclosure requirements that we are adopting for 
non-accelerated filers and foreign private issuers that are accelerated 
filers (but not large accelerated filers) during the year that they are 
only required to provide management's report on internal control and 
for newly public companies during the transition period may increase 
costs for companies, but we believe the increase should be minimal.

[[Page 76592]]

VI. Consideration of Impact on the Economy, Burden on Competition and 
Promotion of Efficiency, Competition and Capital Formation

    Section 23(a)(2) of the Exchange Act \113\ requires us, when 
adopting rules under the Exchange Act, to consider the impact that any 
new rule would have on competition. Section 23(a)(2) prohibits us from 
adopting any rule that would impose a burden on competition not 
necessary or appropriate in furtherance of the purposes of the Exchange 
Act. In addition, Section 2(b) of the Securities Act \114\ and Section 
3(f) of the Exchange Act \115\ require us, when engaging in rulemaking 
where we are 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.
---------------------------------------------------------------------------

    \113\ 15 U.S.C. 78w(a)(2).
    \114\ 15 U.S.C. 77b(b).
    \115\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    We expect that the extension of compliance dates will increase 
efficiency and enhance capital formation, and thereby benefit 
investors, by providing more time for non-accelerated filers to prepare 
for compliance with the Section 404 requirements and by affording these 
filers the opportunity to consider implementation guidance that is 
specifically tailored to smaller public companies. We further expect a 
more gradual phase-in of the management assessment and auditor 
attestation report requirements over a two-year period, rather than 
requiring non-accelerated filers to fully comply with both requirements 
in their first compliance year, to make the implementation process more 
efficient and less costly for non-accelerated filers. Some commenters 
on the Proposing Release argued that the sequential implementation of 
the management report requirement and auditor attestation requirement 
could make the application of the revised Auditing Standard No. 2 less 
efficient.\116\ We have encouraged management to confer with their 
auditors to minimize any inefficiencies. Other commenters, however, 
supported the extension and believed that it would reduce compliance 
costs for smaller companies and provide them with additional time to 
develop best practices for compliance and greater efficiencies in 
preparing management reports.\117\
---------------------------------------------------------------------------

    \116\ See, for example, letters from ABA, IDW, G. Merkl and PwC.
    \117\ See, for example, letters from Core-Mark, FEI, J. Finn, 
Graybar, Congressman Lynch, and Village.
---------------------------------------------------------------------------

    It is possible that a competitive impact could result from the 
differing treatment of non-accelerated filers and larger companies that 
already have been complying with the Section 404 requirements, but we 
do not expect that the extension will have any measurable effect on 
competition. We did not receive any comments specifically addressing 
the effect of the extension on competition.
    The transition period for newly public companies should also 
increase efficiency and enhance capital formation by enabling these 
companies to concentrate on the initial securities offering process, if 
they are becoming subject to the Exchange Act reporting requirements by 
virtue of a public securities offering, and to prepare their first 
annual reports without the additional burden of complying with the 
Section 404 requirements. The provision of additional time for newly 
public companies to prepare for compliance with the internal control 
over financial reporting requirements may lead to increased quality of 
the companies' initial compliance efforts.\118\ One commenter noted 
that given that the commitment of resources and expenditures in 
preparation for an initial public offering is enormous, the immediate 
imposition of Section 404 requirements is overly burdensome and does 
not provide sufficient time for careful establishment of internal 
control over financial reporting.\119\ One commenter asserted that 
deferral of the Section 404 requirements may diminish the U.S. market 
premium based on an article that noted a study demonstrating that 
companies listing on U.S. markets enjoyed a valuation premium but also 
acknowledged that the benefits of Section 404 ``are difficult to 
quantify.'' \120\ We believe that with the disclosure newly public 
companies must include in their first annual reports explaining that 
the management and auditor attestation reports on internal control over 
financial reporting are not required in the company's annual report, 
investors can better incorporate this information into their investing 
decisions. Also, a company that wishes to comply with Section 404 in 
their first year of reporting is not prevented from doing so under our 
rules.
---------------------------------------------------------------------------

    \118\ See also letters from ABA and Calix.
    \119\ See letter from ABA.
    \120\ See letter from CII (citing article in CFO magazine).
---------------------------------------------------------------------------

    In addition, the previous requirements would have provided an 
incentive for private companies to time their public offerings so as to 
maximize the length of time that they would have after going public 
before having to comply with the Section 404 requirements. The 
amendments we are adopting today that allow newly public companies to 
defer compliance with these requirements until they file their second 
annual report with the Commission reduce this incentive. As a result, 
capital formation should be enhanced by allowing companies to time 
their offerings to raise capital rather than to avoid a compliance 
requirement. In reducing regulatory burdens for newly public companies, 
we may also increase the attractiveness of the U.S. markets to foreign 
companies.\121\
---------------------------------------------------------------------------

    \121\ See also letters from ACB, Cravath and Davis Polk.
---------------------------------------------------------------------------

VII. Final Regulatory Flexibility Analysis

    This Final Regulatory Flexibility Analysis has been prepared in 
accordance with the Regulatory Flexibility Act \122\ for amendments to 
rules and forms under the Securities Act and the Exchange Act that: (1) 
extend the compliance dates applicable to non-accelerated filers for 
certain internal control over financial reporting requirements and (2) 
provide a transition period for newly public companies before they 
become subject to compliance with the internal control over financial 
reporting requirements. Non-accelerated filers previously were 
scheduled to begin to comply with the management's assessment and 
auditor attestation report requirements on the company's internal 
control over financial reporting for their annual report filed for the 
first fiscal year ending on or after July 15, 2007. We are extending 
this compliance date with respect to the management's assessment 
portion so that a non-accelerated filer is required to begin including 
management's assessment in an annual report for its first fiscal year 
ending on or after December 15, 2007. We are extending the compliance 
date with respect to the auditor attestation report so that a non-
accelerated filer is required to begin including an auditor's 
attestation report on management's assessment in the annual report that 
it files for its first fiscal year ending on or after December 15, 
2008. In addition, we are also adopting amendments for newly public 
companies so that a newly public company need not comply with our 
internal control over financial reporting requirements until after it 
either had been required to file an annual report pursuant to the 
requirements of Section

[[Page 76593]]

13(a) or 15(d) of the Exchange Act for the prior fiscal year or had 
filed an annual report with the Commission for the prior fiscal year.
---------------------------------------------------------------------------

    \122\ 5 U.S.C. 603.
---------------------------------------------------------------------------

A. Reasons for and Objectives of the Amendments

    The Commission and the PCAOB plan a series of actions that will 
result in the issuance of new guidance to aid companies and auditors in 
performing their evaluations of internal control over financial 
reporting. These amendments are designed to provide additional time for 
non-accelerated filers and newly public companies to comply with the 
internal control over financial reporting requirements as modified. We 
believe that the additional time will enhance the quality of public 
company disclosure concerning internal control over financial 
reporting.
    For non-accelerated filers, we expect that extending the 
implementation of the management report requirement for five months 
will provide sufficient time for the Commission to issue final guidance 
to assist in management's performance of a top-down, risk-based and 
scalable assessment of controls over financial reporting. We are 
deferring the implementation of the auditor attestation report 
requirement for an additional year after the implementation of the 
management report requirement for the following reasons:
     To afford non-accelerated filers and their auditors the 
benefit of any changes or additional guidance regarding application of 
the COSO Framework;
     To both save and postpone costs associated with the 
auditor's attestation during the period that changes to Auditing 
Standard No. 2 are being considered and implemented;
     To enable management more time to prepare and gain 
efficiencies in the review and evaluation of the effectiveness of 
internal control over financial reporting; and
     To provide the Commission with additional time to consider 
public comment on the questions we raised on management guidance 
related to the appropriate role of the auditor in evaluating 
management's internal control assessment process.\123\
---------------------------------------------------------------------------

    \123\ Release No. 34-54122. The comment period closed on 
September 18, 2006, and the letters that we received on the Concept 
Release are available in File No. S7-11-06, at http://www.sec.gov/comments/s7-11-06/s71106.shtml
.

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

    For newly public companies, we expect that the transition period 
which eliminates the requirement to provide management's report and the 
auditor's attestation report in the first annual report filed with the 
Commission will alleviate some of the burdens of going public. The 
implementation of the transition period will:
     Provide additional time and defer costs for a newly public 
company, allowing it to focus on its assessment of internal control 
over financial reporting without the additional focus of the initial 
public offering; and
     Allow companies, including foreign issuers, that become 
subject to Section 15(d) after filing a Securities Act registration 
statement but who may then be eligible to terminate their periodic 
filing obligations after filing just one annual report, to avoid the 
cost of preparing internal control reports.

B. Significant Issues Raised by Public Comment

    In the Proposing Release, we requested comment on the number of 
small entity issuers that may be affected, the existence or nature of 
the potential impact and how to quantify the impact of the amendments. 
One commenter provided some data on general costs of compliance related 
to the Section 404 requirements.\124\ For example, this commenter noted 
one survey included in the GAO report issued in April 2006 that 
surveyed 128 companies and found that fees paid by smaller companies to 
``external consultants'' ranged from $3,000 to $1.4 million. These 
external consultants provided various forms of assistance, including 
assistance with developing methodologies to comply with Section 404, 
documenting and testing internal controls, and helping management 
assess the effectiveness of internal controls and remediate identified 
internal control weaknesses. This commenter also noted that surveys of 
actual Section 404 costs indicate that annual small company compliance 
costs approach $1,000,000 and then cited a survey from Financial 
Executives International showing that non-accelerated filers would each 
spend approximately $935,000 to comply with Section 404 requirements. 
Some companies provided estimates for their own compliance costs for 
the Section 404 requirements.\125\
---------------------------------------------------------------------------

    \124\ See letter from SBA.
    \125\ See, for example, letters from Core-Mark and LaCrosse.
---------------------------------------------------------------------------

C. Small Entities Subject to the Final Amendments

    Exchange Act Rule 0-10(a) \126\ defines an issuer, other than an 
investment company, to be a ``small business'' or ``small 
organization'' if it had total assets of $5 million or less on the last 
day of its most recent fiscal year. The amendments affect most issuers 
that are small entities. We estimate that there are approximately 2,500 
issuers, other than registered investment companies, that may be 
considered small entities. The extension for non-accelerated filers and 
the transition period for newly public companies apply to any small 
entity that is subject to Exchange Act reporting requirements.
---------------------------------------------------------------------------

    \126\ 17 CFR 240.0-10(a).
---------------------------------------------------------------------------

D. Reporting, Recordkeeping, and Other Compliance Requirements

    Our amendments are designed to alleviate reporting and compliance 
burdens. The compliance date extension for non-accelerated filers 
postpones the date by which non-accelerated filers with a fiscal year 
end between July 15, 2007 and December 15, 2007 must begin to comply 
with the internal control over financial reporting requirements. In 
addition, for non-accelerated filers, the amendments eliminate the 
requirement to include an auditor's report on internal control over 
financial reporting in the annual report during the initial year of 
compliance with the internal control over financial reporting 
requirements. During this year, however, non-accelerated filers are 
required to provide a statement in their annual reports, explaining 
that the annual report does not include the auditor's attestation 
report.
    The transition for newly public companies also alleviates reporting 
and compliance burdens by relieving a newly public company from 
compliance with our internal control over financial reporting 
requirements in the first annual report that it files with the 
Commission. This amendment provides all newly public companies with at 
least one annual reporting period before they are required to conduct 
the first assessment of internal control over financial reporting and 
allows companies that are not required to file a second annual report 
to exit the system without filing management or auditor reports 
regarding internal control over financial reporting. During the 
transition period, however, newly public companies are required to 
provide a statement in their annual reports explaining that the annual 
report does not include either management's report on internal control 
or the auditor's attestation report.

E. Agency Action To Minimize Effect on Small Entities

    The Regulatory Flexibility Act directs us to consider significant 
alternatives that would accomplish our stated objectives, while 
minimizing any significant adverse impact on small entities. In 
connection with the

[[Page 76594]]

amendments, we considered the following alternatives:
     Establishing different compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities;
     Clarifying, consolidating or simplifying compliance and 
reporting requirements under the rules for small entities;
     Using performance rather than design standards; and
     Exempting small entities from all or part of the 
requirements.
    We have considered a variety of reforms to achieve our regulatory 
objectives and, where possible, have taken steps to minimize the 
effects of the rules and amendments on small entities without proposing 
a complete and permanent exemption for small entities from coverage of 
the Section 404 requirements. The amendments establish a different 
compliance and reporting timetable for non-accelerated filers and 
provide additional time for newly public companies to prepare to comply 
with the internal control over financial reporting requirements.
    We received some comments suggesting alternatives to the amendments 
that we are adopting. For example, one commenter recommended that the 
Commission explore ways to provide further flexibility to smaller 
companies.\127\ This commenter recommended that the Commission, as an 
alternative, exempt smaller companies from outside audit requirements. 
Some commenters suggested that the Commission extend the compliance 
date associated with the management report requirement for an even 
longer period of time than proposed.\128\ As discussed above, the 
amendments are designed to provide companies that are non-accelerated 
filers with time to consider any guidance issued by us and other 
entities, such as COSO, before planning and conducting their internal 
control assessments, and to consider the anticipated revisions to 
Auditing Standard No. 2 that the PCAOB and Commission are considering. 
The amendments, our forthcoming management guidance, and the revisions 
to Auditing Standard No. 2 should make implementation of the internal 
control reporting requirements more effective and efficient for non-
accelerated filers and newly public companies. As we implement these 
changes, we will consider the available information to determine 
whether additional flexibility is warranted, consistent with investor 
protection.
---------------------------------------------------------------------------

    \127\ See, for example, letter from SBA.
    \128\ See, for example, letters from ABA, ACB, Davis Polk, ICBA, 
and MOCON.
---------------------------------------------------------------------------

VIII. Statutory Authority and Text of the Amendments

    The amendments described in this release are being adopted under 
the authority set forth in Sections 12, 13, 15 and 23 of the Exchange 
Act.

List of Subjects

17 CFR Part 210

    Accountants, Accounting, Reporting and recordkeeping requirements, 
Securities.

17 CFR Part 228

    Reporting and recordkeeping requirements, Securities, Small 
businesses.

17 CFR Parts 229, 240 and 249

    Reporting and recordkeeping requirements, Securities.


0
For the reasons set out in the preamble, the Commission amends title 
17, chapter II, of the Code of Federal Regulations as follows:

PART 210--FORM AND CONTENT OF AND REQUIREMENTS FOR FINANCIAL 
STATEMENTS, SECURITIES ACT OF 1933, SECURITIES EXCHANGE ACT OF 
1934, PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, INVESTMENT 
COMPANY ACT OF 1940, INVESTMENT ADVISERS ACT OF 1940, AND ENERGY 
POLICY AND CONSERVATION ACT OF 1975

0
1. The authority citation for Part 210 is revised to read as follows:

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 
77aa(25), 77aa(26), 78c, 78j-1, 78l, 78m, 78n, 78o(d), 78q, 78u-5, 
78w(a), 78ll, 78mm, 80a-8, 80a-20, 80a-29, 80a-30, 80a-31, 80a-
37(a), 80b-3, 80b-11, 7202 and 7262, unless otherwise noted.

0
2. Section 210.2-02T is amended by:
0
a. Adding the phrase ``(but not a large accelerated filer)'' after the 
phrase ``that is an accelerated filer'' in paragraph (a);
0
b. Revising paragraph (b); and
0
c. Adding paragraphs (c) and (d).
    The additions and revision read as follows:


Sec.  210.2-02T  Accountants' reports and attestation reports on 
management's assessment of internal control over financial reporting.

* * * * *
    (b) Paragraph (a) of this temporary section will expire on December 
31, 2007.
    (c) The requirements of Sec.  210.2-02(f) shall not apply to a 
registered public accounting firm that issues or prepares an 
accountant's report that is included in an annual report filed by a 
registrant that is neither a ``large accelerated filer'' nor an 
``accelerated filer,'' as those terms are defined in Sec.  240.12b-2 of 
this chapter, for a fiscal year ending on or after December 15, 2007 
but before December 15, 2008.
    (d) Paragraph (c) of this temporary section will expire on June 30, 
2009.

PART 228--INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS ISSUERS

0
3. The authority citation for Part 228 continues to read, in part, as 
follows:

    Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 
77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 
77sss, 78l, 78m, 78n, 78o, 78u-5, 78w, 78ll, 78mm, 80a-8, 80a-29, 
80a-30, 80a-37, 80b-11, and 7201 et seq., and 18 U.S.C. 1350.
* * * * *

0
4. Section 228.308 is amended by:
0
a. adding an ``s'' to the word ``instruction'' in the descriptive 
heading at the end of the section;
0
b. redesignating the existing instruction to Item 308 as Instruction 2; 
and
0
c. adding new Instruction 1.
    The addition reads as follows:


Sec.  228.308 (Item 308)  Internal control over financial reporting.

* * * * *
    1. A small business issuer need not comply with paragraphs (a) and 
(b) of this Item until it either had been required to file an annual 
report pursuant to section 13(a) or 15(d) of the Exchange Act (15 
U.S.C. 78m or 78o(d)) for the prior fiscal year or had filed an annual 
report with the Commission for the prior fiscal year. A small business 
issuer that does not comply shall include a statement in the first 
annual report that it files in substantially the following form: ``This 
annual report does not include a report of management's assessment 
regarding internal control over financial reporting or an attestation 
report of the company's registered public accounting firm due to a 
transition period established by rules of the Securities and Exchange 
Commission for newly public companies.''
* * * * *

0
5. Section 228.308T is added to read as follows:


Sec.  228.308T (Item 308T)  Internal control over financial reporting.

    Note to Item 308T: This is a special temporary section that 
applies only to an annual report filed by the small business issuer 
for a fiscal year ending on or after December 15, 2007 but before 
December 15, 2008.



[[Page 76595]]


    (a) Management's annual report on internal control over financial 
reporting. Provide a report of management on the small business 
issuer's internal control over financial reporting (as defined in Sec.  
240.13a-15(f) or Sec.  240.15d-15(f) of this chapter). This report 
shall not be deemed to be filed for purposes of Section 18 of the 
Exchange Act or otherwise subject to the liabilities of that section, 
unless the small business issuer specifically states that the report is 
to be considered ``filed'' under the Exchange Act or incorporates it by 
reference into a filing under the Securities Act or the Exchange Act. 
The report must contain:
    (1) A statement of management's responsibility for establishing and 
maintaining adequate internal control over financial reporting for the 
small business issuer;
    (2) A statement identifying the framework used by management to 
evaluate the effectiveness of the small business issuer's internal 
control over financial reporting as required by paragraph (c) of Sec.  
240.13a-15 or Sec.  240.15d-15 of this chapter; and
    (3) Management's assessment of the effectiveness of the small 
business issuer's internal control over financial reporting as of the 
end of the small business issuer's most recent fiscal year, including a 
statement as to whether or not internal control over financial 
reporting is effective. This discussion must include disclosure of any 
material weakness in the small business issuer's internal control over 
financial reporting identified by management. Management is not 
permitted to conclude that the small business issuer's internal control 
over financial reporting is effective if there are one or more material 
weaknesses in the small business issuer's internal control over 
financial reporting.
    (4) A statement in substantially the following form: ``This annual 
report does not include an attestation report of the company's 
registered public accounting firm regarding internal control over 
financial reporting. Management's report was not subject to attestation 
by the company's registered public accounting firm pursuant to 
temporary rules of the Securities and Exchange Commission that permit 
the company to provide only management's report in this annual 
report.''
    (b) Changes in internal control over financial reporting. Disclose 
any change in the small business issuer's internal control over 
financial reporting identified in connection with the evaluation 
required by paragraph (d) of Sec.  240.13a-15 or Sec.  240.15d-15 of 
this chapter that occurred during the small business issuer's last 
fiscal quarter (the small business issuer's fourth fiscal quarter in 
the case of an annual report) that has materially affected, or is 
reasonably likely to materially affect, the small business issuer's 
internal control over financial reporting.
    Instructions to paragraphs (a) and (b) of Item 308T. 
    1. A small business issuer need not comply with paragraph (a) of 
this Item until it either had been required to file an annual report 
pursuant to section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m 
or 78o(d)) for the prior fiscal year or had filed an annual report with 
the Commission for the prior fiscal year. A small business issuer that 
does not comply shall include a statement in the first annual report 
that it files in substantially the following form: ``This annual report 
does not include a report of management's assessment regarding internal 
control over financial reporting or an attestation report of the 
company's registered public accounting firm due to a transition period 
established by rules of the Securities and Exchange Commission for 
newly public companies.''
    2. The small business issuer must maintain evidential matter, 
including documentation, to provide reasonable support for management's 
assessment of the effectiveness of the small business issuer's internal 
control over financial reporting.
    (c) This temporary Item 308T, and accompanying note and 
instructions, will expire on June 30, 2009.

PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES 
ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND 
CONSERVATION ACT OF 1975--REGULATION S-K

0
6. The general authority citation for Part 229 is revised to read as 
follows:

    Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 
77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 
77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78u-5, 78w, 78ll, 
78mm, 80a-8, 80a-9, 80a-20, 80a-29, 80a-30, 80a-31(c), 80a-37, 80a-
38(a), 80a-39, 80b-11, and 7201 et seq.; and 18 U.S.C. 1350, unless 
otherwise noted.
* * * * *

0
7. Section 229.308 is amended by:
0
a. Adding an ``s'' to the word ``instruction'' in the descriptive 
heading at the end of the section;
0
b. Redesignating the existing instruction to Item 308 as Instruction 2; 
and
0
c. Adding new Instruction 1.
    The addition reads as follows:


Sec.  229.308 (Item 308)  Internal control over financial reporting.

* * * * *
    1. A registrant need not comply with paragraphs (a) and (b) of this 
Item until it either had been required to file an annual report 
pursuant to section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m 
or 78o(d)) for the prior fiscal year or had filed an annual report with 
the Commission for the prior fiscal year. A registrant that does not 
comply shall include a statement in the first annual report that it 
files in substantially the following form: ``This annual report does 
not include a report of management's assessment regarding internal 
control over financial reporting or an attestation report of the 
company's registered public accounting firm due to a transition period 
established by rules of the Securities and Exchange Commission for 
newly public companies.''
* * * * *

0
8. Section 229.308T is added to read as follows:


Sec.  229.308T (Item 308T)  Internal control over financial reporting.

    Note to Item 308T: This is a special temporary section that 
applies only to a registrant that is neither a ``large accelerated 
filer'' nor an ``accelerated filer'' as those terms are defined in 
Sec.  240.12b-2 of this chapter and only with respect to an annual 
report filed by the registrant for a fiscal year ending on or after 
December 15, 2007 but before December 15, 2008.

    (a) Management's annual report on internal control over financial 
reporting. Provide a report of management on the registrant's internal 
control over financial reporting (as defined in Sec.  240.13a-15(f) or 
Sec.  240.15d-15(f) of this chapter). This report shall not be deemed 
to be filed for purposes of Section 18 of the Exchange Act or otherwise 
subject to the liabilities of that section, unless the registrant 
specifically states that the report is to be considered ``filed'' under 
the Exchange Act or incorporates it by reference into a filing under 
the Securities Act or the Exchange Act. The report must contain:
    (1) A statement of management's responsibility for establishing and 
maintaining adequate internal control over financial reporting for the 
registrant;
    (2) A statement identifying the framework used by management to 
evaluate the effectiveness of the registrant's internal control over 
financial reporting as required by paragraph (c) of Sec.  240.13a-15 or 
Sec.  240.15d-15 of this chapter; and
    (3) Management's assessment of the effectiveness of the 
registrant's internal

[[Page 76596]]

control over financial reporting as of the end of the registrant's most 
recent fiscal year, including a statement as to whether or not internal 
control over financial reporting is effective. This discussion must 
include disclosure of any material weakness in the registrant's 
internal control over financial reporting identified by management. 
Management is not permitted to conclude that the registrant's internal 
control over financial reporting is effective if there are one or more 
material weaknesses in the registrant's internal control over financial 
reporting.
    (4) A statement in substantially the following form: ``This annual 
report does not include an attestation report of the company's 
registered public accounting firm regarding internal control over 
financial reporting. Management's report was not subject to attestation 
by the company's registered public accounting firm pursuant to 
temporary rules of the Securities and Exchange Commission that permit 
the company to provide only management's report in this annual 
report.''
    (b) Changes in internal control over financial reporting. Disclose 
any change in the registrant's internal control over financial 
reporting identified in connection with the evaluation required by 
paragraph (d) of Sec.  240.13a-15 or Sec.  240.15d-15 of this chapter 
that occurred during the registrant's last fiscal quarter (the 
registrant's fourth fiscal quarter in the case of an annual report) 
that has materially affected, or is reasonably likely to materially 
affect, the registrant's internal control over financial reporting.
    Instructions to paragraphs (a) and (b) of Item 308T. 
    1. A registrant need not comply with paragraph (a) of this Item 
until it either had been required to file an annual report pursuant to 
section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)) 
for the prior fiscal year or previously had filed an annual report with 
the Commission for the prior fiscal year. A registrant that does not 
comply shall include a statement in the first annual report that it 
files in substantially the following form: ``This annual report does 
not include a report of management's assessment regarding internal 
control over financial reporting or an attestation report of the 
company's registered public accounting firm due to a transition period 
established by rules of the Securities and Exchange Commission for 
newly public companies.''
    2. The registrant must maintain evidential matter, including 
documentation, to provide reasonable support for management's 
assessment of the effectiveness of the registrant's internal control 
over financial reporting.
    (c) This temporary Item 308T, and accompanying note and 
instructions, will expire on June 30, 2009.

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

0
9. The general authority citation for Part 240 is revised to read as 
follows:

    Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 
78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 
80b-11, and 7201 et seq.; and 18 U.S.C. 1350, unless otherwise 
noted.
* * * * *

0
10. Section 240.13a-14 is amended by adding a sentence at the end of 
paragraph (a) to read as follows:


Sec.  240.13a-14  Certification of disclosure in annual and quarterly 
reports.

    (a) * * * The principal executive and principal financial officers 
of an issuer may omit the portion of the introductory language in 
paragraph 4 as well as language in paragraph 4(b) of the certification 
that refers to the certifying officers' responsibility for designing, 
establishing and maintaining internal control over financial reporting 
for the issuer until the issuer becomes subject to the internal control 
over financial reporting requirements in Sec.  240.13a-15 or 240.15d-
15.
* * * * *

0
11. Section 240.13a-15 is amended by:
0
a. Revising paragraph (a); and
0
b. Revising the first sentences in paragraphs (c) and (d).
    The revisions read as follows:


Sec.  240.13a-15  Controls and procedures.

    (a) Every issuer that has a class of securities registered pursuant 
to section 12 of the Act (15 U.S.C. 781), other than an Asset-Backed 
Issuer (as defined in Sec.  229.1101 of this chapter), a small business 
investment company registered on Form N-5 (Sec. Sec.  239.24 and 274.5 
of this chapter), or a unit investment trust as defined in section 4(2) 
of the Investment Company Act of 1940 (15 U.S.C. 80a-4(2)), must 
maintain disclosure controls and procedures (as defined in paragraph 
(e) of this section) and, if the issuer either had been required to 
file an annual report pursuant to section 13(a) or 15(d) of the Act (15 
U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or had filed an 
annual report with the Commission for the prior fiscal year, internal 
control over financial reporting (as defined in paragraph (f) of this 
section).
* * * * *
    (c) The management of each such issuer that either had been 
required to file an annual report pursuant to section 13(a) or 15(d) of 
the Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or 
previously had filed an annual report with the Commission for the prior 
fiscal year, other than an investment company registered under section 
8 of the Investment Company Act of 1940 (15 U.S.C. 80a-8), must 
evaluate, with the participation of the issuer's principal executive 
and principal financial officers, or persons performing similar 
functions, the effectiveness, as of the end of each fiscal year, of the 
issuer's internal control over financial reporting. * * *
    (d) The management of each such issuer that either had been 
required to file an annual report pursuant to section 13(a) or 15(d) of 
the Act (15 U.S.C. 78m(a) or 78o(d) for the prior fiscal year or had 
filed an annual report with the Commission for the prior fiscal year, 
other than an investment company registered under section 8 of the 
Investment Company Act of 1940 (15 U.S.C. 80a-8), must evaluate, with 
the participation of the issuer's principal executive and principal 
financial officers, or persons performing similar functions, any change 
in the issuer's internal control over financial reporting, that 
occurred during each of the issuer's fiscal quarters, or fiscal year in 
the case of a foreign private issuer, that has materially affected, or 
is reasonably likely to materially affect, the issuer's internal 
control over financial reporting. * * *
* * * * *

0
12. Section 240.15d-14 is amended by adding a sentence at the end of 
paragraph (a) to read as follows:


Sec.  240.15d-14  Certification of disclosure in annual and quarterly 
reports.

    (a) * * * The principal executive and principal financial officers 
of an issuer may omit the portion of the introductory language in 
paragraph 4 as well as language in paragraph 4(b) of the certification 
that refers to the certifying officers' responsibility for designing, 
establishing and maintaining internal control over financial reporting 
for the issuer until the issuer becomes subject to the internal control 
over financial reporting requirements in Sec.  240.13a-15 or 240.15d-15 
of this chapter.
* * * * *
0
13. Section 240.15d-15 is amended by:
0
a. Revising paragraph (a); and

[[Page 76597]]

0
b. Revising the first sentences of paragraphs (c) and (d).
    The revisions read as follows:


Sec.  240.15d-15  Controls and procedures.

    (a) Every issuer that files reports under section 15(d) of the Act 
(15 U.S.C. 78o(d)), other than an Asset Backed Issuer (as defined in 
Sec.  229.1101 of this chapter), a small business investment company 
registered on Form N-5 (Sec. Sec.  239.24 and 274.5 of this chapter), 
or a unit investment trust as defined in section 4(2) of the Investment 
Company Act of 1940 (15 U.S.C. 80a-4(2)), must maintain disclosure 
controls and procedures (as defined in paragraph (e) of this section) 
and, if the issuer either had been required to file an annual report 
pursuant to section 13(a) or 15(d) of the Act (15 U.S.C. 78m(a) or 
78o(d)) for the prior fiscal year or had filed an annual report with 
the Commission for the prior fiscal year, internal control over 
financial reporting (as defined in paragraph (f) of this section).
* * * * *
    (c) The management of each such issuer that either had been 
required to file an annual report pursuant to section 13(a) or 15(d) of 
the Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or had 
filed an annual report with the Commission for the prior fiscal year, 
other than an investment company registered under section 8 of the 
Investment Company Act of 1940 (15 U.S.C. 80a-8), must evaluate, with 
the participation of the issuer's principal executive and principal 
financial officers, or persons performing similar functions, the 
effectiveness, as of the end of each fiscal year, of the issuer's 
internal control over financial reporting. * * *
    (d) The management of each such issuer that previously either had 
been required to file an annual report pursuant to section 13(a) or 
15(d) of the Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year 
or previously had filed an annual report with the Commission for the 
prior fiscal year, other than an investment company registered under 
section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a-8), must 
evaluate, with the participation of the issuer's principal executive 
and principal financial officers, or persons performing similar 
functions, any change in the issuer's internal control over financial 
reporting, that occurred during each of the issuer's fiscal quarters, 
or fiscal year in the case of a foreign private issuer, that has 
materially affected, or is reasonably likely to materially affect, the 
issuer's internal control over financial reporting. * * *
* * * * *

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

0
14. The authority citation for Part 249 continues to read, in part, as 
follows:

    Authority: 15 U.S.C. 78a et seq. and 7201 et seq.; and 18 U.S.C. 
1350, unless otherwise noted.

0
15. Form 20-F (referenced in Sec.  249.220f), Part II, is amended by:
0
a. Adding an ``s'' to the word ``Instruction'' in the descriptive 
heading at the end of Item 15;
0
b. Redesignating the existing Instruction to Item 15 as Instruction 2;
0
c. Adding new Instruction 1 to Item 15; and
0
d. revising Item 15T.
    The additions and revision read as follows.

    Note: The text of Form 20-F does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 20-F
* * * * *
Part II
* * * * *
Item 15. Controls and Procedures
* * * * *

Instructions to Item 15

    1. An issuer need not comply with paragraphs (b) and (c) of this 
Item until it either had been required to file an annual report 
pursuant to Section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 
78m(a) or 78o(d)) for the prior fiscal year or had filed an annual 
report with the Commission for the prior fiscal year. An issuer that 
does not comply shall include a statement in the first annual report 
that it files in substantially the following form: ``This annual report 
does not include a report of management's assessment regarding internal 
control over financial reporting or an attestation report of the 
company's registered public accounting firm due to a transition period 
established by rules of the Securities and Exchange Commission for 
newly public companies.''
* * * * *

Item 15T. Controls and Procedures

    Note to Item 15T: This is a special temporary section that 
applies instead of Item 15 only to: (1) an issuer that is an 
``accelerated filer,'' but not a ``large accelerated filer,'' as 
those terms are defined in Sec.  240.12b-2 of this chapter and only 
with respect to an annual report that the issuer is required to file 
for a fiscal year ending on or after July 15, 2006 but before July 
15, 2007; or

    (2) an issuer that is neither a ``large accelerated filer'' nor 
an ``accelerated filer'' as those terms are defined in Sec.  
240.12b-2 of this chapter and only with respect to an annual report 
that the issuer is required to file for a fiscal year ending on or 
after December 15, 2007 but before December 15, 2008.

    (a) Disclosure Controls and Procedures. Where the Form is being 
used as an annual report filed under section 13(a) or 15(d) of the 
Exchange Act, disclose the conclusions of the issuer's principal 
executive and principal financial officers, or persons performing 
similar functions, regarding the effectiveness of the issuer's 
disclosure controls and procedures (as defined in 17 CFR 240.13a-15(e) 
or 240.15d-15(e)) as of the end of the period covered by the report, 
based on the evaluation of these controls and procedures required by 
paragraph (b) of 17 CFR 240.13a-15 or 240.15d-15.
    (b) Management's annual report on internal control over financial 
reporting. Where the Form is being used as an annual report filed under 
section 13(a) or 15(d) of the Exchange Act, provide a report of 
management on the issuer's internal control over financial reporting 
(as defined in Sec.  240.13a-15(f) or 240.15d-15(f) of this chapter). 
The report shall not be deemed to be filed for purposes of section 18 
of the Exchange Act or otherwise subject to the liabilities of that 
section, unless the issuer specifically states that the report is to be 
considered ``filed'' under the Exchange Act or incorporates it by 
reference into a filing under the Securities Act or the Exchange Act. 
The report must contain:
    (1) A statement of management's responsibility for establishing and 
maintaining adequate internal control over financial reporting for the 
issuer;
    (2) A statement identifying the framework used by management to 
evaluate the effectiveness of the issuer's internal control over 
financial reporting as required by paragraph (c) of Sec.  240.13a-15 or 
240.15d-15 of this chapter;
    (3) Management's assessment of the effectiveness of the issuer's 
internal control over financial reporting as of the end of the issuer's 
most recent fiscal year, including a statement as to whether or not 
internal control over financial reporting is effective. This discussion 
must include disclosure of any material weakness in the issuer's 
internal control over financial reporting identified by management. 
Management

[[Page 76598]]

is not permitted to conclude that the issuer's internal control over 
financial reporting is effective if there are one or more material 
weaknesses in the issuer's internal control over financial reporting; 
and
    (4) A statement in substantially the following form: ``This annual 
report does not include an attestation report of the company's 
registered public accounting firm regarding internal control over 
financial reporting. Management's report was not subject to attestation 
by the company's registered public accounting firm pursuant to 
temporary rules of the Securities and Exchange Commission that permit 
the company to provide only management's report in this annual 
report.''
    (c) Changes in internal control over financial reporting. Disclose 
any change in the issuer's internal control over financial reporting 
identified in connection with the evaluation required by paragraph (d) 
of Sec.  240.13a-15 or 240.15d-15 of this chapter that occurred during 
the period covered by the annual report that has materially affected, 
or is reasonably likely to materially affect, the issuer's internal 
control over financial reporting.
    (d) This temporary Item 15T, and accompanying note and 
instructions, will expire on June 30, 2009.

Instructions to Item 15T

    1. An issuer need only comply with paragraph (b) of this Item until 
it either had been required to file an annual report pursuant to 
section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m(a) or 78o(d)) 
for the prior fiscal year or had filed an annual report with the 
Commission for the prior fiscal year. An issuer that does not comply 
shall include a statement in the first annual report that it files in 
substantially the following form: ``This annual report does not include 
a report of management's assessment regarding internal control over 
financial reporting or an attestation report of the company's 
registered public accounting firm due to a transition period 
established by rules of the Securities and Exchange Commission for 
newly public companies.''
    2. The registrant must maintain evidential matter, including 
documentation, to provide reasonable support for management's 
assessment of the effectiveness of the issuer's internal control over 
financial reporting.
* * * * *

0
16. Form 40-F (referenced in Sec.  249.240f) is amended by revising the 
``Instructions to paragraphs (b), (c), (d) and (e) of General 
Instruction B.(6).'' as follows:
0
a. Redesignating existing Instruction 1 as Instruction 2;
0
b. Adding new Instruction 1; and
0
c. Redesignating existing Instruction 2T as Instruction 3T;
0
d. Revising newly redesignated Instruction 3T.
    The addition and revision read as follows:

    Note: The text of Form 40-F does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 40-F
* * * * *
General Instructions
* * * * *
B. Information To Be Filed on This Form
* * * * *
    (6) * * *

Instructions to Paragraphs (b), (c), (d) and (e) of General Instruction 
B.(6)

    1. An issuer need not comply with paragraphs (c) and (d) of this 
Instruction until it either had been required to file an annual report 
pursuant to the requirements of section 13(a) or 15(d) of the Exchange 
Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or had filed 
an annual report with the Commission for the prior fiscal year. An 
issuer that does not comply shall include a statement in the first 
annual report that it files in substantially the following form: ``This 
annual report does not include a report of management's assessment 
regarding internal control over financial reporting or an attestation 
report of the company's registered public accounting firm due to a 
transition period established by rules of the Securities and Exchange 
Commission for newly public companies.''
* * * * *
    3T. Paragraphs (c)(4) and (d) of this General Instruction B.6 do 
not apply to: (1) an issuer that is an ``accelerated filer,'' but not a 
``large accelerated filer,'' as those terms are defined in Sec.  
240.12b-2 of this chapter and only with respect to an annual report 
that the issuer is required to file for a fiscal year ending on or 
after July 15, 2006 but before July 15, 2007; or (2) an issuer that is 
neither a ``large accelerated filer'' nor an ``accelerated filer,'' as 
those terms are defined in Sec.  240.12b-2 of this chapter, with 
respect to an annual report that the issuer is required to file for a 
fiscal year ending on or after December 15, 2007 but before December 
15, 2008. Management's report on internal control over financial 
reporting that is included in an annual report filed by the type of 
issuer and within the period set forth in (1) or (2) above in this 
Instruction 3T shall not be deemed to be filed for purposes of Section 
18 of the Exchange Act or otherwise subject to the liabilities of that 
section, unless the issuer specifically states that the report is to be 
considered ``filed'' under the Exchange Act or incorporates it by 
reference into a filing under the Securities Act or the Exchange Act. 
An issuer to which this instruction applies should provide a statement 
in substantially the following form: ``This annual report does not 
include an attestation report of the company's registered public 
accounting firm regarding internal control over financial reporting. 
Management's report was not subject to attestation by the company's 
registered public accounting firm pursuant to temporary rules of the 
Securities and Exchange Commission that permit the company to provide 
only management's report in this annual report.''
    This temporary Instruction 3T will expire on June 30, 2009.
* * * * *

0
17. Form 10-Q (referenced in Sec.  249.308a) is amended by adding 
temporary Item 4T to Part I following Item 4.
    The addition reads as follows:

    Note: The text of Form 10-Q does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 10-Q
* * * * *
Part I--Financial Information
* * * * *

Item 4T. Controls and Procedures.

    (a) If the registrant is neither a large accelerated filer nor an 
accelerated filer as those terms are defined in Sec.  240.12b-2 of this 
chapter, furnish the information required by Items 307 and 308T of 
Regulation S-K (17 CFR 229.307 and 229.308T) with respect to a 
quarterly report that the registrant is required to file for a fiscal 
year ending on or after December 15, 2007 but before December 15, 2008.
    (b) This temporary Item 4T will expire on June 30, 2009.
* * * * *

0
18. Form 10-QSB (referenced in Sec.  249.308b) is amended by adding 
temporary Item 3A(T) to Part I after Item 3A.
    The addition reads as follows:

    Note: The text of Form 10-QSB does not, and this amendment will 
not, appear in the Code of Federal Regulations.


[[Page 76599]]


Form 10-QSB
* * * * *
Part I--Financial Information

Item 3A(T). Controls and Procedures

    (a) Furnish the information required by Items 307 and 308T of 
Regulation S-B (17 CFR 228.307 and 228.308T) with respect to a 
quarterly report that the small business issuer is required to file for 
a fiscal year ending on or after December 15, 2007 but before December 
15, 2008.
    (b) This temporary Item 3A(T) will expire on June 30, 2009.
* * * * *

0
19. Form 10-K (referenced in Sec.  249.310) is amended by adding 
temporary Item 9A(T) to Part II following Item 9A.
    The addition reads as follows:

    Note: The text of Form 10-K does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 10-K
* * * * *
Part II
* * * * *

Item 9A(T). Controls and Procedures

    (a) If the registrant is neither a large accelerated filer nor an 
accelerated filer as those terms are defined in Sec.  240.12b-2 of this 
chapter, furnish the information required by Items 307 and 308T of 
Regulation S-K (17 CFR 229.307 and 229.308T) with respect to an annual 
report that the registrant is required to file for a fiscal year ending 
on or after December 15, 2007 but before December 15, 2008.
    (b) This temporary Item 9A(T) will expire on June 30, 2009.
* * * * *

0
20. Form 10-KSB (referenced in Sec.  249.310b) is amended by adding 
temporary Item 8A(T) to Part II after Item 8A.
    The addition reads as follows:

    Note: The text of Form 10-KSB does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 10-KSB
* * * * *
Part II
* * * * *

Item 8A(T). Controls and Procedures

    (a) Furnish the information required by Items 307 and 308T of 
Regulation S-B (17 CFR 228.307 and 228.308T) with respect to an annual 
report that the small business issuer is required to file for a fiscal 
year ending on or after December 15, 2007 but before December 15, 2008.
    (b) This temporary Item 8A(T) will expire on June 30, 2009.
* * * * *

    Dated: December 15, 2006.

    By the Commission.
Nancy M. Morris,
Secretary.
 [FR Doc. E6-21781 Filed 12-20-06; 8:45 am]

BILLING CODE 8011-01-P
