[Federal Register Volume 85, Number 59 (Thursday, March 26, 2020)]
[Rules and Regulations]
[Pages 17178-17242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05546]



[[Page 17177]]

Vol. 85

Thursday,

No. 59

March 26, 2020

Part II





Securities and Exchange Commission





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17 CFR Parts 229, 230, 240, et al.





Accelerated Filer and Large Accelerated Filer Definitions; Final Rule

  Federal Register / Vol. 85 , No. 59 / Thursday, March 26, 2020 / 
Rules and Regulations  

[[Page 17178]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 229, 230, 240, and 249

[Release No. 34-88365; File No. S7-06-19]
RIN 3235-AM41


Accelerated Filer and Large Accelerated Filer Definitions

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
adopting amendments to the accelerated filer and large accelerated 
filer definitions to more appropriately tailor the types of issuers 
that are included in the categories of accelerated and large 
accelerated filers and promote capital formation, preserve capital, and 
reduce unnecessary burdens for certain smaller issuers while 
maintaining investor protections. The amendments exclude from the 
accelerated and large accelerated filer definitions an issuer that is 
eligible to be a smaller reporting company and that had annual revenues 
of less than $100 million in the most recent fiscal year for which 
audited financial statements are available. The amendments also include 
a specific provision excluding business development companies from the 
accelerated and large accelerated filer definitions in analogous 
circumstances. In addition, the amendments increase the transition 
thresholds for accelerated and large accelerated filers becoming non-
accelerated filers from $50 million to $60 million, and for exiting 
large accelerated filer status from $500 million to $560 million. 
Further, the amendments add a revenue test to the transition thresholds 
for exiting from both accelerated and large accelerated filer status. 
Finally, the amendments add a check box to the cover pages of Forms 10-
K, 20-F, and 40-F to indicate whether an internal control over 
financial reporting (``ICFR'') auditor attestation is included in the 
filing. As a result of the amendments, certain low-revenue issuers will 
remain obligated, among other things, to establish and maintain ICFR 
and have management assess the effectiveness of ICFR, but they will not 
be required to have their management's assessment of the effectiveness 
of ICFR attested to, and reported on, by an independent auditor.

DATES: This final rule is effective April 27, 2020.

FOR FURTHER INFORMATION CONTACT: John Fieldsend, Special Counsel, in 
the Division of Corporation Finance, at (202) 551-3430, and Brian 
Johnson, Assistant Director, in the Division of Investment Management, 
at (202) 551-6792, U.S. Securities and Exchange Commission, 100 F 
Street NE, Washington, DC 20549-3628.

SUPPLEMENTARY INFORMATION: We are amending 17 CFR 229.10(f) (``Item 
10(f)'') under Regulation S-K; \1\ 17 CFR 230.405 (``Rule 405'') under 
the Securities Act of 1933; \2\ and 17 CFR 12b-2 (``Rule 12b-2''), 17 
CFR 249.220f (``Form 20-F''), 17 CFR 249.240f (``Form 40-F''), and 17 
CFR 249.310 (``Form 10-K'') under the Securities Exchange Act of 1934 
(``Exchange Act'').\3\
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    \1\ 15 U.S.C. 229.10 through 229.1305.
    \2\ 15 U.S.C. 77a et seq.
    \3\ 15 U.S.C. 78a et seq.
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Table of Contents

I. Introduction
II. Discussion of the Final Amendments
    A. Background
    B. Amendments to Exclude Low-Revenue SRCs From the Accelerated 
and Large Accelerated Filer Definitions
    1. Proposed Amendments
    2. Comments on the Proposed Amendments
    a. Comments on Using Revenue for Determining Accelerated and 
Large Accelerated Filer Status
    b. Comments on the Proposed Amendments' Effect on Capital 
Formation and the Number of Public Issuers
    c. Comments on the Proposed Amendments' Effect on Investor 
Protection
    d. Comments on the Disproportionate Costs and Benefits of the 
ICFR Auditor Attestation Requirement to Small and Low-Revenue 
Companies
    e. Comments on the Relationship Between Non-Accelerated Filers 
and SRCs
    f. Other Comments
    3. Final Amendments
    a. Using Revenue for Determining Accelerated and Large 
Accelerated Filer Status
    b. Effect on Capital Formation and the Number of Public 
Companies
    c. Effect on Investor Protection
    d. Disproportionate Costs and Benefits of the ICFR Auditor 
Attestation for Small and Low-Revenue Companies
    e. Relationship Between Non-Accelerated Filers and SRCs
    f. Effect on Business Development Companies
    g. Effect on Foreign Private Issuers
    h. Requiring ICFR Auditor Attestation Less Frequently Than 
Annually
    i. Check Box Indicating Whether an ICFR Auditor Attestation Is 
Included in a Filing
    C. Amendments To Increase the Public Float Transition Thresholds 
From $50 million to $60 million and $500 million to $560 million and 
To Add the SRC Revenue Test to the Transition Threshold
    1. Proposed Amendments
    2. Comments
    3. Final Amendments
    D. Transition Issues
III. Other Matters
IV. Economic Analysis
    A. Introduction
    B. Baseline
    1. Regulatory Baseline
    2. Characteristics of Accelerated Filer Population
    3. Timing of Filings
    4. Internal Controls and Restatements
    C. Discussion of Economic Effects
    1. Affected Issuers
    2. Potential Benefits of Expanding the Exemption From the ICFR 
Auditor Attestation Requirement for Affected Issuers
    a. Evidence on Possible Indirect Costs of the ICFR Auditor 
Attestation Requirement
    b. Evidence on Net Costs of the ICFR Auditor Attestation 
Requirement
    i. Studies Involving Avoidance Behavior
    ii. Studies Based on Comparative Analysis or Market Reactions
    iii. Other Evidence on Net Costs
    c. Potential Reduction in Audit Fees
    d. Additional Potential Compliance Cost Savings
    e. Implications of the Cost Savings
    3. Potential Costs of Expanding the Exemption From the ICFR 
Auditor Attestation Requirement for Affected Issuers
    a. Broad Considerations and Evidence Regarding the Effects of 
ICFR Auditor Attestations on Financial Reporting
    b. Estimated Effects on ICFR, the Reliability of Financial 
Statements, and Potential Fraud
    i. Effects on the Prevalence of Ineffective ICFR
    ii. Effects on the Detection and Disclosure of Material 
Weaknesses in ICFR
    iii. Effects on Restatements
    iv. Effects on Fraudulent Financial Reporting
    v. Timing of the Effects
    c. Implications for Investor Decision-Making
    d. Potential Economic Costs of Effects on ICFR, the Reliability 
of Financial Statements, and Potential Fraud
    i. Computation of Monetized Estimates of Costs
    ii. Discussion of Economic Costs
    4. Potential Benefits and Costs Related to Other Aspects of the 
Amendments
    a. Filing Deadlines
    b. Disclosures Required of Accelerated Filers
    c. Transition Thresholds
    d. Disclosure
    5. Alternatives to the Amendments
    a. Exclude All SRCs From Accelerated Filer Category
    b. Include or Exclude Certain Issuer Types
    c. Alternative Threshold
V. Paperwork Reduction Act
    A. Summary of the Collections of Information
    B. Burden and Cost Estimates Related to the Final Amendments
    1. ICFR Auditor Attestation Requirement

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    2. Filing Deadlines, Disclosure Regarding Filing Availability, 
and Unresolved Staff Comments
    3. Check Box Disclosure
    4. Total Burden Reduction
VI. Regulatory Flexibility Act Analysis
    A. Need for, and Objectives of, the Final Amendments
    B. Significant Issues Raised by Public Comments
    C. Small Entities Subject to the Amendments
    D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    E. Agency Action To Minimize Effect on Small Entities
Statutory Authority and Text of Rule Amendments

I. Introduction

    On May 9, 2019, we proposed amendments \4\ to the ``accelerated 
filer'' and ``large accelerated filer'' definitions in Rule 12b-2.\5\ 
We proposed these amendments to promote capital formation for certain 
smaller issuers while maintaining investor protections by more 
appropriately tailoring the types of issuers that are included in the 
categories of accelerated and large accelerated filers and revising the 
transition thresholds for accelerated and large accelerated filers. 
Specifically, we proposed to exclude from the accelerated and large 
accelerated filer definitions an issuer that is eligible to be a 
smaller reporting company (``SRC'') \6\ and that has annual revenue of 
less than $100 million in the most recent fiscal year for which audited 
financial statements are available (``SRC revenue test''), with the 
effect that such an issuer would not need to satisfy the requirements 
applicable to an accelerated or large accelerated filer. We also 
proposed to increase the public float transition threshold for 
accelerated and large accelerated filers to become a non-accelerated 
filer from $50 million to $60 million, and to increase the exit 
threshold in the large accelerated filer transition provision from $500 
million to $560 million in public float. Finally, we proposed to add a 
revenue test to the transition thresholds for exiting both accelerated 
and large accelerated filer status.
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    \4\ Amendments to the Accelerated and Large Accelerated Filer 
Definitions, Release No. 34-85814 (May 9, 2019) [84 FR 24876 (May 
29, 2019)] (``Proposing Release'').
    \5\ Although Rule 12b-2 defines the terms ``accelerated filer'' 
and ``large accelerated filer,'' it does not define the term ``non-
accelerated filer.'' If an issuer does not meet the definition of 
accelerated filer or large accelerated filer, it is considered a 
non-accelerated filer.
    \6\ See Item 10(f), Rule 405, and Rule 12b-2 (defining SRC).
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    We received over 60 comment letters on the proposal, including over 
40 unique letters and approximately 20 letters that were substantially 
similar. Many of the commenters generally supported the proposed 
amendments \7\ while other commenters generally opposed them or 
suggested the need for further empirical study.\8\ In addition, the 
SEC's Small Business Capital Formation Advisory Committee (``SBCFAC'') 
adopted a recommendation supporting the proposed amendments,\9\ and the 
2019 SEC Government-Business Forum on Small Business Capital Formation 
(``SEC Small Business Forum'') provided a recommendation on the 
accelerated filer definition.\10\ After taking into consideration these 
recommendations and the public comments, we are adopting the amendments 
substantially as proposed. The final amendments are consistent with our 
historical practice of providing scaled disclosure and other 
accommodations for smaller issuers and with recent actions by Congress 
to reduce unnecessary burdens on new and smaller issuers.\11\
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    \7\ See, e.g., letters from Adamas Pharmaceuticals, Inc. (July 
19, 2019) (``Adamas''); Advanced Medical Technology Association 
Accel (July 26, 2019) (``AdvaMed''); Aequor, Inc. (July 18, 2019) 
(``Aequor''); Ardelyx, Inc. (July 18, 2019) (``Ardelyx''); American 
Securities Association (July 29, 2019) (``ASA''); Biotechnology 
Innovation Organization (July 29, 2019) (``BIO''); Broadmark Capital 
(July 29, 2019) (``Broadmark''); California Life Sciences 
Association (Jun. 10, 2019) (``CLSA''); Catalyst Biosciences, Inc. 
(July 29, 2019) (``Catalyst''); Cerecor Inc. (July 3, 2019) 
(``Cerecor''); Chiasma, Inc. (July 11, 2019) (``Chiasma''); 
Coalition of Four Small Businesses and their Investors (July 24, 
2019) (``AdvaMed et al.''); Concert Pharmaceuticals, Inc. (July 1, 
2019) (``Concert''); Corvus Pharmaceuticals, Inc. (July 19, 2019) 
(``Corvus''); Council of State Bioscience Associations (July 25, 
2019) (``CSBA''); CSB Bancorp, Inc. (July 26, 2019) (``CSB''); 
CymaBay Therapeutics, Inc. (July 24, 2019) (``CymaBay''); 
Dar[eacute] Bioscience, Inc. (July 10, 2019) (``Dar[eacute]''); 
Darian B. Andersen, General Counsel, PC (Jun. 5, 2019) 
(``Andersen''); Equillium, Inc. (July 22, 2019) (``Equillium''); 
Evoke Pharma, Inc. (July 17, 2019) (``Evoke''); Gritstone Oncology 
Inc. (July 24, 2019) (``Gritstone''); Guaranty Federal Bancshares, 
Inc. (July 23, 2019) (``Guaranty''); Independent Community Bankers 
of America (July 24, 2019) (``ICBA''); Kezar Life Sciences, Inc. 
(July 17, 2019) (``Kezar''); Kyle Carver (May 25, 2019) 
(``Carver''); Marinus Pharmaceuticals, Inc. (July 17, 2019) 
(``Marinus''); Millendo Therapeutics, Inc. (July 29, 2019) 
(``Millendo''); MSB Financial Corp. (July 19, 2019) (``MSB''); 
Nasdaq, Inc. (July 29, 2019) (``Nasdaq''); Organovo, Inc. (July 18, 
2019) (``Organovo''); Pieris Pharmaceuticals, Inc. (July 11, 2019) 
(``Pieris''); Revance Therapeutics, Inc. (July 22, 2019) 
(``Revance''); SI-BONE, Inc. (July 19, 2019) (``SI-BONE''); South 
Carolina Bankers Association (July 26, 2019) (``SCBA''); Summit 
State Bank (May 28, 2019) (``Summit''); Sutro Biopharma, Inc. (July 
8, 2019) (``Sutro''); Syros Pharmaceuticals, Inc. (July 22, 2019) 
(``Syros''); Teligent, Inc. (July 23, 2019) (``Teligent''); Terra 
Tech Corp. (May 29, 2019) (``Terra Tech''); The Bank of South 
Carolina (July 26, 2019) (``BSC''); U.S. Chamber of Commerce's 
Center for Capital Markets Competitiveness (July 29, 2019) 
(``Chamber''); Xenon Pharmaceuticals Inc. (Jun. 19, 2019) 
(``Xenon''); and Zynerba Pharmaceuticals, Inc. (July 8, 2019) 
(``Zynerba'').
    \8\ See, e.g., letters from BDO USA, LLP (July 29, 2019) 
(``BDO''); Better Markets, Inc. (July 29, 2019) (``Better 
Markets''); Center for Audit Quality (July 29, 2019) (``CAQ''); CFA 
Institute, in consultation with its Corporate Disclosure Policy 
Council (Aug. 22, 2019) (``CFA Inst.''); Colleen Honigsberg, 
Associate Professor of Law, Stanford Law School, et al. (July 22, 
2019) (``Prof. Honigsberg et al.''); Consumer Federation of America 
(July 29, 2019) (``CFA''); Council of Institutional Investors (July 
25, 2019) (``CII''); Crowe LLP (July 29, 2019) (``Crowe''); Deloitte 
& Touche LLP (July 26, 2019) (``Deloitte''); Grant Thornton LLP 
(July 17, 2019) (``Grant Thornton''); John Hassell, Indiana 
University (May 19, 2019) (``Prof. Hassell''); Mary Barth, Stanford 
University, Wayne Landsman, University of North Carolina, Joseph 
Schroeder, Indiana University, and Daniel Taylor, University of 
Pennsylvania (July 11, 2019) (``Prof. Barth et al.''); RSM US LLP 
(July 29, 2019) (``RSM''); and Weili Ge, University of Washington; 
Allison Koester, Georgetown University; and Sarah McVay, University 
of Washington (July 26, 2019) (``Prof. Ge et al.'').
    \9\ See U.S. Sec. and Exch. Comm'n Small Bus. Capital Formation 
Advisory Comm., Recommendation on the Commission's Proposal to Amend 
the Accelerated and Large Accelerated Filer Definitions (Aug. 23, 
2019) (``SBCFAC Recommendations''), available at https://www.sec.gov/spotlight/sbcfac/recommendations-rule-3-05-and-accelerated-filer-definition.pdf. Although it supported the proposed 
amendments, the SBCFAC stated that it ``would welcome the Commission 
to explore additional further amendments'' to the accelerated and 
large accelerated filer definitions and recommended exploring 
raising the revenue threshold to be a non-accelerated filer to one 
higher than $100 million, basing the revenue test for an issuer to 
qualify as a non-accelerated filer on a three-year rolling average 
instead of basing it on the revenue in the most recent fiscal year, 
and looking at whether all SRCs should be non-accelerated filers.
    \10\ See U.S. Sec. and Exch. Comm'n Gov't-Bus. Forum on Small 
Bus. Capital Formation, Report on the 38th Annual Government-
Business Forum on Small Business Capital Formation (Aug. 14, 2019) 
(``SEC Small Business Forum''), available at https://www.sec.gov/files/small-business-forum-report-2019.pdf. The SEC Small Business 
Forum recommended aligning the definition of non-accelerated filer 
with the definition of SRC to include issuers with a public float 
less than $250 million or with annual revenues less than $100 
million (and either no public float or a public float less than $700 
million).
    \11\ For example, Title I of the Jumpstart Our Business Startups 
Act of 2012 (``JOBS Act'') amended Section 404(b) of the Sarbanes-
Oxley Act (``SOX''), 15 U.S.C. 7262(b), which relates to an issuer's 
ICFR to exempt emerging growth companies (``EGCs'') from the 
requirement of SOX Section 404(b). In particular, SOX Section 404(b) 
requires that an issuer's independent auditor attest to, and report 
on, management's assessment of the effectiveness of the issuer's 
ICFR (``ICFR auditor attestation''). See Public Law 112-106, Sec. 
103, 126 Stat. 306 (2012). In addition, Section 72002 of the Fixing 
America's Surface Transportation Act of 2015 requires the Commission 
to revise Regulation S-K to further scale or eliminate requirements 
to reduce the burden on EGCs, accelerated filers, SRCs, and other 
smaller issuers, while still providing all material information to 
investors. See Public Law 114-94, 129 Stat. 1312 (2015).
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II. Discussion of the Final Amendments

A. Background

    In June 2018, the Commission adopted amendments \12\ to the SRC

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definition \13\ to expand the number of issuers that qualify for scaled 
disclosure accommodations. The amended SRC definition allows an issuer 
to use either a public float \14\ test or the SRC revenue test to 
determine whether it is an SRC. The amendments increased the threshold 
in the public float test for an issuer to initially qualify as an SRC 
from less than $75 million to less than $250 million.\15\ The 
Commission also expanded the revenue test to include issuers with 
annual revenues \16\ of less than $100 million if they have no public 
float or a public float of less than $700 million.\17\ The Commission 
intended the amendments to promote capital formation for smaller 
issuers by reducing compliance costs for the newly eligible SRCs while 
maintaining appropriate investor protections.\18\
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    \12\ See Smaller Reporting Company Definition, Release No. 33-
10513 (June 28, 2018) [83 FR 31992 (July 10, 2018)] (``SRC Adopting 
Release'').
    \13\ See note 6 above.
    \14\ Public float is defined in paragraph (3)(i)(A) of the SRC 
definition in Rule 12b-2, which states that public float is measured 
as of the last business day of the issuer's most recently completed 
second fiscal quarter and computed by multiplying the aggregate 
worldwide number of shares of its voting and non-voting common 
equity held by non-affiliates by the price at which the common 
equity was last sold, or the average of the bid and asked prices of 
common equity, in the principal market for the common equity. See 
also Item 10(f) (2)(i)(A) and Rule 405. An entity with no public 
float because, for example, it has equity securities outstanding but 
is not trading in any public trading market would not be able to 
qualify on the basis of a public float test alone. That entity must 
look to the SRC revenue test to determine whether it qualifies as an 
SRC.
    \15\ To avoid situations where an issuer frequently enters and 
exits SRC status, each test includes two thresholds--one for 
initially determining whether an issuer qualifies as an SRC and a 
subsequent transition threshold that is lower for issuers that did 
not initially qualify as an SRC, or that no longer qualify as an SRC 
because they exceeded the initial thresholds.
    \16\ Annual revenues are measured as of the most recently 
completed fiscal year for which audited financial statements are 
available. See Item 10(f)(2)(i)(B), Rule 405, and Rule 12b-2.
    \17\ See Item 10(f)(1), Rule 405, and Rule 12b-2. The prior 
revenue test included issuers with no public float and annual 
revenues of less than $50 million. See SRC Adopting Release, note 12 
above, at 31995. The lower transition thresholds under the revenue 
test for an issuer that did not initially qualify as an SRC, or that 
no longer qualifies as an SRC because it exceeded the initial 
thresholds, were revised from less than $40 million of annual 
revenues and no public float to less than $80 million of annual 
revenues and either no public float or a public float of less than 
$560 million. See Item 10(f)(2)(iii)(B), Rule 405, and Rule 12b-2.
    \18\ SRC Adopting Release, note 12 above, at 31992.
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    In conjunction with these amendments, the Commission also revised 
the accelerated filer and large accelerated filer definitions in Rule 
12b-2 to remove the condition that, for an issuer to be an accelerated 
filer or a large accelerated filer, it must not be eligible to use the 
SRC accommodations.\19\ One result of these amendments is that some 
issuers now are categorized as both SRCs and accelerated or large 
accelerated filers.\20\ These issuers have some, but not all, of the 
benefits of scaled regulation. In particular, issuers that are 
categorized as both SRCs and accelerated or large accelerated filers 
must comply with the earlier filing deadlines required of accelerated 
and large accelerated filers for annual and quarterly reports and the 
requirement of SOX Section 404(b).\21\
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    \19\ This amendment, among other things, preserved the existing 
thresholds in those definitions and did not change the number of 
issuers subject to the ICFR auditor attestation requirement.
    \20\ Although rare, under our existing rules, some issuers that 
meet the large accelerated filer definition may be eligible to be an 
SRC because of the expanded revenue test in the SRC definition. See 
Proposing Release, note 4 above, at 24877, n. 25. As discussed 
below, in Section II.B.3., we are adopting the proposed amendment to 
the ``large accelerated filer'' definition so that an issuer that is 
eligible to be an SRC under the SRC revenue test would not also 
qualify as a large accelerated filer.
    \21\ 15 U.S.C. 7262(b).
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    Prior to the SRC amendments, the SRC category of filers generally 
did not overlap with either the accelerated or large accelerated filer 
categories.\22\ Now, however, as illustrated in Figure 1 of this 
section, because the public float tests in the SRC and accelerated 
filer definitions partially overlap, and the accelerated and large 
accelerated filer definitions no longer specifically exclude an issuer 
that is eligible to be an SRC, an issuer meeting the accelerated filer 
definition will be both an SRC and an accelerated filer \23\ if it has:
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    \22\ See SRC Adopting Release, note 12 above, at 32001.
    \23\ The thresholds provided below are based on the initial 
thresholds of each definition; however, due to the transition 
provisions of the accelerated and large accelerated filer 
definitions, additional issuers may also be both an SRC and an 
accelerated or large accelerated filer.
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     A public float of $75 million or more, but less than $250 
million, regardless of annual revenues; or
     Less than $100 million in annual revenues, and a public 
float of $250 million or more, but less than $700 million.
[GRAPHIC] [TIFF OMITTED] TR26MR20.000

B. Amendments To Exclude Low-Revenue SRCs From the Accelerated and 
Large Accelerated Filer Definitions

1. Proposed Amendments
    Under the existing accelerated filer and large accelerated filer 
definitions in Rule 12b-2, an issuer must satisfy three conditions to 
be an accelerated filer or large accelerated filer.\24\ We proposed to

[[Page 17181]]

add a new condition to the definitions of accelerated filer and large 
accelerated filer that would exclude from those definitions an issuer 
that is eligible to be an SRC and that meets the SRC revenue test. The 
most notable effect of the proposed amendments \25\ would be that an 
issuer that is eligible to be an SRC and that meets the SRC revenue 
test would not be subject to the requirement of SOX Section 404(b) that 
an issuer's independent auditor must attest to, and report on, 
management's assessment of the effectiveness of the issuer's ICFR.\26\ 
The final amendments do not change an auditor's role in a financial 
statement audit.\27\
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    \24\ The three existing conditions for qualifying as an 
accelerated filer are that an issuer: (1) Had an aggregate worldwide 
public float of $75 million or more, but less than $700 million, as 
of the last business day of the issuer's most recently completed 
second fiscal quarter; (2) has been subject to the requirements of 
15 U.S.C. 78m (Exchange Act Section 13(a)) or 15 U.S.C. 78o(d) 
(Exchange Act Section 15(d)) for a period of at least twelve 
calendar months; and (3) has filed at least one annual report 
pursuant to those sections. For a large accelerated filer, 
conditions (2) and (3) are the same, but condition (1) is that an 
issuer had an aggregate worldwide public float of $700 million or 
more, as of the last business day of the issuer's most recently 
completed second fiscal quarter. Also, as discussed in note 20 
above, some issuers that meet the ``large accelerated filer'' 
definition may be eligible to be an SRC.
    \25\ The issuer also would not have to abide by the filing 
deadlines of an accelerated or large accelerated filer, provide the 
disclosure required by Item 1B of Form 10-K and Item 4A of Form 20-F 
about unresolved staff comments on its periodic and/or current 
reports, or provide the disclosure required by Item 101(e)(4) of 
Regulation S-K about whether it makes filings available on or 
through its internet website. See 17 CFR 229.101(e)(4).
    \26\ See 17 CFR 240.13a-15(f) and 17 CFR 240.15d-15(f) (defining 
ICFR).
    \27\ See letter from Deloitte (suggesting that the Commission 
explain how an auditor's role in a financial statement audit will 
change as a result of the amendments).
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    SOX Section 404(a) \28\ requires almost all issuers, including 
SRCs, that file reports pursuant to Exchange Act Section 13(a) or 15(d) 
\29\ to establish and maintain ICFR and have their management assess 
the effectiveness of their ICFR.\30\ SOX Section 404(b) subjects 
certain issuers not otherwise exempted to the ICFR auditor attestation 
requirement.\31\ The most significant exemption from the ICFR auditor 
attestation requirement is the exemption provided to EGCs pursuant to 
Title I of the JOBS Act (``JOBS Act Exemption''). Generally, an EGC is 
a company that has total annual gross revenues of less than $1.07 
billion during its most recently completed fiscal year end and that has 
not sold common equity securities under a registration statement.\32\ 
The JOBS Act Exemption provides EGCs with a five-year exemption from 
the ICFR auditor attestation requirement. We estimate that the JOBS Act 
Exemption applies to issuers with an aggregate market capitalization of 
about $585 billion, compared to about $95 billion in aggregate for the 
issuers that are newly exempt from the ICFR auditor attestation 
requirement under the amendments.\33\
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    \28\ 15 U.S.C. 7262(a).
    \29\ See 17 CFR 240.13a-15 and 17 CFR 240.15d-15.
    \30\ Investment companies registered under Section 8 of the 
Investment Company Act of 1940, 15 U.S.C 80a-8, are specifically 
exempted from SOX Section 404 by SOX Section 405, 15 U.S.C. 7263. 
Notwithstanding the exemption pursuant to SOX Section 405, these 
registered investment companies are subject to other requirements 
regarding internal controls. See Proposing Release, note 4 above, at 
24879, n. 44.
    \31\ For example, SOX Section 404(c) exempts from Section 404(b) 
any issuer that is neither a large accelerated filer nor an 
accelerated filer. See 15 U.S.C. 7262(c).
    \32\ See 15 U.S.C. 77(b)(a)(19).
    \33\ These estimates are based on staff analysis of data on 
market values from Compustat for annual reports in calendar year 
2018. See note 298 below for details on the identification of the 
population of different filer types. See note 336 below for details 
on the identification of the population of affected issuers. Out of 
the 1,430 issuers who qualified as EGCs in 2018, 1,097 are also non-
accelerated filers. The remaining EGCs are still exempt from the 
ICFR auditor attestation requirement solely due to the JOBS Act 
Exemption, and those issuers are significantly larger in terms of 
aggregate market capitalization (approximately $145 billion) than 
the issuers newly exempted under the amendments (approximately $95 
billion). This estimate excludes 41 EGCs with an aggregate of 
approximately $20 billion in market capitalization for which we are 
unable to determine non-accelerated filer status, the majority of 
which are Canadian issuers filing on Form 40-F.
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2. Comments on the Proposed Amendments
    Many commenters supported the portion of the proposed amendments 
that would exclude an issuer that is eligible to be an SRC and that 
meets the SRC revenue test from the accelerated and large accelerated 
filer definitions.\34\ Other commenters opposed the proposed amendments 
or suggested the need for further analysis.\35\ Commenters' views on 
different aspects of the proposal, as well as its effects, are 
discussed topically, below.
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    \34\ See, e.g., letters from Adamas, AdvaMed, AdvaMed et al., 
Aequor, Andersen, Ardelyx, Ardelyx's slides from its presentation to 
the SBCFAC Meeting (Aug. 13, 2019) (``Ardelyx Presentation''), ASA, 
BIO, Broadmark, BSC, Carver, Catalyst, Cerecor, Chamber, Chiasma, 
CLSA, Concert, Corvus, CSB, CSBA, CymaBay, Dar[eacute], Equillium, 
Evoke, Gritstone, Guaranty, ICBA, Institute of Management 
Accountants' Financial Reporting and Small Business Committees (July 
16, 2019) (``IMA''), Kezar, Marinus, Millendo, MSB, National 
Association of Manufacturers (July 26, 2019) (``NAM''), Nasdaq, 
Organovo, Pieris, Revance, SCBA, SI-BONE, Summit, Sutro, Syros, 
Teligent, Terra Tech, Xenon, and Zynerba.
    \35\ See, e.g., letters from BDO, Better Markets, CAQ, CFA, CFA 
Inst., CII, Crowe, Deloitte, Grant Thornton, Prof. Barth et al., 
Prof. Ge et al., Prof. Hassell, Prof. Honigsberg et al., and RSM.
---------------------------------------------------------------------------

a. Comments on Using Revenue for Determining Accelerated and Large 
Accelerated Filer Status
    A number of commenters stated explicitly that they supported using 
revenue as a measure to determine whether an issuer should be subject 
to the ICFR auditor attestation requirement.\36\ These commenters 
suggested that using a revenue measurement is preferable to using a 
public float measurement \37\ because public float is often affected by 
industry or economic trends not specific to any particular issuer,\38\ 
and that revenue is more predictable,\39\ a better indicator of an 
issuer's complexity,\40\ and a better indicator of an issuer's ability 
to absorb the burdens of the ICFR auditor attestation requirement.\41\ 
Other commenters questioned whether revenue is an appropriate measure 
for determining whether an issuer should be a non-accelerated filer in 
all cases.\42\ One commenter asserted that low-revenue companies may 
have less sophisticated or experienced accounting functions and some 
aspects of their business may be associated with accounting 
complexities.\43\ This commenter also suggested that issuers may 
recognize revenue in ways that could result in them frequently 
transitioning in and out of non-accelerated filer status.\44\ Another 
commenter indicated that an issuer could have a relatively low amount 
of revenue but still have a large market capitalization and thus 
``greater investor exposure.'' \45\
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    \36\ See, e.g., letters from BIO, Broadmark, Chamber, Concert, 
Corvus, and MSB.
    \37\ See, e.g., letters from Broadmark, Chamber, Concert, 
Corvus, and MSB.
    \38\ See letter from MSB.
    \39\ See letter from Broadmark.
    \40\ See, e.g., letters from Concert and Corvus.
    \41\ See letter from Broadmark.
    \42\ See letter from Ernst & Young LLP (July 29, 2019) (``EY''), 
Grant Thornton, and National Association of State Boards of 
Accountancy (July 23, 2019) (``NASBA'').
    \43\ See letter from EY.
    \44\ Id.
    \45\ See letter from Grant Thornton.
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b. Comments on the Proposed Amendments' Effect on Capital Formation and 
the Number of Public Issuers
    Commenters expressed mixed views on the effect that the proposed 
amendments would have on capital formation, the cost of capital, and 
the decisions of companies as to whether to enter the public capital 
markets. Some commenters agreed with the view expressed in the 
Proposing Release that, by expanding the JOBS Act Exemption, the 
proposed amendments would enhance capital formation or allow affected 
issuers to preserve capital \46\ while also maintaining investor

[[Page 17182]]

protection.\47\ One commenter, questioning the benefits, if any, of the 
ICFR auditor attestation requirement, asserted that there is no 
correlation between a smaller issuer's compliance with the ICFR auditor 
attestation requirement and stronger markets in general.\48\ 
Additionally, some commenters suggested that eliminating the ICFR 
auditor attestation requirement would encourage certain companies to 
enter the public markets.\49\
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    \46\ See, e.g., letters from Andersen, CLSA, Concert, ICBA, and 
NASBA.
    \47\ See, e.g., letters from ICBA and NASBA.
    \48\ See letter from BIO.
    \49\ See, e.g., letters from AdvaMed, AdvaMed et al., Broadmark, 
Cerecor, and ICBA.
---------------------------------------------------------------------------

    Conversely, other commenters asserted that the proposed amendments 
would not enhance capital formation, and some indicated they could even 
reduce capital formation.\50\ Two of these commenters expressed the 
view that eliminating the ICFR auditor attestation requirement could 
increase the cost of capital for certain issuers because investors 
would require a premium to invest in issuers due to the heightened risk 
of ineffective internal controls.\51\ In addition, some commenters 
maintained that the ICFR auditor attestation requirement does not 
prevent companies from entering the public markets.\52\ For example, 
one commenter suggested that the Proposing Release's statement about 
the significant decline in the number of issuers listed on major 
exchanges implied that the cost of compliance with the ICFR auditor 
attestation requirement has contributed materially to that decline.\53\ 
This commenter and some others asserted that the decline can be 
attributed to many other factors.\54\ Some commenters stated that 
confidence in the U.S. capital market system, likely stems, at least in 
part, from financial reporting safeguards, including the ICFR auditor 
attestation requirement, and contended that the proposed amendments 
would thereby reduce investor confidence in issuers' financial 
reporting.\55\
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    \50\ See, e.g., letters from Better Markets, CII, CFA, CFA 
Inst., and Prof. Ge et al.
    \51\ See letters from Better Markets and CFA.
    \52\ See, e.g., letters from CFA, CFA Inst., CII, and Crowe.
    \53\ See letter from CFA.
    \54\ See, e.g., letters from CII, CFA, CFA Inst., and Crowe. 
Other factors commenters cited include the expansion of exemptions 
to registration that increase companies' ability to raise funds 
privately, see, e.g., letters from CFA, CII, and Crowe; corporate 
consolidations, see, e.g., letters from CFA and CII; market 
conditions, see letter from CFA; and the general regulatory 
environment, see letter from Crowe.
    \55\ See, e.g., letters from CAQ and CII.
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    Several commenters indicated that the ICFR auditor attestation 
requirement is not necessary because issuers are permitted to 
voluntarily obtain an ICFR auditor attestation if they believe it is in 
their interest to do so.\56\ Some instances in which commenters 
suggested that issuers may choose to voluntarily obtain an ICFR auditor 
attestation include when their investors demand it,\57\ when not 
obtaining it would have a negative impact on investment analysts' 
coverage,\58\ or when issuers otherwise deem it a good use of their 
capital resources.\59\ In this regard, one commenter suggested 
clarifying that it is the authority and responsibility of the issuer's 
audit committee to determine whether the issuer should voluntarily 
obtain an ICFR auditor attestation.\60\
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    \56\ See, e.g., letters from ASA, BIO, Broadmark, Chamber, 
Guaranty, and Nasdaq.
    \57\ See, e.g., letters from BIO and Guaranty.
    \58\ See letter from Guaranty.
    \59\ Id.
    \60\ See letter from EY.
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c. Comments on the Proposed Amendments' Effect on Investor Protection
    Commenters' views as to the effect of the proposed amendments on 
investor protection were also mixed. Many commenters asserted that, 
even if the ICFR auditor attestation requirement did not apply, other 
existing requirements would provide investors in these issuers with 
sufficient protection.\61\ Commenters cited a number of these other 
requirements, including SOX Section 404(a); \62\ Nasdaq's listing 
standards, surveillance, and enforcement; \63\ the required management 
certifications; \64\ and the obligation of an independent auditor to 
consider ICFR when conducting a financial statement audit.\65\
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    \61\ See, e.g., letters from ASA, Broadmark, BSC, Carver, 
Cerecor, Guaranty, ICBA, MSB, NAM, Nasdaq, Pieris, SCBA, and Xenon.
    \62\ See, e.g., letters from ASA, Broadmark, Carver, ICBA, MSB, 
Nasdaq, and Xenon.
    \63\ See letter from Nasdaq.
    \64\ See 17 CFR 229.601(31)(i), 17 CFR 240.13a-14(a), and 17 CFR 
240.15d-14(a). See, e.g., letters from MSB, Nasdaq, and Xenon.
    \65\ See, e.g., letters from ASA, Carver, Cerecor, MSB, NAM, and 
Xenon.
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    For example, several commenters noted that, when conducting a 
financial statement audit, the auditor is required to obtain an 
understanding of each component of ICFR,\66\ which a few of these 
commenters asserted would provide investors with sufficient protection 
absent the ICFR auditor attestation requirement.\67\ Other commenters 
noted that the requirement that an auditor communicate to the issuer's 
management and its audit committee any significant deficiencies or 
material weaknesses related to ICFR in a financial statement audit 
would provide a certain level of protection for investors in the 
affected issuers.\68\ Some commenters expressed a view that the ICFR 
auditor attestation requirement is not important or material to 
investors generally.\69\ A few of these commenters asserted that 
investors rarely ask an issuer that is exempt from the ICFR auditor 
attestation requirement to voluntarily obtain such an attestation.\70\ 
One commenter \71\ cited a study \72\ that found no statistically 
significant market response on average to disclosures of material 
weaknesses in disclosure controls, which suggests, according to the 
commenter, that investors do not significantly change their long-term 
value assessment of an issuer based on these disclosures.
---------------------------------------------------------------------------

    \66\ See, e.g., letters from ASA, CAQ, CFA Inst., Crowe, EY, 
Grant Thornton, Guaranty, NASBA, Nasdaq, PricewaterhouseCoopers LLP 
(July 25, 2019) (``PWC''), and RSM.
    \67\ See, e.g., letters from ASA, Guaranty, and Nasdaq.
    \68\ See letter from Nasdaq.
    \69\ See, e.g., letters from Adamas; Ardelyx; Ardelyx 
Presentation, ASA, BIO, Carver, Catalyst, Chiasma, Corvus, CymaBay, 
Equillium, Evoke, Gritstone, Kezar, Marinus, Millendo, Organovo, 
Pieris, Revance, SI-BONE, Syros, Teligent, and Zynerba. Some of 
these commenters and others asserted that the ICFR auditor 
attestation requirement is not material for, or important to, 
investors based on the results of a study and their own experience. 
See, e.g., letters from Adamas, Ardelyx, Catalyst, Chiasma, Corvus, 
CymaBay, Equillium, Evoke, Gritstone, Kezar, Marinus, Millendo, 
Organovo, Pieris, Revance, SI-BONE, Syros, Teligent, and Zynerba 
(citing Craig Lewis and Joshua White, Science or Compliance: Will 
Section 404(b) Compliance impede Innovation by Emerging Growth 
Companies in the Biotech Industry, (Feb. 2019) (``BIO Study''), 
available at https://www.bio.org/sites/default/files/BIO_EGC_White_Paper_02_11_2019_FINAL.pdf).
    \70\ See, e.g., letters from Ardelyx Presentation and BIO.
    \71\ See letter from BIO.
    \72\ Jacqueline Hammersley, Linda Myers, and Catherina 
Shakespeare, Market Reactions to the Disclosure of Internal Control 
Weaknesses and to the Characteristics of those Weaknesses under 
Section 302 of the Sarbanes Oxley Act of 2002 (Mar. 2008), available 
at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=979538.
---------------------------------------------------------------------------

    In addition to these broader points, several commenters in the 
banking sector pointed out that community banks and bank holding 
companies are subject to extensive supervision and regulation by 
federal and state banking regulators, which they stated would protect 
investors in this industry even if the affected issuers were not 
subject to the ICFR auditor attestation requirement.\73\
---------------------------------------------------------------------------

    \73\ See, e.g., letters from BSC, Guaranty, ICBA, and SCBA.
---------------------------------------------------------------------------

    Conversely, other commenters asserted that the ICFR auditor 
attestation requirement is an important investor protection and that 
eliminating it would undermine such protection.\74\

[[Page 17183]]

One commenter disputed the contention in the Proposing Release that 
eliminating the ICFR auditor attestation requirement for low-revenue 
issuers would not significantly affect the ability of investors to make 
informed investment decisions.\75\ Some commenters stated that the ICFR 
auditor attestation requirement increases investor confidence generally 
\76\ and that investors view the requirement as beneficial.\77\
---------------------------------------------------------------------------

    \74\ See, e.g., letters from Better Markets, Grant Thornton, and 
Prof. Barth et al.
    \75\ See letter from Prof. Barth et al.
    \76\ See, e.g., letters from Better Markets, CAQ, CFA Inst., and 
EY.
    \77\ See, e.g., letters from CII, CFA Inst., and EY.
---------------------------------------------------------------------------

    Some commenters asserted that the SOX Section 404(a) requirement 
would not provide investors in low-revenue SRCs with sufficient 
protection if they were not also subject to the ICFR auditor 
attestation requirement \78\ because, as one commenter stated, the ICFR 
auditor attestation requirement acts as an effective check on SOX 
Section 404(a).\79\ Another commenter asserted that management's 
assessment is weakened when management knows that it will not be 
challenged by an ICFR auditor attestation.\80\ A third commenter 
claimed that investors would place undue reliance on management's 
report when not accompanied by an ICFR auditor attestation.\81\
---------------------------------------------------------------------------

    \78\ See, e.g., letters from Better Markets, CFA Inst., Crowe, 
Grant Thornton, and Prof. Barth et al.
    \79\ See letter from Better Markets.
    \80\ See letter from CFA Inst.
    \81\ See letter from Grant Thornton.
---------------------------------------------------------------------------

    A few commenters noted that a financial statement audit does not 
provide the same level of assurance as an integrated audit \82\ because 
a financial statement audit's objective is different from that of an 
integrated audit as it relates to ICFR.\83\ Therefore, some commenters 
asserted that, without the ICFR auditor attestation requirement, the 
requirement for auditors to obtain an understanding of each component 
of ICFR when conducting a financial statement audit would not provide 
sufficient investor protection.\84\ Similarly, other commenters 
suggested that some testing of ICFR conducted as part of a financial 
statement audit would not provide sufficient investor protection.\85\ 
One commenter asserted that the control testing performed by a 
financial statement auditor would not be as extensive as testing 
performed in an ICFR auditor attestation and that it is more difficult 
for a financial statement auditor to challenge the design of ICFR.\86\ 
Another commenter noted that, despite the requirement that a financial 
statement auditor communicate any significant deficiencies or material 
weaknesses related to ICFR to the issuer's management and its audit 
committee, a financial statement audit is not designed to identify such 
significant deficiencies or material weaknesses.\87\
---------------------------------------------------------------------------

    \82\ See, e.g., letters from CFA Inst., Crowe, and EY.
    \83\ See, e.g., letters from CAQ, CFA Inst., and RSM (noting 
that a financial statement audit's objective is for the auditor to 
obtain an understanding of the issuer's ICFR that is sufficient to 
assess the factors that affect the risks of material misstatement 
and to design further audit procedures, whereas an integrated 
audit's objective is to test and express an opinion on the 
effectiveness of the issuer's ICFR).
    \84\ See, e.g., letters from CAQ, CFA Inst. Crowe, EY, and RSM.
    \85\ See, e.g., letters from EY, Grant Thornton, and NASBA.
    \86\ See letter from EY.
    \87\ Id.
---------------------------------------------------------------------------

    Some commenters indicated that the ICFR auditor attestation 
requirement promotes effective ICFR and more accurate disclosures 
related to ICFR,\88\ including the likelihood and timeliness of 
disclosing ineffective ICFR.\89\ Also, a number of commenters noted 
that, as discussed in the Proposing Release, effective ICFR, generally, 
and the ICFR auditor attestation requirement, more specifically, 
enhances transparency; \90\ increases the quality and reliability of 
issuers' financial statements,\91\ corporate governance,\92\ 
audits,\93\ and analyst forecasts; \94\ and reduces the number of 
issuers' restatements, misstatements,\95\ the instances of fraud,\96\ 
and occurrences of insider trading.\97\
---------------------------------------------------------------------------

    \88\ See, e.g., letters from Better Markets, CFA, CII, Crowe, 
Grant Thornton, Prof. Barth et al., and PWC.
    \89\ See, e.g., letters from Better Markets, CFA, Crowe, and 
Prof. Barth et al.
    \90\ See letter from EY.
    \91\ See, e.g., letters from Better Markets, CAQ, CFA, CII, 
Deloitte, EY, Grant Thornton, Prof. Barth et al., PWC, and RSM.
    \92\ See letter from Deloitte.
    \93\ See letter from CAQ.
    \94\ See letter from CFA.
    \95\ See, e.g., letters from CAQ, CFA, CFA Inst., Crowe, 
Deloitte, EY, Grant Thornton, and Prof. Barth et al.
    \96\ See, e.g., letters from Better Markets and Deloitte.
    \97\ See letter from CFA.
---------------------------------------------------------------------------

    A few commenters expressed concern about the effect that the 
amendments could have on the reliability of key performance indicators 
and other measures. One commenter indicated that investors in certain 
issuers that would become non-accelerated filers under the amendments 
rely on key performance indicators that are derived from their 
financial statements, such as backlog, sales orders, and number of 
customers, and asserted that eliminating the ICFR auditor attestation 
requirement could reduce the reliability of those indicators.\98\ 
Another commenter noted that investors in those issuers rely on non-
GAAP financial measures, key performance indicators, and other 
disclosures and stated that the Commission may wish to consider auditor 
involvement with that information to address potential risks related to 
completeness and accuracy.\99\
---------------------------------------------------------------------------

    \98\ See letter from NASBA.
    \99\ See letter from CAQ.
---------------------------------------------------------------------------

d. Comments on the Disproportionate Costs and Benefits of the ICFR 
Auditor Attestation Requirement to Small and Low-Revenue Companies
    A number of commenters stated that the ICFR auditor attestation 
requirement is quite costly.\100\ One of these commenters indicated 
that the ICFR auditor attestation requirement ``is the most costly 
aspect of being an [a]ccelerated [f]iler.'' \101\ Several commenters 
asserted more specifically that the ICFR auditor attestation 
requirement is disproportionally costly to small and/or low-revenue 
issuers.\102\ Some of these commenters indicated that the reason for 
the disproportionate costs is that there are fixed costs associated 
with the ICFR auditor attestation requirement that are not scalable for 
smaller issuers.\103\ Other commenters stated that the benefits of the 
ICFR auditor attestation requirement do not outweigh the costs,\104\ 
including the costs associated with ICFR auditor attestation fees,\105\ 
issuer personnel time,\106\ and outside consultants.\107\
---------------------------------------------------------------------------

    \100\ See, e.g., letters from BIO, Broadmark, Carver, Guaranty, 
ICBA, MSB, Summit, and Syros.
    \101\ Letter from Guaranty.
    \102\ See, e.g., letters from AdvaMed et al., Andersen, BIO, 
Broadmark, Chamber, CLSA, CSB, Guaranty, and NAM.
    \103\ See, e.g., letters from Broadmark and Guaranty.
    \104\ See, e.g., letters from ICBA, MSB, and Syros.
    \105\ See, e.g., letters from MSB and Summit.
    \106\ See, e.g., letters from Carver, MSB, and Summit.
    \107\ See, e.g., letters from MSB and Summit.
---------------------------------------------------------------------------

    Some commenters asserted that eliminating the ICFR auditor 
attestation requirement would not substantially reduce costs to 
issuers.\108\ A few of these commenters noted that ICFR auditor 
attestations have become less expensive and more effective because 
auditors are more experienced in conducting them.\109\ Some commenters 
stated that potential compliance cost reductions may be negated if 
there is a loss of investor confidence and protection,\110\ if ICFR 
deficiencies go undetected,\111\ if there is an increase in 
restatements and misstatements,\112\ or if there are higher

[[Page 17184]]

costs of capital.\113\ Additionally, some commenters stated that any 
cost reductions would vary widely among issuers \114\ and would be hard 
to quantify.\115\
---------------------------------------------------------------------------

    \108\ See, e.g., letters from BDO, Better Markets, CFA, CFA 
Inst., EY, Grant Thornton, and RSM.
    \109\ See, e.g., letters from CFA Inst. and Deloitte.
    \110\ See, e.g., letters from Better Markets and CII.
    \111\ See letter from CFA Inst.
    \112\ See, e.g., letters from BDO, CFA, and CFA Inst.
    \113\ See, e.g., letters from CFA and CFA Inst.
    \114\ See, e.g., letters from EY, Grant Thornton, and PWC.
    \115\ See, e.g., letters from Grant Thornton, PWC, and RSM.
---------------------------------------------------------------------------

    Other commenters asserted that the benefits of the ICFR auditor 
attestation requirement are not as great for low-revenue and smaller 
issuers as they are for other issuers.\116\ These commenters expressed 
the view that the issuers that would be exempt from the ICFR auditor 
attestation requirement under the proposed amendments are less likely 
to have ineffective ICFR than other issuers. One commenter cited a 
study that concluded that biotech EGCs are less likely to have 
ineffective ICFR than other issuers.\117\ Another commenter noted that 
ineffective ICFR is less of a concern for banking issuers because of 
the ``federal and state regulatory oversight and internal control 
audits of community banks.'' \118\
---------------------------------------------------------------------------

    \116\ See, e.g., letters from BIO and Guaranty.
    \117\ See letter from BIO (citing the BIO Study). Note that the 
BIO Study investigates only the incremental effect of being in the 
category of biotech EGCs after accounting for the association of 
ineffective ICFR with the other characteristics of these issuers 
(such as their size and return on assets). It is unclear from the 
study whether these issuers have a higher or lower rate of 
ineffective ICFR on average, when considering all of their 
characteristics.
    \118\ See letter from Guaranty.
---------------------------------------------------------------------------

    Conversely, a number of other commenters contended that the 
benefits of the ICFR auditor attestation requirement are greater for 
low-revenue and smaller issuers than for other issuers.\119\ Some of 
the commenters discussed how those issuers are more likely to have 
ineffective ICFR.\120\ Commissioner Robert J. Jackson Jr.'s dissent 
from the Proposing Release (``Commissioner Jackson's Statement'') \121\ 
asserted that investors care most about ICFR auditor attestations at 
those issuers that would not be subject to the ICFR auditor attestation 
requirement under the proposed amendments, and that high-growth 
companies, which potentially would include some of the affected 
issuers, are those in which the risk and consequences of fraud are the 
greatest.\122\ Some commenters referred to statistics cited in the 
Proposing Release to argue that issuers not subject to the ICFR auditor 
attestation requirement have higher levels of ineffective ICFR compared 
with issuers subject to that requirement.\123\ Additionally, commenters 
observed that some low-revenue issuers or smaller companies may still 
have complex financial statements that require sophisticated 
accounting.\124\
---------------------------------------------------------------------------

    \119\ See, e.g., letters from Better Markets, CAQ, CFA, CFA 
Inst., CII, Crowe, EY, Grant Thornton, IMA, NASBA, Prof. Barth et 
al., Prof. Hassell, and RSM.
    \120\ See, e.g., letters from Better Markets, CAQ, CFA, CII, 
Grant Thornton, IMA, NASBA, Prof. Barth et al., and Prof. Hassell.
    \121\ Commissioner Robert J. Jackson Jr., Statement on Proposed 
Amendments to Sarbanes Oxley 404(b) Accelerated Filer Definition 
(May 9, 2019), available at https://www.sec.gov/news/public-statement/jackson-statement-proposed-amendments-accelerated-filer-definition. A few commenters cited Commissioner Jackson's Statement. 
See, e.g., letters from CFA, CFA Inst., and CII.
    \122\ We address Commissioner Jackson's Statement in the 
Economic Analysis. See Section IV.C.3.c. below.
    \123\ Commenters cited the statistics in the Proposing Release, 
note 4 above, that over 40 percent of non-accelerated filers that 
are not subject to the ICFR auditor attestation requirement have 
ineffective ICFR, compared to less than approximately nine and five 
percent of accelerated and large accelerated filers, respectively. 
As noted in the Proposing Release, note 4 above, over 68 percent of 
non-accelerated filers have reported two consecutive years of 
ineffective ICFR and over 38 percent have reported four consecutive 
years of ineffective ICFR in their annual reports. See, e.g., 
letters from Better Markets and Grant Thornton.
    \124\ See, e.g., letters from BDO and RSM.
---------------------------------------------------------------------------

    Finally, some commenters maintained that the risks of fraud \125\ 
and financial statement restatements or misstatements \126\ are greater 
for the issuers that would not be subject to the ICFR auditor 
attestation requirement under the proposed amendments than they are for 
other issuers. Other commenters cited research that concludes that, 
since 2003, non-accelerated U.S. filers accounted for 62 percent of the 
total U.S. financial statement restatements.\127\ Some commenters 
contended that issuers that would not be subject to the ICFR auditor 
attestation requirement under the proposed amendments have fewer 
resources and personnel,\128\ which could result in increased 
misstatements,\129\ unidentified material weaknesses,\130\ and 
ineffective ICFR.\131\
---------------------------------------------------------------------------

    \125\ See, e.g., letters from Better Markets, CFA, CII, and 
Prof. Barth et al.
    \126\ See, e.g., letters from Better Markets, CAQ, EY, Grant 
Thornton, IMA, Prof. Barth et al., and RSM.
    \127\ See, e.g., letters from CAQ and CFA Inst.
    \128\ See, e.g., letters from CAQ, Crowe, EY, and Grant 
Thornton.
    \129\ See, e.g., letter from Crowe.
    \130\ See, e.g., letter from EY.
    \131\ See, e.g., letters from CAQ and Grant Thornton.
---------------------------------------------------------------------------

e. Comments on the Relationship Between Non-Accelerated Filers and SRCs
    A number of commenters discussed the relationship between the non-
accelerated filer and SRC definitions.\132\ Some commenters noted the 
current relationship is incongruent, which results in complexity.\133\ 
Several commenters indicated that the proposed amendments would reduce 
some of this complexity by more closely aligning the definitions.\134\ 
In contrast, other commenters asserted that the proposed amendments 
would increase the complexity of determining filer status.\135\
---------------------------------------------------------------------------

    \132\ See, e.g., letters from ASA, BDO, BIO, Broadmark, CFA, CFA 
Inst., Chamber, EY, Grant Thornton, Guaranty, KPMG LLP (July 29, 
2019) (``KPMG''), NAM, Nasdaq, PWC, and RSM.
    \133\ See, e.g., letters from BDO, BIO, Broadmark, CFA, and 
Nasdaq.
    \134\ See, e.g., letters from BIO, Grant Thornton, KPMG, and 
Nasdaq.
    \135\ See, e.g., letters from BDO, CFA Inst., EY, PWC, and RSM. 
See also SBCFAC Meeting Transcript (Aug. 13, 2019), available at 
https://www.sec.gov/info/smallbus/acsec/sbcfac-transcript-081319.pdf.
---------------------------------------------------------------------------

    While supporting the proposed amendments, some commenters 
recommended that the final amendments completely align the SRC and non-
accelerated filer definitions.\136\ Additionally, one commenter 
recommended further extending the relief from the ICFR auditor 
attestation requirement to issuers with a public float that exceeds 
$700 million if their annual revenues are less than $100 million.\137\
---------------------------------------------------------------------------

    \136\ See, e.g., letters from ASA, Guaranty, NAM, and Nasdaq.
    \137\ See letter from Corvus.
---------------------------------------------------------------------------

f. Other Comments
    We received a variety of other comments on the Proposing Release. 
Some commenters noted that it is difficult for investors to easily 
determine whether an issuer's filing includes an ICFR auditor 
attestation.\138\ These commenters suggested requiring issuers to 
disclose whether they are exempt from the ICFR auditor attestation 
requirement \139\ and/or have voluntarily obtained an ICFR auditor 
attestation \140\ either on a filing's cover page,\141\ such as with a 
check box,\142\ or in management's report on ICFR.\143\ Two commenters 
recommended that the Commission engage in a post-implementation review 
of the impact of the final amendments,\144\ with one of these 
commenters recommending that

[[Page 17185]]

the final amendments require a review of the impact of the changes on 
the affected registrants five years after adoption of the 
amendments.\145\ Some commenters requested that we allow sufficient 
time and notice for auditors and issuers to prepare for compliance with 
the final amendments,\146\ whereas other commenters noted that some 
issuers may be subject to the ICFR auditor attestation requirement for 
only a short time \147\ and requested the Commission adopt final 
amendments quickly.\148\ One commenter asserted that the measurement 
date for non-accelerated filer status and the timing of the start of 
the auditor's attestation of ICFR is burdensome to small biotech 
registrants.\149\
---------------------------------------------------------------------------

    \138\ See, e.g., letters from CAQ, CFA Inst., and Grant 
Thornton.
    \139\ See, e.g., letters from CFA Inst., CII, and Grant 
Thornton.
    \140\ See, e.g., letters from CFA Inst. and KPMG.
    \141\ See, e.g., letters from CAQ, CFA Inst., CII, and Grant 
Thornton.
    \142\ See, e.g., letters from CAQ and Grant Thornton.
    \143\ See letter from Grant Thornton.
    \144\ See letters from IMA and PWC.
    \145\ See letter from IMA.
    \146\ See, e.g., letters from BDO, CAQ, Crowe, EY, KPMG, PWC, 
and RSM.
    \147\ See, e.g., letters from Concert, MSB, Nasdaq, and Xenon.
    \148\ See, e.g., letters from MSB and Summit.
    \149\ See letter from Corvus. Public float for both SRC status 
and accelerated and large accelerated filer status is measured on 
the last business day of the issuer's most recently completed second 
fiscal quarter, and revenue for purposes of determining SRC status 
is measured based on annual revenues for the most recent fiscal year 
completed before the last business day of the second fiscal quarter. 
Therefore, an issuer will be aware of any change in SRC status or 
accelerated or large accelerated filer status as of that date. 
Although an issuer that determines it will no longer be eligible to 
be an SRC is permitted to continue to use the SRC accommodations for 
the Form 10-K for the year in which it fails the measurement test, 
an issuer that becomes an accelerated or large accelerated filer on 
that same measurement date would be required to include the ICFR 
auditor attestation in that Form 10-K. See Rule 12b-2, Item 
10(f)(2)(i)(C), and Rule 405. Although the transition provisions 
apply differently, the measurement dates for SRC status and 
accelerated and large accelerated filer status each provide an 
issuer with at least six months to prepare for a change in its 
status, and we continue to believe that this is an adequate amount 
of time to prepare for the transition.
---------------------------------------------------------------------------

    Additionally, although we did not propose amendments to the 
accelerated and large accelerated filer definitions that would 
specifically address foreign private issuers (``FPI'') or business 
development companies (``BDC''), we solicited comment on these points 
and a few commenters requested we do so.\150\ One commenter asserted 
that there should be no disparity between an FPI that presents its 
financial statements in accordance with International Financial 
Reporting Standards (``IFRS'') and a domestic issuer or FPI that 
presents its financial statements in accordance with U.S. GAAP.\151\ 
The commenter noted that an FPI that presents its financial statements 
in accordance with IFRS cannot be an SRC, so such an FPI cannot rely on 
the proposed amendments. Another commenter recommended that the 
Commission extend the benefits of non-accelerated filer status to BDCs 
if they have total investment income of less than $80 million in their 
most recently completed fiscal year for which audited financial 
statements are available and have either no public float or public 
float of less than $700 million.\152\ The commenter stated that 
allowing BDCs to qualify as non-accelerated filers under this modified 
SRC revenue test would reduce regulatory asymmetry between BDCs and 
operating companies, consistent with recent congressional mandates to 
allow BDCs to use the same offering rules as operating companies. The 
commenter also suggested that allowing smaller BDCs to benefit from 
non-accelerated filer status would ease regulatory costs and burdens, 
which could encourage more BDCs to enter public markets, creating 
greater access to capital for small operating companies and expanding 
investment opportunities for retail investors.\153\
---------------------------------------------------------------------------

    \150\ See, e.g., letters from Dorsey & Whitney LLP (Aug. 16, 
2019) (``Dorsey & Whitney'') and Proskauer Rose LLP (July 26, 2019) 
(``Proskauer'').
    \151\ See letter from Dorsey & Whitney.
    \152\ See letter from Proskauer.
    \153\ Id.
---------------------------------------------------------------------------

3. Final Amendments
    After considering the comments, we are adopting the final 
amendments substantially as proposed. The final amendments add a new 
condition to the accelerated and large accelerated filer definitions in 
Rule 12b-2 that excludes an issuer that is eligible to be an SRC and 
that had annual revenues of less than $100 million in the most recent 
fiscal year for which audited financial statements are available. The 
amendments also allow BDCs to qualify for this exclusion if they meet 
the requirements of the SRC revenue test using their annual investment 
income as the measure of annual revenue, although BDCs would continue 
to be ineligible to be SRCs.\154\ The final amendments are consistent 
with our historical practice of providing scaled disclosure and other 
accommodations for smaller issuers \155\ and with recent actions by 
Congress to reduce burdens on new and smaller issuers.\156\ The table 
below summarizes the conditions required to be considered an 
accelerated and large accelerated filer under the final amendments to 
Rule 12b-2.
---------------------------------------------------------------------------

    \154\ See Section II.B.3.f. below.
    \155\ See, e.g., Smaller Reporting Company Regulatory Relief and 
Simplification, Release No. 33-8876 (Dec. 19, 2007) [73 FR 934 (Jan. 
4, 2008)]; Smaller Reporting Company Regulatory Relief and 
Simplification, Release No. 33-8876 (Dec. 19, 2007) [73 FR 934 (Jan. 
4, 2008)] (``2007 SRC Adopting Release''); and SRC Adopting Release, 
note 12 above.
    \156\ See note 11 above.

 Table 1--Accelerated Filer and Large Accelerated Filer Conditions Under
                          the Final Amendments
------------------------------------------------------------------------
                                               Final large accelerated
     Final accelerated filer conditions            filer conditions
------------------------------------------------------------------------
The issuer has a public float of $75         The issuer has a public
 million or more, but less than $700          float of $700 million or
 million, as of the last business day of      more, as of the last
 the issuer's most recently completed         business day of the
 second fiscal quarter.                       issuer's most recently
                                              completed second fiscal
                                              quarter.
The issuer has been subject to the           Same.
 requirements of Exchange Act Section 13(a)
 or 15(d) for a period of at least twelve
 calendar months.
The issuer has filed at least one annual     Same.
 report pursuant Exchange Act Section 13(a)
 or 15(d).
The issuer is not eligible to use the        Same.
 requirements for SRCs under the revenue
 test in paragraph (2) or (3)(iii)(B), as
 applicable, of the ``smaller reporting
 company'' definition in Rule 12b-2 or, in
 the case of a BDC, does not meet the
 requirements of the revenue test in those
 paragraphs using annual investment income
 as the measure of its annual revenues.
------------------------------------------------------------------------

    Below we discuss specific aspects of the final amendments about 
which we received significant public comment and our response to those 
comments. In many cases, our responses reflect analysis and data that 
is more comprehensively presented in the Economic Analysis.\157\
---------------------------------------------------------------------------

    \157\ See Section IV. below.

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[[Page 17186]]

a. Using Revenue for Determining Accelerated and Large Accelerated 
Filer Status
    As discussed above,\158\ several commenters supported the use of 
revenue in the proposal, providing a variety of reasons that a revenue 
measurement is preferable to using a public float measurement.\159\ 
Others, however, questioned whether revenue is an appropriate measure 
for determining whether an issuer should be considered a non-
accelerated filer.\160\ One of these commenters asserted that low-
revenue issuers may have less sophisticated or experienced accounting 
functions and some aspects of their business may be associated with 
accounting complexities.\161\ Also, the commenter suggested that these 
issuers may recognize revenue in ways that could result in them 
frequently transitioning in and out of non-accelerated filer 
status.\162\
---------------------------------------------------------------------------

    \158\ See Section II.A.2.a. above.
    \159\ See, e.g., letters from Broadmark, Chamber, Concert, 
Corvus, and MSB.
    \160\ See, e.g., letters from EY and Grant Thornton, and NASBA.
    \161\ See letter from EY.
    \162\ Id.
---------------------------------------------------------------------------

    As we discuss in more detail below,\163\ we continue to believe, as 
a general matter, that there may be greater costs and relatively lower 
benefits to including low-revenue issuers, as compared to other 
issuers, in the accelerated and large accelerated filer definitions. 
While we recognize that the circumstances of individual issuers and 
their accounting systems and processes may vary, we believe that low-
revenue issuers may, on average, be less susceptible to the risk of 
certain types of restatements, such as those related to revenue 
recognition.\164\ We also note that the revisions to the transition 
thresholds included in the final amendments may help minimize the risk 
of frequent reclassifications of issuer status.\165\ For these reasons, 
we continue to believe that revenue is an appropriate measure for 
determining whether an issuer should be considered a non-accelerated 
filer.
---------------------------------------------------------------------------

    \163\ See Sections II.B.3.d. and Section IV.C.2.d. below.
    \164\ See Section IV.C.3. below.
    \165\ See Section II.C. below.
---------------------------------------------------------------------------

b. Effect on Capital Formation and the Number of Public Companies
    Under the final amendments, an issuer that is eligible to be an SRC 
and that meets the SRC revenue test will not be required to comply with 
accelerated or large accelerated filer requirements and, thereby, will 
not be subject to the ICFR auditor attestation requirement. Not 
subjecting these affected issuers to the ICFR auditor attestation 
requirement should reduce their compliance costs. As discussed in the 
Economic Analysis,\166\ we estimate that, consistent with the proposal, 
an issuer no longer subject to the ICFR auditor attestation requirement 
would save approximately $210,000 per year comprised of approximately 
$110,000 per year reduction in audit fees and an additional reduction 
in non-audit costs of approximately $100,000.
---------------------------------------------------------------------------

    \166\ See Section IV.C.2.b. below.
---------------------------------------------------------------------------

    Some commenters stated that eliminating the ICFR auditor 
attestation requirement would enhance capital formation or allow those 
issuers to preserve capital.\167\ We note, however, that a number of 
other commenters asserted that these cost savings would be small,\168\ 
and may not help capital formation.\169\ As we discuss in the Economic 
Analysis,\170\ we continue to believe that the expected savings are 
likely to represent a meaningful cost savings for many of the affected 
issuers and, therefore, may have a positive effect on capital 
preservation and formation. Although the average annual cost savings 
may represent a small percentage of the average affected issuer's 
revenues and market capitalization, we believe those savings may be 
meaningful given that affected issuers have, on average, negative net 
income and negative net cash flows from operations.\171\ More 
generally, low-revenue issuers are likely to face financing constraints 
because they do not have access to internally generated capital.\172\ 
Therefore, the average savings of $210,000 per year for these issuers 
may be put to productive use \173\ such as developing the company.\174\
---------------------------------------------------------------------------

    \167\ See, e.g., letters from Andersen, CLSA, Concert, ICBA, and 
NASBA.
    \168\ See letters from CFA, CFA Inst., CII, and Prof. Barth et 
al.
    \169\ See note 50 above.
    \170\ See Section IV.C.2.d. below.
    \171\ See note 362 below.
    \172\ This information is based on staff analysis of data from 
Compustat. See Section IV.C.2.d. below.
    \173\ For example, in a survey of issuers in the biotech 
industry, among 11 biotech EGCs that responded to a question 
regarding how an extension of the exemption from the ICFR auditor 
attestation requirement would affect them given the costs associated 
with the requirement, eight out of the 11 issuers indicated that 
they expected a positive impact on investments in research and 
development and six out of the 11 issuers indicated that they 
expected a positive impact on hiring employees. See BIO Study, note 
423 above.
    \174\ See, e.g., letters from Adamas, Aequor, Andersen, Ardelyx, 
Catalyst, Chiasma, CLSA, Concert, Corvus, CymaBay, Dar[eacute], 
Evoke, Equillium, Gritstone, ICBA, Kezar, Marinus, Millendo, NASBA, 
Organovo, Pieris, Revance, SI-BONE, Sutro, Syros, Teligent, and 
Zynerba.
---------------------------------------------------------------------------

    As we noted in the Proposing Release,\175\ the affected issuers are 
a type of smaller issuer whose representation in public markets has 
decreased relative to the years before SOX. Over the past two decades, 
the number of issuers listed on major exchanges has decreased by about 
40 percent,\176\ but the decline has been concentrated among smaller 
size issuers. For example, the number of listed issuers with a market 
capitalization below $700 million has decreased by about 65 
percent,\177\ and the number of issuers with less than $100 million in 
revenue has decreased by about 60 percent.\178\ Although factors other 
than the ICFR auditor attestation requirement may have contributed to 
the decline,\179\ we believe that the described cost reductions 
associated with the final amendments could be a positive factor in 
encouraging additional small companies to register their securities 
offerings or a class of their securities, which would provide an 
increased level of transparency and investor protection with respect to 
those companies.\180\
---------------------------------------------------------------------------

    \175\ See Section III.C.1. of the Proposing Release, note 4 
above. Staff extracted information regarding whether issuers 
reported having securities registered under Section 12(b) of the 
Exchange Act from the cover page of annual report filings using a 
computer program supplemented with hand collection. See note 336 
below for details on the identification of the population of 
affected issuers.
    \176\ This estimate is based on staff analysis of data from the 
Center for Research in Security Prices database for December 1998 
versus December 2018. The estimate excludes RICs and issuers of 
ADRs.
    \177\ Id.
    \178\ This estimate is based on staff analysis of data from 
Standard & Poor's Compustat and Center for Research in Security 
Prices databases for fiscal year 1998 versus fiscal year 2017. The 
estimate excludes RICs and issuers of ADRs.
    \179\ See note 54 above.
    \180\ See, e.g., letters from AdvaMed, AdvaMed et al., 
Broadmark, Cerecor, and ICBA.
---------------------------------------------------------------------------

c. Effect on Investor Protection
    We continue to believe that the amendments are not likely to have a 
significant effect on the overall ability of investors in the affected 
issuers to make informed investment decisions and note that many 
commenters agreed with this assessment.\181\ As discussed in greater 
detail in the Proposing Release,\182\ issuers have a number of other 
obligations that we believe will provide sufficient protections for 
investors in the affected issuers and allow investors in those issuers 
to make informed investment decisions. These responsibilities derive 
from the Foreign Corrupt Practices Act (``FCPA'')

[[Page 17187]]

requirements with respect to internal accounting controls \183\ as well 
as a number of different changes to financial reporting that were 
introduced by SOX.\184\
---------------------------------------------------------------------------

    \181\ See note 61 to 68 above and accompanying text.
    \182\ See Section II.B. of the Proposing Release, note 4 above.
    \183\ The FCPA added Section 13(b)(2)(B) to the Exchange Act, 15 
U.S.C 78m(b)(2)(B) (referring to ``internal accounting controls'' 
rather than ICFR).
    \184\ See, e.g., SOX Sections 302, 15 U.S.C. 7241, and 404(a) 
and related rules. See 17 CFR 229.308, 17 CFR 240.13a-15, 17 CFR 
240.15d-15, Form 20-F, Form 40-F, 17 CFR 270.30a-2, and 17 CFR 
270.30a-3.
---------------------------------------------------------------------------

    For example, although a non-accelerated filer that is eligible to 
be an SRC and that meets the SRC revenue test will not be subject to 
the ICFR auditor attestation requirement, it will remain subject to the 
SOX Section 404(a) requirement to state in its annual report the 
responsibility of management for establishing and maintaining an 
adequate control structure and procedures for financial reporting, and 
for that report to contain an assessment of the effectiveness of that 
structure and its procedures. In addition, affected issuers are 
required to devise and maintain a system of internal accounting 
controls sufficient to provide reasonable assurances that transactions 
are recorded as necessary to permit the preparation of financial 
statements in conformity with GAAP.\185\ Also, the principal executive 
and financial officers of certain issuers are required to certify that, 
among other things, they are responsible for establishing and 
maintaining ICFR, have designed disclosure controls and procedures to 
ensure material information relating to the issuer and its consolidated 
subsidiaries is made known to such officers by others within those 
entities, and have evaluated and reported on the effectiveness of the 
issuer's disclosure controls and procedures.\186\
---------------------------------------------------------------------------

    \185\ 15 U.S.C. 78m(b)(2)(B).
    \186\ See 17 CFR 240.13a-14 or 17 CFR 240.15d-14 (requiring 
certification) and 17 CFR 229.601(b)(31) (prescribing certification 
content). These rules were adopted pursuant to SOX Section 302. See 
15 U.S.C. 7241.
---------------------------------------------------------------------------

    Furthermore, the issuers that are subject to the final amendments 
will remain subject to a financial statement audit by an independent 
auditor, which will help maintain appropriate investor protections. 
Even without an ICFR auditor attestation requirement, an independent 
auditor is required to consider ICFR in the performance of a financial 
statement audit.\187\ We acknowledge, as stated by some 
commenters,\188\ that the objective of a financial statement audit and 
the level of control testing performed is different from an ICFR audit. 
However, we believe that the requirements of a financial statement 
audit, among other requirements, provide some additional protections 
and that, for low-revenue SRCs, this and the other protections and 
factors associated with these issuers described above sufficiently 
mitigate the risk that the final amendments will adversely affect the 
ability of investors to make informed investment decisions.\189\
---------------------------------------------------------------------------

    \187\ See Public Company Accounting Oversight Board (``PCAOB'') 
Accounting Standard (``AS'') 2110, Identifying and Assessing Risks 
of Material Misstatement, paragraphs .18 through .40 (``PCAOB AS 
2110''), paragraphs .18 through .40.
    \188\ See note 83 above.
    \189\ See Section IV.C.3.b. below (stating that, in the 
Proposing Release, note 4 above, we noted that low-revenue issuers 
may be less likely than other issuers to fail to detect and disclose 
material weaknesses in the absence of an ICFR auditor attestation, 
perhaps because they have less complex financial systems and 
controls).
---------------------------------------------------------------------------

    For example, the auditor in a financial statement audit is required 
to identify and assess the risks of material misstatements, which is 
similar to the risk assessment evaluation required in an ICFR auditor 
attestation. Additionally, the auditor engaged in a financial statement 
audit often may test the operating effectiveness of certain internal 
controls even if not performing an integrated audit to reduce the 
extent of substantive testing required to issue an opinion on the 
financial statements. Moreover, even if an auditor decides not to rely 
on internal controls to reduce the extent of substantive testing, the 
auditor may still identify internal control deficiencies during such 
substantive testing in a financial statement audit.
    Under PCAOB standards, the evaluation and communication of 
significant deficiencies and material weaknesses in ICFR to management 
and the issuer's audit committee is required in both a financial 
statement audit and an ICFR auditor attestation.\190\ The evaluation of 
the severity of a control deficiency identified by the auditor is the 
same for a financial statement audit and an ICFR auditor attestation. 
Further, a financial statement auditor has the responsibility to review 
management's disclosure for any misstatement of facts, such as a 
statement that ICFR is effective when there is a known material 
weakness.\191\ Therefore, we continue to believe significant 
deficiencies and material weaknesses that an ICFR auditor attestation 
may uncover also may be uncovered as a part of the financial statement 
audit of a low-revenue SRC. As discussed above,\192\ because of these 
requirements, a number of commenters agreed that an auditor of the 
financial statements of a low-revenue issuer that would be exempt from 
the ICFR auditor attestation requirement under the final amendments 
would still be required to consider ICFR and therefore this process 
would provide sufficient investor protection.
---------------------------------------------------------------------------

    \190\ See Section II.C. of the Proposing Release, note 4 above.
    \191\ Id.
    \192\ See notes 61 to 68 above and accompanying text.
---------------------------------------------------------------------------

    Other developments may serve to reinforce these existing investor 
protections. In 2010, the PCAOB adopted enhanced auditing standards 
related to the auditor's assessment of, and response to, risk that, in 
part, clarify and augment the extent to which internal controls are to 
be considered in a financial statement audit.\193\ In particular, these 
risk assessment standards require auditors in both an integrated and 
financial statement audit to evaluate the design of certain 
controls.\194\ The PCAOB has expressed concern about the number and 
significance of deficiencies in auditing firm compliance with these 
risk assessment auditing standards, but it has also noted promising 
improvements in their application.\195\
---------------------------------------------------------------------------

    \193\ See Auditing Standards Related to the Auditor's Assessment 
of and Response to Risk and Related Amendments to PCAOB Standards, 
PCAOB Release No. 2010-004 (Aug. 5, 2010) (``PCAOB Release No. 2010-
004''). See also Public Company Accounting Oversight Board; Order 
Approving Proposed Rules on Auditing Standards Related to the 
Auditor's Assessment of and Response to Risk and Related Amendments 
to PCAOB Standards, Release No. 34-63606, File No. PCAOB 2010-01 
(Dec. 23, 2010) [75 FR 82417 (Dec. 30, 2010)] (``PCAOB Release No. 
2010-01''). These auditing standards are discussed in further detail 
in the Economic Analysis. See Section IV.B.1. below.
    \194\ See AS 2110, paragraphs .18 through .40, note 187 above.
    \195\ See Inspection Observations Related to PCAOB ``Risk 
Assessment'' Auditing Standards (No. 8 through No.15), PCAOB Release 
No. 2015-007 i through iii (Oct. 15, 2015) (``PCAOB Release No. 
2015-007'').
---------------------------------------------------------------------------

    Additionally, recent settled charges against four public companies 
for failing to maintain effective ICFR for seven to 10 consecutive 
annual reporting periods \196\ may have a deterrent effect on issuers 
failing to remediate material weaknesses, which could reduce the 
overall rate of persistence of material weaknesses in ICFR. Also, if 
management elects to obtain and use automated controls testing and 
process automation,\197\ this may result in

[[Page 17188]]

improvements in ICFR regardless of the ICFR auditor attestation 
requirement if their increased application results in more robust 
financial reporting with fewer opportunities for ICFR deficiencies and/
or in an increase by management in their testing and related 
improvements of controls. In Section IV.C.3.b.5, we note, as an 
example, that issuers may have made investments in systems, procedures, 
or training to explain how control improvements may persist for certain 
affected issuers. Finally, we note that auditors have had many years of 
experience with the 2010 risk assessment standards, and therefore 
auditors may be more likely to test ICFR, even if an ICFR auditor 
attestation is not required, as a means of enhancing auditing 
efficiency.\198\
---------------------------------------------------------------------------

    \196\ See SEC Charges Four Public Companies with Longstanding 
ICFR Failures, press release (Jan. 29,2019) (``SEC Press Release''), 
available at https://www.sec.gov/news/press-release/2019-6.
    \197\ See, e.g., Kevin Moffitt, Andrea Rozario, & Miklos 
Vasarhelyi (2018), Robotic Process Automation for Auditing, Journal 
of Emerging Technologies, 15(1) Acct. 1 (``Robotic Process 
Automation'') (describing how, for example, a robotic process 
automation program can be ``set up to automatically match purchase 
orders, invoices, and shipping documents [and] can check that the 
price and quantity on each of the documents match [to] help auditors 
validate the effectiveness of preventive internal controls . . . 
.'').
    \198\ See Study and Recommendations on Section 404(b) of the 
Sarbanes-Oxley Act of 2002 For Issuers With Public Float Between $75 
and $250 Million at 106 (Apr. 2011) (``2011 SEC Staff Study''), 
available at https://www.sec.gov/news/studies/2011/404bfloat-study.pdf (stating that ``. . . once effective controls are in place 
at the issuer, the auditor is more likely to continue to test them 
even if [it is] not issuing an auditor attestation during a 
particular year in order to rely on them for purposes of reducing 
substantive testing in the audit of the financial statements, 
particularly for issuers that are larger and more complex'').
---------------------------------------------------------------------------

    We recognize that some commenters disagreed with this assessment 
and asserted that investor protections other than the ICFR auditor 
attestation requirement would not be sufficient because, among other 
reasons, a financial statement audit has a different objective than an 
integrated audit,\199\ testing of ICFR in a financial statement audit 
is not as extensive,\200\ it is more difficult for a financial 
statement auditor to challenge the design of ICFR,\201\ and a financial 
statement audit is not designed to identify significant ICFR 
deficiencies or material weaknesses.\202\ As discussed in the Economic 
Analysis, we acknowledge that the amendments may be associated with 
some adverse effects on the effectiveness of ICFR and the reliability 
of financial statements for the affected issuers.\203\ However, the 
Proposing Release presented evidence that suggests that these effects 
and their impact on investor protection are likely to be mitigated in 
the case of the affected issuers as compared to other accelerated 
filers. The Economic Analysis provides further related analysis in 
response to commenter feedback and does not find evidence that leads us 
to alter this view.\204\
---------------------------------------------------------------------------

    \199\ See, e.g., letters from CAQ, CFA Inst., and RSM.
    \200\ See letter from EY.
    \201\ Id.
    \202\ Id.
    \203\ See Section IV.A. below.
    \204\ Id.
---------------------------------------------------------------------------

    One commenter indicated that a low-revenue issuer could have a 
large market capitalization and thus ``greater investor exposure.'' 
\205\ As discussed in the Economic Analysis,\206\ we agree that, as 
capitalization increases, there is more investor capital at risk. We 
note, however, that relative to higher-revenue issuers, on average, 
risk among these issuers is likely more associated with their future 
prospects than their current financial statements.\207\ Therefore, 
exempting low-revenue issuers from the ICFR auditor attestation 
requirement is less likely to affect investor protections with respect 
to those issuers.
---------------------------------------------------------------------------

    \205\ See letter from Grant Thornton.
    \206\ See Section IV.C.3.d. below.
    \207\ Also, the affected parties are limited to issuers with no 
more than $700 million in public float. Further, as discussed in 
Section IV.C.3.d below, we estimate that in aggregate the affected 
issuers that will be newly exempt from all ICFR auditor attestation 
requirements represent 0.2 percent of the total equity market 
capitalization of issuers.
---------------------------------------------------------------------------

    One commenter noted its concern that certain issuers that would no 
longer be subject to the ICFR auditor attestation requirement are 
conducting large initial public offerings (``IPOs'') based on key 
performance indicators that are derived from financial systems, and 
that eliminating the ICFR auditor attestation requirement could result 
in potentially less robust internal controls and unreliable data.\208\ 
To the extent the commenter is primarily concerned with the information 
available to investors at the time of an IPO, we note that the affected 
issuers that would be newly exempt from the ICFR auditor attestation 
requirement are generally more mature firms that are not within five 
years of their IPO.
---------------------------------------------------------------------------

    \208\ See letter from NASBA.
---------------------------------------------------------------------------

    Also, we believe the risk for those low-revenue issuers for which 
key performance indicators are material to investors and that are 
derived from financial systems is mitigated by the requirement to 
maintain, evaluate, and disclose effectiveness of disclosure controls 
and procedures \209\ on a quarterly basis.\210\ Key performance 
indicators or non-GAAP measures disclosed within a report filed or 
submitted to the Commission generally are within the scope of 
disclosure controls and procedures. The financial systems from which an 
issuer derives the key performance indicator or non-GAAP measure would 
normally be included in ICFR and, therefore, within the scope of 
management's assessments as well. Further, the Commission recently 
issued disclosure guidance on key performance indicators and metrics 
and reminded issuers of the importance of effective controls and 
procedures when disclosing material key performance indicators or 
metrics that are derived from their own information.\211\
---------------------------------------------------------------------------

    \209\ Although there is substantial overlap between an issuer's 
disclosure controls and procedures and ICFR, there are elements of 
each that are not subsumed by the other. See 17 CFR 240.13a-15 and 
17 CFR 240.15d-15.
    \210\ See 17 CFR 240.13a-14 and 17 CFR 240.15d-14.
    \211\ See Commission Guidance on Management's Discussion and 
Analysis of Financial Condition and Results of Operations, Release 
No. 34-88094 (Jan. 30, 2020).
---------------------------------------------------------------------------

d. Disproportionate Costs and Benefits of the ICFR Auditor Attestation 
for Small and Low-Revenue Companies
    Not only is the ICFR auditor attestation requirement costly in 
general, as discussed above, a number of commenters asserted that the 
ICFR auditor attestation requirement is disproportionally costly to 
small and low-revenue issuers.\212\ We agree that the costs of the ICFR 
auditor attestation requirement may be particularly burdensome for 
these issuers because they include fixed costs that are not scalable 
for smaller issuers, as also noted by several commenters.\213\ Further, 
low-revenue issuers have limited access to internally generated 
capital, and so the costs may more directly impact their ability to 
spend on investments or hiring.\214\ We therefore expect that reducing 
these costs would have a more beneficial impact on small and low-
revenue issuers than it would for other issuers. Some commenters 
similarly expressed the view that the amendments would enhance these 
issuers' ability to preserve capital without significantly affecting 
the ability of investors to make informed investment decisions based on 
the financial reporting of those issuers.\215\
---------------------------------------------------------------------------

    \212\ See note 102 above and accompanying text.
    \213\ See letters from ASA, Broadmark, Chamber, and Guaranty.
    \214\ See, e.g., letters from Dar[eacute], Summit and Xenon.
    \215\ See letters from Andersen, CLSA, Concert, ICBA, and NASBA.
---------------------------------------------------------------------------

    As discussed above, other commenters claimed that eliminating the 
ICFR auditor attestation requirement would not substantially reduce 
costs to issuers \216\ and that there would be other negative impacts 
of this change.\217\ We acknowledge that the magnitude of these cost 
savings likely will vary among issuers depending upon their

[[Page 17189]]

particular facts and circumstances \218\ and, as some commenters 
asserted,\219\ ICFR auditor attestations have become less expensive 
over time because auditors are more experienced in conducting them. 
However, based on the comments received and our own analysis of 
available data,\220\ we believe the cost reductions from not being 
subject to the ICFR auditor attestation requirement could be 
substantial for affected issuers.
---------------------------------------------------------------------------

    \216\ See note 108 above and accompanying text.
    \217\ See notes 110 to 113 above and accompanying text.
    \218\ See, e.g., letters from EY, Grant Thornton, and PWC.
    \219\ See, e.g., letters from CFA Inst. and Deloitte.
    \220\ See Section IV.C.2.d.
---------------------------------------------------------------------------

    We believe the benefits of the ICFR auditor attestation requirement 
likely are fewer for low-revenue SRCs than for other issuers, an 
assessment supported by some commenters.\221\ As a result, obtaining 
the ICFR auditor attestation is likely, on average, to be less 
meaningful for these issuers, and not obtaining one should have less of 
an impact on investor protection than for other types of issuers. 
First, we note that low-revenue SRCs may be less susceptible to the 
risk of certain kinds of misstatements, such as those related to 
revenue recognition. As discuss in the Economic Analysis,\222\ 10 to 20 
percent of restatements and about 60 percent of financial disclosure 
fraud cases in recent times have been associated with improper revenue 
recognition,\223\ which is less of a risk, for example, for issuers 
that currently have little to no revenue.
---------------------------------------------------------------------------

    \221\ See notes 116 to 118 above and accompanying text.
    \222\ See Section IV.C.3. below.
    \223\ See Audit Analytics, 2017 Financial Restatements: A 
Seventeen Year Comparison, (May 2018), and Committee of Sponsoring 
Organizations of the Treadway Commission, (``COSO''), Fraudulent 
Financial Reporting 1998-2007: An Analysis of U.S. Public Companies 
(2010).) (``COSO 2010 Fraud Study''), available at http://www.coso.org/documents/COSO-Fraud-Study-2010-001.pdf.
---------------------------------------------------------------------------

    Second, as we noted in Table 14 of the Proposing Release,\224\ 
issuers with revenues of less than $100 million have, on average, 
restatement rates that are three to nine percentage points lower than 
those for higher-revenue issuers. Moreover, certain low-revenue SRCs 
likely have less complex financial systems and controls and, therefore, 
may be less likely than other issuers to fail to detect and disclose 
material weaknesses in the absence of an ICFR auditor attestation.
---------------------------------------------------------------------------

    \224\ See Section III.C.4.b. of the Proposing Release, note 4 
above.
---------------------------------------------------------------------------

    Third, we believe that those issuers' financial statements may be 
less critical to assessing their valuation given, for example, the 
relative importance of their future prospects. We recognize that other 
commenters disagreed and asserted that benefits of the ICFR auditor 
attestation requirement are greater for lower-revenue and smaller 
issuers than for other issuers.\225\ We carefully considered these 
comments and, as discussed in the Economic Analysis, investigated the 
claims by conducting supplemental analysis, but we did not find 
evidence that led us to alter our views.\226\
---------------------------------------------------------------------------

    \225\ See notes 119 to 124 above and accompanying text.
    \226\ See Section IV.C.3.a. below.
---------------------------------------------------------------------------

e. Relationship Between Non-Accelerated Filers and SRCs
    Under the final amendments, some, but not all, SRCs would become 
non-accelerated filers. We are not adopting an alternative suggested by 
some commenters of fully aligning the SRC and non-accelerated filer 
definitions. As we note in the Economic Analysis,\227\ although full 
alignment of the two definitions could provide several benefits, 
including greater regulatory simplicity, reducing any frictions or 
confusion associated with issuers' determination of their filer status 
or reporting regime, and expanding the number of issuers that qualify 
as non-accelerated filers, fully aligning the two definitions also 
could result in costs that are greater than those for the amendments we 
are adopting. For example, the mitigating factors associated with 
exempting low-revenue issuers, such as a potential lower susceptibility 
to the risks of certain kinds of misstatements and a greater role of 
future prospects relative to current financial statements in driving 
market valuations for these issuers as compared to other issuers,\228\ 
may not be present or may be more limited, for other types of SRCs.
---------------------------------------------------------------------------

    \227\ See Section IV.C.5.a. below.
    \228\ See Section IV.C.3. below.
---------------------------------------------------------------------------

    As a result, fully aligning the SRC and non-accelerated filer 
thresholds could have adverse effects on the reliability of the 
financial statements of the issuers with higher revenues and the 
ability of investors to make informed investment decisions about those 
issuers.\229\ Therefore, we do not believe it would be appropriate at 
this time to increase the public float threshold for non-accelerated 
filers to align that definition with the SRC definition. Additionally, 
we note that many non-accelerated filers remain eligible for the JOBS 
Act Exemption for their first five years as a public company. The table 
below summarizes the relationships between SRCs and non-accelerated and 
accelerated filers under the final amendments.
---------------------------------------------------------------------------

    \229\ Id.

  Table 2--Relationships Between SRCs and Non-Accelerated, Accelerated, and Large Accelerated Filers Under the
                                                Final Amendments
----------------------------------------------------------------------------------------------------------------
    Relationships between SRCs and non-accelerated, accelerated, and large accelerated filers under the final
                                                   amendments
-----------------------------------------------------------------------------------------------------------------
                Status                         Public float                       Annual revenues
----------------------------------------------------------------------------------------------------------------
SRC and Non-Accelerated Filer.........  Less than $75 million....  N/A.
                                        $75 million to less than   Less than $100 million.
                                         $700 million.
SRC and Accelerated Filer.............  $75 million to less than   $100 million or more.
                                         $250 million.
Accelerated Filer (not SRC)...........  $250 million to less than  $100 million or more.
                                         $700 million.
Large Accelerated Filer (not SRC).....  $700 million or more.....  N/A.
----------------------------------------------------------------------------------------------------------------

f. Effect on Business Development Companies
    In a change from the proposal, the final amendments also exclude 
BDCs from the accelerated and large accelerated filer definitions under 
circumstances that are analogous to the exclusions for other issuers 
under the amendments. The amendments include a specific provision 
applicable to BDCs, because BDCs are not eligible to be SRCs and to 
provide a definition of ``revenue'' for BDCs to use for this 
purpose.\230\ Specifically, a BDC will be excluded from the accelerated 
and large

[[Page 17190]]

accelerated filer definitions in Rule 12b-2 if the BDC: (1) Has a 
public float of $75 million or more, but less than $700 million; and 
(2) has investment income of less than $100 million.\231\ The 
amendments to Rule 12b-2 provide that, for this purpose, a BDC's 
revenue is the BDC's investment income, as defined in Rule 6-07.1 of 
Regulation S-X.\232\ BDCs are subject to the same transition provisions 
for accelerated filer and large accelerated status that apply to other 
issuers under the amendments, except that the amendments' BDC-specific 
``revenue'' definition will apply to these transition provisions as 
well.\233\
---------------------------------------------------------------------------

    \230\ Although a BDC is considered to be eligible to use the 
requirements for SRCs under the revenue test in paragraph (2) or 
(3)(iii)(B) of the ``smaller reporting company'' definition in Rule 
12b-2 for purposes of the amended accelerated filer and large 
accelerated filer definitions, BDCs will continue to be ineligible 
to be SRCs under the final amendments.
    \231\ See paragraphs (1)(iv), (2)(iv), and (4) of the amended 
definitions of accelerated filer and large accelerated filer in Rule 
12b-2. Consistent with the current definitions of these terms, a BDC 
with public float of less than $75 million is already a non-
accelerated filer, regardless of the amount of its annual investment 
income.
    \232\ See 17 CFR 210.6-07.1.
    \233\ See Section II.C. below (discussing the amended transition 
provisions more generally).
---------------------------------------------------------------------------

    Although the Commission did not propose to exclude BDCs from the 
accelerated and large accelerated filer definitions using the SRC 
revenue test, the Commission did solicit comment on such an approach 
and discussed the relative costs and benefits of this alternative in 
the Proposing Release.\234\ In response, one commenter urged that we 
adopt such an approach, stating that, among other reasons, the policy 
reasons that support providing regulatory relief to smaller reporting 
companies should apply equally to smaller BDCs.\235\ This commenter 
suggested that the Commission expand the proposed amendment to the 
definition of accelerated filer and large accelerated filer to exclude 
BDCs with total investment income of less than $80 million in the most 
recently completed fiscal year for which audited financial statements 
are available and either no public float or public float of less than 
$700 million.
---------------------------------------------------------------------------

    \234\ See Sections II.C., II.E., and III.C.6. of the Proposing 
Release, note 4 above.
    \235\ See letter from Proskauer.
---------------------------------------------------------------------------

    Although we observed in the Proposing Release that the SRC revenue 
test would not be meaningful for BDCs because BDCs prepare financial 
statements under Article 6 of Regulation S-X and generally do not 
report revenue, the final amendments' definition of ``revenue'' for 
purposes of the BDC-specific provisions incorporate information that 
BDCs report in their financial statements. A BDC's investment income 
includes income from dividends, interest on securities, and other 
income.\236\ We recognize, as stated in the Proposing Release, that 
investors in BDCs generally may place greater significance on the 
financial reporting of BDCs relative to low-revenue non-investment 
company issuers and BDC financial statements will continue to be 
audited by an independent auditor. As the commenter supporting this 
approach observed, however, the policy considerations supporting the 
final amendments generally apply to BDCs.\237\ Moreover, BDCs that are 
excluded from the accelerated and large accelerated filer definitions 
will remain obligated, among other things, to establish and maintain 
internal control over financial reporting and have management assess 
the effectiveness of internal control over financial reporting. The 
final amendments also are consistent with other rulemaking initiatives 
in which we have sought to provide BDCs parity with other reporting 
companies in appropriate circumstances.\238\
---------------------------------------------------------------------------

    \236\ A BDC's annual investment income is equivalent to annual 
revenues solely for purposes of the accelerated filer and large 
accelerated filer definitions. These amendments do not affect the 
meaning of ``revenue'' or ``investment income'' in other Commission 
rules or provisions of the securities laws.
    \237\ See letter from Proskauer.
    \238\ See Securities Offering Reform for Closed-End Investment 
Companies, Release No. 33427 (Mar. 20, 2019) [84 FR 14448 (Apr. 10, 
2019)].
---------------------------------------------------------------------------

g. Effect on Foreign Private Issuers
    Under the proposed amendments, an FPI would be excluded from the 
accelerated and large accelerated filer definitions if it qualifies as 
an SRC \239\ under the SRC revenue test in Exchange Act Rule 12b-2. One 
commenter asserted that the final amendments should permit an FPI that 
presents its financial statements using IFRS to qualify for the 
exemption based on the low-revenue test.\240\ We note that foreign 
issuers that qualify as FPIs or SRCs are permitted to avail themselves 
of special accommodations unique to each reporting regime, but must 
select one reporting regime or the other. The final amendments provide 
an exemption from the ICFR auditor attestation requirement for low-
revenue SRCs. Issuers that qualify as FPIs and elect to use the FPI 
reporting regime have other accommodations available to them, such as 
the ability to disclose material changes in their ICFR and 
effectiveness of disclosure controls and procedures on an annual basis, 
as compared to the quarterly basis required of U.S. issuers, including 
SRCs.\241\
---------------------------------------------------------------------------

    \239\ See 2007 SRC Adopting Release, note 155 above, Section II, 
and Acceptance From Foreign Private Issuers of Financial Statements 
Prepared in Accordance with International Financial Reporting 
Standards without Reconciliation to U.S. GAAP, Release No. 33-8879 
(Dec. 21, 2007) [73 FR 985 (Jan. 4, 2008)], Section III.E.4. 
(stating that an FPI is not an SRC unless it makes its filings on 
forms available to U.S. domestic issuers and otherwise qualifies to 
use the SRC scaled disclosure accommodations). We are adding 
instructions to the SRC definitions in Item 10(f), Rule 405, and 
Rule 12b-2 clarifying our position that an FPI is not eligible to 
use the requirements for SRCs unless it uses the forms and rules 
designated for domestic issuers and provides financial statements 
prepared in accordance with U.S. GAAP.
    \240\ See letter from Dorsey & Whitney.
    \241\ See Rule 13a-15(d), Rule 15d-15(d), Item 15(d) of Form 20-
F, and General Instruction B(6)(e) of Form 40-F.
---------------------------------------------------------------------------

h. Requiring ICFR Auditor Attestation Less Frequently Than Annually
    The final amendments do not revise our rules to require an ICFR 
auditor attestation requirement less frequently than annually. Issuers 
that are accelerated or large accelerated filers will be required to 
obtain an ICFR auditor attestation every year, unless they qualify as 
EGCs, as under our current rules. We did not propose to revise this 
requirement, but requested comment on this matter, and every commenter 
that discussed the subject \242\ asserted that issuers that are subject 
to the ICFR auditor attestation requirement should obtain one annually. 
A few of these commenters asserted that requiring the ICFR auditor 
attestation only once every three years would not decrease costs 
significantly because auditors consider prior year audit results when 
planning and performing the current year audit, so performing an audit 
of ICFR every three years would reduce efficiencies gained from 
performing audits annually and add complexity and costs.\243\ Also, one 
commenter indicated that auditors in many instances may continue to 
test internal controls in the financial statement audit, which 
potentially limits any resulting cost reduction.\244\
---------------------------------------------------------------------------

    \242\ See, e.g., letters from Crowe, KPMG, and NASBA.
    \243\ See, e.g., letters from Crowe and KPMG.
    \244\ See letter from KPMG.
---------------------------------------------------------------------------

i. Check Box Indicating Whether an ICFR Auditor Attestation Is Included 
in a Filing
    Although we did not propose a requirement that issuers report 
whether they have obtained an ICFR auditor attestation, we requested 
comment on whether we should do so. As discussed above,\245\ some 
commenters recommended that the final rule include a requirement for an 
issuer to prominently disclose in its filing whether an ICFR auditor 
attestation is included. This type of disclosure was also recommended 
by the Government Accountability Office (``GAO'') in a

[[Page 17191]]

2013 study of internal controls requirements.\246\ No commenters 
opposed such a requirement. Disclosure of the ICFR auditor attestation 
is currently required within the auditor's report on the financial 
statements and management's annual report on ICFR.\247\ After reviewing 
these comments, we are persuaded to add a check box to the cover pages 
of Forms 10-K, 20-F, and 40-F to indicate whether an ICFR auditor 
attestation is included in the filing because we agree that more 
prominent and easily accessible disclosure of this information would be 
useful to investors and market participants while imposing only minimal 
burdens on issuers.
---------------------------------------------------------------------------

    \245\ See notes 138 to 143 above and the accompanying text.
    \246\ See U.S. Gov't Accountability Office, GAO-13-582, Internal 
Controls: SEC Should Consider Requiring Companies to Disclose 
Whether They Obtained an Auditor Attestation (July 2013) (``2013 GAO 
Study'').
    \247\ See Item 308 of Regulation S-K and PCAOB AS 3101.
---------------------------------------------------------------------------

    Under the new rule, issuers will be required to include the check 
box on their cover pages in any annual report filed on or after the 
final amendments' effective date. Once issuers are required to tag the 
cover page disclosure data using Inline eXtensible Business Reporting 
Language (``Inline XBRL''), they will also be required to tag this 
cover page check box disclosure in Inline XBRL because Item 406 of 
Regulation S-T (``Item 406''),\248\ Item 601(b)(104),\249\ paragraph 
104 to ``Instructions as to Exhibits'' of Form 20-F, and paragraph B.17 
under the ``General Instructions'' of Form 40-F require those issuers 
to tag every data point on the cover pages of Form 10-K, Form 20-F, and 
Form 40-F.\250\ We do not expect the incremental compliance burden 
associated with tagging the additional cover page information to be 
significant, given that registrants already are being required on a 
phased-in basis to tag other cover page information as well as 
information in their financial statements.\251\
---------------------------------------------------------------------------

    \248\ 17 CFR 232.406.
    \249\ 17 CFR 229.601(b)(4).
    \250\ Item 406 mandates that companies required to tag their 
financial statements in Inline XBRL must also tag their cover page 
data in Inline XBRL. Operating companies are required to tag their 
financial statements in Inline XBRL on a phase-in basis. See Inline 
XBRL Filing of Tagged Data, Release No. 33-10514 (June 28, 2018) [83 
FR 40846 (July 10, 2018)] and 17 CFR 232.405.
    \251\ Electronic Data Gathering, Analysis and Retrieval System 
(``EDGAR'') filers that are required by Item 406 to provide cover 
page Inline XBRL data tagging will be required to tag the ICFR data 
element only after a revised Document Entity Identifier taxonomy has 
been posted to SEC.gov and the Commission has adopted a new EDGAR 
Filer Manual that reflects appropriate changes to the submission of 
Forms 10-K, 20-F and 40-F.
---------------------------------------------------------------------------

C. Amendments To Increase the Public Float Transition Thresholds From 
$50 Million to $60 Million and $500 Million to $560 Million and To Add 
the SRC Revenue Test to the Transition Threshold

1. Proposed Amendments
    An issuer initially becomes an accelerated filer after it first 
meets certain conditions as of the end of its fiscal year, including 
that it had a public float of $75 million or more but less than $700 
million as of the last business day of its most recently completed 
second fiscal quarter. An issuer initially becomes a large accelerated 
filer in a similar manner, including that it had a public float of $700 
million or more as of the last business day of its most recently 
completed second fiscal quarter. Once the issuer becomes an accelerated 
filer, it will not become a non-accelerated filer unless it determines 
at the end of a fiscal year that its public float had fallen below $50 
million on the last business day of its most recently completed second 
fiscal quarter. Similarly, a large accelerated filer will remain one 
unless its public float had fallen below $500 million on the last 
business day of its most recently completed second fiscal quarter. If 
the large accelerated filer's public float falls below $500 million but 
is $50 million or more, it becomes an accelerated filer. Alternatively, 
if the issuer's public float falls below $50 million, it becomes a non-
accelerated filer.\252\ The purpose of these transition thresholds is 
to avoid situations in which an issuer frequently enters and exits 
accelerated and large accelerated filer status due to small 
fluctuations in its public float.
---------------------------------------------------------------------------

    \252\ For example, under the rules prior to these amendments, if 
an issuer that is a non-accelerated filer determines at the end of 
its fiscal year that it had a public float of $75 million or more, 
but less than $700 million, on the last business day of its most 
recently completed second fiscal quarter, it will become an 
accelerated filer. On the last business day of its next fiscal year, 
the issuer must re-determine its public float to re-evaluate its 
filer status. If the accelerated filer's public float fell to $70 
million on the last business day of its most recently completed 
second fiscal quarter, it would remain an accelerated filer because 
its public float did not fall below the $50 million transition 
threshold. Alternatively, if the issuer's public float fell to $49 
million, it would then become a non-accelerated filer because its 
newly determined public float is below $50 million. As another 
example, an issuer that has not been a large accelerated filer but 
had a public float of $700 million or more on the last business day 
of its most recently completed second fiscal quarter would then 
become a large accelerated filer at the end of its fiscal year. If, 
on the last business day of its subsequently completed second fiscal 
quarter, the issuer's public float fell to $600 million, it would 
remain a large accelerated filer because its public float did not 
fall below $500 million. If, however, the issuer's public float fell 
to $490 million at the end of its most recently completed second 
fiscal quarter, it would become an accelerated filer at the end of 
the fiscal year because its public float fell below $500 million. 
Similarly, if the issuer's public float fell to $49 million, the 
issuer would become a non-accelerated filer.
---------------------------------------------------------------------------

    In the SRC Adopting Release,\253\ we amended the SRC rules so that 
the SRC transition thresholds were set at 80 percent of the 
corresponding initial qualification thresholds. In the Proposing 
Release, we proposed to revise the accelerated and large accelerated 
filer transition thresholds to be 80 percent of the corresponding 
initial qualification thresholds to align the transition thresholds 
across the SRC, accelerated filer, and large accelerated filer 
definitions. Additionally, we indicated that revising these thresholds 
would limit the cases in which an issuer could be both an accelerated 
filer and an SRC or a large accelerated filer and an SRC, thereby 
reducing regulatory complexity.
---------------------------------------------------------------------------

    \253\ See note 12 above.
---------------------------------------------------------------------------

    We proposed to revise the transition threshold for becoming a non-
accelerated filer from $50 million to $60 million and the transition 
threshold for leaving the large accelerated filer status from $500 
million to $560 million. We also proposed to add the SRC revenue test 
to the public float transition thresholds for accelerated and large 
accelerated filers. If the SRC revenue test were not added to the 
accelerated filer and large accelerated filer transition provisions, an 
issuer's annual revenues would never factor into determining whether an 
accelerated filer could become a non-accelerated filer, or whether a 
large accelerated filer could become an accelerated or non-accelerated 
filer. We proposed that an issuer that is already an accelerated filer 
would remain one unless either its public float falls below $60 million 
or it becomes eligible to use the SRC accommodations under the revenue 
test in paragraph (2) or (3)(iii)(B) of the SRC definition,\254\ as 
applicable.\255\ Therefore, under the proposed amendments, an 
accelerated filer would remain an accelerated filer until its public 
float falls below $60 million or its annual revenues fall below the

[[Page 17192]]

applicable revenue threshold ($80 million or $100 million), at which 
point it would become a non-accelerated filer.
---------------------------------------------------------------------------

    \254\ Paragraph (2) of the SRC definition states that an issuer 
qualifies as an SRC if its annual revenues are less than $100 
million and it has no public float or a public float of less than 
$700 million. Paragraph (3)(iii)(B) of the SRC definition states, 
among other things, that an issuer that initially determines it does 
not qualify as an SRC because its annual revenues are $100 million 
or more cannot become an SRC until its annual revenues fall below 
$80 million.
    \255\ An issuer that is initially applying the SRC definition or 
previously qualified as an SRC would apply paragraph (2) of the SRC 
definition. Once an issuer determines that it does not qualify for 
SRC status, it would apply paragraph (3)(iii)(B) of the SRC 
definition at its next annual determination.
---------------------------------------------------------------------------

    Similarly, we proposed conforming amendments to the large 
accelerated filer transition provisions for when an issuer that is 
already a large accelerated filer transitions to either accelerated or 
non-accelerated filer status. To transition out of large accelerated 
filer status at the end of the issuer's fiscal year, an issuer would 
need to have a public float below $560 million as of the last business 
day of its most recently completed second fiscal quarter or meet the 
revenue test in paragraph (2) or (3)(iii)(B), as applicable, of the SRC 
definition. A large accelerated filer would become an accelerated filer 
at the end of its fiscal year if its public float fell to $60 million 
or more but less than $560 million as of the last business day of its 
most recently completed second fiscal quarter and its annual revenues 
are not below the applicable revenue threshold ($80 million or $100 
million). The large accelerated filer would become a non-accelerated 
filer if its public float fell below $60 million as of the last 
business day of its most recently completed second fiscal quarter or 
its annual revenues fell below the applicable revenue threshold ($80 
million or $100 million).\256\
---------------------------------------------------------------------------

    \256\ One exception to this requirement is that an issuer that 
was a large accelerated filer whose public float had fallen below 
$700 million (but remained $560 million or more) but became eligible 
to be an SRC under the SRC revenue test in the first year the SRC 
amendments became effective would become a non-accelerated filer 
even though its public float remained at or above $560 million. See 
SRC Adopting Release, note 12 above, at n. 31 (``For purposes of the 
first fiscal year ending after effectiveness of the amendments, a 
registrant will qualify as a SRC if it meets one of the initial 
qualification thresholds in the revised definition as of the date it 
is required to measure its public float or revenues (the 
`measurement date'), even if such registrant previously did not 
qualify as a SRC.'').
---------------------------------------------------------------------------

2. Comments
    We received very few comments regarding the proposed changes to the 
transition thresholds. The commenters who discussed the proposed 
amendments to increase the public float transition thresholds supported 
them.\257\ One commenter also suggested that the Commission consider 
indexing the thresholds to inflation in a manner similar to the 
indexing that applies to the EGC definition.\258\ Only two commenters 
addressed the proposed amendments to add the SRC revenue test to the 
transition thresholds, and these commenters supported that 
proposal.\259\
---------------------------------------------------------------------------

    \257\ See, e.g., letters from CLSA, Nasdaq, and RSM.
    \258\ See letter from RSM.
    \259\ See letters from CLSA and Nasdaq.
---------------------------------------------------------------------------

3. Final Amendments
    After considering the comments, we are adopting the final 
amendments as proposed. As discussed in greater detail in the Economic 
Analysis,\260\ transition thresholds in Rule 12b-2 are lower than entry 
thresholds to keep issuers from frequently needing to reclassify their 
filer status. The frequent reclassifications that would result without 
the transition thresholds may cause confusion for issuers and investors 
as to the issuer's status. Also, such frequent reclassifications may 
increase issuers' costs because they would frequently need to revise 
their disclosure schedules and continually consider the impact of 
whether they are subject to the ICFR auditor attestation requirement 
from one year to the next, and may increase investors' incremental 
costs of evaluating the reliability of the issuer's financial 
disclosures. Therefore, we believe a transition threshold is 
appropriate. However, we recognize that providing a transition 
threshold results in some issuers remaining in their filer status even 
though their public float or revenues are below that filer status's 
entry threshold.
---------------------------------------------------------------------------

    \260\ See Section IV.C.4.c below.
---------------------------------------------------------------------------

    The final amendments revise the public float transition threshold 
for accelerated and large accelerated filers to become a non-
accelerated filer from $50 million to $60 million and revise the public 
float transition threshold for a large accelerated filer to lose its 
large accelerated filer status from $500 million to $560 million. Prior 
to the final amendments, the public float threshold for an accelerated 
and large accelerated filer to become a non-accelerated filer was $50 
million and the public float transition threshold for a large 
accelerated filer to lose its large accelerated filer status was $500 
million. We believe these threshold amounts are too low and result in 
more issuers than intended being classified as an accelerated or large 
accelerated filer. However, we believe there should be some transition 
threshold so as to avoid some volatility. The amendments would make the 
public float transition thresholds 80 percent of the initial 
thresholds, which is consistent with the percentage used in the 
transition thresholds for SRC eligibility. We believe this approach 
appropriately balances the risk of frequent reclassifications resulting 
from a higher percentage threshold against the risk of delaying 
appropriate transitions due to a lower threshold. The table below 
summarizes how an issuer's filer status will change based on its 
subsequent public float determination.

         Table 3--Subsequent Determination of Filer Status Based on Public Float Under Final Amendments
----------------------------------------------------------------------------------------------------------------
                                 Final amendments to the public float thresholds
-----------------------------------------------------------------------------------------------------------------
                                                                Subsequent public float
  Initial public float determination    Resulting filer status        determination       Resulting filer status
----------------------------------------------------------------------------------------------------------------
$700 million or more.................  Large Accelerated Filer  $560 million or more...  Large Accelerated
                                                                                          Filer.
                                                                Less than $560 million   Accelerated Filer.
                                                                 but $60 million or
                                                                 more.
                                                                Less than $60 million..  Non-Accelerated Filer.
Less than $700 million but $75         Accelerated Filer......  Less than $700 million   Accelerated Filer.
 million or more.                                                but $60 million or
                                                                 more.
                                                                Less than $60 million..  Non-Accelerated Filer.
----------------------------------------------------------------------------------------------------------------


[[Page 17193]]

    The final amendments also add the SRC revenue test to the 
transition threshold for accelerated and large accelerated filers. As 
we noted in the Proposing Release, if we do not add the SRC revenue 
test to the accelerated filer and large accelerated filer transition 
provisions, an issuer's annual revenues would never factor into 
determining whether an accelerated filer could become a non-accelerated 
filer, or whether a large accelerated filer could become an accelerated 
or non-accelerated filer. We note that one commenter stated that the 
manner in which issuers may recognize revenue could cause them to 
frequently lose and gain non-accelerated filer status.\261\ We believe 
that providing transition thresholds should mitigate any such concern.
---------------------------------------------------------------------------

    \261\ See letter from EY.
---------------------------------------------------------------------------

    Under the final amendments, an accelerated filer with revenues of 
$100 million or more that is eligible to be an SRC based on the public 
float test contained in paragraphs (1) and (3)(iii)(A) of the SRC 
definition can transition to non-accelerated filer status in a 
subsequent year if it has revenues of less than $100 million. For 
example, an issuer with a December 31 fiscal year end that did not 
exceed the public float threshold in the prior year and that has a 
public float, as of June 30, 2020, of $230 million and annual revenues 
for the fiscal year ended December 31, 2019 of $101 million will be 
eligible to be an SRC under the public float test; however, because the 
issuer would not be eligible to be an SRC under the SRC revenue test, 
it will be an accelerated filer (assuming the other conditions 
described in Table 1 are also met). At the next determination date 
(June 30, 2021), if its public float, as of June 30, 2020, remains at 
$230 million and its annual revenues for the fiscal year ended December 
31, 2019 are less than $100 million, the issuer will be eligible to be 
an SRC under the SRC revenue test (in addition to the public float 
test) and thus it will become a non-accelerated filer.
    On the other hand, an issuer with a December 31 fiscal year end 
that has a public float, as of June 30, 2020, of $400 million and 
annual revenues for the fiscal year ended December 31, 2019 of $101 
million will not be eligible to be an SRC under either the public float 
test or the SRC revenue test and will be an accelerated filer (assuming 
the other conditions described in Table 1 also are met). At the next 
determination date (June 30, 2021), if its public float, as of June 30, 
2021, remains at $400 million, that issuer will not be eligible to be 
an SRC under the SRC revenue test unless its annual revenues for the 
fiscal year ended December 31, 2020 are less than $80 million, at which 
point it will be eligible to be an SRC under the SRC revenue test and 
to become a non-accelerated filer.

D. Transition Issues

    The final amendments will become effective 30 days after they are 
published in the Federal Register. The final amendments will apply to 
an annual report filing due on or after the effective date. Even if 
that annual report is for a fiscal year ending before the effective 
date, the issuer may apply the final amendments to determine its status 
as a non-accelerated, accelerated, or large accelerated filer. For 
example, an issuer that has a March 31, 2020 fiscal year end and that 
is due to file its annual report after the effective date of the 
amendments may apply the final amendments to determine its filing 
status even though its fiscal year end date precedes the effective 
date. An issuer that determines it is eligible to be a non-accelerated 
filer under the final amendments will not be subject to the ICFR 
auditor attestation requirement for its annual report due and submitted 
after the effective date of the amendments and may comply with the 
filing deadlines that apply, and other accommodations available, to 
non-accelerated filers.

III. Other Matters

    If any of the provisions of these amendments, or the application of 
these provisions to any person or circumstance, is held to be invalid, 
such invalidity shall not affect other provisions or application of 
such provisions to other persons or circumstances that can be given 
effect without the invalid provision or application. Pursuant to the 
Congressional Review Act,\262\ the Office of Information and Regulatory 
Affairs has designated these amendments as not ``a major rule,'' as 
defined by 5 U.S.C. 804(2).
---------------------------------------------------------------------------

    \262\ 5 U.S.C. 801 et seq.
---------------------------------------------------------------------------

IV. Economic Analysis

    We are mindful of the costs and benefits of the amendments. The 
discussion below addresses the economic effects of the amendments, 
including their anticipated costs and benefits, as well as the likely 
effects of the amendments on efficiency, competition, and capital 
formation.\263\ We also analyze the potential costs and benefits of 
reasonable alternatives to the amendments. Where practicable, we have 
attempted to quantify the economic effects of the amendments; however, 
in certain cases, we are unable to do so because either the necessary 
data are unavailable or certain effects are not quantifiable. In these 
cases, we provide a qualitative assessment of the likely economic 
effects.
---------------------------------------------------------------------------

    \263\ Section 2(b), 15 U.S.C. 77b(b), and Section 3(f) of the 
Exchange Act, 15 U.S.C. 78c(f), directs the Commission, when 
engaging in rulemaking where it is required to consider or determine 
whether an action is necessary or appropriate in the public 
interest, to consider, in addition to the protection of investors, 
whether the action will promote efficiency, competition, and capital 
formation. Further, Section 23(a)(2) of the Exchange Act, 15 U.S.C. 
78w(a)(2), requires the Commission, when making rules under the 
Exchange Act, to consider the impact that the rules would have on 
competition, and prohibits the Commission from adopting any rule 
that would impose a burden on competition not necessary or 
appropriate in furtherance of the purposes of the Exchange Act.
---------------------------------------------------------------------------

A. Introduction

    As discussed above, we are adopting amendments to the definitions 
of ``accelerated filer'' and ``large accelerated filer'' that will 
generally extend non-accelerated filer status to issuers with up to 
$700 million in public float if they are eligible to be SRCs and their 
revenues are less than $100 million. As non-accelerated filers, among 
other things, these issuers will not be required to obtain an ICFR 
auditor attestation pursuant to SOX Section 404(b). The amendments are 
intended to reduce compliance costs for these issuers while maintaining 
investor protections by more appropriately tailoring the types of 
issuers that are included in the categories of accelerated and large 
accelerated filers.
    In the Proposing Release, we presented evidence that the imposition 
of the ICFR auditor attestation requirement has been associated with 
benefits to issuers and investors, such as reduced rates of ineffective 
ICFR and more reliable financial statements.\264\ However, as explained 
in the Proposing Release, the affected issuers may find the costs of 
this requirement to be particularly burdensome given certain fixed 
costs that may not scale with size. Importantly, because these issuers 
have limited access to internally-generated capital, savings on 
compliance costs may be more likely to be applied to additional 
investment, research, or hiring.
---------------------------------------------------------------------------

    \264\ See Section III.C.4.a. of the Proposing Release, note 4 
above,. See also Section IV.C.3.a. below.
---------------------------------------------------------------------------

    We acknowledged, in the Proposing Release, that exempting these 
low-revenue issuers from the ICFR auditor attestation requirement may 
result in adverse effects such as an increased prevalence of 
ineffective ICFR and

[[Page 17194]]

restatements, and we estimated the potential effects on the rates of 
such issues among the affected issuers. At the same time, we provided 
evidence in support of two mitigating factors specific to the affected 
issuers.\265\ First, we documented that low-revenue issuers have 
relatively low rates of restatement, which could mean that the affected 
issuers may, on average, be less susceptible to the risk of certain 
kinds of misstatements. Next, we provided evidence that the market 
value of the low-revenue issuers was not as associated with 
contemporary financial statements as for higher-revenue issuers, which 
could imply that their valuations are driven to a greater degree by 
their future prospects.
---------------------------------------------------------------------------

    \265\ We also noted in the Proposing Release, note 4 above, that 
issuers exempted from this requirement may choose to voluntarily 
obtain an ICFR auditor attestation if investors demand it or the 
issuers otherwise deem it, from their perspective, to be the best 
use of their resources.
---------------------------------------------------------------------------

    Commenters raised a number of concerns with our analysis and 
conclusions in the Proposing Release. We carefully reviewed all of the 
comments received and in a few instances, conducted supplemental 
analysis in response to the issues and questions raised by those 
comments. Overall, based on our analysis of the available evidence and 
data, our primary conclusions have not substantively changed. While we 
address the comments in detail in the body of the Economic Analysis 
below, we highlight certain of our findings in relation to some 
commenter concerns here.
    One concern raised by commenters is that rather than targeting 
issuers where there may be relatively fewer benefits of the ICFR 
auditor attestation requirement, the amendments will remove this 
requirement for exactly those issuers where the benefits may be 
greatest.\266\ These commenters supported this assertion by, for 
example, claiming that investors react more strongly to news of 
restatements or material weaknesses in ICFR--and thus care more about 
the benefits of an ICFR auditor attestation--at small or low-revenue 
issuers as compared to other issuers.\267\ In response to these 
comments, we have conducted additional analyses of the investor 
response to ICFR disclosures and restatement announcements. We do not 
find any evidence that investors react more negatively to restatements 
or to auditors reporting material weaknesses in ICFR at low-revenue 
issuers than at higher-revenue issuers. Further, based on the 
suggestions of a commenter,\268\ we have refined our analysis of the 
extent to which financial statement variables are associated with the 
valuation of different types of issuers. We continue to find that 
financial statement variables explain a greater amount of the variation 
in stock prices and returns for higher-revenue issuers than for low-
revenue issuers, even when we focus on more seasoned issuers similar to 
those that would be affected by the amendments or when we expand the 
set of variables that we consider. Overall, our analysis does not 
provide support for the assertion that investors care more about the 
information produced by the ICFR auditor attestation requirement at 
low-revenue issuers than at other issuers.
---------------------------------------------------------------------------

    \266\ See, e.g., letters from CFA, CFA Inst., and CII. See also 
Commissioner Jackson's Statement.
    \267\ Id.
    \268\ See letter from Crowe.
---------------------------------------------------------------------------

    A few commenters asserted that the costs of the amendments will 
significantly outweigh any benefits.\269\ We have conducted 
supplemental analysis and quantification of the potential costs of the 
amendments and do not find evidence to support the views of these 
commenters. We carefully considered the cost estimates provided by 
commenters and found them useful in refining our own analysis. However, 
we found some of these estimates to be overstated. For example, some 
estimates applied costs associated with a small fraction of issuers to 
all of the affected issuers or implicitly compared aggregate estimates 
of costs over multiple years to the estimated savings for a single 
year.\270\ Others identified investor harms that occurred despite the 
ICFR auditor attestation requirement being in place, which may 
demonstrate the limitations of the ICFR auditor attestation requirement 
rather than informing us of the risks of removing the requirement.\271\
---------------------------------------------------------------------------

    \269\ See, e.g., letters from Better Markets and Prof. Barth et 
al.
    \270\ See letter from Prof. Barth et al. (with respect to 
quantified benefits of ICFR audit for the average company).
    \271\ See letters from Better Markets and Prof. Barth et al. 
(with respect to estimates of income and stock market impact of 
restatements).
---------------------------------------------------------------------------

    Some commenters stated that the Proposing Release did not provide 
sufficient quantification of the costs of the amendments.\272\ In 
response to those comments, as additional context for our consideration 
of the possible effects of the final amendments, we conducted 
supplemental analysis of the expected frequency, type, and magnitude of 
potential adverse effects. We consider effects resulting from potential 
misreporting about the effectiveness of ICFR as well as those driven by 
potential changes in the actual effectiveness of ICFR. Where possible, 
we estimate dollar costs as well as dollar transfers across 
shareholders, which represent costs to some shareholders and benefits 
to other shareholders. We note that these cost estimates do not fully 
adjust for the mitigating factors that we find to be associated with 
low-revenue issuers and may therefore be inflated. Also, we caution 
against attempts to over-interpret the relation between our 
quantitative estimates of monetized benefits and monetized costs 
because we are not able to place dollar values on all of the potential 
costs and benefits of the amendments.
---------------------------------------------------------------------------

    \272\ See, e.g., letters from Better Markets, CFA Inst., CII, 
Prof. Barth et al., and Prof. Ge et al.
---------------------------------------------------------------------------

    Several commenters argued that the expected cost savings are too 
small to be economically meaningful,\273\ and that the amendments are 
unlikely to have capital formation benefits.\274\ We acknowledge that, 
while the amendments could be a positive factor in the decision of 
additional companies to enter public markets, it may not be the 
decisive factor, and the direct impact of the amendments on the number 
of public companies may be limited to the extent that companies may be 
more focused on other factors associated with the decision to go 
public. However, we continue to believe that the expected savings is 
likely, in many cases, to represent a meaningful cost savings for the 
affected issuers.\275\ In particular, while the average annual cost 
savings may represent a small percentage of the average affected 
issuers' revenues and market capitalizations, it is still likely to be 
meaningful given that the net income and operating cash flows of the 
affected issuers are typically negative.\276\ These savings may thus 
have beneficial economic effects on net capital formation through the 
productive use of

[[Page 17195]]

this preserved capital towards, for example, new investments.
---------------------------------------------------------------------------

    \273\ See, e.g., letters from CFA, CFA Inst., CII, and Prof. 
Barth et al.
    \274\ See, e.g., letters from Better Markets, CII, CFA, CFA 
Inst., and Prof. Ge et al.
    \275\ One commenter requested that we replicate, with recent 
data, the analysis in a previous study that found a ``bunching'' of 
firms below the public float threshold for entering accelerated 
filer status, in order to explore whether the costs of the ICFR 
auditor attestation requirement remain as high as previously 
documented. See letter from Prof. Honigsberg, et al. See also 
Commissioner Jackson's Statement. As discussed in more detail below, 
we provide this analysis and find that there may be some such 
``bunching,'' but we note that our conclusion that the cost savings 
may be meaningful to the affected issuers does not rely on this 
analysis or the related study.
    \276\ See note 362 below.
---------------------------------------------------------------------------

    Some commenters indicated that the Proposing Release did not 
adequately consider the risk of fraud,\277\ or that the risks of 
fraudulent financial reporting may be particularly high for low-revenue 
issuers.\278\ We acknowledge the argument that incentives to engage in 
misconduct could be different for low-revenue issuers and, in response 
to these comments, we conducted supplemental analysis concerning the 
risk of fraud. In particular, we conducted an analysis to investigate 
this risk and did not find evidence based on the available data that 
low-revenue issuers that, like the affected issuers, are not within 
five years of their IPO (``seasoned'' issuers), are more highly 
represented in the set of seasoned issuers associated with financial 
misconduct or financial reporting fraud than they are in the overall 
population of seasoned issuers.We also estimated the extent to which 
expanding the exemption from the ICFR auditor attestation requirement 
could affect the likelihood of the affected issuers engaging in such 
activities and include a quantification of the associated costs of this 
risk in our overall assessment of the potential costs of the 
amendments. Overall, this supplemental analysis does not cause us to 
change our primary conclusions regarding the potential effects of the 
amendments.
---------------------------------------------------------------------------

    \277\ See, e.g., letters from CFA Inst., CII, and Prof. Barth et 
al.
    \278\ See, e.g., letter from CFA, CFA Inst., CII and Prof. Barth 
et al.
---------------------------------------------------------------------------

    The economic analysis also considers other changes associated with 
the amendments. For example, the affected issuers will be permitted an 
additional 15 days and five days, respectively, after the end of each 
period to file their annual and quarterly reports, relative to the 
deadlines that apply to accelerated filers.\279\ The amendments also 
revise the transition provisions for accelerated and large accelerated 
filer status, including increasing the public float thresholds to exit 
accelerated and large accelerated filer status from $50 million and 
$500 million in public float to $60 million and $560 million in public 
float. Additionally, the amendments introduce a new check-box 
disclosure on the cover page of annual reports on Forms 10-K, 20-F, and 
40-F to indicate whether an ICFR auditor attestation is included in the 
filing.
---------------------------------------------------------------------------

    \279\ Non-accelerated filers also are not required to provide 
disclosure required by Item 1B of Form 10-K and Item 4A of Form 20-F 
about unresolved staff comments on their periodic and/or current 
reports or disclosure required by Item 101(e)(4) of Regulation S-K 
about whether they make filings available on or through their 
internet websites.
---------------------------------------------------------------------------

    The discussion that follows examines the potential benefits and 
costs of the amendments in detail. As part of our analysis, we consider 
both the comments received on the Proposing Release and the likelihood 
that the effects of the ICFR auditor attestation have changed over time 
with changes in auditing standards and other market conditions.

B. Baseline

    To assess the economic impact of the amendments, we are using as 
our baseline the current state of the market under the existing 
definition of ``accelerated filer.'' This section discusses the current 
regulatory requirements and market practices. It also provides 
statistics characterizing accelerated filers, the timing of filings, 
disclosures about ineffective ICFR, and restatement rates under the 
baseline.
1. Regulatory Baseline
    Our baseline includes existing statutes and Commission rules that 
govern the responsibilities of issuers with respect to financial 
reporting, as well as PCAOB auditing standards and market standards 
related to the implementation of these responsibilities.
    In particular, accelerated and large accelerated filers are subject 
to accelerated filing deadlines for their periodic reports relative to 
non-accelerated filers. These deadlines are summarized in Table 4 
below. All registrants can file Form 12b-25 (``Form NT'') to avail 
themselves of an additional 15 calendar days to file an annual report, 
or an additional five calendar days to file a quarterly report, and 
still have their report deemed to have been timely filed.

             Table 4--Filing Deadlines for Periodic Reports
------------------------------------------------------------------------
                                                    Calendar days after
                                                        period end
                Category of filer                -----------------------
                                                    Annual     Quarterly
------------------------------------------------------------------------
Non-Accelerated Filer...........................          90          45
Accelerated Filer...............................          75          40
Large Accelerated Filer.........................          60          40
------------------------------------------------------------------------

    The Proposing Release discusses in detail the issuer and auditor 
responsibilities with respect to disclosure controls and procedures and 
ICFR for issuers of different filer types.\280\ These responsibilities 
derive from the FCPA requirements with respect to internal accounting 
controls as well as a number of different changes to financial 
reporting that were introduced by SOX.
---------------------------------------------------------------------------

    \280\ See Sections II.B. and III.B.1. of the Proposing Release, 
note 4 above.
---------------------------------------------------------------------------

    In particular, all issuers \281\ are required to devise and 
maintain an adequate system of internal accounting controls \282\ and 
to have their corporate officers assess the effectiveness of the 
issuer's disclosure controls and procedures \283\ and disclose the 
conclusions of their assessments, typically on a quarterly basis.\284\ 
In addition, all issuers are required to have their corporate officers 
certify in each of their periodic reports that the information in the 
report fairly presents, in all material respects, the issuer's 
financial condition and results of operations.\285\ All issuers other 
than RICs and asset-backed securities (``ABS'') issuers \286\ are also 
required to include management's assessment of the effectiveness of 
their ICFR in their annual reports.\287\ Further, all issuers are 
required to have the financial statements in their annual reports 
examined and reported on by an independent auditor, who, even if not 
engaged to provide an ICFR auditor attestation, is responsible for 
considering ICFR in the performance of the financial statement 
audit.\288\ Also, an auditor engaged in a financial statement only 
audit may test the operating effectiveness of some internal controls in 
order to reduce the extent of substantive testing performed in the 
audit. Importantly, all of these responsibilities with respect to 
financial reporting and ICFR apply equally to

[[Page 17196]]

non-accelerated as well as accelerated and large accelerated filers. 
Finally, all issuers listed on national exchanges are required to have 
an audit committee that is composed solely of independent directors and 
is directly responsible for the appointment, compensation, retention 
and oversight of the issuer's independent auditors.\289\ The amendments 
do not change any of these requirements, including the requirements of 
a financial statement audit.
---------------------------------------------------------------------------

    \281\ Specifically, the requirements apply to all issuers that 
file reports pursuant to Section 13(a) or 15(d) of the Exchange Act.
    \282\ See Section 13(b)(2)(B) of the Exchange Act.
    \283\ See note 209 above.
    \284\ See note 210 above.
    \285\ See 17 CFR 240.13a-14(b) and 17 CFR 240.15d-14(b).
    \286\ See 17 CFR 240.13a-15 and 17 CFR 240.15d-15. A newly 
public issuer is also not required to provide a SOX Section 404(a) 
management report on ICFR until its second annual report filed with 
the Commission. See Instructions to Item 308 of Regulation S-K.
    \287\ See Management's Report on Internal Control Over Financial 
Reporting and Certification of Disclosure in Exchange Act Periodic 
Reports, Release No. 33-8238 (June 5, 2003) [68 FR 36635 (June 18, 
2003)]. These evaluations of ICFR, as well as any associated ICFR 
auditor attestations, should be based on a suitable, recognized 
control framework. The most widely used framework for this purpose 
is the one set forth in a report of the Committee of Sponsoring 
Organizations of the Treadway Commission (``COSO'').
    \288\ See PCAOB AS 2110, note 187 above. See also the discussion 
below in this section about this auditing standard.
    \289\ See 17 CFR 240.10A-3. In the absence of an ICFR auditor 
attestation requirement, we note that the audit committee is 
responsible for approving whether to voluntarily obtain an ICFR 
auditor attestation, and would be alerted by the auditor engaged in 
a financial statement only audit if the auditor becomes aware of a 
significant deficiency or material weakness in ICFR.
---------------------------------------------------------------------------

    Beyond these requirements, accelerated filers and large accelerated 
filers other than EGCs, RICs, and ABS issuers are required under SOX 
Section 404(b) and related rules to include an ICFR auditor attestation 
in their annual reports. In addition, certain banks, even if they are 
non-accelerated filers, are required under Federal Deposit Insurance 
Corporation (``FDIC'') rules to have their auditor attest to, and 
report on, management's assessment of the effectiveness of the bank's 
ICFR (the ``FDIC auditor attestation requirement'').\290\
---------------------------------------------------------------------------

    \290\ Part 363 of the FDIC regulations requires that the auditor 
of an insured depository institution with consolidated total assets 
of $1 billion or more (as of the beginning of the fiscal year) 
examine, attest to, and report separately on the assertion of 
management concerning the effectiveness of the institution's 
internal control structure and procedures for financial reporting.
---------------------------------------------------------------------------

    One commenter raised questions about the nature of the FDIC auditor 
attestation requirement and how it compares to the ICFR auditor 
attestation requirement.\291\ For banks that are subject to the ICFR 
auditor attestation requirement, the FDIC regulations require ICFR 
attestation engagements to be performed according to the same standards 
as the ICFR auditor attestation requirement under SOX Section 404(b) 
(i.e., AS 2201,\292\ as discussed below).\293\ For other banks, the 
FDIC allows ICFR attestations to be performed either according to AS 
2201 or according to the American Institute of Certified Public 
Accountants (``AICPA'') attestation standard.\294\ In 2015, the 
Auditing Standards Board of the AICPA issued Statement on Auditing 
Standards (``SAS'') No. 130, revising their attestation standard with 
the intention of adhering as closely as possible to AS 2201 while 
aligning with their generally accepted auditing standards and avoiding 
unintended consequences in practice.\295\ The FDIC also requires that 
the attestation reports be made available for public inspection (at the 
bank's main and branch offices or, alternatively, by mail to anyone who 
requests it).\296\ Per Section IV.B.4 below, material weaknesses 
reported in SOX Section 404(a) reports and the corresponding SOX 
Section 404(b) reports typically mirror each other, so material 
weaknesses identified by the FDIC auditor attestation may also become 
publicly known via corresponding SOX Section 404(a) management reports. 
Finally, we note that FDIC and Federal Reserve examiners may also 
independently review and assess the adequacy of ICFR of banks.
---------------------------------------------------------------------------

    \291\ See letter from CFA Inst.
    \292\ See AS 2201, An Audit of Internal Control Over Financial 
Reporting That Is Integrated with An Audit of Financial Statements 
(``AS 2201'').
    \293\ See Section 18A of Appendix A to Part 363 of the FDIC 
regulations.
    \294\ Id.
    \295\ See Executive Summary to SAS 130 (October 2015), available 
at https://www.aicpa.org/Research/Standards/AuditAttest/DownloadableDocuments/SAS_130_Summary.pdf.
    \296\ See Section 363.4 of Part 363 of the FDIC regulations.
---------------------------------------------------------------------------

    Some issuers that are not required to comply with SOX Section 
404(b) voluntarily obtain an ICFR auditor attestation.\297\ Estimates 
of the number of issuers of each filer type are provided in Table 5 
below.\298\
---------------------------------------------------------------------------

    \297\ Up to about seven percent of exempt issuers voluntarily 
provided an ICFR auditor attestation from 2005 through 2011. See 
2013 GAO Study, note 246 above. We find similar results when 
examining data for non-accelerated filers and EGCs in calendar years 
2014 through 2018 from Ives Group Audit Analytics to identify, among 
issuers of these types that have a SOX Section 404(a) management 
report, how many also have an ICFR auditor attestation report 
available in the database. See note 298 below regarding the 
identification of filer types.
    \298\ The estimates in this table are based on staff analysis of 
self-identified filer status for issuers filing annual reports on 
Forms 10-K, 20-F, or 40-F in calendar year 2018, excluding any such 
filings that pertain to fiscal years prior to 2017. Staff extracted 
filer status from filings using a computer program supplemented with 
hand collection and compared the results for robustness with data 
from XBRL filings, Ives Group Audit Analytics, and Calcbench. FPIs 
represent those filing on Forms 20-F or 40-F and do not include FPIs 
that choose to file on Form 10-K. EGC issuers are identified by 
using data from Ives Group Audit Analytics and/or by using a 
computer program to search issuer filings, including filings other 
than annual reports, for a statement regarding EGC status. The 
estimates generally exclude RICs because these issuers do not file 
on the annual report types considered. This table also excludes 143 
issuers, mostly Canadian MJDS issuers filing on Form 40-F (which 
does not require disclosure of filer status or public float), for 
which filer type is unavailable.

                         Table 5--Filer Status for Issuers Filing Annual Reports in 2018
----------------------------------------------------------------------------------------------------------------
                                                                       Non-                            Large
                                                                   accelerated *    Accelerated     accelerated
----------------------------------------------------------------------------------------------------------------
FPI.............................................................             265             137             264
EGC.............................................................           1,097             333               0
                                                                 -----------------------------------------------
    Total.......................................................           3,900           1,416           2,266
----------------------------------------------------------------------------------------------------------------
* The estimated number of non-accelerated filers includes approximately 621 ABS issuers, which are not required
  to comply with SOX Section 404. Staff estimates that very few, if any, ABS issuers are accelerated or large
  accelerated filers. ABS issuers are identified as issuers that made distributions reported via Form 10-D.


[[Page 17197]]

    Audits of ICFR and the associated ICFR auditor attestation reports 
are made in accordance with AS 2201,\299\ previously known as Auditing 
Standard Number 5 (``AS No. 5'').\300\ This standard, which replaced 
Auditing Standard Number 2 (``AS No. 2'') in 2007, was intended to 
focus auditors on the most important matters in the audit of ICFR and 
eliminate procedures that the PCAOB believed were unnecessary to an 
effective audit of ICFR.\301\ Among other things, the 2007 standard 
facilitates the scaling of the evaluation of ICFR for smaller, less 
complex issuers by, for example, encouraging auditors to use top-down 
risk-based approaches and to use the work of others in the attestation 
process.\302\ It was accompanied by Commission guidance similarly 
facilitating the scaling of SOX Section 404(a) management evaluations 
of ICFR.\303\
---------------------------------------------------------------------------

    \299\ See note 292 above.
    \300\ AS No. 5 was renumbered as AS 2201, note 292 above, 
effective Dec. 31, 2016. See Reorganization of PCAOB Auditing 
Standards and Related Amendments to PCAOB Standards and Rules, PCAOB 
Release No. 2015-002 (Mar. 31, 2015).
    \301\ See Auditing Standard No. 5, An Audit of Internal Control 
Over Financial Reporting That Is Integrated with An Audit of 
Financial Statements, and Related Independence Rule and Conforming 
Amendments, PCAOB Release No. 2007-005A (June 12, 2007). See also 
Public Company Accounting Oversight Board; Order Approving Proposed 
Auditing Standard No. 5, An Audit of Internal Control Over Financial 
Reporting that is Integrated with an Audit of Financial Statements, 
a Related Independence Rule, and Conforming Amendments, Release No. 
34-56152, File No. PCAOB 2007-02 (July 27, 2007) [72 FR 42141 (Aug. 
1, 2007)].
    \302\ Id.
    \303\ See Commission Guidance Regarding Management's Report on 
Internal Control Over Financial Reporting Under Section 13(a) or 
15(d) of the Securities Exchange Act of 1934, Release No. 33-8810 
(June 20, 2007) [72 FR 35323 (June 27, 2007)]. See also Amendments 
to Rules Regarding Management's Report on Internal Control Over 
Financial Reporting, Release No. 33-8810 (June 20, 2007) [72 FR 
35309 (June 27, 2007)].
---------------------------------------------------------------------------

    The adoption of AS 2201 in 2007 has been found to have lowered 
audit fees.\304\ However, several studies have provided evidence that, 
at least initially, after the adoption of AS 2201, the quality of ICFR 
of issuers subject to the ICFR auditor attestation requirement 
decreased relative to that of other issuers.\305\ Around 2010, PCAOB 
inspections of auditors began to include a heightened focus on whether 
auditing firms had obtained sufficient evidence to support their 
opinions on the effectiveness of ICFR.\306\ There is some evidence that 
these inspections have led to an improvement in the reliability of ICFR 
auditor attestations,\307\ but also concerns that audit fees also 
increased around the same time.\308\
---------------------------------------------------------------------------

    \304\ See, e.g., Study of the Sarbanes-Oxley Act of 2002 Section 
404 Internal Control over Financial Reporting Requirements (Sept. 
2009) (``2009 SEC Staff Study''), available at https://www.sec.gov/news/studies/2009/sox-404_study.pdf; Rajib Doogar, Padmakumar 
Sivadasan, & Ira Solomon, 48(4) J. of Acct. Res. 795 (2010).
    \305\ See, e.g., Joseph Schroeder & Marcy Shepardson, Do SOX 404 
Control Audits and Management Assessments Improve Overall Internal 
Control System Quality?, 91(5) Acct. Rev. 1513 (2016) (``Schroeder 
and Shepardson 2016 Study''); Lori Bhaskar, Joseph Schroeder, & 
Marcy Shepardson, Integration of Internal Control and Financial 
Statement Audits: Are Two Audits Better than One? Acct. Rev. 
(forthcoming 2018) (``Bhaskar et al. 2018 Study''), available at 
http://aaajournals.org/doi/abs/10.2308/accr-52197. See Section 
IV.C.3.a. and notes 464 and 474 below for more information on these 
studies.
    \306\ See Jeanette Franzel, Board Member, PCAOB, Speech by PCAOB 
board member at the American Accounting Association Annual Meeting, 
Current Issues, Trends, and Open Questions in Audits of Internal 
Control over Financial Reporting (2015), available at https://pcaobus.org/News/Speech/Pages/08102015_Franzel.aspx.
    \307\ See Mark Defond & Clive Lennox, Do PCAOB Inspections 
Improve the Quality of Internal Control Audits?, 55(3) J. OF ACCT. 
RES. 591 (2017) (``Defond and Lennox 2017 Study'').
    \308\ See, e.g., Tammy Whitehouse, Audit Inspections: 
Improvement? Maybe. Costs? Yes, Compliance Week (April 14, 2015), 
available at https://www.complianceweek.com/news/news-article/audit-inspections-improvement-maybe-costs-yes#.W5LW7mlpCEd; and Jennifer 
McCallen, Roy Schmardebeck, Jonathan Shipman, & Robert Whited, Have 
the Costs and Benefits of SOX Section 404(b) Compliance Changed Over 
Time?, Working Paper (Nov. 2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3420787 (``McCallen et 
al. 2019 study'').
---------------------------------------------------------------------------

    In 2010, the PCAOB adopted enhanced auditing standards related to 
the auditor's assessment of and response to risk.\309\ The enhanced 
risk assessment standards have likely reduced, to some extent, the 
degree of difference between a financial statement only audit and an 
integrated audit (which includes an audit of ICFR) because the 
standards clarify and augment the extent to which internal controls are 
to be considered even in a financial statement only audit. In 
particular, the risk assessment standards applying to both types of 
audits require auditors, in either case, to evaluate the design of 
certain controls, including whether the controls are implemented.\310\
---------------------------------------------------------------------------

    \309\ See PCAOB Release No. 2010-004 and PCAOB Release No. 2010-
01, note 193 above.
    \310\ See AS 2110, paragraphs .18-.40, note 187 above.
---------------------------------------------------------------------------

    Based on the results of inspections in the several years after the 
adoption of the new risk assessment auditing standards, the PCAOB 
expressed concern about the number and significance of deficiencies in 
auditing firm compliance with these standards, but also noted promising 
improvements in the application of these standards.\311\ While the risk 
assessment standards may reduce the degree of difference between a 
financial statement only audit and an integrated audit, there remain 
important differences in the requirements of these audits as they 
relate to controls. For example, in an integrated audit, but not a 
financial statement only audit, the auditor is required to identify 
likely sources of misstatements in considering the evaluation of 
ICFR.\312\ Also, the extent of the procedures necessary to obtain the 
required understanding of controls generally will be greater in an 
integrated audit due to the different objectives of such an audit as 
compared to a financial statement only audit.\313\
---------------------------------------------------------------------------

    \311\ See PCAOB Release No. 2015-007, note 195 above.
    \312\ See PCAOB Release No. 2010-004, note 309 above, at 7 and 
A10-41. As discussed above, even in a financial statement only 
audit, if the auditor becomes aware of a significant deficiency or 
material weakness in ICFR, it is required to inform management and 
the audit committee of this finding and has the responsibility to 
review management's disclosure for any misstatement of facts, such 
as a statement that ICFR is effective when there is a known material 
weakness. See notes 190 to 191 above and the accompanying text.
    \313\ See Proposed Auditing Standards Related to the Auditor's 
Assessment of and Response to Risk and Conforming Amendments to 
PCAOB Standards, PCAOB Release No. 2008-006 A9-8 (Oct. 21, 2008).
---------------------------------------------------------------------------

    The Commission recently settled charges against four public 
companies for failing to maintain effective ICFR for seven to 10 
consecutive annual reporting periods.\314\ These enforcement cases may 
have a deterrent effect among issuers failing to remediate material 
weaknesses, which might reduce the overall rate of persistence of 
material weaknesses in ICFR.
---------------------------------------------------------------------------

    \314\ See SEC Press Release, note 196 above.
---------------------------------------------------------------------------

    We also note that there have been some recent changes in accounting 
and auditing that are part of our baseline and could increase the 
uncertainty of our analysis due to their effects on factors such as 
audit fees, restatements, and ICFR. For example, three new reporting 
standards have been issued recently by FASB, on the topics of revenue 
recognition, leases, and credit losses, which could temporarily 
increase audit fees as issuers and auditors adjust to the new 
standards.\315\ Recent changes in technology, such as the potential for 
management to use automated controls testing and process 
automation,\316\ may result in improvements in ICFR regardless of the 
ICFR auditor attestation requirement if their increased application 
results in more robust financial reporting processes with fewer 
opportunities for deficiencies and/or in an increase by

[[Page 17198]]

management in control testing and related improvements. Such automation 
could also reduce audit fees, including the costs of an audit of ICFR, 
but at least one report suggests that the uptake of these technologies 
has been slow.\317\ Finally, auditors have had many years of experience 
with integrated audits, as well as risk assessment standards that 
require the consideration of ICFR even in the absence of an ICFR 
auditor attestation. This experience may affect their execution of 
financial statement only audits of issuers for whom the ICFR auditor 
attestation requirement is eliminated. For example, given their 
experience, auditors may be more likely to detect control deficiencies 
or to increase their auditing efficiency by reducing substantive 
testing in favor of testing some related controls even when an ICFR 
auditor attestation is not required.\318\
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    \315\ Information on these and other FASB Accounting Standards 
updates is available at https://www.fasb.org/jsp/FASB/Page/SectionPage&cid=1176156316498.
    \316\ See, e.g., Robotic Process Automation, note 197 above.
    \317\ See, e.g., Protiviti survey results, Benchmarking SOX 
Costs, Hours and Controls (2018) (``Protiviti 2018 Report'').
    \318\ 2011 SEC Staff Study, note 198 above, (stating that ``. . 
. once effective controls are in place at the issuer, the auditor is 
more likely to continue to test them even if [it is] not issuing an 
auditor attestation during a particular year in order to rely on 
them for purposes of reducing substantive testing in the audit of 
the financial statements, particularly for issuers that are larger 
and more complex'').
---------------------------------------------------------------------------

2. Characteristics of Accelerated Filer Population
    Per Table 5, there were approximately 1,400 accelerated filers in 
total in 2018. Figure 2 \319\ presents the distribution of public float 
across these issuers.\320\
---------------------------------------------------------------------------

    \319\ The estimates in the figure are based on staff analysis of 
data from XBRL filings. See note 298 above for details on the 
identification of the population of accelerated filers.
    \320\ Because of the accelerated filer transition provisions, 
some accelerated filers have float below $75 million. The public 
float of these issuers would previously have exceeded $75 million, 
causing them to enter accelerated filer status, but has not dropped 
below the $50 million public float level required to exit 
accelerated filer status.
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BILLING CODE 8011-01-P
[GRAPHIC] [TIFF OMITTED] TR26MR20.001

BILLING CODE 8011-01-C
    The distribution of public float among accelerated filers is skewed 
towards lower levels of float, but higher levels of float are also 
significantly represented.
    Figure 3 \321\ presents the distribution of revenues across those 
accelerated filers that have less than $1 billion in revenues. While 
the full population of accelerated filers has revenues of up to over 
$20 billion, about 90 percent of accelerated filers have less than $1 
billion in revenues. We restrict the figure to this subset in order to 
more clearly display the distribution in this range.
---------------------------------------------------------------------------

    \321\ The estimates of revenues are based on staff analysis of 
data from XBRL filings, Compustat, and Calcbench. The revenue data 
used is from the last fiscal year prior to the annual report in 
calendar year 2018, because the SRC revenue test is based on the 
prior year's revenues. See note 298 above for details on the 
identification of the population of accelerated filers.

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[[Page 17199]]

[GRAPHIC] [TIFF OMITTED] TR26MR20.002

    The distribution of revenues for accelerated filers is heavily 
skewed towards lower levels of revenue, with roughly three-quarters of 
accelerated filers having revenues of less than $500 million and more 
than a third having revenues of less than $100 million. Other than a 
clustering of issuers with zero or near zero revenues, there are no 
obvious breaks in the distribution.
    While a large range of industries are represented among accelerated 
filers, a small number of industries account for the majority of these 
issuers. The ``Banking'' industry accounts for about 14.1 percent of 
accelerated filers, followed by ``Pharmaceutical Products'' (13.9 
percent) ``Financial Trading'' (8.0 percent), ``Business Services'' 
(5.7 percent), ``Petroleum and Natural Gas'' (4.8 percent), ``Computer 
Software'' (4.4 percent), ``Retail'' (4.4 percent), ``Transportation'' 
(4.2 percent), and ``Electronic Equipment'' (4.1 percent).\322\
---------------------------------------------------------------------------

    \322\ These estimates are based on staff analysis of data 
including SIC codes from XBRL filings and Ives Group Audit 
Analytics, using the Fama-French 49-industry classification system. 
See http://mba.tuck.dartmouth.edu/pages/faculty/ken.french/Data_Library/det_49_ind_port.html. See note 298 above for details on 
identification of population of accelerated filers.
---------------------------------------------------------------------------

3. Timing of Filings
    As discussed above, non-accelerated, accelerated, and large 
accelerated filers face different filing deadlines for their periodic 
reports. In Table 6, we present the timing in recent years of annual 
report filings by these different groups of issuers relative to their 
corresponding deadlines.\323\
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    \323\ The estimates in this table are based on staff analysis of 
EDGAR filings. These statistics include all annual reports on Forms 
10-K, 20-F, and 40-F filed in calendar years 2014 through 2018 other 
than amendments. If multiple annual reports (excluding amendments) 
are filed in the same calendar year, the analysis considers only the 
latest such filing. Given the effect of weekends and holidays, 
filings are considered to be on time if within two calendar days 
after the original deadline. The ``5 days early'' and ``over 15 days 
after'' categories are similarly adjusted to account for the 
possible effect of weekends and holidays. See note 298 above for 
details on the identification of filer type.

              Table 6--Filing Timing for Annual Reports in Years 2014 Through 2018, by Filer Status
----------------------------------------------------------------------------------------------------------------
                                        Non-accelerated              Accelerated           Large  accelerated
----------------------------------------------------------------------------------------------------------------
Annual report filing deadline....  90 days..................  75 days.................  60 days.
Average days to file.............  101 days.................  70 days.................  56 days.
Percentage filed:
    By deadline..................  72%......................  91%.....................  94%.
    Over 5 days early............  44%......................  63%.....................  61%.
    After deadline...............  28%......................  9%......................  6%.
    Over 15 days after deadline..  13%......................  5%......................  4%.
----------------------------------------------------------------------------------------------------------------


[[Page 17200]]

    Table 6 documents that accelerated and large accelerated filers 
file their annual reports, on average, four or five days before the 
applicable deadline. Nine percent and six percent, respectively, of 
accelerated and large accelerated filers submit their annual reports 
after the initial deadline, with roughly half of these filers 
surpassing the 15-day grace period that is obtained by filing Form NT. 
Non-accelerated filers are less likely to meet their initial deadline 
or extended deadline, with the average non-accelerated filer submitting 
its annual report 11 days after the initial deadline and 13 percent of 
non-accelerated filers filing after the 15-day grace period obtained by 
filing Form NT.
4. Internal Controls and Restatements
    We next consider the current rates of ineffective ICFR and 
restatements \324\ among issuers that are accelerated filers under the 
baseline relative to other filer types. The data for all years of the 
analysis has been updated relative to the analysis in the Proposing 
Release.\325\ Throughout our analysis, we use the term restatement to 
refer to a restatement that is associated with some type of 
misstatement. As discussed above, non-accelerated filers and EGCs are 
statutorily exempted from the ICFR auditor attestation requirement. 
Table 7 presents the percentage of issuers reporting ineffective ICFR 
in recent years by filer type.\326\
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    \324\ Unless otherwise specified, statistics and analysis 
regarding restatements are not restricted to those restatements 
requiring Form 8-K Item 4.02 disclosure.
    \325\ Previous years of data may be revised due to, for example, 
newly disclosed restatements that reflect misstatements in these 
earlier years, restated internal control reports that relate to 
previous fiscal years, previously incomplete data that was later 
populated, or other updates or database changes.
    \326\ The estimates in this table are based on staff analysis of 
Ives Group Audit Analytics data. ICFR effectiveness is based on the 
last amended management or auditor attestation report for the fiscal 
year. Percentages are computed out of all issuers of a given filer 
type with the specified type of report available in the Ives Group 
Audit Analytics database. See note 298 above for details on the 
identification of filer type.

                            Table 7--Percentage of Issuers Reporting Ineffective ICFR
----------------------------------------------------------------------------------------------------------------
                                                                       Non-                            Large
                Ineffective ICFR year reported in                   accelerated     Accelerated     accelerated
                                                                        (%)             (%)             (%)
----------------------------------------------------------------------------------------------------------------
Management Report:
    2014........................................................            40.1             7.8             3.2
    2015........................................................            41.2             9.2             3.8
    2016........................................................            38.3             9.5             4.6
    2017........................................................            40.2             9.2             5.0
    2018........................................................            40.3             8.9             3.8
        Average/year............................................            40.0             8.9             4.1
Auditor Attestation:
    2014........................................................             n/a             8.0             3.3
    2015........................................................             n/a             9.1             3.8
    2016........................................................             n/a             9.0             4.6
    2017........................................................             n/a             9.4             4.9
    2018........................................................             n/a             8.7             3.8
        Average/year............................................             n/a             8.8             4.1
----------------------------------------------------------------------------------------------------------------

    Based on management's SOX Section 404(a) reports on ICFR from 
recent years, on average, about nine percent of accelerated filers 
reported at least one material weakness in ICFR in a given year.\327\ 
This represents a moderately higher rate than that among large 
accelerated filers, approximately four percent, on average, of which 
reported ineffective ICFR,\328\ and a substantially lower rate than 
that among non-accelerated filers, more than a third of which reported 
ineffective ICFR each year.\329\ For issuers subject to the ICFR 
auditor attestation requirement, the rates of ineffective ICFR reported 
by management and by auditors are similar.\330\ This may not be 
surprising, as management will be made aware of any material weaknesses 
discovered by the auditor and vice versa.
---------------------------------------------------------------------------

    \327\ Per the second column of the first panel of Table 7, the 
rate of ineffective ICFR among accelerated filers has ranged from 
7.8 to 9.5 percent for the years 2014 through 2018, for an average 
per year of 8.9 percent.
    \328\ Per the third column of the first panel of Table 7, the 
rate of ineffective ICFR among large accelerated filers has ranged 
from 3.2 to 5.0 percent for the years 2014 through 2018, for an 
average per year of 4.1 percent.
    \329\ Per the first column of the first panel of Table 7, the 
rate of ineffective ICFR among non-accelerated filers has ranged 
from 38.3 to 41.2 percent for the years 2014 through 2018, for an 
average per year of 40.0 percent.
    \330\ Per the second column of Table 7, the average rate of 
ineffective ICFR for accelerated filers across years 2014 through 
2018 was 8.9 percent as reported in management reports and 8.8 
percent as reported in auditor reports. Similarly, per the third 
column of Table 7, the average rate of ineffective ICFR for large 
accelerated filers across years 2014 through 2018 was 4.1 percent as 
reported in management reports and 4.1 percent as reported in 
auditor reports.
---------------------------------------------------------------------------

    We next consider the persistence of material weaknesses across 
these issuer categories. Table 8 \331\ presents the percentage of 
issuers that reported two, three, or four consecutive years of 
ineffective ICFR culminating in 2018, by filer type.\332\
---------------------------------------------------------------------------

    \331\ The estimates in this table are based on staff analysis of 
Ives Group Audit Analytics data. ICFR effectiveness is based on the 
last amended management report for the fiscal year. Percentages in 
the first panel are computed out of all issuers of a given filer 
type in 2018 with SOX Section 404(a) management reports available in 
Ives Group Audit Analytics database, while percentages in the second 
panel are computed out of issuers of a given filer type reporting 
ineffective ICFR in their SOX Section 404(a) management report for 
2018. See fourth row of Table 7 and note 298 above for details on 
the identification of filer type.
    \332\ One commenter noted that the Proposing Release, note 4 
above, indicated that over 68 percent of non-accelerated filers have 
reported two consecutive years of ineffective ICFR and over 38 
percent have reported four consecutive years of ineffective ICFR in 
their annual reports. See letter from Better Markets. To clarify, we 
note that these statistics, like those reported in the second panel 
of Table 8 below, reflect percentages out of the issuers in each 
category that maintained ineffective ICFR in the last year of the 
analysis, not percentages of all issuers in each category.

[[Page 17201]]



  Table 8--Percentage of Issuers Reporting Consecutive Years of Ineffective ICFR in Management Report, by 2018
                                                  Filer Status
----------------------------------------------------------------------------------------------------------------
                                                                       Non-                            Large
                     Ineffective ICFR years                         accelerated     Accelerated     accelerated
                                                                        (%)             (%)             (%)
----------------------------------------------------------------------------------------------------------------
Issuers with persistent ineffective ICFR/All issuers:
    2017-2018 (at least 2 years)................................            28.4             3.5             1.4
    2016-2018 (at least 3 years)................................            20.8             2.0             0.5
    2015-2018 (4 years).........................................            16.1             1.0             0.3
Issuers with persistent ineffective ICFR/Issuers with 2018
 ineffective ICFR:
    2017-2018 (at least 2 years)................................            70.4            39.2            36.4
    2016-2018 (at least 3 years)................................            51.6            22.4            14.1
    2015-2018 (4 years).........................................            39.9            11.3             7.2
----------------------------------------------------------------------------------------------------------------

    The first panel of Table 8 is intended to demonstrate the overall 
rate of persistently ineffective ICFR among issuers of different types, 
while the second panel is intended to demonstrate the degree of 
persistence of ineffective ICFR among the subset of issuers of each 
type that report ineffective ICFR in 2018. Compared to non-accelerated 
filers, we find that a smaller percentage of accelerated and large 
accelerated filers report material weaknesses that persist for multiple 
years, with about one percent of accelerated filers and about 0.3 
percent of large accelerated filers reporting ineffective ICFR for four 
consecutive years (per the third row of the table), representing about 
11 percent of the accelerated filers and about seven percent of the 
large accelerated filers that reported ineffective ICFR in 2018 (per 
the last row of the table). A larger percentage of non-accelerated 
filers persistently report material weaknesses, with about 16 percent 
of these issuers (per the third row of the table), or about 40 percent 
of those reporting ineffective ICFR in 2018 (per the last row of the 
table), having reported material weaknesses for four consecutive years. 
As discussed above, it is possible that recent Commission enforcement 
actions might lead to a reduction in the persistence of material 
weaknesses in ICFR to the extent that they change issuers' awareness of 
the risks of longstanding ICFR failures.
    Table 9 presents the rate of restatements among each of these filer 
types, excluding EGCs, and for EGCs separately. For each year, we 
consider the percentage of issuers that eventually restated the 
financial statements for that year. The reporting lag before 
restatements are filed results in a lower observed rate in the later 
years of our sample, particularly for 2017 (and even more so for 2018, 
which we do not report for this reason), as issuers may yet restate 
their results from recent years.\333\

                  Table 9--Percentage of Issuers Issuing Restatements by Year of Restated Data
----------------------------------------------------------------------------------------------------------------
                                                       Non-
                                                    accelerated     Accelerated        Large
                    Restated                        (ex. EGCs)      (ex. EGCs)      accelerated      EGC  (%)
                                                        (%)             (%)             (%)
----------------------------------------------------------------------------------------------------------------
Total Restatements:
    2014........................................            10.9            11.9            14.5            17.7
    2015........................................             9.2            12.5            12.7            16.0
    2016........................................             6.8             9.6             8.9             9.3
    2017........................................             6.9             7.5             6.3             8.3
        Average/year............................             8.5            10.4            10.6            12.8
8-K Item 4.02 Restatements:
    2014........................................             3.9             3.6             2.4             5.0
    2015........................................             3.1             3.6             1.8             4.7
    2016........................................             2.4             2.7             1.3             3.0
    2017........................................             2.3             2.0             0.7             3.1
        Average/year............................             2.9             2.9             1.6             3.9
----------------------------------------------------------------------------------------------------------------

    The first panel of Table 9 presents the percentage of issuers that 
make at least one restatement, of any type, while the second panel 
presents those that make at least one restatement requiring Form 8-K 
Item 4.02 disclosure. The latter type of restatement (``Item 4.02 
restatements'') reflects material misstatements, while other 
restatements deal with misstatements that are considered immaterial. We 
find that EGCs, which are not subject to the ICFR auditor attestation 
requirement and generally are also younger issuers than those in the 
other groups, restate their financial statements at higher rates than 
other issuers, whether we consider all restatements or only Item 4.02 
restatements. For non-accelerated filers, which also are not subject to 
the ICFR auditor attestation requirement, we find that the percentage 
of issuers reporting Item 4.02 restatements is similar to, and the rate 
of all restatements slightly lower than, that for accelerated filers 
who are subject to the ICFR auditor attestation requirement. We note 
that there is a greater proportion of low-revenue issuers in the non-
accelerated filer category than in other categories, and that, in the 
Proposing Release, we found such issuers to have lower rates of 
restatement than other issuers.\334\ When, in the Proposing Release, we

[[Page 17202]]

separately considered issuers with revenues below $100 million, we 
found that the accelerated filers in this category are less likely to 
restate their financial statements than non-accelerated filers in the 
same revenue category.\335\
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    \333\ The estimates in this table are based on staff analysis of 
Ives Group Audit Analytics data. Percentages are computed out of all 
issuers of a given filer type with a SOX Section 404(a) management 
report available in the Ives Group Audit Analytics database. 
Accelerated and non-accelerated categories exclude EGCs that are in 
these filer categories. See note 298 above for details on the 
identification of filer type.
    \334\ See Table 14 in the Proposing Release, note 4 above.
    \335\ Id.
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C. Discussion of Economic Effects

    The costs and benefits of the amendments, including impacts on 
efficiency, competition, and capital formation, are discussed below. We 
first address the population and characteristics of issuers that will 
newly qualify as non-accelerated filers under the amendments, and then 
introduce certain categories of issuers that are used for comparison 
purposes. We next discuss the anticipated costs and benefits associated 
with the proposed change in applicability of the ICFR auditor 
attestation requirement. Following this discussion, we consider the 
costs and benefits associated with the proposed changes with respect to 
filing deadlines, exit thresholds, and other required disclosures. 
Finally, we consider the relative benefits and costs of the principal 
reasonable alternatives to the amendments.
1. Affected Issuers
    We estimate that the amendments will result in 527 additional 
issuers being classified as non-accelerated filers, and therefore no 
longer subject to the filing deadlines and ICFR auditor attestation 
requirement applicable to accelerated filers.\336\ Of these, an 
estimated 154 issuers are EGCs and are thereby already exempt from the 
ICFR auditor attestation requirement.\337\ Among the total 527 affected 
issuers, an estimated 492 issuers are accelerated filers (or large 
accelerated filers that have public float of less than $560 million) 
that will be newly classified as non-accelerated filers because they 
have annual revenues of less than $100 million and are eligible to be 
SRCs.\338\ An additional 28 issuers are BDCs that will be newly 
classified as non-accelerated filers because they are currently 
accelerated filers (and therefore have public float of less than $700 
million) and have annual investment income of less than $100 
million.\339\ The remaining seven affected issuers are accelerated 
filers that will be newly classified as non-accelerated filers despite 
having revenues of at least $100 million because they have a public 
float of at least $50 million but less than $60 million.\340\ Our 
estimate of the number of affected issuers excludes issuers for which 
we were unable to determine filer classification or revenues, which 
could represent up to approximately an additional 30 affected issuers.
---------------------------------------------------------------------------

    \336\ The number of affected issuers is based on staff estimates 
of: (i) The number of accelerated filers in 2018 that have prior 
fiscal year revenues of less than $100 million and are eligible to 
be SRCs (i.e., excluding ABS issuers, RICs, BDCs, subsidiaries of 
non-SRCs, and FPIs filing on foreign forms or using IFRS) or are 
BDCs with prior year investment income of less than $100 million; 
(ii) the number of large accelerated filers in 2018 that have a 
public float of less than $560 million and prior fiscal year 
revenues of less than $100 million and are eligible to be SRCs; and 
(iii) the number of accelerated filers in 2018 that have a public 
float of at least $50 million but less than $60 million. The 
estimate of the number of affected issuers does not include large 
accelerated filers that have a public float of at least $560 million 
but less than $700 million even though such issuers could become 
non-accelerated filers under the amendments if they became eligible 
to be SRCs under the SRC revenue test in the first year the SRC 
amendments became effective due to the limited horizon of this 
accommodation. See note 252 above (describing the accommodation 
provided in the SRC Adopting Release). Revenue data is sourced from 
XBRL filings, Compustat, and Calcbench. Public float data is from 
XBRL. See note 298 above for details on the identification of the 
population of accelerated and large accelerated filers and other 
filer types.
    \337\ Id.
    \338\ Id.
    \339\ Id.
    \340\ Id.
---------------------------------------------------------------------------

    Our estimate of the number of affected issuers does not include any 
FPIs. We estimate that there are no FPIs that file on domestic forms 
and present their financial statements pursuant to U.S. GAAP, and that 
also meet the required thresholds and other qualifications to be an 
affected issuer under the amendments. However, there are an estimated 
31 FPIs that file on foreign forms, but otherwise meet the required 
thresholds and other qualifications. There are also FPIs filing on 
foreign forms for which we were unable to determine filer 
classification or revenues, which could represent up to approximately 
an additional 90 FPIs that file on foreign forms but that may meet the 
required thresholds and other qualifications.\341\ While we do not 
include these issuers in our counts of the number of affected 
issuers,\342\ some of these 30 to 120 additional issuers might choose 
to file on domestic forms using U.S. GAAP in order to benefit from the 
amendments if these benefits, together with other benefits of such a 
choice (such as the ability to rely on the scaled disclosure 
accommodations available to SRCs) outweigh the costs of changing their 
disclosure regime. However, many factors are involved in the choice of 
a reporting regime, and it is difficult to predict how many of these 
issuers are likely to change their reporting practices due to the 
amendments.
---------------------------------------------------------------------------

    \341\ The majority of these potential additional issuers are 
Canadian MJDS filers that are not required to disclose filer type or 
public float. See note 298 above.
    \342\ In the Proposing Release, note 4 above, we included FPIs 
that file on foreign forms, but otherwise meet the required 
thresholds and other qualifications, in the number of affected 
issuers. While these issuers could become subject to the amendments 
by changing their reporting regime, it is difficult to predict how 
many would do so and therefore, to be conservative, we do not 
include them in the number of affected issuers in this release.
---------------------------------------------------------------------------

    As noted above, the total number of affected issuers includes an 
estimated 154 EGCs (including 152 EGCs with annual revenues or, in the 
case of BDCs, investment income of less than $100 million and two EGCs 
that will be affected because they have a public float of at least $50 
million but less than $60 million).\343\ It also includes an estimated 
78 banks with $1 billion or more in total assets that are not 
EGCs.\344\ The estimated 154 EGCs are not required to comply with the 
ICFR auditor attestation requirement under SOX Section 404(b). We 
estimate that the remaining 373 affected issuers will, including 21 
BDCs, be newly exempt from this requirement.\345\ Two commenters 
provided estimates of 382 affected issuers and 385 affected issuers, 
respectively, as the number of issuers that would be newly exempt from 
the ICFR auditor attestation requirement under the proposal.\346\ While 
these estimates are largely consistent with our estimate, we note that 
the commenters' estimates apply some simplifications and use different 
underlying data sources than our estimate.\347\
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    \343\ See note 336 above.
    \344\ Banks are identified as issuers with SIC codes of 6020 
(commercial banks), 6021 (national commercial banks), 6022 (state 
commercial banks), 6029 (NEC commercial banks), 6035 (savings 
institutions, federally-chartered) or 6036 (savings institutions, 
not federally-chartered).
    \345\ Of these 373 issuers, 368 had less than $100 million in 
revenues (or, in the case of BDCs, investment income) in their last 
fiscal year, while the remaining five would be affected despite 
having greater revenues because of the revised transition provisions 
(i.e., because their public float is at least $50 million but less 
than $60 million).
    \346\ See letters from CFA Inst. and Prof. Barth et al. See also 
letter from Nasdaq, estimating that at least 399 Nasdaq-listed 
companies may be affected by the amendments.
    \347\ For example, neither commenter excludes from its estimate 
issuers that are not eligible to be SRCs or adjusts for the effect 
of the revised transition thresholds as described in note 336 above 
and note 151 of the Proposing Release, note 4 above. The letter from 
CFA Inst. appears to rely on a footnote in the Proposing Release 
that, while citing to the correct definitions of EGC in our rules, 
incorrectly stated that an EGC is an issuer that has total annual 
gross revenues of ``less than $1.07 million'' during its most 
recently completed fiscal year (rather than the correct threshold of 
``less than $1.07 billion'') and did not identify the other 
requirements to be an EGC (such as not having reached the last day 
of the fiscal year following the fifth anniversary of the date of 
the first sale of common equity securities of the issuer under an 
effective Securities Act registration statement as an EGC). See 
footnote 47 of the Proposing Release, note 4 above. The estimate in 
the letter from CFA Inst. also excluded all 10-K filers with the SIC 
code 6200 (``Security & Commodity Brokers, Dealers, Exchanges & 
Services''), which we do not believe is appropriate. While the 
letter correctly indicates that the ICFR auditor attestation 
requirement does not apply to audits of brokers and dealers 
performed pursuant to SEC Rule 17a-5, these audits apply to the 
reports required by Rule 17a-5, which are distinct from a Form 10-K 
filing. Issuers filing Form 10-Ks that have a subsidiary that is a 
broker or dealer are not treated differently from other issuers with 
respect to the ICFR auditor attestation requirement.

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[[Page 17203]]

    Of the 373 issuers that will be newly exempt from the ICFR auditor 
attestation requirement, we estimate that the 78 banks identified above 
will be subject to the FDIC auditor attestation requirement,\348\ while 
the remaining 295 issuers will not be subject to any such auditor 
attestation requirement.\349\ For the banks that will be newly exempt 
from the ICFR auditor attestation requirement but will remain subject 
to the FDIC auditor attestation requirement, the benefits and costs of 
expanding the exemption from the ICFR auditor attestation requirement 
are both expected to be limited. As discussed in Section IV.B.1. above, 
the FDIC auditor attestation requirement is substantively similar to 
the ICFR auditor attestation requirement, and is thus expected to 
require similar expenditures and have similar financial reporting 
benefits as the ICFR auditor attestation.
---------------------------------------------------------------------------

    \348\ If these banks are no longer subject to the SOX Section 
404(b) auditor attestation requirement, their auditors may follow 
the AICPA's auditing standards in lieu of the PCAOB's auditing 
standards for the FDIC auditor attestation. See Section 18A of 
Appendix A to FDIC Rule 363 and the AICPA's AU-C Section 940. See 
also Section III.B.1. above.
    \349\ Of these 274 issuers, 269 are accelerated filers (or large 
accelerated filers that have public float of less than $560 million) 
that will be newly classified as non-accelerated filers because they 
have annual revenues of less than $100 million and are eligible to 
be SRCs, while the remaining five will be newly classified as non-
accelerated filers despite having revenues of at least $100 million 
because they have a public float of at least $50 million but less 
than $60 million.
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    We estimate that approximately 90 percent of the affected issuers 
(whether including or excluding EGCs) have securities that are listed 
on national exchanges.\350\ The representation in public markets of 
issuers similar to the affected issuers has decreased relative to the 
years before SOX. In particular, over the past two decades, the number 
of issuers listed on major exchanges has decreased by about 40 
percent,\351\ but the decline has been concentrated among smaller size 
issuers. Specifically, the number of listed issuers with market 
capitalization below $700 million has decreased by about 65 
percent,\352\ and the number of listed issuers with less than $100 
million in revenue has decreased by about 60 percent.\353\ One 
commenter noted that these statistics do not establish that the costs 
of the ICFR auditor attestation materially contributed to the decline 
in listed issuers, and that there are a number of other factors that 
are likely implicated in the decline of listings.\354\ We cite these 
statistics to characterize the affected issuers, not to attribute the 
decline in listings to any particular cause. As noted below, the 
amendments could be a positive factor in the decision of additional 
companies to enter public markets, but it may not be the decisive 
factor, and the direct impact of the amendments on the number of public 
companies may be limited to the extent that companies may be more 
focused on other factors associated with the decision to go 
public.\355\
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    \350\ Staff extracted information regarding whether issuers 
reported having securities registered under Section 12(b) of the 
Exchange Act from the cover page of annual report filings using a 
computer program supplemented with hand collection. See note 336 
above for details on the identification of the population of 
affected issuers.
    \351\ This estimate is based on staff analysis of data from the 
Center for Research in Security Prices database for December 1998 
versus December 2018. The estimate excludes RICs and issuers of 
ADRs.
    \352\ Id.
    \353\ This estimate is based on staff analysis of data from 
Standard & Poor's Compustat and Center for Research in Security 
Prices databases for fiscal year 1998 versus fiscal year 2017. The 
estimate excludes RICs and issuers of ADRs.
    \354\ See letter from CFA.
    \355\ See Section IV.C.2.d. below.
---------------------------------------------------------------------------

    Figure 4 \356\ presents the distribution of public float across the 
full sample of affected issuers.\357\
---------------------------------------------------------------------------

    \356\ The estimates in this figure are based on staff analysis 
of data from XBRL filings. We corrected the public float data based 
on hand-collection from Form 10-K filings for five affected issuers 
whose public float reported in XBRL format was 1,000 times the 
public float reported on the cover page of the corresponding Form 
10-K filing, resulting in values of over $50 billion in public float 
reported in XBRL. See note 336 above for details on the 
identification of the population of affected issuers.
    \357\ Because of the accelerated filer transition provisions, 
some of the affected issuers have public float of at least $50 
million but below $75 million. See note 320 above.
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BILLING CODE 8011-01-P

[[Page 17204]]

[GRAPHIC] [TIFF OMITTED] TR26MR20.003

    Relative to the distribution for all accelerated filers presented 
in Figure 2, the sample of affected issuers is more strongly skewed 
toward lower levels of public float, with higher levels of public float 
only thinly represented. However, some of the affected issuers do have 
public float approaching the top of the range for accelerated filers.
    Figure 5 presents the distribution of revenues across the 520 
accelerated filers (or large accelerated filers with public float of 
less than $560 million) that will be newly classified as non-
accelerated filers because they have revenues (or, in the case of BDCs, 
investment income) of less than $100 million.\358\
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    \358\ The estimates in this figure are based on staff analysis 
of data from XBRL filings, Compustat, and Calcbench. The revenue 
data used is from the last fiscal year prior to the annual report in 
calendar year 2018, because the SRC revenue test is based on the 
prior year's revenues. See note 336 above for details on the 
identification of the population of affected issuers.

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[[Page 17205]]

[GRAPHIC] [TIFF OMITTED] TR26MR20.004

BILLING CODE 8011-01-C
    Other than a concentration of issuers with zero or near zero 
revenues,\359\ these affected issuers are fairly evenly distributed 
over different levels of revenue up to $100 million in revenues. The 
additional seven affected issuers with revenues of at least $100 
million but a public float of less than $60 million have revenues 
ranging from $119 million to $2.1 billion, with a mean of about $770 
million in revenues.
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    \359\ Approximately 13 percent of the estimated 520 affected 
issuers with revenues of less than $100 million and approximately 11 
percent of the estimated 290 affected issuers with revenues of less 
than $100 million that would be newly exempt from all ICFR auditor 
attestation requirements (i.e., those that are not EGCs and are not 
banks subject to the FDIC auditor attestation requirement) have zero 
revenues.
---------------------------------------------------------------------------

    The affected issuers are estimated to have median total assets of 
about $185 million, a median number of employees of about 115, and a 
median age of about 12 years.\360\ For those issuers that will be newly 
exempt from all ICFR auditor attestation requirements (i.e., those that 
are not EGCs and are not banks subject to the FDIC auditor attestation 
requirement), the median total assets and median number of employees 
are somewhat lower at about $125 million and 85 employees, and the 
median issuer age is slightly higher at about 19 years.\361\ The 
majority of the affected issuers have negative net income and negative 
net cash flows from operations.\362\
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    \360\ These estimates are based on staff analysis of data from 
Compustat. See note 336 above for details on the identification of 
the population of affected issuers.
    \361\ Id.
    \362\ Id. For the 295 affected issuers that would be newly 
exempt from all ICFR auditor attestation requirements (i.e., those 
that are not EGCs and are not banks subject to the FDIC auditor 
attestation requirement), the median net income is approximately 
negative $6 million and the median net cash flows from operations is 
approximately negative $6 million.
---------------------------------------------------------------------------

    The affected issuers are heavily concentrated, based on the number 
of issuers, in the ``Pharmaceutical Products'' (29.1 percent), 
``Banking'' (22.4 percent),\363\ ``Financial Trading'' (16.0 percent), 
``Medical Equipment'' (4.4 percent), and ``Electronic Equipment'' (3.8 
percent) industries.\364\ If the distribution of eligible issuers does 
not change over time, the amendments could lead to a noticeable 
decrease in the presence of ``Pharmaceutical Products'' and ``Banking'' 
issuers in the pool of accelerated filers.
---------------------------------------------------------------------------

    \363\ For the 295 affected issuers that would be newly exempt 
from all ICFR auditor attestation requirements (i.e., those that are 
not EGCs and are not banks subject to the FDIC auditor attestation 
requirement), the proportion of ``Banking'' issuers drops to 7.8 
percent. By contrast, the proportion in other industries does not 
change by more than a few percentage points.
    \364\ These estimates are based on staff analysis of data 
including SIC codes from XBRL filings and Ives Group Audit 
Analytics, using the Fama-French 49-industry classification system. 
BDCs are manually-classified as members of the ``Financial Trading'' 
industry under this system as SIC codes were unavailable from our 
sources for the vast majority of these issuers. See http://mba.tuck.dartmouth.edu/pages/faculty/ken.french/Data_Library/det_49_ind_port.html. See note 336 above for details on the 
identification of the population of affected issuers.
---------------------------------------------------------------------------

    One commenter noted they sought to understand the industry 
concentration of the affected issuers based on measures such as their 
public float,

[[Page 17206]]

revenues, and total assets.\365\ Based on their public float relative 
to the aggregate public float of the affected issuers, the affected 
issuers are heavily concentrated in the ``Pharmaceutical Products'' 
(33.5 percent), ``Banking'' (20.0 percent), ``Financial Trading'' (17.0 
percent), and ``Medical Equipment'' (5.0 percent) industries.\366\ 
Because revenues and total assets may be less comparable across 
industries of different types, we do not present the fraction of the 
aggregate revenue and assets of the affected issuers represented by 
each industry. As an alternative that we believe may be more 
informative, we present, in Table 10, the estimated proportion of all 
of the accelerated filers in each industry that will be affected by the 
amendments (i.e., become non-accelerated), calculated based on several 
different measures of the size of the affected issuer pool in a given 
industry.\367\ We focus this table on non-EGCs, and present affected 
issuers in the ``Banking'' industry both including and excluding those 
that will remain subject to the FDIC auditor attestation requirement, 
in order to highlight the disproportionate effects by industry in terms 
of the issuers that will newly be exempt from the ICFR auditor 
attestation requirement.
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    \365\ See letter from CFA Inst.
    \366\ These estimates are based on staff analysis of data 
including SIC codes from XBRL filings and Ives Group Audit 
Analytics, using the Fama-French 49-industry classification system. 
See note 364 above for more details. We corrected the public float 
data based on hand-collection from Form 10-K filings for five 
affected issuers whose public float reported in XBRL format was 
1,000 times the public float reported on the cover page of the 
corresponding Form 10-K filing, resulting in values of over $50 
billion in public float reported in XBRL. For the 295 affected 
issuers that would be newly exempt from all ICFR auditor attestation 
requirements (i.e., those that are not EGCs and are not banks 
subject to the FDIC auditor attestation requirement), the 
proportions are ``Pharmaceutical Products'' (27.9 percent), 
``Financial Trading'' (22.5 percent), ``Real Estate'' (7.6 percent), 
``Medical Equipment'' (7.5 percent), and ``Banking'' (5.4 percent).
    \367\ The estimates in Table 10 are based on staff analysis of 
data including data on total assets from Compustat and SIC codes 
from XBRL filings and Ives Group Audit Analytics, using the Fama-
French 49-industry classification system. See note 364 above for 
more details. Both the numerators (related to the affected issuers) 
and denominators (related to accelerated filers) exclude EGCs. We 
corrected the public float data based on hand-collection from Form 
10-K filings for five affected issuers and six unaffected issuers 
whose public float reported in XBRL format was about 1,000 times (in 
one case, about 1,000,000 times) the public float reported on the 
cover page of the corresponding Form 10-K filing, resulting in 
values of over $50 billion in public float reported in XBRL. See 
note 336 above for details on the source of revenue and public float 
data and on the identification of the affected issuers. See note 298 
above for details on the identification of filer type.

    Table 10--Percentage of Accelerated Filers in Each Industry That Will Be Affected Issuers, Excluding EGCs
----------------------------------------------------------------------------------------------------------------
                                                   Percentage of accelerated filers (ex. EGCs) that are affected
                                                                 (ex. EGCs), calculated based on:
                   Industry *                    ---------------------------------------------------------------
                                                     Number of     Total assets                    Public float
                                                    issuers (%)         (%)         Revenue (%)         (%)
----------------------------------------------------------------------------------------------------------------
Pharmaceutical Products.........................            77.9            54.4            36.8            78.7
Banking.........................................            63.5            37.6            33.2            43.1
Banking (ex. issuers subject to FDIC att.                   14.5             5.2            10.9            17.5
 requirement)...................................
Medical Equipment...............................            59.3            28.9            22.4            60.9
Financial Trading...............................            58.5            22.5             5.0            61.6
Electronic Equipment............................            32.7             7.4             4.3            33.1
Other...........................................            16.0             4.0             1.8            11.8
----------------------------------------------------------------------------------------------------------------
* Excluding EGCs, we estimate that there are 74 affected issuers in the ``Pharmaceutical Products'' industry,
  101 in ``Banking'' (23 after excluding issuers that would be subject to the FDIC attestation requirement), 62
  in ``Financial Trading,'' 16 in ``Medical Equipment,'' and 16 in ``Electronic Equipment.'' The table excludes
  two affected issuers for which an industry classification was unavailable.

    Amongst the industries in which the affected issuers are most 
greatly concentrated, issuers in the ``Pharmaceutical Products'' 
industry are the most disproportionately affected based on the number, 
total assets, revenues, and public float of the affected issuers (other 
than EGCs) relative to the representation of this industry among 
accelerated filers (other than EGCs). While a substantial fraction of 
accelerated filers other than EGCs in the ``Banking'' industry are also 
affected issuers, consistent with one commenter's finding that 
``Banking'' is the industry most affected by the amendments,\368\ the 
proportion of this industry that is affected is significantly reduced 
once we exclude banks that would be subject to the FDIC auditor 
attestation requirement and are therefore expected to experience 
limited benefits and costs as a result of the amendments.
---------------------------------------------------------------------------

    \368\ See letter from CFA Inst.
---------------------------------------------------------------------------

2. Potential Benefits of Expanding the Exemption From the ICFR Auditor 
Attestation Requirement for Affected Issuers
    The ICFR auditor attestation requirement has been associated with 
increased audit fees and other compliance costs. Exempting the affected 
issuers from this requirement therefore is likely to have the benefit 
of reducing compliance costs for these issuers. Given the 
disproportionate burden that the fixed component of compliance costs 
imposes on smaller issuers, as well as the likelihood that many of the 
affected issuers face financing constraints, these costs savings may 
enhance capital formation and competition. The discussion below 
explores the anticipated cost savings and their potential implications 
in detail. This discussion is focused on affected issuers that are not 
expected to be subject to the FDIC auditor attestation requirement.
    We begin by summarizing evidence on the indirect costs and net 
costs of the ICFR auditor attestation requirement. We then estimate the 
anticipated effects on audit fees and on other compliance costs of 
expanding the exemption from this requirement for the affected issuers, 
using reported audit fees, survey data, and existing studies. Finally, 
we discuss the implications of the cost savings and other potential 
benefits.
a. Evidence on Possible Indirect Costs of the ICFR Auditor Attestation 
Requirement
    The ICFR auditor attestation requirement may impose costs on 
issuers and investors beyond the direct costs of compliance. For 
example, an increased focus on ICFR as a result of

[[Page 17207]]

the ICFR auditor attestation requirement could have negative effects on 
issuer performance, if it creates a distraction from operational 
matters or reduces investment or risk-taking.\369\ One issuer noted in 
its comments that its managers' attention was diverted away from its 
operating performance in its first year complying with the ICFR auditor 
attestation requirement, and that, without this requirement, its 
managers' time could have been more productively spent focusing on 
opportunities to grow the company.\370\ Broader evidence of the 
indirect costs of the ICFR auditor attestation requirement is 
inconclusive. Studies have documented a decrease in investment and 
risk-taking by U.S. companies compared to companies in other countries 
around the passage of SOX.\371\ However, others have demonstrated that 
these findings are merely the continuation of a trend that began many 
years before the passage of SOX \372\ and that they do not appear to be 
driven by the applicability of the ICFR auditor attestation or SOX 
Section 404(a) management ICFR reporting requirements.\373\ Another 
study associates the SOX Section 404 requirements with a decrease in 
patents and patent citations, but the findings are limited to the early 
years of implementation of these requirements and the study is not able 
to distinguish to what extent the effects are attributable to the SOX 
Section 404(a) management ICFR reporting requirements versus the SOX 
Section 404(b) ICFR auditor attestation requirement.\374\ We are unable 
to quantify the potential indirect cost savings resulting from the 
amendments due to the lack of reliable evidence and data that would 
allow us to quantitatively identify such effects.
---------------------------------------------------------------------------

    \369\ See John Coates & Suraj Srinivasan, SOX after Ten Years: A 
Multidisciplinary Review, 28(3) Acct. Horizons 627 at 643-645 (2014) 
(``Coates and Srinivasan 2014 Study'') (discussing these possible 
effects and summarizing related studies).
    \370\ See letter from Guaranty.
    \371\ See Coates and Srinivasan 2014 Study, note 369 above 
(summarizing these studies).
    \372\ Id.
    \373\ See Ana Albuquerque & Julie Zhu (2018), Has Section 404 of 
the Sarbanes-Oxley Act Discouraged Corporate Risk-Taking? New 
Evidence from a Natural Experiment, Mgmt. Sci. (forthcoming) (using 
the staggered implementation of SOX Section 404 to better identify 
its effects on smaller issuers, with public float of less than $150 
million, and finding no evidence of a decrease in the investment and 
risk-taking activities for issuers that were subject to SOX Section 
404 versus those that were not), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3049232.
    \374\ See Huasheng Gao & Jin Zhang, SOX Section 404 and 
Corporate Innovation,'' J. of Fin. and Quantitative Analysis (2018) 
(forthcoming), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3130588.
---------------------------------------------------------------------------

b. Evidence on Net Costs of the ICFR Auditor Attestation Requirement
    While we are unable to quantify the extent to which the expected 
cost savings exceed any loss of benefits associated with the ICFR 
auditor attestation requirement,\375\ we note that certain studies have 
attempted to estimate such ``net costs'' of the requirement in specific 
contexts.
---------------------------------------------------------------------------

    \375\ While we quantify both anticipated costs and benefits of 
the amendments, there are many costs and benefits that we cannot 
quantify, so we are unable to quantify the net benefit or net cost 
of the amendments. See Section IV.C.3.d. for further discussion of 
this point.
---------------------------------------------------------------------------

i. Studies Involving Avoidance Behavior
    Some studies have provided evidence that non-accelerated filers may 
seek to avoid crossing the $75 million public float threshold and 
becoming accelerated filers.\376\ Related studies have also found that 
issuers near or below this threshold are more likely than comparable 
issuers to take actions that may reduce or avoid an increase in their 
public float, such as disclosing more negative news in the second 
fiscal quarter (when public float is measured), increasing payouts to 
shareholders, reducing investment in property, plant, equipment, 
intangibles and acquisitions, and increasing the number of shares held 
by insiders.\377\ One study uses this avoidance behavior to estimate 
the net costs of compliance with the ICFR auditor attestation 
requirement for issuers close to the $75 million public float 
threshold.\378\ The study concludes that the overall costs, net of any 
benefits, of the ICFR auditor attestation requirement for these issuers 
is roughly $1 million to $2 million per year, but we note that the 
methodology used to translate the avoidance behavior into a dollar cost 
may be unreliable.\379\
---------------------------------------------------------------------------

    \376\ See, e.g., Peter Iliev, The Effect of SOX Section 404: 
Costs, Earnings Quality, and Stock Prices, 45 J. of Fin. 1163 (2010) 
(``Iliev 2010 Study'') (finding that a disproportionate number of 
issuers had a public float of just under $75 million in 2004, when 
ICFR auditor attestations and management ICFR reports were first 
required for accelerated filers, but not in earlier years); Dhammika 
Dharmapala, Estimating the Compliance Costs of Securities 
Regulation: A Bunching Analysis of Sarbanes-Oxley Section 404(b), 
Working Paper (2016), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2885849 (``Dharmapala 2016 study''); and 
McCallen et al. 2019 study, note 308 above.
    \377\ See F. Gao, J.S. Wu & J. Zimmerman, Unintended 
Consequences of Granting Small Firms Exemptions from Securities 
Regulation: Evidence from the Sarbanes[hyphen]Oxley Act, 47(2) J. of 
Acct. Res. 459 (2009) and M. E. Nondorf, Z. Singer, & H. You, A 
Study of Firms Surrounding the Threshold of Sarbanes[hyphen]Oxley 
Section 404 Compliance, 28(1) Advances in Acct. 96 (2012). See also 
F. Gao, To Comply or Not to Comply: Understanding the Discretion in 
Reporting Public Float and SEC Regulations, 33(3) Contemporary Acct. 
Res. 1075 (2016) (presenting evidence that companies that expected 
higher compliance costs may have used discretion in defining 
affiliates in order to report lower float).
    \378\ See Dharmapala 2016 study, note 376 above.
    \379\ Id. This paper estimates a net cost of compliance for 
companies near the threshold of $4 million to $6 million for a few 
years of compliance (i.e., $1 million to $2 million per year). The 
analysis leading to this estimate relies on the relation between 
public float and market capitalization for other companies to 
approximate the stock market value forgone by those that are 
estimated to be manipulating their public float downwards. However, 
we note that the ratio of market capitalization to public float for 
other companies may simply reflect their propensity towards having 
affiliated ownership rather than being a reliable basis with which 
to measure the cost incurred by manipulating public float.
---------------------------------------------------------------------------

    Avoidance of the $75 million public float threshold would be 
consistent with smaller issuers finding the net costs associated with 
the ICFR auditor attestation requirement to be significant, though 
there could be other reasons for avoiding the threshold. For example, 
as one commenter argued, such avoidance may reflect managers who would 
like to avoid the scrutiny of an audit of ICFR because they are 
engaging in opportunistic behavior,\380\ although we are unaware of 
direct evidence supporting this hypothesis. One commenter, representing 
48 accounting and law professors, requested that we confirm whether the 
``bunching'' of companies below the $75 million public float threshold 
remains present in today's markets.\381\ The commenter noted that such 
an analysis could help provide confidence that the costs of the ICFR 
auditor attestation requirement remain as high as previously 
documented.\382\ In response to this comment, our staff conducted 
supplemental analysis, presented in Figure 6.\383\ However, as 
discussed below, the conclusions in this Economic Analysis do not rely 
on this analysis.
---------------------------------------------------------------------------

    \380\ See letter from Prof. Barth et al.
    \381\ See letter from Prof. Honigsberg et al.
    \382\ Id.
    \383\ The estimates in this figure are based on staff analysis 
of data from XBRL filings associated with annual reports filed in 
calendar year 2018. The figure includes all issuers with an annual 
report on Form 10-K, 20-F or 40-F in calendar year 2018 and with 
public float data available in XBRL, excluding banks, ABS issuers, 
and RICs (although we note there were no instances of the latter two 
types of issuers in this sample before these filters were applied). 
Banks are identified as issuers with SIC codes of 6020 (commercial 
banks), 6021 (national commercial banks), 6022 (state commercial 
banks), 6029 (NEC commercial banks), 6035 (savings institutions, 
federally-chartered) or 6036 (savings institutions, not federally-
chartered).

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[[Page 17208]]

[GRAPHIC] [TIFF OMITTED] TR26MR20.005

    Figure 6 presents the distribution of public float across issuers 
other than banks, ABS issuers, and RICs. We exclude ABS issuers and 
RICs because they are unlikely to be sensitive to the public float 
threshold as they would not be subject to the ICFR auditor attestation 
requirement (or able to avail themselves of the disclosure 
accommodations for SRCs) regardless of their public float. We exclude 
banks because they may be subject to the FDIC auditor attestation 
requirement, which, as discussed above, is comparable to the ICFR 
auditor attestation requirement, regardless of their public float. 
While EGCs would not be subject to the ICFR auditor attestation 
requirement regardless of their public float, we nevertheless include 
them in Figure 6 because it is a temporary exemption and such issuers 
may already consider the implications of their public float in advance 
of graduating from this status. However, we obtain similar results when 
we include or exclude any of these categories of issuers.
    The pattern in Figure 6 demonstrates that there may be some 
``bunching'' of public floats below the $75 million threshold in 2018. 
The pattern is similar to that presented in two recent studies that 
find a discontinuity in public float at the $75 million threshold when 
considering data across the 12 or 13 year period ending in 2015.\384\ 
Our findings for 2018 also are consistent with a year-by-year analysis 
in one of these studies that suggests that this behavior does not 
appear to change significantly over the time period studied.\385\
---------------------------------------------------------------------------

    \384\ See McCallen et al. 2019 study, note 308 above, and 
Dharmapala 2016 study, note 376 above.
    \385\ See McCallen et al. 2019 study, note 308 above.
---------------------------------------------------------------------------

    Our findings are less consistent with another analysis of public 
float, which failed to find evidence of ``bunching'' in 2017.\386\ This 
analysis was cited in a submission to the comment file.\387\ When we 
examine the data underlying this analysis,\388\ we find that, although 
we obtain public float data from different sources,\389\ our public 
float values are over 90 percent correlated with those used in tthis 
analysis. We note, however, that the analysis applies sample selection 
filters that exclude, among other issuers, issuers that would become 
newly subject to an ICFR auditor attestation requirement (and, during 
this time period, lose the disclosure accommodations for SRCs) upon 
crossing the $75 million public float threshold. The exclusions result 
in a sample size that is approximately half as large as that in our 
analysis.\390\ For

[[Page 17209]]

example, we understand that the other analysis excludes all financial 
institutions and issuers with a market capitalization of greater than 
$150 million.\391\ This difference, we find, accounts for the bulk of 
the difference in our figures. Thus, our analysis reflects a 
significantly larger and more representative sample of issuers and may 
therefore be more reliable.
---------------------------------------------------------------------------

    \386\ See Commissioner Jackson's Statement. While we provide 
results for 2018 in Figure 6 in order to present the most recent and 
reliable available data, we obtain very similar results when running 
the same analysis for 2017.
    \387\ See letter from Prof. Barth et al., citing an analysis in 
Commissioner Jackson's Statement that finds no evidence of bunching 
in 2017.
    \388\ See ``Public Float Data (2017)'' available at https://www.sec.gov/news/public-statement/jackson-statement-proposed-amendments-accelerated-filer-definition.
    \389\ The data underlying the analysis cited by a commenter is 
generated by using a computer program to extract text from annual 
reports, applying computer algorithms and filters to isolate public 
float numbers, and then manually checking the results. See 
Commissioner Jackson's Statement. The data underlying our analysis 
is based on XBRL filings.
    \390\ The figure in the other analysis reflects 388 issuers, 
compared to 731, or almost twice as many issuers, in our analysis.
    \391\ Financial institutions are issuers with SIC codes between 
6000 and 6999 and include issuers that are not banks. Other filters 
applied in that analysis include requiring that market 
capitalization data be available and that the reported public float 
be at least 10%, but no more than three times, the market 
capitalization.
---------------------------------------------------------------------------

    As discussed above, if issuers seek to avoid crossing the $75 
million public float threshold, such behavior could reflect a high net 
cost of the ICFR auditor attestation requirement but could also reflect 
a self-serving desire to avoid scrutiny. Any such behavior could also 
be influenced by other requirements associated with this public float 
threshold during this time period, such as the loss of scaled 
disclosure accommodations available to SRCs.\392\ Thus, though we have 
considered the studies, evidence, and comments received regarding this 
avoidance behavior, the conclusions in this Economic Analysis do not 
rely on these findings.
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    \392\ The analysis presented in Figure 6 is based on annual 
reports filed in calendar year 2018, which generally pertain to 2017 
fiscal years. The amendments to the SRC definition were effective on 
September 10, 2018. See SRC Adopting Release, note 12 above.
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ii. Studies Based on Comparative Analysis or Market Reactions
    We have also considered studies that have used other methodologies 
to attempt to quantify the net costs or benefits of the ICFR auditor 
attestation requirement. One study attempts to quantify and compare 
certain costs and benefits of exempting non-accelerated filers from the 
ICFR auditor attestation requirement, focusing on those costs and 
benefits that the study deems to be measurable, and finds that the cost 
savings associated with exempting these issuers (an estimated $388 
million in aggregate audit fee savings) have been less than the lost 
benefits (e.g., an aggregate $719 million in lower earnings) in 
aggregate present value terms.\393\ Studies have also used stock market 
reactions to changes in the applicability of the ICFR auditor 
attestation requirement to estimate its net costs or benefits, because 
the stock market valuation should incorporate both expected costs and 
expected benefits from a shareholder's perspective. We focus on studies 
that consider events that allow the effects of the ICFR auditor 
attestation requirement to be isolated from those of the other 
requirements that were imposed by SOX, as many early studies did not 
isolate the effects of the ICFR auditor attestation requirement from 
other changes required by the same legislation, such as the audit 
committee requirements of SOX Section 301 \394\ and the certifications 
required pursuant to SOX Section 302. Regardless, the results of the 
studies we focus on have been mixed, perhaps due in part to changes 
over time in how the ICFR auditor attestation requirement has been 
implemented. For example, a study analyzing the response to 
announcements of initial delays in the application of the requirements 
to some issuers in order to identify the stock market reaction 
associated with the ICFR auditor attestation requirement found that 
this requirement was associated with a net reduction in stock market 
valuation for foreign issuers.\395\ On the other hand, a study of the 
response to the later permanent exemption from the ICFR auditor 
attestation requirement for some issuers found that this requirement 
was associated with a net increase in stock market valuation for 
smaller issuers.\396\ The latter finding is consistent with studies 
that conclude that the requirement is value-enhancing based on a 
negative stock market reaction to issuers excluding acquired operations 
from management's assessment of ICFR and the ICFR auditor attestation, 
though these studies do not determine the extent to which this effect 
is attributable to the ICFR auditor attestation.\397\ Similarly, a 
study of smaller issuers that switched regimes over time found that 
being subject to the ICFR auditor attestation requirement was 
associated with an increase in stock market valuation for these 
issuers.\398\
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    \393\ We note that the estimates in this study rely on a number 
of critical assumptions and estimations. See Weili Ge, Allison 
Koester, & Sarah McVay, Benefits and Costs of Sarbanes-Oxley Section 
404(b) Exemption: Evidence from Small Firms' Internal Control 
Disclosures, 63 J. of Acct. and Econ. 358 (2017) (``Ge et al. 2017 
Study'') (estimating the effect on audit fees by comparing the audit 
fees of non-accelerated filers to those of accelerated filers with 
market capitalization of $300 million or less; and estimating the 
effect on earnings by estimating the percentage of non-accelerated 
filers that may newly disclose ineffective ICFR upon entering an 
ICFR auditor attestation requirement, based on changes in the rate 
of disclosure of ineffective ICFR by issuers that transition into 
accelerated filer status, and applying to this estimate a further 
estimate of the difference in return on assets that could be 
associated with such disclosure and any related remediation, based 
on the results of a multivariate regression relating issuers' change 
in return on assets to a number of factors, including whether or not 
they disclosed and remediated ineffective ICFR). This study also 
estimates a delay over three years in the timing of a market value 
decline (that would otherwise have occurred at the beginning of this 
three year period) of $935 million associated with the exemption 
from the ICFR auditor attestation requirement.
    \394\ 15 U.S.C. 78j-1.
    \395\ See Iliev 2010 Study, note 376 above. This study also 
finds a net reduction in value for small domestic issuers from the 
SOX Section 404 requirements, but is not able, for these issuers, to 
isolate the effect attributable to the ICFR auditor attestation 
requirement versus the SOX Section 404(a) management ICFR reporting 
requirement.
    \396\ See Kareen Brown, Fayez Elayan, Jingyu Li, Emad Mohammad, 
Parunchana Pacharn, & Zhefeng Frank Liu, To Exempt or not to Exempt 
Non-Accelerated Filers from Compliance with the Auditor Attestation 
Requirement of Section 404(b) of the Sarbanes-Oxley Act, 28(2) Res. 
in Acct. Reg. 86 (2016) (``Brown et al. 2016 Study''). See also 
Christina Leuz & Peter Wysocki, The Economics of Disclosure and 
Financial Reporting Regulation: Evidence and Suggestions for Future 
Research, 54(2) J. of Acct. Res. 525 at 566-569 (2016) (``Leuz and 
Wysocki 2016 Study'') (summarizing mixed evidence from earlier event 
studies related to SOX that were unable to differentiate the effects 
of the ICFR auditor attestation requirement from other requirements 
imposed by SOX).
    \397\ See, e.g., Robert Carnes, Dane Christensen, & Phillip 
Lamoreaux, Investor Demand for Internal Control Audits of Large U.S. 
Companies: Evidence from a Regulatory Exemption for M&A 
Transactions, 94(1) The Acct. Rev. 71 (2019) (``Carnes et al. 2019 
Study'').
    \398\ See Hongmei Jia, Hong Xie, & David Ziebart, An Analysis of 
the Costs and Benefits of Auditor Attestation of Internal Control 
over Financial Reporting, Working Paper (2014) (``Jia et al. 2014 
study''), available at https://www.lsu.edu/business/accounting/files/researchseries/20141027JXZ.PDF.
---------------------------------------------------------------------------

iii. Other Evidence on Net Costs
    The rate of exempt issuers voluntarily obtaining an ICFR auditor 
attestation has generally been low.\399\ Consistent with this finding, 
a commenter indicated that small biotechnology companies are rarely 
asked by investors to voluntarily obtain an ICFR auditor 
attestation.\400\ This may indicate that exempt issuers, when 
considering their own net cost or benefit of compliance, including how 
investors would react to their decisions, have typically deemed it to 
be more beneficial to expend these resources on other uses. However, as 
discussed in Section IV.C.3.d. below, it is probably not the case that 
issuers would voluntarily obtain an ICFR auditor attestation in every 
case in which, from the market or an investor's perspective, the total 
benefits of doing so would exceed the total costs.
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    \399\ See note 297 above.
    \400\ See letter from BIO. See also letter from Ardelyx 
Presentation, referencing similar statements in the BIO Study, note 
69 above, (which states that ``the low rate of voluntary compliance 
by [biotechnology EGCs] suggests that investors do not demand or 
value costly Section 404(b) auditor attestations'').
---------------------------------------------------------------------------

    When considering the net tradeoff between costs and benefits for 
accelerated filers with low revenues in particular, we also re-examined 
data

[[Page 17210]]

from the SEC-sponsored survey of financial executives conducted during 
December 2008 and January 2009 (``2008-09 Survey'').\401\ While the 
results of this survey might not be directly applicable a decade later, 
particularly given the changes over time discussed in Section IV.B.1. 
above, they provide some suggestive evidence that low-revenue issuers 
are more likely than other accelerated filers to believe that the costs 
of complying with SOX Section 404 substantially outweigh the benefits. 
In particular, when asked about the net costs or benefits of complying 
with SOX Section 404, 30 percent of respondents at an accelerated filer 
with revenues below $100 million indicated that the costs far 
outweighed the benefits, in contrast to 14 percent of respondents at an 
accelerated filer with greater revenues.\402\ However, as noted by a 
commenter, these survey findings represent the views of issuers and may 
not be reflective of the views of investors.\403\
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    \401\ See 2009 SEC Staff Study, note 304 above, and Cindy 
Alexander, Scott Bauguess, Gennaro Bernile, Alex Lee, & Jennifer 
Marietta-Westberg, The Economic Effects of SOX Section 404 
Compliance: A Corporate Insider Perspective, 56 J. of Acct and Econ. 
267 (2013) (``Alexander et al. 2013 Study'').
    \402\ These estimates are based on staff analysis of data from 
the 2008-09 Survey. The analysis considers responses pertaining to 
the most recent year for which a given respondent provided a 
response. We note that the rate of responses to the question about 
net benefits was lower than for other questions. See the 2009 SEC 
Staff Study, note 304 above, and Alexander et al. 2013 Study, note 
401 above, for details on the survey and analysis methodology.
    \403\ See letter from Crowe.
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c. Potential Reduction in Audit Fees
    While issuers disclose their total audit fees, they are not 
required to disclose the portion of these fees that is attributable to 
the ICFR auditor attestation requirement. Studies of the initial 
implementation of the ICFR auditor attestation requirement found that 
it was associated with a roughly 100 percent increase in audit fees for 
small accelerated filers.\404\ However, these early estimates likely 
include some initial start-up costs, which were found to diminish over 
time.\405\ Further, these estimates do not incorporate the effect of 
later developments such as the adoption of AS 2201, which was expected 
to reduce compliance costs for smaller issuers, and the adoption of the 
new risk assessment auditing standards, which may reduce the 
incremental cost of an integrated audit over a financial-statement only 
audit.
---------------------------------------------------------------------------

    \404\ See, e.g., William Kinney & Marcy Shepardson, Do Control 
Effectiveness Disclosures Require SOX 404(b) Internal Control 
Audits? A Natural Experiment with Small U.S. Public Companies, 49(2) 
J. of Acct. Res. 413 (2011) (``Kinney and Shepardson 2011 Study'') 
(considering those accelerated filers that have newly crossed the 
$75 million public float threshold in a given year); Iliev 2010 
Study, note 376 above (considering those accelerated filers with 
between $75 million and $100 million in public float); Michael 
Ettredge, Matthew Sherwood, & Lili Sun, Effects of SOX 404(b) 
Implementation on Audit Fees by SEC Filer Size Category, 37 (1) J. 
of Acct. and Pub. Pol'y 21 (2017) (considering accelerated filers as 
a category, as opposed to large accelerated filers, but also finding 
a contemporaneous 42.7 percent increase in audit fees for non-
accelerated filers even though were not subject to the ICFR auditor 
attestation requirement); and Susan Elridge & Burch Kealey, SOX 
Costs: Auditor Attestation under Section 404, Working Paper (2005), 
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=743285 (considering accelerated filers in the 
lowest quintile of total assets).
    \405\ See, e.g., Alexander et al. 2013 Study, note 401 above.
---------------------------------------------------------------------------

    In the Proposing Release, we presented an analysis of audit fees 
from 2014-2017 for low-revenue issuers that are subject to the ICFR 
auditor attestation requirement compared to low-revenue issuers not 
subject to this requirement.\406\ In particular, we compared audit fees 
in these recent years for accelerated filers that are subject to the 
ICFR auditor attestation requirement and have revenues of less than 
$100 million, relative to the audit fees of issuers in our comparison 
populations (non-accelerated filers, other than EGCs, and EGCs, neither 
of which is required to comply with the ICFR auditor attestation 
requirement) \407\ that also have revenues of less than $100 million. 
Based on this analysis, and with consideration for the difference in 
size of the affected issuers versus the comparison sample, we derived a 
percentage estimate of 25 percent of total audit fees, and a dollar 
estimate of about $110,000 per year, that would be saved by issuers 
newly exempt from the ICFR auditor attestation requirement.\408\ As 
discussed in more detail in the Proposing Release, the percentage 
estimate is generally consistent with the estimates, ranging from 
approximately five to 35 percent of total audit fees, from a variety of 
other analyses using data from after the 2007 change in the ICFR 
auditing standard.
---------------------------------------------------------------------------

    \406\ See Section III.C.3.b. of the Proposing Release, note 4 
above.
    \407\ The Proposing Release, note 4 above, provides more 
information on why we rely on these comparison populations, how they 
compare to the affected issuers, and how differences between the 
comparison populations and the affected issuers could affect our 
inference. See Section III.C.2. of the Proposing Release, note 4 
above.
    \408\ See Section III.C.3.b. of the Proposing Release, note 4 
above.
---------------------------------------------------------------------------

    Several commenters indicated that the expected cost savings are 
difficult to accurately quantify.\409\ We acknowledge that, as 
discussed in more detail in the Proposing Release, our estimate is 
subject to significant uncertainty.\410\ However, these commenters did 
not provide alternative methodologies or data for obtaining an estimate 
of the average savings. One recent study focusing on low public float 
issuers separately considered the subset of issuers with less than $100 
million in revenues in their sample and estimated that an exemption 
from the ICFR auditor attestation requirement would result in an audit 
fee savings of $135,000 per year for these issuers.\411\ While this 
analysis was focused on lower float issuers, it is generally supportive 
of the order of magnitude of our estimate. One commenter questioned 
whether our estimate considers the incremental costs associated with an 
audit approach that does not have the benefit of a related audit of 
ICFR.\412\ We note that our analysis is intended to capture this 
effect, as the issuers in the comparison samples which we use to derive 
our estimate generally require this type of an audit approach because 
they are not subject to the ICFR auditor attestation requirement.
---------------------------------------------------------------------------

    \409\ See, e.g., letters from EY, Grant Thornton, and RSM.
    \410\ See Section III.C.3.b. of the Proposing Release, note 4 
above.
    \411\ See McCallen et al. 2019 study, note 308 above.
    \412\ See letter from BDO.
---------------------------------------------------------------------------

    We therefore maintain, without change, our estimate of $110,000 in 
average audit fee savings per year per affected issuer that would be 
newly exempt from the ICFR auditor attestation requirement. As noted in 
the Proposing Release, the audit fee savings are expected to vary 
across the affected issuers, with some experiencing smaller savings and 
some experiencing much larger savings depending on their individual 
circumstances. In line with this expectation, several commenters 
insisted that any reductions in audit fees resulting from the 
amendments would depend on facts and circumstances and vary widely 
among issuers.\413\ Consistent with these costs savings being highly 
varied, a number of commenters to the Proposing Release provided 
estimates of costs that specific issuers had incurred or expected to 
save ranging from $40,000 per year to costs of over $2 million dollars, 
though most of these estimates include costs other than audit fees 
(which are discussed below), some include one-time start-up costs as 
well as ongoing annual costs, and the largest estimate includes costs 
attributable to SOX Section 404(a) and

[[Page 17211]]

other SOX requirements.\414\ Similarly, a few of the commenters to the 
SRC Proposing Release cited costs of $400,000 to over $1 million 
associated with the ICFR auditor attestation requirement (though it is 
possible that these estimates also include costs other than audit 
fees).\415\
---------------------------------------------------------------------------

    \413\ See, e.g., letters from EY, Grant Thornton, and PWC.
    \414\ See letters from Cerecor (estimating a total of $1 million 
in expected savings for 2020 associated with an exemption from the 
ICFR auditor attestation requirement), Concert (estimating expected 
audit fees associated with the ICFR auditor attestation requirement 
to represent approximately 45 percent of its total audit fees), 
Guaranty (estimating future annual costs of $40,000 in personnel and 
external audit costs associated with ongoing compliance with the 
ICFR auditor attestation requirement, as well as a higher estimate 
of costs expended for their first year of compliance in 2018 of 
$167,745 in audit fees as well as $72,000 and 2,340 labor hours 
expended across the issuer's accounting, information technology and 
risk management offices), Pieris (estimating that their first year 
of compliance with the ICFR auditor attestation requirement would be 
associated with a total of $1.5 million in costs), Syros (estimating 
that its expected additional costs for compliance with the ICFR 
auditor attestation requirement would range from $250,000 to 
$400,000 per year, including incremental external auditor fees, 
consultant fees, and an increased burden on employee resources), and 
Terra Tech (estimating over $2 million in costs expended in 2018 for 
meeting all of its SOX compliance requirements, including but not 
limited to the ICFR auditor attestation requirement, representing 
costs to build a new information technology infrastructure, to hire 
new staff and consultants, and to pay auditing fees).
    \415\ See note 208 of the Proposing Release, note 4 above.
---------------------------------------------------------------------------

    One commenter noted that the requirement to implement scaled, risk-
based audits of ICFR should already result in an appropriately reduced 
cost of the ICFR auditor attestation requirement for many affected 
issuers.\416\ We note that our quantitative methodology is intended to 
reflect the current cost of the ICFR auditor attestation requirement, 
including the benefits of scaling. Also, while the adoption of AS 2201 
in 2007, which facilitated the scaling of audits of ICFR, was found to 
have initially led to lower audit fees, there is evidence that these 
costs began to increase again around the year 2010.\417\
---------------------------------------------------------------------------

    \416\ See letter from CFA.
    \417\ See Section IV.B.1. above.
---------------------------------------------------------------------------

    Finally, we note that some issuers may voluntarily choose to 
continue to make these expenditures if they deem the benefits of the 
ICFR auditor attestation to exceed the cost, and that the extent of 
savings may be affected if auditors continue to test the operating 
effectiveness of some controls as part of their financial statement 
audit. In such cases, the audit fee savings may be reduced, but we 
would expect the potential costs of expanding the exemption from the 
ICFR auditor attestation requirement to be correspondingly lower as 
well.
d. Additional Potential Compliance Cost Savings
    The ICFR auditor attestation requirement is associated with other 
compliance costs beyond audit fees, including outside vendor costs and 
internal labor costs.\418\ However, these costs are difficult to 
measure because they are not required to be reported. Practitioner 
studies based on surveys of issuers often report non-audit costs of the 
internal control assessment and reporting requirements of SOX Section 
404 in particular or of SOX in general, but the costs attributable to 
the ICFR auditor attestation requirement versus the SOX Section 404(a) 
management ICFR reporting requirements or other requirements are 
generally not broken out separately.\419\
---------------------------------------------------------------------------

    \418\ See, e.g., Leuz and Wysocki 2016 Study, note 396 above.
    \419\ See, e.g., Protiviti 2018 Report, note 317 above (finding, 
for example, total internal costs associated with all aspects of SOX 
compliance to be $282,900 for 2018 for respondents with less than 
$100 million in revenues) and SOX & Internal Controls Professionals 
Group, Moss Adams LLP, and Workiva (2017), ``2017 State of the SOX/
Internal Controls Market Survey'' (``2017 SICPG Survey Report''), 
available at www.mossadams.com/landingpages/2017-sox-and-internal-controls-market-survey.
---------------------------------------------------------------------------

    The Proposing Release presented an analysis of data from the 2008-
09 Survey on the non-audit costs of SOX Section 404 in general, such as 
outside vendor costs, labor, and non-labor costs (such as software, 
hardware and travel costs), as well as the percentage of the outside 
vendor costs and labor hours that were attributable to the ICFR auditor 
attestation requirement. Based on this analysis, we estimated that the 
average non-audit costs attributable to the ICFR auditor attestation 
requirement at the time of the survey were approximately $125,000 per 
year.\420\ Adjusting this historical cost downward slightly to account 
for the fact that some of these expenditures may now be required even 
in the case of a financial statement only audit (due to the risk 
assessment auditing standards issued subsequent to this survey), we 
estimated that the average non-audit costs attributable to the ICFR 
auditor attestation requirement are currently approximately $100,000 
per year.\421\ As noted in the Proposing Release, this estimate is 
subject to uncertainty because it is unclear exactly how the current 
costs may differ from the survey responses a decade ago, and the costs 
may be different for low-revenue issuers.
---------------------------------------------------------------------------

    \420\ See Section III.C.3.c. of the Proposing Release, note 4 
above.
    \421\ Id.
---------------------------------------------------------------------------

    Commenters did not provide alternative methodologies for obtaining 
an estimate of the average non audit-fee savings. One recent study 
focusing on low public float issuers considered the potential effect of 
the ICFR auditor attestation requirement on selling, general and 
administrative (``SG&A'') expenses other than audit fees, and concluded 
that there was an association with an increase in these internal costs, 
but was unable to reliably estimate the magnitude of this effect.\422\ 
We therefore maintain, without change, our estimate of $100,000 in 
average non-audit compliance cost savings per year per affected issuer 
that would be newly exempt from the ICFR auditor attestation 
requirement.
---------------------------------------------------------------------------

    \422\ See McCallen et al. 2019 study, note 308 above.
---------------------------------------------------------------------------

    As in the case of audit fees, some of the affected issuers are 
expected to experience lower cost savings while others would experience 
greater savings, depending on their individual circumstances. For 
example, we noted in the Proposing Release that some issuers had 
reported potential cost savings other than audit fees ranging from 
about $110,000 to about $350,000.\423\ While commenters to the 
Proposing Release generally did not separately break out these non-
audit costs, they reported total costs including audit fees but also 
internal labor and consultant costs ranging from $40,000 to over $2 
million, though, as noted above, some include one-time start-up costs 
as well as ongoing annual costs, and the largest estimate includes 
costs attributable to SOX Section 404(a) and other SOX 
requirements.\424\
---------------------------------------------------------------------------

    \423\ See note 211 of the Proposing Release, note 4 above.
    \424\ See letters from Cerecor, Guaranty, Pieris, Syros, and 
Terra Tech, as discussed in more detail in above note 414. See also 
Ardelyx Presentation, citing the BIO Study, note 69 above.
---------------------------------------------------------------------------

e. Implications of the Cost Savings
    While we estimate the average compliance cost associated with the 
ICFR auditor attestation requirement for the affected issuers, it is 
more difficult to discern whether incurring the costs of this 
requirement represents the most effective use of funds for these 
issuers. As discussed in Section IV.C.3.c. below, issuers for whom the 
requirement is eliminated may determine that it is worthwhile to use 
these funds to voluntarily undergo an audit of ICFR.\425\ 
Alternatively, some of these issuers could directly invest the 
compliance cost savings in improving their

[[Page 17212]]

operations and prospects for growth, or in their control systems.
---------------------------------------------------------------------------

    \425\ See letter from BIO (supporting allowing ``issuers and 
their investors the flexibility to determine for themselves whether 
Section 404(b) is relevant to their business'').
---------------------------------------------------------------------------

    In total, we estimate an average cost savings of $210,000 per 
issuer per year, with some of the affected issuers experiencing lesser 
or greater savings.\426\ While a few commenters noted that ICFR auditor 
attestations have become less expensive over time \427\ or that they 
should already be less expensive for the affected issuers due to the 
ability to scale the audit of ICFR,\428\ we note that our analysis, 
using only recent years of data and low-revenue issuers, is intended to 
capture any such effects.
---------------------------------------------------------------------------

    \426\ As noted above, this estimate is not intended to apply to 
affected issuers that would not otherwise be subject to the ICFR 
auditor attestation requirement (i.e., EGCs) or that would remain 
subject to the FDIC auditor attestation requirement (i.e., banks 
with assets of over $1 billion).
    \427\ See, e.g., letters from CFA Inst. and Deloitte.
    \428\ See letter from CFA.
---------------------------------------------------------------------------

    Several commenters argued that these cost savings are economically 
small.\429\ In particular, they estimated that the savings represent 
0.5 percent of the average affected issuer's revenue and 0.1 percent of 
its market value.\430\ Similarly, many commenters asserted that the 
proposed amendments would not enhance capital formation--and some 
indicated they could even reduce capital formation.\431\ Others noted 
that, in general, the costs of the ICFR auditor attestation requirement 
are substantial,\432\ and that by eliminating the requirement for 
certain issuers, the proposed amendments would enhance capital 
formation or allow those issuers to preserve capital.\433\ We continue 
to believe that the average expected savings is likely, in many cases, 
to represent a meaningful cost savings for issuers with less than $100 
million in revenue and may thus have beneficial economic effects on 
competition and capital formation.
---------------------------------------------------------------------------

    \429\ See, e.g., letters from CFA, CFA Inst., CII, and Prof. 
Barth et al.
    \430\ We obtain similar estimates. Specifically, we estimate 
that the annual savings represents of 0.7 percent of the median 
revenue and 0.1 percent of the median market capitalization of the 
affected issuers that would be newly exempt from all ICFR auditor 
attestation requirements. We note, however, that 12 percent of these 
issuers have zero revenues, and that the savings are estimated for a 
single year while market capitalization incorporates expectations 
regarding all future years of performance.
    \431\ See, e.g., letters from Better Markets, CII, CFA, and 
Prof. Ge et al. See also CFA Inst. (stating that the Proposing 
Release, note 4 above, does not demonstrate that eliminating the 
ICFR auditor attestation requirement would enhance capital 
formation).
    \432\ See, e.g., letters from BIO, Broadmark, Carver, Guaranty, 
ICBA, MSB, SSB, and Syros.
    \433\ See, e.g., letters from Andersen, CLSA, Concert, ICBA, and 
NASBA.
---------------------------------------------------------------------------

    In particular, while the average annual cost savings may represent 
a small percentage of the average affected issuers' revenues and market 
capitalizations, it is significant relative to the income and cash 
flows of these issuers. As noted in the Proposing Release, low-revenue 
issuers are likely to face financing constraints because they do not 
have access to internally-generated capital.\434\ A majority of the 
affected issuers that will be newly exempt from the ICFR auditor 
attestation requirement, and that will not be subject to the FDIC 
auditor attestation requirement, have negative net income and negative 
net cash flows from operations.\435\ In the absence of significant 
income generation, the average savings of $210,000 per year may be 
likely to be put to productive use,\436\ such as towards capital 
investments, which would enhance capital formation. A number of issuers 
commented that they anticipated that the savings would allow for 
increased investment in their core business.\437\ Also, while some 
issuers may experience lesser savings, some commented that they expect 
to experience substantially greater savings,\438\ so the cost savings 
are likely to be significant for some, even if not all, of the affected 
issuers.
---------------------------------------------------------------------------

    \434\ For example, the Proposing Release, note 4 above, cited 
one commenter that indicated that ``pre-revenue small businesses 
utilize only investment dollars to fund their work'' and that any 
cost savings thus ``could lead to funding for a new life-saving 
medicine.'' See note 213 of the Proposing Release, note 4 above.
    \435\ See note 362 above.
    \436\ For example, in a survey of issuers in the biotech 
industry, among 11 biotech EGCs that responded to a question 
regarding how an extension of the exemption from the ICFR auditor 
attestation requirement would affect them given the costs associated 
with the requirement, eight out of the 11 issuers indicated that 
they expected a positive impact on investments in research and 
development and six out of the 11 issuers indicated that they 
expected a positive impact on hiring employees. See BIO Study, note 
69 above.
    \437\ See, e.g., letters from Cerecor, Concert, Guaranty, Pieris 
and Syros.
    \438\ See, e.g., letters from Cerecor, Corvus, and Terratech, 
estimating savings of $1 to $2 million.
---------------------------------------------------------------------------

    Further, several commenters cited fixed costs of compliance that do 
not scale with size.\439\ Because of the fixed costs component of 
compliance costs, smaller issuers generally bear proportionately higher 
compliance costs than larger issuers.\440\ To illustrate this 
disparity, we estimated in the Proposing Release that total audit fees 
represent about 22 percent of revenues on average for accelerated 
filers with less than $100 million in revenues, versus 0.5 percent of 
revenue for those above $100 million in revenues.\441\ Reducing the 
affected issuers' costs would reduce their overhead expenses and may 
enhance their ability to compete with larger issuers.
---------------------------------------------------------------------------

    \439\ See letters from ASA, Broadmark, Chamber, and Guaranty.
    \440\ While it is difficult to identify the specific source of 
the fixed component of compliance costs, there is empirical evidence 
of such fixed costs based on differences in the ratio of such costs 
to measures of issuer size across issuer size categories. For 
example, the ratio of the costs for accelerated filers of complying 
with Section 404 to the book value of the issuer's assets decreases 
with issuer size. See, e.g., Figure 1 of Alexander et al. 2013 
Study, note 401 above. There is evidence of some such fixed costs 
persisting even after the 2007 change in the ICFR auditing standard 
facilitating the scaling of an audit of ICFR, as demonstrated by the 
results in the cited figure for issuers that had been complying with 
Section 404(b) for five years (as observations in the figure 
pertaining to lesser years of experience may include costs 
experienced by some issuers in years prior to the 2007 changes).
    \441\ See Section III.C.2.d. of the Proposing Release, note 4 
above.
---------------------------------------------------------------------------

    The alleviation of these costs could be a positive factor in the 
decision of additional companies to enter public markets.\442\ That is, 
if future compliance costs associated with ICFR auditor attestations 
weigh against these companies becoming publicly traded, reducing these 
expected future costs may enhance capital formation in the public 
markets and the efficient allocation of capital at the market level. As 
noted above, the expected compliance cost savings are likely to vary 
across issuers. The amendments may be most likely to influence the 
decision to enter the public markets for companies that anticipate 
particularly high costs to obtain an ICFR auditor attestation and that 
expect low levels of revenue to persist for many years into the future.
---------------------------------------------------------------------------

    \442\ See, e.g., letter from ICBA.
---------------------------------------------------------------------------

    Some commenters suggested that the amendments would encourage 
companies to enter the public markets.\443\ On the other hand, other 
commenters maintained that the ICFR auditor attestation requirement 
does not prevent companies from entering the public markets.\444\
---------------------------------------------------------------------------

    \443\ See, e.g., letters from AdvaMed, AdvaMed et al., 
Broadmark, Cerecor, and ICBA.
    \444\ See, e.g., letters from CFA, CFA Inst., CII, and Crowe.
---------------------------------------------------------------------------

    Research investigating the link between SOX and companies exiting 
or choosing not to enter public markets has been inconclusive.\445\ We 
agree with commenters who stated that a number of other factors have 
been associated

[[Page 17213]]

with the decline in listings.\446\ Further, newly public issuers can 
already avail themselves of an exemption from the ICFR auditor 
attestation requirement for at least one and generally up to five years 
after their IPO.\447\ While the amendments could be a positive factor 
in the decision of additional companies to enter public markets, it may 
not be the decisive factor, and the direct impact of the amendments on 
the number of publicly traded companies may be limited to the extent 
that companies may be more focused on other factors associated with the 
decision to go public.
---------------------------------------------------------------------------

    \445\ There is some evidence of a decreased rate of IPOs and an 
increased rate of going private transactions and deregistrations in 
the United States after SOX. However, it is unclear to what extent 
these changes can be attributed to SOX (or to the auditor 
attestation requirement in particular) versus other factors, and to 
what extent these changes are a cause for concern. See e.g., Coates 
and Srinivasan 2014 Study, note 369 above, at 636-640 (summarizing a 
number of studies in this area).
    \446\ See, e.g., letters from CFA, CFA Inst., CII, and Crowe. 
Other factors commenters cited include the expansion of exemptions 
to registration that increase companies' ability to raise funds 
privately, see, e.g., letters from CFA, CII, and Crowe; corporate 
consolidations, see, e.g., letters from CFA and CII; market 
conditions, see letter from CFA; and the general regulatory 
environment, see letter from Crowe.
    \447\ See note 11 above regarding the exemption of EGCs from the 
auditor attestation requirement.
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3. Potential Costs of Expanding the Exemption From the ICFR Auditor 
Attestation Requirement for Affected Issuers
    Exempting the affected issuers from the ICFR auditor attestation 
requirement may result, over time, in management at this category of 
issuers being less likely to maintain effective ICFR, which in turn may 
result in less reliable financial statements, on average, for these 
issuers. The discussion below explores this potential effect and its 
implications in detail. We also consider two mitigating factors that 
could be associated with the affected issuers on average, though we 
acknowledge that they may not apply equally to all of the affected 
issuers. First, low-revenue issuers may, on average, be less 
susceptible to the risk of certain kinds of misstatements, such as 
errors associated with revenue recognition.\448\ Second, in many cases, 
the market value of such issuers may be driven to a greater degree by 
their future prospects than by the current period's financial 
statements, which may affect how, on average, investors use these 
issuers' financial statements. This discussion is focused on affected 
issuers that will be newly exempt from the ICFR auditor attestation 
requirement and will not be subject to the FDIC auditor attestation 
requirement.
---------------------------------------------------------------------------

    \448\ See BIO Study, note 69 above (finding that biotechnology 
EGCs have lower restatement frequencies than other issuers, after 
controlling for other factors, and attributing this to their 
``absence of product revenue'' based on findings that revenue 
recognition is one of the most frequent drivers of financial 
restatements).
---------------------------------------------------------------------------

    Exempting the affected issuers from the ICFR auditor attestation 
requirement could also increase the risk that material weaknesses in 
ICFR may not be detected and disclosed, and thereby reduce the 
information available to investors for gauging the reliability of these 
issuers' financial statements. In this regard, we also discuss below 
the potential effects related to the identification and disclosure of 
material weaknesses in ICFR at the affected issuers. However, given the 
size of the estimated effect as well as recent findings discussed in 
Section IV.C.3.a. below on how ICFR auditor attestations may provide 
limited information about the risk of future restatements,\449\ we 
believe that any such effect would not significantly affect investors' 
overall ability to make informed investment decisions.
---------------------------------------------------------------------------

    \449\ See notes 453 through 459 below and accompanying text.
---------------------------------------------------------------------------

a. Broad Considerations and Evidence Regarding the Effects of ICFR 
Auditor Attestations on Financial Reporting
    This section summarizes a number of broad economic considerations 
related to the possible effects of an ICFR auditor attestation 
requirement on financial reporting in order to provide context for the 
more detailed analysis of the costs of exempting the affected parties 
from this requirement that follows. As discussed below, the anticipated 
effects of changes to the population of issuers subject to the ICFR 
auditor attestation requirement will depend on the characteristics of 
the specific group of issuers that will be affected. In this regard we 
note that prior research has not focused on the effects of the ICFR 
auditor attestation requirement on low-revenue issuers in particular. 
As discussed in Section IV.B.1., there also have been significant 
changes over time in the implementation of the ICFR auditor attestation 
requirement, the standards applying to a financial statement audit even 
in the absence of an audit of ICFR, and the execution of audits of 
financial statements and of ICFR, which may have had the effect of 
reducing both the incremental costs and incremental benefits of an ICFR 
auditor attestation since the periods studied in much of the existing 
research. We therefore acknowledge that, while we believe that 
consideration of the past research is an important part of our 
analysis, these factors limit our ability to rely on the findings of 
past research to predict how the amendments would affect the particular 
class of issuers implicated by this rulemaking.
    ICFR auditor attestations can have two primary types of benefits. 
First, the ICFR auditor attestation reports can provide incremental 
information to investors about the reliability of the financial 
statements. Second, the reliability of the financial statements can be 
enhanced. That is, the expectation of, or process involved in, the ICFR 
auditor attestation could lead issuers to maintain better controls, 
which could lead to more reliable financial reporting. Importantly for 
our evaluation of these possible benefits, however, we do not directly 
observe the effectiveness of ICFR and the reliability of financial 
statements, but only the associated disclosures by issuers. For 
example, while restatements may indicate that controls have failed, 
such restatements are often predicated on the underlying misstatements 
being detected. Given such limitations with the available data, the 
analysis in existing studies and in this release is necessarily less 
than definitive.
    Regarding the first possible benefit of ICFR auditor attestations, 
academic research provides some evidence that ICFR auditor attestation 
reports contain information about the reliability of financial 
statements, but also demonstrates that the incremental information 
provided by these reports may be limited. The 2011 SEC Staff Study 
summarizes evidence that ICFR auditor attestations generally resulted 
in the identification and disclosure of material weaknesses that were 
not previously identified or whose severity was misclassified when 
identified by management in its assessment of ICFR, and that investor 
risk assessments and investment decisions were associated with the 
findings in auditor attestation reports.\450\ As noted by a 
commenter,\451\ various survey results are also supportive of these 
reports being informative to investors.\452\
---------------------------------------------------------------------------

    \450\ See 2011 SEC Staff Study, note 198 above, at 97-99 and 
102-104. See also Coates and Srinivasan 2014 Study, note 369 above.
    \451\ See letter from CII.
    \452\ See Lawrence Brown, Andrew Call, Michael Clement, and 
Nathan Sharp, The Activities of Buy-Side Analysts and the 
Determinants of their Stock Recommendations, 62 J. of Acct. and 
Econ. 139 (2016) (finding, in a survey of buy-side analysts, that 60 
percent responded that material weaknesses in ICFR are definitely a 
red flag of management potentially misrepresenting financial 
results, and that the existence of a material weakness in ICFR was 
the most cited red flag for misrepresentation followed by weak 
corporate governance; however, this survey did not differentiate 
between firms subject or not subject to the ICFR auditor attestation 
requirement).
---------------------------------------------------------------------------

    However, more recent studies have found that auditor identification 
of material weaknesses in ICFR tends to be concurrent with the 
disclosure of restatements, rather than providing advance warning of 
the potential for

[[Page 17214]]

restatements.\453\ While these findings do not imply that ICFR auditor 
attestation reports fail to provide any useful information about the 
risk of future restatements,\454\ they demonstrate that this 
information may be limited. Further, researchers have been able to 
predict the identification by auditors of material weaknesses in ICFR 
beyond those identified by management, to some extent, by using 
otherwise available information about issuers beyond current 
restatements, such as their institutional ownership, aggregate losses, 
past restatements, and late filings.\455\ One commenter notes that this 
predictability does not imply that there is limited incremental 
information provided by ICFR auditor attestation reports, as their 
analysis suggests that investors are not able to fully discern 
misreporting by issuers about their ICFR.\456\ Still, we believe that 
the evidence suggests that markets at least partially, though perhaps 
not fully, incorporate this information even in the absence of an ICFR 
auditor attestation.\457\ Limitations to the incremental information 
provided by ICFR auditor attestation reports about the risk of future 
restatements may result from disincentives, such as the increased risk 
of litigation and greater likelihood of management and auditor turnover 
that have been associated with earlier material weakness disclosures, 
for issuers and their auditors to disclose material weaknesses in the 
absence of restatements.\458\ It may also result from issues with the 
quality of the audit of ICFR. In this regard, researchers have found 
that PCAOB scrutiny of these audits has been associated with a slightly 
higher rate of identification of material weaknesses in ICFR prior to a 
later restatement.\459\
---------------------------------------------------------------------------

    \453\ See, e.g., Sarah Rice & David Weber, How Effective is 
Internal Control Reporting under SOX 404? Determinants of the (Non-
)Disclosure of Existing Material Weaknesses, 50(3) J. of Acct. Res. 
811 (2012); William Kinney, Roger Martin, & Marcy Shepardson, 
Reflections on a Decade of SOX 404(b) Audit Production and 
Alternatives, 27(4) Acct. Horizons 799 (2013); and Daniel Aobdia, 
Preeti Choudhary, & Gil Sadka, Do Auditors Correctly Identify and 
Assess Internal Control Deficiencies? Evidence from the PCAOB Data, 
Working Paper (2018), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2838896. See also Kinney and Shepardson 2011 
Study, note 404 above.
    \454\ See, e.g., 2011 SEC Staff Study, note 198 above, at 86 
(citing evidence that while both issuers subject to SOX Section 
404(b) as well as those only subject to SOX Section 404(a) often 
report restatements despite previously reporting that their ICFR was 
effective, such restatements were 46 percent higher among those 
filing only SOX Section 404(a) reports). See also PCAOB Investor 
Advisory Group, Report from the Working Group on the Investor Survey 
(2015), available at https://pcaobus.org/News/Events/Documents/09092015_IAGMeeting/Investor_Survey_Slides.pdf (reporting survey 
findings that 72 percent of institutional investors indicated that 
they relied on ICFR auditor attestations either ``extensively'' or 
``a good bit'').
    \455\ See, e.g., Ge et al. 2017 Study, note 393 above.
    \456\ See letter from Prof. Ge et al.
    \457\ See, e.g., H. Ashbaugh-Skaife, D. Collins, W. Kinney, & R. 
LaFond, The Effect of SOX Internal Control Deficiencies on Firm Risk 
and Cost of Equity, 47(1) J. of Acct. Res. 1 (2009) (``Ashbaugh-
Skaife et al. 2009 Study'') (finding that companies that newly 
disclose material weaknesses in their ICFR have an increase in their 
cost of capital, but that this increase is lower for companies with 
the characteristics most associated with having such material 
weaknesses, i.e., those for which the market may be least surprised 
by the disclosures, at about 50 basis points, and higher for 
companies without such characteristics, at about 125 basis points).
    \458\ See Sarah Rice, David Weber, & Biyu Wu, Does SOX 404 Have 
Teeth? Consequences of the Failure to Report Existing Internal 
Control Weaknesses, 90(3) Acct. Rev. 1169 (2015). We note that 
auditors have a duty to follow auditing standards and, if they do 
not, face associated enforcement, inspection, reputation, and 
litigation risks that provide a countervailing incentive.
    \459\ See, e.g., Defond and Lennox 2017 Study, note 307 above 
(finding that PCAOB inspections may increase auditors' issuance of 
adverse internal control opinions to clients with later 
restatements; in particular, the study documents that in 2010, 96 
percent of financial statements that were later restated were 
accompanied by ICFR auditor attestations disclosing no material 
weaknesses in ICFR, while this rate dropped to 91 percent by 2013).
---------------------------------------------------------------------------

    A further reason why ICFR auditor attestation reports may provide 
only a weak warning about future restatements is that the audit of ICFR 
may contribute to the avoidance of misstatements, leading us to observe 
only the residual restatements where the misstatement risk was not 
foreseen or a misstatement was not detected for reasons unrelated to 
internal controls. Thus, the second possible benefit we consider is 
that the audit of ICFR may encourage management to maintain more 
effective controls and thereby deter accounting errors and fraud. The 
academic research discussed below documents substantial evidence that 
would be consistent with such effects, though, as is common in 
financial economics, it is difficult to determine whether the 
documented differences can be causally linked to the audit of 
ICFR.\460\
---------------------------------------------------------------------------

    \460\ See Coates and Srinivasan 2014 Study, note 369 above, and 
Leuz and Wysocki 2016 Study, note 396 above (both articles 
discussing the limited ability to make causal attribution based on 
research on the effects of the provisions of SOX, but also 
highlighting the specific studies that can more plausibly make 
causal claims). See also Report to Congress: Access to Capital and 
Market Liquidity, August 2017 SEC Staff study 24-27 (discussing 
similar limitations, in a different context, in the ability to make 
causal inferences about the effects of regulation because of data 
and experimental design issues), available at https://www.sec.gov/files/access-to-capital-and-market-liquidity-study-dera-2017.pdf.
---------------------------------------------------------------------------

    In particular, while issuers are subject to a number of 
requirements discussed above that are intended to help to provide 
adequate internal controls and reliable financial statements,\461\ 
studies have documented a significant association between audits of 
ICFR and the maintenance of better internal controls. The 2011 SEC 
Staff Study provides analysis and summarizes research indicating that 
issuers that were not required to obtain an ICFR auditor attestation 
disclosed ineffective ICFR at a greater rate than those that were 
subject to such requirements,\462\ and newer studies demonstrate that 
this difference has remained consistent in recent years.\463\ Further, 
a recent paper finds that the ICFR auditor attestation requirement, but 
not management ICFR reporting requirements alone, are associated with 
enhanced quarterly earnings accrual quality, and argues that this is an 
indication of the improved quality of internal controls.\464\ We note, 
however, that this study finds that the improvements for issuers 
subject to the ICFR auditor attestation requirement are attenuated 
after the 2007 change in the ICFR auditing standard discussed in 
Section IV.B.1. above.\465\ The ICFR auditor attestation requirement 
has also been associated with a higher rate of remediation of material 
weaknesses after they are disclosed.\466\ As noted by

[[Page 17215]]

a commenter,\467\ survey evidence is also consistent with this 
requirement being associated with more effective ICFR. For example, 
this commenter cites a recent survey of public companies that found 
that 57 percent responded that one of the primary benefits of the ICFR 
auditor attestation requirement was ``improved internal control over 
financial reporting (ICFR) structure.'' \468\
---------------------------------------------------------------------------

    \461\ See Section IV.B.1. above.
    \462\ See 2011 SEC Staff Study, note 198 above, at 41 and 86-87. 
The rate of ineffective ICFR is based on the findings of management 
reports on ICFR pursuant to SOX Section 404(a). Because auditor 
attestations of ICFR are associated with an increased detection and 
disclosure of material weaknesses, as discussed above, the rate of 
ineffective ICFR reported by issuers not subject to the auditor 
attestation requirement may be understated, which would result in 
this difference also being understated.
    \463\ See, e.g., Audit Analytics, SOX 404 Disclosures: A 
Fourteen Year Review (Sept. 2018) (``2018 Audit Analytics Study''), 
available at www.auditanalytics.com/blog/sox-404-disclosures-a-fourteen-year-review/.
    \464\ See Schroeder and Shepardson 2016 Study, note 305 above 
(using quarterly accruals quality, measured by the level of 
quarterly discretionary working capital accruals and the quarterly 
accrual estimation error, as a proxy for internal control quality 
based on the argument that internal control improvements should be 
exhibited in unaudited financial reports).
    \465\ Id.
    \466\ See Vishal Munsif & Meghna Singhvi, Internal Control 
Reporting and Audit Fees of Non-Accelerated Filers, 15(4) J. of 
Acct., Ethics & Pub. Pol'y 902 at 915 (2014) (finding that 49 out of 
160, or 30 percent, of non-accelerated filers that disclosed a 
material weakness in 2008 reported no material weaknesses in 2009, 
in contrast to 64 out of 83, or 77 percent, of accelerated filers in 
a similar situation). See also Jacqueline Hammersley, Linda Myers, & 
Jian Zhou, The Failure to Remediate Previously Disclosed Material 
Weaknesses in Internal Controls, 31(2) Auditing: J. Prac. & Theory 
73 (2012); and Karla Johnstone, Chan Li, & Kathleen Rupley, Changes 
in Corporate Governance Associated with the Revelation of Internal 
Control Material Weaknesses and their Subsequent Remediation, 28(1) 
Contemp. Acct. Res. 331 (2011) (both finding a similar rate of 
remediation for accelerated filers for an earlier sample period).
    \467\ See letter from CII.
    \468\ Id. See also Benchmarking SOX Costs, Hours and Controls, 
Protiviti (June 24, 2019), available at https://www.protiviti.com/sites/default/files/united_states/insights/2019_sarbanes_oxley_compliance_surveyprotiviti.pdf.
---------------------------------------------------------------------------

    To the extent that the ICFR auditor attestation requirement leads 
to more effective ICFR, this requirement may thereby lead to more 
reliable financial statements. Some studies have found that a failure 
to maintain effective ICFR has been associated with a higher rate of 
future restatements and lower earnings quality,\469\ a higher rate of 
future fraud revelations,\470\ more profitable insider trading,\471\ 
and less accurate analyst forecasts.\472\
---------------------------------------------------------------------------

    \469\ See Coates and Srinivasan 2014 Study, note 369 above, at 
649-650.
    \470\ See Dain Donelson, Matthew Ege, & John McInnis, Internal 
Control Weaknesses and Financial Reporting Fraud, 36(3) Auditing: A 
J. of Prac. and Theory 45 (2017) (``Donelson et al. 2017 Study'') 
(finding that issuers with a material weakness in ICFR are 1.24 
percentage points more likely to have a fraud revelation within the 
next three years compared to issuers without a material weakness, 
relative to a 1.60 percent unconditional probability of fraud).
    \471\ See Hollis Asbhaugh-Skaife, David Veenman, & Daniel 
Wangerin, Internal Control over Financial Reporting and Managerial 
Rent Extraction: Evidence from the Profitability of Insider Trading, 
55(1) J. of Acct. and Econ. 91 (2013).
    \472\ See, e.g., Sarah Clinton, Arianna Pinello, & Hollis 
Skaife, The Implications of Ineffective Internal Control and SOX 404 
Reporting for Financial Analysts, 33(4) J. of Acct. and Pub. Pol'y 
303 (2014).
---------------------------------------------------------------------------

    Generally, ICFR auditor attestations also have been found to be 
directly associated with financial statements that are more reliable 
than in the absence of these attestations.\473\ We note, however, that 
two recent studies, using different methodologies, find evidence that 
conflicts with these other studies. In particular, the evidence in 
these studies, which use data from 2007 through 2013 \474\ and 
2014,\475\ respectively, does not support the conclusion that the ICFR 
auditor attestation requirement is associated with more reliable 
financial statements, and one of the studies \476\ even finds an 
association with lower reliability, consistent with concerns discussed 
in Section IV.B.1. above that the quality of audits of ICFR dropped at 
least temporarily after 2007.
---------------------------------------------------------------------------

    \473\ See 2011 SEC Staff Study, note 198 above, at 98-100. For 
more recent evidence, see, e.g., Yuping Zhao, Jean Bedard, & Rani 
Hoitash, SOX 404, Auditor Effort, and the Prevention of Financial 
Report Misstatements, 36(4) Auditing: A J. of Prac. & Theory 151 
(2017); and Lucy Chen, Jayanthi Krishnan, Heibatollah Sami, & Haiyan 
Zhou, Auditor Attestation under SOX Section 404 and Earnings 
Informativeness, 32(1) Auditing: A J. of Prac. & Theory 61 (2013).
    \474\ See Bhaskar et al. 2018 Study, note 305 above (finding 
that, among companies with less than $150 million in market 
capitalization, those providing auditor attestations of ICFR, 
whether voluntarily or because they are accelerated filers, had a 
higher rate of material misstatements and lower earnings quality 
than others in this category in the period from 2007 through 2013).
    \475\ See McCallen et al. 2019 Study, note 308 above (finding 
that, among companies with close to $75 million in public float, 
those above this threshold, which are likely subject to the ICFR 
auditor attestation requirement, do not experience lower 
restatements than those below this threshold in the period from 2007 
through 2015).
    \476\ See Bhaskar et al. 2018 Study, note 305 above.
---------------------------------------------------------------------------

    To evaluate the economic implications of any effects the ICFR 
auditor attestation requirement has on ICFR and financial statements, 
we can consider factors such as production or investment at the issuer 
or market level. For example, at the issuer level, more reliable 
disclosures are generally expected, based on economic theory, to lead 
investors to demand a lower expected return to hold an issuer's 
securities (i.e., a lower cost of capital).\477\ A lower cost of 
capital may enhance capital formation by encouraging issuers to issue 
additional securities in order to raise funds for new investments. 
Empirically, material weaknesses in ICFR,\478\ restatements,\479\ and 
low earnings quality \480\ have all been associated with a higher cost 
of debt or equity \481\ capital.
---------------------------------------------------------------------------

    \477\ See, e.g., Douglas Diamond & Robert Verrecchia, 
Disclosure, Liquidity, and the Cost of Capital, 46(4) J. of Fin. 
1325 (1991) (``Diamond and Verrecchia 1991 Study''); David Easley & 
Maureen O'Hara, `Information and the Cost of Capital,' 59(4) J. of 
Fin. 1553 (2004); Richard Lambert, Christian Leuz, & Robert 
Verrecchia, Accounting Information, Disclosure, and the Cost of 
Capital,'' 45(2) J. of Acct. Res. 385 (2007); and Christopher 
Armstrong, John Core, Daniel Taylor, & Robert Verrecchia, When Does 
Information Asymmetry Affect the Cost of Capital? 49(1) J. of Acct. 
Res. 1 (2011). We note that these articles also detail limited 
theoretical circumstances under which more reliable disclosures 
could lead to a higher cost of capital, such as in the case where 
improved disclosure is sufficient to reduce incentives for market 
making.
    \478\ See, e.g., Dragon Tang, Feng Tian, & Hong Yan, Internal 
Control Quality and Credit Default Swap Spreads, 29(3) Acct. 
Horizons 603 (2015); Lawrence Gordon & Amanda Wilford, An Analysis 
of Multiple Consecutive Years of Material Weaknesses in Internal 
Control, 87(6) Acct. Rev. 2027 (2012) (``Gordon and Wilford 2012 
Study''); and Ashbaugh-Skaife et al. 2009 Study, note 457 above. We 
note that earlier work did not detect an association between SOX 
Section 404 material weaknesses and the equity cost of capital. See, 
e.g., M. Ogneva, K. R. Subramanyam, & K. Rachunandan, Internal 
Control Weakness and Cost of Equity: Evidence from SOX Section 404 
Disclosures, 82(5) Acct. Rev. 1255 (2007) (``Ogneva et al. 2007 
Study''). See also 2011 SEC Staff Study, note 198 above, at 101-102.
    \479\ See, e.g., Paul Hribar & Nicole Jenkins, The Effect of 
Accounting Restatements on Earnings Revisions and the Estimated Cost 
of Capital, 9 Rev. of Acct. Stud. 337 (2004) (``Hribar and Jenkins 
2004 Study'').
    \480\ See, e.g., Jennifer Francis, Ryan LaFond, Per M. Olsson, & 
Katherine Schipper, Cost of Equity and Earnings Attributes, 79(4) 
Acct. Rev. 967 (2004) (``Francis et al. 2004 Study'').
    \481\ We note that empirical studies of the cost of equity 
capital face particular challenges in accurately measuring the cost 
of equity capital, which can reduce their reliability, but that this 
is mitigated in studies that look at changes over time, see, e.g., 
Gordon and Wilford 2012 Study, note 478 above; Ashbaugh-Skaife et 
al. 2009 Study, note 457 above; and Hribar and Jenkins 2004 Study, 
note 479 above, rather than in the cross-section. See, e.g., Ogneva 
et al. 2007 Study, note 478 above, and Francis et al. 2004 Study, 
note 480 above. See also, e.g., Stephannie Larocque & Matthew R. 
Lyle, Implied Cost of Equity Capital Estimates as Predictors of 
Accounting Returns and Stock Returns, 2(1) J. of Fin. Rep. 69 (2017) 
(discussing concerns about measures of the cost of equity capital); 
and Charles M. C. Lee, Eric C. So, & Charles C. Y. Wang, Evaluating 
Firm-Level Expected-Return Proxies, Harvard Business School Working 
Paper 15-022 (2017) (finding that ``in the vast majority of research 
settings, biases in [equity cost of capital measures] are 
irrelevant'' and that the cost of equity capital measures used in 
the accounting literature ``are particularly useful in tracking 
time-series variations in expected returns'').
---------------------------------------------------------------------------

    More effective ICFR and more reliable financial reporting may also 
lead to improved efficiency of production if managers themselves 
thereby have access to more reliable data that facilitates better 
operating and investing decisions.\482\ For example, one study finds 
that the investment efficiency of issuers improves, in that both under-
investment and over-investment are curtailed, after the disclosure and 
remediation of material weaknesses.\483\ Another study finds that 
issuers that remediate material weaknesses in ICFR that are related to 
inventory tracking thereafter experience higher inventory turnover, 
together with improvements in sales and profitability.\484\ That said, 
it is difficult to generalize the results

[[Page 17216]]

beyond these samples to determine whether non-remediating issuers or 
issuers with different types of material weaknesses in ICFR could 
expect similar operational benefits from remediation. The ICFR auditor 
attestation requirement may also result in benefits at the market 
level, though these are more difficult to measure than those at the 
issuer level.\485\ The potential for market-level impact is largely 
driven by network effects (which are associated with the broad adoption 
of practices) and by other externalities (i.e., spillover effects on 
issuers or parties beyond the issuer in question). For example, to the 
extent that the ICFR auditor attestation requirement leads to more 
reliable financial statements at a large number of issuers, it may lead 
to a more efficient allocation of capital across different investment 
opportunities at the market level.\486\ The ICFR auditor attestation 
requirement also can enhance capital formation to the extent that it 
improves overall investor confidence, for which there is some 
suggestive evidence,\487\ and thus encourages investment in public 
markets.\488\
---------------------------------------------------------------------------

    \482\ See, e.g., Ge et al. 2017 Study at 359, note 393 above 
(arguing that internal control misreporting leads to lower operating 
performance due to the non-remediation of ineffective controls, and 
estimating the degree of such underperformance based on the 
improvement shown by issuers that are non-accelerated filers after 
disclosing and remediating material weaknesses, relative to other 
such issuers that are suspected of having unreported material 
weaknesses).
    \483\ See Mei Cheng, Dan Dhaliwal, & Yuan Zheng, Does Investment 
Efficiency Improve After the Disclosure of Material Weaknesses in 
Internal Control over Financial Reporting?, 56(1) J. of Acct. and 
Econ. 1 (2013).
    \484\ See Mei Feng, Chan Li, Sarah McVay, & Hollis Skaife, Does 
Ineffective Internal Control Over Financial Reporting Affect a 
Firm's Operations? Evidence From Firms' Inventory Management,'' 
90(2) Acct. Rev., 529 (2015) (``Feng et al. 2015 Study'').
    \485\ See, e.g., Leuz and Wysocki 2016 Study, note 396 above 
(stating that researchers ``generally lack evidence on market-wide 
effects and externalities from regulation, yet such evidence is 
central to the economic justification of regulation'' and 
acknowledging that ``the identification of such market-wide effects 
and externalities is even more difficult than the identification of 
direct economic consequences on individual firms'').
    \486\ There is also some evidence that more reliable financial 
disclosures also facilitate a more effective market for corporate 
control, which can increase overall market discipline and thus 
enhance the efficiency of production by incentivizing more effective 
management. See Amir Amel-Zadeh & Yuan Zhang, The Economic 
Consequences of Financial Restatements: Evidence from the Market for 
Corporate Control, 90(1) Acct. Rev. 1 (2015). See also Vidhi 
Chhaochharia, Clemens Otto, & Vikrant Vig, The Unintended Effects of 
the Sarbanes-Oxley Act, 167(1) J. of Institutional and Theoretical 
Econ. 149 (2011).
    \487\ See, e.g., 2013 GAO Study, note 297246 above (finding that 
52 percent of the companies surveyed reported greater confidence in 
the financial reports of other companies due to the ICFR auditor 
attestation requirement; in contrast, 30 percent of the respondents 
reported that they believed this requirement raised investor 
confidence in their own company).
    \488\ For a further discussion of potential externalities, see 
Coates and Srinivasan 2014 Study, note 369 above, at 657-659.
---------------------------------------------------------------------------

    Many commenters cited the benefits that have been ascribed to the 
ICFR auditor attestation requirement in general and attested to their 
importance. For example, some stated that the ICFR auditor attestation 
requirement promotes more effective ICFR and more accurate ICFR 
disclosures,\489\ including a greater likelihood and timeliness of 
disclosing ineffective or weak ICFR,\490\ and that effective ICFR leads 
to better and more reliable financial statements,\491\ audit 
quality,\492\ and analyst forecasts \493\ as well as fewer 
restatements, misstatements,\494\ and instances of fraud and insider 
trading.\495\ Others more directly linked the ICFR auditor attestation 
requirement with enhanced transparency,\496\ a higher quality and 
reliability of issuers' financial statements,\497\ and corporate 
governance \498\ and a reduced number of restatements, 
misstatements,\499\ and instances of fraud.\500\ Some commenters noted 
that the ICFR auditor attestation requirement increases investor 
confidence generally \501\ and that investors view the requirement as 
beneficial.\502\
---------------------------------------------------------------------------

    \489\ See, e.g., letters from Better Markets, CFA, CII, Crowe, 
Grant Thornton, Prof. Barth et al., and PWC.
    \490\ See, e.g., letters from Better Markets, CFA, Crowe, and 
Prof. Barth et al.
    \491\ See, e.g., letters from CAQ, CFA, CII, and Grant Thornton.
    \492\ See, e.g., letter from CAQ.
    \493\ See, e.g., letter from CFA.
    \494\ See, e.g., letters from CAQ and CFA.
    \495\ See, e.g., letter from CFA.
    \496\ See, e.g., letter from EY.
    \497\ See, e.g., letters from Better Markets, CFA, CII, 
Deloitte, EY, Grant Thornton, PWC, and RSM.
    \498\ See, e.g., letter from Deloitte.
    \499\ See, e.g., letters from CAQ, CFA Inst., Crowe, Deloitte, 
EY, Grant Thornton, and Prof. Barth et al.
    \500\ See, e.g., letters from Better Markets and Deloitte.
    \501\ See, e.g., letters from Better Markets, CAQ, CFA, and EY.
    \502\ See, e.g., letters from CII, CFA Inst., and EY.
---------------------------------------------------------------------------

    Importantly, all of these benefits, at both the issuer and market 
level, likely vary across issuers of different types. For example, 
younger, loss-incurring issuers with lower market capitalization and 
lower institutional ownership, as well as those with more segments, 
tend to be more likely to newly disclose material weaknesses as they 
transition into the ICFR auditor attestation requirement.\503\ However, 
the market appears to account for the association of material 
weaknesses with these and other observable issuer characteristics. 
Thus, issuers that have the characteristics associated with a higher 
rate of material weaknesses (and which investors may therefore value 
under the assumption that they are likely to have ineffective ICFR) but 
that receive an auditor attestation report that does not report any 
material weaknesses are found to have the greatest cost of capital 
benefit from such a report.\504\ Small, loss-incurring issuers are also 
disproportionately represented amongst issuers that have allegedly 
engaged in financial disclosure frauds, indicating that any benefits in 
terms of investor protection and investor confidence may be 
particularly important for this population of issuers.\505\ On the 
other hand, marginal changes in the reliability of the financial 
statements of issuers whose valuation is driven primarily by their 
future prospects--which could also include small, loss-incurring 
issuers--could have limited issuer- and market-level effects to the 
extent that the current financial statements of these issuers are less 
critical to assessing their valuation.\506\
---------------------------------------------------------------------------

    \503\ See Ge et al. 2017 Study, note 393 above (regarding the 
term ``younger,'' this study defines company age as the number of 
years a company has been covered in the Compustat database). See 
also 2011 SEC Staff Study, note 198 above, at 96 (summarizing 
previous research finding that internal control deficiencies are 
associated with smaller, complex, riskier, and more financially-
distressed issuers).
    \504\ See Ashbaugh-Skaife et al. 2009 Study, note 457 above.
    \505\ See, e.g., COSO 2010 Fraud Study (finding that companies 
allegedly engaging in financial disclosure fraud in the period from 
1998 through 2007 had median assets and revenue under $100 million 
and were often loss-incurring or close to breakeven) and 
Characteristics of Financial Restatements and Frauds, CPA J. (Nov. 
2017), available at www.cpajournal.com/2017/11/20/characteristics-financial-restatements-frauds/ (for more recent evidence).
    \506\ See, e.g., Patricia Dechow & Catherine Schrand, Earnings 
Quality, Res. Found. of CFA Inst. 12 (2004) (``Dechow and Schrand 
2004 Monograph'').
---------------------------------------------------------------------------

b. Estimated Effects on ICFR, the Reliability of Financial Statements, 
and Potential Fraud
    The academic literature discussed in Section IV.C.3.a. above 
suggests that the scrutiny associated with the ICFR auditor attestation 
may lead issuers that are required to obtain this attestation to 
maintain more effective ICFR and to remediate material weaknesses in 
ICFR more quickly, leading to more reliable financial statements. 
Further, as discussed above, studies have highlighted that smaller 
issuers are disproportionately represented in populations of issuers 
with ineffective ICFR and financial statements that require material 
restatement. In addition, smaller issuers are less likely to have 
significant external scrutiny in the form of analyst and media coverage 
and monitoring by institutional owners,\507\ which could otherwise

[[Page 17217]]

provide another source of discipline to maintain the reliability of 
financial statements. However, two of the studies cited above find that 
the ICFR auditor attestation requirement was not associated with more 
reliable financial statements for lower market capitalization issuers 
from 2007 through 2013 or 2014,\508\ and the existing studies in 
general may not be directly applicable to current circumstances given 
the 2010 change in risk assessment auditing standards, the 2007 change 
in the ICFR auditing standard and other recent changes discussed in 
Section IV.B.1. above. Importantly, the existing literature and most of 
the results cited by commenters regarding the benefits of the ICFR 
auditor attestation also do not directly examine low-revenue issuers.
---------------------------------------------------------------------------

    \507\ See, e.g., Joel Peress & Lily Fang, Media Coverage and the 
Cross-Section of Stock Returns, 64(5) J. of Fin. 2023 at 2030 (2009) 
(finding that ``firm size has an overwhelming effect on media 
coverage: large firms are much more likely to be covered''); Armando 
Gomes, Gary Gorton, & Leonardo Madureira, SEC Regulation Fair 
Disclosure, Information, and the Cost of Capital, 13 J. of Corp. 
Fin. 300 at 307 (2007) (stating that ``there is overwhelming 
evidence that size can explain analyst following''); and Eliezer 
Fich, Jarrad Harford, & Anh Tran, Motivated Monitors: The Importance 
of Institutional Investors' Portfolio Weights, 118(1) J. of Fin. 
Econ. 21 (2015) (finding that institutional monitoring is greatest 
when a company represents a significant allocation of funds in the 
institution's portfolio, which is strongly associated with company 
size).
    \508\ See Bhaskar et al. 2018 Study, note 305 above, as 
discussed in note 474 above, and McCallen et al. 2019 Study, note 
308 above, as discussed in note 475 above.
---------------------------------------------------------------------------

    This section therefore provides an analysis of low-revenue issuers 
using recent data to complement the existing studies and better inform 
our consideration of the possible costs of the amendments. However, 
some uncertainty will remain due to the challenges discussed above in 
measurement and in ascribing causality in any such analysis, the 
limited sample sizes that result when restricting the analysis to 
recent years, and the general difficulty of predicting how the parties 
involved will react to the amendments. As discussed in more detail in 
the Proposing Release,\509\ our analysis includes an examination of two 
comparison populations of issuers that are not subject to the ICFR 
auditor attestation requirement but that otherwise have similar 
responsibilities with respect to ICFR (i.e., non-accelerated filers, 
other than EGCs, and EGCs), with consideration given to the ways in 
which these issuers differ from the affected issuers.
---------------------------------------------------------------------------

    \509\ See Sections III.C.2. and III.C.4. of the Proposing 
Release, note 4 above.
---------------------------------------------------------------------------

    One commenter suggested that we should more carefully consider the 
audit risks linked to specific industries that are expected to be 
affected by the amendments, highlighting the banking industry as one 
that may have special considerations.\510\ We note that, as discussed 
above, the majority of the affected banking issuers are expected to 
remain subject to the FDIC auditor attestation requirement and 
therefore are not expected to be significantly affected by the 
amendments. Further, because of the small sample of affected issuers, 
we have a limited ability to split our sample and maintain statistical 
reliability. However, our aggregate estimates should reflect the 
overall diversity in the population of affected issuers.
---------------------------------------------------------------------------

    \510\ See letter from CFA Inst.
---------------------------------------------------------------------------

    Another commenter indicated that the primary quantifiable cost of 
an exemption from the ICFR auditor attestation requirement stems from 
misreporting regarding the effectiveness of ICFR.\511\ While we 
consider this effect and its quantifiable implications in more detail 
below, we continue to believe that the incentive provided by the ICFR 
auditor attestation requirement to actually maintain better controls 
(versus just to more accurately report their status) remains a key 
benefit with certain quantifiable implications that could be lost due 
to an exemption from this requirement.
---------------------------------------------------------------------------

    \511\ See letter from Prof. Ge et al.
---------------------------------------------------------------------------

i. Effects on the Prevalence of Ineffective ICFR
    We first consider possible effects related to the effectiveness of 
the affected issuers' ICFR. In the Proposing Release, we presented an 
analysis of the rate of ineffective ICFR from 2014-2018 among low-
revenue issuers that are subject to the ICFR auditor attestation 
requirement compared to low-revenue issuers not subject to this 
requirement.\512\ In particular, we compared the reported rate of 
ineffective ICFR in these recent years for accelerated filers that are 
subject to the ICFR auditor attestation requirement and have revenues 
of less than $100 million, relative to the reported rate of ineffective 
ICFR for issuers in our comparison populations (non-accelerated filers, 
other than EGCs, and EGCs, neither of which is required to comply with 
the ICFR auditor attestation requirement) that also have revenues of 
less than $100 million. We focused on SOX Section 404(a) management 
reports on ICFR, with the caveat that management may not report as many 
material weaknesses in the absence of an audit of ICFR.\513\ Based on 
this analysis, and with consideration for the difference in size, 
maturity, and overall resources of the affected issuers versus the 
comparison sample, we estimated that an additional 15 percent of the 
affected issuers may fail to maintain effective ICFR.\514\ We did not 
receive comment on this specific estimate or comments providing data or 
methodologies that would improve our estimate. Our estimate is 
consistent with the estimated effect on ICFR based on a study of 
issuers transitioning into the ICFR auditor attestation 
requirement.\515\ We do not expect the full estimated effect to be 
experienced immediately upon effectiveness of the amendments. Instead, 
as discussed in detail at the end of this section, we expect a movement 
towards this higher rate of ineffective ICFR over time as some of the 
affected issuers make incremental changes in their investment in ICFR 
and as additional issuers enter the category of affected issuers.
---------------------------------------------------------------------------

    \512\ See Section III.C.4.b. of the Proposing Release, note 4 
above.
    \513\ We separately consider this potential under-reporting of 
material weaknesses in the analysis below.
    \514\ See Section III.C.4.b. of the Proposing Release, note 4 
above. We also noted in this section of the Proposing Release, note 
4 above, that our findings may not be surprising, as certain 
material weaknesses in ICFR may be corrected by, for example, hiring 
additional staff, which managers of an issuer that is not currently 
producing much revenue may prefer to defer to a later time. Indeed, 
about 80 to 85 percent of the low-revenue issuers reporting 
ineffective ICFR in the comparison populations in 2017 reported at 
least one staffing-related material weakness, though these were 
generally accompanied by other types of material weaknesses. See 
note 259 of the Proposing Release, note 4 above, and the 
accompanying text.
    \515\ See Ge et al. 2017 Study, note 393 above, at 372 (finding 
that 62.5 percent of companies that reported material weaknesses as 
non-accelerated filers remediate such weaknesses upon entering 
accelerated filer status). To compare the result from this study to 
our estimate, note that we find in Table 7 above that about nine 
percent of accelerated filers report ineffective ICFR (further, the 
Proposing Release, note 4 above, found that the rate was similar for 
low and high revenue issuers). Our estimate of an additional 15 
percentage points of the affected issuers reporting ineffective ICFR 
in the absence of an ICFR auditor attestation requirement would lead 
to a total of 24 percent (nine percent plus 15 percent) of the 
issuers reporting material weaknesses in ICFR in the absence of the 
requirement as compared to nine percent reporting material 
weaknesses in ICFR when subjected to the requirement. This is the 
same result one would get by applying the 62.5 percent remediation 
estimate from the cited study. In other words, if 62.5 percent of 
the issuers reporting material weaknesses in the absence of the ICFR 
auditor attestation requirement remediated their material weaknesses 
upon entering accelerated filer status and becoming subject to the 
requirement, that would mean that the rest of the issuers (37.5 
percent) failed to remediate when becoming subject to the 
requirement. This would imply that a 24 percent rate of ineffective 
ICFR reported by the issuers in the absence of the requirement would 
correspond to a nine percent rate (24 percent times 37.5 percent) of 
ineffective ICFR reported by the issuers when subjected to the 
requirement.
---------------------------------------------------------------------------

ii. Effects on the Detection and Disclosure of Material Weaknesses in 
ICFR
    Because the previous analysis focuses on disclosed rates of 
ineffective ICFR, it does not address the extent to which the 
amendments may affect the detection and disclosure of material 
weaknesses

[[Page 17218]]

in ICFR. As discussed in Section IV.C.3.a. above, studies have found 
that audits of ICFR often result in the identification and disclosure 
of material weaknesses that were not previously identified or whose 
severity was misclassified in management's initial assessment. Thus, 
extending the exemption from the ICFR auditor attestation requirement 
to the affected issuers may decrease the likelihood that, when these 
issuers have underlying material weaknesses in ICFR, these material 
weaknesses are detected and disclosed.
    In the Proposing Release, we noted that low-revenue issuers may be 
less likely than other issuers to fail to detect and disclose material 
weaknesses in the absence of an ICFR auditor attestation, perhaps 
because they have less complex financial systems and controls.\516\ 
Consistent with this hypothesis, we found that the low-revenue issuers 
that are not subject to the ICFR auditor attestation requirement report 
relatively high rates of ineffective ICFR despite these reports not 
being subject to the additional scrutiny of an ICFR auditor 
attestation.
---------------------------------------------------------------------------

    \516\ See 2017 SICPG Survey Report, note 419 above, at 6 
(finding that 33 percent of survey respondents with revenues of $75 
million or less reported that they manage no more than 100 total 
controls, as compared to 13 percent of those with revenues of $76 to 
$700 million and zero percent of those with revenues greater than 
$700 million).
---------------------------------------------------------------------------

    In the Proposing Release, we did not quantitatively estimate a 
potential effect on the detection and disclosure of material weaknesses 
in ICFR, though we did qualitatively consider how the amendments could 
affect issuers depending on their proclivity to detect and disclose 
underlying material weaknesses in the absence of an ICFR auditor 
attestation.\517\ Several commenters indicated that they expected the 
amendments to affect the detection and disclosure of material 
weaknesses in ICFR,\518\ with one stating that ``the primary 
quantifiable cost of 404(b) attestation exemption arises from internal 
control misreporting.'' \519\ Further, other commenters noted that 
factors other than the complexity of issuers' systems and controls, 
such as their accounting personnel resources \520\ or the intricacies 
of the issuers' business and industry, the strength of their 
governance, the competency of their management, and their international 
reach,\521\ should be considered in assessing the risk of misreporting 
with respect to ICFR effectiveness. In response to these comments, we 
conducted a quantitative estimation of this effect and its potential 
implications.
---------------------------------------------------------------------------

    \517\ See Section III.C.4.c of the Proposing Release, note 4 
above.
    \518\ See, e.g., letters from CFA Inst., EY, and Prof. Ge et al.
    \519\ See letter from Prof. Ge et al.
    \520\ See letters from CAQ and EY.
    \521\ See letter from RSM.
---------------------------------------------------------------------------

    Because undetected and undisclosed material weaknesses cannot be 
directly observed, we are not able to directly estimate the extent of 
such issues in our comparison samples of low-revenue issuers that are 
not subject to the ICFR auditor attestation requirement. Instead, we 
rely on a recent study that estimates that an incremental 3.5 percent 
of issuers misreport their ICFR as being effective when not subject to 
the ICFR auditor attestation requirement as compared to when they are 
subjected to this requirement.\522\ To obtain this estimate, the study 
uses the characteristics associated with ineffective ICFR to predict 
the actual rate of ineffective ICFR as opposed to the disclosed rate of 
ineffective ICFR, and uses changes in reporting around transitions into 
accelerated filer status to predict the proportion of suspected 
misreporters that would correctly report under an ICFR auditor 
attestation requirement.\523\
---------------------------------------------------------------------------

    \522\ See Ge et al. 2017 Study, note 393 above (estimating, 
based on data from 2007 through 2014, that 9.3 percent of non-
accelerated filers incorrectly report their ICFR to be effective and 
that 38.1 percent of these, or 3.5 percent, would correctly report 
their ICFR to be ineffective if subjected to the ICFR auditor 
attestation requirement).
    \523\ Id.
---------------------------------------------------------------------------

    We directly apply the results from the study and estimate that 3.5 
percent of the affected issuers that will be newly exempt from all ICFR 
auditor attestation requirements may misreport that their ICFR is 
effective, but would not misreport if subjected to those requirements. 
To be conservative, we do not adjust this estimate based on our 
conjecture that low-revenue issuers may be less likely than other 
issuers to fail to detect and disclose material weaknesses in the 
absence of an ICFR auditor attestation, perhaps because they have less 
complex financial systems and controls. However, we note that the 
estimate may be somewhat inflated to the extent that this conjecture is 
correct.
iii. Effects on Restatements
    We next consider the extent to which the possible effects on 
reported and unreported material weaknesses in ICFR might translate 
into less reliable financial statements. By definition, material 
weaknesses represent a reasonable possibility that a material 
misstatement of the issuer's financial statements will not be prevented 
or detected on a timely basis,\524\ and as discussed above, existing 
studies have demonstrated that ineffective ICFR are associated with 
less reliable financial statements. Thus, our estimated increase in the 
rate of ineffective ICFR likely would translate into a decrease in the 
reliability of the financial statements of the affected issuers. 
However, low-revenue issuers could be less susceptible, on average, to 
at least certain kinds of misstatements. In particular, 10 to 20 
percent of restatements and about 60 percent of the cases of financial 
disclosure fraud in recent times have been associated with improper 
revenue recognition,\525\ which is less of a risk, for example, for 
issuers that currently have no revenues.
---------------------------------------------------------------------------

    \524\ See Regulation S-X Rule 1-02(a)(4).
    \525\ See Audit Analytics, 2017 Financial Restatements: A 
Seventeen Year Comparison, (May 2018), available at https://blog.auditanalytics.com/2017-financial-restatements-review/, and 
COSO 2010 Fraud Study, note 505 above.
---------------------------------------------------------------------------

    We explored this possibility empirically in the Proposing Release, 
by comparing the percentage of issuers in different categories that 
eventually restated some of the financial statements that they reported 
for a given year, for the years 2014 through 2016. Because we directly 
considered differences in actual restatements across these groups of 
issuers, these results should incorporate the effects of differences 
across the groups in both reported and unreported material weaknesses 
in ICFR. Our analysis demonstrated that issuers with revenues of less 
than $100 million have, on average, restatement rates that are three to 
nine percentage points lower than those for higher-revenue issuers of 
the same filer status.\526\ This result is consistent with low-revenue 
issuers being less likely to make restatements, even when they 
experience high rates of ineffective ICFR, perhaps because they are 
less susceptible to certain kinds of misstatements (such as those 
related to revenue recognition).
---------------------------------------------------------------------------

    \526\ See Section III.C.4.b. of the Proposing Release, note 4 
above. As discussed in the Proposing Release, note 4 above, while 
observed restatements reflect misstatements that were detected and 
may only be a subset of actual misstatements, we believe that the 
lower restatement rates for low-revenue issuers are not driven by a 
difference in the ability to detect misstatements among these 
categories because we see this pattern for issuers with low rates of 
ineffective ICFR as well as for other issuers. This result is also 
consistent with the BIO Study, which finds that biotechnology EGCs 
have a two to three percentage point lower restatement rate than 
other non-accelerated or accelerated filers and attribute this to 
their ``absence of product revenue.'' See BIO Study, note 69 above 
(finding a 6.20 percent restatement rate for biotechnology EGCs 
compared to rates of 7.98 percent and 9.25 percent for other non-
accelerated and accelerated filers respectively).

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

[[Page 17219]]

    A number of commenters maintained that the risks of financial 
statement restatements or misstatements are greater for the issuers 
that would not be subject to the ICFR auditor attestation requirement 
under the proposed amendments than for other issuers.\527\ A few of 
these commenters cited research that concludes that, since 2003, non-
accelerated U.S. filers accounted for 62 percent of the total U.S. 
financial statement restatements.\528\ However, we note that this 
research is not specific to low-revenue issuers, unlike our analysis. 
As our analysis in the Proposing Release demonstrated, restatements are 
less frequent for low-revenue issuers even among non-accelerated 
filers. Further, the cited research does not adjust for the high 
proportion of non-accelerated filers among all issuers.
---------------------------------------------------------------------------

    \527\ See, e.g., letters from Better Markets, CAQ, EY, Grant 
Thornton, IMA, Prof. Barth et al., and RSM.
    \528\ See, e.g., letters from CAQ and CFA Inst.
---------------------------------------------------------------------------

    Other commenters noted that low-revenue issuers may be more 
susceptible to misstatements in revenue recognition \529\ or in areas 
other than revenue recognition,\530\ and that a higher risk of 
misstatements may be driven by characteristics of these issuers other 
than their low revenue, such as their lower resources or fewer 
personnel,\531\ complex transactions or arrangements,\532\ or 
activities that require significant accounting judgments.\533\ We note 
that our analysis is intended to capture all of these risks of 
restatements, by directly comparing rates of empirical restatements, 
and that we still find that the lower revenue issuers, taken in 
aggregate, are less likely to restate their financial statements than 
other issuers of the same filer status. Thus, while certain subsets of 
the affected issuers may be more prone to restatements than others 
based on their specific characteristics, on average the affected 
issuers as a group appear to have a lower overall risk of restatement 
than higher-revenue issuers.
---------------------------------------------------------------------------

    \529\ See, e.g., letters from Better Markets and Prof. Barth et 
al.
    \530\ See, e.g., letter from BDO.
    \531\ See, e.g., letters from CAQ, Crowe, EY, and Grant 
Thornton.
    \532\ See, e.g., letter from BDO.
    \533\ See, e.g., letters from CFA Inst. and BDO.
---------------------------------------------------------------------------

    However, in response to the comments, we further examine the 
argument that the affected issuers may be less susceptible to certain 
kinds of misstatements, such as those related to revenue recognition, 
by examining the types of restatements among low- and higher-revenue 
accelerated filers other than EGCs in Table 11.\534\ We note that the 
categorization of types and the names of these categories are based on 
the categories and category titles provided in the Ives Group Audit 
Analytics restatement database.
---------------------------------------------------------------------------

    \534\ These estimates are based on staff analysis of data from 
Ives Group Audit Analytics. See note 298 above for details on the 
identification of filer type. The sample includes 2,017 issuer-year 
level observations that have low revenues and 3,862 issuer-year 
observations that have higher revenues.

 Table 11--Percentage of All Accelerated Filers Other Than EGCS With Restatements of Different Types, by Revenue
                                Category, for Financial Statements From 2014-2018
----------------------------------------------------------------------------------------------------------------
                                                                           Accelerated filers (ex. EGCs)
                                                                 -----------------------------------------------
                        Restatement type                              Revenue         Revenue        Relative
                                                                      <$100M          >=$100M       percentage
----------------------------------------------------------------------------------------------------------------
Revenue recognition issues......................................             1.3             3.3              40
Cash flows statement (SFAS 95) classification errors............             1.0             1.7              60
Tax expense/benefit/deferral/other (FAS 109) issues.............             1.0             2.4              42
Inventory, vendor and/or cost of sales issues...................             0.8             1.8              45
Debt, quasi-debt, warrants & equity (BCF) security issues.......             0.7             0.6             115
Liabilities, payables, reserves and accrual estimate failures...             0.7             1.9              37
Accounts/loans receivable, investments & cash issues............             0.7             1.3              53
Expense (payroll, SGA, other) recording issues..................             0.6             1.5              43
Acquisitions, mergers, disposals, re-org acct issues............             0.5             0.9              55
Acquisitions, mergers, only (subcategory) acct issues...........             0.4             0.6              65
Deferred, stock-based and/or executive comp issues..............             0.4             0.5              85
EPS, ratio and classification of income statement issues........             0.3             0.6              53
Balance sheet classification of assets issues...................             0.3             0.4              77
Lease, SFAS 5, legal, contingency and commitment issues.........             0.3             0.6              53
Foreign, related party, affiliated, or subsidiary issues........             0.3             0.7              34
----------------------------------------------------------------------------------------------------------------

    Table 11 presents the percentage of low-revenue and higher-revenue 
accelerated filers other than EGCs restating their financial statements 
under a particular category of restatement for a given year from 2014 
through 2018. The table presents the results for the 15 most common 
restatement categories for low-revenue accelerated filers other than 
EGCs. Restatements can fall into more than one category, so the total 
of these percentages across all restatement categories would exceed the 
average rate of restatements. We also report the relative percentage of 
the restatement rate in a given category among the low-revenue issuers 
relative to the higher-revenue issuers.
    Table 11 demonstrates that 1.3 percent of low-revenue accelerated 
filers other than EGCs restated their financial statements for a given 
year from 2014 to 2018 due to revenue recognition issuers, representing 
about 40 percent of the rate of this type of restatement among higher-
revenue accelerated filers other than EGCs. Similarly, for the next 
three most common categories of restatements for low-revenue 
accelerated filers other than EGCs, the restatement rates of these 
issuers represented 42- to 60 percent of the corresponding rates among 
higher-revenue accelerated filers other than EGCs. Thus, this evidence 
supports our belief that the affected issuers may be less susceptible 
to certain kinds of misstatements, such as those related to revenue 
recognition. However, consistent with commenters concerns about other 
sources of misstatements, particularly with respect to complex 
contracts and arrangements, we find that the rate of restatements in 
some other categories is more similar across the two groups. For 
example, the rate of restatements related to ``Debt, quasi-debt, 
warrants & equity (BCF) security

[[Page 17220]]

issues'' and ``Deferred, stock-based and/or executive comp issues'' for 
the low-revenue issuers represent 115 percent and 85 percent 
respectively of the corresponding rates among the higher-revenue 
issuers. However, the rate of restatements is greater for the low-
revenue issuers as compared to higher-revenue issuers only in the 
``Debt, quasi-debt, warrants & equity (BCF) security issues'' category, 
and only by a small margin: The restatement rates in this category are 
within 0.1 percentage points of each other, such that they are not 
statistically differentiable in our sample.\535\
---------------------------------------------------------------------------

    \535\ There is also a slightly higher rate of restatements 
without a specified category among the low-revenue issuers, with 0.1 
percent of their issuer-year level observations being associated 
with ``Unspecified (amounts or accounts) restatement adjustments'' 
compared to 0.0 percent among the higher-revenue issuers.
---------------------------------------------------------------------------

    We therefore continue to believe that the evidence supports our 
hypothesis that the affected issuers are less likely to make 
restatements, perhaps because they are, on average, less susceptible to 
certain kinds of misstatements (such as those related to revenue 
recognition), than other accelerated filers. While this finding may 
mitigate the adverse effects on the reliability of financial statements 
for the affected issuers that will newly be exempt from all ICFR 
auditor attestation requirements, we nonetheless expect some such 
effects. Based on the analysis in the Proposing Release, and with 
consideration for the difference in size and maturity of the affected 
issuers versus the comparison sample, we estimated that the rate of 
restatements among the affected issuers may increase by two percentage 
points.\536\ Given their lower current rates of restatement, even after 
such an increase the affected issuers may, on average, restate their 
financial statements at a rate that is lower than that of issuers that 
will remain accelerated filers, and that does not exceed that of non-
accelerated filers and EGCs with comparable revenues.
---------------------------------------------------------------------------

    \536\ See Section III.C.4.b. of the Proposing Release, note 4 
above.
---------------------------------------------------------------------------

    Several commenters indicated that we should have given 
consideration to the magnitude of restatements.\537\ In response to 
these comments, we have undertaken two types of analysis. First, we 
consider the potential effects on restatements that are deemed by 
issuers to be material. To do this, we begin by repeating our analysis 
for all types of restatements from the Proposing Release for the subset 
of Item 4.02 restatements, which, as discussed above, are the 
restatements that issuers deem to be material and report in Form 8-K 
Item 4.02 disclosures, in Table 12.\538\
---------------------------------------------------------------------------

    \537\ See, e.g., letters from Better Markets, CFA Inst., and 
Prof. Barth et al.
    \538\ The estimates in this table are based on staff analysis of 
Ives Group Audit Analytics data. Percentages are computed out of all 
issuers of a given filer type and revenue category with revenue data 
and a SOX Section 404(a) management report available in the Ives 
Group Audit Analytics database. The accelerated and non-accelerated 
categories exclude EGCs. See note 298 above for details on the 
identification of filer type.

    Table 12--Percentage of Issuers Issuing Item 4.02 Restatements by Year of Restated Financials, by Revenue
                                                    Category
----------------------------------------------------------------------------------------------------------------
                                                                                       Non-
                          Restated year                             Accelerated     accelerated         EGC
                                                                    (ex. EGCs)      (ex. EGCs)
----------------------------------------------------------------------------------------------------------------
Revenue <$100M:
    2014........................................................             2.4             3.9             5.8
    2015........................................................             3.5             3.1             4.2
    2016........................................................             3.3             2.6             3.4
        Average/year............................................             3.0             3.2             4.5
Revenue >=$100M:
    2014........................................................             4.1             4.7             2.7
    2015........................................................             3.7             4.3             8.7
    2016........................................................             2.4             2.3             2.6
        Average/year............................................             3.4             3.8             4.7
                                                                 -----------------------------------------------
            Difference in average/year..........................            -0.4            -0.6            -0.2
----------------------------------------------------------------------------------------------------------------

    Table 12 demonstrates that, among low-revenue issuers, the 
accelerated filers other than EGCs have a 0.2 percentage point 
(relative to non-accelerated filers other than EGCs) or 1.5 percentage 
point (relative to EGCs) lower rate of Item 4.02 restatements than the 
issuers in the comparison populations, which are not subject to the 
ICFR auditor attestation requirement. Following our analysis in the 
Proposing Release, given the difference in size and maturity of the 
affected issuers versus the comparison samples, we look to the lower 
end of this range and, with rounding, estimate that the rate of Item 
4.02 restatements among the affected issuers may increase by 0.5 
percentage points. Given how low the rates of Item 4.02 restatements 
are, the sample sizes in Table 12 are not sufficient to reliably 
differentiate between these rates. We are nevertheless comfortable with 
this estimate because it is consistent with the estimate that would be 
obtained by applying the average rate of Item 4.02 restatements out of 
all restatements, per Table 9 above,\539\ to our estimate of the effect 
on total restatements.
---------------------------------------------------------------------------

    \539\ The ratio of Item 4.02 restatements to all restatements in 
Table 7 ranges from 15 percent for large accelerated filers other 
than EGCs (1.6 percent divided by 10.6 percent) up to 35 percent for 
non-accelerated filers other than EGCs (2.9 percent divided by 8.5 
percent). Applying these rates to our estimated 2 percentage point 
effect on total restatements would result in an estimate of a 0.3 to 
0.7 percentage point effect on Item 4.02 restatements.
---------------------------------------------------------------------------

    This estimate of the effects on restatements that issuers deem to 
be material may help to provide some perspective on the magnitude of 
the anticipated effect. We provide further analysis of these magnitudes 
by exploring the market and financial statement impacts of the 
estimated effect on restatements. Table 15 in Section IV.C.3.c below 
provides related estimates per Item 4.02 restatement for low-revenue, 
seasoned issuers. In particular, the average net income impact for Item 
4.02 restatements is estimated to be -$1.9 million per year of restated 
financials for the 80 percent of cases where there is a net income 
impact, which is -$1.9 million times 80 percent or -$1.5 million on 
average across all cases. The average stock market impact is estimated 
to be -$1.4

[[Page 17221]]

million divided by 1.4 years or -$1 million per year of restated 
financials. We multiply these estimates by our estimate that an 
additional 0.5 percentage points of the affected issuers may have an 
Item 4.02 restatement of their financial statements for a given year to 
obtain estimates of -$7,500 in net income impact or -$5,000 in stock 
market impact per year per affected issuer that will newly be exempt 
from all ICFR auditor attestation requirements.
    One commenter provided alternative estimates of the magnitude of 
the effect on restatements, estimating that the affected issuers 
restated a total of $295 million in net income over the five years from 
2014 through 2018 and that the 2018 restatements reduced market 
capitalizations by $294 million in aggregate.\540\ We do not rely on 
these estimates for two primary reasons. First, these estimates reflect 
restatements that have occurred while these issuers are subject to the 
ICFR auditor attestation requirement.\541\ They do not provide us with 
information about the magnitude of new restatements that would be 
experienced if this requirement were to be removed. The use of this 
estimate would reflect an assumption that restatements would increase 
by 100 percent upon removal of the ICFR auditor attestation 
requirement, and we do not believe that there is evidence to support 
such an assumption. If anything, these estimates demonstrate the 
limitations of the ICFR auditor attestation requirement, in that 
significant restatements still occur despite the requirement, rather 
than informing us of the risks of removing the requirement.
---------------------------------------------------------------------------

    \540\ See letter from Prof. Barth et al. See also letter from 
Better Markets, citing these estimates.
    \541\ Similarly, one commenter cites charges of misconduct at a 
low-revenue issuer and argues that ``a well-designed ICFR audit 
might have uncovered the control deficiencies, and related revenue 
recognition violations, more quickly.'' See letter from CFA. 
However, based on its EDGAR filings, the issuer was in fact subject 
to the ICFR auditor attestation requirement in fiscal year 2014, the 
beginning of the period of alleged misconduct (and may have been 
subject to the requirement in the remainder of the period of alleged 
misconduct as well, but did not file Form 10-K in the following 
year), and the auditor's report in the associated Form 10-K attested 
that the issuer's ICFR was effective.
---------------------------------------------------------------------------

    Secondly, these estimates reflect the years in which restatements 
were announced rather than when the actual misstatement occurred. 
Effective ICFR is intended to reduce the risk of material 
misstatements, so we believe it is important to focus on when 
misstatements occurred, not when earlier misstatements were detected 
and announced, which could actually be a sign of a careful audit and 
effective ICFR. Focusing on the year of the restatement announcement 
rather than the year of the misstatement could capture firms that may 
not have qualified as affected issuers during the time the 
misstatements were made, but only dropped into the category of affected 
issuers because of the reduction in public float or revenue that 
resulted from the major restatement and related issues.\542\ In 
contrast to the commenter's analysis, our analysis is designed to 
measure the rate and magnitude of the incremental restatements that can 
be attributed to misstatements in years in which the issuers would 
qualify under the amendments to be exempt from the ICFR auditor 
attestation requirement and that would not have occurred if the issuers 
were subjected to this requirement.
---------------------------------------------------------------------------

    \542\ For example, a media report identified a particular issuer 
included in one commenter's analysis of significant restatements 
among issuers that were proposed to be exempted. See Dave Michaels, 
SEC Plan Gives Audit Relief to Firms that Wiped Out over $290 
Million, Wall St. J., July 26, 2019. See also letter from Prof. 
Barth et al. (providing statistics but not identifying specific 
issuers). Based on its EDGAR filings, the identified issuer had 
revenues substantially in excess of $100 million, even after the 
revisions described in the article, for fiscal years 2015 and 2016 
(the periods with misstatements that were later restated). Further, 
this issuer was subject to the ICFR auditor attestation requirement 
as a large accelerated filer in 2015 and an accelerated filer in 
2016. Therefore, we do not believe the amendments, if effective 
during those fiscal years, would have exempted this issuer from the 
ICFR auditor attestation requirement during the period in which the 
misstatements were made.
---------------------------------------------------------------------------

iv. Effects on Fraudulent Financial Reporting
    Several commenters indicated that we should give additional 
consideration to the potential impacts of the amendments on the risk of 
fraud.\543\ Further, a number of commenters cautioned that the risks of 
fraudulent financial reporting may be particularly high for low-revenue 
issuers,\544\ perhaps because of their incentives to demonstrate strong 
growth \545\ or because of their high implied price-to-revenue 
multiples.\546\ As part of our consideration of these comments, we 
conducted certain supplemental analysis regarding the risk of 
fraudulent financial reporting. That analysis, discussed below, 
provides additional context for considering the possible effects of the 
amendments. We note that commenters did not provide their own analyses 
or suggest specific methodologies for estimating any potential impact 
of the amendments on the risk of fraud.
---------------------------------------------------------------------------

    \543\ See, e.g., letters from CFA Inst., CII, and Prof. Barth et 
al.
    \544\ See, e.g., letter from CFA, CFA Inst., CII and Prof. Barth 
et al.
    \545\ See, e.g., letter from CFA.
    \546\ See, e.g., letters from CII and Prof. Barth et al.
---------------------------------------------------------------------------

    We acknowledge that fraudulent misconduct does occur, including at 
low-revenue issuers, and that the incentives to engage in such 
misconduct could be heightened for certain low-revenue issuers, 
depending on their specific situation. It is less clear what the 
average risk of fraud is across low-revenue issuers in general, and how 
this overall risk may be affected by the ICFR auditor attestation 
requirement. Measuring these effects is challenging because the sample 
sizes associated with typical measures of fraud are small, making 
reliable statistical determinations difficult. Further, we do not have 
an observable measure of all latent fraudulent conduct, but can only 
examine fraud that has been detected and that led to some observable 
action, which may not be a representative sample of all actual 
fraudulent activity. However, we acknowledge that it is important to 
carefully consider the potential impact of the amendments on the risk 
of fraud. We therefore use the available evidence and data to analyze 
this risk.
    We start by considering Accounting and Auditing Enforcement 
Releases (``AAERs'') \547\ and cases of ``financial misconduct'' or 
``financial reporting fraud'' based on subsets of these enforcement 
actions, as discussed below. A commenter noted that the Proposing 
Release did not consider the historical rate of fraud, the incidence of 
AAERs, the incidence of Wells notices and of formal SEC 
investigations.\548\ While ``fraud'' may be defined in different ways, 
our analysis below considers the historical rate of fraud, based on 
analysis of a subset of AAERs, and the incidence of AAERs. We believe 
that these are more appropriate measures of potential fraud risk, as 
they reflect incidents in which the Commission proceeded with charges. 
In contrast, formal investigations and Wells notices do not always 
uncover, and/or result in charges of, wrongdoing.\549\ The small sample 
size of

[[Page 17222]]

AAERs limits our ability to apply the methodology we used to estimate 
the potential impact on the prevalence of ineffective ICFR and the rate 
of restatements \550\ to reliably estimate a potential effect on the 
incidence of AAERs. Instead, we begin by examining the representation 
of low-revenue as compared to higher-revenue issuers in the population 
of issuers with AAERs or subsets of AAERs that include certain types of 
charges, as compared to their representation in the broader population 
of issuers, in order to investigate commenters concerns that the 
affected issuers may face particularly high risks of fraudulent 
financial reporting. We then separately apply results from existing 
studies on fraudulent financial reporting to obtain an estimate of the 
potential impact of the amendments on such misconduct.
---------------------------------------------------------------------------

    \547\ AAERs refer to certain financial reporting related 
enforcement actions concerning civil lawsuits brought by the 
Commission in federal court and notices and orders concerning the 
institution and/or settlement of administrative proceedings. Links 
to these releases since 1999 are available at https://www.sec.gov/divisions/enforce/friactions.shtml.
    \548\ See letter from Prof. Barth et al.
    \549\ See David Solomon and Eugene Soltes, Is ``Not Guilty'' the 
Same as ``Innocent''? Evidence from SEC Financial Fraud 
Investigations, Working Paper (2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3402780 (finding that, 
for financial fraud investigations by the Commission between 2002 
and 2005, only 25 percent resulted in enforcement actions); and Jean 
Eaglesham, SEC Drops 20% of Probes After ``Wells Notice,'' Wall St. 
J., Oct. 9, 2013 (reporting that, for the two-year period that ended 
in September 2012, 20 percent of the Wells notices issued were 
associated with investigations that were later closed without taking 
action being taken against the indicated parties). See also Terrence 
Blackburne, John Kepler, Phillip Quinn and Daniel Taylor, 
Undisclosed SEC Investigations, Working Paper (2019), available at 
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3507083 (finding 
that, for Commission investigations that were closed between 2000 
and 2017, only 44 percent were eventually publicly disclosed, though 
the study does not identify the subset of these cases involving 
charges or any action being taken).
    \550\ See Tables 13 and 14 of the Proposing Release, note 4 
above, and the accompanying text.
---------------------------------------------------------------------------

    Because the overall sample size of AAERs is limited, we use the 
full sample of years for which data is available, such that the alleged 
misconduct we analyze ranges from fiscal year 1971 to 2016 (based on 
AAERs issued from 1982 through 2018). We focus on issuers that are not 
within five years of their IPO (``seasoned issuers'') to better 
represent the affected issuers. Revenues are measured as of the date of 
the first misstated financial statements associated with an AAER, 
rather than at the date of the enforcement action, which is generally 
many years after this date.\551\
---------------------------------------------------------------------------

    \551\ The estimates in Table 13 are based on staff analysis of 
the U.S.C. Marshall AAER Database, which contains information on 
AAERs issued between May 1982 and December 2018, supplemented with 
information from AAERs (for a smaller sample, as discussed below) 
and data from Compustat. Multiple AAERs associated with the same 
financial statement years are treated as a single case. Consecutive 
years of financial statements associated with AAERs are also treated 
as a single case.

   Table 13--Representation of Low-Revenue and Higher-Revenue Seasoned
          Issuers in the Population and Among Those With AAERs
------------------------------------------------------------------------
                                            Among issuers not within  5
                                                  years of IPO *
                                         -------------------------------
                                           Percent with    Percent with
                                              revenue         revenue
                                              <$100M          >=$100M
------------------------------------------------------------------------
Total issuer-year level observations                  50              50
 with revenue data **...................
Issuers with AAERs:
    With alleged ``financial                          42              58
     misstatements'' ***................
    and with ``financial misconduct''                 24              76
     charges ****.......................
    and with ``financial reporting                    30              70
     fraud'' charges *****..............
------------------------------------------------------------------------
* The years after an issuer's IPO are computed as of the first date of
  the financial statements associated with the AAERs.
** This row includes data for fiscal years from 1971 through 2016 to
  reflect the full horizon of years of alleged misconduct identified in
  the U.S.C. Marshall AAER Database. As noted below, data on ``financial
  misconduct'' charges and ``financial reporting fraud'' charges was
  only collected for AAERs issued from 2002 through 2018. While these
  charges represent alleged misconduct dating back to as early as 1985,
  they are more likely to reflect relatively more recent years than
  those reflected in the full sample of AAERs. We therefore note, for
  the purpose of consideration of the last two rows of Table 13, that
  the percentage of low-revenue issuers among the total issuer-year
  observations of seasoned issuers with revenue data is reduced somewhat
  in the more recent part of this sample, to about 47 percent when
  considering data from fiscal years 1985 through 2016 or about 42
  percent when considering data from fiscal years 2000 through 2016.
*** This row represents AAERs that the U.S.C. Marshall AAER Database
  indicates as being associated with alleged financial misstatements.
**** This row represents AAERs among those included in the previous row
  that also include charges under Section 13(b)(2)(A) (requiring issuers
  to make and keep books, records, and accounts, which, in reasonable
  detail, accurately and fairly reflect the transactions and
  dispositions of the assets of the issuer), Section 13(b)(2)(B)
  (requiring an issuer to devise and maintain a system of internal
  accounting controls sufficient to provide certain reasonable
  assurances), or Section 13(b)(5) (requiring that no person shall
  knowingly circumvent or knowingly fail to implement a system of
  internal accounting controls or knowingly falsify any book, record, or
  account) of the Securities Exchange Act, or Rules 13b2-1 (requiring
  that no person directly or indirectly, falsify or cause to be
  falsified, any book, record or account) or 13b2-2 (requiring certain
  representations and conduct by directors and officers in connection
  with the preparation of required reports and documents) under the
  Securities Exchange Act. We only supplemented the U.S.C. Marshall AAER
  Database with information about these specific charges where
  applicable for AAERs issued from 2002 through 2018 (which include
  alleged misconduct associated with financial statements from fiscal
  year 1985 through 2016), so the set of AAERs considered in the
  computations in this row reflect a substantially smaller population of
  AAERs than those included in the second row of this table, which
  includes earlier AAERs (issued beginning in 1982). Our estimates do
  not significantly change if we remove charges associated only with
  third parties rather than the issuer in question and/or its staff from
  the sample before running the analysis.
***** This row represents AAERs among those included in the previous row
  that also include charges under the anti-fraud statutes in Section
  17(a)(1) of the Securities Act or Section 10(b) of the Securities
  Exchange Act. See also note **** above regarding limitations on the
  population of AAERs for which we supplemented the U.S.C. Marshall AAER
  Database with information on these charges. Our estimates do not
  significantly change if we remove charges associated only with third
  parties rather than the issuer in question and/or its staff from the
  sample before running the analysis.

    In Table 13, we consider all AAERs with alleged financial 
misstatements (row 2), as well as two subsets of these AAERs that we 
identify for those issued in, roughly, the past two decades.\552\ The 
first subset (row 3) represents those that we can identify as including 
charges under Section 13(b)(2)(A), Section 13(b)(2)(B), or Section 
13(b)(5) of the Securities Exchange Act, or Rules 13b2-1 or 13b2-2 
under the Securities Exchange Act. These cases have been identified by 
researchers as representing ``financial misconduct.'' \553\ The second

[[Page 17223]]

subset (row 4) is the subset of the ``financial misconduct'' cases that 
we can identify as also including charges under Section 17(a)(1) of the 
Securities Act or Section 10(b) of the Securities Exchange Act, which 
is one common way of identifying cases of ``financial reporting 
fraud.'' \554\ We note that others may define ``financial misconduct'' 
and ``financial reporting fraud'' differently.\555\
---------------------------------------------------------------------------

    \552\ The population of AAERs considered in these subsets is 
limited to those issued from 2002 through 2018. See Table 13 above.
    \553\ See Jonathan Karpoff, Allison Koester, D. Scott Lee, and 
Gerald Martin, Proxies and Databases in Financial Misconduct 
Research, 92(6) Acct. Rev. 129 (2017) (``Karpoff et al. 2017 
Study''). This study also raised concerns about omissions in the 
U.S.C. Marshall AAER Database, which they refer to as the CFRM 
database, but they noted that they understood that this issue was 
being addressed and that users of the newer iterations of this 
dataset, after the date of the study, should face lower or zero 
rates of effective omissions.
    \554\ See, e.g., Karpoff et al. 2017 Study, note 553 above, and 
COSO 2010 Fraud Study, note 505 above.
    \555\ See, e.g., Karpoff et al. 2017 Study, note 553 above, 
(describing certain other measures researchers have used and their 
limitations), note 553 above.
---------------------------------------------------------------------------

    Per the second through fourth rows of Table 13, the representation 
of low-revenue seasoned issuers among all seasoned issuers with any of 
these types of AAERs ranges from 24 to 42 percent. For comparison, we 
also derive the representation of low-revenue seasoned issuers among 
all seasoned issuers in the population. Per the first row of Table 13, 
across all of the years of our sample, and specifically among the 
seasoned issuers, 50 percent of the issuer-year observations are 
associated with low revenues.\556\ Thus, we do not find evidence based 
on the available data that low-revenue issuers are more highly 
represented in the set of seasoned issuers associated with ``financial 
misconduct'' or ``financial reporting fraud'' than they are in the 
overall population of seasoned issuers.
---------------------------------------------------------------------------

    \556\ While the latter two rows of Table 13, regarding 
``financial misconduct'' and ``financial reporting fraud,'' are 
based on relatively more recent data (AAERs issued from 2002 through 
2018, reflecting alleged misconduct from 1985 to 2016), we note that 
considering the prevalence of low-revenue issuers in relatively more 
recent years does not change our conclusions. For example, the 
percentage of low-revenue issuers among the total issuer-year 
observations of seasoned issuers with revenue data is about 47 
percent when considering data from 1985 through 2016 (reaching a 
minimum of 38 percent in 2016), which still exceeds the 25 to 30 
percent of the seasoned issuers associated with ``financial 
misconduct'' or ``financial reporting fraud'' that have low 
revenues.
---------------------------------------------------------------------------

    A caveat to this finding is that it only reflects cases of 
discovered and charged alleged misconduct, and may not be 
representative of all cases of actual misconduct.\557\ Also, this 
analysis is limited to the population of AAERs. There may be additional 
cases of alleged misconduct with respect to financial reporting that 
are charged but not associated with AAERs, and low-revenue issuers 
could be more highly represented among these cases.\558\ Further, even 
if the affected issuers may not be more likely to engage in fraudulent 
financial reporting than other seasoned issuers on average, certain of 
these affected issuers may have heightened incentives to engage in such 
activities, as noted by the commenters cited above.
---------------------------------------------------------------------------

    \557\ We note that the required data, such as data on revenues, 
may be less likely to be available for low-revenue issuers to the 
extent that, like other small issuers, they are less likely to be 
covered by traditional databases. This could reduce our ability to 
detect a higher representation of these issuers among those with 
various types of AAERs. However, this should generally be accounted 
for in our analysis because we draw comparisons only within the 
population of issuers with available data, and the same limitation 
applies to our ability to estimate the representation of such 
issuers in the overall population as in the population with AAERs.
    \558\ For example, not all of the enforcement actions listed in 
the category of ``Issuer Reporting/Auditing & Accounting'' in the 
Annual Report of the Commission's Division of Enforcement are 
associated with AAERs. See, e.g., 2019 Annual Report, Division of 
Enforcement, available at https://www.sec.gov/enforcement-annual-report-2019.pdf.
---------------------------------------------------------------------------

    We next consider whether expanding the exemption from the ICFR 
auditor attestation requirement for such issuers would affect their 
likelihood of engaging in such activities. To address this question, we 
rely on a study that associates material weaknesses in ICFR with an 
increased rate of ``financial reporting fraud.'' \559\ In particular, 
the study associates reporting ``entity-level'' material weaknesses in 
ICFR,\560\ but not other types of material weaknesses, with a 1.22 
percentage point increase in the rate of ``financial reporting fraud'' 
over the following three years, or 0.41 percentage points (1.22 divided 
by three) per year.
---------------------------------------------------------------------------

    \559\ See Donelson et al. 2017 Study, note 470 above. This study 
identifies ``financial reporting fraud'' as either (1) the sample of 
``fraud'' cases in the ``financial misrepresentation dataset'' from 
www.fesreg.com that underlies the Karpoff et al. 2017 Study, note 
553 above, which, based on the latter study, represents the subset 
of Commission or Department of Justice enforcement actions that 
include charges under Sections 13(b)(2)(A), Section 13(b)(2)(B), or 
Section 13(b)(5) of the Securities Exchange Act, or Rules 13b2-1 or 
13b2-2 under the Securities Exchange Act, that also include charges 
under the anti-fraud statutes in Section 17(a)(1) of the Securities 
Act or Section 10(b) of the Securities Exchange Act; or (2) settled 
securities class-action lawsuits that allege violations of GAAP.
    \560\ This study defines entity-level material weaknesses as 
those that Ives Group Audit Analytics identifies as being in any of 
the following categories: (1) Non-routine transaction control 
issues; (2) journal entry control issues; (3) foreign, related-
party, affiliated, or subsidiary issues; (4) an ineffective, 
nonexistent, or understaffed audit committee; (5) senior management 
competency, tone, or reliability issues; (6) an insufficient or 
nonexistent internal audit function; (7) ethical or compliance 
issues with personnel; or (8) accounting personnel resources, 
competency, or training issues. See Donelson et al. 2017 Study, note 
470 above.
---------------------------------------------------------------------------

    Given that any impact of the ICFR auditor attestation requirement 
on the risk of fraud is likely to result from the effect of this 
requirement on the effectiveness of ICFR, we apply the results of this 
study to our estimated effect on ICFR to quantify the potential 
increase in this risk that could be associated with the amendments. Per 
the results earlier in this section, we estimate that the amendments 
may eventually result in an additional 15 percentage points of the 
affected issuers maintaining ineffective ICFR. Examining the types of 
material weaknesses experienced by low-revenue issuers of different 
filer statuses, we find that up to 85 percent of their material 
weaknesses would be classified as ``entity-level'' material weaknesses 
as defined by the study we are relying on.\561\ Applying the above 
annualized estimate of a 0.41 percentage point increase in the rate of 
financial reporting fraud for issuers reporting ``entity-level'' 
material weaknesses to our estimate of a 12.75 percentage point (15 
percentage points times 85 percent) increase in the prevalence of such 
material weaknesses, we estimate that the amendments could eventually 
lead to an additional 0.05 percentage points (0.41 percent times 12.75 
percentage points) of the affected issuers being associated with 
alleged ``financial reporting fraud'' with respect to their financial 
statements for a given year.
---------------------------------------------------------------------------

    \561\ See note 560 above.
---------------------------------------------------------------------------

    To better understand the magnitude of this potential effect, we 
rely on another study that estimates that issuers lose a total of 38 
percent of their equity market value upon announcements of ``financial 
misrepresentation,'' or, given that the alleged violation periods in 
their sample span 27 months on average, 17 percent of equity market 
capitalization for each affected year.\562\ The affected issuers that 
will be newly exempt from all ICFR auditor attestation requirements 
have an average equity market capitalization of about $205 million. We 
therefore estimate that the magnitude of the potential increase in 
fraud risk is 0.05 percentage points (our estimated annualized rate of 
the increase in issuer-years associated with

[[Page 17224]]

``financial reporting fraud'') times 17 percent times $205 million, or 
about $17,500 in market capitalization per year per affected issuer 
that will be newly exempt from the ICFR auditor attestation 
requirements. We view this estimate as conservative because the study 
we rely on includes issuers that are younger and significantly smaller 
than the affected issuers, and we believe that the percentage of market 
capitalization loss is likely to be greater for such firms.
---------------------------------------------------------------------------

    \562\ See Jonathan Karpoff, D. Scott Lee, and Gerald Martin, The 
Cost to Firms of Cooking the Books, 48(3) J. of Fin. and 
Quantitative Analysis 581 (2008) (``Karpoff et al. 2008 Study''). 
The study defines ``financial misrepresentation'' consistently with 
the ``financial misrepresentation dataset'' from www.fesreg.com 
which, based on the Karpoff et al. 2017 Study, note 553 above, 
represents the subset of Commission or Department of Justice 
enforcement actions that include charges under Sections 13(b)(2)(A), 
Section 13(b)(2)(B), or Section 13(b)(5) of the Securities Exchange 
Act, or Rules 13b2-1 or 13b2-2 under the Securities Exchange Act. 
While the ``financial misrepresentation'' sample does not also 
require charges under the anti-fraud statutes, the Karpoff et al. 
2008 Study indicates that over three-fourths of this sample was 
associated with fraud charges.
---------------------------------------------------------------------------

    Overall, this analysis does not cause us to change our primary 
conclusions regarding the potential effects of the amendments.
v. Timing of the Effects
    We anticipate that the potential adverse effects of the amendments 
will develop gradually and are likely to be relatively limited in the 
short term. We discuss the reasons that we expect a gradual evolution 
in the remainder of this section. Nevertheless, we recognize that a 
delay in realizing some of the associated costs from the amendments 
would not necessarily mitigate their ultimate effects. The preceding 
discussion is based on the comparison of steady-state differences 
across issuers in different categories, and represents an analysis of 
the eventual effects of the amendments. Because the amendments will 
allow some current accelerated filers to transition to non-accelerated 
filer status, some issuers that have already been subject to an audit 
of ICFR for one or more years may no longer be required to obtain an 
ICFR auditor attestation. While other issuers will enter into the 
affected issuers category without having previously obtained an ICFR 
auditor attestation, and such issuers are likely to represent a larger 
fraction of the affected issuers over time, initially issuers with 
experience with ICFR auditor attestations are expected to represent a 
substantial fraction of the affected issuers.
    Newly exempt issuers may have implemented control improvements that 
would persist regardless of a transition. For example, they may have 
made investments in systems, procedures, or training that are unlikely 
to be reversed. It is difficult to predict the degree of inertia in 
ICFR and financial reporting in order to gauge how quickly, if at all, 
issuers that cease audits of ICFR may evolve such that their ICFR and 
the reliability of their financial statements is more characteristic of 
exempt issuers.\563\ The gradual nature of such an evolution, and the 
associated halo effect of the last disclosed ICFR auditor attestation, 
may limit the short-term costs of the amendments. In addition, issuers 
that believe control improvements are valuable for reporting and 
certifying results will be free to spend the resources saved on the 
attestations on such improvements.
---------------------------------------------------------------------------

    \563\ We note that there is a relatively small sample of 
accelerated filers transitioning to non-accelerated filer status 
because of changes in their public float, as compared to transitions 
in the other direction, and that such transitions likely represent 
special circumstances such as underperformance. Therefore, such 
transitions are not particularly helpful for predicting the outcomes 
of accelerated filers transitioning to non-accelerated filer status 
because of the amendments.
---------------------------------------------------------------------------

    Affected issuers with experience with audits of ICFR may also be 
more likely to continue to obtain an ICFR auditor attestation on a 
voluntary basis than other exempt issuers are to begin voluntary audits 
of ICFR. This may be due to such issuers having already incurred 
certain start-up costs or facing demand from their current investors to 
continue to provide ICFR auditor attestations. Some issuers in the 
groups that we use for comparison, which are not subject to an ICFR 
auditor attestation requirement, voluntarily obtain an ICFR auditor 
attestation. Thus, the comparisons made above at least partially 
account for the fact that some issuers may choose to obtain an ICFR 
auditor attestation even in the absence of a requirement. However, to 
the extent the rate of voluntary ICFR auditor attestations would be 
higher amongst the issuers that will be newly exempt from the ICFR 
auditor attestation requirement than other exempt issuers, the 
anticipated costs of the amendments in the near term may be further 
reduced.
c. Implications for Investor Decision-Making
    While we anticipate that the frequency of ineffective ICFR and, to 
a lesser extent, restatements may increase among the affected issuers 
as a result of the amendments, the economic effects of these changes 
may be reduced by another factor that may apply to many of these 
issuers. In particular, the usefulness of more reliable financial 
statements is linked to the degree to which they factor into the 
decisions of investors,\564\ for example, with respect to these 
investors' valuations of issuers.\565\ The financial statements of many 
low-revenue issuers may have relatively lower relevance for market 
performance if, for example, relative to higher-revenue issuers, their 
valuation hinges more on their future prospects than on their current 
financial performance.
---------------------------------------------------------------------------

    \564\ See, e.g., Dechow and Schrand 2004 Monograph, note 506 
above.
    \565\ See, e.g., Jennifer Francis & Katherine Schipper, Have 
Financial Statements Lost Their Relevance?, 37(2) J. of Acct. Res. 
319 (1999) (``Francis and Schipper 1999 Study''); and S. P. Kothari, 
Capital Markets Research in Accounting, 31 J. of Acct. and Econ. 105 
(2001).
---------------------------------------------------------------------------

    We explored this possibility empirically in the Proposing Release, 
which used the methodology applied in previous studies to calculate, 
for issuers above and below the $100 million revenue threshold, the 
extent to which the variation in market performance is related to the 
variation in financial measures. For issuers at or above $100 million 
in revenue, we found, consistent with the findings of previous studies 
of all issuers, that key financial variables (the book value of assets 
and liabilities, the book value of equity, earnings, and the change in 
earnings) explain about 60 to 70 percent of the variation in equity 
market capitalization and 7.5 percent of the variation in stock 
returns.\566\ In contrast, for issuers with revenues of less than $100 
million, we found that these financial variables explain about 30 
percent of the variation in equity market capitalization and just over 
4.5 percent of the variation in stock returns.
---------------------------------------------------------------------------

    \566\ See Table 15 of the Proposing Release, note 4 above. See 
also Francis and Schipper 1999 Study note 565 above. While that 
study ends in 1994, before our 20 year horizon, the results are 
similar. For example, for the most recent ten years in that study, 
the book values of assets and liabilities explain 54 to 70 percent 
of the variation in equity market valuation, the book value of 
equity and earnings explain 63 to 78 percent of the variation in 
equity market valuation, and earnings and the change in earnings 
explain six to 20 percent of the variation in stock returns.
---------------------------------------------------------------------------

    One commenter indicated that a low-revenue issuer could have a 
large market capitalization and thus ``greater investor exposure.'' 
\567\ While we agree that such affected issuers would generally expose 
more investors to risk, we note that the results discussed above 
suggest that, on average, relative to higher-revenue issuers, less of 
this risk seems to be associated with the issuers' current financial 
statements than with their future prospects.\568\ Another commenter 
agreed that future prospects are important to the valuation of entities 
in a growth phase, but noted that the financial variables we consider 
in our analysis are more likely to be considered in the valuation of 
low-revenue issuers that are more seasoned, and that we should 
therefore more fully consider the implications for these issuers in 
particular.\569\ This commenter

[[Page 17225]]

also suggested that we might consider additional financial variables 
that may be more relevant to the valuation of low-revenue issuers, such 
as the rate of revenue growth and measures of liquidity. In response to 
this comment, we conducted supplemental analysis of the empirical 
relevance of financial statements for low-revenue issuers in Table 
14.\570\ Specifically, because the affected issuers that will newly be 
exempt from the ICFR auditor attestation requirement are generally not 
within five years of their IPO, we limit the analysis to more seasoned 
issuers. Further, we run the analysis with additional variables, as 
discussed below.
---------------------------------------------------------------------------

    \567\ See letter from Grant Thornton.
    \568\ Also, the affected parties are limited to issuers with no 
more than $700 million in public float. Further, as discussed in 
Section IV.C.3.d. below, we estimate that in aggregate the affected 
issuers that will be newly exempt from all ICFR auditor attestation 
requirements represent 0.2 percent of the total equity market 
capitalization of issuers.
    \569\ See letter from Crane.
    \570\ The reported statistics are adjusted R-squared statistics 
based on regression analysis by staff using data from the Standard & 
Poor's Compustat and Center for Research in Security Prices 
databases. Seasoned issuers are those for which the data date is not 
within five years of the reported IPO date, where IPO dates are 
available. Market value and financial variables are measured as of 
the end of the fiscal year. Earnings is income before extraordinary 
items. Stock return is the 15-month stock return ending three months 
after fiscal year-end, to account for reporting lags. For the stock 
return regression, the explanatory variables are scaled by the 
lagged market value of equity, and outliers in one percent tails of 
variable distributions are dropped to reduce noise. See Francis and 
Schipper 1999 Study, note 565 above, for additional details.

Table 14--Percentage of Variation in Market Performance Explained by Variation in Financial Performance for 1999
                                        Through 2018, by Revenue Category
----------------------------------------------------------------------------------------------------------------
                                                                                      Revenue         Revenue
                Market variable                       Explanatory variables           <$100M          >=$100M
----------------------------------------------------------------------------------------------------------------
Seasoned issuers (not within five years of
 IPO):
    Market value of equity....................  Book value of assets, book value            40.9            58.8
                                                 of liabilities.
    Market value of equity....................  Book value of equity, earnings..            46.2            70.2
    Stock return..............................  Earnings, change in earnings....             5.5             7.6
Seasoned issuers, additional variables:
    Market value of equity....................  Book value of equity, earnings,             55.8            81.5
                                                 revenue, R&D expense, quick
                                                 ratio.
    Stock return..............................  Earnings, change in earnings,                8.4             9.0
                                                 revenue, change in revenue, R&D
                                                 expense, change in R&D expense.
----------------------------------------------------------------------------------------------------------------

    The first three rows of Table 14 are similar to the analysis in the 
Proposing Release, but are limited to issuers that are not within five 
years of their IPO. Focusing on this subsample of low-revenue issuers, 
which is more representative of the affected issuers that would be 
newly exempt from the ICFR auditor attestation requirement, we find 
that the financial variables considered in the Proposing Release 
explain about 40 to 45 percent of the variation in equity market 
capitalization and about 5.5 percent of the variation in stock returns. 
These percentages are slightly higher than our results for all low-
revenue issuers in the Proposing Release (for which the variables 
explain about 30 percent and 4.5 percent of the variation in equity 
market capitalization and stock returns respectively, as noted above). 
However, they remain substantially lower than the results for higher-
revenue seasoned issuers, for which the variables explain about 60 to 
70 percent of the variation in equity market capitalization and about 
7.5 percent of the variation in stock returns.
    The second panel of Table 14 considers additional variables based 
on the comment letter discussed above and on academic accounting 
literature on key value-relevant metrics. For example, the role of the 
book value of equity in valuation may reflect, among other things, the 
liquidation or adaptation value of an issuer.\571\ However, a commenter 
noted that, for issuers with little to no revenue, liquidity metrics 
are often relevant to a user's evaluation of future prospects.\572\ We 
agree that there is evidence that, for certain issuers, liquidity 
metrics that relate current assets to current liabilities may provide 
key additional information on the likelihood of, and value upon, 
liquidation.\573\ We therefore include the quick ratio (current assets 
less inventories, which may be difficult to monetize in the short term, 
minus current liabilities) in the analysis as a supplement to the book 
value of equity.
---------------------------------------------------------------------------

    \571\ See, e.g., Philip Berger, Eli Ofek, and Itzahk Swary, 
Investor Valuation of the Abandonment Option, 42(2) J. of Fin. Econ. 
259 (1996); David Burgstahler and Ilia Dichev, Earnings, Adaptation 
and Equity Value, 72(2) Acct. Rev. 187 (1997).
    \572\ See letter from Crowe.
    \573\ See, e.g., Sergei Davydenko, When Do Firms Default? A 
Study of the Default Boundary, Working Paper (2012), available at 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=672343 (finding 
that the quick ratio is highly correlated with the short-term 
probability of default, particularly for firms with less access to 
external capital).
---------------------------------------------------------------------------

    In considering further variables that would be appropriate to 
include in this analysis, we note that low-revenue issuers are 
significantly more likely to be loss-making than higher-revenue 
issuers.\574\ The academic literature provides evidence that for loss 
firms, revenues (and the change in revenues, or revenue growth) can be 
more value-relevant than earnings (and the change in earnings).\575\ A 
commenter also identified the rate of revenue growth as an example of a 
financial statement variable that investors may consider for low-
revenue firms.\576\ Separately, we note that research and development 
(``R&D'') costs are expensed and thereby reduce earnings, while there 
is evidence that the future benefits of R&D activity may not be 
reflected in the earnings of loss-making firms.\577\ For these reasons, 
we include revenues and R&D expenses (and the change in these measures) 
as a supplement to earnings (and the change in earnings) in the 
analysis in the second panel of Table 14.
---------------------------------------------------------------------------

    \574\ In this analysis, about half of the low-revenue issuers 
are loss-making, compared to about ten percent of the higher-revenue 
issuers.
    \575\ See, e.g., Aswath Damodaran, The Dark Side of Valuation: 
Firms with No Earnings, No History and No Comparables, Working Paper 
(1999), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1297075.
    \576\ See letter from Crowe.
    \577\ See, e.g., Laurel Franzen and Suresh Radhakrisnan, The 
Value Relevance of R&D across Profit and Loss Firms, 28 (1) J. of 
Acct. and Pub. Pol'y 16 (2009).
---------------------------------------------------------------------------

    As demonstrated in the last two rows of Table 14, including these 
additional variables does increase the amount of variation in equity 
market capitalization and stock returns explained by the financial 
statement variables. However, the percentage of explained variation 
remains lower for low-revenue seasoned issuers than for higher-revenue 
seasoned issuers.
    These results demonstrate that financial statement information is 
not irrelevant for low-revenue issuers. That is, information from 
financial statements is associated with market prices and returns for 
these issuers as well as other issuers. Thus, the potential reduction 
in the reliability of financial

[[Page 17226]]

statements for the affected issuers is expected to have some negative 
implications. However, the lower empirical relevance of financial 
statements on average for these issuers may partially mitigate the 
potential adverse effects of the amendments.
    In contrast to these findings, a number of commenters cited 
analysis in Commissioner Jackson's Statement suggesting that, based on 
the stock market reaction to annual report filings disclosing material 
weaknesses in ICFR, investors care most about the information provided 
by the ICFR auditor attestation of low-revenue issuers.\578\ Further, 
one of these commenters stated that the markets impose a ``much heftier 
penalty'' on small companies that restate than they do on larger 
companies.\579\ On the other hand, other commenters expressed the view 
that the ICFR auditor attestation requirement is not important or 
material to the investors of affected issuers, based on their own 
experience and/or a study referencing an analysis of the market 
reaction to Section 302 internal control weakness disclosures.\580\ As 
further evidence, two of these commenters asserted that investors 
rarely ask an issuer that is exempt from obtaining an ICFR auditor 
attestation to voluntarily comply with the requirement.\581\ In 
response to these comments, we have conducted analyses of the investor 
response to ICFR disclosures and restatement announcements at low-
revenue issuers versus other issuers.
---------------------------------------------------------------------------

    \578\ See, e.g., letters from CFA, CFA Inst., and CII, citing 
the event study analysis in Commissioner Jackson's Statement.
    \579\ See letter from CFA.
    \580\ See, e.g., letters from Adamas, Ardelyx, ASA, BIO, Carver, 
Catalyst, Chiasma, Corvus, CymaBay, Equillium, Evoke, Gritstone, 
Kezar, Marinus, Millendo, Organovo, Pieris, Revance, SI-BONE, Syros, 
Teligent, and Zynerba. Many of these letters cited the BIO Study, 
note 69 above, which in turn cites Jacqueline Hammersley, Linda 
Myers, and Catherina Shakespeare, Market Reactions to the Disclosure 
of Internal Control Weaknesses and to the Characteristics of those 
Weaknesses under Section 302 of the Sarbanes Oxley Act of 2002, 
13(1) Rev. of Acct. Stud. 141 (2008) (``Hammersley et al. 2008 
Study''). The BIO letter also directly cites the latter study. The 
BIO Study and BIO letter highlight the finding of the Hammersley et 
al. 2008 Study that the market response to issuers disclosing 
material weaknesses in disclosure controls in their Section 302 
disclosures is, in the whole sample, not statistically different 
from zero. However, we note that this study does find evidence of a 
statistically significant negative market reaction to such 
disclosures in a subsample uncontaminated by other announcements in 
the event window.
    \581\ See letters from Ardelyx and BIO.
---------------------------------------------------------------------------

    First, we consider the market reaction to the filing of annual 
reports that contain ICFR auditor attestations reporting material 
weaknesses in ICFR. We only consider ICFR auditor attestation reports, 
as opposed to Section 404(a) management reports, in order to focus on a 
sample of issuers comparable to the affected issuers \582\ and those 
reports that would no longer be required under the amendments. Because 
material weaknesses may persist across years, consecutive disclosures 
that continue to report material weaknesses are not likely to represent 
news to the market. We therefore focus on material weakness disclosures 
that are preceded by an ICFR auditor attestation reporting effective 
ICFR. We consider issuers with revenues of less than $100 million and 
higher-revenue issuers, but exclude those within five years of their 
IPO to more closely represent the affected issuers.\583\ Figure 7 \584\ 
presents the results of our event study analysis for disclosures in the 
last decade.\585\
---------------------------------------------------------------------------

    \582\ In particular, Section 404(a) management reports are 
required of all issuers other than RICs and ABS issuers, including 
those that are already non-accelerated filers and would therefore 
not be affected by the amendments.
    \583\ We obtain substantially similar results if we consider all 
issuers, rather than excluding those within five years of their IPO, 
or if we include consecutive annual reports with material weakness 
disclosures, rather than focusing on new material weakness 
disclosures.
    \584\ This figure is based on results from the Event Study by 
WRDS module available through Wharton Research Data Services and 
staff analysis of data from Ives Group Audit Analytics, Compustat, 
and CRSP. The figure includes all seasoned issuers that have an 
auditor attestation of ICFR that newly reports material weaknesses 
in ICFR following a previous attestation to effective ICFR in annual 
reports filed in calendar years 2009 through 2018. We exclude 
issuers for which the data date is within five years of the IPO date 
(i.e., non-seasoned issuers), if available. The cumulative average 
abnormal returns are calculated with respect to expected returns 
based on a multi-factor model including the three Fama French 
factors and a momentum factor, where the model parameters are 
calculated over an estimation period of up to 100 trading days 
ending 50 trading days before the event period.
    \585\ This time horizon was chosen to maximize the sample size 
while limiting the study to the period after the effectiveness of AS 
No. 5 (now referred to as AS 2201, note 292 above), which may have 
changed the nature of ICFR auditor attestations. See Section IV.B.1. 
above for a discussion of this auditing standard and the evidence 
that the nature of ICFR auditor attestations may have changed as a 
result of its adoption. Our results are substantially similar when 
considering alternative time horizons, such as the past five years.

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

[[Page 17227]]

[GRAPHIC] [TIFF OMITTED] TR26MR20.006

    Our analysis does not suggest that investors care more about the 
information produced by the ICFR auditor attestation requirement at 
low-revenue issuers. In particular, investors did not react more 
negatively to low-revenue issuers disclosing material weaknesses than 
to such disclosures by the higher-revenue issuers. None of the 
cumulative average abnormal returns plotted in the figure, whether for 
low- or higher-revenue issuers, are statistically differentiable from 
zero at conventional confidence levels.\586\
---------------------------------------------------------------------------

    \586\ The analysis applies the standardized cross-sectional 
test, which is robust to cross-sectional dependence in abnormal 
returns (which often results when events cluster in time, as in the 
case of annual report filing dates) as well as any event-induced 
increase in the variance of returns, to measure the statistical 
significance of the abnormal returns. See Ekkehart Boehmer, Jim 
Musumeci, and Annette Poulsen, Event-Study Methodology under 
Conditions of Event-Induced Variance, 30(2) J. of Fin. Econ. 253 
(1991) (``Boehmer et al. 1991'').
---------------------------------------------------------------------------

    Our figure differs from the similar analysis that was cited by 
commenters for a number of reasons. First, that analysis includes a 
number of duplicate observations.\587\ The duplication generally occurs 
when there is both an ICFR auditor attestation and a Section 404(a) 
management report reporting a material weakness in the same annual 
report. While the duplicate observations appear to have only a modest 
effect on the pattern of the measured cumulative abnormal returns, they 
likely have the effect of biasing downward the width of the confidence 
interval presented in the analysis. When we remove the duplicates, we 
find that, as in our own analysis, the cumulative average abnormal 
returns for low-revenue issuers are not statistically differentiable 
from zero at conventional confidence levels for any day within the 11-
day event period surrounding the disclosure date.\588\ Also, we note 
that even without this adjustment, the confidence intervals plotted in 
the other analysis indicate that, by the end of the presented event 
period, the cumulative average abnormal returns are no longer 
statistically differentiable from zero for issuers with below $100 
million in revenues.\589\
---------------------------------------------------------------------------

    \587\ About 30% of the low-revenue observations in the analysis 
are exact duplicates in terms of company identifiers, event date, 
revenue and returns. See ``Abnormal Returns Data,'' available at 
https://www.sec.gov/news/public-statement/jackson-statement-proposed-amendments-accelerated-filer-definition.
    \588\ The width of the confidence interval at the far right side 
of the figure (for day +5) in the analysis cited by commenters 
appears to be about 0.85 percentage points. We understand that the 
standard errors in that analysis are simple cross-sectional standard 
errors (which are robust to event-induced increases in the variance 
of returns but not to any cross-sectional dependence in abnormal 
returns). Removing the duplicates, we find that the width of the 
corresponding 95% confidence interval would be 2.02 percentage 
points using this approach, which is about 2.4 times wider than the 
reported confidence interval.
    \589\ In particular, the presented confidence bands for the 
cumulative abnormal returns include zero by day 11 of the analysis, 
which considers the 11-day period beginning five days prior and 
ending five days subsequent to the date of disclosure.
---------------------------------------------------------------------------

    Second, more than half of the non-duplicate low-revenue 
observations in the other analysis appear to reflect reports of 
material weaknesses in Section 404(a) management reports in the absence 
of an ICFR auditor attestation. As discussed above, our analysis 
excludes observations where there is only a Section 404(a) management 
report because we believe they have limited relevance when considering 
the affected issuers and the effects of the amendments. Third, the 
other analysis reflects a different time horizon (2004 through 2017) 
than our analysis (2009 through 2018). In our analysis, we restrict the 
time horizon to the period after the effectiveness of AS No. 5 because 
the nature of ICFR auditor attestations may have changed after this 
point. These additional differences in

[[Page 17228]]

the underlying sample appear to drive the differences in the pattern of 
the cumulative average abnormal returns in the analysis cited by 
commenters relative to our own analysis.\590\ However, even if we were 
to use the broader set of reports and/or the time horizon of the other 
analysis, we continue to find that the cumulative average abnormal 
returns are not statistically differentiable from zero at conventional 
confidence levels for any day within the 11-day event period 
surrounding the disclosure date.
---------------------------------------------------------------------------

    \590\ While, as discussed above, we also refine the analysis 
presented in Figure 7 to exclude consecutive disclosures that 
continue to report material weaknesses and to limit the analysis to 
seasoned issuers, we find that these choices have more modest 
effects on the pattern of cumulative average abnormal returns.
---------------------------------------------------------------------------

    There is substantial noise inherent to an analysis of the 
disclosure of material weaknesses in annual reports, both because these 
reports often contain or are accompanied by significant confounding 
information \591\ and because material weaknesses are often disclosed 
in advance of the annual report.\592\ We therefore also undertook 
analysis of the market and financial statement impact of material 
restatements disclosed in Item 4.02 Form 8-K filings, which are 
relatively less likely to be accompanied by unrelated news or to be 
disclosed in advance of the filing. We consider restatements over the 
10-year horizon from 2009 through 2018 to obtain more reliable 
estimates while still focusing on a recent period that should be 
reasonably representative of the current environment.\593\
---------------------------------------------------------------------------

    \591\ Staff analysis of material weakness disclosures that were 
accompanied by large positive or negative stock returns found 
evidence of announcements of confounding news that are associated 
with large positive returns (e.g., significantly beat earnings 
estimates, positive news about Phase III trial, liquidity infusion, 
merger announcement) and large negative returns (e.g., significantly 
miss earnings estimates, liquidity problems and security issuance at 
significant discount). See also, e.g., Paul Griffin, Got 
Information? Investor Response to Form 10-K and Form 10-Q EDGAR 
Filings, 8(4) Rev. of Acct. Stud. 433 (2003) (for more detail on the 
overall information content of annual reports) and Edward Li and K. 
Ramesh, Market Reaction Surrounding the Filing of Periodic SEC 
Reports, 84(4) Acct. Rev 1171 (2009) (for further analysis of the 
information content released in, and at the time of, annual report 
filing).
    \592\ Staff analysis of material weakness disclosures that were 
preceded by an ICFR auditor attestation reporting effective ICFR 
found that in about one-third of cases these new material weaknesses 
had been disclosed prior to the annual report, such as in an Item 
4.02 Form 8-K or a Form 10-Q filing.
    \593\ The estimates in Table 15 are based on staff analysis of 
restatements associated with an Item 4.02 8-K dated within calendar 
years 2009 through 2018. The sample includes, for issuers that are 
not within five years of their IPO, 260 restatements by low-revenue 
issuers and 384 restatements for higher-revenue issuers with non-
missing stock returns. The data on restatements, including their 
financial statement effects, are from Audit Analytics. Revenues are 
measured as of the beginning of the restated period. The data on 
revenues and IPO dates are from Compustat. The announcement returns 
are cumulative abnormal returns based on results from the Event 
Study by WRDS module available through Wharton Research Data 
Services. They represent the cumulative abnormal returns for the 
two-day event period including the date of the associated 8-K filing 
and the following trading day. These abnormal returns are estimated 
relative to a benchmark model of returns based on the three Fama-
French factors and a momentum factor, where the model parameters are 
calculated over an estimation period of up to 100 trading days 
ending 50 trading days before the event date. The confidence 
intervals are based on the standardized cross-sectional test of 
Boehmer et al. 1991, note 586 above.

Table 15--Estimated Effects of Item 4.02 8-K Restatements Announced by Seasoned Issuers in 2009-2018, by Revenue
                                      Category at Time of the Misstatement
----------------------------------------------------------------------------------------------------------------
                                                           Issuers not within five years of IPO
                                         -----------------------------------------------------------------------
                                                    Revenue <$100M                      Revenue >=$100M
----------------------------------------------------------------------------------------------------------------
Average 2-day announcement return (%)...  -0.9%.............................  -3.3%.
Announcement return statistically         No................................  Yes.
 distinguishable from zero (95%
 confidence level).
Average 2-day announcement return (95%    -2.2% to +0.3%....................  -4.2% to -2.3%.
 confidence interval).
Average 2-day announcement effect ($)...  -$1.4M............................  -$22.0M.
Percent with adverse financial statement  78%...............................  80%.
 effect *.
Percent with income effect..............  83%...............................  81%.
Among those with income effect, average   -$1.9M............................  -$13.2M.
 net income effect ($) per year of
 restated financials.
Average length of restated period.......  1.4 years.........................  2.0 years.
----------------------------------------------------------------------------------------------------------------
* This row, based on the ``Effect'' variable from Ives Group Audit Analytics, indicates whether the net effect
  to the financial statements (income statement, balance sheet or cash flows) was negative.

    As with our previous analyses, this supplemental analysis also does 
not support the assertion that investors care more about the 
reliability of the information in the financial statements of low-
revenue issuers than that of higher-revenue issuers. The market 
reaction to Item 4.02 Form 8-K filings is statistically 
indistinguishable from zero for low-revenue, seasoned issuers, but is 
negative and statistically significant for higher-revenue issuers. 
While the point estimates for the market impact of the restatements are 
uncertain, as demonstrated by the confidence intervals presented in the 
second row of Table 15, the corresponding point estimates for the 
dollar market impact per restatement announcement are also 
substantially lower (at $1.4 million versus $22.0 million) for low-
revenue seasoned issuers as compared to higher-revenue seasoned 
issuers. The rate of Item 4.02 restatements with negative financial 
statement impact or with net income impact is similar for both 
categories of issuers, at about 80 percent. We also consider how the 
average dollar market impact of the restatements relates to the average 
dollar correction in annualized net income, in case investors react 
more strongly per dollar of the correction in annualized net income for 
low-revenue issuers. However, Table 15 does not provide evidence that 
the corresponding point estimate dollar market impact is 
proportionately greater relative to the average annualized effect on 
net income for low-revenue seasoned issuers than for high revenue 
seasoned issuers.\594\
---------------------------------------------------------------------------

    \594\ In particular, the ratio of average dollar market impact 
of the restatements relative to the average dollar correction in 
annualized net income for low-revenue seasoned issuers is -$1.4M/-
$1.9M or about 0.7, while the corresponding ratio for higher-revenue 
seasoned issuers is -$22.0/-$13.2 or about 1.7.
---------------------------------------------------------------------------

    Overall, we acknowledge that a lower reliability of their financial 
statements may have significant effects on the valuation of certain 
low-revenue issuers. It is possible, for example, as one commenter 
stated, that ``[for] many low-revenue companies that are struggling to 
become high revenue companies . . . their ability to attract capital 
may depend primarily on their ability to convince analysts and 
investors that their revenues are strong and steadily rising.'' \595\ 
However, when we consider

[[Page 17229]]

the evidence in aggregate across the population of low-revenue and 
higher-revenue seasoned issuers based on the three different types of 
analyses in this section, we find some evidence that financial 
statements and their reliability are less associated with market prices 
for low-revenue issuers and no evidence that there is a stronger 
association with market prices for low-revenue issuers than for higher-
revenue issuers. Therefore, we continue to believe that the evidence 
supports the supposition that relative to higher-revenue issuers, the 
value of low-revenue issuers, on average, hinges more on their future 
prospects than on their current financial performance, and that this 
consideration should mitigate the potential adverse effects of the 
amendments.
---------------------------------------------------------------------------

    \595\ See letter from CFA.
---------------------------------------------------------------------------

d. Potential Economic Costs of Effects on ICFR, the Reliability of 
Financial Statements, and Potential Fraud
    A number of commenters indicated that we should make further 
attempts to quantify the potential costs of the amendments.\596\ A few 
commenters further asserted that the costs of the amendments will 
significantly outweigh any benefits.\597\ In the previous section, we 
estimated that the affected issuers that will newly be exempt from all 
ICFR auditor attestation requirements may eventually experience a 15 
percentage point increase in ineffective ICFR and, for a given year of 
financial statements, an estimated 2 percentage point increase in 
restatements, a 0.5 percentage point increase in Item 4.02 
restatements, and a 0.05 percentage point increase in ``financial 
reporting fraud'' associated with those financial statements. In this 
section, we provide additional monetized estimates of the impact, in 
dollar terms, which may be associated with certain potential adverse 
effects. As noted earlier, this discussion and these estimates are 
focused on affected issuers that will be newly exempt from the ICFR 
auditor attestation requirement and are not expected to be subject to 
the FDIC auditor attestation requirement.
---------------------------------------------------------------------------

    \596\ See, e.g., letters from Better Markets, CFA Inst., CII, 
Prof. Barth et al., and Prof. Ge et al.
    \597\ See, e.g., letters from Better Markets and Prof. Barth et 
al.
---------------------------------------------------------------------------

    Overall, as discussed in more detail below, we are able to 
quantitatively estimate, per year per affected issuer, a total of 
approximately $60,000 in costs and an additional approximately $10,000 
in transfers across shareholders, which represent costs to some 
shareholders and benefits to other shareholders.\598\ These estimates 
reflect our quantification, based on the available evidence and data, 
of potential effects related to operating performance, restatements, 
and financial reporting fraud. We note that we are unable to adjust the 
dominant component of the estimates (the estimated effect on operating 
performance) for the mitigating factors associated with low-revenue 
issuers that we discuss throughout this release, so the total estimate 
of costs may be inflated.
---------------------------------------------------------------------------

    \598\ The costs we estimate represent actual forgone value, 
while the transfers simply represent corrections to reflect an 
issuer's true financial position.
---------------------------------------------------------------------------

    Given that our estimate of the cost savings per year per affected 
issuer is $210,000, we do not find evidence to support the views of the 
commenters that indicated that the costs of the amendments would 
significantly outweigh the benefits. However, we note two main caveats 
associated with our estimates of the costs and transfer that may result 
from the amendments, and with the underlying components of these 
estimates, which are discussed in more detail below. First, these 
estimates are necessarily more uncertain than our monetized estimates 
of cost savings to issuers because they are based on a larger number of 
assumptions. Secondly, we caution against attempts to over-interpret 
the relation between our quantitative estimates of monetized benefits 
and monetized costs, because neither of these measures is complete. For 
example, we are not able to monetize the potential benefit of reduced 
management distraction from operating activities \599\ or the potential 
market-level costs of reduced efficiency of investor allocation across 
investment opportunities or reduced investor confidence.\600\ We 
therefore are not able to quantify the overall net benefit or cost of 
the amendments.
---------------------------------------------------------------------------

    \599\ See, e.g., letter from Sutro.
    \600\ See, e.g., letter from CII.
---------------------------------------------------------------------------

i. Computation of Monetized Estimates of Costs
    We provide further quantification of potential adverse effects of 
the amendments in this section, while the next section provides a 
discussion of these costs as well as other economic costs that we are 
unable to quantify. We begin by considering costs that may represent 
deadweight losses, or net costs to society, followed by a consideration 
of transfers across shareholders. First, we estimate the potential 
deadweight losses associated with a potential increase in the risk of 
fraud. In Section IV.C.3.b.iv. above, we estimated the magnitude of the 
potential increase in fraud risk to be about $17,500 in market 
capitalization per year per affected issuer that will be newly exempt 
from the ICFR auditor attestation requirements. A study that breaks 
down the equity market impact of fraud into deadweight losses (such as 
legal costs and impaired reputation) versus the effects that reflect 
the market adjusting to a more accurate representation of issuers' 
financial situations estimates that the former constitute approximately 
75 percent of the total equity market loss.\601\ We therefore estimate 
the potential average incremental deadweight loss associated with fraud 
to be $17,500 times 75 percent or roughly $13,000 per year per affected 
issuer. We consider the remainder of the estimated equity market 
effect, which represents a transfer from some investors to other 
investors, separately below.
---------------------------------------------------------------------------

    \601\ See Karpoff et al. 2008 Study, note 562 above.
---------------------------------------------------------------------------

    Commenters suggested that we should quantify effects on operating 
performance associated with ICFR misreporting,\602\ which are less 
likely to be corrected by remediation because the underlying material 
weaknesses are likely undetected. As discussed in the Proposing 
Release, potential effects of the amendments on operating performance 
are difficult to measure because the existing studies may not be 
generalizable to the affected issuers and the methods used in previous 
studies are difficult to apply to a comparable sample of low-revenue 
issuers in recent years.\603\ However, in response to these comments, 
we rely on the results of a recent study \604\ to provide an estimate 
of the possible loss in profits per year associated with ICFR 
misreporting. While we expect that the anticipated effect on the 
affected issuers would be reduced relative to those in the study given 
the mitigating factors specific to low-revenue issuers discussed above, 
we are unable to estimate an appropriate adjustment to reflect these 
factors. The study estimates that the difference in return on assets 
for issuers misreporting that they have effective ICFR versus those 
that properly report that they have ineffective ICFR (and thereby 
perhaps also work towards remediating their ICFR) is 3.3 percentage 
points over three years, or 1.1 percentage point per year. We multiply 
this difference by our estimate of the potential increase in 
misreporting of effective ICFR from Section IV.C.3.b.ii. above, which 
(based on statistics from the same study) is 3.5 percentage points, and 
the estimated average total assets of the affected

[[Page 17230]]

issuers that will be newly exempt from all ICFR auditor attestation 
requirements from Section IV.C.1 above, which is $125 million. This 
results in an estimated reduction in potential earnings of about 
$48,000 per year on average for an affected issuer. As noted above, 
this estimate may be inflated, as it does not reflect any of the 
mitigating factors specific to low-revenue issuers discussed above.
---------------------------------------------------------------------------

    \602\ See, e.g., letters from CII, Prof. Barth et al., and Prof. 
Ge et al.
    \603\ See Section III.C.4.c. of the Proposing Release, note 4 
above.
    \604\ See Ge et al. 2017 Study, note 393 above.
---------------------------------------------------------------------------

    In total, we estimate potential issuer-level costs of $48,000 in 
reduced earnings plus $13,000 in losses related to the increased risk 
of fraud, or roughly $60,000 in costs per year on average per affected 
issuer, though we view this estimate as conservative because it does 
not fully account for the mitigating factors discussed above. Next, we 
note that some of the potential adverse effects quantified in Section 
IV.C.3.b. above may be associated with stock market values that fail, 
at a given time, to reflect issuers' actual financial position. This 
potential inflation and later correction of stock market values would 
result in transfers that benefit some shareholders and harm other 
shareholders. Further, the same shareholder may benefit in certain of 
his shareholdings and be harmed in other shareholdings. Also, at any 
given time, the stock price may be inflated for certain reasons but 
have corrected for other prior inflation, depending on the timing of 
the revelation of the underlying issues. For the purpose of 
quantification of these potential transfers, we assume that issues are 
revealed gradually and smoothly over time, such that there is an even 
effect across years.
    The first source of mispricing we consider is misstatements that 
later translate into restatements. In Section IV.C.3.b.iii. above, we 
estimated that the magnitude of the potential increase in Item 4.02 
restatements represented -$5,000 in stock market impact per year per 
affected issuer. Secondly, we estimated earlier in this section that 
the magnitude of the potential increase in fraud risk is about -$17,500 
in market capitalization per year per affected issuer, of which 25 
percent or about -$4,500 reflects the market adjusting to a more 
accurate representation of issuers' financial situations.\605\ Summing 
these quantified effects, and rounding up, we estimate that there may 
be approximately $10,000 of pure transfers across shareholders per year 
per affected issuer representing these corrections in stock values to 
reflect issuers' actual financial positions.
---------------------------------------------------------------------------

    \605\ We note that some portion of this correction may already 
be incorporated in our estimate with respect to restatements given 
that we do no separately consider restatements that are associated 
with specific charges or allegations versus other statements.
---------------------------------------------------------------------------

    As discussed above, these estimates are intended to be responsive 
to commenters who indicated that further quantitative analysis of the 
costs of the amendments would be appropriate. One commenter also 
provided alternative quantified estimates of the costs of expanding the 
exemption from the ICFR auditor attestation requirement, estimating a 
$1.7 million loss in future earnings and $2.2 million in forgone market 
value per issuer.\606\ While we rely on evidence from the same 
underlying study that this commenter uses for some of our estimates, we 
do not rely on these specific estimates for two primary reasons. First, 
the underlying study indicates that these per issuer estimates apply 
not to all issuers but only to those issuers that are suspected of 
misreporting that their ICFR is effective when exempted from the ICFR 
attestation requirement, which the study estimates to be only 9.3 
percent of the issuers.\607\ Secondly, these estimates reflect 
aggregate effects over three years and we scale everything to 
annualized effects for better comparability.\608\ We also note that the 
estimate described by the commenter as forgone market value is 
described in the underlying study as a delay in a market value decline 
that would otherwise happen currently, not as an increase in market 
capitalization that could be captured under the ICFR auditor 
attestation requirement.\609\
---------------------------------------------------------------------------

    \606\ See letter from Prof. Barth et al.
    \607\ See Ge et al. 2017 Study, note 393 above.
    \608\ Id.
    \609\ Id. In particular, this study estimates a stock market 
value correction that would be delayed until ICFR misreporters 
experience the negative consequences of ineffective ICFR (such as 
restatements or lower operating performance), rather than resulting 
immediately because of a disclosure of ineffective ICFR. The study 
estimates that a $2.2 million stock market value correction would be 
delayed across a period of three years per suspected misreporter, 
who are estimated to represent 9.3 percent of the issuers exempt 
from the ICFR auditor attestation requirement. Annualizing and 
generalizing the study's estimate across issuers' results in an 
estimated delayed stock market correction per year per affected 
issuer of about $70,000 ($2.2 million divided by three years times 
9.3 percent). We note that this estimate is similar to the likely 
stock market impact of the quantified costs and transfers that we 
estimate may result from the adverse effects of removing the ICFR 
auditor attestation requirement for the affected issuers (such as 
restatements and lower operating performance). In particular, our 
estimate of about $10,000 in potential transfers per year per 
affected issuer represents a $10,000 potential stock market 
correction per year per affected issuer. Our estimate of quantified 
potential costs of about $60,000 per year per affected issuer would 
likely be reflected in a similarly-sized stock market reaction, for 
a further potential stock market correction of about $60,000 per 
year per affected issuer, and a total of about $70,000 ($10,000 plus 
$60,000) in stock market effects per year per affected issuer, the 
same as the estimate implied by the study. That said, we differ 
somewhat in the attribution of this total to deadweight costs versus 
transfers, as the Ge et al. 2017 study, note 393 above, suggests 
that the total estimated stock market effect may represent only a 
difference in timing of the effect and thus a transfer across 
shareholders.
---------------------------------------------------------------------------

    Another commenter \610\ cited the same underlying study's \611\ 
estimates of quantified costs and benefits associated with the ICFR 
auditor attestation. As discussed above, the study estimates, in 
aggregate and in present value terms, a total of $388 million in 
aggregate audit fee savings and a total of $719 million in lower 
earnings associated with exempting non-accelerated filers.\612\ While 
the commenter did not suggest that we adopt those specific estimates, 
we note that we do not rely directly on those estimates, which apply to 
a different context. In particular, the estimates in that study are 
intended to quantify the costs and benefits associated with the 
exemption that applies to all existing non-accelerated filers, versus 
those associated with extending the exemption to the smaller number and 
different type of affected issuers discussed in this release. However, 
as discussed in more detail throughout the release, we do rely on some 
results and approaches from that study in constructing our own 
estimates.
---------------------------------------------------------------------------

    \610\ See letter from Prof. Ge et al.
    \611\ See Ge et al. 2017 Study, note 393 above.
    \612\ This study also estimates a delay over three years in the 
timing of a market value decline (that would otherwise have occurred 
at the beginning of this three year period) of $935 million 
associated with the exemption from the ICFR auditor attestation 
requirement. See Section IV.C.2.b.ii. above.
---------------------------------------------------------------------------

ii. Discussion of Economic Costs
    While the previous section provided computations of monetary 
estimates of certain potential adverse effects of the amendments, this 
section provides further discussion of those costs as well as other 
economic costs that we are unable to quantify. Per the discussion in 
Section IV.C.3.a. above, any impact of the amendments on the 
effectiveness of ICFR and the reliability of financial statements may 
have issuer-level implications as well as market-level implications. At 
the issuer level, the potential increase, on average, in the rate of 
ineffective ICFR and restatements may lead investors to charge a 
somewhat higher average cost of capital for the affected issuers. An 
issuer's cost of capital, or the expected return that investors demand 
to hold its securities, determines the price at which it can raise 
funds. Thus, any such increase may be associated with a reduction in

[[Page 17231]]

capital formation to the extent that it decreases the rate at which the 
affected issuers raise new capital towards new investments. Further, 
the affected issuers may also experience reduced operational efficiency 
because of the reduced reliability of financial information available 
to management for the purpose of making operating decisions. These 
potential effects are supported by a number of studies discussed 
above.\613\ Finally, there may be legal and reputational costs 
associated with any increase in the risk of fraud, which would 
represent deadweight losses, or net costs to society.
---------------------------------------------------------------------------

    \613\ See Section IV.C.3.a. above.
---------------------------------------------------------------------------

    Several commenters expressed the view that eliminating the ICFR 
auditor attestation requirement would increase the cost of capital for 
certain issuers because of the potential effects of this change on the 
reliability of the financial statements of the affected issuers.\614\ 
The potential issuer-level effect on the cost of capital is difficult 
to confirm and to quantify for the affected issuers because the 
existing studies may not be generalizable to the affected issuers and 
to the current nature of ICFR auditor attestations (i.e., after the 
2007 change in the ICFR auditing standard, the 2010 change in risk 
assessment auditing standards, and recent PCAOB inspections focused on 
these aspects of audits). Further, some of these studies provide mixed 
evidence, as discussed in Section IV.C.3.a. above. Moreover, the 
methods used in previous studies are difficult to apply to a comparable 
sample of low-revenue issuers in more recent years because, for 
example, there would only be a small sample of such issuers that 
recently switched filing status and because methods of measuring the 
implied cost of capital are particularly problematic for such 
issuers.\615\ Commenters did not provide us with estimates or data that 
could be used to estimate potential effects on the cost of capital.
---------------------------------------------------------------------------

    \614\ See, e.g., letters from BDO and CFA.
    \615\ See note 481 above.
---------------------------------------------------------------------------

    The available evidence supports the qualitative, directional 
effects on cost of capital noted above. That is, some of the affected 
issuers could experience an increase in their cost of capital. However, 
the previous section demonstrated that the potential increase in 
material weaknesses in ICFR that we estimate could occur may translate 
into a more limited effect on the reliability of disclosures, as 
measured, for example, by the rate of restatements, for the affected 
issuers. Also, based on our analysis, the financial metrics of these 
issuers have lower explanatory power for investors' determination of 
their value than in the case of other issuers. These two factors may 
mitigate the potential adverse effects on the affected issuers' cost of 
capital.
    In addition, some of the costs of extending the exemption from the 
ICFR auditor attestation requirement to additional issuers may be 
further mitigated by the fact that some issuers, even if exempted, may 
voluntarily choose to bear the costs of obtaining such an 
attestation.\616\ Affected issuers that expect a lower cost of capital 
with an ICFR auditor attestation, such as those with effective 
ICFR,\617\ and particularly those that will be raising new debt or 
equity capital,\618\ are more likely to voluntarily obtain an ICFR 
auditor attestation. We note that low-revenue issuers have less access 
to internally-generated capital, as discussed above, so they may be 
more reliant on external financing for capital. Consistent with this 
argument, commenters suggested that issuers may voluntarily obtain an 
ICFR auditor attestation if it were demanded by investors,\619\ not 
complying would have a negative impact on investment analysts' 
coverage,\620\ or issuers deem it a good use of their capital 
resources.\621\ Further, as discussed in Section IV.C.4.d. below, we 
note that the benefits and therefore likelihood of voluntarily 
obtaining ICFR auditor attestations may be increased by the new check-
box disclosure on annual reports required by the amendments, in that 
investors should be more able to readily discern which issuers obtained 
an ICFR auditor attestation.\622\ However, it is probably not the case 
that issuers would voluntarily obtain an ICFR auditor attestation in 
every case in which the total benefits of doing so would exceed the 
total costs.\623\
---------------------------------------------------------------------------

    \616\ Studies have associated voluntary compliance with the ICFR 
auditor attestation requirement with decreased cost of capital and 
value enhancements. See, e.g., Cory Cassell, Linda Myers, & Jian 
Zhou, The Effect of Voluntary Internal Control Audits on the Cost of 
Capital, Working Paper (2013) (Cassell et al. 2013 Study), available 
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734300; Todd 
Kravet, Sarah McVay, & David Weber, Costs and Benefits of Internal 
Control Audits: Evidence from M&A Transactions, Rev. of Acct. Stud. 
(forthcoming 2018), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2958318; and Carnes et al. 2019 Study, note 
397 above. We note that the latter two studies are not able to 
differentiate between the effects of the ICFR auditor attestation 
and of management's assessment of ICFR under SOX Section 404(a).
    \617\ See Brown et al. 2016 Study, note 396 above.
    \618\ See Cassell et al. 2013 Study, note 616 above.
    \619\ See, e.g., letters from BIO and Guaranty.
    \620\ See, e.g., letter from Guaranty.
    \621\ Id.
    \622\ See 2013 GAO Study, note 246 above.
    \623\ There is substantial literature describing the fact that 
in certain circumstances the incentives of managers are not 
perfectly aligned with those of shareholders. See, e.g., Michael 
Jensen & William Meckling, Theory of the Firm: Managerial Behavior, 
Agency Costs and Ownership Structure, 3(4) J. of Fin. Econ. 305 
(1976). Also, as discussed in Section IV.C.3.a. above, the ICFR 
auditor attestation requirement can have important market-level 
benefits through network and spillover effects that issuers are 
unlikely to internalize. That is, issuers are likely to balance the 
issuer-level benefits against the issuer-level costs of voluntary 
compliance without considering these externalities.
---------------------------------------------------------------------------

    The available evidence also supports the qualitative, directional 
effects on operating performance noted above. That is, some of the 
affected issuers could experience lower operating performance due to 
reliance on less reliable financial statements in their decision-
making. Like the potential effects on the cost of capital, the 
potential effect on issuer operating performance associated with 
reported ineffective ICFR is also difficult to estimate and is likely 
to be mitigated by the multiple factors discussed above. Further, the 
point estimates in one study demonstrate that issuers that remediate 
their reported material weaknesses in ICFR might be able to make up a 
substantial amount of the previous operating underperformance.\624\
---------------------------------------------------------------------------

    \624\ See Feng et al. 2015 Study, note 484 above, (with point 
estimates of a one percent reduction in ROA in years with material 
weaknesses in ICFR and a 2.6 percent increase in ROA upon 
remediation, though there is significant uncertainty around these 
rates).
---------------------------------------------------------------------------

    We do, however, quantify potential effects on operating performance 
associated with ICFR misreporting, which are less likely to be 
corrected by remediation because the underlying material weaknesses are 
likely undetected. We also estimate potential deadweight losses (e.g., 
legal and reputational costs) associated with a possible increase in 
the risk of fraud. In total, per Section IV.C.3.d.i. above, we estimate 
potential issuer-level costs of $48,000 in reduced earnings plus 
$13,000 in losses related to the increased risk of fraud, or roughly 
$60,000 in costs per year on average per affected issuer, though we 
view this estimate as conservative because it does not fully account 
for the mitigating factors specific to low-revenue issuers discussed 
above.
    We note that issuers and other market participants may adapt to the 
proposed changes in various ways, which may serve to enhance or 
mitigate the anticipated issuer-level costs. However, these actions, 
and therefore their net effects, are difficult to predict. For

[[Page 17232]]

example, it has been posited that issuers reacted to the requirements 
of SOX by reducing accruals-based earnings management and, in its 
stead, making suboptimal business decisions for the purpose of real 
earnings management.\625\ It is therefore possible that newly exempt 
issuers could, to some extent, reduce real earnings management in favor 
of accruals-based management. Another possibility is that scrutiny from 
analysts may provide an alternative source of discipline for some of 
the affected issuers, although there is evidence that analysts may stop 
covering issuers whose financial statements are deemed to have become 
less reliable.\626\
---------------------------------------------------------------------------

    \625\ See Daniel Cohen, Aiyesha Dey, & Thomas Lys, Real and 
Accrual-Based Earnings Management in the Pre- and Post-Sarbanes 
Oxley Periods, 83(3) Acct. Rev. 757 (2008) (finding that an increase 
in real earnings management partially offset the decrease in 
accruals-based earnings management that followed SOX). See also 
Coates and Srinivasan 2014 Study, note 369 above, at 646-647.
    \626\ See Sarah Clinton, Arianna Pinello, & Hollis Ashbaugh-
Skaife, The Implications of Ineffective Internal Control and SOX 404 
Reporting for Financial Analysts,'' 33(4) J. of Acct. and Pub. Pol'y 
303 (2013) (finding that the disclosure of internal control 
weaknesses is followed by a decline in analyst coverage).
---------------------------------------------------------------------------

    While the preceding analysis considers the average effects across 
the affected issuers on the effectiveness of ICFR and the reliability 
of financial statements, the potential issuer-level costs of the 
proposed extension of the exemption from the ICFR auditor attestation 
requirement likely vary across different types of affected issuers. For 
example, the effects may vary based on issuers' proclivity to detect 
and disclose material weaknesses in ICFR in the absence of an ICFR 
auditor attestation requirement and whether the issuers' have 
characteristics that the market associates with having such material 
weaknesses. We discuss this variation in detail in the Proposing 
Release.\627\
---------------------------------------------------------------------------

    \627\ See Section III.C.4.c. of the Proposing Release, note 4 
above.
---------------------------------------------------------------------------

    We next consider effects at the market-level. Some of these effects 
are associated with the transfers across shareholders that we estimated 
in Section IV.C.3.d.i. above. In total, we estimated that there may be 
approximately $10,000 of pure transfers across shareholders per year 
per affected issuer representing corrections in stock values to reflect 
issuers' actual financial positions. These transfers and the associated 
mispricing may reduce the efficient allocation of capital at the market 
level. Further, to the extent that the reliability of financial 
statements is somewhat reduced on average at the issuer level for the 
affected issuers, the efficient allocation of capital at the market 
level may be negatively affected given a diminished ability to reliably 
evaluate different investment alternatives.\628\
---------------------------------------------------------------------------

    \628\ The efficient allocation of capital may be further reduced 
to the extent that the potential cost of capital effects discussed 
above operate through a reduction in the liquidity of the market for 
these issuers' shares, which increases the costs to investors 
looking to adjust their investments or redeploy their capital. See 
Diamond and Verrecchia 1991 Study, note 477 above.
---------------------------------------------------------------------------

    The reduced reliability of financial statements could also 
negatively impact capital formation through a reduction in investor 
confidence. Several commenters noted that they expected the amendments 
to have a negative effect on investor confidence.\629\ In contrast, one 
commenter asserted that there is no correlation between a smaller 
company's compliance with the ICFR auditor attestation requirement and 
stronger markets in general,\630\ while two others noted that they did 
not expect effects on investor confidence with respect to affected 
issuers that are banks.\631\
---------------------------------------------------------------------------

    \629\ See, e.g., letters from Better Markets and CII.
    \630\ See letter from BIO.
    \631\ See letters from BSC and SCBA.
---------------------------------------------------------------------------

    Section IV.C.3.a. provides additional discussion of these market-
level factors. While we are unable to directly quantify the market-
level effects on the efficient allocation of capital and on investor 
confidence, we anticipate that these effects may be limited due to the 
size of the expected effect on the reliability of these issuers' 
disclosures and potential transfers across shareholders as well as the 
small percentage of the total value of traded securities that is 
represented by the affected issuers. In particular, we estimate that 
the affected issuers that will be newly exempt from all ICFR auditor 
attestation requirements represent 0.2 percent of the total equity 
market capitalization of issuers.\632\
---------------------------------------------------------------------------

    \632\ This statistic is based on staff analysis of data from 
Compustat. The total population of issuers used to construct this 
estimate are those that have annual reports on Forms 10-K, 20-F, or 
40-F in calendar year 2018 and data on market capitalization in 
Compustat. See above note 336 for detail on the identification of 
affected issuers.
---------------------------------------------------------------------------

4. Potential Benefits and Costs Related to Other Aspects of the 
Amendments
    In this section we consider the potential effects of the amendments 
with regard to other implications of accelerated filer status, 
specifically with respect to the timing of filing deadlines, certain 
required disclosures, and the determination of filer status. We also 
consider below some incremental effects of the amendments to the 
thresholds for exiting accelerated and large accelerated filer status 
and the new check-box disclosure required on the cover page of annual 
reports on Form 10-K, 20-F, or 40-F.
a. Filing Deadlines
    As discussed in Section IV.B.1. above, non-accelerated filers are 
permitted an additional 15 days and five days, respectively, beyond the 
deadlines that apply to accelerated filers, to file their annual and 
quarterly reports. Extending these later deadlines to the affected 
issuers may provide these issuers with additional flexibility in 
preparing their disclosures, while modestly decreasing the timeliness 
of the data for investors.
    Table 6 in Section IV.B.3. demonstrates that while the filing 
deadlines are not a binding constraint for most accelerated filers, 
with 63 percent filing their annual reports over five days early in 
recent years, some accelerated filers are likely to benefit from the 
extended deadline. For example, filing Form NT automatically provides a 
grace period of an additional 15 days to file an annual report, and 
over the past four years, about four percent of accelerated filers 
filed their annual reports within this grace period rather than by the 
original deadline. A further five percent of accelerated filers filed 
their annual reports after these additional 15 days had passed.
    Even affected issuers that would otherwise have filed by the 
accelerated filer deadline may avail themselves of the additional time 
provided under the amendments to balance other obligations or to 
prepare higher quality disclosures. The 2003 acceleration of filing 
deadlines for accelerated filers from 90 to 75 days was associated, at 
least initially, with a higher rate of restatements for the affected 
issuers.\633\ This finding suggests that a later deadline may allow 
some issuers to provide more reliable financial disclosures. While 
these issuers could alternatively file Form NT to receive an automatic 
extension, studies have found that investors interpret such filings as 
a negative signal, resulting in a negative stock price reaction.\634\ 
Issuers may thus

[[Page 17233]]

prefer to meet the original deadline if possible.
---------------------------------------------------------------------------

    \633\ See, e.g., Colleen Boland, Scott Bronson, & Chris Hogan, 
Accelerated Filing Deadlines, Internal Controls, and Financial 
Statement Quality: The Case of Originating Misstatements, 29(3) 
Acct. Horizons 551 (2015) (``Boland et al. 2015 Study''); and Lisa 
Bryant-Kutcher, Emma Yan Peng, & David Weber, Regulating the Timing 
of Disclosure: Insights from the Acceleration of 10-K Filing 
Deadlines, 32(6) J. of Acct. and Pub. Pol'y 475- (2013).
    \634\ See Joost Impink, Martien Lubberink, & Bart van Praag, Did 
Accelerated Filing Requirements and SOX Section 404 Affect the 
Timeliness of 10-K Filings?, 17(2) Rev. of Acct. Stud. 227 (2012) 
and Eli Bartov & Yaniv Konchitchki, SEC Filings, Regulatory 
Deadlines, and Capital Market Consequences, 31(4) Acct. Horizons 109 
(2017).
---------------------------------------------------------------------------

    On the other hand, allowing the affected issuers to file according 
to the later non-accelerated filer deadlines may reduce the timeliness 
and therefore usefulness of the disclosures to investors. Studies have 
found a reduction in the market reaction to disclosure when the 
reporting lag between the end of the period in question and the 
disclosure date is lengthy, as more of the information becomes 
available through other public channels.\635\ Researchers have also 
questioned whether such lags increase information asymmetries, because 
some investors are more able to access or process information that 
could provide indirect insight into an issuer's financial status or 
performance through alternative channels.\636\
---------------------------------------------------------------------------

    \635\ See, e.g., Dan Givoly & Dan Palmon, Timeliness of Annual 
Earnings Announcements: Some Empirical Evidence, 57(3) Acct. Rev. 
486 (1982).
    \636\ See, e.g., Nils Hakansson, Interim Disclosure and Public 
Forecasts: An Economic Analysis and a Framework for Choice, 52(2) 
Acct. Rev. 396 (1977) and Baruch Lev, Toward a Theory of Equitable 
and Efficient Accounting Policy, 63(1) Acct. Rev. 1 (1988). We note 
that Regulation FD generally prohibits public companies from 
disclosing nonpublic, material information to selected parties 
unless the information is distributed to the public first or 
simultaneously. See 17 CFR 243.100 to 17 CFR 243.103.
---------------------------------------------------------------------------

    One study found that the 2003 acceleration of filing deadlines was 
associated with a decrease in the market reaction to the disclosure of 
annual reports for accelerated filers.\637\ Based on this result and 
supplementary tests regarding the change in disclosure quality and 
change in timeliness after the acceleration of deadlines, the authors 
concluded that the negative effect of the shorter deadline on the 
quality of disclosure appeared to dominate the beneficial effect on the 
timeliness of the disclosure for these issuers.\638\ While this finding 
might not be directly applicable 15 years later, and there is some 
evidence that some of these effects were temporary,\639\ in the absence 
of other evidence we expect the net effect of the extended filing 
deadlines to be beneficial on average but modest overall. One 
commenter, citing the complexity of current accounting standards and 
the volume of disclosure requirements, agreed that the benefits of the 
extended deadlines for the affected issuers were likely to outweigh 
their costs.\640\ Other commenters did not opine on the costs and 
benefits of the changes in filing deadlines for the affected issuers.
---------------------------------------------------------------------------

    \637\ See Jeffrey Doyle & Matthew Magilke, Decision Usefulness 
and Accelerated Filing Deadlines, 51(3) J. of Acct. Res. 549 (2013). 
We note that this study found the reverse to be true for large 
accelerated filers.
    \638\ Id.
    \639\ See, e.g., Boland et al. 2015 Study, note 633 above.
    \640\ See letter from BDO.
---------------------------------------------------------------------------

b. Disclosures Required of Accelerated Filers
    Non-accelerated filers are not required to provide disclosure 
regarding the availability of their filings under Item 101(e)(4) of 
Regulation S-K. While some investors may benefit from reduced search 
costs due to such disclosures, we do not expect that extending the 
exemption from these disclosures to the affected issuers will have 
significant economic effects.
    Non-accelerated filers also are not required to provide disclosure 
required by Item 1B of Form 10-K or Item 4A of Form 20-F about 
unresolved staff comments on their periodic and/or current reports. 
Studies have found that the eventual disclosure of staff comments and 
related correspondence, as well as interim information about these 
comments before they are made public, are value-relevant (in that they 
affect the pricing of securities) for investors.\641\ While our 
understanding is that Items 1B and 4A disclosures are relatively 
uncommon,\642\ extending the exemption from the requirement to disclose 
unresolved staff comments to the affected issuers may, in some 
circumstances, prevent the timely disclosure of value-relevant 
information to public market investors. Moreover, because Item 1B of 
Form 10-K and Item 4A of Form 20-F requires unresolved staff comments 
to be disclosed if they were made not less than 180 days prior to the 
end of that fiscal year, issuers no longer subject to this disclosure 
requirement may have a reduced incentive to resolve comments in a 
timely manner, which could decrease the quality of reporting for the 
period over which comments continue to be unresolved. We did not 
receive any comments on these potential effects.
---------------------------------------------------------------------------

    \641\ See, e.g., Patricia Dechow, Alastair Lawrence, & James 
Ryans, SEC Comment Letters and Insider Sales, 91(2) Acct. Rev. 401 
(2015) and Lauren Cunningham, Roy Schmardebeck, & Wei Wang, SEC 
Comment Letters and Bank Lending, Working Paper (2017), available at 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2727860.
    \642\ Based on staff analysis using the Intelligize database, 
approximately 20 issuers included Item 1B disclosures in Forms 10-K 
filed in 2017.
---------------------------------------------------------------------------

c. Transition Thresholds
    The amendments include revisions to the transition thresholds that 
address when an accelerated filer or large accelerated filer can 
transition into a different filer status. The amendments will allow 
accelerated or large accelerated filers to become non-accelerated 
filers if they qualify under the SRC revenue test or meet a revised 
public float transition threshold. An issuer whose revenues previously 
exceeded the SRC initial revenue threshold of $100 million will not 
qualify under the SRC revenue test unless its revenues fall below $80 
million. The $80 million transition threshold for the SRC revenue test 
is 80 percent of the initial threshold of $100 million in revenue. An 
issuer whose public float previously exceeded the $75 million initial 
threshold for accelerated filer status will become a non-accelerated 
filer if its public float falls below $60 million, or 80 percent of 
that initial threshold, as opposed to the current threshold of $50 
million. Finally, the amendments also revise the public float 
transition threshold for exiting large accelerated filer status and 
becoming an accelerated filer from $500 million to $560 million in 
public float, or 80 percent of the $700 million entry threshold, to 
align with the transition threshold for entering SRC status after 
having exceeded $700 million in public float.
    The filer type exit thresholds in Rule 12b-2 are set below the 
corresponding entry thresholds to provide some stability in issuer 
classification given normal variation in public float and revenues. The 
exact placement of these thresholds involves a tradeoff between the 
degree of volatility in classification versus the extent to which the 
categories persistently include issuers that are below the initial 
entry thresholds. The Proposing Release presented a quantitative 
analysis of this tradeoff using 20 years of data on the evolution of 
market capitalizations (as a proxy for public float) and revenues.\643\ 
In particular, this analysis demonstrated that a higher exit threshold 
is associated with more volatility in classification. For example, exit 
thresholds set at 100 percent of the public float entry thresholds 
would have led eight to ten percent of new entrants into a filer status 
to immediately exit the following year and then re-enter once again the 
year after that. Issuers and investors may be confused as a result of 
such frequent fluctuations in filer type. They may also bear resulting 
costs, such as (for issuers) the cost of frequently revising their 
disclosure schedules and continually considering the impact of whether 
they are subject to the ICFR auditor attestation requirement from one 
year to the next and (for investors) any incremental cost of evaluating 
the

[[Page 17234]]

reliability of financial disclosures for an issuer that is not 
consistently subject to the ICFR auditor attestation requirement.
---------------------------------------------------------------------------

    \643\ See Table 16 of the Proposing Release, note 4 above.
---------------------------------------------------------------------------

    On the other hand, the analysis in the Proposing Release also 
illustrated that a lower exit threshold is associated with a greater 
number of issuers remaining in a particular category despite falling 
below the entry threshold. For example, exit thresholds set at 60 
percent of the public float entry thresholds would have prevented four 
to six percent of the new entrants into a filer status from exiting 
that status despite being below the entry threshold in the next two 
years. A low exit threshold can thus risk having a filer status 
effectively apply to a broader group of issuers than intended.
    The analysis in the Proposing Release further demonstrated that the 
balance between limiting filer status volatility while enabling filer 
status mobility provided by an exit threshold of 80 percent is similar 
around a $250 million, $75 million, and $700 million market 
capitalization. In particular, while five to six percent of the new 
entrants into a filer status would be expected to transition out and 
back into the status in the following two years, one to two percent of 
those entrants would be expected to remain within the same filer status 
despite being below the entry threshold for the two following years. We 
therefore expect the increase in the public float thresholds to exit 
accelerated and large accelerated filer status to $60 and $560 million, 
or 80 percent of the entry threshold in each case, to lead to a similar 
tradeoff in these factors as the 80 percent public float threshold to 
re-enter SRC status.
    One commenter noted that certain of the affected issuers may 
recognize revenues unevenly across periods due to certain collaborative 
arrangements.\644\ When considering issuers that have empirically 
crossed a $100 million revenue entry threshold in the past, the 
analysis in the Proposing Release demonstrated that, on average, these 
issuers would not be subject to significant volatility in 
classification. Thus, while some issuers may be subject to such 
volatility,\645\ this does not appear to be a widespread concern. In 
fact, the analysis in the Proposing Release demonstrated that revenue 
is on average more stable than market capitalization, so the 80 percent 
threshold in the revenue test for exiting accelerated and large 
accelerated filer status is expected to provide a lower degree of filer 
status fluctuations for a comparable degree of filer status mobility. 
Overall, we expect the amended transition thresholds to provide a 
tradeoff between filer status mobility and volatility that is 
consistent with the tradeoff provided by the recently revised SRC 
transition provisions.
---------------------------------------------------------------------------

    \644\ See letter from EY.
    \645\ Issuers that expect significant volatility in their 
classification could consider voluntarily obtaining an ICFR auditor 
attestation in years where one is not required, given that 
commenters suggested that there would be no significant cost savings 
from obtaining an ICFR auditor attestation every three years as 
opposed to annually. See, e.g., letters from Crowe and KPMG.
---------------------------------------------------------------------------

d. Disclosure
    The amendments add a check box to the cover pages of Forms 10-K, 
20-F, and 40-F to indicate whether an ICFR auditor attestation is 
included in the filing. While filer status is reported prominently on 
the cover page of annual reports for most issuers, there is currently 
not similarly prominent disclosure of whether an ICFR auditor 
attestation is provided. Such disclosure has been recommended by the 
GAO,\646\ as well as some commenters.\647\
---------------------------------------------------------------------------

    \646\ See 2013 GAO Study, note 246 above.
    \647\ See, e.g., letters from CAQ, CFA Inst., CII, Grant 
Thornton, and KPMG.
---------------------------------------------------------------------------

    Investors can already ascertain whether an ICFR auditor attestation 
is included by searching within an issuer's annual report, and 
including additional items on the annual report cover page could 
marginally decrease the salience of each item already reported there. 
However, several commenters noted that it is currently difficult for 
investors to easily determine whether an issuer's filing includes an 
ICFR auditor attestation.\648\ The cover page check box disclosure 
requirement will make it easier for investors to identify issuers that 
undergo an ICFR auditor attestation with only minimal additional 
disclosure expense for registrants. This may, on the margin, increase 
the efficiency of investment decisions and the allocation of capital 
across the market. It may also enhance the value to issuers of pursuing 
an ICFR auditor attestation, even when one is not required, by making 
it more likely that investors recognize that an issuer has obtained an 
ICFR auditor attestation and therefore account for this factor in their 
investment decisions. While issuers that voluntarily obtain an ICFR 
auditor attestation would bear additional costs to do so, we expect 
they would voluntarily bear these costs only if they believe that the 
associated issuer-level benefits (e.g., a reduced cost of capital) 
would more than offset those costs. Thus, to the extent that more 
prominent disclosure would enhance these benefits, it may be a positive 
factor in the decision of additional firms to voluntarily obtain an 
ICFR auditor attestation. Such voluntary action by some of the issuers 
for which the requirement will be eliminated could, as discussed above, 
mitigate some of the potential negative effects of the amendments, 
although it is difficult to predict the frequency with which voluntary 
compliance might occur.
---------------------------------------------------------------------------

    \648\ See, e.g., letters from CAQ, CFA Inst., and Grant 
Thornton. See also 2013 GAO Study, note 246 above.
---------------------------------------------------------------------------

5. Alternatives to the Amendments
    Below we consider the relative costs and benefits of reasonable 
alternatives to the implementation choices in the amendments.
a. Exclude All SRCs From Accelerated Filer Category
    We considered excluding all SRCs from the accelerated filer 
definition, consistent with the past alignment of the SRC and non-
accelerated filer categories. This alternative would include SRCs that 
meet the revenue test, as under the adopted amendments, as well as 
those that have a public float of less than $250 million when initially 
determining SRC status. Several commenters supported this 
approach.\649\
---------------------------------------------------------------------------

    \649\ See, e.g., letters from ASA, Guaranty, NAM, and Nasdaq.
---------------------------------------------------------------------------

    This alternative would have several benefits, such as promoting 
regulatory simplicity and reducing any frictions or confusion caused by 
issuers having to make multiple determinations of their filer type. 
This alternative would also expand the benefits of the amendments to 
additional issuers. We estimate that 268 additional issuers \650\ would 
be non-accelerated filers rather than accelerated filers under this 
alternative, of which 48 are EGCs and 220 would newly be exempt from 
the ICFR auditor attestation requirement under SOX Section 404(b) 
(although we estimate that six of these newly exempt filers would still 
be subject to the FDIC auditor attestation requirement). In the

[[Page 17235]]

Proposing Release,\651\ we performed an analysis of the audit fees of 
lower-float issuers of different types and estimated an average 
compliance cost savings of $415,000 per year for the additional issuers 
that would be affected under this alternative, with some of these 
issuers experiencing lesser or greater savings. This likely represents 
a significant cost savings for issuers with less than $250 million in 
public float and may thus have beneficial economic effects on 
competition and capital formation. As discussed above, smaller issuers 
generally bear proportionately higher compliance costs than larger 
issuers. Reducing these additional issuers' costs would reduce their 
overhead expenses and may enhance their ability to compete with larger 
issuers. To the extent that the cost savings for the additional 
affected issuers enable capital investments that would not otherwise be 
made, this alternative would also lead to additional benefits in 
capital formation.
---------------------------------------------------------------------------

    \650\ This estimate is based on staff analysis of the number of 
accelerated filers in 2018 with public float of at least $60 million 
but less than $250 million and prior fiscal year revenues (or, in 
the case of BDCs, investment income) of at least $100 million and 
that are eligible to be SRCs (i.e., excluding ABS issuers, RICs, 
BDCs, subsidiaries of non-SRCs, and FPIs filing on foreign forms or 
using IFRS) or are BDCs (though we estimate that there are no BDCs 
that meet these criteria). Revenue data is sourced from XBRL 
filings, Compustat, and Calcbench. See note 298 above for details on 
the identification of the population of accelerated filers. We note 
that the incremental number of affected issuers could be higher than 
this estimate because there are approximately 65 issuers for which 
filer status and/or public float data are not available (and revenue 
data is either unavailable or revenues are at least $100 million).
    \651\ See Section III.C.6.a. of the Proposing Release, note 4 
above.
---------------------------------------------------------------------------

    However, we expect the costs of this alternative to be greater than 
for the amendments, primarily due to the broader application of the 
exemption from the ICFR auditor attestation requirement and the 
diminished impact of some of the mitigating factors discussed in 
Section IV.C.3. above on SRCs that meet the public float test rather 
than the revenue test. In particular, we estimated in the Proposing 
Release \652\ that extending the exemption from the ICFR auditor 
attestation requirement to issuers that are eligible to be SRCs based 
on their public float may result in an average increase in the rate of 
ineffective ICFR of about 25 percentage points among these issuers, 
somewhat higher than our estimate for low-revenue issuers. The analysis 
in the Proposing Release \653\ also demonstrated that low public float 
issuers restate their financial statements at rates comparable to 
higher public float issuers, unlike low-revenue issuers, whose 
restatement rates were three to nine percentage points lower than for 
higher-revenue issuers of the same filer status. We therefore believe 
that the proposition that low-revenue issuers may, on average, be less 
susceptible to certain kinds of misstatements may not apply to the same 
extent to issuers with low public float. We estimated in the Proposing 
Release that the increase in restatement rates for the additional 
affected issuers may be comparable to the two percentage points we 
estimated for low-revenue issuers, but that, in contrast to the results 
for low-revenue issuers, this would likely result in higher restatement 
rates for the additional affected issuers than for the higher public 
float issuers that would remain accelerated filers.
---------------------------------------------------------------------------

    \652\ Id.
    \653\ Id.
---------------------------------------------------------------------------

    The Proposing Release also tested whether the potential adverse 
impact of such a change may be mitigated by a lower empirical relevance 
of financial statements for the market valuation of these issuers. 
However, we did not find evidence that the market relies on financial 
statements to a lesser extent for the valuation of issuers with public 
float less than $250 million (as compared to issuers with a larger 
public float), and so this further mitigating factor that applies to 
low-revenue issuers likely does not apply equally to lower public float 
issuers.
    Finally, as in Section IV.C.3., we re-examined responses to the 
2008-09 Survey. When asked about the net benefits of complying with SOX 
Section 404, 16 percent of respondents at accelerated filers with 
public float of less than $250 million claimed that the costs far 
outweighed the benefits, in contrast to, as reported above, 30 percent 
of respondents at accelerated filers with revenues of less than $100 
million.\654\ While this survey data is somewhat dated, it provides an 
indication as to the perception by executives at issuers at that time 
of the relative costs and benefits of the ICFR auditor attestation 
requirement. To the extent that this perception is borne out by the 
actual costs and benefits of the ICFR auditor attestation requirement 
for issuers that meet the SRC revenue test and for those that would 
otherwise be SRCs under the public float test, this data may suggest 
that low-revenue issuers would benefit more from qualifying as non-
accelerated filers than would other types of SRCs.
---------------------------------------------------------------------------

    \654\ These estimates are based on staff analysis of data from 
the 2008-09 Survey. The analysis considers responses pertaining to 
the most recent year for which a given respondent provided a 
response. We note that the rate of responses to the question about 
net benefits was lower than for other questions. See 2009 SEC Staff 
Study, note 304 above, and Alexander et al. 2013 Study, note 401 
above, for details on the survey and analysis methodology.
---------------------------------------------------------------------------

    We did not receive any comments on our analysis of the benefits and 
costs of extending non-accelerated filer status to all SRCs.
b. Include or Exclude Certain Issuer Types
    Alternatively, we considered approaches that would include or 
exclude additional issuer types, or apply different requirements to 
particular issuer types. For example, we could extend non-accelerated 
filer status to other issuers with between $75 million and $700 million 
in public float that meet the SRC revenue test but would not be 
eligible to be SRCs because they are majority-owned subsidiaries of 
non-SRCs. However, in the Proposing Release, we estimated that only one 
majority-owned subsidiary of a non-SRC parent would meet the same 
public float and revenue thresholds as the affected issuers. Given the 
minimal number of such issuers and the responsibilities of the parent 
of any such issuers with respect to the ICFR of their subsidiaries, we 
expect the incremental costs and benefits of this alternative to be 
minimal.
    As discussed above, in a change from the proposal, the final 
amendments also exclude BDCs from the accelerated and large accelerated 
filer definitions under circumstances that are analogous to the 
exclusions for other issuers under the amendments. We estimate that 
approximately 28 BDCs will therefore be affected by the amendments, of 
which seven are EGCs and therefore already exempt from the ICFR auditor 
attestation requirement.
    We recognize, as stated in the Proposing Release, that investors in 
BDCs generally may place greater significance on the financial 
reporting of BDCs relative to low-revenue non-investment company 
issuers. However, given the small number of BDCs, it is difficult to 
assess to what extent our findings with respect to the anticipated 
costs and benefits of the amendments for the broader pool of affected 
issuers would apply similarly to BDCs as an isolated subset of these 
issuers.\655\ We note, however, that one commenter urged that we pursue 
the adopted approach, stating that, among other reasons, ``[a]llowing 
smaller BDCs to benefit from non-accelerated filer status, and thereby 
ease regulatory costs and burdens, could encourage more BDCs to enter 
the public markets, creating greater access to capital for small 
operating companies and expanding investment opportunities for retail 
investors.''.\656\ Given the limited

[[Page 17236]]

number of affected issuers that are BDCs, we preliminarily expect the 
aggregate incremental costs and benefits of this alternative relative 
to the adopted approach to be modest, as compared to the universe of 
Form 10-K filers, although they could be significant for any particular 
issuer and significant for traded BDCs as a class of Form 10-K filers 
as we estimate the total number of traded BDC filers to be 51 (of which 
seven have a market capitalization below $75 million and would be 
already considered non-accelerated filers).\657\
---------------------------------------------------------------------------

    \655\ While more refined analysis is difficult, we note that, 
for the 54 to 75 BDCs for which a management report on ICFR is 
available in Audit Analytics for years 2014 through 2017, the rate 
of ineffective ICFR reported by management is 9.0 percent, the rate 
of restatements is 9.8 percent, and the rate of Item 4.02 
restatements is 2.3 percent on average across these years, which are 
comparable to the corresponding rates for all accelerated filers 
other than EGCs under the baseline. See Section IV.B.4. above.
    \656\ See letter from Proskauer.
    \657\ Nontraded BDCs also file on Form 10-K, but these issuers 
are already non-accelerated filers because they do not have public 
float.
---------------------------------------------------------------------------

    We also considered alternative thresholds for BDCs, given that BDCs 
do not report revenue on their financial statements. The amendments 
exclude a BDC from the accelerated and large accelerated filer 
definitions in Rule 12b-2 if the BDC: (1) Has a public float of $75 
million or more, but less than $700 million; and (2) has investment 
income of less than $100 million. Table 16 below provides statistics 
from the Proposing Release on other income-related metrics for BDCs 
with between $70 million and $700 million in public float.\658\
---------------------------------------------------------------------------

    \658\ This analysis used market capitalization valuations as of 
February 2019 to determine the set of potentially affected BDCs 
under different alternatives. While this methodology is different 
than the approach used by Rule 12b-2, which uses the aggregate 
worldwide market value of the voting and non-voting common equity 
held by non-affiliates as of the last business day of the issuer's 
most recent second fiscal quarter, we do not believe that it would 
substantially change our analysis. This analysis did not remove BDCs 
who may qualify as non-accelerated filers based on their status as 
EGCs. After identifying the set of potentially affected BDCs, our 
staff manually reviewed the then-most recent Form 10-K filed on our 
EDGAR system for each BDC. The affected parties estimates in Section 
IV.C.1. above uses self-identified filer status to identify affected 
BDCs (as well as other affected issuers), rather than using market 
capitalization data for this purpose. In particular, current status 
as an accelerated filer implies that the issuer's Rule 12b-2 public 
float does not exceed $700 million. See above note 336. Also, the 
public float of the affected BDCs was manually collected for the 
purpose of related statistics in Section IV.C.1. See notes 356, 366, 
and 367 above.

            Table 16--Characteristics of BDCs With Market Capitalization Between $75 and $700 Million
                                                  [In millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                Net increase in
                                                                             Net realized and      net assets
                                            Market       Investment income   unrealized gains    resulting from
                                      capitalization as   for most recent     and losses for     operations for
                                       of February 2019     fiscal year        most recent        most recent
                                                                               fiscal year        fiscal year
----------------------------------------------------------------------------------------------------------------
High................................            $507.91            $108.28             $43.12              60.69
Low.................................              89.69               1.62          (-123.33)         (-$114.28)
Average.............................             255.30              49.37           (-11.15)              $7.70
Median..............................             244.72              47.67            (-4.44)             $13.01
----------------------------------------------------------------------------------------------------------------

    The commenter that supported expanding the proposed amendment to 
the definition of accelerated filer and large accelerated filer to 
exclude BDCs suggested that we exclude entities with total investment 
income of less than $80 million in the most recently completed fiscal 
year for which audited financial statements are available and either no 
public float or public float of less than $700 million. Of the 29 BDCs 
identified in the Proposing Release with a market capitalization 
between $75 million and $700 million, 28 had investment income of below 
$100 million and 26 had investment income of below $80 million. We 
therefore anticipate that the incremental costs and benefits of a 
threshold of $80 million in investment income as compared to the 
adopted threshold of $100 million in investment income would be 
limited.
    We also considered whether to require or permit BDCs to provide an 
independent public accountant's report on internal controls, similar to 
the one required by RICs on Form N-CEN, since both RICs and BDCs 
prepare financial statements under Article 6 of Regulation S-X, in 
place of the auditor attestation required by SOX Section 404(b). We 
considered whether such a substitution should be permitted for all BDCs 
or only required for those BDCs that would no longer be required to 
provide a report under SOX Section 404(b). We do not have any data and 
did not receive any public comment, however, regarding the potential 
benefits and costs of using a Form N-CEN-type report on internal 
controls as compared to the auditor attestation required by SOX Section 
404(b).
    We also considered excluding all FPIs, which are included in the 
affected issuers to the extent that they meet the required thresholds 
and other qualifications, from the amendments. Researchers have found 
that the restatement rates of foreign issuers may be artificially 
depressed due to a lower likelihood of detection and disclosure of 
misstatements for these issuers.\659\ It is therefore possible that 
encouraging more effective ICFR through an ICFR auditor attestation 
requirement may be particularly important for such issuers. On the 
other hand, because low-revenue FPIs may have similar characteristics 
to low-revenue domestic issuers, including them in the group of 
affected issuers may help to maintain an even playing field for 
competition amongst these issuers and avoid discouraging foreign 
companies from issuing securities in U.S. public markets. The 
amendments attempt to strike a balance between these considerations by 
allowing FPIs to avail themselves of the amendments only if they file 
on domestic forms and present their financial statements pursuant to 
U.S. GAAP, as well as meeting the required thresholds and other 
qualifications.\660\ Because of limitations in the availability of data 
such as filing status or public float for many FPIs, we are unable to 
reliably measure the potential effects for this subset of issuers. 
Commenters did not provide data that would allow us to further analyze 
the potential effects for these issuers.
---------------------------------------------------------------------------

    \659\ See, e.g., Suraj Srinivasan, Aida Sijamic Wahid, & Gwen 
Yu, Admitting Mistakes: Home Country Effect on the Reliability of 
Restatement Reporting, 90(3) Acct. Rev. 1201 (2015).
    \660\ While we currently estimate that no FPIs would currently 
qualify based on these requirements, we note that there are FPIs 
that otherwise meet the required thresholds and other qualifications 
and that might choose to file on domestic forms using U.S. GAAP in 
order to benefit from the amendments as well as the scaled 
disclosure accommodations available to SRCs if these benefits 
outweigh the costs of changing their disclosure regime.
---------------------------------------------------------------------------

c. Alternative Threshold
    We considered alternative levels at which a revenue threshold could 
be set. A $100 million dollar revenue threshold

[[Page 17237]]

was recommended, in conjunction with a public float threshold, for the 
accelerated filer definition as well as the SRC definition by the 2017 
Small Business Forum and a participant at the September 2017 meeting of 
the former Advisory Committee on Small and Emerging Companies 
(``ACSEC'').\661\ The $100 million threshold is also aligned with the 
SRC revenue test. Empirically, we find no obvious break in the 
distribution of revenue or in the results of our analysis. In general, 
lowering the revenue threshold would reduce the expected benefits of 
the amendments by reducing the number of issuers that would experience 
cost savings, while also reducing the expected costs of the amendments 
by reducing the potential adverse impact on the reliability of 
financial statements. Increasing the threshold would increase the 
expected benefits while also increasing the expected costs. We did not 
receive comments on the costs or benefits of alternative levels of a 
revenue threshold or of alternative metrics that should be used instead 
of revenue (except in the case of BDCs, as discussed above).
---------------------------------------------------------------------------

    \661\ See Final Report of the 2017 SEC Government Business Forum 
on Small Business Capital Formation (Mar. 2018), available at 
https://www.sec.gov/files/gbfor36.pdf; and William J. Newell, 
Presentation at the ACSEC Meeting, Sarbanes-Oxley Section 404(b): 
Costs of Compliance and Proposed Reforms, (Sept. 13, 2017), 
available at https://www.sec.gov/info/smallbus/acsec/william-newell-acsec091317.pdf.
---------------------------------------------------------------------------

V. Paperwork Reduction Act

A. Summary of the Collections of Information

    Certain provisions of our rules and forms that would be affected by 
the amendments contain ``collection of information'' requirements 
within the meaning of the Paperwork Reduction Act (``PRA''). The 
Commission published a notice requesting comment on the collection of 
information requirements in the Proposing Release, and submitted the 
proposed amendments to the Office of Management and Budget (``OMB'') 
for review in accordance with the PRA.\662\ While several commenters 
provided comments on the possible costs of the proposed 
amendments,\663\ no commenters specifically addressed our PRA analysis. 
Where appropriate, we have revised our burden estimates after 
considering these comments as well as differences between the proposed 
and final rules.
---------------------------------------------------------------------------

    \662\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
    \663\ See, e.g., letters from Ardelyx Presentation, Cerecor, 
CFA, CFA Inst., CII, Concert, Corvus, Guaranty, ICBA, Nasdaq, 
Pieris, Prof. Barth et al., Prof. Ge et al., Summit, Syros, and 
Terra Tech.
---------------------------------------------------------------------------

    The hours and costs associated with preparing and filing the forms 
and reports constitute reporting and cost burdens imposed by each 
collection of information. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
requirement unless it displays a currently valid OMB control number. 
Compliance with the information collections is mandatory. Responses to 
the information collections are not kept confidential and there is no 
mandatory retention period for the information disclosed. The titles 
for the affected collections of information are:
     ``Form 10-K'' (OMB Control No. 3235-0063); \664\ and
---------------------------------------------------------------------------

    \664\ The paperwork burden from 17 CFR 240.12b-1 through 
240.12b-37 (``Regulation 12B'') is imposed through the forms that 
are subject to the requirements in that regulation and is reflected 
in the analyses of those forms. Our estimate for Forms 10-K takes 
into account the burden that will be incurred by including the 
disclosure in the applicable annual report. After the Proposing 
Release, note 4 above, was issued, the Office of Management and 
Budget (``OMB'') discontinued the OMB control number for Regulation 
12B, so that the PRA inventory would not reflect duplicative 
burdens.
---------------------------------------------------------------------------

     ``Form 10-Q'' \665\ (OMB Control No. 3235-0070).\666\
---------------------------------------------------------------------------

    \665\ 17 CFR 249.308a.
    \666\ The only revision to this form will be changing filing 
deadlines, which will neither increase nor decrease the burden hours 
necessary to prepare the filing because there will be no change to 
the amount of information required in the filing.
---------------------------------------------------------------------------

    The regulation and forms listed above were adopted under the 
Exchange Act. The regulation and forms set forth the disclosure 
requirements for periodic reports filed by registrants to help 
investors make informed investment decisions. A description of the 
final amendments, including the need for the information and its use, 
as well as a description of the likely respondents, can be found in 
Section II above, and a discussion of the economic effects of the final 
amendments can be found in Section IV above.

B. Burden and Cost Estimates Related to the Final Amendments

    We estimate that the final amendments will result in approximately 
527 additional issuers being classified as non-accelerated filers.\667\ 
Accelerated filers are subject to the ICFR auditor attestation 
requirement and shorter deadlines for filing their Exchange Act 
periodic reports.\668\ Additionally, accelerated filers must provide 
disclosure regarding the availability of their filings and the 
disclosure required by Item 1B of Form 10-K and Item 4A of Form 20-F 
about unresolved staff comments on their periodic and/or current 
reports.\669\
---------------------------------------------------------------------------

    \667\ See Section IV.C.1. above. We estimate that there are no 
FPIs that file on domestic forms and present their financial 
statements pursuant to U.S. GAAP that would meet the required 
thresholds and other qualifications of the amendments. However, 
there are an estimated 31 FPIs that file on forms only available to 
FPIs, but otherwise meet the required thresholds and other 
qualifications. In the Proposing Release, note 4 above, we included 
FPIs that file the forms available only to FPIs, but otherwise meet 
the required thresholds and other qualifications, in the number of 
affected issuers. While these issuers could become subject to the 
amendments by changing their reporting regime, it is difficult to 
predict how many would do so, as a result, we do not include them in 
the number of affected issuers in this release. Accordingly, we do 
not estimate any effect on the collections of information 
corresponding to Forms 20-F or 40-F.
    \668\ See Section II.A. above.
    \669\ See note 25 above.
---------------------------------------------------------------------------

1. ICFR Auditor Attestation Requirement
    We believe that expanding the exemption from the ICFR auditor 
attestation requirement would reduce the PRA burden for 373 of the 527 
affected issuers.\670\ An ICFR auditor attestation is required only in 
annual reports. Table 17, below, shows the estimated number of affected 
issuers that are subject to the ICFR auditor attestation requirement 
that file on each of these forms and the average estimated audit-fee 
and non-audit costs, as described above,\671\ to comply with the ICFR 
auditor attestation requirement.
---------------------------------------------------------------------------

    \670\ We estimate that the remaining 154 of the 527 affected 
issuers are EGCs, which are not required to comply with the ICFR 
auditor attestation requirement under SOX Section 404(b). See 
Section IV.C.1. above. In addition to the 154 EGCs, we estimate that 
a further 78 of the 527 affected issuers are currently also subject 
to the FDIC's auditor attestation requirement. See Section 18A of 
Appendix A to FDIC Rule 363. These issuers would continue to incur 
burden hours and costs associated with an auditor attestation 
requirement even under the final amendments. However, the FDIC's 
auditor attestation requirement is not part of our rules. For 
purposes of considering the PRA effects of the final amendments, 
therefore, we have reduced the burden hours and costs for these 78 
issuers as we would for the other affected issuers that are not 
EGCs.
    \671\ See Sections IV.C.3. and IV.C.5. above.

[[Page 17238]]



     Table 17--Estimated Annual Costs Per Issuer of ICFR Auditor Attestation Requirement for Specified Forms
----------------------------------------------------------------------------------------------------------------
                                                                  Number of
                          Form type                                affected     Audit-fee costs  Non-audit costs
                                                                   issuers         per issuer       per issuer
----------------------------------------------------------------------------------------------------------------
Form 10-K....................................................             373         $110,000         $100,000
----------------------------------------------------------------------------------------------------------------

    Because these issuers would no longer be subject to the ICFR 
auditor attestation requirement under the final amendments, they would 
no longer incur these costs. For purposes of the PRA, this reduction in 
total burden is to be allocated between a reduction in internal burden 
hours and a reduction in outside professional costs. Table 18, below, 
sets forth the percentage estimates we typically use for the burden 
allocation for each form.

   Table 18--Standard Estimated Burden Allocation for Specified Forms
------------------------------------------------------------------------
                                                             Outside
                Form type                    Internal     professionals
                                               (%)             (%)
------------------------------------------------------------------------
Form 10-K................................          75                25
------------------------------------------------------------------------

    For the $100,000 reduction in annual non-audit costs,\672\ we 
allocate the burden based on the percentages in Table 18 above. 
However, we believe that 100 percent of the $110,000 annual burden 
reduction for audit-fee costs related to the ICFR auditor attestation 
requirement should be ascribed to outside professional costs because 
that amount is an estimate of fees paid to the independent auditor 
conducting the ICFR attestation audit. Table 19, below, shows the 
resulting estimated reduction in cost per issuer associated with 
outside professionals.
---------------------------------------------------------------------------

    \672\ As discussed in Section IV.C.3, above, in deriving this 
estimate of the reduction in non-audit costs, we have looked to 
outside vendor and internal labor costs, and not to non-labor costs, 
because we believe that those non-labor costs (such as software, 
hardware, and travel costs) are primarily attributable to 
management's ICFR responsibilities under SOX Section 404(a) and thus 
would continue to be incurred. To the extent elimination of the 
auditor attestation requirement also results in a reduction in 
management's time burden, we believe this reduction generally would 
be captured by the estimated $100,000 reduction, as this amount 
reflects an overall reduction in non-audit costs.

                  Table 19--Estimated Reduction in Outside Professional Costs From Elimination of ICFR Auditor Attestation Requirement
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Total outside
                                                                         Outside          Outside        professional                    Total reduction
                                                                       professional     professional      costs per        Number of        in outside
                      Issuer type (form used)                           costs per        costs per       issuer (non-       affected       professional
                                                                       issuer (non-    issuer (audit    audit + audit       issuers           costs
                                                                          audit)           fees)            fees)
[A]                                                                             [B]                [C]            [D]              [E]          (D x E)
                                                                                                                                                    [F]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form 10-K..........................................................         $25,000         $110,000         $135,000              373      $50,355,000
--------------------------------------------------------------------------------------------------------------------------------------------------------

    For PRA purposes, an issuer's internal burden is estimated in 
internal burden hours. We are, therefore, converting the internal 
portions of the non-audit costs to burden hours. These activities would 
mostly be performed by a number of different employees with different 
levels of knowledge, expertise, and responsibility. We believe these 
internal labor costs will be less than the $400 per hour figure we 
typically use for outside professionals retained by the issuer. 
Therefore, we use an average rate of $200 per hour to estimate an 
issuer's internal non-audit labor costs. Table 20, below, shows the 
resulting estimated reduction in internal burden hours from the 
elimination of the ICFR auditor attestation requirement.

 Table 20--Estimated Reduction in Internal Burden Hours From Elimination of ICFR Auditor Attestation Requirement
----------------------------------------------------------------------------------------------------------------
                                               Internal cost                       Number of     Total reduction
           Issuer type (form used)            per issuer (non-   Burden hours       affected       in internal
                                                   audit)         per issuer        issuers        burden hours
[A]                                                      [B]         (B/$200)              [D]                (C x D)
                                                                            [C]                             [E]
----------------------------------------------------------------------------------------------------------------
Form 10-K...................................         $75,000              375              373          139,875
----------------------------------------------------------------------------------------------------------------

2. Filing Deadlines, Disclosure Regarding Filing Availability, and 
Unresolved Staff Comments
    As the Commission has recognized previously, changing filing 
deadlines neither increases nor decreases the burden hours necessary to 
prepare the filing because there is no change to the amount of 
information required in the

[[Page 17239]]

filing.\673\ Therefore, we do not believe that the change to the filing 
deadlines will affect an issuer's burden hours or costs for PRA 
purposes.
---------------------------------------------------------------------------

    \673\ Revisions to Accelerated Filer Definition and Accelerated 
Deadlines for Filing Periodic Reports, Release No. 33-8644 (Dec. 21, 
2005) [70 FR 76634 (Dec. 27, 2005)].
---------------------------------------------------------------------------

    We believe that eliminating the requirements to provide disclosure 
regarding the availability of their filings and the disclosure required 
by Item 1B of Form 10-K and Item 4A of Form 20-F about unresolved staff 
comments on their periodic and/or current reports will reduce their 
burden hours and costs, but we do not expect that reduction to be 
significant. For purposes of the PRA, we estimate the reduction to be 
approximately one hour for each affected issuer.\674\ However, as 
opposed to the burden reduction resulting from the elimination of the 
ICFR auditor attestation requirement, which would apply only to 373 of 
the 527 total affected issuers that are not EGCs, the burden reduction 
from eliminating these disclosure requirements will apply to all the 
527 affected issuers, including the 154 affected issuers that are EGCs. 
That reduction is allocated by form as shown in Table 21, below.
---------------------------------------------------------------------------

    \674\ We believe that this one-hour reduction will be solely for 
an issuer's internal burden hours.

  Table 21--Estimated Reduction in Internal Burden Hours per Issuer From Elimination of Disclosure Requirements
                           Regarding Filing Availability and Unresolved Staff Comments
----------------------------------------------------------------------------------------------------------------
                                                                                   Number of       Reduction in
                          Form type                              Burden hours       affected     internal burden
                                                                  per issuer        issuers           hours
[A]                                                                       [B]                [C]          (B x C)
                                                                                                            [D]
----------------------------------------------------------------------------------------------------------------
Form 10-K....................................................               1              527              527
----------------------------------------------------------------------------------------------------------------

3. Check Box Disclosure
    In a change from the proposed amendments, the final amendments add 
a check box to the cover pages of their annual reports on Forms 10-K, 
20-F, and 40-F for issuers to indicate that they included an ICFR 
auditor attestation in the filing. In addition, if the issuer is 
otherwise required to tag cover page disclosure data using Inline XBRL, 
it must also to tag the cover page check box disclosure using Inline 
XBRL. Issuers must already determine whether they are subject to the 
ICFR auditor attestation requirement, so requiring issuers to add a 
check box to the cover pages of their annual reports on Forms 10-K, 20-
F, and 40-F, and check that box if they provide the ICFR auditor 
attestation, will not substantively modify existing collection of 
information requirements or otherwise affect the overall burden 
estimates associated with these forms. Therefore, we are not adjusting 
any burden or cost estimates in connection with the check box 
requirement in the final amendments
4. Total Burden Reduction
    Table 22, below, shows the total estimated reduction in internal 
burden hours and outside professional costs for all aspects of the 
final amendments.

                                                                 Table 22--Requested Paperwork Burden Under the Final Amendments
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Current burden                                                           Burden change
                                                ------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Change in       Change in
                                                    Current                                       company      company hours                        Change in     Burden hours   Cost burden for
                                                    annual        Current      Current cost     hours from    from disclosure   Total change in    professional   for affected      affected
                                                   responses   burden hours       burden          auditor       requirement      company hours        costs         responses       responses
                                                                                                attestation     Elimination
                                                         (A)           (B)                 (C)         (D)               (E)   (F) = (D) + (E)              (G)   (H) = (B) +           (I) = (C) + (G)
                                                                                                                                                                          (F)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
10-K...........................................        8,137    14,198,780    $1,895,224,719     (139,875)             (527)         (140,402)    ($50,355,000)    14,058,378    $1,844,869,719
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

VI. Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act (``RFA'') \675\ requires the 
Commission, in promulgating rules under Section 553 of the 
Administrative Procedure Act,\676\ to consider the impact of those 
rules on small entities. We have prepared this Final Regulatory 
Flexibility Analysis (``FRFA'') in accordance with Section 604 of the 
RFA.\677\ This FRFA relates to the amendments to the accelerated filer 
and large accelerated filer definitions in Rule 12b-2 under the 
Exchange Act and the addition of a check box to the cover pages of 
Forms 10-K, 20-F, and 40-F to indicate whether an ICFR auditor 
attestation is included in the filing. An Initial Regulatory 
Flexibility Analysis (``IRFA'') was prepared in accordance with the RFA 
and was included in the Proposing Release.
---------------------------------------------------------------------------

    \675\ 5 U.S.C. 601 et seq.
    \676\ 5 U.S.C. 553.
    \677\ 5 U.S.C. 604.
---------------------------------------------------------------------------

A. Need for, and Objectives of, the Final Amendments

    The purpose of the amendments to the accelerated filer and large 
accelerated filer definitions in Rule 12b-2 is to promote capital 
formation by more appropriately tailoring the types of issuers that are 
included in the category of accelerated filers and revising the 
transition thresholds for accelerated and large accelerated filers. The 
addition of the check box to the cover pages of Forms 10-K, 20-F, and 
40-F is intended to provide more prominent and easily accessible 
disclosure of this information for investors and market participants 
while imposing only minimal burdens on issuers. The need for, and 
objectives of, the amendments are discussed in more detail in Sections 
I and II above.

B. Significant Issues Raised by Public Comments

    In the Proposing Release, we requested comment on all aspects of 
the

[[Page 17240]]

IRFA, including the number of small entities that would be affected by 
the proposed amendments, the existence or nature of the potential 
impact of the proposals on small entities discussed in the analysis, 
and how to quantify the impact of the proposed amendments. We did not 
receive any comments specifically addressing the IRFA. However, we 
received a number of comments on the proposed amendments, 
generally,\678\ and have considered all of these comments in developing 
the FRFA because the final amendments are focused on smaller issuers.
---------------------------------------------------------------------------

    \678\ See Section II.B.2. above.
---------------------------------------------------------------------------

    We believe that the final amendments will reduce disclosure burdens 
by expanding the number of registrants that will no longer qualify as 
accelerated or large accelerated filers, which will eliminate the ICFR 
auditor attestation requirement for those issuers, while maintaining 
investor protections.

C. Small Entities Subject to the Amendments

    The final amendments will affect some registrants that are small 
entities. The RFA defines ``small entity'' to mean ``small business,'' 
``small organization,'' or ``small governmental jurisdiction.'' \679\ 
For purposes of the RFA, under our rules, an issuer, other than an 
investment company, is 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.\680\
---------------------------------------------------------------------------

    \679\ 5 U.S.C. 601(6).
    \680\ See 17 CFR 240.0-10(a) under the Exchange Act.
---------------------------------------------------------------------------

    We estimate that there are 1,171 issuers that file with the 
Commission, other than investment companies, which may be considered 
small entities and are potentially subject to the final 
amendments.\681\ Investment companies, which include BDCs, qualify as 
small entities if, together with other investment companies in the same 
group of related investment companies, they have net assets of $50 
million or less as of the end of their most recent fiscal year.\682\ 
Commission staff estimates that, as of June 2019, approximately 16 BDCs 
are small entities.\683\ We believe it is likely that virtually all 
issuers that would be considered small businesses or small 
organizations, as defined in our rules, are already non-accelerated 
filers and would continue to be encompassed within that category. To 
the extent any such issuers are not already non-accelerated filers, we 
believe it is likely that the final amendments will capture those 
entities.
---------------------------------------------------------------------------

    \681\ This estimate is based on staff analysis of issuers, 
excluding co-registrants, with EDGAR filings of Form 10-K, 20-F and 
40-F, or amendments, filed during the calendar year of January 1, 
2018 to December 31, 2018. This analysis is based on data from XBRL 
filings, Compustat, and Ives Group Audit Analytics.
    \682\ 17 CFR 270.0-10(a).
    \683\ These estimates are based on staff analysis of Morningstar 
data and data submitted by investment company registrants in forms 
filed on EDGAR as of June 2019.
---------------------------------------------------------------------------

D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    As noted above, the final amendments will reduce the number of 
accelerated and large accelerated filers, which will reduce the 
compliance burden for those issuers, some of which may be small 
entities, because they would no longer have to satisfy the ICFR auditor 
attestation requirement, comply with accelerated deadlines for filing 
their Exchange Act periodic reports, provide disclosure regarding the 
availability of their filings, or provide disclosure required by Item 
1B of Form 10-K and Item 4A of Form 20-F about unresolved staff 
comments on their periodic and/or current reports.\684\ The ICFR 
auditor attestation requirement applies only to accelerated and large 
accelerated filers, and most small entities would not qualify for 
either filer status. Compliance with certain rules affected by the 
amendments require the use of professional skills, including accounting 
and legal skills. The final amendments are discussed in detail in 
Sections I and II above. We discuss the economic effect including the 
estimated costs and burdens, of the final amendments on all 
registrants, including small entities, in Section IV above.
---------------------------------------------------------------------------

    \684\ The amendments to include a check box on Forms 10-K, 20-F, 
and 40-F are not expected to affect the overall burden estimates 
associated with these forms. See Section V.C.3. above.
---------------------------------------------------------------------------

E. Agency Action To Minimize Effect on Small Entities

    The RFA directs us to consider alternatives that would accomplish 
our stated objectives, while minimizing any significant adverse effect 
on small entities. Accordingly, 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 for small entities under our rules as revised by 
the amendments;
     Using performance rather than design standards; and
     Exempting small entities from coverage of all or part of 
the amendments.
    We do not believe that establishing different compliance or 
reporting obligations in conjunction with the final amendments is 
necessary. The final amendments would not impose any significant new 
compliance obligations. In fact, the final amendments would reduce the 
compliance obligations of affected issuers by increasing the number of 
issuers, including small entities, that are subject to the different, 
less burdensome, compliance and reporting obligations for non-
accelerated filers. Similarly, because the final amendments would 
reduce the burdens for these issuers, we do not believe it is 
appropriate to exempt small entities from all or part of the proposed 
amendments.
    We believe that some of the issuers that would become eligible to 
be non-accelerated filers under the final amendments may be smaller 
entities. Therefore, to the extent that any small entities would become 
newly eligible for non-accelerated filer status under the final 
amendments, their compliance and reporting requirements would be 
further simplified. We note in this regard that the Commission's 
existing disclosure requirements provide for scaled disclosure 
requirements and other accommodations for small entities, and the final 
amendments would not alter these existing accommodations.
    The check box requirement should not affect small entities unless 
they voluntarily choose to comply with the ICFR auditor attestation 
requirements. Further, we note that the compliance burden associated 
with the check box is expected to be minimal, and establishing a 
different compliance requirement, providing additional clarification of 
the requirement, or exempting a small entity would not, therefore, have 
a meaningful impact on the small entity.
    Finally, with respect to the use of performance rather than design 
standards, because the final amendments are not expected to have any 
significant adverse effect on small entities (and may, in fact, relieve 
burdens for some such entities), we do not believe it is necessary to 
use performance standards in connection with this rulemaking.

Statutory Authority and Text of Rule Amendments

    The rule amendments described in this release are being adopted 
pursuant to Sections 7, 10, 19(a), and 28 of the Securities Act, as 
amended, and Sections 3(b), 12, 13, 15(d), and 23(a) of the Exchange 
Act, as amended.

[[Page 17241]]

List of Subjects in 17 CFR Part 229, 230, 240, and 249

    Reporting and recordkeeping requirements, Securities.

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

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
1. The authority citation for part 229 continues 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, 78j-3, 78l, 78m, 78n, 78n-1, 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.; 18 U.S.C. 1350; 
sec. 953(b), Pub. L. 11-203, 124 Stat. 1904 (2010); and sec. 102(c), 
Pub. L. 112-106, 126 Stat. 310 (2012).
* * * * *

0
2. Amend Sec.  229.10 by adding Instruction 2 to paragraph (f) to read 
as follows:


Sec.  229.10  (Item 10) General.

* * * * *
    (f) * * *
    Instruction 2 to paragraph (f): A foreign private issuer is not 
eligible to use the requirements for smaller reporting companies unless 
it uses the forms and rules designated for domestic issuers and 
provides financial statements prepared in accordance with U.S. 
Generally Accepted Accounting Principles.

PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933

0
3. The authority citation for part 230 continues to read in part as 
follows:

    Authority:  15 U.S.C. 77b, 77b note, 77c, 77d, 77f, 77g, 77h, 
77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78o-
7 note, 78t, 78w, 78ll(d), 78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-
30, and 80a-37, and Pub. L. 112-106, sec. 201(a), sec. 401, 126 
Stat. 313 (2012), unless otherwise noted.
* * * * *
    Sections 230.400 to 230.499 issued under secs. 6, 8, 10, 19, 48 
Stat. 78, 79, 81, and 85, as amended (15 U.S.C. 77f, 77h, 77j, and 
77s).
* * * * *

0
4. Amend Sec.  230.405 by adding Instruction 2 to the definition of 
``smaller reporting company'' to read as follows:


Sec.  230.405  Definitions of terms.

* * * * *
    Smaller reporting company. * * *
    Instruction 2 to definition of ``smaller reporting company'': A 
foreign private issuer is not eligible to use the requirements for 
smaller reporting companies unless it uses the forms and rules 
designated for domestic issuers and provides financial statements 
prepared in accordance with U.S. Generally Accepted Accounting 
Principles.
* * * * *

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

0
5. The authority citation for part 240 continues to read, in part, as 
follows:

    Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 
78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 
78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78dd, 78ll, 78mm, 
80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, and 7201 et 
seq., and 8302; 7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C. 
1350; Pub. L. 111-203, 939A, 124 Stat. 1376 (2010); and Pub. L. 112-
106, secs. 503 and 602, 126 Stat. 326 (2012), unless otherwise 
noted.
* * * * *
    Sections 240.12b-1 to 240.12b-36 also issued under secs. 3, 12, 
13, 15, 48 Stat. 892, as amended, 894, 895, as amended; 15 U.S.C. 
78c, 78l, 78m, and 78o.6.
* * * * *

0
6. Amend Sec.  240.12b-2 by:
0
a. In the definition of ``Accelerated filer and large accelerated 
filer'':
0
i. Removing ``.'' at the end of paragraph (1)(iii) and adding in its 
place ``; and'';
0
ii. Adding paragraph (1)(iv);
0
iii. Removing ``.'' at the end of paragraph (2)(iii) and adding in its 
place ``; and'';
0
iv. Adding paragraph (2)(iv);
0
v. Revising paragraphs (3)(ii) and (3)(iii);
0
vi. Adding paragraph (4); and
0
b. Adding Instruction 2 to the definition of ``smaller reporting 
company''.
    The addition and revisions read as follows:


Sec.  240.12b-2   Definitions.

* * * * *
    Accelerated filer and large accelerated filer--(1) * * *
    (iv) The issuer is not eligible to use the requirements for smaller 
reporting companies under the revenue test in paragraph (2) or 
(3)(iii)(B) of the ``smaller reporting company'' definition in this 
section, as applicable.
    (2) * * *
    (iv) The issuer is not eligible to use the requirements for smaller 
reporting companies under the revenue test in paragraph (2) or 
(3)(iii)(B) of the ``smaller reporting company'' definition in this 
section, as applicable.
    (3) * * *
    (ii) Once an issuer becomes an accelerated filer, it will remain an 
accelerated filer unless: The issuer determines, at the end of a fiscal 
year, that the aggregate worldwide market value of the voting and non-
voting common equity held by its non-affiliates was less than $60 
million, as of the last business day of the issuer's most recently 
completed second fiscal quarter; or it determines that it is eligible 
to use the requirements for smaller reporting companies under the 
revenue test in paragraph (2) or (3)(iii)(B) of the ``smaller reporting 
company'' definition in this section, as applicable. An issuer that 
makes either of these determinations becomes a non-accelerated filer. 
The issuer will not become an accelerated filer again unless it 
subsequently meets the conditions in paragraph (1) of this definition.
    (iii) Once an issuer becomes a large accelerated filer, it will 
remain a large accelerated filer unless: It determines, at the end of a 
fiscal year, that the aggregate worldwide market value of the voting 
and non-voting common equity held by its non-affiliates (``aggregate 
worldwide market value'') was less than $560 million, as of the last 
business day of the issuer's most recently completed second fiscal 
quarter or it determines that it is eligible to use the requirements 
for smaller reporting companies under the revenue test in paragraph (2) 
or (3)(iii)(B) of the ``smaller reporting company'' definition in this 
section, as applicable. If the issuer's aggregate worldwide market 
value was $60 million or more, but less than $560 million, as of the 
last business day of the issuer's most recently completed second fiscal 
quarter, and it is not eligible to use the requirements for smaller 
reporting companies under the revenue test in paragraph (2) or 
(3)(iii)(B) of the ``smaller reporting company'' definition in this 
section, as applicable, it becomes an accelerated filer. If the 
issuer's aggregate worldwide market value was less than $60 million, as 
of the last business day of the issuer's most recently completed second 
fiscal quarter, or it is eligible to use the requirements for smaller 
reporting companies under the revenue test in paragraph (2) or 
(3)(iii)(B) of the ``smaller reporting company'' definition in this 
section, it becomes a non-accelerated filer. An issuer will not

[[Page 17242]]

become a large accelerated filer again unless it subsequently meets the 
conditions in paragraph (2) of this definition.
* * * * *
    (4) For purposes of paragraphs (1), (2), and (3) of this definition 
only, a business development company is considered to be eligible to 
use the requirements for smaller reporting companies under the revenue 
test in paragraph (2) or (3)(iii)(B) of the ``smaller reporting 
company'' definition in this section, provided that the business 
development company meets the requirements of the test using annual 
investment income under Rule 6-07.1 of Regulation S-X (17 CFR 210.6-
07.1) as the measure of its ``annual revenues'' for purposes of the 
test.
* * * * *
    Smaller reporting company. * * *
    Instruction 2 to definition of ``smaller reporting company'': A 
foreign private issuer is not eligible to use the requirements for 
smaller reporting companies unless it uses the forms and rules 
designated for domestic issuers and provides financial statements 
prepared in accordance with U.S. Generally Accepted Accounting 
Principles.
* * * * *

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

0
7. 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.; 12 U.S.C. 
5461 et seq.; 18 U.S.C. 1350; Sec. 953(b), Pub. L. 111-203, 124 
Stat. 1904; Sec. 102(a)(3), Pub. L. 112-106, 126 Stat. 309 (2012); 
Sec. 107, Pub. L. 112-106, 126 Stat. 313 (2012), and Sec. 72001, 
Pub. L. 114-94, 129 Stat. 1312 (2015), unless otherwise noted.
* * * * *
    Section 249.220f is also issued under secs. 3(a), 202, 208, 302, 
306(a), 401(a), 401(b), 406 and 407, Pub. L. 107-204, 116 Stat. 745.
    Section 249.240f is also issued under secs. 3(a), 202, 208, 302, 
306(a), 401(a), 406 and 407, Pub. L. 107-204, 116 Stat. 745.
* * * * *
    Section 249.310 is also issued under secs. 3(a), 202, 208, 302, 
406 and 407, Pub. L. 107-204, 116 Stat. 745.
* * * * *

0
8. Amend Form 20-F (referenced in Sec.  249.220f) by adding a field to 
the cover page to include a check box indicating whether the registrant 
has included an ICFR auditor attestation in the filing:

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

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 20-F

* * * * *
    [dagger]The term ``new or revised financial accounting standard'' 
refers to any update issued by the Financial Accounting Standards Board 
to its Accounting Standards Codification after April 5, 2012.
    Indicate by check mark whether the registrant has filed a report on 
and attestation to its management's assessment of the effectiveness of 
its internal control over financial reporting under Section 404(b) of 
the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public 
accounting firm that prepared or issued its audit report. [square]
* * * * *

0
9. Amend Form 40-F (referenced in Sec.  249.240f) by adding a field to 
the cover page to include a check box indicating whether the registrant 
has included an ICFR auditor attestation in the filing:

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

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 40-F

* * * * *
    [dagger]The term ``new or revised financial accounting standard'' 
refers to any update issued by the Financial Accounting Standards Board 
to its Accounting Standards Codification after April 5, 2012.
    Indicate by check mark whether the registrant has filed a report on 
and attestation to its management's assessment of the effectiveness of 
its internal control over financial reporting under Section 404(b) of 
the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public 
accounting firm that prepared or issued its audit report. [square]
* * * * *

0
10. Amend Form 10-K (referenced in Sec.  249.310) by adding a field to 
the cover page to include a check box indicating whether the registrant 
has included an ICFR auditor attestation in the filing:

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

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 10-K

* * * * *
    If an emerging growth company, indicate by check mark if the 
registrant has elected not to use the extended transition period for 
complying with any new or revised financial accounting standards 
provided pursuant to Section 13(a) of the Exchange Act. [square]
    Indicate by check mark whether the registrant has filed a report on 
and attestation to its management's assessment of the effectiveness of 
its internal control over financial reporting under Section 404(b) of 
the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public 
accounting firm that prepared or issued its audit report. [square]
* * * * *

    By the Commission.

    Dated: March 12, 2020.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2020-05546 Filed 3-25-20; 8:45 am]
 BILLING CODE 8011-01-P


