[Federal Register Volume 74, Number 200 (Monday, October 19, 2009)]
[Rules and Regulations]
[Pages 53628-53631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24990]



[[Page 53627]]

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Part III





Securities and Exchange Commission





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17 CFR Parts 210, 229 and 249



Internal Control Over Financial Reporting in Exchange Act Periodic 
Reports of Non-Accelerated Filers; Final Rule

Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / 
Rules and Regulations

[[Page 53628]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 210, 229 and 249

[Release Nos. 33-9072; 34-60813; File No. S7-06-03]
RIN 3235-AK48


Internal Control Over Financial Reporting in Exchange Act 
Periodic Reports of Non-Accelerated Filers

AGENCY: Securities and Exchange Commission.

ACTION: Final rules.

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SUMMARY: We are amending temporary rules that require companies that 
are non-accelerated filers to include in their annual reports, pursuant 
to rules implementing Section 404(b) of the Sarbanes-Oxley Act of 2002, 
an attestation report of their independent auditor on internal control 
over financial reporting for fiscal years ending on or after December 
15, 2009. The amendments will extend the compliance date for filing 
attestation reports, so that a non-accelerated filer will be required 
to file the auditor's attestation report on internal control over 
financial reporting when it files an annual report for a fiscal year 
ending on or after June 15, 2010.

DATES: Effective Date: This rule is effective December 18, 2009. The 
effectiveness of Sec. Sec.  210.2-02T and 229.308T, which currently 
terminates on June 30, 2010, is extended through December 15, 2010.

FOR FURTHER INFORMATION CONTACT: Steven G. Hearne, Special Counsel, 
Office of Rulemaking, Division of Corporation Finance, at (202) 551-
3430, U.S. Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-3628.

SUPPLEMENTARY INFORMATION: We are amending the following forms and 
temporary rules to extend the compliance dates for companies that are 
non-accelerated filers to include an attestation report of their 
independent auditor on internal control over financial reporting in 
their annual reports: Rule 2-02T of Regulation S-X,\1\ Item 308T of 
Regulation S-K,\2\ Item 4T of Form 10-Q,\3\ Item 9A(T) of Form 10-K,\4\ 
Item 15T of Form 20-F,\5\ and Instruction 3T of General Instruction 
B.(6) of Form 40-F.\6\
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    \1\ 17 CFR 210.2-02T.
    \2\ 17 CFR 229.308T.
    \3\ 17 CFR 249.308a.
    \4\ 17 CFR 249.310.
    \5\ 17 CFR 249.220f.
    \6\ 17 CFR 249.240f.
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I. Background

    On June 5, 2003,\7\ the Securities and Exchange Commission adopted 
several amendments to its rules and forms implementing Section 404 of 
the Sarbanes-Oxley Act of 2002.\8\ Among other things, these amendments 
require companies, other than registered investment companies, to 
include in their annual reports filed with us a report of management, 
and an accompanying auditor's attestation report, on the effectiveness 
of the company's internal control over financial reporting (``ICFR''). 
Subsequent to the adoption of those rules, the Commission took a number 
of steps to improve the effectiveness and efficiency of Section 404 
implementation.\9\ Among the steps taken, the Commission approved 
issuance by the PCAOB of Auditing Standard No. 5 (``AS No. 5''), which 
replaced Auditing Standard No. 2.\10\ In addition, we issued 
interpretive guidance to assist management in complying with the ICFR 
evaluation and disclosure requirements.\11\ The approval of PCAOB's AS 
No. 5 provided revised professional standards and related performance 
guidance for independent auditors to attest to, and report on, 
management's assessment of the effectiveness of ICFR. Our management 
guidance, in combination with AS No. 5, was intended to make ICFR 
audits and management evaluations of ICFR more cost-effective by being 
risk-based and scalable to a company's size and complexity.
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    \7\ See Management's Reports on Internal Control Over Financial 
Reporting and Certification of Disclosure in Exchange Act Periodic 
Reports, Release No. 33-8238 (June 5, 2003) [68 FR 36636].
    \8\ 15 U.S.C. 7262.
    \9\ For a more complete discussion of the Commission's actions 
in this area, see Internal Control Over Financial Reporting in 
Exchange Act Periodic Reports of Non-Accelerated Filers, Release No. 
33-8934 (June 26, 2008) [73 FR 38094] (the ``2008 Adopting 
Release'').
    \10\ See 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 
(July 27, 2007) [72 FR 42141].
    \11\ 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 35324].
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    In the Commission's most recent action, we postponed the Section 
404(b) auditor attestation requirement for non-accelerated filers \12\ 
for an additional year in order to allow time for the PCAOB to issue 
final staff guidance on auditing ICFR of smaller reporting companies 
and for the Commission staff to undertake a study to help determine 
whether AS No. 5 and our management guidance on evaluating ICFR are 
facilitating more cost-effective ICFR evaluations and audits for 
smaller public companies.\13\ The PCAOB published staff guidance for 
auditors of smaller public companies on January 23, 2009 describing how 
auditors can apply the principles described in AS No. 5 and providing 
examples of approaches to particular issues that might arise in the 
audits of smaller, less complex public companies. \14\
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    \12\ Although the term ``non-accelerated filer'' is not defined 
in our rules, we use it throughout this release to refer to an 
Exchange Act reporting company that does not meet the Rule 12b-2 [17 
CFR 140.12b-2] definition of either an ``accelerated filer'' or a 
``large accelerated filer.''
    \13\ See the 2008 Adopting Release in note 9 above.
    \14\ See ``Staff Views--An Audit of Internal Control that is 
Integrated with an Audit of the Financial Statements: Guidance for 
Auditors of Smaller Public Companies,'' (Jan. 23, 2009), available 
at http://www.pcaobus.org. Topics discussed in the PCAOB's guidance 
include: entity-level controls, risk of management override, 
segregation of duties and alternative controls, information 
technology controls, financial reporting competencies, and testing 
controls with less formal documentation.
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    The Commission directed the staff to conduct a study in order to 
help the Commission assess whether the new management guidance and AS 
No. 5 are having the intended effect of facilitating more cost-
effective ICFR evaluations and audits for smaller reporting 
companies.\15\ The study included a Web-based survey of companies that 
are subject to ICFR requirements, as well as in-depth interviews with 
financial statement users, auditors of issuers, and a subset of 
companies eligible to participate in the Web-based study. The study, 
analyzing the data provided by the survey, was recently completed by 
the staff and made public by the Commission on October 2, 2009.
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    \15\ See ``Study of the Sarbanes-Oxley Act of 2002 Section 404 
Internal Control over Financial Reporting Requirements,'' available 
at http://www.sec.gov.
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    Without today's amendments, a non-accelerated filer would be 
required to file the auditor's attestation report on ICFR when it files 
its annual report for a fiscal year ending on or after December 15, 
2009. In light of the proximity in time of the publication of the staff 
study and the end of the year, and concerns that a significant number 
of smaller public companies may not have prepared to comply with 
Section 404(b) pending completion of the staff study, we are amending 
our rules to defer requiring the auditor's attestation report until a 
non-accelerated filer's annual report for its fiscal year ending on or 
after June 15, 2010.
    The Commission believes that an auditor's attestation to a 
company's

[[Page 53629]]

disclosure of its assessment on the effectiveness of the company's 
internal control is an important safeguard. The obligation of non-
accelerated filers to comply with Section 404(b) has been deferred a 
number of times to more than five years after the date on which 
compliance was required of accelerated filers.\16\ The Commission notes 
that all steps necessary to implement the requirements of Section 404 
of the Sarbanes-Oxley Act have been completed, and non-accelerated 
filers should work with their auditors to comply with Section 404(b) 
for annual reports for fiscal years ending on or after June 15, 2010. 
The Commission does not expect to further defer the obligation of non-
accelerated filers to comply with Section 404(b).
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    \16\ Accelerated filers were initially expected to comply with 
the auditor attestation requirement in annual reports filed on or 
after June 15, 2004.
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    We believe at this point that only an immediate deferral of the 
current filing requirement for non-accelerated filers can address the 
uncertainty raised by the recent completion of the study and 
announcement of the new compliance date for the auditor attestation 
report requirement. In addition, because of the timing of the 
publication of the study, immediate implementation of Section 404(b) 
would require non-accelerated filers and their auditors to plan for the 
auditor attestation under compressed timeframes, resulting in higher 
costs than would be required with more deliberative planning. Due to 
the significance and importance of Section 404(b) implementation by 
non-accelerated filers, especially for the first time, it is critical 
to provide non-accelerated filers with certainty regarding the filing 
requirements as soon as possible. On the basis of the timing 
constraints discussed above and the limited nature of the extension, 
the Commission, for good cause, finds that notice and solicitation of 
comment regarding the amendments to defer the filing requirement is 
impracticable, unnecessary or contrary to the public interest, and the 
extension is necessary or appropriate in the public interest and 
consistent with the protection of investors.\17\
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    \17\ See Section 553(b)(3)(B) of the Administrative Procedure 
Act [5 U.S.C. 553(b)(3)(B)] (stating that an agency may dispense 
with prior notice and comment when it finds, for good cause, that 
notice and comment are ``impracticable, unnecessary, or contrary to 
the public interest''). In addition, the Commission notes that the 
U.S. public companies subject to all of the requirements of Section 
404 represent an overwhelming majority of the market capitalization 
of the U.S. equity securities market.
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II. Extension of Auditor Attestation Compliance Date for Non-
Accelerated Filers

    We are amending Item 308T of Regulation S-K, Rule 2-02T of 
Regulation S-X, and Forms 10-Q, 10-K, 20-F and 40-F to require non-
accelerated filers to provide their auditor's attestation in their 
annual reports filed for fiscal years ending on or after June 15, 2010. 
Prior to that time, a non-accelerated filer continues to be required to 
state in its management report on ICFR that the company's annual report 
does not include an auditor attestation report.\18\ In 2006, we adopted 
a temporary rule \19\ that provided that the management report included 
in a non-accelerated filer's annual report that did not contain the 
auditor's attestation report would be deemed ``furnished'' rather than 
``filed'' and not be subject to liability under Section 18 of the 
Exchange Act.\20\ In 2008 we extended the temporary rule.\21\ In light 
of our action to extend the date for compliance with Section 404(b) to 
fiscal years ending on or after June 15, 2010, we are likewise 
extending the temporary rule to treat the management report as 
``furnished'' instead of ``filed'' for reports that do not include an 
auditor's attestation in reliance upon the extension of the compliance 
date.
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    \18\ See Item 308T(a)(4) of Regulation S-K, Item 15T(b)(4) of 
Form 20-F and Instruction 3T to the Instructions to paragraphs (b), 
(c), (d), and (e) of General Instruction B.(6) of Form 40-F.
    \19\ See Internal Control Over Financial Reporting in Exchange 
Act Periodic Reports of Non-Accelerated Filers and Newly Public 
Companies, Release No. 33-8760 (Dec. 15, 2006) [71 FR 76580].
    \20\ Section 18 of the Exchange Act [15 U.S.C. 78r] imposes 
liability on any person who makes or causes to be made in any 
application or report or document filed under the Act, or any rule 
thereunder, any statement that ``was at the time and in the light of 
the circumstances under which it was made false or misleading with 
respect to any material fact.'' As a result of temporary Item 308T 
of Regulation S-K and the temporary amendments to Forms 20-F and 40-
F, however, during the applicable periods, management's report would 
be subject to liability under this section only in the event that a 
non-accelerated filer specifically states that the report is to be 
considered ``filed'' under the Exchange Act or incorporates it by 
reference into a filing under the Securities Act or the Exchange 
Act.
    \21\ See the 2008 Adopting Release in note 9 above.
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    The revised compliance dates for the Section 404 internal control 
requirements are presented in the table below:

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Filer Status                           Compliance Dates for the Internal Control Over
                                        Financial Reporting Requirements
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                                                                Management report on     Auditor attestation on
                                                                 ICFR                     management's report on
                                                                                          ICFR
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U.S. Issuer..........................  Non-accelerated filer    Annual reports for       Annual reports for
                                        (public float under      fiscal years ending on   fiscal years ending on
                                        $75 million).            or after December 15,    or after June 15,
                                                                 2007.                    2010.
U.S. Issuer..........................  Large accelerated filer  Annual reports for       Annual reports for
                                        and accelerated filer    fiscal years ending on   fiscal years ending on
                                        (public float above      or after November 15,    or after November 15,
                                        $75 million).            2004.                    2004.
Foreign private issuer...............  Non-accelerated filer    Annual reports for       Annual reports for
                                        (public float under      fiscal years ending on   fiscal years ending on
                                        $75 million).            or after December 15,    or after June 15,
                                                                 2007.                    2010.
Foreign private issuer...............  Accelerated filer        Annual reports for       Annual reports for
                                        (public float above      fiscal years ending on   fiscal years ending on
                                        $75 million and below    or after July 15, 2006.  or after July 15,
                                        $700 million).                                    2007.
Foreign private issuer...............  Large accelerated filer  Annual reports for       Annual reports for
                                        (public float above      fiscal years ending on   fiscal years ending on
                                        $700 million).           or after July 15, 2006.  or after July 15,
                                                                                          2006.
U.S. or Foreign private issuer.......  Newly public company...  Second annual report...  Second annual report.
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[[Page 53630]]

III. Paperwork Reduction Act

    In connection with our earlier proposal and adoption of the rules 
and amendments implementing the Section 404 requirements,\22\ we 
submitted cost and burden estimates of the collection of information 
requirements of the amendments to the Office of Management and Budget 
(``OMB''). We published a notice requesting comment on the collection 
of information requirements in the proposing release for those rule 
amendments. We submitted these requirements to the OMB for review in 
accordance with the Paperwork Reduction Act of 1995 (``PRA'') \23\ and 
received approval of these estimates. We do not believe that the 
amendments will result in any change in the collection of information 
requirements of the amendments implementing Section 404 and we 
previously received no comments suggesting the amendments would result 
in any change. Therefore, we are not revising our PRA burden and cost 
estimates submitted to the OMB.
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    \22\ See Release Nos. 33-8238 in Note 7 and 33-8760 in Note 19 
above.
    \23\ 44 U.S.C. 3501 et seq. and 5 CFR 1320.11.
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IV. Cost-Benefit Analysis

A. Benefits

    The amendments postpone the date by which a non-accelerated filer 
would be required to include in its annual report an auditor 
attestation report on ICFR. As a result, non-accelerated filers will be 
required to complete only management's assessment of compliance with 
the Section 404 requirements during the deferral period. We believe 
that the additional time will benefit non-accelerated filers and could 
thereby indirectly benefit investors in non-accelerated filers by 
easing the burden on those companies as follows:
    <bullet> Providing non-accelerated filers more time, in light of 
the uncertainty in the timing due to the recent completion of the study 
and the announcement, to better prepare for compliance with the Section 
404(b) requirements; and
    <bullet> Providing more time for the Section 404(b) audit to be 
properly planned, scoped and executed.

B. Costs

    Investors in non-accelerated filers will have to wait longer than 
they would in the absence of the deferral for the assurances provided 
by the auditor's attestation report and the added investor confidence 
that could result from obtaining an independent Section 404(b) 
attestation. The amendments may extend the existing risk that, without 
the auditor's attestation report, some non-accelerated filers may 
erroneously conclude that the company's ICFR is effective, when an ICFR 
audit might reveal that it is not. In addition, some companies may 
continue to conduct an assessment that is not as thorough, careful and 
as appropriate to the company's circumstances as they would perform if 
the auditor were also conducting an audit of ICFR. Finally, the 
amendments may also extend the existing risk that weaknesses in a 
company's ICFR will go undetected for a longer period of time.

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

    Section 23(a)(2) of the Exchange Act \24\ requires us, when 
adopting rules under the Exchange Act, to consider the impact that any 
new rule would have on competition. Section 23(a)(2) prohibits us from 
adopting any rule that would impose a burden on competition not 
necessary or appropriate in furtherance of the purposes of the Exchange 
Act. In addition, Section 2(b) \25\ of the Securities Act and Section 
3(f) \26\ of the Exchange Act require us, when engaging in rulemaking 
where we are required to consider or determine whether an action is 
necessary or appropriate in the public interest, to also consider 
whether the action will promote efficiency, competition, and capital 
formation.
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    \24\ 15 U.S.C. 78w(a).
    \25\ 15 U.S.C. 77b(b).
    \26\ 15 U.S.C. 78c(f).
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    We expect that this additional extension of the auditor attestation 
report requirement will promote capital formation and efficiency by 
making the implementation process more efficient and less costly for 
non-accelerated filers by:
    <bullet> Providing non-accelerated filers more time to prepare for 
compliance with the Section 404(b) requirements; and
    <bullet> Providing more time for the Section 404(b) audit to be 
properly planned, scoped and executed.
    We acknowledge, however, that it is possible for the deferral of 
the auditor attestation requirement to cause some investors to have 
less confidence in the financial reports of non-accelerated filers, and 
that this could possibly make it more difficult for these companies to 
raise capital in the public markets.
    The additional extension for non-accelerated filers should have no 
impact on competition between non-accelerated filers, as the extension 
is being provided to all non-accelerated filers. It is possible that a 
competitive impact could result from the differing treatment of non-
accelerated filers and larger companies that already have been 
complying with the Section 404 requirements, but we have not received 
any information suggesting that this type of impact has occurred as a 
result of prior extensions.

VI. Statutory Authority and Text of the Amendments

    The amendments described in this release are made under the 
authority set forth in Section 19 of the Securities Act, Sections 3, 
12, 13, 15, 23 and 36 of the Exchange Act, and Sections 3(a) and 404 of 
the Sarbanes-Oxley Act.

List of Subjects

17 CFR Part 210

    Accountants, Accounting, Reporting and recordkeeping requirements, 
Securities.

17 CFR Parts 229 and 249

    Reporting and recordkeeping requirements, Securities.

Text of Amendments

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

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

0
1. The authority citation for part 210 continues to read as follows:

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


0
2. Section 210.2-02T is amended by:
0
a. Removing the date ``December 15, 2009'' in paragraph (a) and adding 
in its place ``June 15, 2010''; and
0
b. Removing the date ``June 30, 2010'' in paragraph (b) and adding in 
its place ``December 15, 2010''.

[[Page 53631]]

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
3. The authority citation for Part 229 continues to read, in part, as 
follows:

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

0
4. Section 229.308T is amended by:
0
a. Removing the date ``December 15, 2009'' in the ``Note to Item 308T'' 
and adding in its place ``June 15, 2010''; and
0
b. Removing the date ``June 30, 2010'' in paragraph (c) and adding in 
its place ``December 15, 2010''.

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

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

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

0
6. Form 20-F (referenced in Sec.  249.220f), Part II, Item 15T is 
amended by:
0
a. Removing the date ``December 15, 2009'' in paragraph (2) to the 
``Note to Item 15T'' and adding in its place ``June 15, 2010''; and
0
b. Removing the date ``June 30, 2010'' in paragraph (d) and adding in 
its place ``December 15, 2010''.

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


0
7. Form 40-F (referenced in Sec.  249.240f) is amended by:
0
a. Removing the date ``December 15, 2009'' in ``Instruction 3T(2)'' to 
the ``Instructions to paragraphs (b), (c), (d) and (e) of General 
Instruction B.(6)'' and adding in its place ``June 15, 2010''; and
0
b. Removing the date ``June 30, 2010'' in the paragraph following 
``Instruction 3T'' to the ``Instructions to paragraphs (b), (c), (d), 
and (e) of General Instruction B.(6)'' and adding in its place 
``December 15, 2010''.

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


0
8. Form 10-Q (referenced in Sec.  249.308a) is amended by revising Item 
4T to Part I to read as follows:

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

Form 10-Q

* * * * *

Part I--Financial Information

* * * * *

Item 4T. Controls and Procedures.

    (a) If the registrant is neither a large accelerated filer nor an 
accelerated filer as those terms are defined in Sec.  240.12b-2 of this 
chapter, furnish the information required by Items 307 and 308T(b) of 
Regulation S-K (17 CFR 229.307 and 229.308T(b)) with respect to a 
quarterly report that the registrant is required to file for a fiscal 
year ending on or after December 15, 2007 but before June 15, 2010.
    (b) This temporary Item 4T will expire on December 15, 2010.
* * * * *

0
9. Form 10-K (referenced in Sec.  249.310) is amended by:
0
a. Removing the date ``December 15, 2009'' in paragraph (a) to Item 
9A(T) to Part II and adding in its place ``June 15, 2010''; and
0
b. Removing the date ``June 30, 2010'' in paragraph (b) to Item 9A(T) 
to Part II and adding in its place ``December 15, 2010''.

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


    Dated: October 13, 2009.

    By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. E9-24990 Filed 10-16-09; 8:45 am]
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