18612 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Rules and Regulations 

1 17 CFR 210. 

2 17 CFR 229. 

3 15 U.S.C. 77a et seq. 

4 15 U.S.C. 78a et seq. 

5 17 CFR 210.1–02, 210.3–01, 210.3–04, 210.3–05, 

210.3–10, 210.3A–02, 210.4–08, 210.5–02, 210.5– 

03, 210.5–04, 210.7–03, 210.7–04, 210.7–05, 210.8– 

03, 210.8–04, 210.8–08, 210.9–03, 210.9–04, 210.9– 

06, 210.10–01, 210.11–01, and 210.11–02. 

6 17 CFR 229.301, 229.302, 229.305, and 229.503. 

7 17 CFR 240.12b–2. 

8 17 CFR 239.13, 239.25, 239.33, and 239.90. 

9 17 CFR 240.14a–101. 

10 17 CFR 249.220f. 

11See Financial Reporting Release No. 70. 

12See, e.g., Rule 4–01(a)(1) of Regulation S–X [17 

CFR 210.4–01(a)(1)]. 

13ARB 51 is Accounting Research Bulletin No. 

51, Consolidated Financial Statements, adopted in 

August 1959 by the Committee on Accounting 

Procedure of the Accounting Principles Board. 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Parts 210, 211, 229, 239, 240, 

and 249 

[Release Nos. 33–9026; 34–59775; FR–79] 

Technical Amendments to Rules, 

Forms, Schedules, and Codification of 

Financial Reporting Policies 

AGENCY: Securities and Exchange 

Commission. 

ACTION: Final rule; technical 

amendment. 

SUMMARY: The Securities and Exchange 

Commission (‘‘Commission’’) is 

adopting technical amendments to 

various rules, forms and schedules 

under the Securities Act of 1933 

(‘‘Securities Act’’) and the Securities 

Exchange Act of 1934 (‘‘Exchange Act’’). 

The Commission also is making certain 

technical changes to the Codification of 

Financial Reporting Policies (‘‘CFRP’’). 

These revisions are necessary to 

conform those rules, forms, schedules 

and the CFRP to two recently issued 

Statements of Financial Accounting 

Standards (‘‘SFAS’’) issued by the 

Financial Accounting Standards Board 

(‘‘FASB’’). SFAS 141 (revised 2007), 

Business Combinations, and SFAS 160, 

Noncontrolling Interests in Consolidated 

Financial Statements—an amendment 

of ARB No. 51 (collectively 

‘‘Statements’’) were both issued in 

December 2007. The technical 

amendments include revision of certain 

rules in Regulation S–X, certain items in 

Regulation S–K, certain sections in the 

CFRP and various forms and schedules 

prescribed under the Securities Act and 

Exchange Act. 

DATES: Effective Date: April 23, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Steven C. Jacobs, Associate Chief 

Accountant, at (202) 551–3400, Division 

of Corporation Finance, or Eric C. West, 

Associate Chief Accountant, at (202) 

551–5300, Office of the Chief 

Accountant, Securities and Exchange 

Commission, 100 F Street, NE., 

Washington, DC 20549–3628. 

SUPPLEMENTARY INFORMATION: We are 

adopting amendments to Regulation S– 

X,1 Regulation S–K,2 rules, forms and 

schedules under the Securities Act of 

1933 3 and the Securities Exchange Act 

of 1934 4 and making technical changes 

to the CFRP. In Regulation S–X, we are 

adopting amendments to Rules 1–02, 3– 

01, 3–04, 3–05, 3–10, 3A–02, 4–08, 5– 

02, 5–03, 5–04, 7–03, 7–04, 7–05, 8–03, 

8–04, 8–08, 9–03, 9–04, 9–06, 10–01, 

11–01, and 11–02.5 In Regulation S–K, 

we are adopting amendments to Items 

301, 302, 305, and 503.6 We are making 

technical changes to CFRP sections 

201.01, 201.02, 213.02(b), and 507.03. 

We are amending Exchange Act Rule 

12b-2.7 We are amending Securities Act 

Forms S–3, S–4, F–3, and 1–A.8 We are 

amending Exchange Act Schedule 14A.9

Finally, we are amending Exchange Act 

Form 20–F.10

I. Background and Summary 

On April 25, 2003, the Commission 

issued a policy statement recognizing 

the FASB’s financial accounting and 

reporting standards as ‘‘generally 

accepted’’ for purposes of the Federal 

securities laws.11 The Commission’s 

rules and regulations generally require 

compliance with U.S. generally 

accepted accounting principles 

(‘‘GAAP’’),12 and the requirements of 

the Commission’s rules, forms and 

schedules generally are used to 

interpret, supplement, or expand upon 

GAAP requirements. The purpose of 

these technical amendments and 

revisions is to eliminate obsolete 

terminology and revise reporting and 

disclosure requirements as necessary to 

achieve consistency between the 

Commission’s compliance requirements 

and SFAS 141(R) and SFAS 160, both 

issued by the FASB in December 2007. 

II. Business Combinations 

The FASB issued SFAS 141(R), 

Business Combinations, in December 

2007. SFAS 141(R) is effective at the 

beginning of the first annual reporting 

period beginning on or after December 

15, 2008. SFAS 141(R) addresses the 

accounting for all transactions in which 

an enterprise obtains control of one or 

more other businesses. The new 

standard retains the fundamental 

requirement in SFAS 141 that the 

acquisition method of accounting 

(called the ‘‘purchase method’’ in SFAS 

141) be used for all business 

combinations. The existing requirement 

that an acquirer be identified for each 

business combination also was not 

modified. SFAS 141(R) defines the 

acquirer as the enterprise that obtains 

control of one or more businesses and 

establishes the acquisition date as the 

date control is achieved. The 

application of SFAS 141 was limited to 

business combinations in which control 

was obtained by transfer of 

consideration. SFAS 141(R) requires 

that the acquisition method of 

accounting be applied to all transactions 

and other events in which one entity 

obtains control over one or more 

businesses. In addition, SFAS 141(R) 

generally requires an acquirer to 

recognize assets acquired, liabilities 

assumed and any noncontrolling 

interest in the acquiree at their fair 

values as of the acquisition date (rather 

than the announcement date as required 

in SFAS 141). SFAS 141(R) also makes 

significant changes in accounting for 

contingencies, goodwill, bargain 

purchases and income taxes related to 

business combinations. 

III. Noncontrolling Interests in 

Consolidated Financial Statements 

The FASB issued SFAS 160, 

Noncontrolling Interests in Consolidated 

Financial Statements—an amendment 

of ARB 51, in December 2007. SFAS 160 

is effective for fiscal years and interim 

periods within those fiscal years 

beginning on or after December 15, 

2008. SFAS 160 amends ARB 51 13 to 

establish accounting and reporting 

standards for the noncontrolling interest 

in a subsidiary and for the 

deconsolidation of a subsidiary. It 

specifies that a noncontrolling interest 

in a subsidiary is an ownership interest 

in the consolidated entity that should be 

reported as equity in the consolidated 

financial statements. Prior to the advent 

of SFAS 160, little guidance existed for 

reporting noncontrolling interests. As a 

result, there were widely divergent 

practices for reporting such outside 

interests. 

Most significantly, SFAS 160 changes 

the way the consolidated income 

statement is presented. It requires 

consolidated net income to be reported 

at amounts that include the amounts 

attributable to both the parent and the 

noncontrolling interest. In this regard, it 

requires disclosure on the face of the 

consolidated statement of income of the 

consolidated net income attributable to 

the parent and to the noncontrolling 

interest. Further, SFAS 160 establishes 

that all changes in a parent’s ownership 

interest in a subsidiary shall be 

accounted for as equity transactions as 


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Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Rules and Regulations 18613 

14 5 U.S.C. 553(b). 15For similar reasons, the amendments do not 

require analysis under the Regulatory Flexibility 

Act or analysis of major rule status under the Small 

Business Regulatory Enforcement Fairness Act. See 

5 U.S.C. 601(2) (for purposes of Regulatory 

Flexibility Act analysis, the term ‘‘rule’’ means any 

rule for which the agency publishes a general notice 

of proposed rulemaking); and 5 U.S.C. 804(3)(C) (for 

purposes of Congressional review of agency 

rulemaking, the term ‘‘rule’’ does not include any 

rule of agency organization, procedure or practice 

that does not substantially affect the rights or 

obligations of non-agency parties). 

16See 5 U.S.C. 553(d)(3). 17 15 U.S.C. 78w(a)(2). 

long as the parent retains a controlling 

financial interest in the subsidiary. In 

addition, SFAS 160 requires that a 

parent recognize a gain or loss when a 

subsidiary is deconsolidated. Finally, 

SFAS 160 significantly expands 

disclosures in the consolidated financial 

statements regarding the interests of the 

parent’s owners and the interests of 

noncontrolling owners. 

IV. Summary of Amendments 

The table which follows is presented 

as a guide to assist the reader in 

understanding the various changes 

being made by the technical 

amendments that are described at the 

end of this release. The table presents a 

brief description of each category of the 

changes and an explanation of the 

rationale for each change. Conforming 

amendments are being made to update 

the CFRP. 

Amendment Rationale 

Amend various rules in Regulation S–X, items in Regulation S–K, and 

forms and schedules filed under the Securities Act and the Exchange 

Act to replace references to ‘‘minority interests’’ with ‘‘noncontrolling 

interests.’’ 

These amendments will replace references to ‘‘minority interests’’ with 

‘‘noncontrolling interests’’ in order to be consistent with SFAS 160. 

Under Regulation S–X, delete paragraphs 12 of Rule 5–03, 10 of Rule 

7–04, and 14(e) of Rule 9–04.

SFAS 160 requires that consolidated financial statements report the 

net income attributable to the parent (or controlling interest) and the 

net income attributable to the noncontrolling interest. These amendments will make the rules consistent with this requirement. 

Under Regulation S–X, delete paragraphs 27 of Rule 5–02, 20 of Rule 

7–03, and 18 of Rule 9–03.

SFAS 160 requires that noncontrolling interests be presented in the 

consolidated statement of financial position within the equity section 

separate from the parent’s equity. These amendments will eliminate 

the Commission’s current requirement to present equity attributable 

to the noncontrolling interest outside of the consolidated equity section. 

Amend various rules in Regulation S–X, items in Regulation S–K, and 

forms and schedules filed under the Securities Act and the Exchange 

Act to rescind guidance related to business combinations accounted 

for as ‘‘pooling of interests’’ and update references to specify which 

rules apply to combinations of entities under common control.

These amendments will eliminate ‘‘pooling of interests’’ accounting by 

registrants in accordance with the requirements of SFAS 141(R). 

Amend various rules in Regulation S–X, items in Regulation S–K, and 

forms and schedules filed under the Securities Act and the Exchange 

Act to distinguish between income attributable to a noncontrolling interest and income attributable to a controlling interest.

SFAS 160 requires net income or loss be attributed to the parent (or 

controlling interest) and the noncontrolling interest. These amendments will make the rules consistent with this requirement. 

Amend various rules in Regulation S–X, items in Regulation S–K, and 

forms and schedules filed under the Securities Act and the Exchange 

Act to remove the term ‘‘purchase method.’’ 

Under SFAS 141(R), a business combination can occur in the absence 

of a purchase transaction. These amendments will update the terminology in order to achieve consistency with SFAS 141(R). 

Amend Rule 3–04 under Regulation S–X to require a separate schedule in the notes to the financial statements that shows the effects of 

any changes in the registrant’s ownership interest in a subsidiary to 

the equity attributable to the registrant.

This amendment will conform Rule 3–04 to the requirements of SFAS 

160. 

V. Certain Findings 

Under the Administrative Procedure 

Act, a notice of proposed rulemaking is 

not required when the agency, for good 

cause, finds that notice and public 

comment are impracticable, 

unnecessary, or contrary to the public 

interest.14 These amendments are 

technical changes to eliminate obsolete 

terminology and revise reporting and 

disclosure requirements as necessary to 

achieve consistency between the 

Commission’s compliance requirements 

and SFAS 141(R) and SFAS 160. 

Because no one is likely to want to 

comment on such non-substantive, 

technical amendments, the Commission 

finds that it is unnecessary to publish 

notice of these amendments.15

The Administrative Procedure Act 

also requires publication of a rule at 

least 30 days before its effective date 

unless the agency finds otherwise for 

good cause.16 Due to the need to 

coordinate the effectiveness of the 

amendments with the effective dates of 

SFAS 141(R) and SFAS 160 and for the 

same reasons described with respect to 

opportunity for notice and comment, 

the Commission finds there is good 

cause for the amendments to take effect 

on April 23, 2009. 

VI. Consideration of Competitive Effects 

of Amendments 

Section 23(a)(2) of the Exchange Act 

requires the Commission, in adopting 

rules under the Exchange Act, to 

consider the competitive effects of such 

rules, if any, and to refrain from 

adopting a rule that would impose a 

burden on competition not necessary or 

appropriate in furtherance of the 

purposes of the Exchange Act.17

Because these amendments merely 

make technical changes to update 

references to applicable FASB 

pronouncements, we do not anticipate 

any competitive advantages or 

disadvantages will be created. 

VII. Update to Codification of Financial 

Reporting Policies 

The Commission amends the 

‘‘Codification of Financial Reporting 

Policies’’ announced in Financial 

Reporting Release 1 (April 15, 1982) [47 

FR 21028] as follows: 

1. By removing and reserving Sections 

201.01 and 201.02. 

2. By revising Section 213.02(b) to 

replace the term ‘‘minority interest’’ in 

each place it appears with the term 

‘‘noncontrolling interest’’. 

3. By revising Section 507.03 to 

replace the term ‘‘minority interest’’ in 

each place it appears with the term 

‘‘noncontrolling interest’’. 


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18614 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Rules and Regulations 

18 15 U.S.C. 77f, 77g, 77j, and 77s(a). 

19 15 U.S.C. 78l, 78m, 78n(a), 78o(d), and 78w(a). 

The CFRP is a separate publication 

issued by the Commission. It will not be 

published in the Federal Register or 

Code of Federal Regulations. For more 

information about the CFRP, contact the 

Commission’s Public Reference Room at 

(202) 551–5850. 

VIII. Statutory Basis and Text of 

Amendments 

We are adopting these technical 

amendments pursuant to Sections 6, 7, 

10 and 19(a) of the Securities Act,18 and 

Sections 12, 13, 14(a), 15(d) and 23(a) of 

the Exchange Act.19

List of Subjects in 17 CFR Parts 210, 

211, 229, 239, 240, and 249 

Accounting, Reporting and 

recordkeeping requirements, Securities. 

Text of Amendments 

■ For the reasons set out in the 

preamble, Title 17, Chapter II, of the 

Code of Federal Regulations is amended 

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 

■ 1. The authority citation for part 210 

is revised to read as follows: 

Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 

77z–2, 77z–3, 77aa(25), 77aa(26), 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. 

■ 2. Amend § 210.1–02 by revising 

paragraphs (w)(1) and (w)(3), the 

Computational Notes 1 and 2 following 

the Note to paragraph (w), (bb)(1)(i) and 

(bb)(1)(ii) to read as follows: 

§ 210.1–02 Definitions of terms used in 

Regulation S–X (17 CFR part 210). 

* * * * * 

(w) * * * 

(1) The registrant’s and its other 

subsidiaries’ investments in and 

advances to the subsidiary exceed 10 

percent of the total assets of the 

registrant and its subsidiaries 

consolidated as of the end of the most 

recently completed fiscal year (for a 

proposed combination between entities 

under common control, this condition is 

also met when the number of common 

shares exchanged or to be exchanged by 

the registrant exceeds 10 percent of its 

total common shares outstanding at the 

date the combination is initiated); or 

* * * * * 

(3) The registrant’s and its other 

subsidiaries’ equity in the income from 

continuing operations before income 

taxes, extraordinary items and 

cumulative effect of a change in 

accounting principle of the subsidiary 

exclusive of amounts attributable to any 

noncontrolling interests exceeds 10 

percent of such income of the registrant 

and its subsidiaries consolidated for the 

most recently completed fiscal year. 

* * * * * 

Computational note: * * * 

1. When a loss exclusive of amounts 

attributable to any noncontrolling interests 

has been incurred by either the parent and 

its subsidiaries consolidated or the tested 

subsidiary, but not both, the equity in the 

income or loss of the tested subsidiary 

exclusive of amounts attributable to any 

noncontrolling interests should be excluded 

from such income of the registrant and its 

subsidiaries consolidated for purposes of the 

computation. 

2. If income of the registrant and its 

subsidiaries consolidated exclusive of 

amounts attributable to any noncontrolling 

interests for the most recent fiscal year is at 

least 10 percent lower than the average of the 

income for the last five fiscal years, such 

average income should be submitted for 

purposes of the computation. Any loss years 

should be omitted for purposes of computing 

average income. 

* * * * * 

(bb) * * * 

(1) * * * 

(i) Current assets, noncurrent assets, 

current liabilities, noncurrent liabilities, 

and, when applicable, redeemable 

preferred stocks (see § 210.5–02.27) and 

noncontrolling interests (for specialized 

industries in which classified balance 

sheets are normally not presented, 

information shall be provided as to the 

nature and amount of the majority 

components of assets and liabilities); 

(ii) Net sales or gross revenues, gross 

profit (or, alternatively, costs and 

expenses applicable to net sales or gross 

revenues), income or loss from 

continuing operations before 

extraordinary items and cumulative 

effect of a change in accounting 

principle, net income or loss, and net 

income or loss attributable to the entity 

(for specialized industries, other 

information may be substituted for sales 

and related costs and expenses if 

necessary for a more meaningful 

presentation); and 

* * * * * 

■ 3. Amend § 210.3–01 by revising 

paragraphs (c)(2) and (c)(3) to read as 

follows: 

§ 210.3–01 Consolidated balance sheets. 

* * * * * 

(c) * * * 

(2) For the most recent fiscal year for 

which audited financial statements are 

not yet available the registrant 

reasonably and in good faith expects to 

report income attributable to the 

registrant, after taxes but before 

extraordinary items and cumulative 

effect of a change in accounting 

principle; and 

(3) For at least one of the two fiscal 

years immediately preceding the most 

recent fiscal year the registrant reported 

income attributable to the registrant, 

after taxes but before extraordinary 

items and cumulative effect of a change 

in accounting principle. 

* * * * * 

■ 4. Revise § 210.3–04 to read as 

follows: 

§ 210.3–04 Changes in stockholders’ 

equity and noncontrolling interests. 

An analysis of the changes in each 

caption of stockholders’ equity and 

noncontrolling interests presented in 

the balance sheets shall be given in a 

note or separate statement. This analysis 

shall be presented in the form of a 

reconciliation of the beginning balance 

to the ending balance for each period for 

which an income statement is required 

to be filed with all significant 

reconciling items described by 

appropriate captions with contributions 

from and distribution to owners shown 

separately. Also, state-separately the 

adjustments to the balance at the 

beginning of the earliest period 

presented for items which were 

retroactively applied to periods prior to 

that period. With respect to any 

dividends, state the amount per share 

and in the aggregate for each class of 

shares. Provide a separate schedule in 

the notes to the financial statements that 

shows the effects of any changes in the 

registrant’s ownership interest in a 

subsidiary on the equity attributable to 

the registrant. 

■ 5. In § 210.3–05, revise paragraphs 

(a)(1)(i) and (a)(1)(ii), and remove the 

authority citation at the end of the 

section to read as follows: 

§ 210.3–05 Financial statements of 

businesses acquired or to be acquired. 

(a) * * * 

(1) * * * 

(i) A business combination has 

occurred or is probable (for purposes of 

this section, this encompasses the 

acquisition of an interest in a business 

accounted for by the equity method); or 


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Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Rules and Regulations 18615 

(ii) Consummation of a combination 

between entities under common control 

is probable. 

* * * * * 

■ 6. Amend § 210.3–10 by revising 

paragraph (i)(3) to read as follows: 

§ 210.3–10 Financial statements of 

guarantors and issuers of guaranteed 

securities registered or being registered. 

* * * * * 

(i) * * * 

(3) The parent company column 

should present investments in all 

subsidiaries based upon their 

proportionate share of the subsidiary’s 

net assets; 

* * * * * 

§ 210.3A–02 [Amended] 

■ 7. Amend § 210.3A–02 by: 

■ a. Revising paragraph (a), third 

sentence, the phrase ‘‘or in bankruptcy, 

or when control is likely to be 

temporary).’’ to read ‘‘or in 

bankruptcy).’’; and 

■ b. Revising paragraph (b)(2), first 

sentence, the reference ‘‘pooling of 

interests’’ to read ‘‘combination between 

entities under common control’’. 

§ 210.4–08 [Amended] 

■ 8. In § 210.4–08, in the last sentence 

of paragraph (e)(3) introductory text, 

remove the phrase ‘‘(§ 210.5–02.28) and 

minority interests’’ and add in its place 

the phrase ‘‘(§ 210.5–02.27) and 

noncontrolling interests’’. 

■ 9. Amend § 210.5–02 by: 

■ a. Removing the undesignated 

heading ‘‘Minority Interests’’ following 

paragraph 26; 

■ b. Removing paragraph 27; 

■ c. Redesignating paragraphs 28, 29, 

30, and 31 as paragraphs 27, 28, 29, and 

30; 

■ d. Revising the reference ‘‘§ 210.5– 

02.29’’ in newly redesignated paragraph 

27, last sentence, to read ‘‘§ 210.5– 

02.28’’; 

■ e. Adding an undesignated heading 

following newly redesignated paragraph 

30 and a new paragraph 31; and 

■ f. Revising paragraph 32. 

■ g. Remove the authority citation at the 

end of the section. 

The additions and revisions read as 

follows: 

§ 210.5–02 Balance sheets. 

* * * * * 

30. * * * 

Noncontrolling Interests 

31. Noncontrolling interests in 

consolidated subsidiaries. State 

separately in a note the amounts 

represented by preferred stock and the 

applicable dividend requirements if the 

preferred stock is material in relation to 

the consolidated equity. 

32. Total liabilities and equity. 

■ 10. Amend § 210.5–03 by: 

■ a. Removing paragraph 12 and 

redesignating paragraphs 13, 14, 15, 16, 

17, 18, and 19 as paragraphs 12, 13, 14, 

15, 16, 17, and 18; 

■ b. Redesignating paragraph 20 as 

paragraph 21; and 

■ c. Adding new paragraphs 19 and 20. 

The additions read as follows: 

§ 210.5–03 Income statements. 

* * * * * 

19. Net income attributable to the 

noncontrolling interest. 

20. Net income attributable to the 

controlling interest. 

* * * * * 

§ 210.5–04 [Amended] 

■ 11. Amend § 210.5–04, Schedule I, 

last sentence, by revising the phrase 

‘‘(§ 210.5–02.28) and minority interests’’ 

to read ‘‘(§ 210.5–02.27) and 

noncontrolling interests’’. 

■ 12. Remove the authority citation for 

§§ 210.7–01 through 210.7–05 following 

the undesignated heading ‘‘Insurance 

Companies’’. 

■ 13. Amend § 210.7–03 by: 

■ a. Removing the undesignated 

heading ‘‘Minority Interests’’ preceding 

paragraph 20; 

■ b. Removing paragraph 20; 

■ c. Redesignating paragraphs 21, 22, 

23, and 24 as paragraphs 20, 21, 22, and 

23; 

■ d. Revising newly redesignated 

paragraphs 20, 21, 22, and 23(b); 

■ e. Adding an undesignated heading 

following newly redesignated paragraph 

23(c) and a new paragraph 24; and 

■ f. Revising paragraph 25. 

The revisions and addition read as 

follows: 

§ 210.7–03 Balance sheets. 

* * * * * 

20. Preferred stocks subject to 

mandatory redemption requirements or 

whose redemption is outside the control 

of the issuer. The classification and 

disclosure requirements of § 210.5– 

02.27 shall be followed. 

* * * * * 

21. Preferred stocks which are not 

redeemable or are redeemable solely at 

the option of the issuer. The 

classification and disclosure 

requirements of § 210.5–02.28 shall be 

followed. 

* * * * * 

22. Common stocks. The classification 

and disclosure requirements of § 210.5– 

02.29 shall be followed. 

* * * * * 

23. * * * 

(b) The classification and disclosure 

requirements of § 210.5–02.30(b) shall 

be followed for dating and effect of a 

quasi-reorganization. 

* * * * * 

Noncontrolling Interests 

24. Noncontrolling interests in 

consolidated subsidiaries. The 

disclosure requirements of § 210.5– 

02.31 shall be followed. 

25. Total liabilities and equity. 

■ 14. Amend § 210.7–04 by: 

■ a. Removing paragraph 10; 

■ b. Redesignating paragraphs 11, 12, 

13, 14, 15, 16, and 17 as paragraphs 10, 

11, 12, 13, 14, 15, and 16; 

■ c. Redesignating paragraph 18 as 

paragraph 19; and 

■ d. Adding new paragraphs 17 and 18. 

The additions read as follows: 

§ 210.7–04 Income statements. 

* * * * * 

17. Net income attributable to the 

noncontrolling interest. 

18. Net income attributable to the 

controlling interest. 

* * * * * 

§ 210.7–05 [Amended] 

■ 15. Amend § 210.7–05: 

■ a. In Schedule II, in the last sentence, 

remove the reference ‘‘(§ 210.7–03.21) 

and minority interests’’ and add in its 

place the reference ‘‘(§ 210.7–03.20) and 

noncontrolling interests’’. 

■ b. Remove the authority citation at the 

end of the section. 

■ 16. In § 210.8–03, revise paragraphs 

(b)(3) and (b)(4) to read as follows: 

§ 210.8–03 Interim financial statements. 

* * * * * 

(b) * * * 

(3) Significant equity investees. Sales, 

gross profit, net income (loss) from 

continuing operations, net income, and 

net income attributable to the investee 

must be disclosed for equity investees 

that constitute 20 percent or more of a 

registrant’s consolidated assets, equity 

or income from continuing operations 

attributable to the registrant. 

(4) Significant dispositions and 

business combinations. If a significant 

disposition or business combination has 

occurred during the most recent interim 

period and the transaction required the 

filing of a Form 8–K (§ 249.308 of this 

chapter), pro forma data must be 

presented that reflects revenue, income 

from continuing operations, net income, 

net income attributable to the registrant 

and income per share for the current 

interim period and the corresponding 

interim period of the preceding fiscal 

year as though the transaction occurred 

at the beginning of the periods. 

* * * * * 


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18616 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Rules and Regulations 

§ 210.8–04 [Amended] 

■ 17. Amend § 210.8–04 by: 

■ a. Revising paragraph (a), first 

sentence, the phrase ‘‘If a business 

combination accounted for as a 

‘purchase’ has occurred or is probable,’’ 

to read ‘‘If a business combination has 

occurred or is probable,’’; 

■ b. Revising paragraph (a)(1) to read 

‘‘This encompasses the purchase of an 

interest in a business accounted for by 

the equity method.’’; 

■ c. Revising paragraph (b)(3), the 

phrase ‘‘of the acquiree’’ to read ‘‘of the 

acquiree exclusive of amounts 

attributable to any noncontrolling 

interests’’; and 

■ d. Revising Computational note to 

§ 210.8–04(b), the first sentence, the 

phrase ‘‘its subsidiaries consolidated’’ to 

read ‘‘its subsidiaries consolidated 

exclusive of amounts attributable to any 

noncontrolling interests’’. 

■ 18. Amend § 210.8–08 by revising 

paragraphs (b)(2) and (b)(3) to read as 

follows: 

§ 210.8–08 Age of financial statements. 

* * * * * 

(b) * * * 

(2) For the most recent fiscal year for 

which audited financial statements are 

not yet available, the smaller reporting 

company reasonably and in good faith 

expects to report income from 

continuing operations attributable to the 

registrant before taxes; and 

(3) For at least one of the two fiscal 

years immediately preceding the most 

recent fiscal year the smaller reporting 

company reported income from 

continuing operations attributable to the 

registrant before taxes. 

■ 19. Amend § 210.9–03 by: 

■ a. Removing paragraph 18; 

■ b. Redesignating paragraphs 19, 20, 

21, and 22 as paragraphs 18, 19, 20, and 

21; 

■ c. Revising redesignated paragraphs 

18, 19, 20, and 21; 

■ d. Adding an undesignated heading 

following redesignated paragraph 21; 

■ e. Adding new paragraph 22; and 

■ f. Revising paragraph 23. 

■ g. Remove the authority citation at the 

end of the section. 

The revisions and addition read as 

follows: 

§ 210.9–03 Balance sheets. 

* * * * * 

18. Preferred stocks subject to 

mandatory redemption requirements or 

whose redemption is outside the control 

of the issuer. See § 210.5–02.27. 

* * * * * 

19. Preferred stocks which are not 

redeemable or are redeemable solely at 

the option of the issuer. See § 210.5– 

02.28. 

* * * * * 

20. Common stocks. See § 210.5– 

02.29. 

* * * * * 

21. Other stockholders’ equity. See 

§ 210.5–02.30. 

Noncontrolling Interests 

22. Noncontrolling interests in 

consolidated subsidiaries. The 

disclosure requirements of § 210.5– 

02.31 shall be followed. 

23. Total liabilities and equity. 

■ 20. Amend § 210.9–04 by: 

■ a. Removing paragraph 14(e); 

■ b. Redesignating paragraph 21 as 

paragraph 23; and 

■ c. Adding new paragraphs 21 and 22. 

The additions read as follows: 

§ 210.9–04 Income statements. 

* * * * * 

21. Net income attributable to the 

noncontrolling interest. 

22. Net income attributable to the 

controlling interest. 

■ 21. Amend § 210.9–06 by revising the 

last sentence to read as follows: 

* * * * * 

§ 210.9–06 Condensed financial 

information of registrant. 

* * * Redeemable preferred stocks 

(§ 210.5–02.27) and noncontrolling 

interests shall be deducted in 

computing net assets for purposes of 

this test. 

■ 22. Amend § 210.10–01 by revising 

paragraphs (b)(3) and (b)(4) to read as 

follows: 

§ 210.10–01 Interim financial statements. 

* * * * * 

(b) * * * 

(3) If, during the most recent interim 

period presented, the registrant or any 

of its consolidated subsidiaries entered 

into a combination between entities 

under common control, the interim 

financial statements for both the current 

year and the preceding year shall reflect 

the combined results of the combined 

businesses. Supplemental disclosure of 

the separate results of the combined 

entities for periods prior to the 

combination shall be given, with 

appropriate explanations. 

(4) Where a material business 

combination has occurred during the 

current fiscal year, pro forma disclosure 

shall be made of the results of 

operations for the current year up to the 

date of the most recent interim balance 

sheet provided (and for the 

corresponding period in the preceding 

year) as though the companies had 

combined at the beginning of the period 

being reported on. This pro forma 

information shall, at a minimum, show 

revenue, income before extraordinary 

items and the cumulative effect of 

accounting changes, including such 

income on a per share basis, net income, 

net income attributable to the registrant, 

and net income per share. 

* * * * * 

§§ 210.11–01—210.11–03 [Amended] 

■ 23. Remove the authority citation for 

§§ 210.11–01 through 210.11–03 

following the undesignated heading 

‘‘Pro Forma Financial Information’’. 

■ 24. Amend § 210.11–01 by revising 

paragraphs (a)(1) and (a)(2) to read as 

follows: 

§ 210.11–01 Presentation requirements. 

(a) * * * 

(1) During the most recent fiscal year 

or subsequent interim period for which 

a balance sheet is required by § 210.3– 

01, a significant business combination 

has occurred (for purposes of these 

rules, this encompasses the acquisition 

of an interest in a business accounted 

for by the equity method); 

(2) After the date of the most recent 

balance sheet filed pursuant to § 210.3– 

01, consummation of a significant 

business combination or a combination 

of entities under common control has 

occurred or is probable; 

* * * * * 

■ 25. Amend § 210.11–02 by revising 

paragraph (b)(3) and the first sentence of 

Instruction 2 to read as follows: 

§ 210.11–02 Preparation requirements. 

* * * * * 

(b) * * * 

(3) The pro forma condensed financial 

information need only include major 

captions (i.e., the numbered captions) 

prescribed by the applicable sections of 

this Regulation. Where any major 

balance sheet caption is less than 10 

percent of total assets, the caption may 

be combined with others. When any 

major income statement caption is less 

than 15 percent of average net income 

attributable to the registrant for the most 

recent three fiscal years, the caption 

may be combined with others. In 

calculating average net income 

attributable to the registrant, loss years 

should be excluded unless losses were 

incurred in each of the most recent three 

years, in which case the average loss 

shall be used for purposes of this test. 

Notwithstanding these tests, de minimis 

amounts need not be shown separately. 

* * * * * 

Instructions: * * * 

2. For a business combination, pro 

forma adjustments for the income 


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Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Rules and Regulations 18617 

statement shall include amortization, 

depreciation and other adjustments 

based on the allocated purchase price of 

net assets acquired. * * * 

* * * * * 

PART 211—INTERPRETATIONS 

RELATING TO FINANCIAL REPORTING 

MATTERS 

■ 26. Amend part 211, subpart A, by 

adding ‘‘Technical Amendments to 

Rules, Forms, Schedules and 

Codification of Financial Reporting 

Policies’’, Release No. FR–79 and the 

release date of April 15, 2009 to the list 

of interpretive releases. 

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 

■ 27. 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, 777iii, 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.; 

18 U.S.C. 1350, unless otherwise noted. 

* * * * * 

§ 229.301 [Amended] 

■ 28. Amend § 229.301, Instruction 2 to 

the Instructions to Item 301, first 

sentence, by revising the reference 

‘‘§ 210.5–02.28(a)’’ to read ‘‘§ 210.5– 

02.27(a)’’. 

■ 29. Amend § 229.302 by revising 

paragraphs (a)(1) and (a)(2) to read as 

follows: 

§ 229.302 (Item 302) Supplementary 

financial information. 

(a) * * * 

(1) Disclosure shall be made of net 

sales, gross profit (net sales less costs 

and expenses associated directly with or 

allocated to products sold or services 

rendered), income (loss) before 

extraordinary items and cumulative 

effect of a change in accounting, per 

share data based upon such income 

(loss), net income (loss) and net income 

(loss) attributable to the registrant, for 

each full quarter within the two most 

recent fiscal years and any subsequent 

interim period for which financial 

statements are included or are required 

to be included by Article 3 of Regulation 

S–X (Part 210 of this chapter). 

(2) When the data supplied pursuant 

to paragraph (a) of this section vary from 

the amounts previously reported on the 

Form 10–Q (§ 249.308a of this chapter) 

filed for any quarter, such as would be 

the case when a combination between 

entities under common control occurs 

or where an error is corrected, reconcile 

the amounts given with those 

previously reported and describe the 

reason for the difference. 

* * * * * 

§ 229.305 [Amended] 

■ 30. Amend § 229.305, Instruction 

3.C.ii., General Instructions to 

Paragraphs 305(a) and 305(b), first 

sentence, by revising the reference 

‘‘minority interests’’ to read 

‘‘noncontrolling interests’’. 

■ 31. Amend § 229.503 by revising 

Instruction 1.(C) to the Instructions to 

paragraph 503(d) to read as follows: 

§ 229.503 (Item 503) Prospectus summary, 

risk factors, and ratio of earnings to fixed 

charges. 

* * * * * 

Instructions to paragraph 503(d): 

1. Definitions. * * * 

(C) Earnings. The term ‘‘earnings’’ is 

the amount resulting from adding and 

subtracting the following items. Add the 

following: (a) pre-tax income from 

continuing operations before adjustment 

for income or loss from equity investees; 

(b) fixed charges; (c) amortization of 

capitalized interest; (d) distributed 

income of equity investees; and (e) your 

share of pre-tax losses of equity 

investees for which charges arising from 

guarantees are included in fixed 

charges. From the total of the added 

items, subtract the following: (a) interest 

capitalized; (b) preference security 

dividend requirements of consolidated 

subsidiaries; and (c) the noncontrolling 

interest in pre-tax income of 

subsidiaries that have not incurred fixed 

charges. Equity investees are 

investments that you account for using 

the equity method of accounting. Public 

utilities following SFAS 71 should not 

add amortization of capitalized interest 

in determining earnings, nor reduce 

fixed charges by any allowance for 

funds used during construction. 

* * * * * 

PART 239—FORMS PRESCRIBED 

UNDER THE SECURITIES ACT OF 1933 

■ 32. The authority citation for part 239 

continues to read in part as follows: 

Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 

77z–2, 77z–3, 77sss, 78c, 78l, 78m, 78n, 

78o(d), 78u–5, 78w(a), 78ll, 78mm, 80a–2(a), 

80a–3, 80a–8, 80a–9, 80a–10, 80a–13, 80a– 

24, 80a–26, 80a–29, 80a–30, and 80a–37, 

unless otherwise noted. 

* * * * * 

■ 33. Amend Form S–3 (referenced in 

§ 239.13) by revising Item 11(b)(iii) to 

read as follows: 

[Note: The text of Form S–3 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations.] 

Form S–3 

Registration Statement Under the 

Securities Act of 1933 

* * * * * 

Item 11. Material Changes. 

* * * * * 

(b) * * * (iii) restated financial 

statements prepared in accordance with 

Regulation S–X where a combination of 

entities under common control has been 

consummated subsequent to the most 

recent fiscal year and the transferred 

businesses, considered in the aggregate, 

are significant pursuant to Rule 11– 

01(b), or * * * 

* * * * * 

■ 34. Amend Form S–4 (referenced in 

§ 239.25) by revising the Instruction to 

paragraphs (e) and (f) in Item 3 and Item 

12(b)(2)(iv) to read as follows: 

[Note: The text of Form S–4 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations.] 

Form S–4 

Registration Statement Under the 

Securities Act of 1933 

* * * * * 

Item 3. Risk Factors, Ratio of Earnings 

to Fixed Charges and Other Information. 

* * * * * 

Instruction to paragraphs (e) and (f). 

For a business combination, the 

financial information required by 

paragraphs (e) and (f) shall be presented 

only for the most recent fiscal year and 

interim period. For a combination 

between entities under common control, 

the financial information required by 

paragraphs (e) and (f) (except for 

information with regard to book value) 

shall be presented for the most recent 

three fiscal years and interim period. 

For a combination between entities 

under common control, information 

with regard to book value shall be 

presented as of the end of the most 

recent fiscal year and interim period. 

Equivalent pro forma per share amounts 

shall be calculated by multiplying the 

pro forma income (loss) per share before 

non-recurring charges or credits directly 

attributable to the transaction, pro forma 

book value per share, and the pro forma 

dividends per share of the registrant by 

the exchange ratio so that the per share 

amounts are equated to the respective 


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18618 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Rules and Regulations 

values for one share of the company 

being acquired. 

* * * * * 

Item 12. Information with Respect to 

S–3 Registrants. 

* * * * * 

(b) * * * 

(2) * * * 

(iv) restated financial statements 

prepared in accordance with Regulation 

S–X where a combination under 

common control has been consummated 

subsequent to the most recent fiscal year 

and the businesses transferred, 

considered in the aggregate, are 

significant pursuant to Rule 11–01(b) of 

Regulation S–X; and 

* * * * * 

■ 35. Amend Form F–3 (referenced in 

§ 239.33) by revising Item 5(b)(1)(iii) to 

read as follows: 

[Note: The text of Form F–3 does not, and 

this amendment will not, appear in the Code 

of Federal Regulations.] 

Form F–3 

Registration Statement Under the 

Securities Act of 1933 

* * * * * 

Item 5. Material Changes. 

* * * * * 

(b)(1) * * * 

(iii) restated financial statements 

where a combination of entities under 

common control has been consummated 

subsequent to the most recent fiscal year 

and the transferred businesses, 

considered in the aggregate, are 

significant under Rule 11–01(b) of 

Regulation S–X; or 

* * * * * 

■ 36. Amend Form 1–A (referenced in 

§ 239.90), Part F/S, by revising 

paragraphs (3)(a)(i), (3)(a)(ii), and (4)(a) 

to read as follows: 

[Note: The text of Form 1–A does not, and 

this amendment will not, appear in the Code 

of Federal Regulations.] 

Form 1–A 

Regulation A Offering Statement Under 

the Securities Act of 1933 

* * * * * 

Part F/S 

* * * * * 

(3) Financial Statements of Businesses 

Acquired or to be Acquired. 

(a) * * * 

(i) A significant business combination 

has occurred or is probable (for 

purposes of this rule, this encompasses 

the acquisition of an interest in a 

business accounted for by the equity 

method); or 

(ii) Consummation of a combination 

between entities under common control. 

* * * * * 

(4) Pro Forma Financial Information. 

(a) Pro forma information shall be 

furnished if any of the following 

conditions exist (for purposes of this 

rule, ‘‘business combination’’ 

encompasses the acquisition of an 

interest in a business accounted for by 

the equity method): 

(i) During the most recent fiscal year 

or subsequent interim period for which 

a balance sheet of the registrant is 

required, a significant business 

combination has occurred. 

(ii) After the date of the registrant’s 

most recent balance sheet, 

consummation of a significant business 

combination or a combination between 

entities under common control has 

occurred or is probable. 

* * * * * 

PART 240—GENERAL RULES AND 

REGULATIONS, SECURITIES 

EXCHANGE ACT OF 1934 

■ 37. 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, 78d, 78e, 78f, 78g, 78i, 78j, 

78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, 

78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 80a– 

20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–4, 

80b–11, and 7201 et seq.; and 18 U.S.C. 1350, 

unless otherwise noted. 

* * * * * 

■ 38. Amend § 240.12b–2 to revise the 

definition of ‘‘Significant subsidiary’’ 

and Computational Note following it to 

read as follows: 

§ 240.12b–2 Definitions. 

* * * * * 

Significant subsidiary. The term 

significant subsidiary means a 

subsidiary, including its subsidiaries, 

which meets any of the following 

conditions: 

(1) The registrant’s and its other 

subsidiaries’ investments in and 

advances to the subsidiary exceed 10 

percent of the total assets of the 

registrant and its subsidiaries 

consolidated as of the end of the most 

recently completed fiscal year (for a 

proposed combination between entities 

under common control, this condition is 

also met when the number of common 

shares exchanged or to be exchanged by 

the registrant exceeds 10 percent of its 

total common shares outstanding at the 

date the combination is initiated); or 

(2) The registrant’s and its other 

subsidiaries’ proportionate share of the 

total assets (after intercompany 

eliminations) of the subsidiary exceeds 

10 percent of the total assets of the 

registrant and its subsidiaries 

consolidated as of the end of the most 

recently completed fiscal year; or 

(3) The registrant’s and its other 

subsidiaries’ equity in the income from 

continuing operations before income 

taxes, extraordinary items and 

cumulative effect of a change in 

accounting principle of the subsidiary 

exclusive of amounts attributable to any 

noncontrolling interests exceeds 10 

percent of such income of the registrant 

and its subsidiaries consolidated for the 

most recently completed fiscal year. 

Computational note: For purposes of 

making the prescribed income test the 

following guidance should be applied: 

1. When a loss exclusive of amounts 

attributable to any noncontrolling 

interests has been incurred by either the 

parent and its subsidiaries consolidated 

or the tested subsidiary, but not both, 

the equity in the income or loss of the 

tested subsidiary exclusive of amounts 

attributable to any noncontrolling 

interests should be excluded from such 

income of the registrant and its 

subsidiaries consolidated for purposes 

of the computation. 

2. If income of the registrant and its 

subsidiaries consolidated exclusive of 

amounts attributable to any 

noncontrolling interests for the most 

recent fiscal year is at least 10 percent 

lower than the average of the income for 

the last five fiscal years, such average 

income should be substituted for 

purposes of the computation. Any loss 

years should be omitted for purposes of 

computing average income. 

* * * * * 

■ 39. Amend § 240.14a–101, Item 14, by 

revising Instruction 1 to the Instructions 

to paragraphs (b)(8), (b)(9) and (b)(10) to 

read as follows: 

§ 240.14a–101 Schedule 14A. Information 

required in proxy statement. 

* * * * * 

Item 14. * * * 

Instructions to paragraphs (b)(8), 

(b)(9) and (b)(10): 

1. For a business combination, present 

the financial information required by 

paragraphs (b)(9) and (b)(10) only for the 

most recent fiscal year and interim 

period. For a combination between 

entities under common control, present 

the financial information required by 

paragraphs (b)(9) and (b)(10) (except for 

information with regard to book value) 

for the most recent three fiscal years and 

interim period. For purposes of these 

paragraphs, book value information 

need only be provided for the most 

recent balance sheet date. 

* * * * * 


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Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Rules and Regulations 18619 

PART 249—FORMS, SECURITIES 

EXCHANGE ACT OF 1934 

■ 40. 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. 

* * * * * 

■ 41. Amend Form 20–F (referenced in 

§ 249.220f) by, in Item 11, General 

Instructions to Items 11(a) and 11(b), 

revising Instruction 3.C.ii to read as 

follows: 

[Note: 

The text of Form 20–F does not, and this 

amendment will not, appear in the Code of 

Federal Regulations.] 

Form 20–F 

* * * * * 

Item 11. Quantitative and Qualitative 

Disclosures About Market Risk. 

* * * * * 

General Instructions to Items 11(a) 

and 11(b). 

* * * * * 

3. * * * 

C.i. * * * 

ii. Other financial instruments 

exclude employers and plans 

obligations for pension and other postretirement benefits, substantively 

extinguished debt, insurance contracts, 

lease contracts, warranty obligations 

and rights, unconditional purchase 

obligations, investments accounted for 

under the equity method, noncontrolling 

interests in consolidated enterprises, 

and equity instruments issued by the 

registrant and classified in stockholders’ 

equity in the statement of financial 

position (see, e.g., FAS 107, paragraph 

8 (December 1991)). For purposes of this 

item, trade accounts receivable and 

trade accounts payable need not be 

considered other financial instruments 

when their carrying amounts 

approximate fair value; and 

* * * * * 

By the Commission. 

Dated: April 15, 2009. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. E9–9089 Filed 4–22–09; 8:45 am] 

BILLING CODE 8010–01–P 


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