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[Federal Register Volume 66, Number 116 (Friday, June 15, 2001)]
[Rules and Regulations]
[Pages 32538-32539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15137]

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 239 and 249

[Release Nos. 33-7983; 34-44406 International Series Release No. 
1249];File No. S7-3-99
RIN 3235-AH62

International Disclosure Standards; Correction

AGENCY: Securities and Exchange Commission.

ACTION: Final rule; technical amendments.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
adopting technical amendments to final rules adopted in Release No. 33-
7745 (September 28, 1999), which were published in the Federal Register 
on October 5, 1999 (64 FR 53900). The rules relate to the international 
disclosure standards of Form 20-F under the Securities Exchange Act of 
1934 and registration statements on Form F-2 and F-3 under the 
Securities Act of 1933.

EFFECTIVE DATE: June 15, 2001.

FOR FURTHER INFORMATION CONTACT: Amy Kate O'Brien, Office of 
International Corporate Finance, Division of Corporation Finance at 
(202) 942-2990, or at 450 Fifth Street, NW., Washington, DC 20549-0302.

SUPPLEMENTARY INFORMATION: On September 28, 1999, the Commission 
adopted changes to Form 20-F under the Securities Exchange Act of 1934 
and to Forms F-2 and F-3 under the Securities Act of 1933. Form 20-F is 
used by foreign private issuers to file registration statements and 
annual reports under the Securities Exchange Act of 1934, and Forms F-2 
and F-3 are the short form registration statements used by foreign 
private issuers under the Securities Act of 1933. Subsequent to the 
adoption of the revised forms, questions arose regarding the 
requirements of the forms. Accordingly, the amendments to the forms set 
forth in this Release clarify the requirements regarding the age of 
financial statements, codify the long-standing practice of accepting 
two years audited income statement and statement of cash flows 
information if the financial statements are presented in accordance 
with United States Generally Accepted Accounting Principles (``U.S. 
GAAP''), and correct cross-references in Form 20-F and Forms F-2 and F-
3. These changes will clarify language that could create confusion 
regarding the requirements of the forms. The changes are technical 
corrections that reflect long-standing practice, and do not alter the 
current requirements for companies filing on the forms.
    In connection with the adoption of revisions to Form 20-F under the 
Securities Exchange Act of 1934, we adopted Item 8.A.4 and Instruction 
1 to Item 8.A.4 regarding the age of financial statements in a 
registration statement. As revised, Instruction 1 to Item 8.A.4 
incorrectly implies that audited financial information for a period of 
less than a full year satisfies the requirement that audited annual 
financial statements are no more than 15 months old at the time of the 
offering or listing. The correction deletes the last sentence in the 
first paragraph of Instruction 1 to Item 8.A.4 in order to remedy any 
potential confusion. This correction will clarify that a foreign 
private issuer cannot satisfy the 15-month audited annual financial 
statement requirement by filing financial statements that cover less 
than a full fiscal year, even if those statements are audited. Audited 
financial statements for a period of less than a full year, however, 
will continue to satisfy the requirement that the audited financial 
statements in an initial public offering are no more than 12 months old 
at the time of the filing, as stated in the last sentence of Item 8.A.4 
of Form 20-F.
    The technical amendments also add new Instruction 1 to Item 8.A.2 
to expressly incorporate the reporting requirements for filers 
preparing financial statements in accordance with U.S. GAAP as 
previously set forth in Release No. 33-7053 (April 19, 1994), which was 
published in the Federal Register on April 26, 1994 (59 FR 21644). This 
practice has eased the reporting burden on qualifying filers, and the 
Commission did not intend to alter it by amending Form 20-F. As stated 
in the Release,

    If the financial statements are prepared in accordance with U.S. 
GAAP, the audited income statement and statement of cash flows would 
only be required for two years. Selected financial data for the full 
five fiscal years would still be required, using the accounting 
principles used for reporting to its shareholders.\1\
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    \1\ Release No. 33-7035 part III. B. note 37 (59 FR 21644).

    Additionally, the amendment conforms Item 3.A (Selected Financial 
Data) of Form 20-F by adding an instruction to include predecessor 
information as already required in Instruction 1 to Item 8 (Financial 
Information). Predecessor information has always been required for 
Selected Financial Data. Our omission of an

[[Page 32539]]

express reference to this requirement in the instruction to Item 3.A 
was not intended to signal a change in policy. Finally, the amendment 
corrects various cross-references in Forms F-2 and F-3 under the 
Securities Act of 1933.

Certain Findings

    Under the Administrative Procedure Act (``APA''), notice of 
proposed rulemaking is not required when an agency, for good cause, 
finds ``that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' \2\ The correcting 
amendments to Form 20-F and Forms F-2 and F-3 are technical changes 
that (1) clarify that there is no change in the long-standing 
requirement for full period, audited financial statements; (2) 
incorporate the long-standing practice of accepting two years income 
statement and cash flow information for filers presenting financial 
information in accordance with U.S. GAAP; (3) reconcile the 
instructions to Item 3.A and Item 8 of Form 20-F; and (4) correct 
cross-references in the forms. For these reasons, the Commission finds 
that there is no need to publish notice of these amendments.\3\
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    \2\ 5 U.S.C. 553(b)(3)(B).
    \3\ For 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 
analyses, the term ``rule'' means any rule for which the agency 
publishes a general notice of proposed rulemaking); 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).
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    The APA also requires publication of a rule at least 30 days before 
its effective date unless the agency finds otherwise for good cause.\4\ 
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 immediately.
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    \4\ See U.S.C. 553(d)(3).
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List of Subjects in 17 CFR Parts 239 and 249

    Reporting and recordkeeping requirements, Securities.

Text of the Amendments

    In accordance with the foregoing, the Commission amends Title 17, 
chapter II of the Code of Federal Regulations as follows:

PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

    1. 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, 77sss, 78c, 
78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 
79l, 79m, 79n, 79q, 79t, 80a-8, 80a-24, 80a-29, 80a-30 and 80a-37, 
unless otherwise noted.
* * * * *

    2. Amend Form F-2 (referenced in Sec. 239.32) Item 4 by removing 
the words ``Item 10 (The Offer and Listing)'' and adding in their place 
the words ``Item 9 (Offer and Listing), Item 10 (Additional 
Information)''.

    Note: The text of Form F-2 does not and this amendment will not 
appear in the Code of Federal Regulations.

    3. Amend Form F-3 (referenced in Sec. 239.33) Item 4 by removing 
the words ``Item 10 (The Offer and Listing)'' and adding in their place 
the words ``Item 9 (Offer and Listing), Item 10 (Additional 
Information)''.

    Note: The text of Form F-3 does not and this amendment will not 
appear in the Code of Federal Regulations.

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

    4. The authority citation for part 249 continues to read, in part, 
as follows:

    Authority: 15 U.S.C. 78a, et seq., unless otherwise noted.
* * * * *

    5. Amend Form 20-F (referenced in Sec. 249.220f) by:
    a. In Item 3, designate the current text of Instructions to Item 
3.A as Instruction 2 and add new Instruction 1;
    b. In Item 8, paragraph 1 to Instructions to Item 8.A.4, remove the 
last sentence; and
    c. In Item 8, add Instruction 3 to Instructions to Item 8.A.2 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.

Securities and Exchange Commission

OMB Approval
    OMB Number: 3235-0288
    Expires: June 20, 2002
    Estimated average burden hours per response--1991.00

Form 20-F--Registration Statement Pursuant to Section 12(b) or (g) of 
the Securities Exchange Act of 1934

* * * * *

Instructions to Item 3.A

    1. This item refers to the company, but note that in some cases, 
you may have to provide selected financial data for a predecessor. 
See the definition of predecessor in Exchange Act Rule 12b-2 and 
Securities Act Rule 405.
    2. * * *
* * * * *

Instructions to Item 8.A.2

    1. * * *
    3. In initial registration statements, if the financial 
statements presented pursuant to Item 8.A.2 are prepared in 
accordance with U.S. generally accepted accounting principles, the 
earliest of the three years may be omitted if that information has 
not previously been included in a filing made under the Securities 
Act of 1933 or the Securities Exchange Act of 1934. Selected 
financial data presented pursuant to Item 3.A of Form 20-F for the 
full five fiscal years is still required.
* * * * *

    June 11, 2001.
    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 01-15137 Filed 6-14-01; 8:45 am]
BILLING CODE 8010-01-P
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