SEC interps re interactive data

• on or after June 15, 2009, for domestic and foreign large accelerated filers that use U.S. GAAP and have a worldwide public common equity float above $5 billion as of the end of the second fiscal quarter of their most recently completed fiscal year (for calendar year companies, their June 30, 2009 Forms 10-Q);
• on or after June 15, 2010, for all other domestic and foreign large accelerated filers using U.S. GAAP; and
• on or after June 15, 2011, for all remaining filers using U.S. GAAP, including smaller reporting companies, and all foreign private issuers that prepare their financial statements in accordance with IFRS as issued by the IASB.

Exchange Act Sections

• An issuer that files Exchange Act reports on a voluntary basis — for example, because its Section 15(d) filing obligation is suspended — must still comply with the interactive data requirements. The first interactive data submission required would begin with the first Form 10-Q, 20-F or 40-F for a fiscal period ending on or after June 15, 2011.

Exchange Act Rules

• Rule 12b-25 expressly states that its provisions do not apply to extend the due date of an Interactive Data File. Filers that are unable to submit or post Interactive Data Files when required must comply with the hardship exemption requirements of either Rule 201 (temporary hardship exemption) or Rule 202 (continuing hardship exemption) of Reg S-T. However, filers that are unable to file their traditional format financial statements by the prescribed due date, but qualify for the additional time permitted under Rule 12b-25 and file their traditional format financial statements within that time, would not be required to submit and post their interactive data until the traditional format financial statements are filed.
• Controls and procedures with respect to interactive data fall within the scope of "disclosure controls and procedures." See Securities Act Release No. 9002 (Jan. 30, 2009). However, the officer certifications regarding the filer's disclosure controls and procedures required by Rules 13a-15 and 15d-15 may exclude interactive data; that is, the principal executive and financial officers do not need to consider those controls in making their individual certifications about their responsibility for establishing and maintaining the filer's disclosure controls and procedures. That exclusion does not mean that the filer can exclude those controls in complying with Rules 13a-15 and 15d-15 and Item 307 of Reg S-K, which requires the filer to disclose the officers' conclusions regarding the effectiveness of the filer's disclosure controls and procedures.

Exchange Act Forms

• A filer's annual report on Form 10-K includes the financial statements of the filer, which is a limited partnership, and the financial statements of its corporate general partner, which is not a separate issuer and not required to file a Form 10-K. The Interactive Data File may not include the financial statements of the corporate general partner. Under Rule 405(b) of Reg S-T, only the filer's financial statements, financial statement footnotes and financial statement schedules are permitted to be included in the Interactive Data File submitted to the SEC.
• A filer's Form 10-K includes the consolidated parent company's financial statements as well as financial statements of one of its wholly owned subsidiaries. The parent company has registered equity, and the subsidiary has registered debt. The single filing on Form 10-K is intended to satisfy the reporting obligation of both issuers. While the face financial statements are presented for each issuer separately, there is one set of combined financial statement footnotes. If interactive data are being submitted for more than one filer whose financial statements are required to be filed and those financial statements appear in a single filing, such as Form 10-K or 10-Q, they must be included in a single Interactive Data File. See Chapter 6 of Volume II of the EDGAR Filer Manual for detailed instructions on how to prepare the interactive data in this circumstance, including how to format the combined footnotes. However, the Interactive Data File need only include the financial statements for those entities mandated under the phase-in provisions. For example, if only the parent company is required to submit its interactive data in year one of the phase in, then the Interactive Data File in year one need only contain the parent company's complete financial statements.
• Where an annual report on Form 10-K is intended to satisfy the reporting obligation of two "dual listed" companies by including a single set of financial statements and each of these companies is a separate legal entity with its own file number and CIK code, the filer may choose which of those CIKs to use, but should tag the CIK of just one of the "dual listed" companies. As long as the registrants continue to be dual listed and file joint reports, the same CIK should be used in every filing.
• A company should not start checking the box relating to Interactive Data File compliance located on the cover page of its Exchange Act reports until it is required to submit those files. For example, if a company is first required to include an Interactive Data File with its second quarter Form 10-Q and, as permitted by the grace-period rules, includes the file in a Form 10-Q amendment 30 days after the date the report is due and filed, the company should not check the Interactive Data File box on the cover page of its initial Form 10-Q. Rather, it should check the box once the first Interactive Data File is submitted — in this case, with the Form 10-Q amendment. Companies that have been voluntarily submitting Interactive Data Files should not check the box until they are required to submit the files.
• To determine when it must begin submitting interactive data under the phase-in provisions, a filer must compute its public float as of the last business day of the filer's most recently completed second fiscal quarter. For example, if a filer has a November 30 year-end date, in assessing whether it must begin submitting interactive data in the first phase-in group, i.e., for the quarterly report on Form 10-Q for the fiscal period ending on or after June 15, 2009, the measurement date is May 30, 2008 (the last business day of the filer's most recently completed second quarter). If the filer does not fall into the first phase-in group, it should measure its public float at May 29, 2009 in assessing whether it falls into the second phase-in group, i.e., for the quarterly report on Form 10-Q for the fiscal period ending on or after June 15, 2010.
• A large accelerated filer with a calendar year end had a public float of $6 billion on June 30, 2008, placing it into the first phase-in group that is required to submit its interactive data with its Form 10-Q for the quarter ended June 30, 2009. Even though the filer's public float declined to $2 billion after the June 30, 2008 measurement date, the filer would still be required to submit its interactive data for its June 30, 2009 10-Q.
• To determine when its first interactive data submission is required, a calendar-year, domestic filer, whose initial registration statement on Form S-1 is declared effective on July 2, 2009 and whose first periodic report is a Form 10-Q for the quarter ended June 30, 2009, must first assess whether it is a large accelerated filer at the end of a fiscal year based on the criteria set forth in Exchange Act Rule 12b-2. On these facts, the earliest date the filer could qualify as a large accelerated filer is December 31, 2010. If, at that date, the filer qualifies as a large accelerated filer, interactive data would be required beginning with its Form 10-Q for the quarter ended March 31, 2011. However, if, at that date, the filer does not qualify as a large accelerated filer, the interactive data would be required to be submitted beginning with the filer's Form 10-Q for the quarter ended June 30, 2011.
• The Document and Company Information Taxonomy includes an "Amendment Flag" element, which signifies that the Interactive Data File is an amendment to a prior Interactive Data File. It is not intended to signify that a new Interactive Data File is being filed as part of an amendment to a periodic report or registration statement. As a result, a filer should set the Amendment Flag to "True" only when the filer is amending the Interactive Data File itself. For example, if a company is first required to include an Interactive Data File with its second quarter Form 10-Q and, as permitted by the grace period rules, includes the file in a Form 10-Q amendment 30 days after the date the report is due and filed, the company should not set the Amendment Flag to "True" when it prepares its Interactive Data File for submission in the Form 10-Q amendment.

Exchange Act Form 8-K

• When a filer discovers a material error in its Interactive Data File, it need not provide disclosures under Item 4.02(a) of Form 8-K unless the financial statements upon which the file was based contained an error and may not continue to be relied upon. Item 4.02(a) requires a Form 8-K only when the filer determines that previously issued financial statements should no longer be relied upon because of an error in those financial statements. If a filer wants to voluntarily provide non-reliance disclosure similar to Item 4.02(a) that pertains only to the interactive data, it can do so under either Item 7.01 or Item 8.01 of Form 8 K. In any event, if a filer finds a material error in its Interactive Data File, it must file an amendment to correct the error. In addition, once a filer becomes aware of the error in its Interactive Data File, it must correct the error promptly so that the Interactive Data File will be eligible for the modified treatment under the federal securities laws provided by Rule 406T of Reg S-T.

Regulation S-K

• Even though interactive data exhibits are not required for IPOs, a filer can voluntarily submit an interactive data exhibit for an IPO on Form S-1. If the filer chooses to submit an interactive data exhibit with an IPO on Form S-1, however, it must include the exhibit as soon as the registration statement contains a price or price range and subsequent amendments also must include the interactive data exhibit if the financial statements are changed.

Regulation S-T

• Rule 405(a)(2) of Reg S-T permits a filer to submit its first Interactive Data File (or first Interactive Data File containing or required to contain, whichever first occurs, detail-tagged footnotes or schedules) within a 30-day grace period by amending the form to which the interactive data relates. If the sole purpose of the amendment to a periodic report is to include the Interactive Data File as exhibit 101, the filer should include the cover page, an explanatory note, the signature page, an exhibit index and exhibit 101.
• Where a filer submits its first Interactive Data File on a voluntary basis (before it is required to do so pursuant to the phase-in schedule) and uses the 30-day grace period applicable to initial submissions under Rule 405(a)(2) of Reg S-T, the filer may not again use the grace period when it first becomes required to submit Interactive Data Files pursuant to the phase-in schedule. Each filer has only one initial submission 30-day grace period irrespective of whether that initial submission is made voluntarily (i.e., in advance of its scheduled phase-in) or as required (i.e., at its scheduled phase-in). Similarly, each filer has only one 30-day grace period for its initial detail-tagged footnote and schedule submission, whether submitted voluntarily or as required.
• If a filer submits its initial interactive data in advance of the phase-in schedule, it can still wait to begin submitting its detail-tagged footnotes and schedules until it is required to do so under its scheduled phase-in. Filers can also cease voluntary submissions of Interactive Data Files at any time until they are required to submit them pursuant to the phase-in schedule.
• Rule 405(d)(4)(i) of Reg S-T states that each amount (i.e., monetary value, percentage and number) within each footnote must be tagged separately, whether the amount is expressed numerically or textually (e.g., seven percent). This guidance also applies to tagging each amount within the financial statement schedules under Rule 405(e)(2)(i) of Reg S-T. Each tagged amount must be mapped to the applicable monetary, decimal, percent, integer or shares data type element.
• A filer's footnote that states, "The assumed discount rate at December 31, 2008 is 7%" cannot be tagged as a string of text. Rule 405(d)(4)(i) of Reg S-T requires instead that each amount be separately tagged and mapped to the applicable monetary, decimal, percent, integer or shares data type element. Guidance on how to associate a specific date with an amount is provided under Chapter 6 of Volume II of the EDGAR Filer Manual.
• Rule 405(d)(4)(i) of Reg S-T states that each amount (i.e., monetary value, percentage and number) within each footnote must be tagged separately. When the numbers relate to periods or years (such as "Annual maturities of debt are: Year 1 (or 2010) is $1,000, Year 2 (or 2011) is $2,000, Year 3 (or 2012) is $3,000, Year 4 (or 2013) is $4,000, and Year 5 (or 2014) is $5,000."), the only amounts that should be tagged are the dollar amounts. The "year" references (i.e., Year 1, 2010, etc.) merely provide context to the dollar amounts. Examples of other disclosures in which this format may be common are future minimum lease payments and unconditional purchase obligations. The filer should carefully review the elements in the standard taxonomy because, in some cases, the taxonomy will include separate elements for each specific period, and in other cases, the filer would use the same element from the taxonomy and distinguish each period by creating contextual information. See Section 6.5 of the EDGAR Filer Manual for guidance on defining contexts.
• A filer is not permitted to include in its Interactive Data File the auditor's report on the financial statements or an assurance report on the interactive data voluntarily obtained from a third party. Under Rule 405(b) of Reg S-T, only the filer's financial statements, financial statement footnotes and financial statement schedules are permitted to be included in the Interactive Data File submitted to the SEC.
• There is no requirement that an Interactive Data File that complies with the requirements of Rule 405 of Reg S-T appear identical to the traditional format financial statements when displayed by a viewer on the SEC's website.

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