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Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations
its annual report filing made in 2022 for the fiscal year ended December 31, 2021, the registrant will be required to comply with the submission and, if applicable, the disclosure requirements in its annual report filing covering the fiscal year ended December 31, 2022, that the registrant is required to file in 2023.

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E. Determination of CommissionIdentified Issuer In the Interim Final Release, the Commission stated that it will provide appropriate notice once it has established the process by which it will begin to identify registrants pursuant to the HFCA Act. In this regard, the Commission acknowledged that a registrant will not be required to comply with the submission or disclosure requirements until the Commission identifies a registrant as having a noninspection year. The Commission also indicated that it was considering making the determination of Commission-Identified Issuers on an annual basis based on the audit report contained in a registrants annual report filed with the Commission for the most recently completed fiscal year preceding the date of the Commission determination. Additionally, the Commission stated that a registered public accounting firm is retained by a registrant, as that term is used in Section 104i of the Sarbanes-Oxley Act, when the registered public accounting firm signs the accountants report on the registrants consolidated financial statements that is included in a registrants Exchange Act report. The Commission requested comment on whether it should publish a list of Commission-Identified Issuers on its website or whether CommissionIdentified Issuers should be identified on EDGAR. Finally, the Commission asked how it should address any potential errors in identification relating to a registrants status if the list is made public and whether it should issue guidance or prescribe rules relating to disclosure or procedures for identification of errors relating to a registrants status.
A few commenters suggested that the Commission should make the Commission-Identified Issuer determination based on the registrants fiscal year end.48 One commenter stated that the Commission should make determinations and provide notice to registrants as early as possible after a 48 See letters from Chamber recommending 30 or 45 days after the filing deadline for the annual report, U.S. Acctg. Academics, and Yum.

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registrants filing of its annual report.49
Some commenters recommended publishing the list of CommissionIdentified Issuers on the Commissions website,50 while one commenter recommended providing the information on EDGAR for efficient and rapid identification.51
One commenter suggested that providing a list or identifying Commission-Identified Issuers on EDGAR is unnecessary and doing so would go beyond the statutory mandate.52 Some commenters indicated that the Commission should notify directly any registrants that it has determined to be Commission-Identified Issuers prior to publishing the list, in light of the potential market impact on these issuers and to ensure accuracy of such a list.53 Yet another commenter recommended that the Commission provide guidance rather than prescribe rules relating to disclosure or procedures to correct errors relating to the Commissions inclusion of a registrant on its Commission-Identified Issuer list to provide flexibility to the Commission and registrants.54
One commenter noted potential discrepancies between the three primary sources of public data that could be used to determine CommissionIdentified Issuers: 1 The PCAOBs published list of audit reports in jurisdictions where authorities deny access, 2 the PCAOBs Form AP
database, and 3 registrants annual reports filed on EDGAR.55 According to the commenter, these potential discrepancies raise a concern regarding the information on which the Commission would base its determination. The commenter also argued that, in situations with multiple audit reports in an annual report filing, the retained auditor should be the auditor who signs off on the current or more recent fiscal-year financial statements.
Based on our further consideration and the input of commenters, we have determined to institute the following procedures for preparing and publishing the Commission-Identified Issuer list.
We agree with the commenter who suggested that registrants should be identified as early as possible after the filing of an annual report and on a rolling basis.56 Accordingly, promptly 49 See
letter from Yum.
letters from ASA, Chamber, and U.S. Acctg.
Academics.
51 See letter from CII.
52 See letter from Yum.
53 See letters from Chamber and Yum.
54 See letter from Yum.
55 See letter from U.S. Acctg. Academics.
56 See supra note 49.
50 See
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after the filing of an annual report, the Commission will evaluate, using Inline XBRL tagging or other structured data, whether the annual report contains an audit report signed by a PCAOBIdentified Firm.57
We continue to believe that a registered public accounting firm is retained by a registrant, as that term is used in Section 104i of the Sarbanes-Oxley Act, when the registered public accounting firm signs the accountants report on the registrants consolidated financial statements that is included in a registrants Exchange Act report. However, we are taking a different approach than the one suggested by a commenter regarding instances where an annual report may contain multiple audit reports. In situations where an annual report for an issuer other than a registered investment company registrant organized as a series company contains multiple accountants reports or involves more than one registered public accounting firm, only the registered public accounting firm or firms that serve as principal accountant within the meaning of 17
CFR 210.205 Rule 205 of Regulation SX and AS 1205: Part of the Audit Performed by Other Independent Auditors will, upon signing the accountants report on the registrants consolidated financial statements, be deemed retained for purposes of Section 104i of the Sarbanes-Oxley Act and the Commissions determination of whether the registrant should be a Commission Identified Issuer. For a registered investment company registrant organized as a series company, each series will be deemed to retain the public accounting firm that signs the audit report for the series.
Once a registrant has been identified as described above,58 the Commission 59
will provisionally identify such issuer as a Commission-Identified Issuer on the Commissions website at www.sec.gov/HFCAA. The Commission website will clearly delineate between provisional identifications and conclusive identifications, and 57 In response to the commenter that raised concerns regarding the potential discrepancies between primary sources of data from which the Commission may generate its list, we note that we intend to base a determination on whether a registrant is a Commission Identified Issuer based on the audit report included in their annual report filing. We do not believe that the determination should be made based on Form AP filings because these are not filings made by the registrant.
58 See supra Section II.D.
59 As discussed below, see infra Section II.G, the Commission is adopting 17 CFR 200.301m new Rule 301m that delegates Commission authority to the Director of the Division of Corporation Finance to identify a registrant as a CommissionIdentified Issuer.

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