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Complying with the SEC's New Requirements for InLine XBRL Tagging of Cover Page Information: Clarification Regarding Exhibit 104

In March 2019, the Securities and Exchange Commission adopted final rules amending Regulation S-K and related rules and forms to modernize and simplify disclosure requirements for registrants. These amendments follow from the Fixing America’s Surface Transportation (FAST) Act, enacted in 2015, and, among other matters, effect key changes to the cover pages of Forms 10-K, 10-Q and 8-K. For example, the revised rules and forms require that registrants include on the cover page of their Forms 10-K, 10-Q and 8-K the title of each class of security registered pursuant to Section 12(b) of the Exchange Act, the trading symbol(s) of such securities and the name of each exchange on which such securities are registered.

The revised rules also require that registrants tag certain cover page information on their Forms 10-K, 10-Q and 8-K in InLine XBRL (iXBRL), which is a form of machine-readable computer code, and amend Item 601(b) of Regulation S-K to add a new Exhibit 104 (Cover Page Interactive Data File) to capture any cover page information that is not embedded in a filing’s cover page.

Although the new iXBRL tagging requirements are applicable to large accelerated filers for fiscal periods ending on or after June 15, 2019 (as noted below), the EDGAR system’s software has not been updated to allow for the filing of a separate Exhibit 104 in filings subject to the tagging requirements. This alert provides guidance on how registrants should comply with the cover page iXBRL tagging requirements in the absence of the ability to file a separate Exhibit 104. Our prior summary of other significant FAST Act-related disclosure changes is available here.

Phase-In of Updated iXBRL Tagging Requirements

For large accelerated filers preparing their financial statements in accordance with U.S. GAAP, the iXBRL tagging requirement is effective for fiscal periods ending on or after June 15, 2019. Accelerated filers preparing financials in accordance with U.S. GAAP must comply with the new iXBRL tagging requirements for fiscal periods ending on or after June 15, 2020. All other filers must comply with the new iXBRL tagging requirements for fiscal periods ending on or after June 15, 2021.

Registrants must comply with the new tagging requirements beginning with their first Form 10-Q for a period ending on or after the applicable phase-in date noted above. Registrants are not required to tag cover page information in iXBRL on Form 8-K or Form 10-K until after they have filed their first Form 10-Q covering a fiscal period ending on or after the applicable compliance date. For example, a large accelerated filer with a calendar fiscal year will be required to tag cover page information in iXBRL in its Form 10-Q for the period ended June 30, 2019 but will not be required to tag cover page information in iXBRL on a Form 8-K filed prior to the filing of the Form 10-Q. A large accelerated filer with a fiscal year ending on June 30, 2019 would be required to comply with the iXBRL tagging requirements beginning with its Form 10-Q for the quarter ended September 30, 2019 but not on its Form 10-K for the year ended June 30, 2019.

iXBRL Tagging Amendments and Exhibit 104

The FAST Act final rule indicates that a new Exhibit 104 “Cover Page Interactive Data File” should be included with submissions for the iXBRL cover tagging. The Exhibit Table in Regulation S-K Item 601 was amended to reflect Exhibit 104’s inclusion on Forms 10-K, 10-Q and 8-K.

Rule 406 of Regulation S-T, referencing the instructions in the EDGAR Filer Manual, requires that every data point on the cover pages of Forms 10-K, 10-Q and 8-K be tagged in iXBRL. Some of such iXBRL tags, including “document and entity identifier elements,” can be embedded, but there may be information on the cover page that cannot be tagged, such as the exchange on which the registrant’s securities are listed and the registrant’s jurisdiction of incorporation. Item 601(b) of Regulation S-K now contemplates that such information is to be included in Exhibit 104 to the relevant filing. However, the EDGAR system’s software has not been updated to allow for the filing of a separate Exhibit 104.

Acknowledging the current absence of the ability for registrants to file a separate Exhibit 104, the staff of the SEC has updated the EDGAR Filer Manual to contemplate that filers should satisfy the Exhibit 104 requirement by using a standard file set with Exhibit 101. Specifically, Section 6.3.2 of the EDGAR Filer Manual includes the following note:

To minimize the need for preparing multiple data files, filers subject to [Rule 406 of Regulation S-T] should satisfy its requirement for providing a Cover Page Interactive Data File (Exhibit 104) using an Inline XBRL Document Set (see 5.2.5 [of the EDGAR Filer Manual]) with EX-101* attachments others than EX101.INS.

Accordingly, registrants required to file a Cover Page Interactive Data File on Exhibit 104 should submit the standard EX-101 file set including iXBRL cover tagging elements.

© 2019 Bracewell LLP

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About this Author

Charles H. Still Jr., Corporate Attorney, Bracewell Law firm
Partner

Charles Still advises clients on capital markets transactions and corporate governance and securities law compliance matters. Mr. Still has experience representing issuers and investment banks in a variety of public and private securities transactions. Mr. Still's experience includes public and private offerings of high-yield, investment-grade and tax-exempt debt securities, initial public offerings, and other public and private offerings of equity, convertible and hybrid securities. Mr. Still also represents clients on refinancing transactions and other transactions...

713-221-3309
Troy L. Harder, Bracewell, SEC Representation Lawyer, Finance, Capital Markets Attorney
Partner

Troy Harder advises clients in all aspects of corporate and securities law, with an emphasis on corporate finance transactions. He has experience representing both issuers and investment banks in a wide range of capital markets transactions, including initial public offerings, public and private offerings of debt and equity securities, tender offers, consent solicitations and exchange offers. He also counsels clients in connection with SEC reporting and corporate governance and compliance matters, including insider reporting and compliance with the rules of the New York Stock Exchange and NASDAQ.

Mr. Harder has represented companies involved in all aspects of the energy industry, including exploration and production companies, master limited partnerships, pipeline joint ventures and oilfield services companies. His experience with MLPs includes both representation of the partnerships in connection with a variety of capital markets transactions and representation of conflicts committees in connection with drop-down transactions. He has also advised companies in a variety of other industries, such as private equity firms, bank holding companies, investment banks and manufacturing companies.

713-221-1456
Charlotte Keenan, Bracewell Law Firm, London, Corporate, Finance and Energy Law Attorney
Attorney

Charlotte Keenan represents both public and private companies in capital markets transactions, mergers and acquisitions and Securities and Exchange Commission (SEC) compliance and disclosure matters. Her capital markets experience includes initial public offerings, shelf offerings, investment-grade debt offerings and other financing transactions. Charlotte assists clients with respect to business combinations, entity formation and dissolution, asset and stock purchases and sales and commercial business transactions. She has advised conflicts committees and boards of...

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Jay N. Larry Mergers & Acquisitions Attorney Bracewell Law Firm
Associate

Jay Larry’s practice focuses on mergers and acquisitions, joint ventures and general corporate matters for privately and publicly held companies active in the energy industry. Jay has assisted subsidiaries of international clients with cross-border corporate governance matters and counseled midstream oil and gas clients through sales, mergers and acquisitions. Jay has also counseled blank check companies on their acquisition of target companies, and has advised on SEC filings related to the acquisitions.

713-221-1333