Section 906 Certifications Not Required for Reports on Forms 6-K, 8-K and 11-K

Earlier this month, Allan Beller of the Securities and Exchange Commission and Mark Corallo of the Department of Justice announced that neither current reports on Forms 6-K and 8-K nor employee benefit plan reports on Form 11-K are required to include the certifications mandated by Section 906 of the Sarbanes-Oxley Act of 2002. This announcement was made via telephone interviews and teleconference, and we do not know whether or when this conclusion will be announced in writing.

This supersedes the guidance in our June 26, 2003 Update, Practical Guidance on Section 302 and Section 906 Certifications From the SEC's Final Rules Release, which advised companies that, unless and until the SEC and the DOJ decided otherwise, they should consider including Section 906 certifications with reports on Forms 6-K and 8-K that contain financial statements, and that annual reports for employee benefit plans on
Form 11-K should include modified Section 906 certifications.

Section 404 Not Applicable to Reports on Form 11-K

Also by teleconference earlier this month, David Lynn, Chief Counsel of Corporate Finance at the SEC, clarified that Section 404 of Sarbanes-Oxley is not applicable to annual reports for employee benefit plans on Form 11-K. This is welcome relief. Section 404 requires that annual reports filed under Section 13(a) or 15(d) of the Exchange Act of 1934 contain a report on internal controls in accordance with rules prescribed by the SEC. If the SEC had not exempted annual reports on Form 11-K from Section 404, they would have had to include a report by the issuer's management on internal control over financial reporting for the employee benefit plan and an attestation by the issuer's outside auditor on management's assessment of the issuer's internal control over financial reporting.

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