August 19, 2002

Jonathan M. Katz, Esq.
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549

Re: Comments on Release No. 34-46300
File No. S7-21-02

Dear Mr. Katz:

We submit our comments on Release No. 34-46300, Certification of Disclosure in Companies' Quarterly and Annual Reports (the "Certification Requirement"). We limit our comments to one aspect of the proposed rule, its applicability to foreign private issuers. For the reasons set forth below, we request that the Securities and Exchange Commission (the "Commission") clarify that the requirement for certification of periodic reports containing interim financial statements does not apply to reports on Form 6-K that contain such financial statements.

By way of background, the Commission requires foreign private issuers to file annual reports on Form 20-F containing audited financial statements that are either prepared according to United States Generally Accepted Accounting Standards ("GAAP") or reconciled to GAAP. The Commission does not require foreign private issuers to file reports containing unaudited interim financial statements, whether quarterly or otherwise. Rule 13a-13(b)(2) excepts foreign private issuers from the requirements of Rule 13a-13 to file quarterly reports on Form 10-Q. Instead, Rule 13a-13(b)(2) provides that foreign private issuers are subject to Rule 13a-16, which states in relevant part as follows:

(a) Every foreign private issuer which is subject to Rule 13a-1 shall make reports on Form 6-K... .

(b) Such reports shall be transmitted promptly after the information required by Form 6-K is made public by the issuer, by the country of its domicile or under the laws of which it was incorporated or organized, or by a foreign securities exchange with which the issuer has filed the information.

(c) Reports furnished pursuant to this rule shall not be deemed "filed" for the purpose of Section 18 of the Act or otherwise subject to the liabilities of that section. (emphasis added)

In its original proposing release for the Certification Requirement, Release No. 34-46079, the Commission stated that it did not intend to apply the Certification Requirement to foreign private issuers that file annual reports on Form 20-F. Among the stated reasons for the Commission's position were:

• The signature requirements of Form 20-F differ from those of Form 10-K;

• Foreign private issuers are not required to file quarterly reports on Form 10-Q or 10-QSB; and

• Mandatory requirements regarding internal procedures may be inconsistent with the laws or practices of the foreign private issuers' home jurisdiction or stock exchange requirements.

In Release No. 34-46300, however, the Commission noted that Section 302 of the Sarbanes-Oxley Act of 2002 (the "2002 Act"), requiring the Commission to adopt the Certification Requirement by rulemaking, does not exempt foreign private issuers from the Certification Requirement. Accordingly, the Commission intends to impose the Certification Requirement on Chief Executive Officers and Chief Financial Officers of foreign private issuers in connection with the filing of their annual reports on Form 20-F.

For the following reasons, we request that the Commission's final rules governing the Certification Requirement make it clear that those rules do not apply to reports on Form 6-K transmitted by foreign private issuers to the Commission containing interim financial statements.

• Section 302(a) applies to each annual or quarterly report of companies filing periodic reports under section 13(a) or 15(d) of the Securities Exchange Act of 1934. As noted above, foreign private issuers are not required to file quarterly reports. Rule 13a-16 requires foreign private issuers to transmit interim financial statements on Form 6-K when required by the applicable law of the issuer's home country or a foreign stock exchange or the issuer chooses to disclose such information. This can take place at regular intervals, at irregular intervals, or not at all.

• Rule 13a-16(c) expressly provides that reports on Form 6-K are not deemed to have been "filed" for purposes of Section 18 of the Securities Exchange Act of 1934. This rule evidences a plain intention to encourage foreign private issuers to transmit to the Commission all materials that they file or distribute abroad, without subjecting them to additional liability under Section 18. Requiring certification of these same materials under Section 302 of the 2002 Act, and the resulting liability, would be inconsistent with the objective of Rule 13a-16.

• Unlike quarterly reports on Form 10-Q, Form 6-K serves merely as a cover form for foreign private issuers to transmit to the Commission materials that they file in foreign jurisdictions or distribute to their shareholders generally. By contrast, the Commission has not prescribed the contents of Form 6-K and does not require foreign private issuers to prepare quarterly reports containing financial statements that have been prepared in accordance with GAAP or reconciled to GAAP. It would not further the objectives of Section 302 to require the Chief Executive Officer or Chief Financial Officer of a foreign private issuer to certify that an interim unaudited financial statement that has not been reconciled, and need not be reconciled, to GAAP conforms to the requirements of Section 302. In this connection, Section 401 of the 2002 Act, which prescribes additional disclosure requirements for periodic reports containing financial statements prepared in accordance with, or reconciled to, GAAP, also indicates that the Certification Requirement of the 2002 Act is intended to apply to periodic reports containing financial statements prepared in accordance with, or reconciled to, GAAP.

• Applying the Certification Requirement to the transmission of unaudited interim financial statements that are not prepared in accordance with GAAP or reconciled to GAAP would require foreign private issuers to create new and burdensome internal accounting policies, procedures and controls that exceed those applicable to domestic issuers.

Accordingly, it would be inconsistent with the objectives of the federal securities laws to require Chief Executive Officers and Chief Financial Officers to certify interim financial statements transmitted to the Commission under Form 6-K. In addition, imposing the Certification requirement on foreign private issuers may discourage such issuers from entering the U.S. capital markets.

For the foregoing reasons, we ask that with respect to foreign private issuers, the Commission limit the Certification Requirement in its final rules to Annual Reports filed on Form 20-F, and explain in the adopting release that the Certification Requirement does not apply to reports on Form 6-K.

Please feel free to contact Gary J. Wolfe (direct tel. 212-574-1223), Robert E. Lustrin (direct tel. 212-574-1420) or Edward S. Horton (direct tel. 212-574-1265) with any questions that you may have on our comments.

Very truly yours,

Seward & Kissel LLP

99232.0010 #344433