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SEC 3126 - Section 302 and 906 certifications
Publication date: 30 Jun 2023
us PwC SEC Volume 3126
.1 General
The Sarbanes-Oxley Act established two distinct certification requirements. These certifications are commonly referred to by the sections of the Sarbanes-Oxley Act which created them: Section 302 and Section 906.
- The SEC’s requirements applicable to Section 302 certifications are set forth in Exchange Act Rules 13a-14(a) and 15d-14(a).
- The SEC’s requirements applicable to Section 906 certifications are set forth in Exchange Act Rules 13a-14(b) and 15d-14(b).
SEC 3126 is designed to provide a brief overview of these two certifications. Issuers should consult their legal counsel for more detailed information on these certification requirements or on other certifications that may be required (e.g., certification requirements set forth in Section 303A of the New York Stock Exchange Listing Requirements).
[Editor’s note: SEC 3126 does not address the certification requirements applicable to Asset-Backed Issuers. Asset-Backed Issuers should look to the requirements of Exchange Act Rules 13a-14 and 15d-14 as they relate to Asset-Backed Issuers, S-K 601(b)(31)(ii) and associated interpretive guidance.]
.2 Section 302 certifications
.21 Which SEC filings are required to include Section 302 certifications?
Section 302 certifications must be filed as exhibits to the following periodic reports filed under Section 13(a) or 15(d) of the Exchange Act:
- Annual Report on Form 10-K,
- Annual Report on Form 20-F,
- Annual Report on Form 40-F, and
- Quarterly Report on Form 10-Q.
The Section 302 certification requirements also apply to transition reports (see SEC 3185) filed on these forms and to amendments to previously filed reports (see Exchange Act Rule 12b-15).
See Exchange Act Rules 13a-14(a) and 15d-14(a).
.22 Who must sign the Section 302 certifications?
The Section 302 certifications must be signed by each principal executive and principal financial officer of the issuer, or persons performing similar functions, at the time of filing of the report. See Exchange Act Rules 13a-14(a) and 15d-14(a).
.23 Where can I find the text of the Section 302 certification?
The text of the Section 302 certification is set forth in S-K 601(b)(31).
S-K 601(b)(31) indicates that the certifications should be provided “exactly as set forth” in that item. The SEC staff has, however, provided the following additional guidance regarding specific paragraphs of the Section 302 certification to be filed in connection with an amendment to a prior report:
- Paragraphs 1 and 2 of the Section 302 certification must be included in all amendments to covered periodic reports.
- Paragraph 3 of the Section 302 certification may be omitted in amendments to covered periodic reports that do not contain financial statements or other financial information.
- Paragraphs 4 and 5 of the Section 302 certification may be omitted from amendments to covered periodic reports that do not contain or amend disclosure pursuant to S-K 307 or S-K 308 (or the equivalent disclosure requirement in Form 20-F or 40-F) and such disclosure is not otherwise required to be amended given the nature of the reasons for the amendment.
See Exchange Act Rules CDI 161.01.
Additionally, Exchange Act Rules 13a-14(a) and 15d-14(a) provide transition provisions with respect to the introductory language in paragraph 4 that refers to the certifying officers' responsibility for establishing and maintaining internal control over financial reporting (“and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)”) as well as the full text of paragraph 4(b). These portions of the certification do not need to be provided until the first annual report required to include management's report on internal control over financial reporting. Thereafter, certifications in quarterly and annual reports are required to include these temporarily omitted elements of the Section 302 certification.
[Editor’s note: The SEC staff has provided guidance for addressing certain errors relating to certifications in Regulation S-K CDIs 246.13 and 246.14.]
.3 Section 906 certifications
.31 Which SEC filings are required to include Section 906 certifications?
Section 906 certifications must be furnished as exhibits to each periodic report (e.g., Form 10-K or 10-Q) containing financial statements filed by an issuer pursuant to Section 13(a) or 15(d) of the Exchange Act. See Exchange Act Rules 13a-14(b) and 15d-14(b), S-K 601(b)(32) and 18 U.S.C. 1350(a).
[Editor’s note: S-K 601(b)(32)(ii) indicates that when furnished as Exhibit 32, the Section 906 certifications will not be deemed "filed" for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that section and will not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that the registrant specifically incorporates them by reference. Registrants should consult with their legal counsel regarding the liability issues surrounding the Section 906 certifications.]
.32 Who must sign the Section 906 certifications?
The Section 906 certifications must be signed by each principal executive officer and principal financial officer of the issuer (or equivalent thereof). See Exchange Act Rules 13a-14(b) and 15d-14(b) and 18 U.S.C. 1350(a).
.33 What are the required contents of the Section 906 certifications?
The contents of a Section 906 certification are prescribed by 18 U.S.C. 1350(b) to include certification that:
- the periodic report containing the financial statements fully complies with requirements of Section 13(a) or 15(d) of the Exchange Act and
- the information contained in the periodic report fairly presents, in all material respects, the issuer’s financial condition and results of operations.
[Editor’s note: Section 906 certifications are subject to the jurisdiction of the US Department of Justice.]
.9 Frequently asked questions
.901 Does the Section 302 and Section 906 apply to Interactive Data Files (defined in Regulation S-T 11)?
The certification requirements of Exchange Act Rules 13a-14 and 15d-14 do not apply to Interactive Data Files (defined in S-T 11). However, disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) do apply to controls and procedures with respect to interactive data.
See Exchange Act Rules CDI 162.01.
.902 If the certifications required by Exchange Act Rules 13a-14(a) and 15d-14(a) are not included as exhibits to a Form 10-K or 10-Q, and an amendment will be filed to include the certifications as exhibits, must the entire periodic report be re-filed?
Yes. The SEC staff has indicated that if certifications are omitted from a periodic report, then the amendment filed with the certifications should include the entire report.
See Exchange Act Rules CDI 161.08.
The SEC staff has also indicated that if the amendment is not filed within the time period required for the periodic report, then the periodic report will not be considered timely filed for purposes of form eligibility.
See Exchange Act Rules CDI 161.09.
.903 Are Section 302 or 906 certifications required in a Form 8-K or Form 11-K?
Section 302 certifications are not required in Form 8-K or Form 11-K. See section II.B.2 of SEC Release 33-8124.
See Exchange Act Forms CDI 106.03 for guidance on Form 11-K.
.904 Where can I find additional SEC Staff guidance relating to the Section 302 and Section 906 certifications?
The Division of Corporation Finance staff has published CDIs relating to certifications:
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