Policy and Legal

Making “draconian changes” to the Securities and Exchange Commission’s regulatory approach to non-U.S. companies could result in reduced foreign investment in U.S. manufacturing, among other negative repercussions, the NAM told the agency this week.

What’s going on: The NAM has urged the SEC to “proceed cautiously” in considering changes to the definition of “foreign private issuer,” which are foreign-owned companies with shares that trade on American stock exchanges.

• FPIs have raised capital from U.S. investors and invested billions of dollars to expand their U.S. manufacturing operations, a trend that is expected to continue during the second Trump administration.
• The SEC exempts FPIs from many of the disclosure requirements that apply to domestic companies because FPIs are presumed to be closely regulated in their home countries.
• However, in recent years, there has been a surge of FPIs that are headquartered in China and/or incorporated in the Cayman Islands, prompting concern among SEC officials about whether there is sufficient regulatory oversight of these companies and protection for their U.S. investors.
• The SEC is considering tightening the FPI definition, which would reduce the number of foreign firms that qualify for FPI regulatory relief. Such an action would increase compliance costs for those companies that lose their FPI status.

Why it’s important: Without the accommodations under the current definition, “it may be difficult for [FPIs] to retain their dual listings in the United States—potentially threatening their ability to access capital in the U.S. and expand their U.S. operations,” the NAM said.

• “While we share the [SEC’s] interest in protecting investors and ensuring that U.S. companies do not face undue regulatory burdens when competing with foreign firms, [overly strict adjustments] to the FPI definition … would have the unintended consequence of deterring foreign companies from raising the capital they need to expand their U.S. manufacturing operations,” the NAM told the agency, in response to an SEC call for public input on possible eligibility changes.

What should be done: The NAM outlined three alternative ways for a company to continue to qualify as an FPI:

• If it is traded on a major foreign stock exchange
• If it is based in a country with robust disclosure rules and investor protection regulations
• If its home country negotiates a Multijurisdictional Disclosure System agreement with the United States