Section 16(a) Compliance For Foreign Private Issuers

On December 18, 2025, President Trump signed into law the Holding Foreign Insiders Accountable Act (the “HFIAA”), which amended Section 16(a) to require directors and officers of foreign private issuers (“FPIs”) that have a class of equity securities registered under Section 12 of the Exchange Act of 1934 to report their holdings of and transactions in the FPI’s equity securities (electronically and in English) beginning March 18, 2026 (no-action relief permits directors and officers of FPIs affected by conflict in Iran to delay initial compliance).

On March 5, 2026, the SEC issued an exemptive order providing that directors and officers of FPIs (as defined in Section 3(a)(7) of the Exchange Act and Rule 16a-1(f) of the Exchange Act, respectively) are not required to comply with Section 16(a)as long as the FPI is organized under the laws of a “qualifying jurisdiction” and the director or e officer is publicly reporting transactions in the FPI’a securities pursuant to a “qualifying regulation.” 

To rely on the exemption, directors and officers must file reports as required by a qualifying regulation and in English. If the jurisdiction in which reports are filed doesn’t accept filings in English, the exemption will still be available if the FPI posts an English language version of the report on its website by the end of the second business day after the report’s public posting.

The six qualifying jurisdictions are Canada, Chile, the European Economic Area (see list of specific countries below), the Republic of Korea, Switzerland and the United Kingdom. The exemption extends to directors and officers of FPIs organized in a qualifying jurisdiction even if the FPI is subject to the qualifying regulation of another qualifying jurisdiction (e.g., the FPI is organized in Canada but its securities trade in Germany). The 30 countries in the European Economic Area listed in the release are:

The six qualifying regulations are:

While the staff did not offer relief from Item 405 of Regulation S-K, which requires domestic issuers (but not FPIs) to disclose their insiders’ Section 16(a) reporting delinquencies, the staff specified that issuers may include in their Item 405 disclosure a statement that the insider relied on the staff’s no-action position. 

…temporary wartime restrictions on non-essential workplace activities remain ongoing and TSEM employees continue to be subject to shelter-in-place orders from time to time. In addition, several parts of Israel are experiencing intermittent loss of power, internet and telecommunications services, as Israel continues to endure severe disruptions to communications and infrastructure…. [T]hese war conditions have meaningfully impaired TSEM’s ability to collect, verify and assist its directors and officers in reporting the security ownership information required under Section 16(a). In addition, these restrictions impact access to company records and legal and compliance services, including notary services, that are necessary to complete the reports.

As part of their compliance program, FPIs should, at a minimum:

In evaluating whether the correct individuals have been identified as “officers,” FPIs may want to consider the information in Chapter 2 of the Treatise and the “Checklist: ‘Executive Officer’ Determinations” posted elsewhere on Section16.net. FPIs should also refer to the guidance with respect to “officer” and “director” status provided by the staff in its Compliance and Disclosure Interpretations (“CDIs”), including in Question 110.05 of the Exchange Act Rules CDIs and Question 110.08 of the Exchange Act Forms CDIs. In addition, FPIs should consider implementing other corporate governance best practices, such as having the board of directors annually revisit, and reflect in board resolutions, its evaluation of the individuals identified as “executive officers” and “officers.”