IMC Global Inc.
100 South Saunders Road
Lake Forest, Illinois 60045-2561
December 6, 2002
Jonathon G. Katz
Secretary, U.S. Securities and Exchange Commission
File No. S7-42-02
450 Fifth Street, NW
Washington, DC 20549-0609
You have requested comments on the Proposed Rule: Disclosure in Management's Discussion and Analysis About Off-Balance Sheet Arrangements, Contractual Obligations and Contingent Liabilities and Commitments (Proposed Rule). At IMC Global Inc. (IMC), the Proposed Rule will have an impact on the preparation of IMC's Form 10-Ks and 10-Qs. We have structured our response to address the Proposed Rule's request for comment questions that are most applicable to IMC's SEC reporting.
B. Off-Balance Sheet Arrangements
The following are responses to the questions set forth to solicit comment with regard to off-balance sheet arrangements.
- The Proposed Rule has clearly and appropriately defined the term off-balance sheet arrangement. It is sufficiently tailored to enable registrants to determine which arrangements need to be disclosed and which are unimportant to investors.
- The Proposed Rule should continue to apply the existing policy of excluding preliminary negotiations from MD&A disclosure.
- The proposed "remote" disclosure threshold is appropriate and consistent with the language in Section 401(a) of the Sarbanes-Oxley Act (Act). A requirement to disclosure off-balance sheet arrangements that are remote would make filings by registrants so voluminous that financial statement readers would be unable to determine how material each arrangement could be to the financial condition and results of operations of the registrant. Further, such disclosures would detract from making all disclosures relevant and assisting in the understanding of the potential impact of material transactions.
- It would be appropriate under the language in Section 401(a) of the Act to adopt the "reasonably likely" disclosure threshold applicable elsewhere in MD&A when disclosing off-balance sheet arrangements. As noted above, it is impractical to disclose all off-balance sheet arrangements that "may" have a material effect on the registrant's financial condition and results of operations. A threshold must be set, and it makes sense to keep that threshold consistent with previous MD&A requirements.
- The Proposal should not amend current MD&A rules to lower the existing "reasonably likely" disclosure threshold. This will significantly increase the amount of disclosure making the filings taxing for registrants to prepare and burdensome for users to read and comprehend.
- The Proposal provides enough flexibility to companies to fully and clearly describe their off-balance sheet arrangements. Due to the highly complex nature of some of these arrangements some flexibility is necessary to convey the impact on the registrant. However, the Proposal is specific enough to yield comparable disclosures among registrants.
- A registrant may find it difficult to monitor arrangements to which it is not a party. It is possible that a company does not know when a direct or contingent liability or obligation is created when it is not a party to the arrangement. The Proposal needs to acknowledge this difficulty and provide flexibility about when and how these disclosures are made. Moreover, this type of disclosure should follow the "reasonably likely" threshold.
C. Contractual Obligations and Contingent Liabilities and Commitments
The following are responses to the questions set forth to solicit comment with regard to the proposed disclosures of contractual obligations and contingent liabilities or commitments.
- The Proposed Rule should require the proposed table to include disclosures to provide the reader with an understanding of the contractual obligations and contingent liabilities and commitments as well as how these items effect the registrant's liquidity and capital resources.
- Definitions of contractual obligations and contingent liabilities and commitments should be included in the Proposed Rule. The definitions should be similar to those discussed for these items in the Off-Balance Sheet Arrangements section of this Proposed Rule as well as those defined by Generally Accepted Accounting Principles. The definitions should demonstrate the level of materiality necessary for disclosure and when a contingent liability should be disclosed (i.e. probable vs. possible). This addition to the Proposed Rule will provide clear guidance on the expectation of the disclosure.
- The Proposed Rule need not provide any additional instruction for preparing the table since the language currently included is clear and flexible enough to adapt to the many different registrant's capital structures.
- The Proposed Rule should state that no disclosure of commercial instruments with a maturity of one year or less issued in the ordinary course of business is necessary.
D. Presentation of Proposed Disclosure
The following are responses to the questions set forth to solicit comment with regard to the presentation of proposed disclosure.
- The proposed disclosures should be integrated into Capital Resources and Liquidity section of MD&A since the items discussed in the Proposed Rule primarily relate to a registrant's liquidity and capital resources.
- In an effort to facilitate the integration above, the MD&A rules should be amended to require separate captions or subsections of Results of Operations and Capital Resources and Liquidity to incorporate the changes of the Proposed Rule.
E. Other MD&A Disclosure
The following are responses to the questions set forth to solicit comment with regard to other MD&A disclosure.
- The Proposed Rule should not require more specific disclosure about liquidity and capital resources. Further requirements will make the preparation of this section overly burdensome as well as more difficult for the reader to comprehend.
- The MD&A rules do not need to be amended to require more specific disclosure about relationships and transactions with persons or entities that derive benefits from their non-independent relationships with the registrant. The factors and disclosures identified in January 2002 are sufficient to provide financial statement readers with an understanding of the relationship.
- The factors identified in the January 2002 Commission statement should be codified.
G. Proposed Safe Harbor for Forward-Looking Information
The following are responses to the questions set forth to solicit comment with regard to the proposed safe harbor for forward-looking information.
- The proposed safe harbor should be expanded to apply to all forward-looking information in the MD&A. This will elicit better disclosures from all registrant's because of the reduced risk of private litigation.
- A need for the proposed safe harbor exists if only to reinforce the statutory safe harbors and close any loopholes for potential private litigation.
IMC believes that disclosures in SEC filings should be made to provide a clear picture of the registrant to any investor. Although IMC is not opposed to all of the new proposed requirements, the problem is the continuing proliferation of more disclosures over the past few years. This is now coupled with the SEC's decision to shorten the annual and quarterly reporting deadlines.
IMC strongly recommends that the SEC and PCAOB form a joint task force to address the issues regarding public disclosure and determine an overall strategy for the best presentation. This will help reduce the issuance of stop-gap disclosure requirements, which are addressing evolving issues prematurely, as well as eliminate the needless duplication of information between MD&A and the notes to the financial statements.
We appreciate your consideration.
Very truly yours,
/s/ Robert M. Qualls
Robert M. Qualls
Vice President and Controller