2023-03077. Order Regarding Review of FASB Accounting Support Fee for 2023 Under the Sarbanes-Oxley Act of 2002

The Sarbanes-Oxley Act of 2002 (“SOX” or the “Act”) provides that the Securities and Exchange Commission (the “Commission”) may recognize, as generally accepted for purposes of the securities laws, any accounting principles established by a standard-setting body that meets certain criteria.^[1] Section 109 of SOX provides that all of the budget of such a standard-setting body shall be payable from an annual accounting support fee assessed and collected against each issuer, as may be necessary or appropriate to pay for the budget and provide for the expenses of the standard-setting body, and to provide for an independent, stable source of funding, subject to review by the Commission. Under section 109(f) of the Act, the amount of fees collected for a fiscal year shall not exceed the “recoverable budget expenses” of the standard-setting body. Section 109(i) of SOX amends section 13(b)(2) of the Securities Exchange Act of 1934 to require issuers to pay the allocable share of a reasonable annual accounting support fee or fees, determined in accordance with section 109 of the Act.

On April 25, 2003, the Commission issued a policy statement concluding that the Financial Accounting Standards Board (“FASB”) and its parent organization, the Financial Accounting Foundation (“FAF”), satisfied the criteria for an accounting standard-setting body under the Act, and recognizing the FASB's financial accounting and reporting standards as “generally accepted” under section 108 of the Act.^[2] Accordingly, the Commission undertook a review of the FASB's accounting support fee for calendar year 2023.^[3] In connection with its review, the Commission also reviewed the budget for the FAF and the FASB for calendar year 2023.

Section 109 of SOX provides that, in addition to the accounting support fee, the standard-setting body can have additional sources of revenue for its activities, such as earnings from sales of publications, provided that each additional source of revenue shall not jeopardize, in the judgment of the Commission, the actual or perceived independence of the standard setter. In this regard, the Commission also considered the interrelation of the operating budgets of the FAF, the FASB, and the Governmental Accounting Standards Board (“GASB”), the FASB's sister organization, which sets accounting standards used by state and local government entities. The Commission has been advised by the FAF that neither the FAF, the FASB, nor the GASB accept contributions from the accounting profession.

The Commission understands that the Office of Management and Budget (“OMB”) has determined the FASB's spending of the 2023 accounting support fee is sequestrable under the Budget Control Act of 2011.^[4] So long as sequestration is applicable, we anticipate that the FAF will work with the Commission and Commission staff as appropriate regarding its implementation of sequestration.

After its review, the Commission determined that the 2023 annual accounting support fee for the FASB is consistent with section 109 of the Act. Accordingly,

It is ordered, pursuant to section 109 of SOX, that the FASB may act in accordance with this determination of the Commission.

By the Commission.

Vanessa A. Countryman,

Secretary.

Footnotes

1.   See15 U.S.C. 7201 et seq.

2.   See Commission Statement of Policy Reaffirming the Status of the FASB as a Designated Private-Sector Standard Setter, Release No. 33-8221 (April 25, 2003) [68 FR 23333 (May 1, 2003)].

3.  The Financial Accounting Foundation's Board of Trustees approved the FASB's budget on November 15, 2022. The FAF submitted the approved budget to the Commission on November 21, 2022.

4.   See OMB Report to the Congress on the BBEDCA 251A Sequestration for Fiscal Year 2023, available at https://www.whitehouse.gov/​wp-content/​uploads/​2022/​03/​BBEDCA_​251A_​Sequestration_​Report_​FY2023.pdf.