SEC Office of the Chief Accountant and FASB Staff Clarifications on Fair Value Accounting

Washington, D.C., Sept. 30, 2008 — The current environment has made questions surrounding the determination of fair value particularly challenging for preparers, auditors, and users of financial information. The SEC's Office of the Chief Accountant and the staff of the FASB have been engaged in extensive consultations with participants in the capital markets, including investors, preparers, and auditors, on the application of fair value measurements in the current market environment.

Alert: SEC Registrants May Need to Update Their Shelf Registration Statements by December 2008

In 2005, the SEC revised its shelf registration rules to provide an "expiration date" for many shelf registration statements*. A shelf registration statement that is subject to expiration may not be used to offer securities more than three years after the registration statement's initial effective date (subject to a limited grace period). The SEC's "expiration date" rules became effective December 1, 2005. For shelf registration statements that became effective before December 1, 2005, the expiration date is December 1, 2008.

The three-year expiration date rule affects the following types of securities:

• Securities registered on an automatic shelf registration statement: Any automatic shelf registration statement filed by a well-known seasoned issuer, for any type of offering, is subject to the three-year limitation.
• Securities offered on a delayed or continuous basis: These offerings include universal equity and debt registration statements and are generally registered on Form S-3 or Form F-3 (Rule 415(a)(1)(ix) or (x) of Regulation C).
• Mortgage-related securities: These include securities such as mortgage-backed debt and mortgage participation or pass through certificates (Rule 415(a)(1)(vii) of Regulation C).
  

*Many SEC registrants maintain effective "shelf" registration statements (usually filed on Form S-3 or Form F-3). These registration statements are referred to as "shelf" registration statements because the process of registering securities (including SEC staff review) takes place on the front-end of the process. When the decision is made to offer the securities for sale, they are "taken off the shelf" with no further review/involvement by the SEC staff.

Note: The purpose of this tip is to raise awareness of the potential expiration of many shelf registration statements in order to avoid the possibility that access to the capital markets may be interrupted. Registrants should consult with their securities counsel for specific information about the SEC's three-year shelf expiration date rules as well as the potential availability of a "grace period."

Other-Than-Temporary Impairment (OTTI)

Many debt and equity securities that are accounted for in accordance with FASB Statement No. 115, Accounting for Certain Investments in Debt and Equity Securities (FAS 115), have experienced significant and extended declines in fair value due to current economic conditions. Companies should consider whether these declines represent an "other-than-temporary impairment" (OTTI). If they do represent an OTTI, companies will have to recognize any unrealized OTTI losses stemming from such debt and equity securities in earnings.