[Federal Register: June 27, 2007 (Volume 72, Number 123)]
[Rules and Regulations]
[Page 35323-35343]
[DOCID:fr27jn07-27]

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Part III

Securities and Exchange Commission

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17 CFR Part 241

 Commission Guidance Regarding Management's Report on Internal Control
Over Financial Reporting Under Section 13(a) or 15(d) of the Securities
Exchange Act of 1934; Final Rule

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 241

[Release Nos. 33-8810; 34-55929; FR-77; File No. S7-24-06]

Commission Guidance Regarding Management's Report on Internal
Control Over Financial Reporting Under Section 13(a) or 15(d) of the
Securities Exchange Act of 1934

AGENCY: Securities and Exchange Commission.

ACTION: Interpretation.

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SUMMARY: The SEC is publishing this interpretive release to provide
guidance for management regarding its evaluation and assessment of
internal control over financial reporting. The guidance sets forth an
approach by which management can conduct a top-down, risk-based
evaluation of internal control over financial reporting. An evaluation
that complies with this interpretive guidance is one way to satisfy the
evaluation requirements of Rules 13a-15(c) and 15d-15(c) under the
Securities Exchange Act of 1934.

DATES: Effective Date: June 27, 2007.

FOR FURTHER INFORMATION CONTACT: Josh K. Jones, Professional Accounting
Fellow, Office of the Chief Accountant, at<PHONE_NUMBER>, or N. Sean
Harrison, Special Counsel, Division of Corporation Finance, at (202)
551-3430, U.S. Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549.

SUPPLEMENTARY INFORMATION: The amendments to Rules 13a-15(c) \1\ and
15d-15(c) \2\ under the Securities Exchange Act of 1934 \3\ (the
``Exchange Act''), which clarify that an evaluation of internal control
over financial reporting that complies with this interpretive guidance
is one way to satisfy those rules, are being made in a separate
release.\4\
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    \1\ 17 CFR 240.13a-15(c).
    \2\ 17 CFR 240.15d-15(c).
    \3\ 15 U.S.C. 78a et seq.
    \4\ Release No. 34-55928 (Jun. 20, 2007).
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I. Introduction

    Management is responsible for maintaining a system of internal
control over financial reporting (``ICFR'') that provides reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. The rules we adopted in
June 2003 to implement Section 404 of the Sarbanes-Oxley Act of 2002
\5\ (``Sarbanes-Oxley'') require management to annually evaluate
whether ICFR is effective at providing reasonable assurance and to
disclose its assessment to investors.\6\ Management is responsible for
maintaining evidential matter, including documentation, to provide
reasonable support for its assessment. This evidence will also allow a
third party, such as the company's external auditor, to consider the
work performed by management.
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    \5\ 15 U.S.C. 7262.
    \6\ Release No. 33-8238 (Jun. 5, 2003) [68 FR 36636]
(hereinafter ``Adopting Release'').
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    ICFR cannot provide absolute assurance due to its inherent
limitations; it is a process that involves human diligence and
compliance and is subject to lapses in judgment and breakdowns
resulting from human failures. ICFR also can be circumvented by
collusion or improper management override. Because of such limitations,
ICFR cannot prevent or detect all misstatements, whether unintentional
errors or fraud. However, these inherent limitations are known features
of the financial reporting process, therefore, it is possible to design
into the process safeguards to reduce, though not eliminate, this risk.
    The ``reasonable assurance'' referred to in the Commission's
implementing rules relates to similar language in the Foreign Corrupt
Practices Act of 1977 (``FCPA'').\7\ Exchange Act Section 13(b)(7)
defines ``reasonable assurance'' and ``reasonable detail'' as ``such
level of detail and degree of assurance as would satisfy prudent
officials in the conduct of their own affairs.'' \8\ The Commission has
long held that ``reasonableness'' is not an ``absolute standard of
exactitude for corporate records.'' \9\ In addition, the Commission
recognizes that while ``reasonableness'' is an objective standard,
there is a range of judgments that an issuer might make as to what is
``reasonable'' in implementing Section 404 and the Commission's rules.
Thus, the terms ``reasonable,'' ``reasonably,'' and ``reasonableness''
in the context of Section 404 implementation do not imply a single
conclusion or methodology, but encompass the full range of appropriate
potential conduct, conclusions or methodologies upon which an issuer
may reasonably base its decisions.
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    \7\ Title 1 of Pub. L. 95-213 (1977).
    \8\ 15 U.S.C. 78m(b)(7). The conference committee report on the
1988 amendments to the FCPA also noted that the standard ``does not
connote an unrealistic degree of exactitude or precision. The
concept of reasonableness of necessity contemplates the weighing of
a number of relevant factors, including the costs of compliance.''
Cong. Rec. H2116 (daily ed. Apr. 20, 1988).
    \9\ Release No. 34-17500 (Jan. 29, 1981) [46 FR 11544].
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    Since companies first began complying in 2004, the Commission has
received significant feedback on our rules implementing Section
404.\10\ This feedback included requests for further guidance to assist
company management in complying with our ICFR evaluation and disclosure
requirements. This guidance is in response to those requests and
reflects the significant feedback we have received, including comments
on the interpretive guidance we proposed on December 20, 2006. In
addressing a number of the commonly identified areas of concerns, the
interpretive guidance:
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    \10\ Release Nos. 33-8762; 34-54976 (Dec. 20, 2006) [71 FR
77635] (hereinafter ``Proposing Release''). For a detailed history
of the implementation of Section 404 of Sarbanes-Oxley, see Section
I., Background, of the Proposing Release. An analysis of the
comments we received on the Proposing Release is included in Section
III of this release.
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     Explains how to vary evaluation approaches for gathering
evidence based on risk assessments;
     Explains the use of ``daily interaction,'' self-
assessment, and other on-going monitoring activities as evidence in the
evaluation;
     Explains the purpose of documentation and how management
has flexibility in approaches to documenting support for its
assessment;
     Provides management significant flexibility in making
judgments regarding what constitutes adequate evidence in low-risk
areas; and
     Allows for management and the auditor to have different
testing approaches.
    The Interpretive Guidance is organized around two broad principles.
The first principle is that management should evaluate whether it has
implemented controls that adequately address the risk that a material
misstatement of the financial statements would not be prevented or
detected in a timely manner. The guidance describes a top-down, risk-
based approach to this principle, including the role of entity-level
controls in assessing financial reporting risks and the adequacy of
controls. The guidance promotes efficiency by allowing management to
focus on those controls that are needed to adequately address the risk
of a material misstatement of its financial statements. The guidance
does not require management to identify every control in a process or
document the business processes impacting ICFR. Rather, management can
focus its

evaluation process and the documentation supporting the assessment on
those controls that it determines adequately address the risk of a
material misstatement of the financial statements. For example, if
management determines that a risk of a material misstatement is
adequately addressed by an entity-level control, no further evaluation
of other controls is required.
    The second principle is that management's evaluation of evidence
about the operation of its controls should be based on its assessment
of risk. The guidance provides an approach for making risk-based
judgments about the evidence needed for the evaluation. This allows
management to align the nature and extent of its evaluation procedures
with those areas of financial reporting that pose the highest risks to
reliable financial reporting (that is, whether the financial statements
are materially accurate). As a result, management may be able to use
more efficient approaches to gathering evidence, such as self-
assessments, in low-risk areas and perform more extensive testing in
high-risk areas. By following these two principles, we believe
companies of all sizes and complexities will be able to implement our
rules effectively and efficiently.
    The Interpretive Guidance reiterates the Commission's position that
management should bring its own experience and informed judgment to
bear in order to design an evaluation process that meets the needs of
its company and that provides a reasonable basis for its annual
assessment of whether ICFR is effective. This allows management
sufficient and appropriate flexibility to design such an evaluation
process.\11\ Smaller public companies, which generally have less
complex internal control systems than larger public companies, can use
this guidance to scale and tailor their evaluation methods and
procedures to fit their own facts and circumstances. We encourage
smaller public companies \12\ to take advantage of the flexibility and
scalability to conduct an evaluation of ICFR that is both efficient and
effective at identifying material weaknesses.
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    \11\ Exchange Act Rules 13a-15 and 15d-15 [17 CFR 240.13a-15 and
15d-15] require management to evaluate the effectiveness of ICFR as
of the end of the fiscal year. For purposes of this document, the
term ``evaluation'' or ``evaluation process'' refers to the methods
and procedures that management implements to comply with these
rules. The term ``assessment'' is used in this document to describe
the disclosure required by Item 308 of Regulations S-B and S-K [17
CFR 228.308 and 229.308]. This disclosure must include discussion of
any material weaknesses which exist as of the end of the most recent
fiscal year and management's assessment of the effectiveness of
ICFR, including a statement as to whether or not ICFR is effective.
Management is not permitted to conclude that ICFR is effective if
there are one or more material weaknesses in ICFR.
    \12\ While a company's individual facts and circumstances should
be considered in determining whether a company is a smaller public
company and the resulting implications to management's evaluation, a
company's public market capitalization and annual revenues are
useful indicators of its size and complexity. The Final Report of
the Advisory Committee on Smaller Public Companies to the United
States Securities and Exchange Commission (Apr. 23, 2006), available
at http://www.sec.gov/info/smallbus/acspc/acspc-finalreport.pdf,

defined smaller companies, which included microcap companies, and
the SEC's rules include size characteristics for ``accelerated
filers'' and ``non-accelerated filers'' which approximately fit the
same definitions.
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    The effort necessary to conduct an initial evaluation of ICFR will
vary among companies, partly because this effort will depend on
management's existing financial reporting risk assessment and control
monitoring activities. After the first year of compliance, management's
effort to identify financial reporting risks and controls should
ordinarily be less, because subsequent evaluations should be more
focused on changes in risks and controls rather than identification of
all financial reporting risks and the related controls. Further, in
each subsequent year, the documentation of risks and controls will only
need to be updated from the prior year(s), not recreated anew. Through
the risk and control identification process, management will have
identified for testing only those controls that are needed to meet the
objective of ICFR (that is, to provide reasonable assurance regarding
the reliability of financial reporting) and for which evidence about
their operation can be obtained most efficiently. The nature and extent
of procedures implemented to evaluate whether those controls continue
to operate effectively can be tailored to the company's unique
circumstances, thereby avoiding unnecessary compliance costs.
    The guidance assumes management has established and maintains a
system of internal accounting controls as required by the FCPA.
Further, it is not intended to explain how management should design its
ICFR to comply with the control framework management has chosen. To
allow appropriate flexibility, the guidance does not provide a
checklist of steps management should perform in completing its
evaluation.
    The guidance in this release shall be effective immediately upon
its publication in the Federal Register.\13\
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    \13\ The Commission finds good cause under 5 U.S.C. 808(2) for
this interpretation to take effect on the date of Federal Register
publication. Further delay would be unnecessary and contrary to the
public interest because following the guidance is voluntary.
Additionally, delay may deter companies from realizing all the
efficiencies intended by this guidance, and immediate effectiveness
will assist in preparing for 2007 evaluations and assessments of
internal control over financial reporting.
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    As a companion \14\ to this interpretive release, we are adopting
amendments to Exchange Act Rules 13a-15(c) and 15d-15(c) and revisions
to Regulation S-X.\15\ The amendments to Rules 13a-15(c) and 15d-15(c)
will make it clear that an evaluation that is conducted in accordance
with this interpretive guidance is one way to satisfy the annual
management evaluation requirement in those rules. We are also amending
our rules to define the term ``material weakness'' and to revise the
requirements regarding the auditor's attestation report on ICFR.
Additionally, we are seeking additional comment on the definition of
the term ``significant deficiency.'' \16\
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    \14\ Release No. 34-55928.
    \15\ 17 CFR 210.1-01 et seq.
    \16\ Release No. 34-55930 (Jun. 20, 2007).
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II. Interpretive Guidance--Evaluation and Assessment of Internal
Control Over Financial Reporting

    The interpretive guidance addresses the following topics:

A. The Evaluation Process
    1. Identifying Financial Reporting Risks and Controls
    a. Identifying Financial Reporting Risks
    b. Identifying Controls That Adequately Address Financial
Reporting Risks
    c. Consideration of Entity-Level Controls
    d. Role of Information Technology General Controls
    e. Evidential Matter To Support the Assessment
    2. Evaluating Evidence of the Operating Effectiveness of ICFR
    a. Determining the Evidence Needed To Support the Assessment
    b. Implementing Procedures To Evaluate Evidence of the Operation
of ICFR
    c. Evidential Matter To Support the Assessment
    3. Multiple Location Considerations
B. Reporting Considerations
    1. Evaluation of Control Deficiencies
    2. Expression of Assessment of Effectiveness of ICFR by
Management
    3. Disclosures About Material Weaknesses
    4. Impact of a Restatement of Previously Issued Financial
Statements on Management's Report on ICFR
    5. Inability To Assess Certain Aspects of ICFR

A. The Evaluation Process

    The objective of internal control over financial reporting \17\
(``ICFR'') is to

provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles
(``GAAP''). The purpose of the evaluation of ICFR is to provide
management with a reasonable basis for its annual assessment as to
whether any material weaknesses \18\ in ICFR exist as of the end of the
fiscal year.\19\ To accomplish this, management identifies the risks to
reliable financial reporting, evaluates whether controls exist to
address those risks, and evaluates evidence about the operation of the
controls included in the evaluation based on its assessment of
risk.\20\ The evaluation process will vary from company to company;
however, the top-down, risk-based approach which is described in this
guidance will typically be the most efficient and effective way to
conduct the evaluation.
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    \17\ Exchange Act Rules 13a-15(f) and 15d-15(f) [17 CFR 240.13a-
15(f) and 15d-15(b)] define internal control over financial
reporting as:
    A process designed by, or under the supervision of, the issuer's
principal executive and principal financial officers, or persons
performing similar functions, and effected by the issuer's board of
directors, management and other personnel, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles and
includes those policies and procedures that:
    (1) Pertain to the maintenance of records that in reasonable
detail accurately and fairly reflect the transactions and
dispositions of the assets of the issuer;
    (2) Provide reasonable assurance that transactions are recorded
as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that
receipts and expenditures of the issuer are being made only in
accordance with authorizations of management and directors of the
registrant; and
    (3) Provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use or disposition of the
issuer's assets that could have a material effect on the financial
statements.
    \18\ As defined in Exchange Act Rule 12b-2 [17 CFR 240.12b-2]
and Rule 1-02 of Regulation S-X [17 CFR 210.1-02], a material
weakness is a deficiency, or a combination of deficiencies, in ICFR
such that there is a reasonable possibility that a material
misstatement of the registrant's annual or interim financial
statements will not be prevented or detected on a timely basis. See
Release No. 34-55928.
    \19\ This focus on material weaknesses will lead to a better
understanding by investors about the company's ICFR, as well as its
inherent limitations. Further, the Commission's rules implementing
Section 404, by providing for public disclosure of material
weaknesses, concentrate attention on the most important internal
control issues.
    \20\ If management's evaluation process identifies material
weaknesses, but all material weaknesses are remediated by the end of
the fiscal year, management may conclude that ICFR is effective as
of the end of the fiscal year. However, management should consider
whether disclosure of such remediated material weaknesses is
appropriate or required under Item 307 or Item 308 of Regulations S-
K or S-B or other Commission disclosure rules.
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    The evaluation process guidance is described in two sections. The
first section explains the identification of financial reporting risks
and the evaluation of whether the controls management has implemented
adequately address those risks. The second section explains an approach
for making judgments about the methods and procedures for evaluating
whether the operation of ICFR is effective. Both sections explain how
entity-level controls \21\ impact the evaluation process, as well as
how management should focus its evaluation efforts on the highest risks
to reliable financial reporting.\22\
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    \21\ The term ``entity-level controls'' as used in this document
describes aspects of a system of internal control that have a
pervasive effect on the entity's system of internal control such as
controls related to the control environment (for example,
management's philosophy and operating style, integrity and ethical
values; board or audit committee oversight; and assignment of
authority and responsibility); controls over management override;
the company's risk assessment process; centralized processing and
controls, including shared service environments; controls to monitor
results of operations; controls to monitor other controls, including
activities of the internal audit function, the audit committee, and
self-assessment programs; controls over the period-end financial
reporting process; and policies that address significant business
control and risk management practices. The terms ``company-level''
and ``entity-wide'' are also commonly used to describe these
controls.
    \22\ Because management is responsible for maintaining effective
ICFR, this interpretive guidance does not specifically address the
role of the board of directors or audit committee in a company's
evaluation and assessment of ICFR. However, we would ordinarily
expect a board of directors or audit committee, as part of its
oversight responsibilities for the company's financial reporting, to
be reasonably knowledgeable and informed about the evaluation
process and management's assessment, as necessary in the
circumstances.
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    Under the Commission's rules, management's annual assessment of the
effectiveness of ICFR must be made in accordance with a suitable
control framework's \23\ definition of effective internal control.\24\
These control frameworks define elements of internal control that are
expected to be present and functioning in an effective internal control
system. In assessing effectiveness, management evaluates whether its
ICFR includes policies, procedures and activities that address the
elements of internal control that the applicable control framework
describes as necessary for an internal control system to be effective.
The framework elements describe the characteristics of an internal
control system that may be relevant to individual areas of the
company's ICFR, pervasive to many areas, or entity-wide. Therefore,
management's evaluation process includes not only controls involving
particular areas of financial reporting, but also the entity-wide and
other pervasive elements of internal control defined by its selected
control framework. This guidance is not intended to replace the
elements of an effective system of internal control as defined within a
control framework.
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    \23\ In the Adopting Release, the Commission specified
characteristics of a suitable control framework and identified the
Internal Control--Integrated Framework (1992) created by the
Committee of Sponsoring Organizations of the Treadway Commission
(``COSO'') as an example of a suitable framework. We also cited the
Guidance on Assessing Control published by the Canadian Institute of
Chartered Accountants (``CoCo'') and the report published by the
Institute of Chartered Accountants in England & Wales Internal
Control: Guidance for Directors on the Combined Code (known as the
Turnbull Report) as examples of other suitable frameworks that
issuers could choose in evaluating the effectiveness of their ICFR.
We encourage companies to examine and select a framework that may be
useful in their own circumstances; we also encourage the further
development of existing and alternative frameworks.
    \24\ For example, both the COSO framework and the Turnbull
Report state that determining whether a system of internal control
is effective is a subjective judgment resulting from an assessment
of whether the five components (that is, control environment, risk
assessment, control activities, monitoring, and information and
communication) are present and functioning effectively. Although
CoCo states that an assessment of effectiveness should be made
against twenty specific criteria, it acknowledges that the criteria
can be regrouped into different structures, and includes a table
showing how the criteria can be regrouped into the five-component
structure of COSO.
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1. Identifying Financial Reporting Risks and Controls
    Management should evaluate whether it has implemented controls that
will achieve the objective of ICFR (that is, to provide reasonable
assurance regarding the reliability of financial reporting). The
evaluation begins with the identification and assessment of the risks
to reliable financial reporting (that is, materially accurate financial
statements), including changes in those risks. Management then
evaluates whether it has controls placed in operation (that is, in use)
that are designed to adequately address those risks. Management
ordinarily would consider the company's entity-level controls in both
its assessment of risks and in identifying which controls adequately
address the risks.
    The evaluation approach described herein allows management to
identify controls and maintain supporting evidential matter for its
controls in a manner that is tailored to the company's financial
reporting risks (as defined below). Thus, the controls that management
identifies and documents are those that are important to achieving the
objective of ICFR. These controls are then subject to procedures to
evaluate evidence of their operating

effectiveness, as determined pursuant to Section II.A.2.
a. Identifying Financial Reporting Risks
    Management should identify those risks of misstatement that could,
individually or in combination with others, result in a material
misstatement of the financial statements (``financial reporting
risks''). Ordinarily, the identification of financial reporting risks
begins with evaluating how the requirements of GAAP apply to the
company's business, operations and transactions. Management must
provide investors with financial statements that fairly present the
company's financial position, results of operations and cash flows in
accordance with GAAP. A lack of fair presentation arises when one or
more financial statement amounts or disclosures (``financial reporting
elements'') contain misstatements (including omissions) that are
material.
    Management uses its knowledge and understanding of the business,
and its organization, operations, and processes, to consider the
sources and potential likelihood of misstatements in financial
reporting elements. Internal and external risk factors that impact the
business, including the nature and extent of any changes in those
risks, may give rise to a risk of misstatement. Risks of misstatement
may also arise from sources such as the initiation, authorization,
processing and recording of transactions and other adjustments that are
reflected in financial reporting elements. Management may find it
useful to consider ``what could go wrong'' within a financial reporting
element in order to identify the sources and the potential likelihood
of misstatements and identify those that could result in a material
misstatement of the financial statements.
    The methods and procedures for identifying financial reporting
risks will vary based on the characteristics of the company. These
characteristics include, among others, the size, complexity, and
organizational structure of the company and its processes and financial
reporting environment, as well as the control framework used by
management. For example, to identify financial reporting risks in a
larger business or a complex business process, management's methods and
procedures may involve a variety of company personnel, including those
with specialized knowledge. These individuals, collectively, may be
necessary to have a sufficient understanding of GAAP, the underlying
business transactions and the process activities, including the role of
computer technology, that are required to initiate, authorize, record
and process transactions. In contrast, in a small company that operates
on a centralized basis with less complex business processes and with
little change in the risks or processes, management's daily involvement
with the business may provide it with adequate knowledge to
appropriately identify financial reporting risks.
    Management's evaluation of the risk of misstatement should include
consideration of the vulnerability of the entity to fraudulent activity
(for example, fraudulent financial reporting, misappropriation of
assets and corruption), and whether any such exposure could result in a
material misstatement of the financial statements.\25\ The extent of
activities required for the evaluation of fraud risks is commensurate
with the size and complexity of the company's operations and financial
reporting environment.\26\
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    \25\ For example, COSO's Internal Control Over Financial
Reporting--Guidance for Smaller Public Companies (2006), Volume 1:
Executive Summary, Principle 10: Fraud Risk (page 10) states, ``The
potential for material misstatement due to fraud is explicitly
considered in assessing risks to the achievement of financial
reporting objectives.''
    \26\ Management may find resources such as ``Management
Antifraud Programs and Controls--Guidance to Help Prevent, Deter,
and Detect Fraud,'' which was issued jointly by seven professional
organizations and is included as an exhibit to AU Sec. 316,
Consideration of Fraud in a Financial Statement Audit (as adopted on
an interim basis by the PCAOB in PCAOB Rule 3200T) helpful in
assessing fraud risks. Other resources also exist (for example, the
American Institute of Certified Public Accountants' (AICPA)
Management Override of Internal Controls: The Achilles' Heel of
Fraud Prevention (2005)), and more may be developed in the future.
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    Management should recognize that the risk of material misstatement
due to fraud ordinarily exists in any organization, regardless of size
or type, and it may vary by specific location or segment and by
individual financial reporting element. For example, one type of fraud
risk that has resulted in fraudulent financial reporting in companies
of all sizes and types is the risk of improper override of internal
controls in the financial reporting process. While the identification
of a fraud risk is not necessarily an indication that a fraud has
occurred, the absence of an identified fraud is not an indication that
no fraud risks exist. Rather, these risk assessments are used in
evaluating whether adequate controls have been implemented.
b. Identifying Controls That Adequately Address Financial Reporting
Risks
    Management should evaluate whether it has controls \27\ placed in
operation (that is, in use) that adequately address the company's
financial reporting risks. The determination of whether an individual
control, or a combination of controls, adequately addresses a financial
reporting risk involves judgments about whether the controls, if
operating properly, can effectively prevent or detect misstatements
that could result in material misstatements in the financial
statements.\28\ If management determines that a deficiency in ICFR
exists, it must be evaluated to determine whether a material weakness
exists.\29\ The guidance in Section II.B.1. is designed to assist
management with that evaluation.
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    \27\ A control consists of a specific set of policies,
procedures, and activities designed to meet an objective. A control
may exist within a designated function or activity in a process. A
control's impact on ICFR may be entity-wide or specific to an
account balance, class of transactions or application. Controls have
unique characteristics--for example, they can be: Automated or
manual; reconciliations; segregation of duties; review and approval
authorizations; safeguarding and accountability of assets;
preventing or detecting error or fraud. Controls within a process
may consist of financial reporting controls and operational controls
(that is, those designed to achieve operational objectives).
    \28\ Companies may use ``control objectives,'' which provide
specific criteria against which to evaluate the effectiveness of
controls, to assist in evaluating whether controls can prevent or
detect misstatements.
    \29\ A deficiency in the design of ICFR exists when (a)
Necessary controls are missing or (b) existing controls are not
properly designed so that, even if the control operates as designed,
the financial reporting risks would not be addressed.
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    Management may identify preventive controls, detective controls, or
a combination of both, as adequately addressing financial reporting
risks.\30\ There might be more than one control that addresses the
financial reporting risks for a financial reporting element;
conversely, one control might address the risks of more than one
financial reporting element. It is not necessary to identify all
controls that may exist or identify redundant controls, unless
redundancy itself is required to address the financial reporting risks.
To illustrate, management may determine that the risk of a misstatement
in interest expense, which could result in a material misstatement of
the financial statements, is adequately addressed by a control within
the company's period-end financial reporting process (that is, an
entity-level control). In such a case, management may not need to
identify, for purposes of the ICFR evaluation, any

additional controls related to the risk of misstatement in interest
expense.
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    \30\ Preventive controls have the objective of preventing the
occurrence of errors or fraud that could result in a misstatement of
the financial statements. Detective controls have the objective of
detecting errors or fraud that has already occurred that could
result in a misstatement of the financial statements. Preventive and
detective controls may be completely manual, involve some degree of
computer automation, or be completely automated.
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    Management may also consider the efficiency with which evidence of
the operation of a control can be evaluated when identifying the
controls that adequately address the financial reporting risks. When
more than one control exists and each adequately addresses a financial
reporting risk, management may decide to select the control for which
evidence of operating effectiveness can be obtained more efficiently.
Moreover, when adequate information technology (``IT'') general
controls exist and management has determined that the operation of such
controls is effective, management may determine that automated controls
are more efficient to evaluate than manual controls. Considering the
efficiency with which the operation of a control can be evaluated will
often enhance the overall efficiency of the evaluation process.
    In addition to identifying controls that address the financial
reporting risks of individual financial reporting elements, management
also evaluates whether it has controls in place to address the entity-
level and other pervasive elements of ICFR that its chosen control
framework prescribes as necessary for an effective system of internal
control. This would ordinarily include, for example, considering how
and whether controls related to the control environment, controls over
management override, the entity-level risk assessment process and
monitoring activities,\31\ controls over the period-end financial
reporting process,\32\ and the policies that address significant
business control and risk management practices are adequate for
purposes of an effective system of internal control. The control
frameworks and related guidance may be useful tools for evaluating the
adequacy of these elements of ICFR.
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    \31\ Monitoring activities may include controls to monitor
results of operations and controls to monitor other controls,
including activities of the internal audit function, the audit
committee, and self-assessment programs.
    \32\ The nature of controls within the period-end financial
reporting process will vary based on a company's facts and
circumstances. The period-end financial reporting process may
include matters such as: Procedures to enter transaction totals into
the general ledger; the initiation, authorization, recording and
processing of journal entries in the general ledger; procedures for
the selection and application of accounting policies; procedures
used to record recurring and non-recurring adjustments to the annual
and quarterly financial statements; and procedures for preparing
annual and quarterly financial statements and related disclosures.
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    When identifying the controls that address financial reporting
risks, management learns information about the characteristics of the
controls that should inform its judgments about the risk that a control
will fail to operate as designed. This includes, for example,
information about the judgment required in its operation and
information about the complexity of the controls. Section II.A.2.
discusses how these characteristics are considered in determining the
nature and extent of evidence of the operation of the controls that
management evaluates.
    At the end of this identification process, management has
identified for evaluation those controls that are needed to meet the
objective of ICFR (that is, to provide reasonable assurance regarding
the reliability of financial reporting) and for which evidence about
their operation can be obtained most efficiently.
c. Consideration of Entity-Level Controls
    Management considers entity-level controls when identifying
financial reporting risks and related controls for a financial
reporting element. In doing so, it is important for management to
consider the nature of the entity-level controls and how those controls
relate to the financial reporting element. The more indirect the
relationship to a financial reporting element, the less effective a
control may be in preventing or detecting a misstatement.\33\
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    \33\ Controls can be either directly or indirectly related to a
financial reporting element. Controls that are designed to have a
specific effect on a financial reporting element are considered
directly related. For example, controls established to ensure that
personnel are properly counting and recording the annual physical
inventory relate directly to the existence of the inventory.
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    Some entity-level controls, such as certain control environment
controls, have an important, but indirect, effect on the likelihood
that a misstatement will be prevented or detected on a timely basis.
These controls might affect the other controls management determines
are necessary to adequately address financial reporting risks for a
financial reporting element. However, it is unlikely that management
will identify only this type of entity-level control as adequately
addressing a financial reporting risk identified for a financial
reporting element.
    Other entity-level controls may be designed to identify possible
breakdowns in lower-level controls, but not in a manner that would, by
themselves, adequately address financial reporting risks. For example,
an entity-level control that monitors the results of operations may be
designed to detect potential misstatements and investigate whether a
breakdown in lower-level controls occurred. However, if the amount of
potential misstatement that could exist before being detected by the
monitoring control is too high, then the control may not adequately
address the financial reporting risks of a financial reporting element.
    Entity-level controls may be designed to operate at the process,
application, transaction or account-level and at a level of precision
that would adequately prevent or detect on a timely basis misstatements
in one or more financial reporting elements that could result in a
material misstatement of the financial statements. In these cases,
management may not need to identify or evaluate additional controls
relating to that financial reporting risk.
d. Role of Information Technology General Controls
    Controls that management identifies as addressing financial
reporting risks may be automated,\34\ dependent upon IT
functionality,\35\ or a combination of both manual and automated
procedures.\36\ In these situations, management's evaluation process
generally considers the design and operation of the automated or IT
dependent application controls and the relevant IT general controls
over the applications providing the IT functionality. While IT general
controls alone ordinarily do not adequately address financial reporting
risks, the proper and consistent operation of automated controls or IT
functionality often depends upon effective IT general controls. The
identification of risks and controls within IT should not be a separate
evaluation. Instead, it should be an integral part of management's top-
down, risk-based approach to identifying risks and controls and in
determining evidential matter necessary to support the assessment.
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    \34\ For example, application controls that perform automated
matching, error checking or edit checking functions.
    \35\ For example, consistent application of a formula or
performance of a calculation and posting correct balances to
appropriate accounts or ledgers.
    \36\ For example, a control that manually investigates items
contained in a computer generated exception report.
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    Aspects of IT general controls that may be relevant to the
evaluation of ICFR will vary depending upon a company's facts and
circumstances. For purposes of the evaluation of ICFR, management only
needs to evaluate those IT general controls that are necessary for the
proper and consistent operation of other controls designed to
adequately address financial reporting risks. For example, management
might consider whether certain aspects of IT

general control areas, such as program development, program changes,
computer operations, and access to programs and data, apply to its
facts and circumstances.\37\ Specifically, it is unnecessary to
evaluate IT general controls that primarily pertain to efficiency or
effectiveness of a company's operations, but which are not relevant to
addressing financial reporting risks.
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    \37\ However, the reference to these specific IT general control
areas as examples within this guidance does not imply that these
areas, either partially or in their entirety, are applicable to all
facts and circumstances. As indicated, companies need to take their
particular facts and circumstances into consideration in determining
which aspects of IT general controls are relevant.
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e. Evidential Matter To Support the Assessment
    As part of its evaluation of ICFR, management must maintain
reasonable support for its assessment.\38\ Documentation of the design
of the controls management has placed in operation to adequately
address the financial reporting risks, including the entity-level and
other pervasive elements necessary for effective ICFR, is an integral
part of the reasonable support. The form and extent of the
documentation will vary depending on the size, nature, and complexity
of the company. It can take many forms (for example, paper documents,
electronic, or other media). Also, the documentation can be presented
in a number of ways (for example, policy manuals, process models,
flowcharts, job descriptions, documents, internal memorandums, forms,
etc). The documentation does not need to include all controls that
exist within a process that impacts financial reporting. Rather, the
documentation should be focused on those controls that management
concludes are adequate to address the financial reporting risks.\39\
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    \38\ See instructions to Item 308 of Regulations S-K and S-B.
    \39\ Section II.A.2.c also provides guidance with regard to the
documentation required to support management's evaluation of
operating effectiveness.
---------------------------------------------------------------------------

    In addition to providing support for the assessment of ICFR,
documentation of the design of controls also supports other objectives
of an effective system of internal control. For example, it serves as
evidence that controls within ICFR, including changes to those
controls, have been identified, are capable of being communicated to
those responsible for their performance, and are capable of being
monitored by the company.
2. Evaluating Evidence of the Operating Effectiveness of ICFR
    Management should evaluate evidence of the operating effectiveness
of ICFR. The evaluation of the operating effectiveness of a control
considers whether the control is operating as designed and whether the
person performing the control possesses the necessary authority and
competence to perform the control effectively. The evaluation
procedures that management uses to gather evidence about the operation
of the controls it identifies as adequately addressing the financial
reporting risks for financial reporting elements (pursuant to Section
II.A.1.b) should be tailored to management's assessment of the risk
characteristics of both the individual financial reporting elements and
the related controls (collectively, ICFR risk). Management should
ordinarily focus its evaluation of the operation of controls on areas
posing the highest ICFR risk. Management's assessment of ICFR risk also
considers the impact of entity-level controls, such as the relative
strengths and weaknesses of the control environment, which may
influence management's judgments about the risks of failure for
particular controls.
    Evidence about the effective operation of controls may be obtained
from direct testing of controls and on-going monitoring activities. The
nature, timing and extent of evaluation procedures necessary for
management to obtain sufficient evidence of the effective operation of
a control depend on the assessed ICFR risk. In determining whether the
evidence obtained is sufficient to provide a reasonable basis for its
evaluation of the operation of ICFR, management should consider not
only the quantity of evidence (for example, sample size), but also the
qualitative characteristics of the evidence. The qualitative
characteristics of the evidence include the nature of the evaluation
procedures performed, the period of time to which the evidence relates,
the objectivity \40\ of those evaluating the controls, and, in the case
of on-going monitoring activities, the extent of validation through
direct testing of underlying controls. For any individual control,
different combinations of the nature, timing, and extent of evaluation
procedures may provide sufficient evidence. The sufficiency of evidence
is not necessarily determined by any of these attributes individually.
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    \40\ In determining the objectivity of those evaluating
controls, management is not required to make an absolute conclusion
regarding objectivity, but rather should recognize that personnel
will have varying degrees of objectivity based on, among other
things, their job function, their relationship to the control being
evaluated, and their level of authority and responsibility within
the organization. Personnel whose core function involves permanently
serving as a testing or compliance authority at the company, such as
internal auditors, normally are expected to be the most objective.
However, the degree of objectivity of other company personnel may be
such that the evaluation of controls performed by them would provide
sufficient evidence. Management's judgments about whether the degree
of objectivity is adequate to provide sufficient evidence should
take into account the ICFR risk.
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a. Determining the Evidence Needed To Support the Assessment
    Management should evaluate the ICFR risk of the controls identified
in Section II.A.1.b as adequately addressing the financial reporting
risks for financial reporting elements to determine the evidence needed
to support the assessment. This evaluation should consider the
characteristics of the financial reporting elements to which the
controls relate and the characteristics of the controls themselves.
This concept is illustrated in the following diagram.

[GRAPHIC] [TIFF OMITTED] TR27JN07.000

    Management's consideration of the misstatement risk of a financial
reporting element includes both the materiality of the financial
reporting element and the susceptibility of the underlying account
balances, transactions or other supporting information to a
misstatement that could be material to the financial statements. As the
materiality of a financial reporting element increases in relation to
the amount of misstatement that would be considered material to the
financial statements, management's assessment of misstatement risk for
the financial reporting element generally would correspondingly
increase. In addition, management considers the extent to which the
financial reporting elements include transactions, account balances or
other supporting information that are prone to material misstatement.
For example, the extent to which a financial reporting element: (1)
Involves judgment in determining the recorded amounts; (2) is
susceptible to fraud; (3) has complex accounting requirements; (4)
experiences change in the nature or volume of the underlying
transactions; or (5) is sensitive to changes in environmental factors,
such as technological and/or economic developments, would generally
affect management's judgment of whether a misstatement risk is higher
or lower.
    Management's consideration of the likelihood that a control might
fail to operate effectively includes, among other things:
     The type of control (that is, manual or automated) and the
frequency with which it operates;
     The complexity of the control;
     The risk of management override;
     The judgment required to operate the control;
     The competence of the personnel who perform the control or
monitor its performance;
     Whether there have been changes in key personnel who
either perform the control or monitor its performance;
     The nature and materiality of misstatements that the
control is intended to prevent or detect;
     The degree to which the control relies on the
effectiveness of other controls (for example, IT general controls); and
     The evidence of the operation of the control from prior
year(s).
    For example, management's judgment of the risk of control failure
would be higher for controls whose operation requires significant
judgment than for non-complex controls requiring less judgment.
    Financial reporting elements that involve related party
transactions, critical accounting policies,\41\ and related critical
accounting estimates \42\ generally would be assessed as having a
higher misstatement risk. Further, when the controls related to these
financial reporting elements are subject to the risk of management
override, involve significant judgment, or are complex, they should
generally be assessed as having higher ICFR risk.
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    \41\ ``Critical accounting policies'' are defined as those
policies that are most important to the financial statement
presentation, and require management's most difficult, subjective,
or complex judgments, often as the result of a need to make
estimates about the effect of matters that are inherently uncertain.
See Release No. 33-8040 (Dec. 12, 2001) [66 FR 65013].
    \42\ ``Critical accounting estimates'' relate to estimates or
assumptions involved in the application of generally accepted
accounting principles where the nature of the estimates or
assumptions is material due to the levels of subjectivity and
judgment necessary to account for highly uncertain matters or the
susceptibility of such matters to change and the impact of the
estimates and assumptions on financial condition or operating
performance is material. See Release No. 33-8350 (Dec. 19, 2003) [68
FR 75056]. For additional information, see, for example, Release No.
33-8098 (May 10, 2002) [67 FR 35620].
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    When a combination of controls is required to adequately address
the risks related to a financial reporting element, management should
analyze the risk characteristics of the controls. This is because the
controls associated with a given financial reporting element may not
necessarily share the same risk characteristics. For example, a
financial reporting element involving significant estimation may
require a combination of automated controls that accumulate source data
and manual controls that require highly judgmental determinations of
assumptions. In this case, the automated controls may be subject to a
system that is stable (that is, has not undergone significant change)
and is supported by effective IT general controls and are therefore
assessed as lower risk, whereas the manual controls would be assessed
as higher risk.
    The consideration of entity-level controls (for example, controls
within the control environment) may influence management's
determination of the evidence needed to sufficiently support its
assessment of ICFR. For example, management's judgment about the
likelihood that a control fails to operate effectively may be
influenced by a highly effective control environment and thereby impact
the evidence evaluated for that control. However, a strong control
environment would not eliminate the need to evaluate the operation of
the control in some manner.
b. Implementing Procedures To Evaluate Evidence of the Operation of
ICFR
    Management should evaluate evidence that provides a reasonable
basis for its assessment of the operating

effectiveness of the controls identified in Section II.A.1. Management
uses its assessment of ICFR risk, as determined in Section II.A.2 to
determine the evaluation methods and procedures necessary to obtain
sufficient evidence. The evaluation methods and procedures may be
integrated with the daily responsibilities of its employees or
implemented specifically for purposes of the ICFR evaluation.
Activities that are performed for other reasons (for example, day-to-
day activities to manage the operations of the business) may also
provide relevant evidence. Further, activities performed to meet the
monitoring objectives of the control framework may provide evidence to
support the assessment of the operating effectiveness of ICFR.
    The evidence management evaluates comes from direct tests of
controls, on-going monitoring, or a combination of both. Direct tests
of controls are tests ordinarily performed on a periodic basis by
individuals with a high degree of objectivity relative to the controls
being tested. Direct tests provide evidence as of a point in time and
may provide information about the reliability of on-going monitoring
activities. On-going monitoring includes management's normal, recurring
activities that provide information about the operation of controls.
These activities include, for example, self-assessment \43\ procedures
and procedures to analyze performance measures designed to track the
operation of controls.\44\ Self-assessment is a broad term that can
refer to different types of procedures performed by individuals with
varying degrees of objectivity. It includes assessments made by the
personnel who operate the control as well as members of management who
are not responsible for operating the control. The evidence provided by
self-assessment activities depends on the personnel involved and the
manner in which the activities are conducted. For example, evidence
from self-assessments performed by personnel responsible for operating
the control generally provides less evidence due to the evaluator's
lower degree of objectivity.
---------------------------------------------------------------------------

    \43\ For example, COSO's 1992 framework defines self-assessments
as ``evaluations where persons responsible for a particular unit or
function will determine the effectiveness of controls for their
activities.''
    \44\ Management's evaluation process may also consider the
results of key performance indicators (``KPIs'') in which management
reconciles operating and financial information with its knowledge of
the business. The procedures that management implements pursuant to
this section should evaluate the effective operation of these KPI-
type controls when they are identified pursuant to Section II.A.1.b.
as addressing financial reporting risk.
---------------------------------------------------------------------------

    As the ICFR risk increases, management will ordinarily adjust the
nature of the evidence that is obtained. For example, management can
increase the evidence from on-going monitoring activities by utilizing
personnel who are more objective and/or increasing the extent of
validation through periodic direct testing of the underlying controls.
Management can also vary the evidence obtained by adjusting the period
of time covered by direct testing. When ICFR risk is assessed as high,
the evidence management obtains would ordinarily consist of direct
testing or on-going monitoring activities performed by individuals who
have a higher degree of objectivity. In situations where a company's
on-going monitoring activities utilize personnel who are not adequately
objective, the evidence obtained would normally be supplemented with
direct testing by those who are independent from the operation of the
control. In these situations, direct testing of controls corroborates
evidence from on-going monitoring activities as well as evaluates the
operation of the underlying controls and whether they continue to
adequately address financial reporting risks. When ICFR risk is
assessed as low, management may conclude that evidence from on-going
monitoring is sufficient and that no direct testing is required.
Further, management's evaluation would ordinarily consider evidence
from a reasonable period of time during the year, including the fiscal
year-end.
    In smaller companies, management's daily interaction with its
controls may provide it with sufficient knowledge about their operation
to evaluate the operation of ICFR. Knowledge from daily interaction
includes information obtained by on-going direct involvement with and
direct supervision of the execution of the control by those responsible
for the assessment of the effectiveness of ICFR. Management should
consider its particular facts and circumstances when determining
whether its daily interaction with controls provides sufficient
evidence to evaluate the operating effectiveness of ICFR. For example,
daily interaction may be sufficient when the operation of controls is
centralized and the number of personnel involved is limited.
Conversely, daily interaction in companies with multiple management
reporting layers or operating segments would generally not provide
sufficient evidence because those responsible for assessing the
effectiveness of ICFR would not ordinarily be sufficiently
knowledgeable about the operation of the controls. In these situations,
management would ordinarily utilize direct testing or on-going
monitoring-type evaluation procedures to obtain reasonable support for
the assessment.
    Management evaluates the evidence it gathers to determine whether
the operation of a control is effective. This evaluation considers
whether the control operated as designed. It also considers matters
such as how the control was applied, the consistency with which it was
applied, and whether the person performing the control possesses the
necessary authority and competence to perform the control effectively.
If management determines that the operation of the control is not
effective, a deficiency exists that must be evaluated to determine
whether it is a material weakness.
c. Evidential Matter To Support the Assessment
    Management's assessment must be supported by evidential matter that
provides reasonable support for its assessment. The nature of the
evidential matter may vary based on the assessed level of ICFR risk of
the underlying controls and other circumstances. Reasonable support for
an assessment would include the basis for management's assessment,
including documentation of the methods and procedures it utilizes to
gather and evaluate evidence.
    The evidential matter may take many forms and will vary depending
on the assessed level of ICFR risk for controls over each of its
financial reporting elements. For example, management may document its
overall strategy in a comprehensive memorandum that establishes the
evaluation approach, the evaluation procedures, the basis for
management's conclusion about the effectiveness of controls related to
the financial reporting elements and the entity-level and other
pervasive elements that are important to management's assessment of
ICFR.
    If management determines that the evidential matter within the
company's books and records is sufficient to provide reasonable support
for its assessment, it may determine that it is not necessary to
separately maintain copies of the evidence it evaluates. For example,
in smaller companies, where management's daily interaction with its
controls provides the basis for its assessment, management may have
limited documentation created specifically for the evaluation of ICFR.
However, in these instances, management should consider whether
reasonable support for its assessment

would include documentation of how its interaction provided it with
sufficient evidence. This documentation might include memoranda, e-
mails, and instructions or directions to and from management to company
employees.
    Further, in determining the nature of supporting evidential matter,
management should also consider the degree of complexity of the
control, the level of judgment required to operate the control, and the
risk of misstatement in the financial reporting element that could
result in a material misstatement of the financial statements. As these
factors increase, management may determine that evidential matter
supporting the assessment should be separately maintained. For example,
management may decide that separately maintained documentation in
certain areas will assist the audit committee in exercising its
oversight of the company's financial reporting.
    The evidential matter constituting reasonable support for
management's assessment would ordinarily include documentation of how
management formed its conclusion about the effectiveness of the
company's entity-level and other pervasive elements of ICFR that its
applicable framework describes as necessary for an effective system of
internal control.
3. Multiple Location Considerations
    Management's consideration of financial reporting risks generally
includes all of its locations or business units.\45\ Management may
determine that financial reporting risks are adequately addressed by
controls which operate centrally, in which case the evaluation approach
is similar to that of a business with a single location or business
unit. When the controls necessary to address financial reporting risks
operate at more than one location or business unit, management would
generally evaluate evidence of the operation of the controls at the
individual locations or business units.
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    \45\ Consistent with the guidance in Section II.A.1., management
may determine when identifying financial reporting risks that some
locations are so insignificant that no further evaluation procedures
are needed.
---------------------------------------------------------------------------

    Management may determine that the ICFR risk of the controls (as
determined through Section II.A.2.a) that operate at individual
locations or business units is low. In such situations, management may
determine that evidence gathered through self-assessment routines or
other on-going monitoring activities, when combined with the evidence
derived from a centralized control that monitors the results of
operations at individual locations, constitutes sufficient evidence for
the evaluation. In other situations, management may determine that,
because of the complexity or judgment in the operation of the controls
at the individual location, the risk that controls will fail to operate
is high, and therefore more evidence is needed about the effective
operation of the controls at the location.
    Management should generally consider the risk characteristics of
the controls for each financial reporting element, rather than making a
single judgment for all controls at that location when deciding whether
the nature and extent of evidence is sufficient. When performing its
evaluation of the risk characteristics of the controls identified,
management should consider whether there are location-specific risks
that might impact the risk that a control might fail to operate
effectively. Additionally, there may be pervasive risk factors that
exist at a location that cause all controls, or a majority of controls,
at that location to be considered higher risk.

B. Reporting Considerations

1. Evaluation of Control Deficiencies
    In order to determine whether a control deficiency, or combination
of control deficiencies, is a material weakness, management evaluates
the severity of each control deficiency that comes to its attention.
Control deficiencies that are determined to be a material weakness must
be disclosed in management's annual report on its assessment of the
effectiveness of ICFR. Control deficiencies that are considered to be
significant deficiencies are reported to the company's audit committee
and the external auditor pursuant to management's compliance with the
certification requirements in Exchange Act Rule 13a-14.\46\
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    \46\ Pursuant to Exchange Act Rules 13a-14 and 15d-14 [17 CFR
240.13a-14 and 240.15d-14], management discloses to the auditors and
to the audit committee of the board of directors (or persons
fulfilling the equivalent function) all material weaknesses and
significant deficiencies in the design or operation of internal
controls which could adversely affect the issuer's ability to
record, process, summarize and report financial data. The term
``material weakness'' is defined in the Commission's rules in
Exchange Act Rule 12b-2 and Rule 1-02 of Regulation S-X. See Release
No. 34-55928. The Commission is seeking additional comment on the
definition of the term ``significant deficiency'' in the
Commission's rules in Exchange Act Rule 12b-2 and Rule 1-02 of
Regulation S-X. See Release No. 34-55930.
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    Management may not disclose that it has assessed ICFR as effective
if one or more deficiencies in ICFR are determined to be a material
weakness. As part of the evaluation of ICFR, management considers
whether each deficiency, individually or in combination, is a material
weakness as of the end of the fiscal year. Multiple control
deficiencies that affect the same financial statement amount or
disclosure increase the likelihood of misstatement and may, in
combination, constitute a material weakness if there is a reasonable
possibility \47\ that a material misstatement of the financial
statements would not be prevented or detected in a timely manner, even
though such deficiencies may be individually less severe than a
material weakness. Therefore, management should evaluate individual
control deficiencies that affect the same financial statement amount or
disclosure, or component of internal control, to determine whether they
collectively result in a material weakness.
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    \47\ There is a reasonable possibility of an event when the
likelihood of the event is either ``reasonably possible'' or
``probable'' as those terms are used in Financial Accounting
Standards Board Statement No. 5, Accounting for Contingencies. The
use of the phrase ``reasonable possibility that a material
misstatement of the financial statements would not be prevented or
detected in a timely manner'' is intended solely to assist
management in identifying matters for disclosure under Item 308 of
Regulation S-K. It is not intended to interpret or describe
management's responsibility under the FCPA or modify a control
framework's definition of what constitutes an effective system of
internal control.
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    The evaluation of the severity of a control deficiency should
include both quantitative and qualitative factors. Management evaluates
the severity of a deficiency in ICFR by considering whether there is a
reasonable possibility that the company's ICFR will fail to prevent or
detect a misstatement of a financial statement amount or disclosure;
and the magnitude of the potential misstatement resulting from the
deficiency or deficiencies. The severity of a deficiency in ICFR does
not depend on whether a misstatement actually has occurred but rather
on whether there is a reasonable possibility that the company's ICFR
will fail to prevent or detect a misstatement on a timely basis.
    Risk factors affect whether there is a reasonable possibility \48\
that a deficiency, or a combination of deficiencies, will result in a
misstatement of a financial statement amount or disclosure. These
factors include, but are not limited to, the following:
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    \48\ The evaluation of whether a deficiency in ICFR presents a
reasonable possibility of misstatement can be made without
quantifying the probability of occurrence as a specific percentage
or range.
---------------------------------------------------------------------------

     The nature of the financial reporting elements involved
(for example, suspense accounts and related party transactions involve
greater risk);

     The susceptibility of the related asset or liability to
loss or fraud (that is, greater susceptibility increases risk);
     The subjectivity, complexity, or extent of judgment
required to determine the amount involved (that is, greater
subjectivity, complexity, or judgment, like that related to an
accounting estimate, increases risk);
     The interaction or relationship of the control with other
controls, including whether they are interdependent or redundant;
     The interaction of the deficiencies (that is, when
evaluating a combination of two or more deficiencies, whether the
deficiencies could affect the same financial statement amounts or
disclosures); and
     The possible future consequences of the deficiency.
    Factors that affect the magnitude of the misstatement that might
result from a deficiency or deficiencies in ICFR include, but are not
limited to, the following:
     The financial statement amounts or total of transactions
exposed to the deficiency; and
     The volume of activity in the account balance or class of
transactions exposed to the deficiency that has occurred in the current
period or that is expected in future periods.
    In evaluating the magnitude of the potential misstatement, the
maximum amount that an account balance or total of transactions can be
overstated is generally the recorded amount, while understatements
could be larger. Also, in many cases, the probability of a small
misstatement will be greater than the probability of a large
misstatement.
    Management should evaluate the effect of compensating controls \49\
when determining whether a control deficiency or combination of
deficiencies is a material weakness. To have a mitigating effect, the
compensating control should operate at a level of precision that would
prevent or detect a misstatement that could be material.
---------------------------------------------------------------------------

    \49\ Compensating controls are controls that serve to accomplish
the objective of another control that did not function properly,
helping to reduce risk to an acceptable level.
---------------------------------------------------------------------------

    In determining whether a deficiency or a combination of
deficiencies represents a material weakness, management considers all
relevant information. Management should evaluate whether the following
situations indicate a deficiency in ICFR exists and, if so, whether it
represents a material weakness:
     Identification of fraud, whether or not material, on the
part of senior management; \50\
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    \50\ For purposes of this indicator, the term ``senior
management'' includes the principal executive and financial officers
signing the company's certifications as required under Section 302
of Sarbanes Oxley as well as any other members of senior management
who play a significant role in the company's financial reporting
process.
---------------------------------------------------------------------------

     Restatement of previously issued financial statements to
reflect the correction of a material misstatement; \51\
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    \51\ See FAS 154, Accounting Changes and Error Corrections,
regarding correction of a misstatement.
---------------------------------------------------------------------------

     Identification of a material misstatement of the financial
statements in the current period in circumstances that indicate the
misstatement would not have been detected by the company's ICFR; and
     Ineffective oversight of the company's external financial
reporting and internal control over financial reporting by the
company's audit committee.
    When evaluating the severity of a deficiency, or combination of
deficiencies, in ICFR, management also should determine the level of
detail and degree of assurance that would satisfy prudent officials in
the conduct of their own affairs that they have reasonable assurance
that transactions are recorded as necessary to permit the preparation
of financial statements in conformity with GAAP. If management
determines that the deficiency, or combination of deficiencies, might
prevent prudent officials in the conduct of their own affairs from
concluding that they have reasonable assurance that transactions are
recorded as necessary to permit the preparation of financial statements
in conformity with GAAP, then management should treat the deficiency,
or combination of deficiencies, as an indicator of a material weakness.
2. Expression of Assessment of Effectiveness of ICFR by Management
    Management should clearly disclose its assessment of the
effectiveness of ICFR and, therefore, should not qualify its assessment
by stating that the company's ICFR is effective subject to certain
qualifications or exceptions. For example, management should not state
that the company's controls and procedures are effective except to the
extent that certain material weakness(es) have been identified. In
addition, if a material weakness exists, management may not state that
the company's ICFR is effective. However, management may state that
controls are ineffective for specific reasons.
3. Disclosures About Material Weaknesses
    The Commission's rule implementing Section 404 was intended to
bring information about material weaknesses in ICFR into public view.
Because of the significance of the disclosure requirements surrounding
material weaknesses beyond specifically stating that the material
weaknesses exist, companies should also consider including the
following in their disclosures: \52\
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    \52\ Significant deficiencies in ICFR are not required to be
disclosed in management's annual report on its evaluation of ICFR
required by Item 308(a).
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     The nature of any material weakness,
     Its impact on the company's financial reporting and its
ICFR, and
     Management's current plans, if any, or actions already
undertaken, for remediating the material weakness.
    Disclosure of the existence of a material weakness is important,
but there is other information that also may be material and necessary
to form an overall picture that is not misleading.\53\ The goal
underlying all disclosure in this area is to provide an investor with
disclosure and analysis that goes beyond describing the mere existence
of a material weakness. There are many different types of material
weaknesses and many different factors that may be important to the
assessment of the potential effect of any particular material weakness.
While management is required to conclude and state in its report that
ICFR is ineffective when there are one or more material weaknesses,
companies should also consider providing disclosure that allows
investors to understand the cause of the control deficiency and to
assess the potential impact of each particular material weakness. This
disclosure will be more useful to investors if management
differentiates the potential impact and importance to the financial
statements of the identified material weaknesses, including
distinguishing those material weaknesses that may have a pervasive
impact on ICFR from those material weaknesses that do not.
---------------------------------------------------------------------------

    \53\ See Exchange Act Rule 12b-20 [17 CFR 240.12b-20].
---------------------------------------------------------------------------

4. Impact of a Restatement of Previously Issued Financial Statements on
Management's Report on ICFR
    Item 308 of Regulation S-K requires disclosure of management's
assessment of the effectiveness of the company's ICFR as of the end of
the company's most recent fiscal year. When a material misstatement of
previously issued

financial statements is discovered, a company is required to restate
those financial statements. However, the restatement of financial
statements does not, by itself, necessitate that management consider
the effect of the restatement on the company's prior conclusion related
to the effectiveness of ICFR.
    While there is no requirement for management to reassess or revise
its conclusion related to the effectiveness of ICFR, management should
consider whether its original disclosures are still appropriate and
should modify or supplement its original disclosure to include any
other material information that is necessary for such disclosures not
to be misleading in light of the restatement. The company should also
disclose any material changes to ICFR, as required by Item 308(c) of
Regulation S-K.
    Similarly, while there is no requirement that management reassess
or revise its conclusion related to the effectiveness of its disclosure
controls and procedures, management should consider whether its
original disclosures regarding effectiveness of disclosure controls and
procedures need to be modified or supplemented to include any other
material information that is necessary for such disclosures not to be
misleading. With respect to the disclosures concerning ICFR and
disclosure controls and procedures, the company may need to disclose in
this context what impact, if any, the restatement has on its original
conclusions regarding effectiveness of ICFR and disclosure controls and
procedures.
5. Inability To Assess Certain Aspects of ICFR
    In certain circumstances, management may encounter difficulty in
assessing certain aspects of its ICFR. For example, management may
outsource a significant process to a service organization and determine
that evidence of the operating effectiveness of the controls over that
process is necessary. However, the service organization may be
unwilling to provide either a Type 2 SAS 70 report or to provide
management access to the controls in place at the service organization
so that management could assess effectiveness.\54\ Finally, management
may not have compensating controls in place that allow a determination
of the effectiveness of the controls over the process in an alternative
manner. The Commission's disclosure requirements state that
management's annual report on ICFR must include a statement as to
whether or not ICFR is effective and do not permit management to issue
a report on ICFR with a scope limitation.\55\ Therefore, management
must determine whether the inability to assess controls over a
particular process is significant enough to conclude in its report that
ICFR is not effective.
---------------------------------------------------------------------------

    \54\ AU Sec. 324, Service Organizations (as adopted on an
interim basis by the Public Company Accounting Oversight Board
(``PCAOB'') in PCAOB Rule 3200T), defines a report on controls
placed in operation and test of operating effectiveness, commonly
referred to as a ``Type 2 SAS 70 report.'' This report is a service
auditor's report on a service organization's description of the
controls that may be relevant to a user organization's internal
control as it relates to an audit of financial statements, on
whether such controls were suitably designed to achieve specified
control objectives, on whether they had been placed in operation as
of a specific date, and on whether the controls that were tested
were operating with sufficient effectiveness to provide reasonable,
but not absolute, assurance that the related control objectives were
achieved during the period specified.
    \55\ See Item 308(a)(3) of Regulations S-K and S-B [17 CFR
229.308(a)(3) and 228.308(a)(3)].
---------------------------------------------------------------------------

III. Discussion of Comments on the Proposing Release

    The Proposing Release proposed for public comment interpretive
guidance for management regarding the annual evaluation of ICFR
required by Rules 13a-15(c) and 15d-15(c) under the Exchange Act. We
received letters from 211 commenters in response to the Proposing
Release.\56\ The majority of commenters were supportive of the
Commission's efforts in developing this Interpretive Guidance. We have
reviewed and considered all of the comments received on the proposal,
and we discuss our conclusions with respect to the comments in more
detail in the following sections.
---------------------------------------------------------------------------

    \56\ Of the 211 commenters, 43 were issuers, 33 professional
associations and business groups, 19 foreign private issuers and
foreign professional associations, 10 investor advocacy and other
similar groups, 8 major accounting firms, 11 smaller accounting
firms and Section 404 service providers, 8 banks and banking
associations, 4 law firms and law associations, and 75 other
interested parties including students, academics, and other
individuals. The comment letters are available for inspection in the
Commission's Public Reference Room at 100 F Street, NE., Washington,
DC 20549 in File No. S7-24-06, or may be viewed at http://www.sec.gov/comments/s7-24-06/s72406.shtml
.

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A. Alignment between Management's Evaluation and Assessment and the
External Audit

    Commenters expressed concern that confusion and inefficiencies may
arise from differences between the proposed guidance for management's
evaluation of ICFR and the PCAOB's proposed auditing standard for
ICFR.\57\ Commenters cited a lack of alignment between the two with
regard to the terminology and definitions used \58\ as well as
differences in the overall approach. Some commenters that were
supportive of the principles-based approach to the proposed
interpretive guidance expressed concern that improvements in the
efficiency of management's evaluation of ICFR would be limited by what
they viewed as comparatively more prescriptive guidance for external
auditors in the Proposed Auditing Standard.\59\ Other commenters
suggested that maximizing their auditor's ability to rely on the work
performed in management's evaluation would require aligning the
evaluation approach for management with the Proposed Auditing
Standard.\60\ Even so, some of these commenters still viewed the
interpretive guidance as an improvement because it provides management
the ability to choose whether, and to what extent, it should align its
evaluation with the auditing standard; whereas commenters said that
management feels compelled to align with the auditing standard under
the current rules. Other commenters suggested that the proposed
interpretive guidance was compatible with the Proposed Auditing
Standard and that improvements in implementation could be attained with
close coordination between management and auditors.\61\
---------------------------------------------------------------------------

    \57\ In PCAOB Release No. 2006-007 the PCAOB proposed for public
comment An Audit of Internal Control Over Financial Reporting That
Is Integrated With An Audit of Financial Statements and Considering
and Using the Work of Others in an Audit. See http://www.pcaobus.org/Rules/Docket_021/2006-12-19_Release_No._2006-007.pdf
 (hereinafter ``Proposed Auditing Standard'').

    \58\ See, for example, letters from American Bar Association's
Committees on Federal Regulation of Securities and Law and
Accounting of the Section of Business Law (ABA), Association of
Chartered Certified Accountants (ACCA), Edison Electric Institute
(EEI), European Federation of Accountants (FEE), Financial
Executives International Committee on Corporate Reporting (FEI CCR),
Frank Gorrell (F. Gorrell), Society of Corporate Secretaries and
Governance Professionals, and The Institute of Chartered Accountants
in England and Wales (ICAEW).
    \59\ See, for example, letters from Eli Lilly and Company (Eli
Lilly), FEI CCR, Hutchinson Technology Inc. (Hutchinson),
Independent Community Bankers of America (ICBA), MetLife Inc.
(MetLife), Procter & Gamble Company (P&G), and Supervalu Inc.
(Supervalu).
    \60\ See, for example, letters from Heritage Financial
Corporation and Southern Company.
    \61\ See, for example, letters from BDO Seidman LLP (BDO),
McGladrey & Pullen LLP (M&P), and PricewaterhouseCoopers LLP (PwC).
---------------------------------------------------------------------------

    In response to the comment letters, we have revised our proposal to
more closely align it with how we anticipate the PCAOB will revise its
proposed auditing standard. For example, the

definition of a material weakness and the related guidance for
evaluating deficiencies, including indicators of a material weakness,
have been revised.\62\ In addition, alignment revisions were made to
the guidance for evaluating whether controls adequately address
financial reporting risks, including entity-level controls, the factors
to consider when identifying financial reporting risks and the factors
for assessing the risk associated with individual financial reporting
elements and controls.
---------------------------------------------------------------------------

    \62\ The revisions made to the proposed definition of material
weakness and the related guidance, including the strong indicators,
are discussed in Section III.F. of this document.
---------------------------------------------------------------------------

    However, some differences between our final interpretive guidance
for management and the PCAOB's audit standard remain. These differences
are not necessarily contradictions or misalignment; rather they reflect
the fact that management and the auditor have different roles and
responsibilities with respect to evaluating and auditing ICFR.
Management is responsible for designing and maintaining ICFR and
performing an evaluation annually that provides it with a reasonable
basis for its assessment as to whether ICFR is effective as of fiscal
year-end. Management's daily involvement with its internal control
system provides it with knowledge and information that may influence
its judgments about how best to conduct the evaluation and the
sufficiency of evidence it needs to assess the effectiveness of ICFR.
In contrast, the auditor is responsible for conducting an independent
audit that includes appropriate professional skepticism. Moreover, the
audit of ICFR is integrated with the audit of the company's financial
statements. While there is a close relationship between the work
performed by management and its auditor, the ICFR audit will not
necessarily be limited to the nature and extent of procedures
management has already performed as part of its evaluation of ICFR.
There will be differences in the approaches used by management and the
auditor because the auditor does not have the same information and
understanding as management and because the auditor will need to
integrate its tests of ICFR with the financial statement audit. We
agree with those commenters that suggested coordination between
management and auditors on their respective efforts will ensure that
both the evaluation by management and the independent audit are
completed in an efficient and effective manner.

B. Principles-based Nature of Guidance for Conducting the Evaluation

    The guidance is intended to assist management in complying with two
broad principles: (1) Evaluate whether controls have been implemented
to adequately address the risk that a material misstatement of the
financial statements would not be prevented or detected in a timely
manner and (2) evaluate evidence about the operation of controls based
on an assessment of risk. We believe the guidance will enable companies
of all sizes and complexities to comply with our rules effectively and
efficiently.
    Commenters expressed support for the proposed guidance's
principles-based approach.\63\ However, some requested that the
proposal be revised to include additional guidance and illustrative
examples in the following areas: \64\
---------------------------------------------------------------------------

    \63\ See, for example, letters from ACE Limited (ACE), American
Electric Power Company, Inc. (AEP), Business Roundtable (BR),
Canadian Bankers Association, Center for Audit Quality (Center),
Ernst & Young LLP (EY), Grant Thornton LLP (GT), ING Groep N.V.
(ING), Manulife Financial (Manulife), PwC, P&G, and Reznick Group,
P.C. (Reznick).
    \64\ See, for example, letters from Brown-Forman, Ford Motor
Company, MasterCard Incorporated (MasterCard), Northrop Grumman
Corporation, Supervalu, UFP Technologies (UFP), and UnumProvident
Corporation (UnumProvident).
---------------------------------------------------------------------------

     The identification of controls that address financial
reporting risks; \65\
---------------------------------------------------------------------------

    \65\ See, for example, letter from Nina Stofberg (N. Stofberg).
---------------------------------------------------------------------------

     The assessment of ICFR risk, including how evidence gained
over prior periods should impact management's assessment of risks
associated with controls identified and therefore, the evidence needed
to support its assessment; \66\
---------------------------------------------------------------------------

    \66\ See, for example, letters from ISACA and IT Governance
Institute (ISACA), Manulife, and Ohio Society of Certified Public
Accountants (Ohio).
---------------------------------------------------------------------------

     How varying levels of risk impact the nature of the
evidence necessary to support its assessment; \67\
---------------------------------------------------------------------------

    \67\ See, for example, letters from Cardinal Health, Inc.
(Cardinal), Cleary Gottlieb Steen & Hamilton LLP (Cleary), and
ISACA.
---------------------------------------------------------------------------

     When on-going monitoring activities, including self-
assessments, could be used to support management's assessment and
reduce direct testing; \68\
---------------------------------------------------------------------------

    \68\ See, for example, letters from BASF Aktiengesellschaft
(BASF), Cardinal, Computer Sciences Corporation (CSC), ING, ISACA,
Ohio, PPL Corporation (PPL), R. Malcolm Schwartz, N. Stofberg, and
UnumProvident.
---------------------------------------------------------------------------

     Sampling techniques, sample sizes, and testing methods;
\69\
---------------------------------------------------------------------------

    \69\ See, for example, letters from BDO, National Association of
Real Estate Investment Trusts, Reznick, and UFP.
---------------------------------------------------------------------------

     The type and manner in which supporting evidence should be
maintained; \70\ including specific guidelines regarding the amount,
form and medium of evidence; \71\ and
---------------------------------------------------------------------------

    \70\ See, for example, letters from AEP, BDO, Center, EEI, Frank
Consulting, PLLP (Frank), The Hundred Group of Finance Directors
(100 Group), Institut Der Wirtschaftsprufer [Institute of Public
Auditors in Germany] (IDW), Managed Funds Association (MFA), Nasdaq
Stock Market, Inc. (Nasdaq), Ohio, N. Stofberg, and UFP.
    \71\ See, for example, letter from Nasdaq.
---------------------------------------------------------------------------

     How management should document the effectiveness of
monitoring activities utilized to support its assessment, as well as
how management should support the evidence obtained from its daily
interaction with controls as part of its assessment.\72\
---------------------------------------------------------------------------

    \72\ See, for example, letters from BDO and Center.
---------------------------------------------------------------------------

    We have considered the requests for additional guidance and decided
to retain the principles-based nature of the proposed guidance. We
believe an evaluation of ICFR will be most effective and efficient when
management makes use of all available facts and information to make
reasonable judgments about the evaluation methods and procedures that
are necessary to have a reasonable basis for the assessment of the
effectiveness of ICFR and the evidential matter maintained in support
of the assessment. Additional guidance and examples in the areas
requested would likely have the negative consequence of establishing
``bright line'' or ``one-size fits all'' evaluation approaches. Such an
outcome would be contrary to our view that the evaluations must be
tailored to a company's individual facts and circumstances to be both
effective and efficient. Moreover, an evaluation by management that is
focused on compliance with detailed guidance, rather than the risks to
the reliability of its financial reporting, would likely lead to
evaluations that are inefficient, ineffective or both.
    Detailed guidance and examples from the Commission may also limit
or hinder the natural evolution and further development of control
frameworks and evaluation methodologies as technology, control systems,
and financial reporting evolve. As we have previously stated, the
Commission supports and encourages the further development of control
frameworks and related implementation guidance. For example, the July
2006 small business guidance issued by COSO addresses the
identification of financial reporting risks and the related controls.
Additionally, we note that COSO is currently working on a project to
further define how the effectiveness of control systems can be
monitored.\73\ As such, companies may

find that there are other sources for the additional guidance in the
areas they are seeking.
---------------------------------------------------------------------------

    \73\ In a press release on January 8, 2007, COSO announced that
Grant Thornton LLP had been commissioned to develop guidance to help
organizations monitor the quality of their internal control systems.
According to that press release, the guidance will serve as a tool
for effectively monitoring internal controls while complying with
Sarbanes-Oxley. The press release is available at http://www.coso.org/Publications/COSO%20Monitoring%20GT%20Final%20Release_1.8.07.pdf
.

---------------------------------------------------------------------------

    Commenters also expressed the view that companies may abuse the
flexibility afforded by the proposed principles-based guidance to
perform inadequate evaluations, thereby undermining the intended
investor protection benefits.\74\ Other commenters have observed that
material weakness disclosures to investors are too often simultaneous
with, rather than in advance of, the restatement of financial
statements, which undermines the usefulness of the disclosures.\75\ In
response to these comments, we note that this principles-based guidance
enables management to tailor its evaluation so that it focuses on those
areas of financial reporting that pose the highest risk to reliable
financial reporting. We believe that a tailored evaluation approach
that focuses resources on areas of highest risk will improve, rather
than degrade, the effectiveness of many company's evaluations and
improve the timeliness of material weakness disclosures to investors.
---------------------------------------------------------------------------

    \74\ See, for example, letters from Joseph V. Carcello, Consumer
Federation of America, Consumer Action, U.S. Public Interest
Research Group (CFA), and Moody's Investors Service (Moody's).
    \75\ See, for example, letters from CFA and Moody's.
---------------------------------------------------------------------------

C. Scalability and Small Business Considerations

    Commenters believed that the proposed interpretive guidance can be
scaled to companies of all sizes and will benefit smaller public
companies in completing their assessments.\76\ However, some commenters
requested more guidance to enable them to conduct the evaluation in an
effective and efficient manner. For example, commenters requested more
guidance on how some of the unique characteristics of smaller
companies, including a lack of segregation of duties, should be
considered in the evaluation.\77\
---------------------------------------------------------------------------

    \76\ See, for example, letters from American Bankers Association
(American Bankers), Anthony S. Chan, Chandler (U.S.A.), Inc.
(Chandler), CNB Corporation & Citizens National Bank of Cheboygan
(CNB), Financial Services Forum, GT, Greater Boston Chamber of
Commerce, Minn-Dak Farmers Cooperative (MDFC), RAM Energy Resources,
Inc., and San Jose Water Company.
    \77\ See, for example, letters from American Electronics
Association (AeA), EY, Financial Executives International Small
Public Company Task Force (FEI SPCTF), Frank, Institute of
Management Accountants (IMA), MFA, U.S. Chamber of Commerce
(Chamber), and U.S. Small Business Administration's Office of
Advocacy (SBA).
---------------------------------------------------------------------------

    Other commenters, mostly comprised of investor groups, requested
that the guidance emphasize that scaled or tailored evaluation methods
and procedures for smaller public companies should be based on both the
size and complexity of the business and do not imply less rigorous
evaluation methods and procedures.\78\
---------------------------------------------------------------------------

    \78\ See, for example, letters from California Public Employees'
Retirement System (CalPERS), CFA, Council of Institutional
Investors, Ethics Resource Center, International Brotherhood of
Teamsters, and Pension Reserves Investment Management Board (PRIMB).
---------------------------------------------------------------------------

    Some commenters indicated that smaller public companies should
continue to be exempt at least until a thorough examination is
conducted of both the Interpretive Guidance and the new Auditing
Standard to ensure that smaller companies are not disproportionately
burdened.\79\ Some commenters requested that the SEC further delay the
implementation for one additional year \80\ or continued to call for a
complete exemption from Section 404 for smaller public companies.\81\
Other commenters requested that smaller public companies not be
exempted.\82\
---------------------------------------------------------------------------

    \79\ See, for example, letters from AeA, Biotechnology Industry
Organization, Committee on Capital Markets Regulation (CCMR),
Financial Reporting Committee of the Association of the Bar of the
City of New York (NYC Bar), International Association of Small
Broker Dealers and Advisers, National Venture Capital Association,
SBA, Silicon Valley Leadership Group (SVLG), Small Business
Entrepreneurship Council, TechNet, and Telecommunications Industry
Association.
    \80\ See, for example, letters from American Bankers, America's
Community Bankers, Chandler, CNB, FEI SPCTF, F. Gorrell, ICBA, MFA,
and Washington Legal Foundation (WLF).
    \81\ See, for example, letters from American Stock Exchange,
ICBA, UFP, and WLF.
    \82\ See, for example, letters from American Federation of Labor
and Congress of Industrial Organizations (AFL-CIO), CalPERS, Frank,
F. Gorrell, PRIMB, and WithumSmith+Brown Global Assurance, LLC.
---------------------------------------------------------------------------

    We believe the principles-based guidance permits flexible and
scalable evaluation approaches that will enable management of smaller
public companies to evaluate and assess the effectiveness of ICFR
without undue cost burdens. The guidance recognizes that internal
control systems and the methods and procedures necessary to evaluate
their effectiveness may be different in smaller public companies than
in larger companies. However, the flexibility provided in the guidance
is not meant to imply that evaluations for smaller public companies be
conducted with less rigor, or to provide anything less than reasonable
assurance as to the effectiveness of ICFR at such companies. Rather,
smaller public companies should utilize the flexibility provided in the
guidance to cost-effectively tailor and scale their methods and
approaches for identifying and documenting financial reporting risks
and the related controls and for evaluating whether operation of
controls is effective (for example, by utilizing evidence gathered
through management's daily interaction with its controls), so that they
provide the evidence needed to assess whether ICFR is effective.
    In addition, as previously mentioned, companies may find that there
are other sources for guidance, such as the July 2006 guidance for
applying the COSO framework to smaller public companies. We believe our
guidance, when used in conjunction with other such guidance, will
enable smaller public companies to have a better understanding of the
requirements of a control framework, its role in effective internal
control systems and the relationship to our evaluation and disclosure
requirements. This should enable management to plan and conduct its
evaluation in an effective and efficient manner.
    The Commission believes that compliance with the ICFR evaluation
and assessment requirements by smaller public companies will further
the primary goal of Sarbanes-Oxley which is to enhance the quality of
financial reporting and increase investor confidence in the fairness
and integrity of the securities markets. We note that all financial
statements filed with the Commission, even those by smaller public
companies, result from a system of internal controls. Such systems are
required by the FCPA to operate at a level that provides ``reasonable
assurance'' about the reliability of financial reporting. Our rules
implementing Section 404 direct management of all companies to evaluate
and assess whether the company's system of internal controls is
effective at achieving reasonable assurance. Our guidance is intended
to help them do so in a cost-effective manner. Given the principles-
based nature of our guidance and the flexibility it provides, we do not
believe further postponement of the evaluation requirements are needed
for smaller companies. We believe that the timing of the issuance of
the Interpretive Guidance is adequate to allow for its effective
implementation in 2007 evaluations.

D. Identifying Financial Reporting Risks and Controls

1. Summary of the Proposal
    The proposal directed management to consider the sources and
potential likelihood of misstatements, including those arising from
fraudulent activity, and identify those that could result in a material
misstatement of the financial statements (that is, financial reporting
risks). The proposal indicated that management's consideration of the
risk of misstatement generally includes all of its locations or
business units and that the methods and procedures for identifying
financial reporting risks will vary based on the characteristics of the
individual company. The proposal discussed factors for management to
consider in selecting methods and procedures for evaluating financial
reporting risks and in identifying the sources and potential likelihood
of misstatement.
    The proposal directed management to evaluate whether controls were
placed in operation to adequately address the financial reporting risks
it identifies. The proposal indicated that controls were not adequate
when their design was such that there was a reasonable possibility that
a misstatement in a financial reporting element that could result in a
material misstatement of the financial statements would not be
prevented or detected in a timely manner. The proposal discussed the
fact that some controls may be automated or may depend upon IT
functionality. In these situations, the proposal stated that
management's evaluation should consider not only the design and
operation of the automated or IT dependent controls, but also the
aspects of IT general controls necessary to adequately address
financial reporting risks.
    The proposal also indicated that entity-level controls should be
considered when identifying financial reporting risks and related
controls for a financial reporting element. The proposal discussed the
nature of entity-level controls, how they relate to a financial
reporting element and the need to consider whether they would prevent
or detect material misstatements. If a financial reporting risk for a
financial reporting element is adequately addressed by an entity-level
control, the proposal indicated that no further controls needed to be
identified and tested by management for purposes of the evaluation of
ICFR.
2. Comments on the Proposal and Revisions Made
    The Commission received a number of comments on the proposed
guidance for identifying financial reporting risks and controls. As
discussed in Section III.B above, many of these commenters requested
more examples or more detailed guidance. Other comments received
related to the identification of fraud risks and related controls;
entity-level controls; and IT general controls.
Identification of Fraud Risks and Related Controls
    Commenters suggested the guidance be revised to more strongly
emphasize management's responsibility to identify and evaluate fraud
risks and the related controls that address those risks.\83\ Commenters
also discussed the nature of fraud risks that most often lead to
materially misstated financial statements and requested additional
guidance regarding which fraud related controls are within the scope of
the evaluation; \84\ whether management can consider the risk of fraud
through the overall risk assessment or if a specific fraud threat
analysis is required; \85\ and examples of the types of fraud that
should be considered.\86\ Other commenters noted that there is existing
guidance for management, beyond what was referenced in the proposal,
for assessing fraud risks and the related controls. These commenters
suggested that the proposal be revised to directly incorporate the most
relevant elements of such guidance.\87\
---------------------------------------------------------------------------

    \83\ See, for example, letters from ACE, ACCA, BDO, Center, CSC,
Deloitte & Touche LLP (Deloitte), GT, IMA, KPMG LLP (KPMG), M&P,
Moody's, and PwC.
    \84\ See, for example, letters from BASF, BDO, and GT.
    \85\ See, for example, letter from Tatum LLC (Tatum).
    \86\ See, for example, letters from FEI CCR, P&G, and N.
Stofberg.
    \87\ See, for example, letters from Center, GT, KPMG, and M&P.
---------------------------------------------------------------------------

    In response to the comments, the proposal was revised to clarify
that fraud risks are expected to exist at every company and that the
nature and extent of the fraud risk assessment activities should be
commensurate with the size and complexity of the company. Additionally,
we expanded the references to existing guidance to include the AICPA's
2005 Management Override of Internal Controls: The Achilles' Heel of
Fraud Prevention and COSO's July 2006 Guidance for Smaller Public
Companies. Given the availability of existing information and guidance
on fraud and consistent with the principles-based nature of the
interpretive guidance, we determined that it was unnecessary to provide
a list of fraud risks expected to be present at every company or a list
of the areas of financial reporting expected to have a risk of material
misstatement due to fraud. Moreover, providing such a list may result
in a ``checklist'' type approach to fraud risk assessments that would
likely be ineffective as financial reporting changes over time, or
given the wide variety of facts and circumstances that exist in
different companies and industries. While management may find such
checklists a useful starting point, effective fraud risk assessments
will require sound and thoughtful judgments that reflect a company's
individual facts and circumstances.
Entity-Level Controls
    Commenters requested further clarification of how entity-level
controls can address financial reporting risks in a top-down, risk
based approach.\88\ Commenters also suggested that the guidance place
more emphasis on entity-level controls given their pervasive impact on
all other aspects of ICFR.\89\
---------------------------------------------------------------------------

    \88\ See, for example, letters from EY, Frank, MetLife, and
UnumProvident.
    \89\ See, for example, letters from ACCA, ACE, Eli Lilly,
European Association of Listed Companies (EALIC), and PwC.
---------------------------------------------------------------------------

    In response to the comments received, we expanded the discussion of
entity-level controls and how they relate to financial reporting
elements. This discussion further clarifies that some entity-level
controls, such as controls within the control environment, have an
important, but indirect, effect on the likelihood that a misstatement
will be prevented or detected on a timely basis. While these controls
might affect the other controls management determines are necessary to
address financial reporting risks for a financial reporting element, it
is unlikely management will identify only this type of entity-level
control as adequately addressing a financial reporting risk. Further,
the guidance clarifies that some entity-level controls may be designed
to identify possible breakdowns in lower-level controls, but not in a
manner that would, by themselves, adequately address financial
reporting risks. In these cases, management would identify the
additional controls needed to adequately address financial reporting
risks, which may include those that operate at the transaction or
account balance level. Consistent with the proposal, management does
not need to identify or evaluate additional controls relating to a
financial reporting risk if it

determines that the risk is being adequately addressed by an entity-
level control.
    We have also revised the proposed guidance to further clarify that
the controls management identifies in Section II.A.1 should include the
entity-level and pervasive elements of its ICFR that are necessary to
have a system of internal control that provides reasonable assurance as
to the reliability of financial reporting. Management can use the
existing control frameworks and related guidance to assist them in
evaluating the adequacy of these aspects of their ICFR.
Information Technology General Controls
    Commenters expressed concern that the proposal's guidance on IT
general controls was too vague or that it lacked sufficient clarity
\90\ and requested further guidance and illustrative examples \91\ to
clarify the extent to which IT general controls are within the scope of
the ICFR evaluation.\92\ Commenters also suggested that the Commission
directly incorporate the May 16, 2005 Staff Guidance \93\ on IT general
controls \94\ and that we clarify that IT general controls alone,
without consideration of application controls, will not sufficiently
address the risk of material misstatement.\95\ One commenter noted that
providing such guidance could have the unintended consequence of
setting a precedent for providing more detailed guidance in other areas
of the evaluation.\96\
---------------------------------------------------------------------------

    \90\ See, for example, letters from Aerospace Industries
Association, MasterCard, and Nasdaq.
    \91\ See, for example, letter from Microsoft Corporation (MSFT).
    \92\ See, for example, letters from Faisal Danka, ISACA, MSFT,
Rod Scott, and The Travelers Companies, Inc. (Travelers).
    \93\ Division of Corporation Finance and Office of the Chief
Accountant: Staff Statement on Management's Report on Internal
Control Financial Reporting (May 16, 2005), available at http://www.sec.gov/spotlight/soxcom/.htm
.

    \94\ See, for example, letters from FEI CCR and P&G.
    \95\ See, for example, letter from IDW.
    \96\ See, for example, letter from ICAEW.
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    Commenters also suggested that we revise the proposal to clarify
how a top-down approach considers IT general controls,\97\ that we
encourage a ``benchmarking'' approach for evaluating automated
controls,\98\ and that we permit companies who implement IT systems
late in the year to do so while still being able to satisfy their ICFR
responsibilities.\99\
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    \97\ See, for example, letters from Cardinal and ISACA.
    \98\ See, for example, letter from CSC.
    \99\ See, for example, letter from Chamber.
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    We made several revisions to the proposed guidance based on the
comment letters. We revised the proposal to explain that the
identification of risks and controls within IT should be integral to,
and not separate from, management's top-down, risk-based approach to
evaluating ICFR and in determining the necessary supporting evidential
matter. We clarified that controls which address financial reporting
risks may be automated, dependent upon IT functionality, or require a
combination of both manual and automated procedures and that IT general
controls alone, without consideration of application controls,
ordinarily do not adequately address financial reporting risks. We also
incorporated guidance from the May 16, 2005 Staff Statement which
explains that it is unnecessary to evaluate IT general controls that
primarily pertain to efficiency or effectiveness of operations, but
which are not relevant to addressing financial reporting risks.
    We have declined to further specify categories or areas of IT
general controls that will be relevant to the ICFR evaluation for all
companies. We continue to believe that such determinations require
consideration of each company's individual facts and circumstances.
Moreover, we have concluded it is not necessary to include a discussion
of a ``benchmarking'' approach to evaluating automated controls. The
lack of such discussion in our guidance does not preclude management
from taking such an approach if they believe it to be both efficient
and effective.
    Additionally, we did not revise the proposed guidance to discuss
implementation of IT systems, or changes thereto, late in the year
because we do not believe such decisions should be impacted by the
requirement to evaluate and assess the effectiveness of ICFR. Even
without the evaluation and assessment requirements, the implementation
of an IT system late in the year does not change management's
responsibility to maintain a system of internal control that provides
reasonable assurance regarding the reliability of financial reporting.
Allowing an exclusion from the evaluation for controls placed in
operation late in the year could have the unintended consequence of
negatively impacting the reliability of financial reporting. Management
has the ability to mitigate the risk of material misstatement that
arises from ineffective controls in a new IT system. For example,
management may perform pre-implementation testing of the IT controls
needed to adequately address financial reporting risks. Additionally,
management may implement compensating controls, such as manual
reconciliations and verification, until such time that management has
concluded that the IT controls within the system are adequate.
Accordingly, we do not believe it is necessary or appropriate to
exclude new IT systems or changes to existing systems from the scope of
the evaluation of ICFR.

E. Evaluating Evidence of the Operating Effectiveness of ICFR

1. Summary of the Proposal
    Our proposal indicated that management should consider both the
risk characteristics of the financial reporting elements to which the
controls relate and the risk characteristics of the controls themselves
(collectively, ICFR risk) in making judgments about the nature and
extent of evidence necessary to provide a reasonable basis for the
assessment of whether the operation of controls is effective. The
proposal identified significant accounting estimates, related party
transactions and critical accounting policies as examples of financial
reporting areas that generally would be assessed as having a higher
risk of misstatement and control failure. However, the proposed
guidance recognizes that since not all controls have the same risk
characteristics, when a combination of controls is required to
adequately address the risks to a financial reporting element,
management should analyze the risk characteristics of each control
separately. Further, under the proposed guidance, when evaluating risks
in multi-location environments, management should generally consider
the risk characteristics of the controls related to each financial
reporting element, rather than making a single judgment for all
controls at a particular location when determining the sufficiency of
evidence to support its assessment.
    Our proposal indicated that the evidence of the operation of
controls that management evaluates may come from a combination of on-
going monitoring and direct testing and that management should vary the
nature, timing and extent of these based on its assessment of the ICFR
risk. Our proposal stated that this evidence would ordinarily cover a
reasonable period of time during the year and include the fiscal year-
end. The proposal also acknowledged that, in smaller companies, those
responsible for assessing the effectiveness of ICFR may, through their
on-going direct knowledge

and supervision of the operation of controls (that is, daily
interaction) have a reasonable basis to evaluate the effectiveness of
some controls without performing direct tests specifically for purposes
of the evaluation.
    The proposal explained that the evidential matter constituting
reasonable support for the assessment would generally include the basis
for management's assessment and documentation of the evaluation methods
and procedures for gathering and evaluating evidence. Additionally, the
proposal indicated that the nature of the supporting evidential matter,
including documentation, may take many forms and may vary based on
management's assessment of ICFR risk. For example, management may
determine that it is not necessary to maintain separate copies of the
evidence evaluated if such evidence already exists in the company's
books and records. The proposal also indicates that as the degree of
complexity of the control, the level of judgment required to operate
the control, and the risk of misstatement in the financial reporting
element increase, management may determine that separate evidential
matter supporting a control's operation should be maintained.
2. Comments on the Proposal and Revisions Made
    The Commission received a number of comments on the proposed
guidance for evaluating whether the operation of controls was
effective. As discussed in Section III.B above, many of these
commenters requested more examples or more detailed guidance. Other
comments received related to the appropriateness of various
``rotational'' approaches to evaluating evidence of whether the
operation of controls was effective; the nature of on-going monitoring
activities, including self-assessments and daily interaction; the time
period to be covered by evaluation procedures; and supporting
evidential matter.
Rotational Approaches to Evaluating Evidence
    Commenters requested that the guidance explicitly allow management
to rotate its evaluation of evidence of the operation of controls and a
variety of different approaches for doing so were suggested. These
approaches included, for example, a rotational approach for lower risk
controls,\100\ a rotational approach in areas where management
determines there are no changes in the controls since the previous
assessment,\101\ or a rotational approach where there is both lower
risk and no changes in controls.\102\ In addition, some suggested a
``benchmarking'' approach, similar to that used for IT controls, be
allowed for non-IT controls.\103\ Other commenters agreed with the
proposal's requirement that management consider evidence of the
operation of controls each year.\104\ Others noted that while they
believed it is appropriate for management to consider the results of
its prior year assessments, the guidance should make it clear that the
evaluation of operating effectiveness is an annual requirement.\105\
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    \100\ See, for example, letters from CSC, EALIC, ING,
MasterCard, and NYC Bar.
    \101\ See, for example, letters from P&G and Travelers.
    \102\ See, for example, letters from EEI and Supervalu.
    \103\ See, for example, letters from Eli Lilly and FEI CCR.
    \104\ See, for example, letters from CCMR, Deloitte, and KPMG.