On November 20, 2023, the staff of the U.S. Securities and Exchange Commission (“SEC”) issued two new compliance and disclosure interpretations (“C&DIs”) on filing fees and XBRL exhibits. These C&DI’s are summarized below, with links to the full text provided.

Filing Fees

New Question 239.02 explains that, when a well-known season issuer that has registered securities on an automatic shelf registration statement and deferred payment of filing fees pursuant to Rule 456(b), subsequently files, in a shelf takedown, a prospectus supplement along with the required filing fee exhibit, then that Table 1 filing fee exhibit must include securities for which a deferred fee is being paid in Table 1’s “Fees to Be Paid” lines.  However, the issuer does not need to repeat in Table 1 previously included rows reflecting the registration of securities that were already paid or will be paid in an indeterminate amount in reliance on Rule 457(r).  In addition, the issuer does not need to include in the “fees previously paid” line of the filing fee exhibit, previously paid fees for securities that are part of (i) the same offering or (ii) any prior offering.

XBRL Exhibits

Item 601(a)(2) of Regulation S-K provides that an exhibit index does not need to include a hyperlink to an exhibit that is filed in XBRL.  New Question 146.18 clarifies that this exception does not apply to exhibits that are filed in Inline XBRL.  Item 601(a)(2) references exhibits filed in XBRL that are also filed in unconverted code, which is only machine-readable. In contrast, exhibits tagged in Inline XBRL are not filed in unconverted code and, therefore, cannot rely on the exception provided in Item 601(a)(2).