On December 6, 2023, the SEC published its semi-annual Fall 2023 regulatory agenda (“Agenda”) and plans for rulemaking. The Agenda is published twice a year, and for several years I have blogged about each publication. Although items on the Agenda can move from one category to the next, be dropped off altogether, or new items pop up in any of the categories (including the final rule stage), the Agenda provides valuable insight into the SEC’s plans and the influence that comments can make on the rulemaking process.
The Agenda is broken down by (i) Proposed Rule Stage; (ii) Final Rule Stage; and (iii) Long-term Actions. The Proposed and Final Rule Stages are intended to be completed within the next 12 months and Long-term Actions are anything beyond that. The number of items to be completed in a 12-month time frame is 43, down from 55 on the Spring 2023 Agenda.
Fourteen items are included in the proposed rule stage, down from the 18 on the Spring 2023 list and 23 on the Fall 2022 list. Brand new to the Agenda and appearing on the proposed rule list is a multi-agency joint rulemaking proposal to establish data standards for the collection of information reported to each agency by financial entities under their jurisdiction, and the data collected from the agencies on behalf of the Financial Stability Oversight Council (FSOC).
Still on the proposed list in the ESG category are corporate board diversity and human capital disclosure. Although the SEC enhanced human capital disclosure requirements as part of its Item 101 of Regulation S-K (description of business) amendments, it is considering rule amendments to further enhance the disclosure requirements. For a discussion on the evolving human capital disclosure requirements, see HERE. Corporate board diversity is another hot topic and Nasdaq adopted its own board diversity rules in August 2021 – see HERE). Although the compliance deadline to add diverse directors was extended to December 31, 2023 (see HERE), the diversity matrix disclosure requirement has been in place for two years now. For more on the matrix, including practice tips, see HERE.
Remaining on the proposed list are amendments to requirements for filer validation and access to the EDGAR filing system and simplification of EDGAR filings which proposed rules were published in September 2023 (see HERE.) Also remaining on the proposed list are changes to Regulation D and Form D, including updating the financial thresholds in the accredited investor definition and “improving protections for investors.” I note that in August 2020, the SEC updated the definition of an accredited investor and specifically decided not to increase the financial thresholds (see HERE).
Still in the proposed rule stage are the controversial amendments to the Rule 144 holding period and Form 144 filings. In December 2020, the SEC surprised the marketplace by proposing amendment to Rule 144, which would prohibit the tacking of a holding period upon the conversion of variably priced securities (see HERE). The responsive comments have been overwhelmingly opposed to the change. Many of the opposition comment letters are very well thought out and illustrate that the proposed change by the SEC may have been a knee-jerk reaction to a perceived problem in the penny stock marketplace. I wholly oppose the rule change and hope the SEC does not move forward. For more on my thoughts on the damage this change can cause, see HERE
As I have blogged about many times, the SEC has been revisiting many rules that were implemented by the prior administration and facing legal challenges to rules adopted by this administration. In that regard, the disclosure of payments by resource extraction issuers (proposed rules published in December 2019 – see HERE) and finalized in December 2020 (see HERE) was moved to the proposed list in Spring 2022 indicating a revisit and has remained there since. However, as time goes by, it may be losing priority interest.
Revisions to the definition of securities held of record also remain on the proposed list. Any proposal would relate to the definition for purposes of Section 12(g) of the Exchange Act. For a review of the current rule, see HERE.
Other items still on the proposed list include incentive-based compensation arrangements related to financial institutions with $1 billion or more in total assets; fund fee disclosure and reform for registered investment companies (which was new to the Agenda in Spring 2022); rules to enable issuers of index-linked annuities to register on a form tailored specifically to registered index-linked annuities; exchange-traded products (which has been on the list for years); amendments to Regulation ATS to modernize the conditions to the ATS exemption for all ATSs; and rule changes to address concerns with national securities exchange volume-based transaction pricing in NMS stocks by requiring exchanges to make periodic public disclosures about those pricing models.
The newest Agenda has 29 items in the final rule stage, down from 37 on the Spring list. Several rules relate to environmental, social and governance (ESG) matters, including enhanced disclosures by investment companies and investments advisors addressing environmental, social and governance factors.
One of the biggest ticket items appearing on the Agenda and remaining in the final rule stage is the ESG centered climate change disclosure. On March 21, 2022, the SEC proposed rules that would require publicly reporting companies to include certain climate-related disclosures in their registration statements and periodic reports. The rules are extremely robust and resulted in my longest blog series to date – eight segments. I will not bore my regular readers with a rehash – but the entire series can be read here – Part 1 – HERE; Part 2 – HERE; Part 3 – HERE; Part 4 – HERE; Part 5 – HERE; Part 6 – HERE; Part 7 – HERE; and Part 8 – HERE.
Another big-ticket item, special purpose acquisition companies (SPACs), remains in the final rule stage. On March 30, 2022, the SEC proposed rules enhancing disclosure requirements associated with SPAC initial public offerings (IPOs) and de-SPAC merger transactions; requiring that a private operating company be a co-registrant when a SPAC files an S-4 or F-4 registration statement associated with a business combination; requiring a re-determination of smaller reporting company status within four days following the consummation of a de-SPAC transaction; amending the definition of a “blank check company” to make the liability safe harbor in the Private Securities Litigation Reform Act of 1995 for forward-looking statement such as projections, unavailable in filings by SPACs and other blank check companies; and deeming underwriters in a SPAC IPO to be underwriters in a de-SPAC transaction when certain conditions are met. I wrote a six-part in-depth review of the proposed rules which can be read here – Part 1- HERE; Part 2 – HERE; Part 3 – HERE; Part 4 – HERE; Part 5 – HERE; and Part 6 – HERE.
Also remaining in final rule stage are amendments to the rules regarding the thresholds for shareholder proxy proposals under Rule 14a-8 which the SEC proposed in July 2022 (see HEREl). This topic has been painful for the regulatory system and market participants alike. After years of discussion and debate, the SEC adopted much-needed rule changes in September 2020 (see HERE) but then issued new guidance that wiped out the three prior published guidance bulletins – see HERE.
In a perfect example of how regulatory matters can jump around, in the final rule stage are amendments to the custody rules for investment advisors which moved from proposed to final in Spring and which have previously moved from proposed to long-term, back to proposed, back to long-term then on proposed for a full year before now jumping back to the final rule stage.
Holding steady in the final rule stage is equity market structure reform, including related to payment for order flow, order routing, conflicts of interest, best execution, market concentration, and the disclosure of best execution statistics. Gary Gensler gave a heads-up that this was a priority in his May 6, 2021 speech to the House Financial Services Committee (see HERE).
Continuing in the final rule stage are prohibitions of conflicts of interest relating to certain securitizations; open-end fund liquidity and dilution management; rules to enhance fund and investment adviser disclosures and governance relating to cybersecurity risks; amendments to require that market entities, including broker-dealers, clearing agencies and national exchanges, address cybersecurity risks, to improve the SEC’s ability to obtain information about significant cybersecurity incidents impacting market entities, and to improve transparency about cybersecurity risk in the U.S. securities markets; amendments to Form PF to require current reporting and amending the reporting requirements for large private equity advisers and large liquidity fund advisers and similar amendments for all filers; the matter of outsourcing by investment advisors and rules related to the oversight of third-party service providers; and changes to expand the clearing of government securities, including requiring written policies and procedures reasonably designed to require that every direct participant of the covered clearing agency submit for clearance and settlement all eligible secondary market transactions in U.S. Treasury securities to which it is a counterparty.
Also still in the final stage are cybersecurity risk governance, including potential amendments to Regulation S-P and Regulation SCI for broker-dealers and other registered market participants (for more on Regulation SCI, see HERE); conflicts of interest for clearing agencies of security-based swaps including regarding the registration and regulation of security-based swap execution facilities (“SBSEFs”); rules related to the disclosure of order execution; amendments to the NMS Plan for the consolidated audit trail data security; and the electronic filing of broker-dealer annual reports, financial information sent to customers, and risk-assessment reports and the electronic filing by clearing agencies and security-based swap entities.
Amendments to Regulation ATS for the registration of and reporting by alternative trading systems (ATS) for government securities are still on the final rule list, as are amendments to Exchange Act Rule 3b-16 regarding the definition of “Exchange” which were proposed in April 2023. Also still on the final rule list are amendments to Regulation NMS to prohibit a restricted competition trading center from internally executing certain orders of individual investors at a price unless the orders are first exposed to competition at that price in a qualified auction operated by an open competition trading center. The rule would also include limited exceptions to this general prohibition.
Amendments to the definition of dealers are still in the final rule stage. Proposed rules were published in March 2022 – see HERE. Also still in the final rule stage are amendments to certain rules of Regulation NMS to adopt variable minimum pricing increments for the quoting and trading of NMS stocks, reduce the access fee caps, and enhance the transparency of better-priced orders. I note that many of the final rules in this Agenda relate to order flow, clearing, execution and disclosure by broker-dealers and clearing firms.
Also holding steady on the final rule list are amendments related to the prohibition against fraud, manipulation, and deception in connection with security-based swaps and disclosure of security-based swap positions; and rules addressing and registration and regulation of security-based swap execution facilities.
Moving up from the proposed list to the final rule stage are amendments to the exemption for internet advisers from the prohibition against registration under the Investment Advisers Act of 1940; clearing agency recovery and wind-down plan; and amendments to Rule 15c3-3 (the customer protection rule) to require that certain large broker-dealers compute their customer and PAB reserve deposit requirements daily rather than weekly.
Also moving from proposed to the final rule stage is digital engagement practices for broker-dealers and investment advisors – i.e., gamification. Under the gamification category, the SEC is considering seeking public comment on potential rules gamification, behavioral prompts, predictive analytics, and differential marketing. Gary Gensler has been vocal about his concerns with gamification – see, for example HERE.
Just like in Spring, only seven items are listed as long-term actions. Continuing their tenure on the long-term action list is conflict minerals amendments; additional proxy process amendments; amendments to Rules 17a-25 and 13h-1 following creation of the consolidated audit trail (part of Regulation NMS reform); portfolio margining of uncleared swaps and non-cleared security-based swaps; and credit rating agencies’ conflicts of interest and transparency.
Amendments to the transfer agent rules also continue on the long-term list. It has been four years since the SEC published an advance notice of proposed rulemaking and concept release on new transfer agent rules (see HERE). Former SEC top brass suggested that it would finally be pushed over the finish line last year, but so far it remains stalled (see, for example, HERE).
Per usual, several items fell off the list either because they are no longer a priority or the rulemaking process has been completed.
Notably, amendments to beneficial ownership reporting under Section 13 which were proposed in March, 2022 – see HERE were completed and removed from the list (final rule blog coming soon). The amendments accelerate the filing deadlines for Schedules 13D beneficial ownership reports from 10 days to 5 calendar days and require that amendments be filed within two business day; generally accelerate the filing deadlines for Schedule 13G beneficial ownership reports (which differ based on the type of filer); extend the filing deadline to 10:00 p.m. EST; expand the application of Regulation 13D-G to certain derivative securities; clarify the circumstances under which two or more persons have formed a “group” that would be subject to beneficial ownership reporting obligations; provide new exemptions to permit certain persons to communicate and consult with one another, jointly engage issuers, and execute certain transactions without being subject to regulation as a “group”; and require that Schedules 13D and 13G be filed using XBRL.
Further amendments to exempt offerings, including Rule 701 and the integration rules, disappeared in Spring 2022 and remain off the list. In 2018 the SEC amended Rule 701 and issued a concept release seeking comment on potential further proposals (see HERE and HERE). Potential amendments to the reporting on proxy votes on executive compensation (i.e., say-on-pay – see HERE) remain off the priority list.
Likewise, final cybersecurity risk governance and disclosure rules were adopted and thus removed from the Agenda – see HERE. Also adopted and removed from the list is company securities lending arrangements. This rule implements Section 984(b) of the Dodd-Frank Act. Section 984 of the Dodd-Frank Act provides the SEC with the authority to increase transparency with respect to the loan or borrowing of securities. The SEC proposed a rule to increase the transparency and efficiency of the securities lending market by requiring any person that loans a security on behalf of itself or another person to report the material terms of those securities lending transactions and related information regarding the securities the person has on loan and available to loan to a registered national securities association (“RNSA”).
Revisions to -i.e. a re-write of – the Privacy Act (i.e., Freedom of Information Act or “FOIA”) to update and simplify the processes for submitting and receiving responses to Privacy Act inquiries, requests, and administrative appeals were finalized and dropped from the Agenda (see HERE.)
Laura Anthony, Esq.
Anthony, Linder & Cacomanolis, PLLC
A Corporate Law Firm
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