The SEC has published its semi-annual Spring 2025 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) Prerule Stage; (ii) Proposed Rule Stage; (iii) Final Rule Stage; and (iv) Long-term Actions. The Prerule, Proposed and Final Rule Stages are intended to be completed within the next 12 months and Long-term Actions are anything beyond that. In what is the shortest Agenda I have seen, the number of items to be completed in a 12-month time frame is 23, down from 30 on the Fall 2024 Agenda which itself was down from the 40+ average items.
Three items are included in the prerule stage. Recategorized from proposed to prerule are changes to the Foreign Private Issuer’s regulatory regime, including eligibility and reporting obligations. The SEC has published a concept release and request for comment on Foreign Private Issuers which I will be blogging about soon and which will provide some insight into the changes that are being considered. I also recently wrote a series of blogs detailing FPI reporting requirements – see HERE; HERE; HERE; and HERE.
New to the Agenda and in the prerule stage are asset backed securities registration and disclosure enhancements. The SEC is considering seeking public comment on potential regulatory changes to facilitate registered offerings of asset-backed securities, including mortgage-backed securities, and other improvements to the securitization markets.
Also new to the Agenda and in the prerule stage is an evaluation of the continued effectiveness of the consolidated audit trail. The SEC is considering seeking public comment to inform a comprehensive rethink of the Consolidated Audit Trail (CAT), including its design and functionality and the scope of collected information, to assess potential modifications to CAT to address ongoing cost and data security concerns while supporting clearly defined regulatory objectives. While this Agenda item was added, the prior final rule stage amendments to the CAT have dropped off completely.
Eighteen items are included in the proposed rule stage including an unprecedented 16 new items and several bolted on crypto asset aspects to existing Agenda topics. Brand new to the Agenda and in the proposed rule stage are rules relating to the offer and sale of crypto assets, potentially to include certain exemptions and safe harbors and to help clarify the regulatory framework for crypto assets. The SEC has been making in-roads in the crypto markets under the new administration, though through guidance at this point. New rules would be welcome throughout the industry.
Also new to the Agenda are enhancements to emerging growth company (EGC) accommodations and simplifications to filer status for reporting companies. The SEC is considering expanding accommodations that are available to EGCs and to rationalize filer statuses to simplify categorizations and reduce compliance burdens. To determine filer status, a company, or its counsel, must complete a flow chart type analysis that can result in overlapping results and is generally complicated. For more on EGC’s see HERE. For more on determining filer status see HERE .
Adding to new Agenda topics are proposed rule amendments to the shelf registration process to reduce compliance burdens and facilitate capital formation. A shelf registration statement is one filed on Form S-3 or F-3 and is one of the most important tools for public company capital formation. For more on Form S-3 see HERE and on F-3 see HERE.
A further new Agenda item is an update to the exempt offering pathways. The SEC is considering proposing rule amendments simplify access to capital for private companies. The SEC previously enacted sweeping changes to the exempt offering structure in November 2020 – for my five part blog series on those changes see HERE; HERE; HERE; HERE; and HERE. For recent guidance on determining accredited investor status see HERE; and HERE.
Continuing the plethora of new Agenda items are proposed rule amendments to rationalize disclosure practices to facilitate more material disclosures and shareholder access to such information. The disclosure rules (Regulation S-K) have undergone a fairly constant series of changes over the years – sometimes for the better and sometimes not. Fortunately, the heady proposed climate disclosure rules are off the table, and it is likely that any new rules under this administration will improve the disclosure process aligning rules with the SEC’s overarching purpose of providing material information for an investment community (as opposed to playing whack-a-mole with each new social trend).
Another new item on the Agenda is potential rule amendments to modernize the requirements of Exchange Act Rule 14a-8 to reduce compliance burdens for companies. Rule 14a-8 has been subject to a back and forth of rule changes and guidance under each administration over the years. For a summary of latest on the rule, including Staff Legal Bulletin 14M, see HERE.
New to the Agenda are updates to the “small entity” definition for purposes of the Regulatory Flexibility Act. The SEC is considering proposed amendment to update the definition of “small entity” under the Investment Advisers and Investment Company Acts of 1940 to increase the asset-based thresholds under the definitions of “small business” and “small organization.” Also new to the Agenda are potential amendments to Form N-PORT for registered investment companies and amendments to rule 17a-7 under the Investment Company Act. The proposed rule 17a-7 amendments would expand the availability of the exemption of certain purchase and sale transactions between an investment company and certain affiliated persons. Another new item on the Agenda, and related to investment companies, are proposed amendments to the custody rule to improve regulations around the custody of advisory client and fund assets, including to address the custody of crypto assets.
In what could result in a huge boost to OTC Markets securities, and brand new to the Agenda, are proposed changes to Rule 15c2-11 to add additional exemptions and allow for the publication or submission of quotations without specified information. The SEC revamped the 15c2-11 rules in September 2020 – see HERE and HERE. Following an increase in eligibility requirements related to Nasdaq IPOs (see HERE), the creation of the OICID (see HERE) and the end of years of “dealer litigation” (see HERE, OTC Markets is in line for a long-awaited resurgence.
Continuing the trend of new Agenda items in the proposed rule stage are amendments to the broker-dealer financial responsibility, recordkeeping and reporting rules. The SEC is considering amending several rules to address the application of crypto assets in the broker dealer ecosystem. Similarly, and new to the Agenda, the SEC is proposing rules to account for the trading of crypto assets on ATSs and national securities exchanges.
Although amendments to Regulation NMS are always on the Agenda, new to this Agenda and in the proposed rule stage are amendment to Regulation NMS Rule 611 which in essence promotes intermarket price protection of orders by restricting the execution of trades on one venue at prices that are inferior to displayed quotations at another venue.
Following the end of years of “dealer litigation” (see HERE) and a somewhat innocuous change to the definition of “dealer” which was then struck down by a court (see HERE), the SEC is once again proposing amendments regarding the scope of, and exceptions from, the term “dealer.”
The last of the 16 new Agenda items on the proposed rule list are proposed targeted amendments designed to enhance transparency and regulatory oversight with respect to U.S. government securities, as well as repurchase and reverse repurchase agreements on U.S. government securities.
Still in the proposed rule stage are the controversial amendments to Rule 144. 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. Interestingly, on the new Agenda, the proposed Rule 144 changes would “increase instances in which the safe harbor is available.” Nothing more has been published on the specific amendments as of yet.
Moving from a long-term action item to the proposed rule stage are amendments to the transfer agent rules. The SEC is proposing to update the regulatory regime for transfer agents including rules relating to crypto assets and the use of distributed ledger technology by transfer agents.
The newest Agenda has only 2 items in the final rule stage, down from 17 on the Fall list. Remaining in the final rule stage are proposed rules to establish data standards to promote interoperability of financial regulatory data across numerous agencies including the Office of the Comptroller of the Currency, Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, National Credit Union Administration, Consumer Financial Protection Bureau, Federal Housing Finance Agency, Commodity Futures Trading Commission, Securities and Exchange Commission, and Department of the Treasury.
The second item, and remaining in final rule stage, are proposed rules to include certain investment advisors as “financial institutions” under the Bank Secrecy Act such that these advisors will need to implement procedures to verify the identities of their customers. The proposed rule is an extension of the “know your customer” philosophy but in this case designed to intercept and obstruct terrorism. Also moving from proposed to final is amendments to Regulation ATS to modernize the conditions to the ATS exemption for all ATSs.
Only 2 items are listed as long-term actions as well. Still on the long-term list are proposed credit rating agency amendments to add conflicts of interest and other transparency disclosures. Moving from proposed to a long-term item are incentive-based compensation arrangements related to financial institutions with $1 billion or more in total assets.
As interesting as the current Agenda is the plethora of items dropped from the list. Without making this blog twice as long, a few examples of dropped items include anything related to ESG such as human capital disclosures and proposed amendments to the Investment Advisers Act of 1940 and Investment Company Act of 1940 to require investment companies and investment advisers to provide additional information regarding their ESG investment practices.
Other items dropped include disclosure of payments by resource extraction issuers; Revisions to the definition of securities held of record under Exchange Act Section 12(g); digital engagement practices for broker-dealers and investment advisors including gamification; all cyber-security related items; and all security-based swap items.
The Author
Laura Anthony, Esq.
Founding Partner
Anthony, Linder & Cacomanolis
A Corporate and Securities Law Firm
Securities attorney Laura Anthony and her experienced legal team provide ongoing corporate counsel to small and mid-size private companies, public companies as well as private companies going public on the Nasdaq, NYSE American or over-the-counter market, such as the OTCQB and OTCQX. For more than two decades Anthony, Linder & Cacomanolis, PLLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker-dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions, securities token offerings and initial coin offerings, Regulation A/A+ offerings, as well as registration statements on Forms S-1, S-3, S-8 and merger registrations on Form S-4; compliance with the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers; applications to and compliance with the corporate governance requirements of securities exchanges including Nasdaq and NYSE American; general corporate; and general contract and business transactions. Ms. Anthony and her firm represent both target and acquiring companies in merger and acquisition transactions, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. The ALC legal team assists Pubcos in complying with the requirements of federal and state securities laws and SROs such as FINRA for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the small-cap and middle market’s top source for industry news, and the producer and host of LawCast.com, Corporate Finance in Focus. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.
Ms. Anthony is a member of various professional organizations including the Crowdfunding Professional Association (CfPA), Palm Beach County Bar Association, the Florida Bar Association, the American Bar Association and the ABA committees on Federal Securities Regulations and Private Equity and Venture Capital. She is a supporter of several community charities including the American Red Cross for Palm Beach and Martin Counties, Susan Komen Foundation, Opportunity, Inc., New Hope Charities, the Society of the Four Arts, the Norton Museum of Art, Palm Beach County Zoo Society, the Kravis Center for the Performing Arts and several others.
Ms. Anthony is an honors graduate from Florida State University College of Law and has been practicing law since 1993.
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