Surprise!  The SEC has just reopened a slew of comment periods! Late Friday, the SEC announced that, as a result of a technical error, it had not received a number of electronically submitted comments for at least 11 rulemaking proposals.  Accordingly, it is reopening the comment periods for those identified proposals for an additional two weeks. Presumably, that also means that none of the affected proposals will be considered for adoption for at least two more weeks as the staff takes into account the new comments—pushing some of those proposals beyond their target dates in the Spring agenda. (See the “Octobers” on the agenda in this PubCo post.) Big exhale or big disappointment, depending on your point of view! What’s more, it turns out that some major proposals were affected, including the climate disclosure proposal. (You recognize, of course, that that means there were actually more than 4,000 unique comments on the climate proposal!) The announcement advises that everyone who submitted a public comment letter on one of the affected proposals through the SEC’s internet comment form between June 2021 and August 2022 should check the relevant comment file on to determine whether their comment letters were received and posted. If your letter has been posted, you can just relax. If it has not been posted, you should resubmit it. The reopening release provides instructions on how to resubmit comments electronically or on paper, which are pretty much the same way you could submit them in the first place, so good luck with that.

The SEC notes that most of the affected comments were submitted in August 2022, but some comments may have been affected as early as June 2021. The comment periods will be reopened for all of the affected proposals until 14 days after the date of publication of the reopening release in the Federal Register.

The SEC observed that “the vast majority” of the comments submitted have been received. However, the SEC has so far identified 11 proposals (and a request for comment) that were potentially affected by the technological error, including the following:

  • Share Repurchase Disclosure Modernization, Release Nos. 34-93783, IC-34440 (Feb. 15, 2022) (See this PubCo post.)
  • Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure, Release Nos. 33-11038, 34-94382, IC-34529 (See this PubCo post.)
  • The Enhancement and Standardization of Climate-Related Disclosures for Investors Release Nos. 33-11042, 34-94478 (See this PubCo postthis PubCo post and this PubCo post.) 
  • Special Purpose Acquisition Companies, Shell Companies, and Projections, Release Nos. 33-11048, 34-94546, IC-34549 (See this PubCo post.) 

Proposals regarding securities loans, securities-based swaps, money market funds, short-position reporting, private fund advisers, investment company names, and ESG disclosures by investment companies, as well as a request for comment on information providers acting as investment advisers, were also affected.  The technological error also may have affected certain comments with respect to a number of SRO matters.

Posted by Cydney Posner