For SEC, What's Old Is (Refreshed) Again

The U.S. Securities and Exchange Commission (SEC) on Jan. 4, 2023, released its Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions (Reg Flex Agenda). The SEC's Reg Flex Agenda is released semiannually and, notwithstanding the back-dated title, lists the rulemakings that the SEC plans to consider in the short- and long-term time frames.

The Fall 2022 Reg Flex Agenda is presented in the Appendix and is divided by rulemaking stage: 1) Proposed, 2) Final and 3) Adopted. Redlined text under the Rulemaking Stage and Action Date headings show changes since the publication of the Spring 2022 Reg Flex Agenda.

In addition, for each rulemaking, under the 1) Title heading is a hyperlink to the rule's webpage, which provides a brief description of the rulemaking identified and shows its progress; 2) Rule Release heading is a hyperlink to the respective rule's proposing release or adopting release (as applicable); and 3) Press Release heading is a hyperlink to the SEC press release accompanying each rule's proposal or adoption.

Below are some of the significant "proposed" and "final" rule stage rulemakings that the SEC is targeting for action in the first half of 2023.

Commentary

As has been noted by commentators, the SEC's Reg Flex Agenda is purely "aspirational"; there is no consequence for the SEC missing a "target" deadline, which it seems to do more often than not. Nevertheless, the Reg Flex Agenda has some value to practitioners because it is the only published indication of the SEC's rulemaking priorities. Further, there is some value in observing the length of any change in a rulemaking's "action" date and any other changes since the prior Reg Flex Agenda.

While all but one rulemaking with an October 2022 action date was pushed back at least to April 2023, it is interesting to note the order of the "proposed" and "final" rule stage rulemakings that have an April 2023 action date. The final stage rulemakings listed first (i.e., Climate Change Disclosure, Cybersecurity Risk Governance, Special Purpose Acquisition Companies, Modernization of Beneficial Ownership Reporting, Share Repurchase Disclosure Modernization, Rule 14a-8 Amendments) are generally considered significant rule proposals. In particular, the Climate Change Disclosure rule proposal is regarded as potentially one of the most significant increases in disclosure obligations in decades and has been met with a polarized reaction.

It is also interesting to note rulemakings for which the action date was pushed back one year, rather than six months (e.g., Rule 14a-8 Amendments). Such a change indicates a shift to a relatively lower priority in comparison to other rulemakings that had a similar action dates at the publication of the Spring 2022 Reg Flex Agenda.

Continuing its recent rulemaking cadence, it is expected that the Gary Gensler-led SEC will propose or adopt several of the significant rulemakings listed on the Fall 2022 Reg Flex Agenda in the first six months of 2023. If recent past is prologue, one should also expect that such rulemakings will employ more prescriptive, rather than principles-based, measurement criteria and disclosure requirements. Registrants will need to stay abreast of the rulemakings and ensure that they are prepared for any new reporting obligations.

How We Can Help

If you have any questions regarding the SEC's Reg Flex Agenda or need guidance on reporting obligations, please contact the authors or another member of Holland & Knight's Public Companies and Securities Team or Securities Enforcement Defense Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.