At around this time last year, we were all wondering when the SEC’s financial information and MD&A rulemaking (which had been adopted in November 2020) was going to get published in the Federal Register so that issuers could figure out whether they could rely on the early compliance provisions for their upcoming annual reports. It was observed that, similar to the delays that we were all experiencing in late 2020 with the U.S. Postal Service, the Federal Register was experiencing some delays in publishing SEC releases, perhaps due to a flood of government-wide 11th hour rulemaking on the eve of a change in the Administration.
Last month, when the SEC proposed rule changes to Rule 10b5-1 and related disclosure items and proposed to expand share repurchase disclosures, there was some attention given to the relatively short comment periods for both proposals – they contemplated a 45-day comment period, rather than the more typical 60-day comment period, in each case running from the date of publication in the Federal Register. Given the almost month-long delay in publishing the proposing releases, commenters have already received a pretty generous period for preparing their comments, which will be extended by 45 days once publication in the Federal Register occurs.
It is not clear why the Federal Register process is taking so long. After the flood of rulemaking during 2020, the SEC did not issue very many releases requiring publication in the Federal Register during 2021, so we were not monitoring the timing closely until these new proposals emerged.
– Dave Lynn