Comment Period Reopened for Climate and Cybersecurity Proposals, Among Others

3 minute read | October.17.2022

On Friday, October 7, 2022, the Securities and Exchange Commission (the “SEC”) reopened the public comment periods for eleven rulemaking proposals and one request for comment due to a technical error that prevented the SEC from receiving a number of electronically submitted comments. In a press release, the SEC noted that most of the affected comments were submitted in August 2022, but some affected comments may date back to as early as June 2021. As a result, none of the affected proposals will be considered for adoption until after fourteen days after the date of publication of the resubmission notice in the Federal Register. As of October 17, 2022, the resubmission notice has not yet been published, so the earliest date comments could be due is October 31, 2022.  Several major proposals were affected, including the SEC’s climate-related disclosure proposal, which we discuss here and here, and the SEC’s cybersecurity-related disclosure proposal, which we discuss here.

Proposals Affected:

The SEC has thus far identified eleven proposals and one request for comment that were potentially affected by the technical error, which include proposals regarding share repurchase disclosure modernization, cybersecurity disclosures, climate disclosures, special purpose acquisition companies and projections, reporting of securities loans, malfeasance related to securities-based swaps, money market fund reforms, short-position reporting by institutional investors, 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.  The technical error also may have affected certain comments with respect to a number of self-regulatory organization matters.

Actions to Take:

If you submitted a public comment letter on one of the affected proposals through the SEC’s internet comment form between June 2021 and August 2022, the SEC has advised that you check the relevant comment file on the SEC’s website to determine whether your comment letter was received and posted. If your letter was posted, no further action is required. If your letter was not posted, you are should resubmit it. The reopening release provides instructions on how to resubmit comments electronically or on paper, which is in the same manner as they could have originally been submitted. Indeed, the notice does not restrict submissions to those subject to the technical glitch, so if you would like to submit new or revised comments, you may do so in this time period as well. 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.

What Do We Expect:

In what has already been a busy period for an SEC that is tackling a fulsome 2022 agenda, this reopening requires delay to the contentious and highly-anticipated release of final rules in connection with climate-related disclosures. The SEC had previously targeted October 2022 for the release of final climate rules, which many had considered a quick turnaround given the thousands of unique comment letters which had continued to arrive even after the closing of the previous comment period in June 2022. While this delay may slow the SEC down somewhat, we see no indication that it has relaxed its approach to issuing these and other rules.

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