On October 7, 2022, the SEC reopened the comment period for a dozen proposed rules “[d]ue to a technological error.” As a result of this error, “a number of public comments submitted through the Commission’s internet form for the submission of comment letters were not received by the Commission and therefore were not posted in the relevant comment file.” Comments can be filed from October 7 until two weeks after the SEC’s order is published in the Federal Register—a date that has yet to be established.
The proposed rules reopened for comment are as follows.
- Reporting of Securities Loans (Release No. 34-93613; File No. S7-18-21) (Dec. 8, 2021)
- Prohibition Against Fraud, Manipulation, or Deception in Connection with Security-Based Swaps; Prohibition against Undue Influence over Chief Compliance Officers; Position Reporting of Large Security-Based Swap Positions (Release No. 34-93784; File No. S7-32-10) (Feb. 4, 2022)
- Money Market Fund Reforms (Release No. IC34441; File No. S7-22-21) (Feb. 8, 2022)
- Share Repurchase Disclosure Modernization (Release Nos. 34-93783, IC-34440; File No. S7-21-21) (Feb. 15, 2022)
- Short Position and Short Activity Reporting by Institutional Investment Managers (Release No. 34-94313; File No. S7-08-22) (Mar. 16, 2022); see also Notice of the Text of the Proposed Amendments to the National Market System Plan Governing the Consolidated Audit Trail for Purposes of Short Sale-Related Data Collection (Release No. 34-94314; File No. S7-08-22) (Mar. 16, 2022)
- Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure (Release Nos. 33-11038, 34-94382, IC-34529; File No. S7-09-22) (Mar. 23, 2022)
- Private Fund Advisers; Documentation of Registered Investment Adviser Compliance Reviews (Release No. IA-5955; File No. S7-03-22) (Mar. 24, 2022)
- The Enhancement and Standardization of Climate-Related Disclosures for Investors (Release Nos. 33-11042, 34-94478; File No. S7-10-22) (Apr. 11, 2022)
- Special Purpose Acquisition Companies, Shell Companies, and Projections (Release Nos. 33-11048, 34-94546, IC-34549; File No. S7-13-22) (May 13, 2022)
- Investment Company Names (Release Nos. 33-11067, 34-94981, IC-34593; File No. S7-16-22) (June 17, 2022)
- Enhanced Disclosures by Certain Investment Advisers and Investment Companies About Environmental, Social, and Governance Investment Practices (Release Nos. 33-11068, 34-94985, IA-6034, IC-34594; File No. S7-17-22) (June 17, 2022)
- Request for Comment on Certain Information Providers Acting as Investment Advisers (Release Nos. IA-6050, IC-34618; File No. S7-18-22) (June 22, 2022)
According to the SEC: “The majority of the affected comments were submitted in August 2022; however, a relatively small number of affected comments date from earlier months, and the technological error is known to have occurred as early as June 2021.” In light of this, I find it a bit odd that the comment periods for half of these proposed rules closed in the interval from March through May.
This may reflect the fact that people routinely file comments after the close of the comment period, and the error may have prevented some of these comments from being filed. But I had an experience consistent with this error when I filed a comment letter in mid-April. I was monitoring the proposal, so I regularly checked for new comments and could not find mine posted. After several weeks I resent the comments via e-mail, explaining that this might be a duplication. About a week later, my comment showed up, with my original filing date.
Always Check Your Comments
I expect that anyone who intended to comment on these proposals has already done so, so I doubt people will scramble to draft a new comment letter during this period. But I would suggest that anyone who filed a comment this year using the SEC’s internet form confirm that the comment has been posted on the SEC’s website. As my experience illustrates, commenters should always check to confirm their comments have been posted.