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The SEC on Oct. 7, 2022, reopened the comment period for 11 rule
making proposals, one request for comment and eight Self-Regulatory
Organization (SRO) matters – all due to a technical error.
This glitch likely throws a wrench in the SEC’s push to speed up the rulemaking process.
In August 2022, commenters noticed their submissions –
made through the SEC’s website – were not posted on the
proposed rule’s page. After market participants informed SEC
staff of the issue, the SEC discovered the problem: When comment
letters were submitted on the website as an attachment, the letter
attachment was not sent to the Office of the Secretary, where the
comment letters are processed. Although the SEC insists the glitch
mainly impacted comments submitted in August 2022, the error was
found to have occurred as early as June 2021. The SEC estimates
almost 200 comment letters were lost due to the technical error, a
small fraction of the more than 25,000 unique comment letters and
more than 45,000 form comment letters the agency received during
the relevant time period.
The 12 affected releases are listed below, along with helpful
insights from Holland & Knight’s Securities Enforcement Defense Team on key
proposals:
- Release No. 34-93613, Reporting of Securities Loans,
Dec. 8, 2021 - Release No. 34-93784, 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,
Feb. 4, 2022 - Release No. IC-34441, Money Market Fund Reforms, Feb.
8, 2022 - Release Nos. 34-93783, Share Repurchase Disclosure
Modernization, Feb. 15, 2022 - Release No. 34-94313, Short Position and Short Activity
Reporting by Institutional Investment Managers, March 16,
2022; see also Release No. 34-94314, 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, March 16, 2022 -
- Release No. 33-11038, Cybersecurity Risk Management,
Strategy, Governance, and Incident Disclosure, March 23,
2022 -
- Release No. IA-5955, Private Fund Advisers; Documentation
of Registered Investment Adviser Compliance Reviews, March 24,
2022 - Release No. 33-11042, The Enhancement and Standardization
of Climate-Related Disclosures for Investors, April 11,
2022 -
- Release No. 33-11048, Special Purpose Acquisition
Companies, Shell Companies, and Projections, May 13, 2022 -
- Release No. 33-11067, Investment Company Names, June
17, 2022 -
- Release No. 33-11068, Enhanced Disclosures by Certain
Investment Advisers and Investment Companies About Environmental,
Social, and Governance Investment Practices, June 17,
2022 -
- Release Nos. IA-6050, Request for Comment on Certain
Information Providers Acting as Investment Advisers, June 22,
2022
Although the SEC has recovered almost 90 percent of the affected
comments, the agency is reopening the comment period to ensure
interested persons have an opportunity to participate in the
rulemaking process. The comment period will be open for 14 days
following publication of the reopening release in the Federal
Register.
Additionally, the SEC reports that the glitch may have affected
the following self-regulatory organization matters:
- File No. SR-BOX-2022-08, BOX Exchange LLC; Proposed Rule
Change, as Modified by Amendment No. 1, to Amend Rule 12140
(Imposition of Fines for Minor Rule Violations), to Expand the List
of Violations Eligible for Disposition Under the Exchange’s
Minor Rule Violation Plan and to Update the Fine Schedule
Applicable to Minor Violations of Certain Rules, July 7,
2022 - File No. SR-CboeBZX-2021-083, Cboe BZX Exchange Inc.;
Proposed Rule Change to Amend Rule 25.3, Which Governs the
Exchange’s Minor Rule Violation Plan, in Connection with
Certain Minor Rule Violations and Applicable Fines, Dec. 20,
2021 - File No. SR-FINRA-2022-017, Financial Industry Regulatory
Authority Inc.; Proposed Rule Change to Amend FINRA Rule 6750
Regarding the Publication of Aggregated Transaction Information on
U.S. Treasury Securities, Aug. 5, 2022 - File No. SR-FINRA-2022-024, Financial Industry Regulatory
Authority Inc.; Proposed Rule Change to Amend the Codes of
Arbitration Procedure to Modify the Current Process Relating to the
Expungement of Customer Dispute Information, Aug. 9, 2022 - File No. SR-MEMX-2021-10, MEMX LLC; Proposed Rule Change,
as Modified by Amendment No. 1, to Establish a Retail Midpoint
Liquidity Program, May 6, 2022 - File No. SR-NYSEARCA-2022-52, NYSE Arca Inc.; Proposed Rule
Change to Amend Rule 6.64P-O, August 15, 2022 - File No. SR-NYSENAT-2021-19, NYSE National Inc.; Proposed
Rule Change to Extend the Pilot Related to the Market-Wide Circuit
Breaker in Rule 7.12, Oct. 1, 2021 - File No. SR-OCC-2022-802, The Options Clearing Corporation;
Advance Notice Related to a Master Repurchase Agreement as Part of
The Options Clearing Corporation’s Overall Liquidity Plan,
July 20, 2022
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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