The U.S. Securities and Exchange Commission (SEC), under Chair Gary Gensler, has a robust rulemaking agenda with substantial new governance and disclosure requirements and proposed requirements. In 2022, the SEC approved a number of proposed and final rules, which, in many cases, provided for relatively short public comment periods and timelines for compliance. For proposed rules, the commencement of the public comment period is tied to the date that the proposed rules are published in the Federal Register. For final rules, the effective date of the rules and, in some cases, transition periods for compliance with the rules, are tied to the date that the final rules are published in the Federal Register.
As a result, we are often asked when proposed or final rules will be published in the Federal Register. Our responses to these questions are typically estimates based, in large part, on a review of the past timing between the date the SEC announced the proposed or final rules, and the date that those rules were published in the Federal Register.
A complete history of the Federal Register and agency rulemaking is beyond the scope of this post, but a very brief summary may be useful.
- In 1935, the Federal Register Act established the Office of the Federal Register (OFR) as part of the National Archives and Records Administration, and, in partnership with the Government Printing Office (GPO), created the Federal Register.1
- In 1946, the Administrative Procedure Act (APA) established the process by which federal agencies (including the SEC) publish, receive comments on, and finalize their rules and regulations.2 Generally, agencies must publish a notice of proposed rulemaking (NPRM) in the Federal Register, allow for public comments on the NPRM, publish the final rule in the Federal Register, and provide for at least 30 days following publication before the final rule becomes effective.3
The OFR has established a regular schedule for publication of documents in the Federal Register, with documents typically on a three- or four-day schedule for publication depending on when they are received.4 Although this timing is a helpful starting point for determining when a document will be published in the Federal Register, the submission by the SEC of the proposed or final rule to the OFR may not occur on the same date as the announcement by the SEC of a proposed or final rule. It could take several days or longer for the agency to submit the release to the OFR. In addition, the OFR may defer publication beyond the typical publication timing (discussed above) if the document has lengthy tables, illustrations, and/or the length of the document requires additional review and processing time.5
Because the SEC may not submit its release simultaneously with announcement, and because many of the SEC releases are quite lengthy (more than 100 pages), we are often left to estimate the timing of publication based on past experience and practice. Below is a chart of some of the major proposed and final rulemakings (and reopening of comment periods) issued by the SEC in 2022, including the date of announcement by the SEC, the date of publication in the Federal Register, and the number of days between announcement and publication.
2022 Proposed Rulemakings and Reopening of Comment Periods
|Proposed Rule||# of Pages in SEC Release||SEC Release||Federal Register Publication||Days Between Release and Publication|
|Rule 10b5-1 and Insider Trading||149||January 136||February 15||33|
|Reopening of Comment Period for Pay Versus Performance||29||January 27||February 2||6|
|Modernization of Beneficial Ownership Reporting||183||February 10||March 10||28|
|Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure||129||March 9||March 23||14|
|The Enhancement and Standardization of Climate-Related Disclosures for Investors||490||March 21||April 11||21|
|Reopening of Comment Period for Listing Standards for Recovery of Erroneously Awarded Compensation||4||June 8||June 14||6|
|Substantial Implementation, Duplication, and Resubmission of Shareholder Proposals Under Exchange Act Rule 14a-8||81||July 13||July 27||14|
|Resubmission of Comments and Reopening of Comment Periods for Certain Rulemaking Releases||7||October 7||October 18||11|
|Reopening of Comment Period for Share Repurchase Disclosure Modernization||8||December 7||December 12||5|
Based on the above, documents with 100 pages or more were published, on average, 24 days after SEC announcement, with the publication date ranging from 14 days to 33 days following SEC announcement. Documents with less than 100 pages (typically comment period reopenings) were published, on average, 8.4 days after SEC announcement, with the publication date ranging from five to 14 days following SEC announcement.
2022 Final Rulemakings
|Final Rule||# of Pages in SEC Release||SEC Release||Federal Register Publication||Days Between Release and Publication|
|Updating EDGAR Filing Requirements and Form 144 Filings||69||June 2||June 10||8|
|Proxy Voting Advice||104||July 13||July 19||6|
|Pay Versus Performance||233||August 25||September 8||14|
|Inflation Adjustments under Titles I and III of the JOBS Act||16||September 9||September 20||12|
|Listing Standards for Recovery of Erroneously Awarded Compensation||231||October 26||November 28||33|
|Insider Trading Arrangements and Related Disclosures||252||December 14||December 29||15|
Based on the above, documents with 100 pages or more were published, on average, 17 days after SEC announcement, with the publication date ranging from only six days to 33 days following SEC announcement. The shorter documents were published eight and 12 days, respectively, following SEC announcement.
1 The Federal Register Act, as amended, is codified at 44 U.S.C., Chapter 15. See also Title 1, Chapter 1 of the Code of Federal Regulations.
2 The Administrative Procedure Act, as amended, is codified at 5 U.S.C. §§551 et. seq.
3 See 5 U.S.C. §553.
4 See 1 C.F.R. §17.2(c).
5 See 1 C.F.R. §17.7.
6 This proposed rule was originally proposed on December 15, 2021, but it was replaced by a new version on January 13, 2022.