SEC Update on Regulatory Relief During the Pandemic

The U.S. Securities and Exchange Commission’s efforts in response to the COVID-19 pandemic are centered, first and foremost, on the health and safety of our employees and all Americans.  The Commission’s recognition of the corresponding need of market participants to also prioritize health and safety while ensuring the continuity of operations essential to the orderly function of our capital markets, drove the prompt actions of the Commission and its staff in the early stages of the pandemic’s effects in the United States.  We have assessed these actions in light of developments over the past several months, current conditions and our expectations in order to adjust our efforts as necessary or appropriate.  This statement provides a collective, cross-Divisional update based on that assessment.

Below is a summary of the current targeted, temporary relief and assistance provided by the Commission and staff, along with the staff’s views on whether and, if so, how that relief should be adjusted taking into account market outreach and observations.  It is clear that the need for certain relief remains, such as relief to ensure continued remote operations and to provide flexibility in light of continued market volatility.  Other forms of current relief, however, are unlikely to be extended.  For example, the Commission and its staff provided temporary, targeted, and conditional relief and assistance to issuers and registrants from certain filing and delivery deadlines in recognition of the impact of COVID-19 on operations while also maintaining important investor protections.  As market participants have worked to implement business continuity plans and adjusted in many cases to a more remote and distributed workforce, the present need for extensions of certain regulatory deadlines has diminished.

The Commission has remained fully operational throughout the pandemic and we will continue to assess the need for regulatory action, including appropriate, targeted relief.  We thank market participants for their engagement during this time of unprecedented operational challenges, as well as market stress and volatility, and encourage market participants to continue to engage with the Commission and its staff.

Division of Corporation Finance

The Division and its staff continue to work with the Commission to provide prompt regulatory assistance and relief where necessary and appropriate.  The Division has monitored how public companies are reporting the effects and risks of COVID-19 on their businesses, financial condition, and results of operations and has provided guidance as companies prepare disclosure documents during this uncertain time.[1]  Timely, robust, and accurate information is essential to functioning markets, and we understand that issuers continue to want to file reports in a timely manner.

The Division has recommended to the Commission temporary relief intended to assist in capital formation, as well as temporary relief relating to filing and delivery deadlines in order to provide market participants with additional time to implement business continuity plans.  In addition, the Division has provided no-action positions to address market participants’ operational difficulties associated with COVID-19, such as travel restrictions, inaccessible facilities, social distancing requirements, and the need to transition to a remote workforce or facilitate remote meetings.  Below is a summary of the Division’s COVID-19-related recommendations to the Commission to date, as well as Division staff no-action statements to market participants.  The summary includes, where applicable, the Division’s current views regarding the continued need for the relief and no-action statements detailed below.

• Facilitating Capital Formation for Small Businesses.  In May 2020, the Commission adopted temporary final rules to facilitate capital formation for small businesses affected by COVID-19.  These temporary rules were intended to expedite the offering process for smaller, previously established companies directly or indirectly affected by COVID-19 that were seeking to meet their funding needs through the offer and sale of securities pursuant to Regulation Crowdfunding.  The amendments apply to securities offerings initiated under Regulation Crowdfunding between May 4, 2020, and August 31, 2020.  The Division continues to monitor the interest in and effectiveness of this relief and will provide a recommendation to the Commission on whether to extend the relief prior to August 31.
• Additional Time to File Public Company Reports.  In March 2020, the Commission provided temporary conditional reporting relief for certain public company filing obligations.[2]  The relief provides public companies with a 45-day extension to file certain disclosure reports that would otherwise have been due on or before July 1, 2020.[3]  The Division believes that further extension of this relief is unnecessary.
• Additional Time to File Regulation A and Regulation Crowdfunding Reports.  In March, the Commission adopted temporary final rules for issuers subject to the reporting obligations pursuant to Regulation Crowdfunding and Regulation A in order to address the needs of companies directly or indirectly affected by COVID-19.  The temporary final rules extended the filing deadlines for specified reports and forms due pursuant to Regulation Crowdfunding and Regulation A for issuers with reports due for periods ended on or before May 31, 2020, and the Commission did not extend this relief.
• Divisions of Corporation Finance and Investment Management Statements on Conducting Shareholder Meetings in Light of COVID-19 Concerns.  In March 2020, and later updated in April, the staff of the Divisions of Corporation Finance and Investment Management issued a statement regarding registrants’ ability to change the dates and locations f their shareholder meetings, switch from an in-person shareholder meeting to a “virtual” or “hybrid” meeting, and furnish proxy soliciting materials through the “notice-only” e-proxy delivery option.  The staff also encouraged registrants to provide shareholder proponents with the ability to present their proposals at the shareholder meeting through means other than an in-person appearance (such as by telephone).  These positions continue in effect, although the staff expects that the number of companies availing themselves of the relief will decrease as the bulk of annual shareholder meetings typically are held in the first half of the calendar year.
• Proxy Material Delivery Accommodation.  In March, the Commission provided conditional relief from the requirement to furnish proxy soliciting materials to security holders when mail delivery is not possible as result of the security holder being located in an area where, due to COVID-19, the common carrier has suspended delivery service.[4]  Although this relief does not have a specified expiration date, the Division expects that few registrants will need to avail themselves of this relief with respect to proxy materials sent to domestic mailing addresses.  The relief remains available to registrants needing to send proxy materials to international addresses if the common carrier has suspended delivery service as a result of COVID-19.
• Forms 144 and Other Paper Submissions.  In April, the staff of the Division of Corporation Finance issued a no-action statement that Division staff would not recommend an enforcement action if, subject to taking certain other steps, Form 144 filings are transmitted via email and include electronic rather than manual signatures.  The staff statement applied to Form 144 filings from April 10, 2020 to June 30, 2020.  In April, the staff of the Division of Corporation Finance also provided a statement regarding the filing of certain forms (other than Forms 144) that are filed with the Commission in paper.  The staff statement applied to the specified filings from April 23, 2020 to June 30, 2020.  The staff of the Division updated both of these statements on June 25 to extend the accommodations until a date specified in a public notice, which date will be at least two weeks from the date of the notice.
• Divisions of Corporation Finance, Investment Management, and Trading and Markets Statement on Accommodation on Authentication and Retention Requirements of Rule 302(b) of Regulation S-T.  The Divisions of Corporation Finance, Trading and Markets, and Investment Management issued a joint staff statement in March 2020 concerning the authentication and document retention requirements under Rule 302(b) of Regulation S-T (specifically, the creation and retention of manual signatures in electronically filed documents).  Given that social distancing and other COVID-19-related effects continue, this statement has been updated to note that it will remain in effect until a date specified in a public notice, which date will be at least two weeks from the date of the notice.

Division of Investment Management

Over the past several months, Division of Investment Management staff have engaged in an extensive outreach effort to monitor the effects of the pandemic on investors, funds and other investment companies, investment advisers, and service providers for investment companies and advisers.

The Division has recommended that the Commission provide relief to, among other things, allow for temporary filing and delivery extensions, assist investment companies and investment advisers in ensuring continuity of operations, provide tools for funds to obtain short-term funding and manage their portfolios for the benefit of all shareholders, and facilitate remote board meetings.  Below is a summary of the Division’s COVID-19-related recommendations to the Commission to date, as well as Division staff no-action statements to market participants.  The summary includes, where applicable, the Division’s current views regarding the continued need for the relief and no-action statements detailed below.

• Short-Term Funding Flexibility for Open-End Funds and Separate Accounts.  In March 2020, the Commission issued a conditional exemptive order providing additional flexibility for (1) registered open-end management investment companies other than money market funds (“open-end funds”) and (2) insurance company separate accounts registered as unit investment trusts (“separate accounts”) to obtain short-term funding.  Subject to certain conditions, the order provides the following temporary exemptive relief from the Investment Company Act of 1940:
  • Relief permitting registered open-end funds and insurance company separate accounts to borrow money from certain affiliates;
  • Relief that permits additional flexibility under existing interfund lending arrangements and extends the ability to use interfund lending arrangements to funds that do not currently have exemptive relief; and
  • Relief that permits registered open-end funds to enter into lending arrangements or borrowings that deviate from fundamental policies, subject to prior board approval.

  Each of the categories of relief provided in the order will expire on the date specified in a public notice from Commission staff, which date will be at least two weeks from the date of the notice, and no earlier than June 30.

• Term Asset-Backed Securities Loan Facility (“TALF 2020”) No-Action Letter.  In May 2020, the Division issued a letter stating that Division staff would not recommend an enforcement action against registered investment companies participating in the Federal Reserve’s TALF 2020, under certain facts and circumstances.  The no-action positions in this letter reaffirm no-action positions that the Division provided with respect to the TALF established in response to the financial crisis of 2008, and expand those positions to provide flexibility to registered investment companies and business development companies (“BDCs”) to participate in the TALF 2020 through a special purpose vehicle.  The TALF 2020 was established to support the flow of credit to consumers and businesses by enabling the issuance of certain asset-backed securities, and is currently scheduled to terminate on September 30, 2020.
• Affiliated Purchases of Debt Securities in Light of Market Dislocation No-Action Letters.  The Division has also issued two letters[5] on a temporary basis in response to the national emergency stating that Division staff would not recommend an enforcement action if, under certain facts and circumstances, certain funds sell debt securities to an affiliated person.  These letters remain in effect.
• Temporary Regulatory Flexibility to Assist BDCs in Fulfilling their Statutory Mandate.  Closed-end investment companies that have elected to be regulated as BDCs were created to provide capital to smaller domestic operating companies that otherwise may not be able to readily access the capital markets.  In April 2020, the Commission issued a conditional exemptive order that provides temporary flexibility for BDCs to issue and sell senior securities and participate in certain joint enterprises or other joint arrangements that would otherwise be prohibited by the Investment Company Act and Rule 17d-1 thereunder.  In the current environment, many BDCs would face challenges absent these exemptions in providing capital to their affected portfolio companies, and therefore, in fulfilling their statutory mandate.  The relief is available until the earlier of December 31, 2020, or the date by which the BDC ceases to rely on the order.

The Division has also recommended to the Commission additional relief, or provided staff action positions, to address market participants’ operational difficulties associated with COVID-19, such as travel restrictions, inaccessible facilities, social distancing requirements, and the need to transition to a remote workforce or facilitate remote meetings, as well as temporary relief relating to filing and delivery deadlines in order to provide market participants with additional time to implement business continuity plans.

• In-Person Board Meeting Requirements.  At present, boards of directors of registered management investment companies and BDCs continue to face challenges traveling in order to meet the in-person voting requirements under the Investment Company Act and rules thereunder.  For that reason, the Commission recently extended earlier exemptive relief facilitating, subject to certain conditions, remote board meetings and remote approval of certain agreements, plans or arrangements. [6]  The relief will terminate on a date specified in a public notice, which date will be at least two weeks from the date of the notice and no earlier than December 31, 2020.
• Prospectus Delivery.  The Commission issued a statement that it would not provide a basis for a Commission enforcement action if, under certain facts and circumstances, a registered management investment company or unit investment trust does not timely deliver to investors its current prospectus if delivery is delayed due to circumstances related to COVID-19.[7]  The statement addressed prospectuses required to be delivered on or before June 30, 2020, provided that the sale of shares to the investor was not an initial purchase by the investor of shares of that fund.  Delivery would still need to be made as soon as practicable, but not later than 45 days after the date originally required.  The Division believes that further extension of this relief is unnecessary.
• Transmittal of Annual and Semi-Annual Reports.  The Commission by exemptive order extended the deadlines for transmittal of annual and semi-annual reports due between March 13, 2020 and June 30, 2020 by registered management investment companies and unit investment trusts affected by COVID-19 by up to 45 days, subject to certain conditions.[8]  The Division believes that further extension of this relief is unnecessary.
• Form N-23C-2 (Advance Notice by Registered Closed-End Funds and BDCs to Call or Redeem Securities).  The Commission by exemptive order provided relief through August 15, 2020 from the requirement of registered closed-end investment companies and BDCs to file Form N-23C-2 at least 30 days prior to calling or redeeming securities, subject to certain conditions.[9]  The Division believes that further extension of this relief is unnecessary.
• Form N-CEN (Annual Report for Registered Investment Companies) and Form N-PORT (Monthly Portfolio Investments Report).  The Commission by exemptive order extended the filing deadlines for Form N-CEN and Form N-PORT due between March 13, 2020 and June 30, 2020 by registered management investment companies and unit investment trusts affected by COVID-19 by up to 45 days, subject to certain conditions.[10]  The Division believes that further extension of this relief is unnecessary.
• Form ADV and Form ADV Part 1A Reports.  The Commission by exemptive order extended the filing deadlines for Form ADV and Form ADV Part 1A reports due between March 13, 2020 and June 30, 2020 by registered investment advisers and exempt reporting advisers affected by COVID-19 by up to 45 days, subject to certain conditions.[11]  The Division believes that further extension of this relief is unnecessary.
• Form ADV Part 2 Brochures, Brochure Supplements, and Summary of Material Changes.  The Commission by exemptive order extended delivery deadlines for certain delivery requirements of Form ADV Part 2 (or a summary of material changes) to existing clients due between March 13, 2020 and June 30, 2020 by registered investment advisers by up to 45 days, subject to certain conditions.[12]  The Division believes that further extension of this relief is unnecessary.
• Form PF.  The Commission by exemptive order extended the filing deadlines for Form PF reports due between March 13, 2020 and June 30, 2020 by private fund advisers affected by COVID-19 by up to 45 days, subject to certain conditions.[13]  The Division is not currently recommending any further extension of this relief.  The Division believes that further extension of this relief is unnecessary.
• Divisions of Corporation Finance and Investment Management Statements on Conducting Shareholder Meetings in Light of COVID-19 Concerns.  In March 2020, and later updated in April, the staff of the Divisions of Corporation Finance and Investment Management issued a statement regarding registrants’ ability to change the dates and locations of their shareholder meetings, switch from an in-person shareholder meeting to a “virtual” or “hybrid” meeting, and furnish proxy soliciting materials through the “notice-only” e-proxy delivery option.  The staff also encouraged registrants to provide shareholder proponents with the ability to present their proposals at the shareholder meeting through means other than an in-person appearance (such as by telephone).  These positions continue in effect, although the staff expects that the number of companies availing themselves of the relief will decrease as the bulk of annual shareholder meetings typically are held in the first half of the calendar year.
• Divisions of Corporation Finance, Investment Management, and Trading and Markets Statement on Accommodation on Authentication and Retention Requirements of Rule 302(b) of Regulation S-T.  The Divisions of Corporation Finance, Trading and Markets, and Investment Management issued a joint staff statement in March 2020 concerning the authentication and document retention requirements under Rule 302(b) of Regulation S-T (specifically, the creation and retention of manual signatures in electronically filed documents).  Given that social distancing and other COVID-19-related effects continue, this statement has been updated to note that it will remain in effect until a date specified in a public notice, which date will be at least two weeks from the date of the notice.
• Divisions of Investment Management and Trading and Markets on International Mail Service Suspensions to Certain Jurisdictions.  In June 2020, the Divisions of Investment Management and Trading and Markets issued a joint staff statement regarding the requirements under the federal securities laws to mail certain regulatory communications to shareholders, clients and customers who have not consented to electronic delivery and who have mailing addresses in international jurisdictions where common carriers have suspended mail service.  The statement provides that the Divisions’ staff would not recommend enforcement action if certain alternate arrangements are satisfied.  This statement expires on the date, as applicable to each specific affected international jurisdiction, that common carriers resume mail delivery.

Division of Trading and Markets

The Division of Trading and Markets has been providing assistance to market participants and facilitating targeted regulatory assistance and relief, as appropriate, to facilitate the continuing orderly and fair functioning of the securities markets.  Division staff have worked closely with exchanges, clearing agencies, transfer agents, broker-dealers and other key participants in our securities markets, such as FINRA, to assist them in successfully implementing business continuity measures, including shifting to remote work environments, while preserving important investor and market protections.  Below is a summary of the Division’s COVID-19-related recommendations to the Commission to date, as well as Division staff no-action statements to market participants.  The summary includes, where applicable, the Division’s current views regarding the continued need for the relief and no-action statements detailed below.

• Facilitating the Continued and Orderly Operation of National Securities Exchanges.  Starting in mid-March 2020,[14] the Commission, by authority delegated to the Division, enabled the immediate effectiveness of dozens of temporary rule changes relating to the COVID-19 pandemic, thereby ensuring uninterrupted and orderly operation of the securities markets.[15]  To date, Division staff have worked closely with national securities exchanges to, among other things, facilitate the closing of physical trading floors and the transition to all-electronic trading, provide temporary relief from certain filing deadlines and listing standards, provide additional flexibility in response to market volatility, and modify certain shareholder approval rules.  As the exchanges resume normal floor trading operations, the related temporary rules will expire.
• Certain COVID-19-Related FINRA Guidance and Relief.  Division staff worked with FINRA staff in addressing COVID-19 related issues in connection with obligations under FINRA’s existing rules through FINRA’s issuance of staff statements, guidance, and FAQs,[16] as well as proposed rule change filings.  For example, the Commission, by authority delegated to the Division, enabled the immediate effectiveness of a FINRA rule change to modify certain timing, method of service and other procedural requirements to allow parties to, among other things, file or serve documents electronically, which was extended to July 31, 2020.[17]
• Consolidated Audit Trail (“CAT”) Reporting Deadlines.  Industry members that are broker-dealers are required to report to the Consolidated Audit Trail under rules adopted by the self-regulatory organizations (SROs), and SROs by statute and Commission rule must enforce their members’ compliance with such rules.  To address COVID-19 concerns, Commission staff issued a no-action letter in March 2020 explaining that Division staff would not recommend enforcement action if the current reporting deadlines were not enforced against the industry members.  Subsequently, the Commission issued an exemptive order in April establishing a phased CAT reporting timeline for broker-dealers that delayed the start of broker-dealer reporting to June 2020, while preserving the completion dates for each phase.
• TALF 2020 Order.  In May 2020, the Commission, by authority delegated to the Division, granted exemptive relief that permitted eligible brokers and dealers to participate in the Federal Reserve’s TALF 2020 facility.  The TALF 2020 was established to support the flow of credit to consumers and businesses by enabling the issuance of certain asset-backed securities, and is currently scheduled to terminate on September 30, 2020.
• Conditional Relief to Municipal Advisors.  As a result of COVID-19, municipal issuers have been facing revenue uncertainty and increases in unbudgeted costs and, as a result, have turned to private placements with commercial banks as a source of liquidity.  Intended to assist smaller municipal issuers, the Commission issued an order granting a temporary conditional exemption from broker registration to registered municipal advisors in connection with certain direct placement of municipal securities.  The relief extends through December 31, 2020, and is only available in connection with a direct placement in the aggregate principal amount of $20 million or less.  The Division worked closely with the Office of Municipal Securities in providing this recommendation.

The Division has also recommended to the Commission additional relief, or provided staff action positions, to address market participants’ operational difficulties associated with COVID-19, such as travel restrictions, inaccessible facilities, social distancing requirements, and the need to transition to a remote workforce, as well as temporary relief relating to filing and delivery deadlines in order to provide market participants with additional time to implement business continuity plans.

• Registered Transfer Agent Relief.  The Commission provided registered transfer agents with exemptive relief for certain recordkeeping, reporting, and processing time obligations that could be difficult to meet in light of the challenges associated with COVID-19.  Transfer agents at all times continue to be subject to the requirements of Exchange Act Rule 17Ad-12, which requires transfer agents to ensure that they adequately safeguard securities and funds in their possession or custody.  In June, the Commission extended the relief until a date to be specified in a public notice from Commission staff, which date will be at least two weeks from the date of the notice.[18]
• Relief from Fingerprinting Requirements.  The Commission has also provided additional relief to transfer agents, broker-dealers, national securities exchanges and their members, and clearing agencies from the statutory requirement that partners, directors, officers, and employees be fingerprinted.  In June, the Commission extended the relief until a date to be specified in a public notice from Commission staff, which date will be at least two weeks from the date of the notice.[19]
• Extension of Certain Deadlines Under Rule 606 of Regulation NMS.  Rule 606 of Regulation NMS provides that broker-dealers must (i) provide quarterly, aggregated public disclosure of their routing and handling of orders submitted on a held basis in NMS stock and, (ii) upon customer request, provide customer-specific disclosures related to the routing and execution of certain of the customer’s NMS stock orders.  The Commission, by authority delegated to the Division, granted exemptive relief that extended the deadline to May 29, 2020 to provide the quarterly disclosure and, for certain broker-dealers that engage in outsourced routing activity, extended the deadline to June 1, 2020 to collect monthly customer-specific data and to July 29, 2020 to provide the first related customer-specific reports.  The Division believes that further extension of this relief is unnecessary.
• Relief Relating to the Broker-Dealer Financial Responsibility Rules.  In April 2020, Division staff published Frequently Asked Questions Concerning the COVID-19 Pandemic and the Broker-Dealer Financial Responsibility Rules.  The statement provides that Division staff would not recommend an enforcement action relating to generally (under the circumstances described more specifically in the statement) (i) prompt transmission of customer checks by broker-dealers under Rule 15c3-3(k)(2), and (ii) the timing of quarterly securities counts of physical securities by broker-dealers under Rule 17a-13.  Staff has extended the quarterly securities count relief until December 31, 2020, including requesting that broker-dealers notify Commission and FINRA staff if the relief will be needed, but has not extended past June 2020 relief relating to the prompt transmission of customers checks.[20]  In June 2020, the staff addressed capital charges for securities purchased from a money market fund and pledged to the Federal Reserve under the Money Market Mutual Fund Liquidity Facility (MMLF).  The MMLF is currently authorized through September 30, 2020.[21]
• Staff Statement on Paper Submissions, Manual Signatures, and Notarization Requirements.  In early April 2020, Division staff issued a staff statement, effective through June 30, 2020, regarding certain paper submissions, manual signatures, and notarization requirements.  The statement provided that Division staff would not recommend enforcement action if filers and registrants make alternate arrangements, as detailed in the statement, for delivery, execution, and notarization of certain paper filings.  The statement was updated in June 2020 to indicate that the statement would terminate on the date specified in a public notice, which date will be at least two weeks from the date of the notice.
• Divisions of Investment Management and Trading and Markets on International Mail Service Suspensions to Certain Jurisdictions.  In June 2020, the Divisions of Investment Management and Trading and Markets issued a joint staff statement regarding the requirements under the federal securities laws to mail certain regulatory communications to shareholders, clients and customers who have not consented to electronic delivery and who have mailing addresses in international jurisdictions where common carriers have suspended mail service.  The statement provides that the Divisions’ staff would not recommend enforcement action if certain alternate arrangements are satisfied.  This statement expires on the date, as applicable to each specific affected international jurisdiction, that common carriers resume mail delivery.
• Divisions of Corporation Finance, Investment Management, and Trading and Markets Statement on Accommodation on Authentication and Retention Requirements of Rule 302(b) of Regulation S-T.  The Divisions of Corporation Finance, Trading and Markets, and Investment Management issued a joint staff statement in March 2020 concerning the authentication and document retention requirements under Rule 302(b) of Regulation S-T (specifically, the creation and retention of manual signatures in electronically filed documents).  Given that social distancing and other COVID-19 related effects continue, this statement has been updated to note that it will remain in effect until a date specified in a public notice, which date will be at least two weeks from the date of the notice.

Other Relief

In addition to the relief above, the Commission issued the following targeted actions to assist market participants with obligations to transmit documents to the Commission:

• On March 18, 2020, the Commission issued an order encouraging the parties to administrative proceedings to file and serve documents electronically.  The order remains in effect.
• On March 26, 2020, the Commission issued a temporary exemptive order that provides, subject to certain conditions, affected municipal advisors with an additional 45 days to file annual updates to Form MA that would have otherwise been due between March 26, 2020 and June 30, 2020.  The Commission has not extended this relief.
• On March 26, 2020, the Commission temporarily amended Rule 10 of Regulation S-T to provide relief through July 1, 2020 from the notarization requirements for EDGAR access requests, subject to certain conditions.  The EDGAR Business Office will work with filers to continue to accept electronic and remote online notarizations.

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