SEC Expands Electronic Filing Requirements

Kelley Drye Client Advisory

Overview

The Securities and Exchange Commission (SEC) announced on June 3, 2022 that it has adopted amendments requiring a number of additional forms to be filed or submitted electronically. These final rules are part of the SEC’s continuing effort to modernize its filing system and records management, and will go into effect on Monday, July 11, 2022.
The affected documents are currently permitted to be submitted on paper or electronically before the amendments were approved. The new rules require submission electronically and filers will need to use the SEC’s Electronic Data Gathering, Analysis and Retrieval (EDGAR) Filer Manager. Submissions via other methods will no longer be accepted.

The SEC intends for the use of the EDGAR database to increase public access to corporate documents, improving the efficiency of investments and the transparency of company and security holder actions. The fact sheet regarding the new amendments can be found here and the SEC’s statement about the amendments can be found here.


Affected Documents

  • Documents under Rule 101(b) of Regulation S-T which previously could be submitted electronically:

    • Form 6-K (filed by foreign private issuers);
    • Form 11-K (annual reports with respect to employee stock purchase, savings and similar plans);
    • Form 144 (filed by a security holder under Rule 144 to notify the SEC of intention to sell restricted securities);
    • “Glossy” Annual Reports (reports by companies to shareholders which include information on the company’s activities in a more readable and investor friendly format than Annual Reports on Form 10-K);
    • Notices of Exempt Solicitations (filing of proxy solicitations that are exempt from normal solicitation rules);
    • Notices of Exempt Preliminary Roll-Up Communications (filing made by securities holders wishing to be exempt from roll-up transactions); and
    • Filings by Multilateral Development Banks (reports from development banks regarding distribution of primary obligations);
  • Certifications under Section 12(d) of the Exchange Act and Exchange Act Rule 12d1-3; and
  • Certain foreign language documents.


Other Changes

The amendments additionally require data reporting in connection with Form 11-K to be filed in the Inline XBRL data format, which would allow it to be machine-readable. This is the latest requirement in the SEC’s phase-in of the Inline XBRL format, which all filers must use.

The SEC is also making minor updates to Forms F-10, F-X, and CB to remove outdated references to physical filing procedures and formats no longer in use.


Impact

For many filers already using electronic formats for these forms, the shift to the EDGAR filing should not be a significant change. EDGAR does require specific formats and not all forms can be uploaded in the same format, but it does not require serious modification of how forms are filled out and structured. For filers which have been using paper, the SEC has granted more time to adjust to the new formatting. In order to use EDGAR, filers will need access codes to submit their documents electronically. These codes need to be requested from the SEC and receiving them may take up to two business days. More information on using EDGAR and preparing documents in the proper format can be found on the SEC’s website here.

Other forms not subject to these rules changes can be submitted through EDGAR voluntarily. Since the SEC is likely to continue its push to modernize its filing systems and expand the use of EDGAR, filers should consider making the transition to using the database for all forms which can be submitted electronically.

Companies should be careful of submitting glossy annual reports in the proper formatting, as the rules require the formatting to encompass the same presentation of the actual report, but EDGAR will reject PDF submissions which contain hyperlinks or other code that may be more prevalent in investor reports. Additionally, previous guidance that glossy annual reports could be posted on the company’s website rather than filed is being superseded by the new rules and filing will be required, though companies may still post the reports if they wish.


Effective Dates

Filers will have six months after the effective date of the amendments to switch to electronic filing if they have been submitting their documents by paper. There is less leeway for filers that have already been filing electronically to use the EDGAR format, who are expected to submit via EDGAR as soon as the rules come into effect.

Glossy annual reports must be submitted electronically six months after the effective date of amendments. Updates regarding Form 144 will be published separately in an updated version of the EDGAR Manual, expected to be released in September 2022, and submissions must conform to that formatting six months after publication of the rule in the Federal Registrar. The SEC is additionally looking to make Form 144 form-fillable in the near future.

For the data requirements connected to Form 11-K, filers will have three years after the effective date of amendments to comply with the Inline XBRL formatting.
* This Kelley Drye client advisory was written with the assistance of summer associate, Gwendolyn Ellis.