Feb. 22, 2023
Yesterday, the Commission adopted amendments to Regulation S-T to extend the deadline, from 5:30 p.m. to 10:00 p.m. Eastern Time, for when a Form 144 is deemed filed on the date of submission. This extension is a sensible change that eases the stress and burden on sellers (and their brokers, counsels, and other professionals), who must file Form 144 on the same day as placing their order to sell stock. Sometimes, this need to file is not known until near the close of trading at 4:30 p.m. Eastern Time.
However, I am concerned about the Commission’s piecemeal approach to changing the EDGAR filing deadlines for its forms. With these amendments, Form 144, Forms 3, 4, and 5, Schedule 14N, and registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933, will be the only forms with a 10:00 p.m. Eastern Time deadline. The Commission has separately proposed the same filing deadline for Schedules 13D and 13G, but that proposal has not been adopted.
Tomorrow marks the 30th anniversary of the Commission’s rulemaking to implement the EDGAR system for electronic filings. The Commission adopted its current EDGAR framework in an era when most people worked from their companies’ physical offices on a 9:00 a.m. – 5:30 p.m., Monday to Friday schedule. Far more persons needing to make EDGAR filings are located around the world in different time zones. In this current era of a 24-hour news cycle and remote work and work-from-anywhere, the Commission should reevaluate whether the current framework best serves filers and investors.
It is long past time for the Commission to review its rules on EDGAR submission dates, hours, and deadlines more holistically and allow filers, investors, and other market participants to provide feedback. In considering a more comprehensive review of EDGAR, I encourage a discussion on the following questions:
- Should EDGAR be able to accept electronic submissions on Saturdays, Sundays, and federal holidays?
- Is the current 6:00 a.m. to 10:00 p.m. Eastern Time EDGAR submission period appropriate?
- What other forms, if any, should have their filing deadline extended from 5:30 p.m. to 10:00 p.m. Eastern Time, or another time?
- Are filers outside of the Eastern Time zone, and particularly foreign filers, disadvantaged by the current submission hours and filing deadlines?
The EDGAR system plays a key role in disseminating material information to the marketplace. The lack of a future vision for the EDGAR system as it approaches its fourth decade is a disservice to investors and issuers alike.
To the many individuals at the Commission and its contractors, filers, law firms, financial printers and filing agents, investors, and other market participants, whose cooperation, foresight, and contributions over the past thirty years have made the EDGAR system what it is today, thank you.
 In June 2022, the Commission amended its rules to require electronic filing of Form 144 if the issuer of the security has been a reporting company for at least 90 days. Those amendments become effective April 13, 2023. See Updating EDGAR Filing Requirements and Form 144 Filings, Release No. 33-11070 (Jun. 2, 2022) [87 FR 35393 (June 10, 2022)], available at https://www.sec.gov/rules/final/2022/33-11070.pdf.
 Unfortunately, the final rule failed to address a problem identified in Rule 144(h) under the Securities Act of 1933, which governs the filing of Form 144, with respect to an issuer that has been a reporting company for less than 90 days.
 Rulemaking for EDGAR System, Release No. 33-6977 (Feb. 23, 1993) [58 FR 14628 (Mar. 18, 1993)].