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Proposed Amendments to Modernize and Enhance Financial Disclosures; Other Ongoing Disclosure Modernization Initiatives; Impact of the Coronavirus; Environmental and Climate-Related Disclosure

Jan. 30, 2020

Disclosure Effectiveness Initiative—Financial Disclosures and Performance Metrics

Today, the Commission proposed amendments to eliminate duplicative disclosure, and modernize and enhance Management’s Discussion and Analysis (MD&A) disclosures.  The Commission also provided guidance on the use of key performance indicators and metrics in MD&A.  The Commission’s work reflects the unparalleled experience of the SEC staff as it relates to the presentation, discussion and analysis of financial statements and other financial disclosures and metrics.  The proposal, if adopted, would substantively benefit investors and our capital markets more generally.

The proposal and the guidance continue the Commission’s evaluation of disclosure requirements mandated by Section 108 of the Jumpstart Our Business Startups (JOBS) Act.[1]  The Commission’s work has been focused on modernizing, simplifying and enhancing disclosures that investors receive consistent with congressional directives in the bipartisan JOBS Act and Fixing America’s Surface Transportation (FAST) Act.  Under this initiative, the Commission has been comprehensively reviewing the disclosure requirements in Regulation S-K and Regulation S-X and updating them to facilitate timely disclosure of material information by issuers, as well as investors’ ability to access and analyze that information.  These efforts have improved issuer disclosures of material information, allowing investors to make better capital allocation decisions while reducing compliance burdens and costs. 

I want to thank the staff in the Division of Corporation Finance and our other Divisions and Offices for their work on today’s proposal and guidance and, more generally, for their work to modernize and improve our disclosure system as our markets and economy have evolved.[2]  The dedication of our staff to ensure that our disclosure-based regulatory system remains effective, efficient and mission-oriented is critical to maintain the efficiency and integrity of our capital markets.  The staff faces the difficult task of ensuring that the mix of information investors receive allows them to assess the issuer’s business, past performance and prospects to a sufficient extent to support well-informed capital allocation decisions.  The staff continues to meet this challenge in a clear-eyed, pragmatic and mission-oriented manner ensuring that investors and issuers can connect in a fair and efficient manner.  They have my respect and thanks.        

Ongoing Disclosure Initiatives

While not the particular focus of today’s Commission action, SEC staff, and in some instances the Commission, have also been engaged on an array of other disclosure topics.  These topics, many of which are evolving, include, among others:  (1) LIBOR transition; (2) cybersecurity and information system integrity and resilience; (3) environmental and climate-related disclosures; (4) the protection of intellectual and other property in jurisdictions with varying legal regimes and access requirements relating to intellectual and other property; (5) Brexit transition; (6) the Public Company Accounting Oversight Board (PCAOB)’s ability to conduct inspections of audit firms in China and other jurisdictions; and (7) matters related to the role and functioning of audit committees.[3]  

Impact of the Coronavirus

Yesterday, I asked the staff to monitor and, to the extent necessary or appropriate, provide guidance and other assistance to issuers and other market participants regarding disclosures related to the current and potential effects of the coronavirus.  We recognize that such effects may be difficult to assess or predict with meaningful precision both generally and as an industry- or issuer-specific basis.  This is an uncertain issue where actual effects will depend on many factors beyond the control and knowledge of issuers.  However, how issuers plan for that uncertainty and how they choose to respond to events as they unfold can nevertheless be material to an investment decision. 

Discussion of Environmental and Climate-Related Disclosure Efforts

Today, I would like to discuss in more detail one of the evolving disclosure topics noted above.  The issue of environmental and climate-related securities law disclosures has received increasing attention from various regulators, investors and other market participants and non-market participants during my tenure as Chairman.

The Commission has been actively engaged on this issue for over a decade.  I am pleased with the Commission’s approach to this issue to date and believe it has been consistent with our ongoing commitment to ensure that our disclosure regime provides investors with a mix of information that facilitates well-informed capital allocation decisions.  As discussed above, this commitment has been, and in my view should remain, disclosure-based and rooted in materiality, including providing investors with insight regarding the issuer’s assessment of, and plans for addressing, material risks to its business and operations.[4]   

Over the past few years, I have discussed the Commission’s approach to, and ongoing work on, this subject in various venues and circumstances, including in congressional testimony, public and private regulatory conferences and public conferences targeting market participants as well as various bilateral meetings with regulators, market participants and non-market participants.[5]  Below, I summarize my prior discussions of the Commission’s ongoing work in this evolving and complex area.  I am providing this summary to ensure that interested market participants have efficient access to this information.  Please recognize that, particularly to the extent these matters are forward looking, the summary reflects my views and not those of the Commission, any other Commissioners or the staff.  Also please recognize that my views on how best to continue our efforts in this area may change as a result of various factors, including the actions of other policymakers, the actions of market participants and the availability of new information more generally.

Threshold Issues in Crafting and Evaluating Climate-Related Disclosure Mandates and Guidance.  The remainder of this summary should be viewed in light of several key characteristics of environmental and climate-related matters and related investment-oriented disclosures.[6]  These characteristics are interrelated and, in my view, should be recognized in crafting and reviewing securities law disclosures and, accordingly, in regulating those disclosures.  First, the landscape around these issues is, and I expect will continue to be, complex, uncertain, multi-national/jurisdictional and dynamic.  Second, for both issuers and investors, capital allocation decisions based on, or materially influenced by, climate-related factors are substantially forward-looking and likely involve estimates and assumptions regarding, again, complex and uncertain matters that are both issuer- and industry-specific, as well as regional, national and multi-national/jurisdictional, in nature.  Third, our disclosure-based regulatory regime is built largely around the provision by issuers of currently verifiable and largely historic issuer-specific information.  Forward-looking disclosure requirements are limited and, in many cases where forward-looking information is required or provided voluntarily the information is afforded safe-harbor protection.[7]  Fourth, when crafting and implementing disclosure mandates and guidance, I am, and must remain, mindful that as a standard setter, I should not be substituting my operational and capital allocation judgments for those of issuers and investors.  More generally, I believe all standard setters should take care to stay within the bounds of their regulatory mandate.[8]  Fifth, in our efforts to coordinate with other regulators, particularly those from outside the United States, we must recognize that our regulatory regime stands apart from an investor protection perspective, as well as a public and private liability and enforcement, perspective.  Said another way, experience demonstrates that facially analogous disclosure mandates should not be expected to equate to uniform effects across jurisdictions. 

I recognize that there are other threshold issues that may be relevant to this discussion and that market participants have varying perspectives on how to address these various issues in the context of securities disclosures and related requirements.  This is to be expected in matters of this complexity and uncertainty, and it underscores the importance of continued engagement of market participants with the Commission and among each other.             

Interpretive Guidance and Disclosure Reviews; Investment Mandate Disclosures.  In 2010, the Commission issued an interpretive release to provide guidance to public companies regarding the Commission’s existing disclosure requirements as they apply to environmental and climate-related matters.[9]  Since then, SEC staff has continued to consider these matters, including, as part of regular reviews of annual and periodic reports and other company filings by the Division of Corporation Finance.  The staff has generally found robust efforts to comply with the disclosure requirements but also has issued comments questioning the sufficiency and consistency of the disclosures in certain instances.  These staff reviews of issuer filings and, as necessary or appropriate, provision of comments in this space, will continue. 

In addition, our staff in the Office of Compliance Inspections and Examinations is reviewing disclosures of investment advisers and other issuers regarding funds and other products that pursue environmental or climate-related investment mandates to ensure that investors are receiving accurate and adequate information about the material aspects of those strategies.       

Issuer and Investor Engagement.  In addition to considering environmental and climate-related issues as part of regular filing reviews, SEC staff frequently engages on environmental and climate-related disclosure topics through staff trainings, meetings with investors and market participants and outside speaking engagements.  In recent years, these efforts have been particularly focused on:  (1) better understanding the environmental and climate-related information investors currently use and how they analyze that information to make investment decisions on both an issuer- and industry-specific basis and more generally; (2) better understanding the extent to which (and how) issuers identify, assess and manage environmental and climate-related risks in their particular business and industry; and (3) reminding issuers and other market participants of how the Commission’s principles-based disclosure requirements apply to environmental or climate-related matters and, as circumstances change (for example, as a result of changes in environmental regulation or changes in costs of operations) prior disclosures may require modification.[10]  To me, the first two areas of focus are particularly important to ensuring that our work in this area is effective and consistent with our mission.  We will continue to engage with issuers more generally on the third area through the filing review process and otherwise. 

The Commission also received feedback on climate-related disclosure in response to its April 2016 concept release on Business and Financial Disclosures required by Regulation S-K,[11] where commenters expressed a variety of views on whether the Commission’s existing disclosure requirements elicit the information necessary for investors to evaluate material climate-related issues.  I welcome continued comment in this area.   

Participation with Non-U.S. Regulators in International Disclosure Review Initiatives.  Securities regulators and other authorities in various jurisdictions are active, directly and indirectly, in the area of climate-related securities law disclosures.  SEC staff and I have actively participated in climate-related disclosure and other work streams with many of our international counterparts and authorities.  We participate as a member of IOSCO’s Sustainable Finance Network (SFN) Steering Group.  The SFN undertook a survey and a stocktake of national initiatives taken by securities regulators and other international organizations.  SEC staff actively participated in that SFN work. 

In 2015, the Financial Stability Board (FSB), of which the SEC is a member (as well as the Federal Reserve and the U.S. Department of the Treasury), convened private market participants to form the Task Force on Climate-Related Financial Disclosures (TCFD).  The TCFD has developed recommendations for voluntary, consistent climate-related financial disclosures that would be useful to lenders, insurers, investors and other market participants in understanding material risks in the financial sector.  The TCFD has reported to the FSB on its progress for several years.  In addition, the FSB is conducting work on the financial stability implications of climate change, with input from SEC staff. 

In addition to working with these formal bodies, members of the SEC staff and I have engaged on a bilateral basis with senior officials from the Bank of England, the UK Financial Conduct Authority, the European Securities and Markets Authority, the European Commission, various representatives of the European Union and various other financial regulators on environmental and climate-related disclosures.  Recently, certain of these discussions have focused more squarely on the shared, core purposes of capital markets disclosure regulation, including facilitating better analysis of long-term capital allocation decisions for both issuers and investors while being mindful that securities regulators should not be substituting our operational and investment judgments for those of the issuers and investors.  This perspective has been summarized by at least one of our counterparts as seeking the provision of “decision useful” information.[12] 

I believe continued, substantive engagement with our international counterparts, in collaboration with our domestic counterparts at the U.S. Department of the Treasury and the Federal Reserve Board, on these matters is important as we seek to fulfill our statutory mandate in these areas.  In this regard, it has been important to me to make the threshold issues discussed above clear to our international colleagues, particularly the issues of:  (1) focusing on information material to investment decisions (or “decision useful” information); and (2) the disparate effect on asymmetric application and enforcement of facially analogous requirements.[13]           

Continuing Efforts.  The Commission’s and the SEC staff’s focus on and work in this area will continue, and I encourage market participants to continue to engage with us.  In this regard, it is particularly helpful when those who engage with us:  (1) address, to the extent relevant and practicable, the threshold issues discussed above; and (2) assist us in better understanding how issuers and investors use environmental and climate-related information to make capital allocation decisions on an issuer, industry and more general basis.      

Specific avenues of engagement that currently are of particular interest to me include:  (1) discussing with issuers, such as property and casualty insurers, the extent to which they use, and their experience with, environmental and climate-related models and metrics in their operations and planning, including price, risk and capital allocation decisions; and (2) discussing with asset managers that have been using environmental and climate-related models and metrics to allocate capital on an industry or issuer specific basis their experience with that process.  I have encouraged my international counterparts to pursue these avenues of inquiry as well, including in connection with our participation in IOSCO and the FSB. 

 

[1] Pub. L. No. 112-106, Sec. 108, 126 Stat. 306 (2012).  Section 108 required the Commission to conduct a review of Regulation S-K to comprehensively analyze the current registration requirements and to determine how such requirements can be updated to modernize and simplify the registration process and to reduce the costs and other burdens associated with these requirements for emerging growth companies.  Section 108 also required the Commission to provide a report on this review to Congress.  See Report on Review of Disclosure Requirements in Regulation S-K (Dec. 2013), available at https://www.sec.gov/news/studies/2013/reg-sk-disclosure-requirements-review.pdf.   

[2] Specifically, I would like to thank:

  • from the Division of Corporation Finance:  Bill Hinman, Betsy Murphy, Luna Bloom, Courtney Lindsay, Angie Kim, Ryan Milne, Lisa Kohl, Lindsay McCord, Pat Gilmore, Kyle Moffatt, Ellie Quarles, Michael Coco, Kathy Hsu, Arthur Sandel, Lulu Cheng and Ted Yu;
  • from the Division of Economic and Risk Analysis:  S.P. Kothari, Narahari Phatak, Vladimir Ivanov, Qiao Kapadia and Mengxin Zhao;
  • from the Division of Investment Management:  Sarah ten Siethoff, Brian Johnson and Mark Uyeda;
  • from the Office of the Chief Accountant:  Giles Cohen, Jonathan Wiggins, Peggy Kim, Jonathan Duersch and Kevin Cherrstrom; and
  • from the Office of General Counsel:  Bryant Morris, Shehzad Niazi and Evan Jacobson.

[3] Division of Corporation Finance, Division of Investment Management, Division of Trading and Markets, and Office of the Chief Accountant, Staff Statement on LIBOR Transition, July 12, 2019, available at https://www.sec.gov/news/public-statement/libor-transition; Commission Statement and Guidance on Public Company Cybersecurity Disclosures (Feb. 21, 2018) [83 FR 8166 (Feb. 26, 2018)]; Commission Guidance Regarding Disclosure Related to Climate Change, Release No. 33-9106 (Feb. 2, 2010) [75 FR 6290 (Feb. 8, 2010)]; Division of Corporation Finance, Intellectual Property and Technology Risks Associated with International Business Operations, Dec. 19, 2019, available at https://www.sec.gov/corpfin/risks-technology-intellectual-property-international-business-operations; William Hinman, Director, Division of Corporation Finance, Applying a Principles-Based Approach to Disclosing Complex, Uncertain and Evolving Risks, Mar. 15, 2019, available at https://www.sec.gov/news/speech/hinman-applying-principles-based-approach-disclosure-031519; SEC Chairman Jay Clayton, SEC Chief Accountant Wes Bricker, PCAOB Chairman William D. Duhnke III, Statement on the Vital Role of Audit Quality and Regulatory Access to Audit and Other Information Internationally—Discussion of Current Information Access Challenges with Respect to U.S.-listed Companies with Significant Operations in China, Dec. 7, 2018, available at https://www.sec.gov/news/public-statement/statement-vital-role-audit-quality-and-regulatory-access-audit-and-other; Chairman Jay Clayton, Chief Accountant Sagar Teotia, Director, Division of Corporation Finance, William Hinman, Statement on Role of Audit Committees in Financial Reporting and Key Reminders Regarding Oversight Responsibilities, Dec. 30, 2019, available at https://www.sec.gov/news/public-statement/statement-role-audit-committees-financial-reporting.    

[4] See, e.g., TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976); see also and our prior work on risk factor disclosures in Modernization of Regulation S-K Items 101, 103, and 105 (Aug. 8, 2019) [84 FR 44358 (Aug. 23, 2019)].

[5] See, e.g., Chairman Jay Clayton, Testimony on “Oversight of the Securities and Exchange Commission,” before the U.S. Senate Committee on Banking, Housing, and Urban Affairs, Dec. 19, 2019. 

[6] See Chairman Jay Clayton, Remarks to the SEC Investor Advisory Committee, Nov. 7, 2019, available at https://www.sec.gov/news/public-statement/clayton-remarks-investor-advisory-committee-110719

[7] See Section 21E of the Securities Exchange Act of 1934, 15 U.S.C. § 78u-5.

[8] Chairman Jay Clayton, Modernizing our Regulatory Framework:  Focus on Authority, Expertise and Long-Term Investor Interests, Nov. 14, 2019, available at https://www.sec.gov/news/speech/clayton-modernizing-our-regulatory-framework-111419.

[9] Commission Guidance Regarding Disclosure Related to Climate Change, Release No. 33-9106 (Feb. 2, 2010) [82 FR 6290 (Feb. 8, 2010)].

[10] William Hinman, Director, Division of Corporation Finance, Applying a Principles-Based Approach to Disclosing Complex, Uncertain and Evolving Risks, Mar. 15, 2019, available at https://www.sec.gov/news/speech/hinman-applying-principles-based-approach-disclosure-031519

[11] Business and Financial Disclosure Required by Regulation S-K, Release No. 33-10064 (Apr. 13, 2016) [81 FR 23915 (Apr. 22, 2016)].  The comment letters received in response to the request for comment are available at https://www.sec.gov/comments/s7-06-16/s70616.htm

[12] Mark Carney, Governor of the Bank of England, TCFD:  Strengthening the Foundations of Sustainable Finance, Oct. 8, 2019, available at https://www.bankofengland.co.uk/-/media/boe/files/speech/2019/tcfd-strengthening-the-foundations-of-sustainable-finance-speech-by-mark-carney.pdf?la=en&hash=D28F6D67BC4B97DDCCDE91AF8111283A39950563

[13] In a separate but analogous regard, I have noted to my international colleagues that in at least one key area of shared, global concern—enforcement of anti-corruption laws such as the Foreign Corrupt Practices Act which are facially analogous across many jurisdictions—the U.S. has been substantially more active than many of our international counterparts for many years.

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