The Securities and Exchange Commission (the “SEC”) has proposed amendments that are intended to modernize, simplify, and enhance certain financial disclosure requirements in Regulation S-K. The proposals would eliminate the requirements to provide selected financial data and supplementary financial data and would amend the Management’s Discussion and Analysis (“MD&A”) requirement to revise or eliminate certain disclosure obligations. These proposals are the latest in the SEC’s disclosure effectiveness efforts.
The proposed amendments are part of the ongoing evaluation of SEC disclosure requirements that was recommended in the staff’s Report on Review of Disclosure Requirements in Regulation S-K (the “Regulation S-K Study”), which was mandated by Section 108 of the Jumpstart Our Business Startups Act. Based on the Regulation S-K Study’s recommendation, the SEC staff (the “Staff”) initiated an evaluation of the information that companies are required to disclose, how that information is presented, where the information is disclosed, and how to better leverage technology as part of these efforts. In developing the latest proposed amendments to the financial data and MD&A requirements, the SEC considered input from comment letters, the Staff’s experience from reviewing filings, and changes in the regulatory and business landscape since the adoption of Regulation S-K.
Item 301 of Regulation S-K requires certain public companies to furnish selected financial data in comparative tabular form for each of the company’s last five fiscal years and any additional fiscal years necessary to keep the information from being misleading. Instruction 1 to Item 301 states that the purpose of the item is to supply, in a convenient and readable format, selected financial data that highlights certain significant trends in the company’s financial condition and results of operations, while Instruction 2 to Item 301 lists specific items that must be included, subject to appropriate variation to conform to the nature of the company’s business, and provides that companies may include additional items they believe would enhance an understanding of, and highlight, other trends in their financial condition or results of operations. Smaller reporting companies are not required to provide Item 301 information, while emerging growth companies that are providing the information called for by Item 301 in a registration statement under the Securities Act of 1933 (the “Securities Act”) need not present selected financial data for any period prior to the earliest audited financial statements presented in connection with the emerging growth company’s initial public offering of its common equity securities. In addition, an emerging growth company that is providing the information called for by Item 301 in a registration statement, periodic report, or other report filed under the Securities Exchange Act of 1934 (the “Exchange Act”) need not present selected financial data for any period prior to the earliest audited financial statements presented in connection with its first registration statement that became effective under the Exchange Act or Securities Act.
In a 2016 concept release on disclosure effectiveness (the “Concept Release”), the SEC solicited comment on whether to retain, modify, or eliminate Item 301 of Regulation S-K. Many commenters recommended eliminating Item 301 completely, questioned its usefulness, or requested that the requirement be revised to allow companies to omit the earliest two years, while some commenters recommended retaining the disclosure requirement.
The SEC now proposes to eliminate Item 301 of Regulation S-K, noting that when the precursor to Item 301 was adopted in 1970, annual reports were not quickly and easily accessible, while today, the information is readily available on EDGAR. The SEC notes that companies “can continue to include a tabular presentation of relevant financial or other information discussed in MD&A, to the extent they believe that such a presentation would be useful to an understanding of the disclosure.” The SEC believes that eliminating Item 301 would continue to allow companies the flexibility to present a meaningful MD&A discussing material trend information, while easing compliance burdens.
Item 302(a)(1) of Regulation S-K requires disclosure of selected quarterly financial data of specified operating results and Item 302(a)(2) of Regulation S-K requires disclosure of variances in these results from amounts previously reported on a Form 10-Q. Item 302(a) does not apply to smaller reporting companies or foreign private issuers, first time SEC-filers conducting IPOs, and companies required to file reports under Section 15(d) of the Exchange Act. In situations where Item 302(a) of Regulation S-K applies, it requires specific information for each full fiscal quarter within the two most recent fiscal years and any subsequent period for which financial statements are included or required by Article 3 of Regulation S-X. Item 302(a)(3) of Regulation S-K requires a description of the effect of any discontinued operations and unusual or infrequently occurring items recognized in each quarter, as well as the aggregate effect and the nature of year-end or other adjustments that are material to the results of that quarter. If a company’s financial statements have been reported on by an accountant, Item 302(a)(4) of Regulation S-K requires that accountant to follow appropriate professional standards and procedures regarding the data required by Item 302(a).
In the Concept Release, the SEC solicited comment on whether to retain, modify, or eliminate Item 302. In response, a few commenters recommended retaining the disclosure item, some commenters recommended streamlining the requirement, and most commenters recommended eliminating the requirement altogether.
The SEC now proposes to eliminate Item 302(a), stating that it believes the requirement results in duplicative disclosures. The SEC notes that the precursor to Item 302 was adopted at a time when quarterly data was “reported on an extremely abbreviated basis,” while today, information about quarterly results is readily available on EDGAR.
Item 302(b) of Regulation S-K requires companies engaged in oil and gas producing activities, other than smaller reporting companies, to disclose information about those activities, and the same disclosure is also required by U.S. generally accepted accounting principles (“U.S. GAAP”); however, unlike the U.S. GAAP requirement, Item 302(b) incrementally requires that the disclosure be provided for each period presented. In 2018, the SEC referred Item 302 to the Financial Accounting Standards Board (the “FASB”) for potential incorporation into U.S. GAAP because of the overlap. On May 6, 2019, the FASB issued proposed Accounting Standards Update, Disclosure Improvements: Codification Amendments in Response to the SEC’s Disclosure Update and Simplification, which would amend U.S. GAAP to require the incremental disclosure called for by Item 302(b) and disclosure of oil and gas producing activities for each period presented. The SEC proposes to eliminate Item 302(b) of Regulation S-K, subject to the FASB finalizing its proposed amendments to U.S. GAAP.
Item 303 of Regulation S-K requires disclosure of information relevant to assessing a company’s financial condition, changes in financial condition, and results of operations. The Concept Release solicited comment on the overall objectives of MD&A, as well as specific subsections of Item 303 of Regulation S-K. Commenters offered a variety of suggestions on ways in which the SEC may improve MD&A, some of which were adopted in 2019.
The first paragraph of current Item 303(a) of Regulation S-K specifies that companies must discuss their financial condition, changes in financial condition, and results of operations for full fiscal years. The paragraph goes on to set forth the items that must be included in this discussion, including liquidity, capital resources, results of operations, off-balance sheet arrangements, contractual obligations, and any other information a company believes would be necessary to understand its financial condition, changes in financial condition, and results of operations. The paragraph also instructs that discussions of capital resources and liquidity may be combined when the topics are interrelated. Further, the paragraph states that a company must provide a discussion of business segments and/or of subdivisions when, in the company’s judgment, such a discussion would be appropriate for understanding the company’s business. This discussion must focus on each relevant, reportable segment and/or other subdivision of the business and on the entire company. There are also 14 instructions to Item 303(a) of Regulation S-K.
The SEC proposes to add a new Item 303(a) to succinctly state the purposes of MD&A by incorporating a portion of the substance of Instruction 1, as well as much of the substance of Instructions 2 and 3, into the item. In this regard, the proposed language would articulate the objectives of MD&A, which is for companies to provide disclosure regarding:
The SEC also proposes to codify the guidance that a company should provide a narrative explanation of its financial statements that enables investors to see a company “through the eyes of management” into the description of MD&A objectives.
The SEC proposes to re-caption the current Item 303(a) as Item 303(b), which will continue to apply to all MD&A disclosures, while retaining the current language that outlines what is to be covered in the discussion of a company’s financial condition, changes in financial condition, and results of operations. In addition, the SEC proposes to add product lines as an example of other subdivisions of a company’s business that should be discussed where, in the company’s judgment, such a discussion would be necessary to an understanding of the company’s business.
The SEC proposes to move to proposed Item 303(b) that portion of current Instruction 4 to Item 303(a) that requires a description of the causes of material changes from year-to-year in line items of the financial statements to the extent necessary to an understanding of the company’s business as a whole. The SEC proposes to amend that language to clarify that MD&A requires a narrative discussion of the “underlying reasons” for material changes from period-to-period in one or more line items in quantitative and qualitative terms, rather than only the “cause” for material changes. The SEC also proposes to amend the language to clarify that companies should discuss material changes within a line item, even when such material changes offset each other.
The SEC also proposes several other amendments to further streamline Item 303:
Item 303(a)(2) of Regulation S-K requires a company to discuss its material commitments for capital expenditures as of the end of the latest fiscal period, and to indicate the general purpose of such commitments and the anticipated sources of funds needed to fulfill such commitments. A company also must discuss any known material trends, favorable or unfavorable, in its capital resources, and indicate any expected material changes in the mix and relative cost of such resources. The discussion must consider changes between equity, debt, and any off-balance sheet financing arrangements.
The SEC proposes to amend current Item 303(a)(2) to specify, consistent with the guidance in the SEC’s 2003 MD&A Interpretive Release, that a company should broadly disclose material cash commitments, including, but not limited, to capital expenditures. The proposed amendment would require a company to describe its material cash requirements, including commitments for capital expenditures, as of the latest fiscal period, the anticipated source of funds needed to satisfy such cash requirements, and the general purpose of such requirements. The SEC notes that this proposal is intended to require companies to identify and disclose known material cash requirements, which, depending on the company, could include funds necessary to maintain current operations, complete projects underway, and achieve stated objectives or plans, as well as commitments for capital or other expenditures. The SEC indicates that this proposal is intended to modernize Item 303(a)(2) by specifically requiring disclosure of material cash requirements in addition to capital expenditures, recognizing that certain expenditures and cash commitments that are not necessarily capital investments in property, plant, and equipment may be increasingly important to companies, especially “those for which human capital or intellectual property are key resources.”
Item 303(a)(3)(ii) of Regulation S-K requires a company to describe any known trends or uncertainties that have had or that the company reasonably expects will have a material impact (favorable or unfavorable) on net sales or revenues or income from continuing operations. If the company knows of events that will cause a material change in the relationship between costs and revenues, that change in the relationship must be disclosed under this disclosure requirement.
The SEC proposes to amend Item 303(a)(3)(ii) to provide that when a company knows of events that are reasonably likely to cause (as opposed to will cause) a material change in the relationship between costs and revenues, such as known or reasonably likely future increases in costs of labor or materials or price increases or inventory adjustments, the reasonably likely change must be disclosed. The SEC notes that this proposed amendment would conform the language to other Item 303 disclosure requirements for known trends and would align Item 303(a)(3)(ii) with the SEC’s guidance on forward-looking disclosure.
Item 303(a)(3)(iii) of Regulation S-K specifies that, to the extent financial statements disclose material increases in net sales or revenues, a company must provide a narrative discussion of the extent to which such increases are attributable to increases in prices, or to increases in the volume or amount of goods or services being sold, or to the introduction of new products or services. The SEC proposes to amend Item 303(a)(3)(iii) to codify guidance that results of operations discussion should describe not only increases but also decreases in net sales or revenues and to clarify the requirement by tying the required disclosure to “material changes” in net sales or revenues, rather than solely to “material increases” in those line items.
Item 303(a)(3)(iv) of Regulation S-K generally requires companies, for the three most recent fiscal years, or for those fiscal years in which the company has been engaged in business, whichever period is shortest, to discuss the impact of inflation and price changes on their net sales, revenue, and income from continuing operations. Instruction 8 to Item 303(a) clarifies that a company must provide a discussion of the effects of inflation and other changes in prices only to the extent it is material. Instruction 8 further states that the discussion may be made in whatever manner appears appropriate under the circumstances and that no specific numerical financial data is required, except as required by Rule 3-20(c) of Regulation S-X, which applies to foreign private issuers. Instruction 9 to Item 303(a) states that companies that elect to disclose supplementary information on the effects of changing prices may combine such disclosures with the Item 303(a) discussion and analysis or provide it separately with an appropriate cross-reference.
The SEC proposes to eliminate Item 303(a)(3)(iv) and Instructions 8 and 9 to Item 303(a), in order to “encourage companies to focus their MD&A on material information that is tailored to their respective facts and circumstances.” The SEC notes that companies “would still be expected to discuss the impact of inflation or changing prices if they are part of a known trend or uncertainty that has had, or the company reasonably expects to have, a material favorable or unfavorable impact on net sales, or revenue, or income from continuing operations.”
Item 303(a)(4) of Regulation S-K requires, in a separately captioned section, a discussion of a company’s off-balance sheet arrangements that have, or are reasonably likely to have, a current or future effect on a company’s financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures, or capital resources that is material to investors. For the purpose of this item, an “off-balance sheet arrangement” is defined as certain guarantees, retained or contingent interests in assets transferred to an unconsolidated entity, obligations under certain derivative instruments, and variable interests in any unconsolidated entity. To the extent necessary to an understanding of such arrangements and their effect, companies must disclose: (i) the nature and business purpose of such off-balance sheet arrangements; (ii) the importance to the company of such off-balance sheet arrangements with respect to a company’s liquidity, capital resources, market risk support, credit risk support, or other benefits; (iii) the amounts of revenues, expenses, and cash flows arising from such arrangements; the nature and amounts of any interests retained, securities issued, and other indebtedness incurred in connection with such arrangements; and the nature and amounts of any other obligations or liabilities (including contingent obligations or liabilities) of the company arising from such arrangements that are, or are reasonably likely to become material and the triggering events or circumstances that could cause them to arise; and (iv) any known event, demand, commitment, trend, or uncertainty that will result in, or is reasonably likely to result in, the termination, or material reduction in availability, of a company’s off-balance sheet arrangements that provide material benefits and the course of action that the company has taken or proposes to take in response to any such circumstances.
In the Concept Release, the Commission solicited comment on the importance of disclosure elicited by Item 303(a)(4) and whether and how the requirements should be revised. While some commenters supported retaining the requirements, several commenters encouraged the Commission to eliminate or amend the disclosure item, indicating that the requirements substantially overlap with U.S. GAAP.
The SEC proposes to replace current Item 303(a)(4) with a new Instruction to Item 303(b) that would require companies to discuss commitments or obligations, including contingent obligations, arising from arrangements with unconsolidated entities or persons that have, or are reasonably likely to have, a material current or future effect on a company’s financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, cash requirements, or capital resources. The proposed instruction would augment the current requirement in Item 303(a)(2) that specifically requires consideration of off-balance sheet financing arrangements as part of the capital resources discussion. The SEC notes that this more principles-based approach is appropriate, particularly in light of the updates that have been made to U.S. GAAP, which have resulted in overlap between U.S. GAAP requirements and Item 303(a)(4).
Item 303(a)(5) of Regulation S-K requires that companies (other than smaller reporting companies) must disclose in tabular format their known contractual obligations. This item requires a company to disclose contracts by type of obligations, the overall payments due, and by prescribed time periods.
In the Concept Release, the SEC solicited comment on the contractual obligations table. While some commenters recommended retaining and enhancing the disclosure requirement, many commenters recommended that the Commission eliminate the item in its entirety. In the FAST Act Report, Staff recommended eliminating the contractual obligations table while enhancing the liquidity discussion requirements.
The SEC proposes to eliminate Item 303(a)(5). The SEC notes that eliminating the requirement would be consistent with the SEC’s objective “to promote the principles-based nature of MD&A and streamline disclosures by reducing redundancy.” The SEC indicates that much of the information presented in response to Item 303(a)(5) overlaps with information required in the notes to the financial statements pursuant to U.S. GAAP. Further, the SEC notes that, under its capital resources proposals discussed above, companies would be required to discuss material cash requirements, including material contractual obligations.
The SEC proposes to amend Item 303(a) of Regulation S-K to explicitly require disclosure of critical accounting estimates, consistent with prior SEC guidance on the topic. The SEC notes that, “by proposing to codify this requirement, our intent is to eliminate disclosure that duplicates the financial statement discussion of significant accounting policies and, instead, promote enhanced analysis of measurement uncertainties.”
As proposed, a “critical accounting estimate” would be defined as an estimate made in accordance with GAAP that involves a significant level of estimation uncertainty and has had, or is reasonably likely to have, a material impact on the company’s financial condition or results of operations. The SEC notes that, by focusing on estimation uncertainties, it intends to avoid repetition of significant accounting policy footnotes. For each critical accounting estimate, the proposed amendments would require companies “to disclose, to the extent material, why the estimate is subject to uncertainty, how much each estimate has changed during the reporting period, the sensitivity of the reported amounts to the material methods, assumptions, and estimates underlying the estimate’s calculation.”
Item 303(b) of Regulation S-K requires companies to provide MD&A disclosure for interim periods that enables market participants to assess material changes in financial condition and results of operations between specified periods. Item 303(b)(1) of Regulation S-K requires companies to discuss any material change in financial condition from the end of the preceding fiscal year to the date of the most recent interim balance sheet. Item 303(b)(2) of Regulation S-K requires companies to discuss any material changes in their results of operations for the most recent fiscal year-to-date period presented in their income statement, along with a similar discussion of the corresponding year to-date period of the preceding fiscal year. If a company is required or elects to provide an income statement for the most recent fiscal quarter, the discussion must also cover material changes with respect to that fiscal quarter and the corresponding fiscal quarter in the preceding fiscal year. Item 303(b)(2) also states that companies subject to Rule 3-03(b) of Regulation S-X providing statements of comprehensive income for the 12-month period ended as of the date of the most recent interim balance sheet must discuss material changes of that 12-month period as compared to the preceding fiscal year rather than the preceding period.
After considering comments provided in response to the SEC’s request for comments concerning the interim reporting process, the SEC proposes to amend Item 303(b) (to be renumbered as proposed Item 303(c)) “to allow for flexibility in comparisons of interim periods and to simplify the item.” As proposed, the item would permit companies to compare their most recently completed quarter to either the corresponding quarter of the prior year (as is currently required) or to the immediately preceding quarter. If a company elects to discuss changes from the immediately preceding sequential quarter, the company must provide summary financial information that is the subject of the discussion for that quarter or identify the prior filing on EDGAR that presents the information. Under the proposed amendment, if a company changes the comparison from the prior interim period comparison, the company would be required to explain the reason for the change and present both comparisons in the filing where the change is announced.
The SEC also proposes amendments to simplify Item 303(b) (to be renumbered as proposed Item 303(c)) that would:
The SEC proposes to eliminate the language of the item that requires companies subject to Rule 3-03(b) of Regulation S-X that elect to provide a statement of comprehensive income for the 12 month period ended as of the date of the most recent interim balance sheet to discuss material changes in that 12-month period with respect to the preceding fiscal year, rather than the corresponding preceding period, providing these companies the same flexibility to make the most meaningful comparisons in their interim period MD&A. Further, the SEC proposed to delete Instructions 2, 3, 5, 6, 7, and 8 to current paragraph (b).
Item 303(c) of Regulation S-K states that the safe harbors provided in Section 27A of the Securities Act and 21E of the Exchange Act apply to all forward-looking information provided in response to Item 303(a)(4) (off-balance sheet arrangements) and Item 303(a)(5) (contractual obligations), provided such disclosure is made by certain enumerated persons. Item 303(c) confirms application of the statutory safe harbors to Item 303(a)(4) and Item 303(a)(5), and states that all of the required disclosures under these two items are deemed to be “forward-looking statements” as that term is defined in the statutory safe harbors, except for historical facts. Item 303(c) further states that the “meaningful cautionary statements” element of the statutory safe harbors is satisfied if a registrant satisfies all of the Item 303(a)(4) requirements.
The SEC proposes to eliminate Item 303(c), because it refers to disclosure requirements that the SEC proposes to eliminate. The SEC notes that the proposed amendments are not intended to alter the application of the statutory safe harbor provisions of the Private Securities Litigation Reform Act.
Item 303(d) of Regulation S-K states that a smaller reporting company may provide Item 303(a)(3)(iv) information for the most recent two fiscal years if it provides financial information on net sales and revenues and income from continuing operations for only two years. Item 303(d) also states that a smaller reporting company is not required to provide the contractual obligations table specified in Item 303(a)(5). The SEC proposes to eliminate Item 303(d), given the proposed elimination of Items 303(a)(3)(iv) and (a)(5). The SEC notes that smaller reporting companies may continue to rely on Instruction 1 to Item 303(a), which states that a smaller reporting company’s discussion shall cover the two-year period required in Article 8 of Regulation S-X.
The SEC proposes corresponding amendments that would apply to foreign private issuers providing disclosure required by Form 20-F or Form 40-F. The SEC also proposes amendments to current Instruction 11 to Item 303 of Regulation S-K, which specifically applies to foreign private issuers that choose to file on domestic forms.
The SEC proposes conforming amendments to numerous rules and forms to reflect the proposed amendments focused on Item 303 of Regulation S-K.
The SEC’s proposed amendments to the MD&A requirements are subject to a 60-day comment period. The SEC will likely consider the adoption of these amendments in the context of its overall disclosure effectiveness initiative.
 Release No. 33-10750, Management’s Discussion and Analysis, Selected Financial Data, and Supplementary Financial Information (Jan. 30, 2020), available at: https://www.sec.gov/rules/proposed/2020/33-10750.pdf.
 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.
 Release No. 33-10064, Business and Financial Disclosure Required by Regulation S-K (Apr. 13, 2016), available at: https://www.sec.gov/rules/concept/conceptarchive/conceptarch2016.shtml.
 FASB, File Reference No. 2019-600, available at: https://www.fasb.org/jsp/FASB/Document_C/DocumentPage&cid=1176172611572.
 Release No. 33-8350, Commission Guidance Regarding Management’s Discussion and Analysis of Financial Condition and Results of Operation (Dec. 19, 2003), available at: https://www.sec.gov/rules/interp/33-8350.htm.
 Report on Modernization and Simplification of Regulation S-K (Nov. 23, 2016), available at https://www.sec.gov/reportspubs/sec-fast-act-report-2016.pdf.
 See Release No. 33-8098, Disclosure in Management’s Discussion and Analysis about the Application of Critical Accounting Policies (May 10, 2002), available at: https://www.sec.gov/rules/proposed/33-8098.htm.