United States

Proposed amendments to modernize and simplify Regulation S-K


Although the primary provisions of the Fixing America’s Surface Transportation (FAST) Act related to funding for transportation improvements, the Act also required the SEC to carry out a study of Regulation S-K to determine how best to modernize and simplify disclosure requirements so as to reduce the costs and burdens on registrants while still providing all material information to investors. Based on recommendations in the FAST Act study and other considerations, the SEC recently proposed amendments in Release No. 33-10425, FAST Act Modernization and Simplification of Regulation S-K, including the following, among many others:

  • Description of Property (Item 102) – The proposed amendments would require the Item 102 disclosures only to the extent physical properties are material to the registrant. However, the disclosures would not be modified for registrants in the mining, real estate or oil and gas industries due to the significance of the disclosures for those industries.
  • Management’s Discussion and Analysis of Financial Condition and Results of Operations (MD&A) (Item 303) – Under the proposal, when financial statements included in a filing cover three years, discussion about the earliest year would not be required if (a) that discussion is not material to an understanding of the registrant’s financial condition, changes in financial condition, and results of operations, and (b) the registrant has filed its prior-year Form 10-K on EDGAR containing MD&A of the earliest of the three years included in the financial statements of the current filing.
  • Information Omitted from Exhibits (Item 601) – The proposed amendments would permit registrants to omit entire schedules and similar attachments to exhibits unless they contain material information and unless that information is not otherwise disclosed in the exhibit or the disclosure document. Registrants would be required to provide with each exhibit a list briefly identifying the contents of any omitted schedules and attachments. The proposed amendments also would permit the omission of personally identifiable information without submitting a confidential treatment request. Further, a registrant would be permitted to omit information in exhibits that is not material and would be competitively harmful without having to first seek confidential treatment from the SEC.
  • Material Contracts (Item 601) – Item 601 requires registrants to file every material contract not made in the ordinary course of business, provided the contract (a) is to be performed at or after the filing of the registration statement or report or (b) was entered into not more than two years before such filing. The proposal would limit the two-year look-back requirement to newly reporting registrants.
  • Subsidiaries of the Registrant and Entity Identifiers (Item 601 (b) (21) (i)) – A registrant is required to file an exhibit listing all of its subsidiaries, the state or other jurisdiction of incorporation or organization of each and the names under which such subsidiaries do business. The proposal would require registrants to also include in the exhibit a Legal Entity Identifier (a 20-character alpha-numeric code that allows for unique identification) of the registrant and each subsidiary listed, if one has been obtained.
  • Incorporation by Reference – The proposed amendments would streamline the requirements associated with incorporation by reference and facilitate investor access to incorporated documents through the use of hyperlinks.