SEC Staff Issues Temporary Relief for Some Late Section 16(a) Reports

The staff of the Division of Corporation Finance (Staff) of the U.S. Securities and Exchange Commission (SEC) has published two FAQs that provide temporary, short-term, no-action relief for directors and officers of foreign private issuers (FPIs) and US domestic reporting companies who are unable to file beneficial ownership reports under Section 16(a) of the Securities Exchange Act of 1934 (Exchange Act) because they did not receive access credentials needed to file the required reports through the SEC’s EDGAR Next electronic filing platform.

The FAQs apply to Section 16(a) beneficial ownership reports that were required to be filed on or before March 18, 2026. The Holding Foreign Insiders Accountable Act (HFIAA), which became effective on December 18, 2025, required directors and officers of FPIs to file these reports no later than March 18, 2026.  The FAQs state that the Staff will not recommend enforcement action against directors and officers who failed to make timely filings of a required Section 16(a) report if the conditions of the relevant FAQ have been satisfied.

As we discussed in a recent client alert, the preparation and filing of Form ID applications for EDGAR filing credentials, which require individual review and approval by the SEC staff, can result in unanticipated filing delays.  

The FAQs are intended to provide a temporary grace period for late filings caused by a lack of EDGAR filing access for directors and officers who were unable to make timely filings because their Form ID applications had not been processed by March 18, 2026, provided that the filing is made by April 1, 2026 and certain other conditions are met. The conditions for directors and officers of FPIs and those for directors and officers of domestic reporting companies are generally similar but differ in two respects.

Separately, the Staff recently issued a no-action letter confirming that the Staff would not recommend enforcement action for late filings by directors and officers of FPIs who experienced conditions that materially affected their ability to file timely Section 16(a) beneficial ownership reports that were due by March 18, 2026 if the conditions are direct results of the current war in the Mid-East and the reports are filed by April 20, 2026.

Conditions for FPI Directors and Officers Unable to Obtain EDGAR Filing Credentials

The conditions that apply to directors and officers of FPIs, as stated in FAQ 6, are:

• the person must have submitted a completed Form ID application and the related required documents before March 18, 2026;
• the person did not receive EDGAR access by March 18, 2026; and
• the person files the required Section 16(a) report after receiving EDGAR access, but in no event later than April 1, 2026.

Conditions for Domestic Reporting Company Directors and Officers Unable to Obtain EDGAR Filing Credentials

The conditions that apply to directors and officers of domestic reporting companies are stated in FAQ 7, which includes two additional requirements shown in italics below:

• the person must have submitted a completed Form ID application and the related required documents before the filing deadline for the required Section 16(a) report if such deadline is between December 18, 2025 and March 18, 2026;
• the person did not receive EDGAR access by the filing deadline for the required Section 16(a) report; and
• the person files the required Section 16(a) report after receiving EDGAR access, but in no event later than April 1, 2026.

The additional conditions shown in italics are apparently intended to harmonize the conditions for FPI and domestic reporting company directors and officers. Limiting the relief for domestic reporting company filers to filings due between December 18, 2025 and April 1, 2026 reflects the fact that HFIAA did not require FPI filers to file Section 16(a) reports before its December 18, 2025 effective date.

Late Filing Disclosure Required for Domestic Reporting Company Filers

FAQ 7 states that domestic reporting companies must identify any Section 16(a) reports that are filed in reliance on its conditions as a late report in the company’s proxy statement, as required by Item 405 of Regulation S-K, which requires disclosure of delinquent Section 16(a) filings. FAQ 7 also states that domestic reporting companies can disclose that these filings were made in reliance on this no-action position in the Item 405 disclosure.  This guidance does not apply to FPIs, which are not required to disclose late filing of Section 16(a) beneficial ownership reports by their directors and officers.

No-Action Relief for Certain FPI Directors and Officers Directly Affected by Mid-East War

Separately, the Staff recently issued a no-action letter, confirming that the Staff will not recommend enforcement action if directors and officers of FPIs that have a class of equity securities registered under Section 12 of the Exchange Act and are organized or headquartered in Israel or another foreign jurisdiction in the geographical region directly affected by the current war in the Middle East if the director or officer can represent that their ability to comply with the March 18, 2026 required filing deadline has been materially affected by direct effects of the war and the director or officer files the required report(s) not later than April 20, 2026.

This guidance is based on the factual representations made in the incoming letter requesting no-action relief. Among others, the incoming request letter stated that the ability of the directors and officers to comply with the March 18, 2026 filing deadline had been materially affected by conditions that included shelter-in-place orders, intermittent losses of power, internet and telecommunications services, and ongoing severe disruptions of communications and other infrastructure.  Because the Staff’s response letter expressly cautions that “[a]ny different facts or conditions might require the [Staff] to reach a different conclusion,” companies that are considering relying on this no-action letter should evaluate the circumstances that may have affected the ability of their directors and officers to comply with the March 18, 2026 filing deadline.