On September 8, 2026, the staff (the “Staff”) of the Division of Corporation Finance of the Securities and Exchange Commission (the “SEC”) announced that the SEC is expanding its nonpublic draft registration statement review accommodations to issuers of asset-backed securities (“ABS Issuers”) that file on Forms SF-1 and SF-3.[1] The new accommodations for ABS Issuers:

  • permit the submission of draft initial registration statements (including amendments thereto and comment letter responses) on Form SF-1 or Form SF-3 for nonpublic review for ABS Issuers that are filing such form for the first time or for the first time in a particular asset class, or do not have an effective registration statement (for Form SF-3 only); and
  • permit the submission of draft initial renewal or repeat registration statements (but not amendments thereto) on Form SF-1 or SF-3 for nonpublic review.

BACKGROUND

In 2012, the Jumpstart Our Business Startups Act (the “JOBS Act”) established the SEC’s confidential review process allowing emerging growth companies (“EGCs”) to submit draft registration statements for initial public offerings (“IPOs”) for confidential, nonpublic Staff review. The confidential process was intended to allow an EGC to defer the public disclosure of certain material or sensitive information until closer to the IPO’s marketing. If the EGC decided not to proceed with the IPO, this confidential information would not be publicly disclosed. Building on the success of the JOBS Act provisions, in 2017, the Staff extended to all issuers the ability to submit confidentially (i) draft registration statements under the Securities Act of 1933, as amended (the “Securities Act”), (ii) IPOs under Section 12(b) of the Exchange Act of 1934, as amended (the “Exchange Act’), and (iii) most securities offerings made within the first 12 months of an issuer becoming an SEC-reporting company.

In March 2025, the Staff expanded availability of the confidential review process to the initial registration statements of any class of securities registered under the Exchange Act as well as to special purpose acquisition companies in connection with business combination transactions under certain circumstances.

ABS ACCOMMODATIONS

Initial Registrations

The Staff will accept for nonpublic review draft initial registration statements on Form SF-1 or Form SF-3 if they fall into one of three categories: (1) an initial registration statement of a depositor that has not previously filed a Securities Act registration statement on either Form SF-1 or SF-3; (2) a new Form SF-3 filed by a depositor that does not have an effective registration statement at the time of the draft submission; or (3) a new Form SF-1 or SF-3 filed by a depositor registering an offering in an asset class for which it does not currently have an effective Securities Act registration statement (each of (1), (2) and (3), an “Initial Registration”). The draft nonpublic review process for Initial Registrations applies to the entire course of the SEC’s review, including responses to Staff comment letters and amendments to the registration statement. For Initial Registrations, the ABS Issuer must confirm in a cover letter to the nonpublic draft submission that it will publicly file its registration statement and all nonpublic draft submissions at least 15 days prior to any road show or, in the absence of a road show, at least 15 days prior to the requested effective date.

All Other SF-1 and SF-3 Registrations

The Staff will also accept for nonpublic review draft initial registration statements on Form SF-1 or SF-3 that do not qualify as Initial Registrations (e.g., a Form SF-3 filed by a depositor with an existing effective shelf, or a Form SF-1 filed by a depositor that has previously had a Form SF-1 or SF-3 declared effective) (“Non-Initial Registrations”). For these Non-Initial Registrations, the ABS Issuer must confirm in a cover letter to the nonpublic draft submission that it will file the registration statement and nonpublic draft submission publicly on EDGAR at least two business days prior to any requested effective time and date. Unlike Initial Registrations, the Staff will limit their nonpublic review of Non-Initial Registrations to the first submission only; responses to Staff comments and amendments to the Non-Initial Registrations must be publicly filed. At the time any comment response or amendment is filed, the ABS Issuer should also publicly file the draft initial registration statement it had previously submitted for nonpublic review. Once a registration statement is filed publicly, the Staff will continue to review following their normal procedures and will act upon requests for acceleration in accordance with Securities Act Rule 461.

It is also important for ABS Issuers that have an existing effective Form SF-3 to be aware that filing a renewal Form SF-3 for nonpublic review will likely not grant the ABS Issuer a 180 day effectiveness extension pursuant to Rule 415(a)(5)(ii) under the Securities Act. That extension will likely only be granted upon the public filing of the renewal Form SF-3.

Procedural Requirements and Other Considerations

  • Substantially Complete Submissions: Draft registration statements should be substantially complete when submitted.
  • Confidential Treatment: ABS Issuers should consider Rule 83 (17 CFR 200.83) when submitting drafts for nonpublic review. ABS Issuers may submit confidential treatment requests electronically using submission type DRSLTR alongside the draft, and should include a Rule 83 legend at the top of each page. Where possible, the Staff will keep submitted drafts and related correspondence confidential under applicable law.
  • EDGAR Submission: Draft registration statements should be submitted using EDGAR submission type DRS, with detailed instructions available in Volume II of the EDGAR Filer Manual.
  • Signatures and Filing Fees: Draft registration statements are not required to be signed, and the Securities Act registration filing fee, if applicable, is not due until the registration statement is first publicly filed on EDGAR.
  • Comment Letters: Consistent with current practice, the Staff comment letters and issuer responses will be publicly released on EDGAR no earlier than 20 business days following the effective date of the registration statement.
  • Section 5 Considerations: Submission of a draft registration statement does not constitute a “filing” for purposes of the Section 5(c) prohibition on pre-filing offers, and the Rule 134 safe harbor is not available until the issuer publicly files its registration statement.

Expedited Processing and Contact Information

The Staff will consider reasonable requests to expedite processing of both draft and filed registration statements and encourages ABS Issuers and their advisors to discuss transaction timing with the Staff.  The Staff will also consider reasonable requests to shorten the two-business-day period between public filing and effectiveness applicable to Non-Initial Registrations. Questions about eligibility may be directed to ABSDraftPolicy@sec.gov.

PRACTICAL IMPLICATIONS AND THOUGHTS ON NEXT STEPS

ABS Issuers taking advantage of the Staff’s confidential review process should discuss the timing of the proposed transaction with the Staff member assigned to review their submissions. The Staff noted that it will process confidential submissions and filed registration statements in the normal course, but indicated that it will consider reasonable requests to expedite processing of drafts. Issuers wishing expedited processing should speak to the Staff members responsible for reviewing their registration statements as early in the review process as possible, and provide ongoing updates on timing to the Staff.

Overall, the additional flexibility and generally accommodative approach from the Staff is welcome, especially for Initial Registrations. However, the utility is less clear for Non-Initial Registrations. If, for example, an ABS Issuer is not making significant, material changes to the disclosure in a renewal Form SF-3 registration statement, it may not be worth the effort of using the draft submission process. We hope that the Staff considers expanding the accommodation for a full nonpublic review to Non-Initial Registrations in the future.

[1] Available at https://www.sec.gov/about/divisions-offices/division-corporation-finance/accommodations-issuers-asset-backed-securities-submitting-draft-registration-statements