Encouraging Public Offerings Act of 2023

IIB 118TH CONGRESS 1ST SESSION H. R. 2793 IN THE SENATE OF THE UNITED STATES JUNE 6, 2023 Received; read twice and referred to the Committee on Banking, Housing, and Urban Affairs AN ACT To amend the Securities Act of 1933 to expand the ability to use testing the waters and confidential draft registra- tion submissions, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 00:52 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2793.RFS H2793 kjohnson on DSK79L0C42PROD with BILLS 2 HR 2793 RFS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Encouraging Public 2 Offerings Act of 2023’’. 3 SEC. 2. EXPANDING TESTING THE WATERS. 4 Section 5(d) of the Securities Act of 1933 (15 U.S.C. 5 77e(d)) is amended— 6 (1) by striking ‘‘Notwithstanding’’ and insert- 7 ing the following: 8 ‘‘(1) IN GENERAL.—Notwithstanding’’; 9 (2) by striking ‘‘an emerging growth company 10 or any person authorized to act on behalf of an 11 emerging growth company’’ and inserting ‘‘an issuer 12 or any person authorized to act on behalf of an 13 issuer’’; and 14 (3) by adding at the end the following: 15 ‘‘(2) ADDITIONAL REQUIREMENTS.— 16 ‘‘(A) IN GENERAL.—The Commission may 17 promulgate regulations, subject to public notice 18 and comment, to impose such other terms, con- 19 ditions, or requirements on the engaging in oral 20 or written communications described under 21 paragraph (1) by an issuer other than an 22 emerging growth company as the Commission 23 determines appropriate. 24 ‘‘(B) REPORT TO CONGRESS.—Prior to any 25 rulemaking described under subparagraph (A), 26 VerDate Sep 11 2014 00:52 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2793.RFS H2793 kjohnson on DSK79L0C42PROD with BILLS 3 HR 2793 RFS the Commission shall submit to Congress a re- 1 port containing a list of the findings supporting 2 the basis of the rulemaking.’’. 3 SEC. 3. CONFIDENTIAL REVIEW OF DRAFT REGISTRATION 4 STATEMENTS. 5 Section 6(e) of the Securities Act of 1933 (15 U.S.C. 6 77f(e)) is amended— 7 (1) in the heading, by striking ‘‘EMERGING 8 GROWTH COMPANIES’’ and inserting ‘‘CONFIDEN- 9 TIAL REVIEW OF DRAFT REGISTRATION STATE- 10 MENTS’’; 11 (2) by redesignating paragraph (2) as para- 12 graph (4); and 13 (3) by striking paragraph (1) and inserting the 14 following: 15 ‘‘(1) IN GENERAL.—Any issuer may, with re- 16 spect to an initial public offering, initial registration 17 of a security of the issuer under section 12(b) of the 18 Securities Exchange Act of 1934 (15 U.S.C. 78l(b)), 19 or follow-on offering, confidentially submit to the 20 Commission a draft registration statement, for con- 21 fidential nonpublic review by the staff of the Com- 22 mission prior to public filing, provided that the ini- 23 tial confidential submission and all amendments 24 VerDate Sep 11 2014 00:52 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2793.RFS H2793 kjohnson on DSK79L0C42PROD with BILLS 4 HR 2793 RFS thereto shall be publicly filed with the Commission 1 not later than— 2 ‘‘(A) in the case of an initial public offer- 3 ing, 10 days before the effective date of such 4 registration statement; 5 ‘‘(B) in the case of an initial registration 6 of a security of the issuer under such section 7 12(b), 10 days before listing on an exchange; or 8 ‘‘(C) in the case of a follow-on offering, 48 9 hours before the effective date of such registra- 10 tion statement. 11 ‘‘(2) FOLLOW-ON OFFERING DEFINED.—In this 12 subsection, the term ‘follow-on offering’ means an 13 offering by an issuer during the 12-month period be- 14 ginning on the effective date of the initial public of- 15 fering of the issuer or the initial registration of a se- 16 curity of the issuer under section 12(b) of the Secu- 17 rities Exchange Act of 1934 (15 U.S.C. 78l(b)). 18 ‘‘(3) ADDITIONAL REQUIREMENTS.— 19 ‘‘(A) IN GENERAL.—The Commission may 20 promulgate regulations, subject to public notice 21 and comment, to impose such other terms, con- 22 ditions, or requirements on the submission of 23 draft registration statements described under 24 this subsection by an issuer other than an 25 VerDate Sep 11 2014 00:52 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2793.RFS H2793 kjohnson on DSK79L0C42PROD with BILLS 5 HR 2793 RFS emerging growth company as the Commission 1 determines appropriate. 2 ‘‘(B) REPORT TO CONGRESS.—Prior to any 3 rulemaking described under subparagraph (A), 4 the Commission shall submit to Congress a re- 5 port containing a list of the findings supporting 6 the basis of the rulemaking.’’. 7 Passed the House of Representatives June 5, 2023. Attest: CHERYL L. JOHNSON, Clerk. VerDate Sep 11 2014 00:52 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2793.RFS H2793 kjohnson on DSK79L0C42PROD with BILLS