On September 8, 2026, the Division of Corporation Finance of the U.S. Securities and Exchange Commission (SEC) announced that it is extending the voluntary nonpublic draft registration statement review process to issuers of asset-backed securities (ABS) filing registration statements on Forms SF-1 and SF-3.
The accommodation represents a further expansion of the enhanced accommodations first announced in March 2025, building on the framework originally established under the Jumpstart Our Business Startups Act of 2012 (JOBS Act). The stated purpose of the extension is to facilitate capital formation in the ABS market without diminishing investor protection.
Background
The nonpublic draft registration statement review process traces its origins to Title I of the JOBS Act, which in 2012 authorized emerging growth companies (EGCs) to submit confidential draft registration statements for staff review before an initial public offering.
In 2017, the division expanded the process to all issuers, regardless of EGC status. In March 2025, the division further broadened the accommodations to cover registration statements on Forms 10, 20-F, and 40-F and introduced other scope and procedural enhancements.
Throughout these expansions, ABS issuers remained outside the scope of the accommodation—presumably because Regulation AB provides a standalone regulatory framework for the registration and offering of asset-backed securities.
The September 8 announcement eliminates that exclusion by extending the nonpublic review process to ABS issuers filing on Forms SF-1 and SF-3, subject to a two-tier structure that calibrates the scope of nonpublic review to the type of registration being filed.
The Two-Tier Review Structure
The accommodation establishes two distinct tiers of nonpublic review, depending on whether the filing qualifies as an “initial registration” under the SEC staff’s framework.
Tier 1—Initial Registrations (Full Nonpublic Review)
An initial registration includes three categories of filings: (1) the initial registration statement of a depositor that has not previously filed a Securities Act registration statement on Form SF-1 or SF-3; (2) a new Form SF-3 filing by a depositor that does not have a currently effective registration statement; and (3) a new Form SF-1 or SF-3 for an asset class in which the depositor does not have an effective registration statement.
The SEC staff will review the initial draft submission and all subsequent revisions on a nonpublic basis. This provides a full confidential comment-and-response cycle, allowing the depositor to address all staff comments before the registration statement becomes publicly visible.
There is, however, a 15-day public filing window: the issuer must publicly file the registration statement and all prior nonpublic draft submissions at least 15 days before any road show or, if no road show is conducted, at least 15 days before the requested effective date. Comment letters and response letters will be released on EDGAR no earlier than 20 business days after the registration statement is declared effective.
Tier 2—All Other SF-1/SF-3 Registrations (Limited Nonpublic Review)
Tier 2 covers any Form SF-1 or SF-3 filing that does not qualify as an initial registration—for example, a replacement shelf registration statement filed by a depositor with an existing effective shelf, or a Form SF-1 filed by a repeat issuer.
For Tier 2 filings, nonpublic review is limited to the first submission only. Responses to SEC staff comments on the initial submission must be made through public filings. The applicable public filing window is two business days, consistent with Rule 461 acceleration timing. Notably, FAQ 6 in the updated FAQs uses the term “48 hours” rather than “two business days,” creating potential ambiguity regarding weekend and holiday treatment that practitioners should consider clarifying with the SEC staff.
Because any further SEC staff comments on the public filing occur in the ordinary course, they may affect the timing of the registration statement’s effectiveness. The staff has indicated that it will consider reasonable requests to expedite the two-business-day period.
Procedural Requirements
The cover letter accompanying a nonpublic draft submission must confirm the issuer’s compliance with the applicable public filing window—15 days for Tier 1 filings and two business days for Tier 2 filings.
Draft registration statements are to be submitted through EDGAR using the draft registration submission (DRS) type—the same process currently used by corporate issuers.
To obtain confidential treatment under Rule 83, issuers should file a DRSLTR request concurrently with the draft submission and include the following Rule 83 legend on each page of the draft: “CONFIDENTIAL TREATMENT REQUESTED BY [COMPANY] PURSUANT TO RULE 83”.
The SEC staff expects draft submissions to be substantially complete; a placeholder or preliminary draft will not satisfy this requirement.
This standard is especially critical for Tier 2 filers, who receive only a single nonpublic review pass. Anything that is not resolved in that initial draft will move to a public comment cycle, which defeats the benefits of the confidentiality accommodation.
No signature, audit consent, or filing fee is required at the draft submission stage. Signatures, audit consents, and exhibits are required only upon public filing of the registration statement. Registration fees are due upon the first public filing on EDGAR. ABS issuers filing on Form SF-3 may continue to defer registration fees under Rule 457(s). Eligibility questions may be directed to ABSDraftPolicy@sec.gov.
Communications Constraints During Nonpublic Review
The nonpublic review period imposes meaningful communications constraints for ABS sponsors.
Rule 134’s safe harbor for certain offering communications is unavailable until the registration statement is publicly filed. Because a draft submission under this accommodation is, by definition, nonpublic, Rule 134 is not triggered.
Rule 135 notices remain available during the nonpublic period, but a sponsor contemplating a new shelf or program launch must make a practical choice between preserving confidentiality and signaling the market through a Rule 135 notice, because a public communication about the proposed offering may compromise the SEC’s ability to withhold the draft registration statement under Freedom of Information Act (FOIA) Exemption 4, which protects trade secrets and confidential commercial and financial information.
Section 5(d) of the Securities Act, which permits test-the-waters communications with qualified institutional buyers and institutional accredited investors, is unavailable to non-EGC ABS issuers.
A draft submission under this accommodation is not a “filing” for purposes of Section 5(c), so the gun-jumping prohibition does not apply when a nonpublic draft is submitted.
Insights from the Updated FAQs
The SEC staff’s updated FAQs address several procedural points of particular relevance to ABS issuers:
- FAQ 7: An issuer should identify in its response letters any information for which it intends to seek confidential treatment. This helps ensure that staff does not inadvertently include that information in its comment letters, which would then become public.
- FAQ 9: Draft registration statements submitted under this process are not required to be signed.
- FAQ 10: Upon public filing, prior nonpublic submissions do not retroactively need to include signatures or audit consents.
- FAQ 14: The draft submission process may not be used for post-effective amendments to already effective registration statements.
Key Takeaways
- The accommodation provides a meaningful new tool for ABS issuers to engage with the SEC staff privately before their registration statements become market-visible.
- For first-time depositors or depositors entering new asset classes, Tier 1 provides full nonpublic review of the entire comment-and-response cycle, reducing the risk that incomplete or heavily commented filings are publicly visible during marketing.
- For repeat shelf filers, Tier 2 allows a single confidential pass that can help identify threshold issues before the filing becomes public, though any further dialogue after initial comments occurs publicly.
- The first step in any new filing is to determine whether it qualifies as a Tier 1 or Tier 2 submission—the scope of nonpublic review and the applicable filing windows differ materially.
- Deal teams should build the 15-day (Tier 1) or two-business-day (Tier 2) public filing window into transaction timelines from inception. These periods are conditions of the accommodation and should be confirmed in the cover letter.
- Sponsors and counsel should evaluate the tension between Rule 135 market communications and FOIA Exemption 4 confidentiality protections.
- Both the announcement and FAQs emphasize the staff’s willingness to discuss timing and expedited review. ABS-specific questions may be directed to ABSDraftPolicy@sec.gov.
- The accommodation is not a rulemaking, and the staff has expressly reserved the right to modify or terminate these procedures based on market usage.
Open Questions
Many ABS offerings—particularly repeat issuances off established shelf programs—proceed without traditional road shows, relying instead on investor calls and reverse inquiries.
Because “road show” is undefined, counsel must assess on a deal-by-deal basis whether these marketing activities cross the line, with particular attention to first-time depositors or new asset-class entries under Tier 1, where more extensive investor education may be expected.
The unresolved ambiguity between the “48 hours” and “two business days” formulations in the Tier 2 filing window warrants clarification from the SEC staff, particularly for transactions with effectiveness dates near weekends or holidays.
For novel ABS asset classes with bespoke pool criteria, untested structural features, or complex waterfall mechanics, disclosure questions may themselves be subjects of SEC staff comment, making it difficult to deliver a “substantially complete” draft on first submission.
The accommodation’s interaction with the existing Regulation AB framework—including the interplay with Form SF-3 eligibility requirements and the shelf registration process—may prompt additional ABS-specific procedural guidance as the staff gains experience with nonpublic submissions.
If you have any questions about this accommodation and its implications for ABS registration and offering transactions, or would like additional information, please contact B.K. Lee or one of the attorneys on our Structured & Warehouse Finance team.
If you have any questions, or would like additional information, please contact one of the attorneys on our Finance team.
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