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Vedder Thinking | Articles Regulatory Agenda Highlights Potential and Pending SEC Rulemaking Topics

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On December 6, 2023, the Office of Information and Regulatory Affairs—part of the Office of Management and Budget, within the Executive Office of the President—released the latest Unified Agenda of Regulatory and Deregulatory Actions, reporting on potential rulemaking topics that administrative agencies, including the SEC, will consider in the short and long term. These topics include several areas of interest to funds, advisers and other financial institutions. The topics are categorized in one of three rulemaking stages: proposed rule, final rule and long-term actions.

Proposed Rule Stage. Matters identified in the proposed rule stage include the following:

  • Regulation D and Form D amendments, including updates to the accredited investor definition;
  • registered investment companies’ fees and fee disclosure—a topic that first appeared in the spring 2022 regulatory agenda but has not yet resulted in any SEC release;
  • rules to enable issuers of index-linked annuities (RILAs) to register on a form tailored specifically to such insurance products—a topic that the SEC addressed in a proposing release issued on September 29, 2023 (as previously summarized here);
  • joint rulemaking with other agencies to establish data standards for the collection of information reported to each agency by financial entities under their jurisdiction—a new development to implement the requirements of recent amendments to the Financial Stability Act of 2010; and
  • the listing and trading of exchange-traded products (ETPs) on national securities exchanges relating to a 2015 SEC request for comment.

Final Rule Stage. Matters identified in the final rule stage include the following:

  • custody rules for investment advisers;
  • enhanced disclosures by investment advisers and funds about environmental, social and governance (ESG) practices;
  • open-end fund liquidity risk management programs and swing pricing;
  • cybersecurity risk management for investment advisers and funds;
  • Form PF and reporting requirements for investment advisers to private funds;
  • broker-dealer and investment adviser conflicts of interest in the use of predictive data analytics, artificial intelligence, machine learning and similar technologies in certain investor interactions;
  • outsourcing by investment advisers and rules related to advisers’ oversight of third-party service providers;
  • amendments to the rule governing the registration of “internet advisers” under the Advisers Act;
  • amendments to require broker-dealers, investment companies and investment advisers to adopt written incident response procedures, including notification for compromises of sensitive customer information;
  • amendments to the definition of "dealer";
  • proposed Regulation Best Execution, which would require detailed policies and procedures for all broker-dealers and more robust policies and procedures for broker-dealers engaging in certain conflicted transactions with retail customers, as well as related review and documentation requirements; and
  • cybersecurity risk management for broker-dealers, national securities exchanges, transfer agents and other market participants.

Long-Term Actions. Matters identified in the “long-term actions” stage of rulemaking include the following:

  • the role of certain third-party service providers, including index providers, model portfolio providers and pricing services, their treatment under the Advisers Act and the implications for the asset management industry; and
  • the regulatory regime for transfer agents.

The SEC’s rule list for topics identified in the final rule or proposed rule stage is available here; the “long-term actions” list is available here. In addition, SEC Chair Gary Gensler issued a statement in connection with the release of the regulatory agenda.

 



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Nathaniel Segal

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Jacob C. Tiedt

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Mark Quade

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Jake W. Wiesen

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Elizabeth (Liz) J. Baxter

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