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SEC’s White: No SEC Fiduciary Rule Coming Before January

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Securities and Exchange Commission Chairwoman Mary Jo White told House lawmakers Tuesday that she doesn’t expect the commission to act on a uniform fiduciary duty rule for broker-dealers and advisors before she leaves her post in January.

“I don’t think there’s consensus to move that forward in the current commission,” White said during her last testimony before the House Financial Services Committee to discuss the agency’s FY 2018 budget request.

White, who announced Monday that she would resign at the end of the Obama administration, said she decided to leave in January prior to the election. “I’ve served for almost four years. It’s really a normal course decision,” White said. 

(Related: SEC Chief White to Step Down in January)

In her questioning of White, Rep. Ann Wagner, R-Missouri, a staunch opponent of the Department of Labor’s fiduciary rule, noted the “strategizing and discussions about the prospects” of DOL’s rule since the presidential election.

Wagner, who told the Wall Street Journal on Monday that she and Republican lawmakers would “renew their fight” after the Donald Trump inauguration to “dismantle or delay” Labor’s fiduciary rule, highlighted the recent decision by Merrill Lynch, for instance, to stop offering mutual funds in IRAs because of DOL’s rule.

“Already choices are being taken away from customers,” Wagner said to White. “Are you concerned at all, ma’am, by the impacts on the retirement services markets that the SEC oversees and regulates?”

White responded: “I think we’re all concerned about anything that results in depriving retail investors of reasonably priced, reliable advice,” adding that the agency continues to monitor such impact “in terms of our own thinking about a fiduciary duty rule. Markets do adjust to rules in ways that sometimes have effects that are not desirable.”

White noted the ongoing dialogue the SEC is having with Labor about “where we overlap” in terms of jurisdiction. “Our job is to coordinate the best that we can, provide relief if we have the authority to and it makes sense to minimize impacts.”

Wagner asked White if the SEC was considering the business impacts of DOL’s rule, including some firms’ decisions to sell off “entire businesses,” as the agency developed its own rule.

“Certainly that data will be considered,” White said, reiterating that SEC staff has provided “a detailed outline” of how the agency would approach a fiduciary rule to the commissioners for review.

Wagner also asked White if the agency had performed an analysis of how registered investment advisors would be impacted by a fiduciary rule. White responded: “That is part of the analysis that’s done continuously. But before we would move to a rule, it would be definitively studied.”

SEC Still ‘Significantly Underfunded’

As her nearly four years as head of the agency draws to a close, White noted the importance of being able to “retain and attract the best people,” adding that the “biggest challenge” the agency faces “is how significantly under resourced we are.”

While the agency has gotten budget boosts during her tenure, White noted the “extensive” responsibilities the agency faces, including examining the growing roster of investment advisors. “I’ve done everything I can” to increase the advisor exams, White said, noting the nearly 20% increase in advisor exams under her watch. But, she said, the agency is still only able to examine 11% of the more than 12,500 advisors each year. “It’s a big investor protection issue,” White said. “When you can’t examine those advisors that are dealing with investors, you’re not able to do the job assigned by Congress.”

No ‘Midnight Rulemakings’

Rep. Jeb Hensarling, R-Texas, chairman of the committee, cautioned White against rushing pending rulemakings to completion “as a way of cementing the policy priorities of the outgoing administration,” stressing that such “‘midnight rulemaking’ is neither conducive to sound policy nor consistent with principles of democratic accountability.”

White retorted in her comments to the committee: “I don’t think any rulemaking benefits from it being rushed.”

Among rules that will likely get finished, which White said she set out in her February agenda, includes considering whether to approve a national market system (NMS) plan to create a single, comprehensive database—a consolidated audit trail (CAT)—that would enable regulators to more efficiently and accurately track trading in equity and option securities throughout the U.S. markets. That proposal was before the commission the same day.

Other year-end goals, White said, included “capital margins segregation” rules under Title 7 of Dodd-Frank, “an outstanding derivatives proposal in the asset management space,” as well as a rule to provide mutual fund reports electronically, which she said SEC staff would likely provide in “final recommendation” form by year-end.

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