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ETFs on SEC’s Regulatory Agenda; Business Continuity Withdrawn; Derivatives Off Short-Term List

The SEC recently released its fall 2017 regulatory flexibility agenda with some expected line items and noticeable omissions. As widely expected, the Division of Investment Management may seek reproposal of new rules and rule amendments to allow certain ETFs to operate without first obtaining exemptive orders. It is expected that any initial ETF rule will focus on plain-vanilla ETFs. The original ETF rule proposal was made in 2008 but has been pending since then. Commissioner Kara Stein in a speech recently focused on the growth and complexity of the exchange-traded products sector, noting that there are now “decades of data and observations” that can help the SEC answer “questions about ETP trading, volatility, transparency, arbitrage, and investor protection.” The IM Division and Division of Trading and Markets may also propose standards of conduct for investment professionals. SEC Chairman Jay Clayton has spoken many times about working together with the Department of Labor on a fiduciary standard for investment professionals and this agenda item reflects this priority. The SEC’s Office of the Chief Accountant may also recommend an amendment to Regulation S-X regarding the independence of an accountant when the accountant has a lending relationship with an entity that holds equity securities of the accountant’s audit client, the so-called loan rule. A proposal on the management of derivatives in mutual funds, which was included on previous agendas, is not included in the current short-term agenda, and the much-criticized business continuity plan proposal for advisers has been withdrawn. The regulatory flexibility agenda reflects the priorities of the chairman but does not require the SEC to enact a rule.