Last week, the Securities and Exchange Commission (SEC) Acting Chairman, senior leadership across Divisions and Offices, and former SEC Commissioners spoke at the “SEC Speaks” Conference 2017. Senior leadership from the SEC’s Office of Compliance Inspections and Examinations (OCIE) used its panel and workshop to provide guidance on the reshaping of its examination programs that it began in 2016. Below we outline the revamped OCIE.
OCIE’s Reorganization & Reallocation of Resources
The OCIE panel included OCIE’s Acting Director and its Deputy Director. The commentators for the panel were former SEC Chairman Hon. Harvey L. Pitt and former SEC Commissioners Hon. Paul S. Atkins and Hon. Daniel M. Gallagher. At the beginning of the presentation, OCIE’s Acting Director reminded the audience that OCIE’s mission is to protect investors, ensure market integrity, and support responsible capital formation through risk-focused strategies that: 1) improve compliance; 2) prevent fraud; 3) monitor risk; and 4) inform policy. The panel explained that OCIE monitors and assesses its various programs to align with OCIE’s mission and strategies. The panel described that OCIE had developed and implemented a plan to revise its programs to better align with the evolving nature of the various registrants subject to its oversight.
The Investment Adviser / Investment Company Program
This past year, OCIE re-allocated 100 broker-dealer staff examiners to the Investment Adviser / Investment Company (IA/IC) Program, which increased the total number of OCIE staff in the IA/IC Program to over 600. OCIE’s Deputy Director reminded the audience that the investment management industry lacks a self-regulatory organization and that the number of investment advisers registered with the SEC continues to grow. For example, since January 1, 2017, approximately 200 additional investment advisers have registered with the SEC. Thus, the SEC and OCIE determined that a re-allocation of staff was necessary to manage the SEC’s responsibility as the sole inspection and examination authority for this industry. One of the goals of this reallocation appears to be to reduce the number of examinations per examiner, if feasible, from last year’s high of 4.91 per examiner. Following up on a proposal to the Commission last fall under Chair Mary Jo White, Commissioner Gallagher encouragingly questioned whether OCIE needs to consider the use of non-SEC, third-party examination firms. Although OCIE senior leadership did not seem enthused about this possibility, they replied that they would be willing to work with whatever ideas and initiatives the new Commission may have to assist with OCIE’s resource constraints, in particular with the continuing expansion of the investment advisory industry.
The Broker-Dealer, FINRA and Securities Industry Oversight, and National Broker-Dealer Exchange Group Programs
For the above three programs, OCIE has restructured its examination oversight of the brokerage industry and for certain other registrants. First and foremost, OCIE’s Broker-Dealer (BD) Program – as the industry has known it for the past few decades – no longer exists. Second, in addition to the reallocation of 100 examiners from the BD Program to the IA/IC Program, OCIE senior leadership outlined the creation and responsibilities of two new programs: the FINRA and Securities Industry Oversight (FSIO) Program; and the National Broker-Dealer Exchange Group (BDX) Program. While the BDX Program will maintain some broker-dealer examination staff, as explained below, this will be a significantly reduced number of examiners who will be focused on targeted examinations in coordination with FSIO’s oversight responsibilities.
FSIO is a national program with staff in the SEC’s home office and across various regional offices. OCIE created FSIO for several reasons, including avoiding the duplication of efforts and resources that sometimes occurred with FINRA. FSIO’s primary responsibility is the enhanced oversight of FINRA. FSIO also will oversee the Municipal Securities Rulemaking Board (for purposes of this blog, we focus on FINRA). While FSIO will maintain oversight responsibility, OCIE senior leadership emphasized that the plan is to work collaboratively with FINRA, as appropriate. FSIO’s Program will oversee FINRA in two ways; with programmatic and oversight examinations. The former will focus on FINRA’s programs and operations to provide guidance and recommended improvements, while the latter will involve specific FINRA examinations of member firms that FSIO will sample, examine, and provide feedback to FINRA.
The BDX Program has a broader mandate, including responsibility for: exchanges; transfer agents; the clearing and settlement program; (only) municipal advisors; the Securities Investor Protection Corporation; and the Public Company Accounting Oversight Board. BDX is also a national program with staff in the SEC’s home office and regional offices. As mentioned, the BDX Program also includes a limited number of broker-dealer examination staff to conduct targeted examinations and coordinate with FSIO regarding FINRA oversight examinations.
Conclusion / Takeaways
OCIE’s reallocation of staff resources to the IA/IC Program, dissolution of the BD Program, and creation of the FSIO and BDX programs reflect an SEC Office that is attempting to keep pace with the increasing and evolving registrant populations for which it is responsible by restructuring programs and targeting its limited resources. These efforts will likely have unintended (or intended) consequences for the investment management and broker-dealer industries. First, OCIE appears to be making its oversight of the investment management industry its main focus. This is the continuation of a multi-year effort, as this industry presents the greatest risk to OCIE and its understaffed IA/IC Program. That said, with a staff increase of 100 and the continuing emphasis on this program, the number of significant deficiencies and enforcement referrals generated by the IA/IC Program will correspondingly increase, as the quantity and frequency of examinations increases. With respect to OCIE’s BD, FSIO, and BDX Programs, with FINRA’s evolution and increased resources to examine the broker-dealer industry, it is not too surprising that the SEC, via OCIE, ceded responsibility to FINRA and dissolved the BD Program. A collateral result for the broker-dealer industry, however, will likely be an empowered FINRA that may seek to increase the assertiveness of its examination and enforcement programs. In conclusion, while the IA/IC Program and FINRA appear poised to enjoy increased authority, OCIE’s efforts are laudable in reorganizing itself to better allocate its limited resources to manage its responsibilities over its evolving registrant population.