Statement Regarding SEC Staff Views

Chairman Jay Clayton

Sept. 13, 2018

The mission of the SEC is to protect investors; maintain fair, orderly, and efficient markets; and facilitate capital formation.  In furtherance of this mission, the Commission promulgates rules and regulations, which generally have the force and effect of law, and enforces compliance with its rules and regulations.[1]

Staff of the SEC frequently make their views known through a variety of communications, including written statements, compliance guides, letters, speeches, responses to frequently asked questions and responses to specific requests for assistance.  The staff often addresses specific questions from particular SEC-regulated institutions or other stakeholders about Commission rules or regulations and how those rules or regulations may apply to a particular entity’s specific facts and circumstances. 

The Commission’s longstanding position is that all staff statements are nonbinding and create no enforceable legal rights or obligations of the Commission or other parties.  Statements issued by SEC staff frequently include a disclaimer underscoring the important distinction between the Commission’s rules and regulations, on the one hand, and staff views on the other.[2]

As we carry out our market oversight functions, I believe we at the Commission should keep this important distinction in mind.  Several weeks ago, I instructed the directors of the Division of Enforcement and the Office of Compliance Inspections and Examinations to further emphasize this distinction to their staff.  More generally, our divisions and offices, including but not limited to the Division of Corporation Finance, the Division of Investment Management and the Division of Trading and Markets, have been and will continue to review whether prior staff statements and staff documents should be modified, rescinded or supplemented in light of market or other developments.

I believe that public engagement on staff statements and staff documents is important and will assist the Commission in developing rules and regulations that most effectively achieve the SEC’s mission.  I encourage such engagement, with the recognition that it is the Commission and only the Commission that adopts rules and regulations that have the force and effect of law.[3]

 

[1]           Such rules and regulations generally take effect only after the Commission publishes a notice of proposed rulemaking in the Federal Register, and adopts a final rule which considers public comments on the proposal in accordance with the Administrative Procedure Act.

[2]           See, e.g., Division of Corporation Finance, Compliance and Disclosure Interpretations, available at: https://www.sec.gov/divisions/corpfin/cfguidance.shtml (“The interpretations presented below reflect the views of the staff of the Division of Corporation Finance.  They are not rules, regulations, or statements of the Commission.  Further, the Commission has neither approved nor disapproved these interpretations.); Division of Investment Management, Guidance Updates, available at: https://www.sec.gov/investment/im-guidance-updates.html (“The statements in this IM Guidance Update represent the views of the Division of Investment Management. This guidance is not a rule, regulation or statement of the Securities and Exchange Commission. Further, the Commission has neither approved nor disapproved its content.”); Division of Trading and Markets, Compliance Guides, available at: https://www.sec.gov/divisions/marketreg/tmcompliance.shtml (“The guide summarizes and explains rules adopted by the Commission, but is not a substitute for any rule itself. Only the rule itself can provide complete and definitive information regarding its requirements.”).

[3]               Other agencies recently issued a statement clarifying the difference between supervisory guidance and laws or regulations.  See Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, National Credit Union Administration, and Office of the Comptroller of the Currency, and Bureau of Consumer Financial Protection Interagency Statement Clarifying the Role of Supervisory Guidance (Sept. 11, 2018), available at: https://www.federalreserve.gov/newsevents/pressreleases/files/bcreg20180911a1.pdf