United States Code

USC most recently checked for updates: Nov 21, 2019

§ 78d.
Securities and Exchange Commission
(a)
Establishment; composition; limitations on commissioners; terms of office

There is hereby established a Securities and Exchange Commission (hereinafter referred to as the “Commission”) to be composed of five commissioners to be appointed by the President by and with the advice and consent of the Senate. Not more than three of such commissioners shall be members of the same political party, and in making appointments members of different political parties shall be appointed alternately as nearly as may be practicable. No commissioner shall engage in any other business, vocation, or employment than that of serving as commissioner, nor shall any commissioner participate, directly or indirectly, in any stock-market operations or transactions of a character subject to regulation by the Commission pursuant to this chapter. Each commissioner shall hold office for a term of five years and until his successor is appointed and has qualified, except that he shall not so continue to serve beyond the expiration of the next session of Congress subsequent to the expiration of said fixed term of office, and except (1) any commissioner appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed for the remainder of such term, and (2) the terms of office of the commissioners first taking office after June 6, 1934, shall expire as designated by the President at the time of nomination, one at the end of one year, one at the end of two years, one at the end of three years, one at the end of four years, and one at the end of five years, after June 6, 1934.

(b)
Appointment and compensation of staff and leasing authority
(1)
Appointment and compensation

The Commission shall appoint and compensate officers, attorneys, economists, examiners, and other employees in accordance with section 4802 of title 5.

(2)
Reporting of information

In establishing and adjusting schedules of compensation and benefits for officers, attorneys, economists, examiners, and other employees of the Commission under applicable provisions of law, the Commission shall inform the heads of the agencies referred to under

(g)
Office of the Investor Advocate
(1)
Office established

There is established within the Commission the Office of the Investor Advocate (in this subsection referred to as the “Office”).

(2)
Investor Advocate
(A)
In general
The head of the Office shall be the Investor Advocate, who shall—
(i)
report directly to the Chairman; and
(ii)
be appointed by the Chairman, in consultation with the Commission, from among individuals having experience in advocating for the interests of investors in securities and investor protection issues, from the perspective of investors.
(B)
Compensation

The annual rate of pay for the Investor Advocate shall be equal to the highest rate of annual pay for other senior executives who report to the Chairman of the Commission.

(C)
Limitation on service
An individual who serves as the Investor Advocate may not be employed by the Commission—
(i)
during the 2-year period ending on the date of appointment as Investor Advocate; or
(ii)
during the 5-year period beginning on the date on which the person ceases to serve as the Investor Advocate.
(3)
Staff of Office

The Investor Advocate, after consultation with the Chairman of the Commission, may retain or employ independent counsel, research staff, and service staff, as the Investor Advocate deems necessary to carry out the functions, powers, and duties of the Office.

(4)
Functions of the Investor Advocate
The Investor Advocate shall—
(A)
assist retail investors in resolving significant problems such investors may have with the Commission or with self-regulatory organizations;
(B)
identify areas in which investors would benefit from changes in the regulations of the Commission or the rules of self-regulatory organizations;
(C)
identify problems that investors have with financial service providers and investment products;
(D)
analyze the potential impact on investors of—
(i)
proposed regulations of the Commission; and
(ii)
proposed rules of self-regulatory organizations registered under this chapter; and
(E)
to the extent practicable, propose to the Commission changes in the regulations or orders of the Commission and to Congress any legislative, administrative, or personnel changes that may be appropriate to mitigate problems identified under this paragraph and to promote the interests of investors.
(5)
Access to documents

The Commission shall ensure that the Investor Advocate has full access to the documents of the Commission and any self-regulatory organization, as necessary to carry out the functions of the Office.

(6)
Annual reports
(A)
Report on objectives
(i)
In general

Not later than June 30 of each year after 2010, the Investor Advocate shall submit to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives a report on the objectives of the Investor Advocate for the following fiscal year.

(ii)
Contents

Each report required under clause (i) shall contain full and substantive analysis and explanation.

(B)
Report on activities
(i)
In general

Not later than December 31 of each year after 2010, the Investor Advocate shall submit to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives a report on the activities of the Investor Advocate during the immediately preceding fiscal year.

(ii)
Contents
Each report required under clause (i) shall include—
(I)
appropriate statistical information and full and substantive analysis;
(II)
information on steps that the Investor Advocate has taken during the reporting period to improve investor services and the responsiveness of the Commission and self-regulatory organizations to investor concerns;
(III)
a summary of the most serious problems encountered by investors during the reporting period;
(IV)
an inventory of the items described in subclause (III) that includes—
(aa)
identification of any action taken by the Commission or the self-regulatory organization and the result of such action;
(bb)
the length of time that each item has remained on such inventory; and
(cc)
for items on which no action has been taken, the reasons for inaction, and an identification of any official who is responsible for such action;
(V)
recommendations for such administrative and legislative actions as may be appropriate to resolve problems encountered by investors; and
(VI)
any other information, as determined appropriate by the Investor Advocate.
(iii)
Independence

Each report required under this paragraph shall be provided directly to the Committees listed in clause (i) without any prior review or comment from the Commission, any commissioner, any other officer or employee of the Commission, or the Office of Management and Budget.

(iv)
Confidentiality

No report required under clause (i) may contain confidential information.

(7)
Regulations

The Commission shall, by regulation, establish procedures requiring a formal response to all recommendations submitted to the Commission by the Investor Advocate, not later than 3 months after the date of such submission.

(8)
Ombudsman
(A)
Appointment

Not later than 180 days after the date on which the first Investor Advocate is appointed under paragraph (2)(A)(i),2

2
 So in original. Probably should be “(2)(A)(ii),”.
the Investor Advocate shall appoint an Ombudsman, who shall report directly to the Investor Advocate.

(B)
Duties
The Ombudsman appointed under subparagraph (A) shall—
(i)
act as a liaison between the Commission and any retail investor in resolving problems that retail investors may have with the Commission or with self-regulatory organizations;
(ii)
review and make recommendations regarding policies and procedures to encourage persons to present questions to the Investor Advocate regarding compliance with the securities laws; and
(iii)
establish safeguards to maintain the confidentiality of communications between the persons described in clause (ii) and the Ombudsman.
(C)
Limitation

In carrying out the duties of the Ombudsman under subparagraph (B), the Ombudsman shall utilize personnel of the Commission to the extent practicable. Nothing in this paragraph shall be construed as replacing, altering, or diminishing the activities of any ombudsman or similar office of any other agency.

(D)
Report

The Ombudsman shall submit a semiannual report to the Investor Advocate that describes the activities and evaluates the effectiveness of the Ombudsman during the preceding year. The Investor Advocate shall include the reports required under this section in the reports required to be submitted by the Inspector Advocate under paragraph (6).

(h)
Examiners
(1)
Division of Trading and Markets
The Division of Trading and Markets of the Commission, or any successor organizational unit, shall have a staff of examiners who shall—
(A)
perform compliance inspections and examinations of entities under the jurisdiction of that Division; and
(B)
report to the Director of that Division.
(2)
Division of Investment Management
The Division of Investment Management of the Commission, or any successor organizational unit, shall have a staff of examiners who shall—
(A)
perform compliance inspections and examinations of entities under the jurisdiction of that Division; and
(B)
report to the Director of that Division.
(i)
Securities and Exchange Commission Reserve Fund
(1)
Reserve Fund established

There is established in the Treasury of the United States a separate fund, to be known as the “Securities and Exchange Commission Reserve Fund” (referred to in this subsection as the “Reserve Fund”).

(2)
Reserve Fund amounts
(A)
In general

Except as provided in subparagraph (B), any registration fees collected by the Commission under section 77f(b) of this title or section 80a–24(f) of this title shall be deposited into the Reserve Fund.

(B)
Limitations
For any 1 fiscal year—
(i)
the amount deposited in the Fund may not exceed $50,000,000; and
(ii)
the balance in the Fund may not exceed $100,000,000.
(C)
Excess fees

Any amounts in excess of the limitations described in subparagraph (B) that the Commission collects from registration fees under section 77f(b) of this title or section 80a–24(f) of this title shall be deposited in the General Fund of the Treasury of the United States and shall not be available for obligation by the Commission.

(3)
Use of amounts in Reserve Fund

The Commission may obligate amounts in the Reserve Fund, not to exceed a total of $100,000,000 in any 1 fiscal year, as the Commission determines is necessary to carry out the functions of the Commission. Any amounts in the reserve fund shall remain available until expended. Not later than 10 days after the date on which the Commission obligates amounts under this paragraph, the Commission shall notify Congress of the date, amount, and purpose of the obligation.

(4)
Rule of construction

Amounts collected and deposited in the Reserve Fund shall not be construed to be Government funds or appropriated monies and shall not be subject to apportionment for the purpose of chapter 15 of title 31 or under any other authority.

(j)
Office of the Advocate for Small Business Capital Formation
(1)
Office established

There is established within the Commission the Office of the Advocate for Small Business Capital Formation (hereafter in this subsection referred to as the “Office”).

(2)
Advocate for Small Business Capital Formation
(A)
In general
The head of the Office shall be the Advocate for Small Business Capital Formation, who shall—
(i)
report directly to the Commission; and
(ii)
be appointed by the Commission, from among individuals having experience in advocating for the interests of small businesses and encouraging small business capital formation.
(B)
Compensation

The annual rate of pay for the Advocate for Small Business Capital Formation shall be equal to the highest rate of annual pay for other senior executives who report directly to the Commission.

(C)
No current employee of the Commission

An individual may not be appointed as the Advocate for Small Business Capital Formation if the individual is currently employed by the Commission.

(3)
Staff of Office

The Advocate for Small Business Capital Formation, after consultation with the Commission, may retain or employ independent counsel, research staff, and service staff, as the Advocate for Small Business Capital Formation determines to be necessary to carry out the functions of the Office.

(4)
Functions of the Advocate for Small Business Capital Formation
The Advocate for Small Business Capital Formation shall—
(A)
assist small businesses and small business investors in resolving significant problems such businesses and investors may have with the Commission or with self-regulatory organizations;
(B)
identify areas in which small businesses and small business investors would benefit from changes in the regulations of the Commission or the rules of self-regulatory organizations;
(C)
identify problems that small businesses have with securing access to capital, including any unique challenges to minority-owned small businesses, women-owned small businesses, and small businesses affected by hurricanes or other natural disasters;
(D)
analyze the potential impact on small businesses and small business investors of—
(i)
proposed regulations of the Commission that are likely to have a significant economic impact on small businesses and small business capital formation; and
(ii)
proposed rules that are likely to have a significant economic impact on small businesses and small business capital formation of self-regulatory organizations registered under this chapter;
(E)
conduct outreach to small businesses and small business investors, including through regional roundtables, in order to solicit views on relevant capital formation issues;
(F)
to the extent practicable, propose to the Commission changes in the regulations or orders of the Commission and to Congress any legislative, administrative, or personnel changes that may be appropriate to mitigate problems identified under this paragraph and to promote the interests of small businesses and small business investors;
(G)
consult with the Investor Advocate on proposed recommendations made under subparagraph (F); and
(H)
advise the Investor Advocate on issues related to small businesses and small business investors.
(5)
Access to documents

The Commission shall ensure that the Advocate for Small Business Capital Formation has full access to the documents and information of the Commission and any self-regulatory organization, as necessary to carry out the functions of the Office.

(6)
Annual report on activities
(A)
In general

Not later than December 31 of each year after 2015, the Advocate for Small Business Capital Formation shall submit to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives a report on the activities of the Advocate for Small Business Capital Formation during the immediately preceding fiscal year.

(B)
Contents
Each report required under subparagraph (A) shall include—
(i)
appropriate statistical information and full and substantive analysis;
(ii)
information on steps that the Advocate for Small Business Capital Formation has taken during the reporting period to improve small business services and the responsiveness of the Commission and self-regulatory organizations to small business and small business investor concerns;
(iii)
a summary of the most serious issues encountered by small businesses and small business investors, including any unique issues encountered by minority-owned small businesses, women-owned small businesses, and small businesses affected by hurricanes or other natural disasters and their investors, during the reporting period;
(iv)
an inventory of the items summarized under clause (iii) (including items summarized under such clause for any prior reporting period on which no action has been taken or that have not been resolved to the satisfaction of the Advocate for Small Business Capital Formation as of the beginning of the reporting period covered by the report) that includes—
(I)
identification of any action taken by the Commission or the self-regulatory organization and the result of such action;
(II)
the length of time that each item has remained on such inventory; and
(III)
for items on which no action has been taken, the reasons for inaction, and an identification of any official who is responsible for such action;
(v)
recommendations for such changes to the regulations, guidance and orders of the Commission and such legislative actions as may be appropriate to resolve problems with the Commission and self-regulatory organizations encountered by small businesses and small business investors and to encourage small business capital formation; and
(vi)
any other information, as determined appropriate by the Advocate for Small Business Capital Formation.
(C)
Confidentiality

No report required by subparagraph (A) may contain confidential information.

(D)
Independence

Each report required under subparagraph (A) shall be provided directly to the committees of Congress listed in such subparagraph without any prior review or comment from the Commission, any commissioner, any other officer or employee of the Commission, or the Office of Management and Budget.

(7)
Regulations

The Commission shall establish procedures requiring a formal response to all recommendations submitted to the Commission by the Advocate for Small Business Capital Formation, not later than 3 months after the date of such submission.

(8)
Government-Business Forum on Small Business Capital Formation

The Advocate for Small Business Capital Formation shall be responsible for planning, organizing, and executing the annual Government-Business Forum on Small Business Capital Formation described in section 80c–1 of this title.

(9)
Rule of construction

Nothing in this subsection may be construed as replacing or reducing the responsibilities of the Investor Advocate with respect to small business investors.

(June 6, 1934, ch. 404, title I, § 4, 48 Stat. 885; Oct. 28, 1949, ch. 782, title XI, § 1106(a), 63 Stat. 972; Pub. L. 86–619, § 3, July 12, 1960, 74 Stat. 408; Pub. L. 86–771, Sept. 13, 1960, 74 Stat. 913; Pub. L. 88–426, title III, § 305(20), Aug. 14, 1964, 78 Stat. 425; Pub. L. 98–38, § 1, June 6, 1983, 97 Stat. 205; Pub. L. 100–181, title III, § 307, Dec. 4, 1987, 101 Stat. 1254; Pub. L. 101–550, title I, § 103, title II, § 207, Nov. 15, 1990, 104 Stat. 2713, 2721; Pub. L. 104–290, title IV, § 406, Oct. 11, 1996, 110 Stat. 3444; Pub. L. 105–353, title II, § 203, Nov. 3, 1998, 112 Stat. 3234; Pub. L. 107–123, § 8(d)(2), Jan. 16, 2002, 115 Stat. 2399; Pub. L. 111–203, title IX, §§ 915, 919D, 965, 991(e)(1), July 21, 2010, 124 Stat. 1830, 1840, 1911, 1954; Pub. L. 114–284, § 2(a), Dec. 16, 2016, 130 Stat. 1447; Pub. L. 115–141, div. S, title IX, § 902, Mar. 23, 2018, 132 Stat. 1143.)
cite as: 15 USC 78d