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With Gary Gensler set to step down as Chair of the SEC in a week and a half, we have entered the final countdown for his time as Chair. All in all, it has been a pretty quiet past few months at the SEC from a rulemaking perspective, which may have come as a surprise to some, given the very active rulemaking agenda that marked the past three and a half years.

As I have mentioned before, there now seems to be two schools of thought as to SEC rulemaking activity in a Presidential election year. The conventional wisdom that had prevailed during most of my time practicing securities law was that the Commission would significantly curtail its rulemaking activity beginning in the summer before the Presidential election, and that status would continue after the election, even when the same party held onto the White House. That approach was generally not followed at the end of the last Trump administration, when the agency continued to consider a number rulemakings during the time before the 2020 election, and even after the election was over. For example, the SEC adopted the third try at the controversial resource extraction issuer disclosure rules in December 2020, and proposed changes to the Rule 144 holding period and the filing Form 144 filing requirements in that same month. By contrast, we have not seen any significant new proposed or final rulemaking actions affecting public companies over the past six months or so, other than the adoption of the annoying EDGAR Next rules back in September.

With all of that said, the business of the Commission must trudge on, even with an impending change in leadership, and last week the SEC issued an order approving the PCAOB’s amendment to Rule 2107 with respect to withdrawal from registration. The amendment “permits the Board, under specified conditions, to treat a registered firm’s failures both to file annual reports and to pay annual fees for at least two consecutive reporting years as a constructive request for leave to withdraw from registration and to deem the firm’s registration withdrawn.” In a statement, Chair Gensler expressed his support for the PCAOB action, and PCAOB Chair Erica Williams issued a statement noting that the amendment “will not only make PCAOB registration information more useful for investors, audit committees, and other stakeholders, it will also help our organization use its staff time and resources more efficiently and effectively.”

– Dave Lynn