80 FR 51645 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing of Amendment No. 1 to Proposed Rule Change Consisting of Proposed New Rule G-42, on Duties of Non-Solicitor Municipal Advisors, and Proposed Amendments to Rule G-8, on Books and Records To Be Made by Brokers, Dealers, Municipal Securities Dealers, and Municipal Advisors

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 80, Issue 164 (August 25, 2015)

[Federal Register Volume 80, Number 164 (Tuesday, August 25, 2015)]
[Notices]
[Pages 51645-51646]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-20936]



[[Page 51645]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75737; File No. SR-MSRB-2015-03]


Self-Regulatory Organizations; Municipal Securities Rulemaking 
Board; Notice of Filing of Amendment No. 1 to Proposed Rule Change 
Consisting of Proposed New Rule G-42, on Duties of Non-Solicitor 
Municipal Advisors, and Proposed Amendments to Rule G-8, on Books and 
Records To Be Made by Brokers, Dealers, Municipal Securities Dealers, 
and Municipal Advisors

I. Introduction

    On April 24, 2015, the Municipal Securities Rulemaking Board 
(``MSRB'') filed with the Securities and Exchange Commission (``SEC'' 
or ``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Exchange Act'' or ``Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change consisting of proposed new Rule 
G-42, on duties of non-solicitor municipal advisors, and proposed 
amendments to Rule G-8, on books and records to be made by brokers, 
dealers, municipal securities dealers, and municipal advisors. The 
proposed rule change was published for comment in the Federal Register 
on May 8, 2015.\3\ The Commission received fifteen comment letters on 
the proposal.\4\ On June 16, 2015, the MSRB granted an extension of 
time for the Commission to act on the filing until August 6, 2015. On 
August 6, 2015, the Commission issued an order instituting proceedings 
under Section 19(b)(2)(B) of the Act \5\ to determine whether to 
approve or disapprove the proposed rule change.\6\ On August 12, 2015, 
the MSRB responded to the comments \7\ and filed Amendment No. 1 to the 
proposed rule change.\8\ The text of Amendment No. 1 and the MSRB's 
letter are available on the MSRB's Web site. The Commission is 
publishing this notice to solicit comments on Amendment No. 1 to the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Exchange Act Release No. 74860 (May 4, 2015), 80 FR 26752 
(``Notice''). The comment period closed on May 29, 2015.
    \4\ Comment letters are available at www.sec.gov/comments/sr-msrb-2015-03/msrb201503.shtml.
    \5\ 15 U.S.C. 78s(b)(2)(B).
    \6\ See Securities Exchange Act Release No. 75628 (August 6, 
2015), 80 FR 48355 (August 12, 2015). The comment period closes on 
September 11, 2015.
    \7\ See Letter from Michael L. Post, MSRB, to Secretary, SEC, 
dated August 12, 2015 (``MSRB Response Letter''), available at 
http://www.sec.gov/comments/sr-msrb-2015-03/msrb201503-19.pdf.
    \8\ See Letter from Michael L. Post, MSRB, to Secretary, SEC, 
dated August 12, 2015 (``MSRB Amendment Letter''), available at 
http://www.sec.gov/comments/sr-msrb-2015-03/msrb201503-20.pdf.
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II. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Amendment

    The MSRB is proposing to delete, in Proposed Rule G-42(a)(ii), the 
phrase ``, without limitation,'' to address any ambiguity regarding the 
relationship between additional fiduciary duties and the specified 
duties of care and loyalty. The MSRB, however, emphasizes the proposed 
amendment in no respect narrows or otherwise substantively modifies the 
scope of the fiduciary duty to which a municipal advisor would be 
subject under Proposed Rule G-42. Under Proposed Rule G-42(a)(ii), a 
municipal advisor is subject to a fiduciary duty that includes a duty 
of loyalty and a duty of care. It has been the MSRB's intent from the 
inception of this rulemaking initiative not to purport to 
comprehensively set forth every aspect of the fiduciary duty that may 
be owed under the broad principle that Congress determined should apply 
to municipal advisors to municipal entity clients. Instead, Proposed 
Rule G-42 is designed primarily to set forth the core principles of the 
fiduciary duty that a municipal advisor would owe to its municipal 
entity client, and address and provide guidance on certain conduct that 
is likely to occur and issues that are likely to arise in the provision 
of municipal advisory services. Although it is not possible for the 
MSRB to set forth every aspect of a fiduciary duty in Proposed Rule G-
42 and the MSRB has not sought to do so, the MSRB nevertheless believes 
that the proposed rule change will provide municipal advisors with 
significant helpful guidance in understanding many aspects of their 
fiduciary duty and the conduct that is required of them.\9\
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    \9\ See Notice, 80 FR 26752, at 26762.
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    The MSRB is also proposing amendments to streamline the steps 
needed to comply with proposed sections (b) and (c) generally, which 
are also responsive to comments received regarding the combined 
requirements of the proposed paragraphs.\10\ In proposed Rule G-42(b), 
the MSRB proposes to combine the substantially similar disclosures of 
conflicts of interest in proposed paragraphs (b)(i)(A) and (b)(i)(G) as 
new proposed paragraph (b)(i)(F) and delete proposed paragraphs 
(b)(i)(A) and (b)(i)(G). The MSRB also would renumber proposed 
paragraphs (b)(i)(B) through (b)(i)(F), respectively, as proposed 
paragraphs (b)(i)(A) through (B)(i)(E).
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    \10\ See Notice, 80 FR 26752, at 26762-26763.
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    The MSRB proposes amendments regarding proposed section (c), which 
requires the documentation of the municipal advisory relationship in 
writing, and, in proposed subsection (c)(ii), which provides that a 
municipal advisor must include in the documentation the disclosures of 
conflicts of interest and other information (i.e., information 
regarding certain legal or disciplinary events as specified in proposed 
subsection (b)(ii)). Under the proposed amendment, a municipal advisor 
would not be required to provide the disclosure of conflicts of 
interest and other information required under proposed subsection 
(c)(ii) if the municipal advisor previously fully complied with the 
requirements of proposed section (b) to disclose such information and 
proposed subsection (c)(ii) would not require the disclosure of any 
materially different information than that previously disclosed to the 
client. The MSRB believes that the proposed amendment, to be 
incorporated in Proposed Rule G-42 as the third sentence of new 
proposed paragraph .06 of the Supplementary Material, entitled 
``Relationship Documentation,'' would permit a municipal advisor to 
avoid making duplicative disclosures regarding its conflicts of 
interest and other matters. The proposed amendment also would include, 
as the first two sentences of new proposed paragraph .06, the un-
numbered paragraph previously located after proposed subsection 
(c)(vii). The MSRB believes that the material set forth in the un-
numbered paragraph, which relates to updating and supplementing the 
relationship documentation, is more appropriately organized with the 
proposed amendment relating to proposed subsection (c)(ii) discussed 
above, and, therefore, proposes to organize such un-numbered paragraph 
in new proposed paragraph .06. Finally, with the incorporation of new 
proposed paragraph .06, proposed paragraphs .06 through .12 of the 
Supplementary Material would be renumbered, respectively, as proposed 
paragraphs .07 through .13 of the Supplementary Material.
    The MSRB also proposes to amend, in response to comments, proposed 
subsection (c)(iv) of Rule G-42 of the original proposed rule change to 
require a municipal advisor, at the time of making the disclosures 
required under proposed subsections (c)(iii) and (c)(iv), to provide 
its clients with a brief explanation of the basis for the

[[Page 51646]]

materiality of the change or addition to its Forms MA and MA-I. The 
proposed amendment would supplement a proposed requirement that the 
municipal advisor provide the date of the last material change or 
addition to the legal or disciplinary event disclosures on any Form MA 
or Form MA-I to the client. The proposed amendment to include the 
explanation of materiality would allow a municipal advisor client to 
assess the effect that such change or addition may have on the 
municipal advisory relationship and evaluate whether it should seek or 
review additional information.
    In response to a concern raised in the comments, the MSRB proposes 
to clarify, in proposed section (d), a specific requirement applicable 
to a recommendation made by a municipal advisor, and distinguish it 
from the requirements a municipal advisor is subject to when reviewing 
a recommendation made by another party. The proposed amendment to 
proposed section (d) would add a statement providing that ``a municipal 
advisor making a recommendation must have a reasonable basis to believe 
that the recommended municipal securities transaction or municipal 
financial product is suitable for the client,'' which would clarify the 
proposed requirement that the municipal advisor must determine, based 
on the information obtained through the reasonable diligence of such 
municipal advisor, whether the municipal securities transaction or 
municipal financial product is suitable for the client. The proposed 
amendment would state more explicitly that a municipal advisor would be 
prohibited from making recommendations to clients regarding municipal 
securities transactions and municipal financial products that are 
unsuitable for such clients. To further clarify proposed section (d), 
the MSRB also proposes to modify proposed subsection (d)(ii) to provide 
that the requirement to inform the client that a recommendation is 
unsuitable potentially arises only in the context of the review of a 
recommendation of another, by adding the parenthetical phrase ``(as may 
be applicable in the case of a review of a recommendation).''
    The MSRB also proposes a minor amendment to clarify proposed Rule 
G-42(e)(i)(B), which prohibits a municipal advisor from delivering an 
invoice for fees or expenses for municipal advisory activities that do 
not accurately reflect the activities actually performed or the 
personnel that actually performed those activities. Specifically, as 
revised, the provision would prohibit the delivery of such an invoice 
if it ``is materially inaccurate in its reflection of the activities 
actually performed or the personnel that actually performed those 
activities.'' The proposed clarification, which is responsive to 
comments that expressed concern regarding invoices containing minor or 
immaterial errors, would incorporate in the proposed provision an 
explicit, rather than implicit, limitation based on materiality, and is 
consistent with the MSRB's explanation of the provision in the original 
proposed rule change.\11\
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    \11\ In the original proposed rule change, the MSRB noted that 
the scope of inaccuracy targeted by the proposed provision was 
``limited to the significant subjects of the services performed and 
personnel who performed those services.'' See Notice, 80 FR 26752, 
at 26777.
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    Finally, Amendment No. 1 would incorporate minor, non-substantive 
amendments to proposed subsections (e)(ii), regarding prohibited 
principal transactions. The proposed amendments to proposed subsection 
(e)(ii) would clarify the provision, to provide:

    A municipal advisor to a municipal entity client, and any 
affiliate of such municipal advisor, is prohibited from engaging 
with the municipal entity client in a principal transaction that is 
the same, or directly related to the, municipal securities 
transaction or municipal financial product as to which the municipal 
advisor is providing or has provided advice to the municipal entity 
client.

    Similarly, technical and non-substantive changes would be 
incorporated in proposed subsection (f)(i), defining the term, 
``Engaging in a principal transaction.'' Finally, the proposed 
amendments to proposed paragraph .11 of the Supplementary Material 
would renumber the provision as proposed paragraph .12 of the 
Supplementary Material, as previously noted, and change the reference 
in the second line of the provision from ``engaging in a principal 
transaction'' to ``principal transaction'' to conform proposed 
renumbered paragraph .12 to proposed amended subsection (f)(i).
    The MSRB proposes to make the proposed rule change effective six 
months after Commission approval of all changes.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments regarding the foregoing, including whether the filing as 
amended by Amendment No. 1 is consistent with the Act. Comments may be 
submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-MSRB-2015-03 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE., Washington, DC 20549.

All submissions should refer to File Number SR-MSRB-2015-03. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of the MSRB. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-MSRB-2015-03 and should be 
submitted on or before September 11, 2015.

    For the Commission, pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2015-20936 Filed 8-24-15; 8:45 am]
 BILLING CODE 8011-01-P