FACT SHEET Municipal Advisr Registratin SEC Open Meeting Sept. 18, 2013 The Securities and Exchange Cmmissin tday will cnsider whether t adpt a rule that wuld establish a permanent registratin regime fr municipal advisrs. The Ddd-Frank Wall Street Refrm and Cnsumer Prtectin Act directs the Cmmissin t amend its rules t require this regime. Backgrund Municipal Securities and Municipal Advisrs Every year, states and lcal gvernments issue municipal securities mst ntably municipal bnds t raise funds fr varius public prjects such as building schls, rads, and hspitals. Thse wh purchase municipal bnds usually receive interest payments n the principal amunt they invest and a return f that principal amunt after a perid f time, and the municipalities receive needed capital. Municipalities that issue these securities frequently rely n advisrs, wh help t decide amng ther things hw and when t issue the securities and hw t invest the prceeds frm the sales. In turn, these advisrs receive fees fr the services they prvide. Unlike ther market intermediaries, municipal advisrs were nt required t register with the SEC befre the Ddd-Frank Act and were nt subject t a cmprehensive regulatry regime. Therefre, municipal advisrs did nt have t adhere t standards fr training, qualificatin, r cnduct, including the treatment f cnflicts f interest. In the years leading up t the financial crisis, municipalities acrss the cuntry invested in r purchased cmplex derivative prducts that resulted in substantial financial lsses. In deciding whether t engage in these transactins, many f the municipalities relied n advice frm intermediaries that were nt regulated as municipal advisrs. Municipalities were ften unaware f any cnflicts f interest the intermediaries may have had. SEC Prpsal In July 2010, Cngress passed the Ddd-Frank Act, which included a prvisin (Sectin 975) t prtect municipalities, taxpayers, and investrs frm cnflicted advice and unregulated advisrs. In particular, the Ddd-Frank Act requires the SEC t adpt a rule requiring these municipal advisrs t register with the SEC and cmply with a set f regulatins that wuld be issued by the Municipal Securities Rulemaking Bard (MSRB).
Sn after the Ddd-Frank Act was passed, the SEC issued a temprary rule requiring municipal advisrs t register with the SEC by Octber 2010. Since the temprary registratin regime went int effect, mre than 1,100 municipal advisrs have registered with the SEC. In December 2010, the SEC prpsed a permanent rule gverning the registratin prcess. By requiring municipal advisrs t register n a permanent basis, the SEC will btain substantial infrmatin that will enhance its versight f municipal advisrs and their activities in the municipal securities market. And because the infrmatin cntained in the registratin frms will be publicly available, municipal entities will be mre infrmed when chsing a municipal advisr. The prpsal defined municipal advisr bradly and wuld have required amng ther things municipal advisr registratin f appinted bard members f municipalities and peple prviding investment advice n all public funds. The SEC received mre than 1,000 cmment letters n the prpsal, mst f which raised cncerns abut the brad reach f the prpsal. Many cmmenters: Expressed cncern that the prpsed rule treated appinted bard members f municipal entities as municipal advisrs. Questined why the definitin f investment strategies included all public funds f a municipal entity. Raised issues regarding the ptential impact the rule culd have n certain banking activities. Final Rule The Cmmissin will cnsider adpting a final rule requiring municipal advisrs t register with the SEC. In particular, the rule wuld clarify wh is and isn t a municipal advisr and wuld ffer guidance n when a persn is prviding advice fr purpses f the municipal advisr definitin. In particular, the final rule wuld exempt emplyees and appinted fficials f municipal entities frm registratin and narrw the applicatin f the term investment strategies t apply nly t the investment f prceeds frm the sale f municipal securities rather than t all public funds. Exemptins prvided under the rule wuld be based n the activities f the advisr rather than the type f market participant. The staff believes this apprach wuld avid giving certain market participants an inapprpriate cmpetitive advantage. Additinally, instead f the prpsed apprach that wuld have required individuals assciated with registered municipal advisry firms t register separately, the final rule wuld require these firms t furnish infrmatin abut these individuals. The final rule als wuld allw the SEC t censure these individuals if necessary. Defined Terms The rule wuld define the fllwing terms: 2
Advice. A persn wuld be prviding advice t a municipal entity r an bligated persn based n all f the relevant facts and circumstances, including whether the advice: Invlves a recmmendatin t a municipal entity. Is particularized t the specific needs f a municipal entity. Relates t municipal financial prducts r the issuance f municipal securities. Advice, hwever, wuld nt include giving ut certain general infrmatin. An bligated persn essentially means an entity such as a nn-prfit university r nnprfit hspital that brrws the prceeds frm a municipal securities ffering and is bligated by cntract r ther arrangement t repay all r sme prtin f the amunt brrwed. Investment Strategies. A persn prviding advice t a municipal entity r an bligated persn with respect t investment strategies wuld nly have t register if such advice related t: The investment f prceeds f municipal securities. The investment f municipal escrw funds. Municipal derivatives. Exemptins Frm the Municipal Advisr Definitin T avid cnfusin, the final rule wuld clarify exemptins frm the municipal advisr definitin fr certain persns engaging in specified activities. The fllwing peple cnducting the specified activities wuld nt be required t register as a municipal advisr: Public Officials and Emplyees. Public fficials wuld nt have t register t the extent that they are acting within the scpe f their fficial capacity. This exemptin addresses an unintended cnsequence f the riginal prpsal that generated significant public cmment and created the impressin that public fficials and municipal emplyees wuld be cvered if they prvide internal advice. This exemptin wuld cver peple serving as members f a gverning bdy, an advisry bard, a cmmittee, r acting in a similar fficial capacity as an fficial f a municipal entity r an bligated persn. Fr instance, it wuld cver: Members f a city cuncil, whether elected r appinted, wh act in their fficial capacity. 3
Members f a bard f trustees f a public r private nn-prfit university acting in their fficial capacity, where the university is an bligated persn by virtue f brrwing prceeds f municipal bnds issued by a state gvernmental educatinal authrity. Similarly, this exemptin wuld cver emplyees f a municipal entity r an bligated persn t the extent that they act within the scpe f their emplyment. Underwriters. Brkers, dealers, and municipal securities dealers serving as underwriters wuld nt have t register if their advisry activities invlve the structure, timing, and terms f a particular issue f municipal securities. This exemptin wuld begin when the municipal issuer engages the underwriter n a particular transactin and wuld cntinue until the end f the underwriting perid fr that transactin. The exemptin wuld nt apply t advice n investments f prceeds f municipal securities (r related municipal escrw investments in refinancings) r municipal derivatives. That is because this type f advice is utside the scpe f underwriting the issuance f municipal securities and invlves ptential cnflicts f interest. Registered Investment Advisers. Registered investment advisers and assciated persns wuld nt have t register if they prvide investment advice regarding the investment f the prceeds f municipal securities r municipal escrw investments. This exemptin helps ensure the rule des nt create duplicative regulatin f investment advisers. This exemptin wuld nt apply t advice n the structure, timing, and terms f issues f municipal securities r municipal derivatives. That is because advice in these areas is utside the fcus f investment adviser regulatin. Registered Cmmdity Trading Advisr. Registered cmmdity trading advisrs under CFTC rules and their assciated persns wuld nt have t register if the advice they prvide relates t swaps. This exemptin helps ensure the rule des nt create duplicative regulatin with existing CFTC regulatin f swap advisers. Attrneys. Attrneys wuld nt have t register if they are prviding legal advice r traditinal legal services with respect t the issuance f municipal securities r municipal financial prducts. This exemptin wuld nt apply t advice that is primarily financial in nature r t an attrney representing himself r herself as a financial advisr r financial expert n municipal advisry activities. 4
Engineers. Engineers wuld nt have t register if they prvide engineering advice such as feasibility studies and cash flw analysis and similar activities related t engineering aspects f a prject. This exemptin wuld nt apply t activities in which an engineer prvides advice regarding municipal financial prducts r the issuance f municipal securities. Banks. Banks wuld nt have t register t the extent they prvide advice n certain identified banking prducts and services (such as depsit accunts, extensins f credit, r bnd indenture trustee services). This tailred exemptin wuld nt apply t banks that: Engage in ther municipal advisry activities such as prviding advice n municipal derivatives r the issuance f municipal securities. Prvide advice n municipal derivatives, in part because municipal derivatives were a surce f significant lsses by municipalities in the financial crisis. Accuntants. Accuntants wuld nt have t register if they are prviding accunting services that include audit r ther attest services, preparatin f financial statements, r issuance f letters fr underwriters. Independent Registered Municipal Advisr. Peple wh prvide advice in circumstances in which a municipal entity has an independent registered municipal advisr with respect t the same aspects f a municipal financial prduct r issuance f municipal securities wuld nt have t register, prvided that certain requirements are met and certain disclsures are made. Swap Dealers. Registered swap dealers under CFTC rules wuld nt have t register as municipal advisrs if they prvide advice with respect t swaps in circumstances in which a municipal entity is represented by an independent advisr. This exemptin helps ensure that the rule des nt create duplicative regulatin with existing CFTC regulatin f swap dealers and recgnizes a similar exemptin under CFTC rules. This exemptin wuld nt apply t swap dealers that engage in ther municipal advisry activities such as prviding advice n the issuance f municipal securities r the investment f the prceeds f municipal securities r municipal escrw investments. Registratin Frms The final rule wuld require municipal advisry firms t: File all frms thrugh the SEC s public nline filing system (EDGAR). File Frm MA t register as a municipal advisr. 5
File Frm MA-I fr each individual assciated with the firm wh engages in municipal advisry activities. If adpted, the rule wuld require municipal advisrs t register n a staggered basis beginning July 1, 2014. The expiratin date f the temprary rules wuld be extended in rder t allw municipal advisrs t cntinue t remain temprarily registered during the staggered cmpliance perid. What s Next? If apprved, the rule wuld becme effective 60 days after publicatin in the Federal Register. 6