[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Notices]
[Pages 1955-1958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-909]



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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-36727; File No. SR-MSRB-95-15]


Self-Regulatory Organizations; Order Approving Proposed Rule 
Change by the Municipal Securities Rulemaking Board Relating to 
Consultants

January 17, 1996.
    On September 28, 1995,\1\ the Municipal Securities Rulemaking Board 
(``MSRB'' or ``Board'') filed with the Securities and Exchange 
Commission (``Commission'') a proposed rule change pursuant to Section 
19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \2\ and Rule 
19b-4 thereunder.\3\ The proposed rule change amends rules G-8 \4\ and 
G-9,\5\ on recordkeeping and record retention, rule G-37,\6\ on 
political contributions and prohibitions on municipal securities 
business, and adds a new rule G-38 regarding consultants. The proposed 
rule change also amends MSRB Form G-37, and redesignates it as Form G-
37/G-38.

    \1\ On November 15, 1995, the MSRB filed Amendment No. 1 with 
the Commission. Amendment No. 1 was a minor technical amendment, the 
text of which may be examined in the Commission's Public Reference 
Room. See Letter from Jill C. Finder, Assistant General Counsel, 
MSRB, to Ethan D. Corey, Senior Counsel, Division of Market 
Regulation, Commission, dated November 15, 1995.
    \2\ 15 U.S.C. 78s(b)(1).
    \3\ 17 CFR 240.19b-4.
    \4\ MSRB Manual, General Rules, G-8 (CCH) para. 3536.
    \5\ MSRB Manual, General Rules, G-9 (CCH) para. 3541.
    \6\ MSRB Manual, General Rules, G-37 (CCH) para. 3681.
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    Notice of the proposed rule change, together with the substance of 
the proposal, was provided by issuance of a Commission release 
(Securities Exchange Act Release No. 36522, November 28, 1995) and by 
the publication in the Federal Register (60 FR 62275, December 5, 
1995). One comment letter was received.\7\ This order approves the 
proposed rule change.

    \7\ Letter from David J. Rubin (``Rubin'') to Jonathan G. Katz, 
Secretary, Commission, dated December 6, 1995 (``Rubin Letter'').

[[Page 1956]]

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I. Introduction

    The rule change approved today will require brokers, dealers and 
municipal securities dealers (collectively, ``municipal securities 
firms'') to enter written agreements with ``consultants,'' as defined 
in rule G-38, and to disclose such arrangement to issuers and to the 
public through disclosure to the Board. It is the latest in a series of 
actions taken by the Commission and the MSRB to combat abuses 
associated with the awarding of municipal securities business. The 
Commission approved rule G-37 on April 7, 1994 in order to cleanse the 
municipal securities market of pay-to-play practices. Rule G-37 
prohibits, among other things, any municipal securities firm from 
engaging in municipal securities business with an issuer if: (i) it; 
(ii) any municipal finance professional associated with it; or (iii) 
any political action committee controlled by it or any of its municipal 
finance professionals has contributed to an official of that issuer 
within the previous two years.\8\ The rule also provides that no 
municipal securities firm or any of its municipal finance professionals 
shall, directly or indirectly, through or by any other means, do any 
act that would result if a municipal securities firm engages in 
municipal securities business with an issuer after directing third 
parties (such as consultants) to make contributions to that issuer. In 
addition to recording and disclosing political contributions, rule G-37 
currently requires municipal securities firms to record and disclose on 
Form G-37 those issuers with which those firms have engaged in 
municipal securities business and, where applicable, the name, company, 
role and compensation arrangement of any person employed by the dealer 
to obtain or retain business with such issuers. The United States Court 
of Appeals for the District of Columbia Circuit, in rejecting a 
challenge to rule G-37, noted that ``the link between eliminating pay 
to play practices and the Commission's goals of `perfecting the 
mechanism of a free and open market' and promoting `just and equitable 
principles of trade' is self-evident.'' \9\

    \8\ Rule G-37(b) contains an exception for certain contributions 
of $250 or less per election made by an municipal finance 
professional to an official of an issuer for whom that municipal 
finance professional was entitled to vote.
    \9\ Blount v. Securities and Exchange Commission, 61 F.3d 938, 
945 (D.C. Circuit 1995); rehearing and application for rehearing en 
banc denied (D.C. Cir. Oct. 4, 1995).
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    Rule G-37 complements rule G-20, on gifts and gratuities, which 
prohibits dealers from, directly and indirectly, giving or permitting 
to be given any thing or service of value, including gratuities, in 
excess of $100 per year to any person, other than an employee of 
partner of the municipal securities firm, in relation to the municipal 
securities activities of the person's employer. All gifts given by the 
municipal securities firm and its associated persons, or by consultants 
at the direction of the municipal securities firm, are used to compute 
the $100 limitation and this limitation applies to gifts and gratuities 
to customers, individuals associated with issuers, and employers of 
other municipal securities firms.\10\

    \10\ MSRB Reports, vol. 14, no. 1 at 11 (Jan. 1994). Rule G-
20(b) exempts ``normal business dealings'' from the $100 annual 
limit. These payments are defined as occasional gifts of meals or 
tickets to theatrical, sporting, and other entertainments, as well 
as the sponsoring of legitimate business functions that are 
recognized by the IRS as deductible business expenses, and gifts of 
reminder advertising. However, the rule also provides that such 
gifts can not be so frequent or so expensive as to raise a 
suggestion of unethical conduct.
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    In addition to these initiatives, the Commission has brought 
several actions against participants in the municipal securities market 
in connection with payments made by underwriters to agents or employees 
of issuers in order to secure municipal securities business. In one 
instance, the Commission found that an employee of a municipal 
securities underwriter provided certain benefits to an elected public 
official of an issuer during a time when that official has an important 
role in selecting the underwriter for municipal securities issued by 
that issuer.\11\ In another instance, the Commission found that 
employees of a municipal securities underwriter made undisclosed 
payments to a third party to assure that underwriter's continued 
participation as book-running senior manager for a municipal issuer's 
offering of debt securities.\12\ The Commission also found that the 
same municipal securities underwriter itself engaged in schemes to 
defraud various municipal issuers and investors by agreeing to pay 
undisclosed kickbacks to agents of those issuers in exchange for 
underwriting business.\13\

    \11\ See Preston C. Bynum, Securities Exchange Act Release No. 
35870 (June 20, 1995), 59 SEC Dock, 1801 (July 18, 1995).
    \12\ See George l. Tuttle, Jr., and Alexander S. Williams, 
Securities Exchange Act Release No. 35605 (April 14, 1995), 59 SEC 
Dock, 330 (May 16, 1995) (``Tuttle'').
    \13\ See First Fidelity Securities Group, Securities Exchange 
Act Release No. 36694 (Jan. 9, 1996) (``First Fidelity'').
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    The Commission notes that past rulemaking initiatives have helped 
to ensure that municipal securities firms are prohibited from engaging 
in practices that bring into question the integrity of the municipal 
securities market and that it has brought enforcement actions to 
address fraudulent practices in the municipal securities market. 
However, the Commission is concerned that abusive practices such as 
those disclosed in the Tuttle and First Fidelity orders do not 
represent isolated instances of wrongdoing.
    The MSRB stated in its filing that it believes that municipal 
securities firms may employ consultants as a result of limitations 
placed on municipal securities firm activities by rule G-37 and rule G-
20.\14\ While both rules prohibit municipal securities from doing 
indirectly what they are precluded from doing directly, indirect 
activities often are difficult to prove. The rule approved today is 
intended to provide additional information to issuers and to the public 
to assist in determining the extent to which payments to consultants 
influence the issuer's selection process in connection with municipal 
securities business, as well as the extent to which such payments 
increase the cost of bringing municipal securities issues to market.

    \14\ The MSRB also stated in its filing that it believes that in 
many instances the use of consultants is appropriate.
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II. Scope of Rule G-38

    Rule G-38, on consultants, does not impose any substantive 
restrictions on arrangements between municipal securities firms and 
consultants. Rather, rule G-38 will require municipal securities firms 
to enter into written agreements with ``consultants,'' as defined in 
rule G-38, and to disclose such arrangements to issuers and to the 
public through disclosure to the Board.

A. Definition of Consultant

    Rule G-38 defines consultant as any person used by a municipal 
securities firm to obtain or retain municipal securities business 
through direct or indirect communication by such person with an issuer 
on the municipal securities firm's behalf where the communication is 
undertaken by such person in exchange for, or with the understanding of 
receiving, payment from the municipal securities firm or any other 
person.\15\ The definition 

[[Page 1957]]
specifically excludes ``municipal finance professionals,'' as that term 
is defined in rule G-37(g)(iv), because such individuals are covered by 
the requirements of rule G-37. The definition also excludes any person 
whose sole basis of compensation from the municipal securities firm is 
the actual provision of legal advice, accounting or engineering 
assistance in connection with the municipal securities business that 
the municipal securities firm is seeking to obtain or retain. The 
exclusion would apply, for example, to a lawyer retained to conduct a 
legal analysis on a particular transaction contemplated by the 
municipal securities firm, or to review local regulations; an 
accountant retained to conduct a tax analysis or to scrutinize 
financial reports; or an engineer retained to perform a technical 
review or feasibility study. The exemption is intended to ensure that 
professionals who are engaged by the municipal securities firm solely 
to perform substantive working connection with municipal securities 
business are not brought within the definition of consultant as long as 
their compensation is in consideration of only those professional 
services actually provided in connection with such municipal securities 
business. Any attorney, accountant, engineer or other professional used 
by the municipal securities firm as a ``finder'' for municipal 
securities business would, however, be considered a consultant under 
the proposed rule.

    \15\ ``Person'' is defined in Section 3(a)(9) of the Securities 
Exchange Act of 1934 as ``a natural person, company, government, or 
political subdivision, agency or instrumentality ``Municipal 
securities business' has the same meaning as in rule G-37(g)(vii), 
i.e., (A) the purchase of a primary offering (as defined in rule A-
13(d)) of municipal securities from the issuer on other than a 
competitive bid basis (i.e., negotiated underwriting); (B) the offer 
or sale of a primary offering of municipal securities on behalf of 
any issuers (i.e., private placement); (C) the provision of 
financial advisory or consultant services to or on behalf of an 
issuer with respect to a primary offering of municipal securities on 
other than a competitive bid basis; or (D) the provision of 
remarketing agent services to or on behalf of an issuer with respect 
to a primary offering of municipal securities on other than a 
competitive bid basis.
    ``Payment'' has the same meaning as in rule G-37(g)(viii), i.e., 
any gift, subscription, loan, advance, or deposit of money or 
anything of value.
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    The definition of consultant also will encompass third parties who 
initiate contact with prospective underwriters to offer their services 
in obtaining or retaining municipal securities business through direct 
or indirect communication by such person with an issuer official. The 
definition does not distinguish between instances in which the 
municipal securities firm initiates contact and instances in which the 
third party initiates contact. The touchstone is whether that person is 
used by a municipal securities firm to obtain or retain municipal 
securities business through direct or indirect communication by such 
person with an issuer on the municipal securities firm's behalf where 
the communication is undertaken by such person in exchange for, or with 
the understanding of receiving payment from the municipal securities 
firm or any other person. If that person is so used, then that person 
is a consultant.

B. Written Agreement

    Rule G-38 will require municipal securities firms who use 
consultants to evidence the consulting arrangement in writing 
(``Consultant Agreement''), and that, at a minimum, the writing must 
include the name, company, role and compensation arrangement of each 
consultant used by the municipal securities firm. Such written 
agreements must be entered into before the consultant engages in any 
direct or indirect communication with an issuer on the municipal 
securities firm's behalf.

C. Disclosure to Issuers

    Rule G-38 will require each municipal securities firm to disclose 
to an issuer with which it is engaging or seeking to engage in 
municipal securities business, in writing, information on consulting 
arrangements relating to that issuer. The written disclosure must 
include, at a minimum, the name, company, role and compensation 
arrangement with the consultant or consultants. Municipal securities 
firms are required to make such written disclosures prior to the 
issuer's selection of any municipal securities firm in connection with 
the municipal securities business sought, regardless of whether the 
municipal securities firm making the disclosure ultimately is the 
municipal securities firm that obtains or retains that business.

D. Disclosure to the Board

    Rule G-38 will require municipal securities firms to submit to the 
Board, on a quarterly basis, reports of all consultants used by the 
municipal securities firm. For each consultant, municipal securities 
firms must report, in the prescribed format, the consultant's name, 
company, role and compensation arrangement, as well as the dollar 
amount of any payment made to the consultant during the quarterly 
reporting period. If any payment made during the reporting period is 
related to the consultant's efforts on the municipal securities firm's 
behalf which resulted in particular municipal securities business, 
whether the municipal securities business was completed during that or 
a prior reporting period, then the municipal securities firm must 
separately identify that business and the dollar amount of the payment. 
In addition, as long as the municipal securities firm continues to use 
the consultant to obtain or retain municipal securities business (i.e., 
has a continuing arrangement with the consultant), the municipal 
securities firm must report information concerning such consultant 
every quarter, whether or not compensation is paid to the consultant 
during the reporting period. The quarterly reporting requirement is 
intended to assist enforcement agencies and the public in their review 
of such arrangements.
    The rule change approved today deletes the current reporting 
requirements regarding consultants from rule G-37. Instead, reporting 
requirements imposed under rule G-37 and rule G-38 will be contained in 
a single form--new G-37/G-38. Municipal securities firms will be 
required to submit two copies of such reports on new Form G-37/G-
38.\16\ The quarterly due dates will be the same as the due dates 
currently required under rule G-37 (i.e., within 30 calendar days after 
the end of each calendar quarter, which corresponds to each January 31, 
April 30, July 31, and October 31). Finally, consistent with current 
rule G-37, municipal securities firms will be required to submit these 
reports to the Board by certified or registered mail, or some other 
equally prompt means that provides a record of sending.\17\ The Board 
will then make these documents available to the public for inspection 
and photocopying at its Public Access Facility in Alexandria, Virginia, 
and for review by agencies charged with enforcement of Board rules.

    \16\ In addition to the new rule G-38 consultant reporting 
requirements, Form G-37/G-38 includes revisions to the rule G-37 
political contribution reporting requirements. Such revisions 
include, for each contribution, a required notation of the category 
of the contributor (e.g., municipal finance professional or 
executive officer) and the amount of the contribution, as well as a 
separate section for the reporting of ``payments'' to political 
parties distinct from ``contributions'' to issuer officials.
    \17\ Rule G-37 Filing Procedures are contained within the 
language of rule G-37, and rule G-38 Filing Procedures are contained 
within the language of new rule G-38.
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E. Recordkeeping Requirements

    The rule change approved today also amends rules G-8 and G-9, 
concerning recordkeeping and record retention, to facilitate compliance 
with, and enforcement of, rule G-38. The amendments to rule G-8 will 
require municipal securities firms to maintain: (i) A listing of the 
name, company, role and compensation arrangement of each consultant; 
(ii) a copy of each Consultant Agreement; (iii) a listing of 

[[Page 1958]]
the compensation paid in connection with each Consultant Agreement; 
(iv) where applicable, a listing of the municipal securities business 
obtained or retained through the activities of each consultant; (v) a 
listing of the issuers and a record of disclosures made to such issuers 
concerning each consultant used by the municipal securities firm to 
obtain or retain municipal securities business with each such issuer; 
and (vi) the date of termination of any consultant arrangement. The 
amendment to rule G-9 will require municipal securities firms to 
maintain these records for a six-year period.

III. Comment Letters

    As noted above, the Commission received one comment letter 
concerning the proposed change. The Rubin Letter argued that although 
the proposed rule change may assist in uncovering payments to third 
parties that are intended to influence the awarding of municipal 
securities business, such business will continue to be awarded based on 
criteria other than merit until issuers are required to select the best 
underwriters for debt issuance. The Commission agrees with the Rubin 
Letter that the rule change approved today, standing alone, will not 
operate to cleanse the municipal market of all practices resulting in 
issuers awarding municipal securities business on a basis other than 
the merits of the underwriting firm chosen.\18\ As noted above, 
however, the rule change approved today is intended to provide 
additional information to issuers and to the public to assist in 
determining the extent to which payments to consultants influence the 
issuer's selection process in connection with municipal securities 
business, as well as the extent to which such payments increase the 
cost of bringing municipal securities issues to market.

    \18\ The MSRB determined not to include within the definition of 
consultant persons who are engaged by a dealer at the request or 
direction of the issuer because those persons do not assist the 
dealer in obtaining or retaining municipal securities business. The 
MSRB stated in its filing that it will review the issue of ``issuer-
designated'' professionals and other issuer involvement in the 
underwriting process and will address this subject, including the 
question of requiring disclosure of issuer-designated persons, at a 
future time. The Commission encourages the MSRB to consider such 
further initiatives in this area in order to promote the awarding of 
municipal securities business based on merit.
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IV. Discussion and Findings

    The Commission finds that the rule change is consistent with the 
provisions of Section 15B(b)(2)(C) \19\ of the Act, which provides that 
the Board's rules shall be designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to foster cooperation and coordination with 
persons engaged in regulating, clearing, settling, processing 
information with respect to, and facilitating transactions in, 
municipal securities, to remove impediments to and perfect the 
mechanism of a free and open market in municipal securities, and, in 
general, to protect investors and the public interest. The Commission 
believes that the rule change removes impediments to and perfects the 
mechanism of a free and open market in municipal securities in that the 
amendments enhance the ability of municipal securities firms to compete 
for, and be awarded, municipal securities business on the basis of 
merit, rather than political or financial influence. Such healthy 
competition will act to lower artificial barriers to those municipal 
securities firms not willing or able to hire consultants to obtain or 
retain municipal securities business, thereby maintaining the integrity 
of the municipal securities market, as well as the public trust and 
confidence that is essential to the long-term health and liquidity of 
the market.

    \19\ 15 U.S.C. 78o-4.
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    The Commission also believes that the rule change is in the public 
interest in that the amendments enhance the ability of investors to 
determine whether an underwriter may have made improper payments in 
order to secure municipal securities business. The Commission has 
recognized that ``information concerning financial and business 
relationships among the parties involved in the issuance of municipal 
securities may be critical to an evaluation of the underwriting.'' \20\

    \20\ First Fidelity, supra n. 13, quoting Statement of the 
Commission Regarding Disclosure Obligations of Municipal Securities 
Issuers and Others, Securities Act Release No. 7049 (Mar. 9, 1994), 
59 FR 12748 (Mar. 17, 1994).
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    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that File No. SR-MSRB-95-15 be, and hereby is, approved, effective 
March 18, 1996.

    For the Commission by the Division of Market Regulation, 
pursuant to delegated authority, 17 CFR 200.30-3(a)(12).
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-909 Filed 1-23-96; 8:45 am]
BILLING CODE 8010-01-M