[Federal Register Volume 83, Number 90 (Wednesday, May 9, 2018)]
[Proposed Rules]
[Pages 21416-21571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08583]



[[Page 21415]]

Vol. 83

Wednesday,

No. 90

May 9, 2018

Part III





Securities and Exchange Commission





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17 CFR Parts 240, 249, 275, et al.





Form CRS Relationship Summary; Amendments to Form ADV; Required 
Disclosures in Retail Communications and Restrictions on the Use of 
Certain Names or Titles; Proposed Rule

Federal Register / Vol. 83 , No. 90 / Wednesday, May 9, 2018 / 
Proposed Rules

[[Page 21416]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 240, 249, 275 and 279

[Release No. 34-83063; IA-4888; File No. S7-08-18]
RIN 3235-AL27


Form CRS Relationship Summary; Amendments to Form ADV; Required 
Disclosures in Retail Communications and Restrictions on the Use of 
Certain Names or Titles

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
proposing new and amended rules and forms under both the Investment 
Advisers Act of 1940 (``Advisers Act'') and the Securities Exchange Act 
of 1934 (``Exchange Act'') to require registered investment advisers 
and registered broker-dealers (together, ``firms'') to provide a brief 
relationship summary to retail investors to inform them about the 
relationships and services the firm offers, the standard of conduct and 
the fees and costs associated with those services, specified conflicts 
of interest, and whether the firm and its financial professionals 
currently have reportable legal or disciplinary events. Retail 
investors would receive a relationship summary at the beginning of a 
relationship with a firm, and would receive updated information 
following a material change. The relationship summary would be subject 
to Commission filing and recordkeeping requirements. The Commission 
also is proposing two rules to reduce investor confusion in the 
marketplace for firm services, a new rule under the Exchange Act that 
would restrict broker-dealers and associated natural persons of broker-
dealers, when communicating with a retail investor, from using the term 
``adviser'' or ``advisor'' in specified circumstances; and new rules 
under the Exchange Act and Advisers Act that would require broker-
dealers and investment advisers, and their associated natural persons 
and supervised persons, respectively, to disclose, in retail investor 
communications, the firm's registration status with the Commission and 
an associated natural person's and/or supervised person's relationship 
with the firm.

DATES: Comments should be received on or before August 7, 2018.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/proposed.shtml); or
     Send an email to [email protected]. Please include 
File Number S7-08-18 on the subject line.

Paper Comments

     Send paper comments to Brent J. Fields, Secretary, 
Securities and Exchange Commission, 100 F Street NE, Washington, DC 
20549.

All submissions should refer to File Number S7-08-18. 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 website (http://www.sec.gov/rules/proposed.shtml). Comments also are available for website 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. All comments received will be posted without 
change. Persons submitting comments are cautioned that we do not redact 
or edit personal identifying information from comment submissions. You 
should submit only information that you wish to make available 
publicly. Investors seeking to comment on the relationship summary may 
want to submit our short-form tear sheet for providing feedback on the 
relationship summary, available at Appendix F.
    Studies, memoranda or other substantive items may be added by the 
Commission or staff to the comment file during this rulemaking. A 
notification of the inclusion in the comment file of any such materials 
will be made available on the Commission's website. To ensure direct 
electronic receipt of such notifications, sign up through the ``Stay 
Connected'' option at www.sec.gov to receive notifications by email.

FOR FURTHER INFORMATION CONTACT: Emily Rowland, Jennifer Songer, Gena 
Lai, Roberta Ufford, Jennifer Porter (Branch Chief), and Sara Cortes 
(Assistant Director), Investment Adviser Regulation Office at (202) 
551-6787 or [email protected], and Benjamin Kalish, Elizabeth Miller, 
Parisa Haghshenas (Branch Chief), and Holly Hunter-Ceci (Assistant 
Director), Chief Counsel's Office at (202) 551-6825 or [email protected], 
Division of Investment Management, Securities and Exchange Commission, 
100 F Street NE, Washington, DC 20549.

SUPPLEMENTARY INFORMATION: The Commission is proposing new rule 204-5 
under the Investment Advisers Act of 1940 [15 U.S.C. 80b],\1\ and is 
proposing to amend Form ADV to add a new Part 3: Form CRS [17 CFR 
279.1] under the Advisers Act. The Commission is also proposing to 
amend rules 203-1 [17 CFR 275.203-1], 204-1 [17 CFR 275.204-1], and 
204-2 [17 CFR 275.204-2] under the Advisers Act. The Commission is 
proposing new rule 17a-14 under the Securities Exchange Act of 1934 [17 
CFR 240.17a-14],\2\ and new Form CRS [17 CFR 249.640] under the 
Exchange Act. The Commission is also proposing to amend rules 17a-3 [17 
CFR 240.17a-3] and 17a-4 [17 CFR 240.17a-4] under the Exchange Act. The 
Commission is further proposing new rule 15l-2 under the Exchange Act 
[17 CFR 240.15l-2], new rule 15l-3 under the Exchange Act [17 CFR 
240.15l-3], and new rule 211h-1 under the Advisers Act [17 CFR 
275.211h-1].
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    \1\ 15 U.S.C. 80b. Unless otherwise noted, when we refer to the 
Advisers Act, or any paragraph of the Advisers Act, we are referring 
to 15 U.S.C. 80b, at which the Advisers Act is codified, and when we 
refer to rules under the Advisers Act, or any paragraph of these 
rules, we are referring to Title 17, Part 275 of the Code of Federal 
Regulations [17 CFR 275], in which these rules are published.
    \2\ 15 U.S.C. 78a. Unless otherwise noted, when we refer to the 
Exchange Act, or any paragraph of the Exchange Act, we are referring 
to 15 U.S.C. 78a, at which the Exchange Act is codified, and when we 
refer to rules under the Exchange Act, or any paragraph of these 
rules, we are referring to Title 17, Part 240 of the Code of Federal 
Regulations [17 CFR 240], in which these rules are published.

I. Background
II. Form CRS Relationship Summary
    A. Presentation and Format
    B. Items
    1. Introduction
    2. Relationships and Services
    3. Obligations to the Retail Investor--Standard of Conduct
    4. Summary of Fees and Costs
    5. Comparisons
    6. Conflicts of Interest
    7. Additional Information
    8. Key Questions
    C. Delivery, Updating, and Filing Requirements
    1. Filing Requirements
    2. Delivery Requirements
    3. Updating Requirements
    D. Transition Provisions
    E. Recordkeeping Amendments
III. Restrictions on the Use of Certain Names and Titles and 
Required Disclosures
    A. Investor Confusion
    B. Restrictions on Certain Uses of ``Adviser'' and ``Advisor''
    1. Firms Solely Registered as Broker-Dealers and Associated 
Natural Persons
    2. Dually Registered Firms and Dual Hatted Financial 
Professionals

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    C. Alternative Approaches
    D. Disclosures About a Firm's Regulatory Status and a Financial 
Professional's Association
IV. Economic Analysis
    A. Baseline
    1. Providers of Financial Services
    2. Investor Account Statistics
    3. Investor Perceptions About Broker-Dealers and Investment 
Advisers
    B. Form CRS Relationship Summary
    1. Broad Economic Considerations
    2. Economic Effects of the Relationship Summary
    3. Impact on Efficiency, Competition, and Capital Formation
    4. Alternatives to the Proposed Relationship Summary
    5. Request for Comments
    C. Restrictions on the Use of Certain Names and Titles and 
Required Disclosures
    1. Broad Economic Considerations
    2. Economic Effects of the Proposed Restrictions on the Use of 
Certain Titles and Required Disclosures
    3. Impact on Efficiency, Competition, and Capital Formation
    4. Alternatives to the Proposed Rules
    5. Request for Comments
    D. Combined Economic Effects of Form CRS Relationship Summary 
and Restrictions on the Use of Certain Titles and Required 
Disclosures About a Firm's Regulatory Status
V. Paperwork Reduction Act Analysis
    A. Form ADV
    1. Respondents: Investment Advisers and Exempt Reporting 
Advisers
    2. Changes in Burden Estimates and New Burden Estimates
    3. Total Revised Burden Estimates for Form ADV
    B. Rule 204-2 Under the Advisers Act
    1. Changes in Burden Estimates and New Burden Estimates
    2. Revised Annual Burden Estimates
    C. Rule 204-5 Under the Advisers Act
    1. Respondents: Investment Advisers
    2. Initial and Annual Burdens
    D. Form CRS and Rule 17a-14 Under the Exchange Act
    1. Respondents: Broker-Dealers
    2. Initial and Annual Burdens
    E. Recordkeeping Obligations Under Rule 17a-3 of the Exchange 
Act
    F. Record Retention Obligations Under Rule 17a-4 of the Exchange 
Act
    1. Changes in Burden Estimates and New Burden Estimates
    2. Revised Annual Burden Estimates
    G. Rule 151-3 Under the Exchange Act
    1. Respondents: Broker-Dealers and Associated Natural Persons
    2. Initial and Annual Burdens
    H. Rule 211h-1 Under the Advisers Act
    1. Respondents: Investment Advisers and Supervised Persons
    2. Initial and Annual Burdens
    I. Request for Comment
VI. Initial Regulatory Flexibility Analysis
    A. Reason for and Objectives of the Proposed Action
    1. Proposed Form CRS Relationship Summary
    2. Proposed Rules Relating to Restrictions on the Use of Certain 
Terms and Required Disclosure of Regulatory Status and a Financial 
Professional's Firm Association
    B. Legal Basis
    C. Small Entities Subject to the Rule and Rule Amendments
    1. Investment Advisers
    2. Broker-Dealers
    D. Projected Reporting, Recordkeeping and Other Compliance 
Requirements
    1. Initial Preparation of Form CRS Relationship Summary
    2. Rule 15l-2 Relating to Restrictions on the Use of Certain 
Terms in Names and Titles
    3. Rules 15l-3 and 211h-1 Relating to Disclosure of Commission 
Registration Status and Financial Professional Association
    E. Duplicative, Overlapping, or Conflicting Federal Rules
    F. Significant Alternatives
    1. Form CRS Relationship Summary
    2. Rule 15l-2 Relating to Restrictions on the Use of Certain 
Terms in Names and Titles
    3. Rule 15l-3 Relating to Disclosure of Commission Registration 
Status and Financial Professional Association
    G. Solicitation of Comments
VII. Consideration of the Impact on the Economy
VIII. Statutory Authority
IX. Text of Rule and Form
Appendices
Appendix A: Form ADV: General Instructions
Appendix B: [Form ADV, Part 3:] Instructions to Form CRS
Appendix C: Dual Registrant Mock-Up
Appendix D: Broker-Dealer Mock-Up
Appendix E: Investment Adviser Mock-Up
Appendix F: Feedback on the Relationship Summary

I. Background

    Individual investors rely on the services of broker-dealers and 
investment advisers when making and implementing investment decisions. 
Such ``retail investors'' can receive investment advice from a broker-
dealer, an investment adviser, or both, or decide to make their own 
investment decisions.\3\ A number of firms are dually registered with 
the Commission as broker-dealers and investment advisers, and offer 
both types of services.\4\ Broker-dealers, investment advisers and 
dually registered firms all provide important services for individuals 
who invest in the markets. Studies show that retail investors are 
confused about the differences among them.\5\ These differences include 
the scope and nature of the services they provide, the fees and costs 
associated with those services, conflicts of interest, and the 
applicable legal standards and duties to investors.
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    \3\ See Staff of the U.S. Securities and Exchange Commission, 
Study on Investment Advisers and Broker-Dealers as Required by 
Section 913 of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (Jan. 2011), at 10-11, available at www.sec.gov/news/studies/2011/913studyfinal.pdf (``913 Study''). As discussed below, 
we have considered the findings, conclusions and recommendations of 
the 913 Study in developing this proposal.
    Retail investors also can choose to receive advisory services 
from other sources, such as banks, that are not required to be 
registered with the Commission.
    \4\ Investment advisers also may be registered with one or more 
states if, among other things, they have less than a certain amount 
of assets under management. See section 203A of the Advisers Act. 
References in this release to investment advisers generally refer 
only to SEC-registered investment advisers.
    \5\ See, e.g., 913 Study, supra note 3. See also Letter from 
Barbara Roper, Director of Investor Protection, Consumer Federation 
of America, et al., (Sept. 15, 2010) (``CFA Survey'') (submitting 
the results of a national opinion survey regarding U.S. investors 
and the fiduciary standard conducted by ORC/Infogroup for the 
Consumer Federation of America, AARP, the North American Securities 
Administrators Association, the Certified Financial Planner Board of 
Standards, Inc., the Investment Adviser Association, the Financial 
Planning Association and the National Association of Personal 
Financial Advisors); Siegel & Gale, LLC/Gelb Consulting Group, Inc., 
Results of Investor Focus Group Interviews About Proposed Brokerage 
Account Disclosures (Mar. 5, 2005), available at http://www.sec.gov/rules/proposed/s72599/focusgrp031005.pdf (``Siegel & Gale Study''); 
Angela A. Hung, et al., RAND Institute for Civil Justice, Investor 
and Industry Perspectives on Investment Advisers and Broker-Dealers 
(2008), available at https://www.sec.gov/news/press/2008/2008-1_randiabdreport.pdf (``RAND Study'').
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    We recognize the benefits of retail investors having access to 
diverse business models and of preserving investor choice among 
brokerage services, advisory services, or both. We also believe that 
retail investors need clear and sufficient information in order to 
understand the differences and key characteristics of each type of 
service. Providing this clarity is intended to assist investors in 
making an informed choice when choosing an investment firm and 
professional, and type of account to help to ensure they receive 
services that meet their needs and expectations.
    The Commission, as the primary regulator of both broker-dealers and 
investment advisers, has considered ways to address this confusion and 
preserve investor choice for some time, including through the RAND 
study of investor perspectives commissioned in 2006, the 913 Study 
conducted in 2010-2011, and a solicitation of data and other relevant 
information in 2013.\6\ A number of approaches with a range of formats 
have been considered to address this issue, such as a statement by 
broker-dealers that an account is a brokerage account and not an 
advisory

[[Page 21418]]

account, and encouraging investors to ask questions.\7\ Through these 
initiatives, we have heard and considered the views of a wide range of 
commenters--financial firms, investors, consumer advocates, academics, 
and others. Improving retail investors' understanding of their 
different options for investment-related services through better 
disclosure is one key area on which commenters have focused. Commenters 
have suggested a range of presentations. Some commenters recommended a 
short disclosure document that explains the firm's services, fees, 
certain conflicts of interest, and the scope and nature of its services 
to the retail investor.\8\ Others recommended a longer, more 
comprehensive narrative document such as the Form ADV Part 2 brochure 
that investment advisers are required to deliver to their clients.\9\
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    \6\ See RAND Study, supra note 5; 913 Study, supra note 3; 
Duties of Brokers, Dealers, and Investment Advisers, Exchange Act 
Release No. 69013 (Mar. 1, 2013) [78 FR 14848 (Mar. 7, 2013)] 
(``2013 Request for Data'').
    \7\ See, e.g., Certain Broker-Dealers Deemed Not to Be 
Investment Advisers, Exchange Act Release No. 51523 (Apr. 12, 2005) 
[70 FR 20424, 20435 (Apr. 19, 2005)], at n.124 and accompanying text 
(``2005 Broker Dealer Release'').
    \8\ See, e.g., Comment letters of Sammons Retirement Solutions 
(Jun. 4, 2013) and Insured Retirement Institute (Jul. 3, 2013) 
(recommending a short summary disclosure document together with a 
longer disclosure document similar to Form ADV, to be offered by 
both broker-dealers and investment advisers); Comment letter of AARP 
(Jul. 25, 2013); Comment letter of American Council of Life Insurers 
(Jul. 5, 2013) (incorporating by reference its comment letter, dated 
Aug. 30, 2010); Comment letter of Financial Services Institute (Jul. 
5, 2013).
    \9\ See, e.g., Comment letter of Committee of Annuity Insurers 
(Jul. 5, 2013); Comment letter of Edward D. Jones and Co., L.P. 
(Jul. 12, 2013); Comment letter of North American Securities 
Administrators Association, Inc. (Jul. 5, 2013); Comment letter of 
PFS Investments, Inc. (Jul. 5, 2013).
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    Similarly, the staff in the 913 Study and the Commission's Investor 
Advisory Committee, as part of its recommendation that the Commission 
adopt a fiduciary duty for broker-dealers, recommended uniform, simple, 
and clear summary disclosures to retail customers about the terms of 
their relationships with broker-dealers and investment advisers, 
including any material conflicts of interests.\10\ Disclosure has also 
been a feature of other regulatory efforts that address investment 
advice, including those of the U.S. Department of Labor (``DOL'') 
applicable to services provided by broker-dealers and investment 
advisers,\11\ and rules applicable to broker-dealers issued by the 
Financial Industry Regulatory Authority (``FINRA'').\12\
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    \10\ See 913 Study, supra note 3, at 114-117. The 913 Study 
contemplated that the general relationship guide would be akin to 
Part 2A of Form ADV, which is generally referred to as an investment 
adviser's ``brochure'' and is the form investment advisers use to 
register with the Commission and states, which is provided to 
advisory clients. The 913 Study identified a number of potential 
disclosures that the Commission should consider including in such 
relationship guide. See also Recommendation of the Investor Advisory 
Committee: Broker-Dealer Fiduciary Duty, available at https://www.sec.gov/spotlight/investor-advisory-committee-2012/fiduciary-duty-recommendation-2013.pdf (``Broker-Dealer Fiduciary Duty 
Recommendations''). The recommendation of the Investor Advisory 
Committee suggested that the disclosure be provided at the start of 
the engagement and periodically thereafter, and that it cover basic 
information about the nature of the services offered, fees and 
compensation, conflicts of interest, and disciplinary record.
    \11\ For example, DOL regulations relating to ``reasonable plan 
service arrangements'' require firms providing advisory and other 
services to workplace retirement plans covered by the Employee 
Retirement Income Security Act of 1974 (``ERISA'') and the 
prohibited transaction provisions under section 4975 of the Internal 
Revenue Code (``Code'') to disclose in writing (among other things) 
a description of services and applicable fees. See 29 CFR 2550.408b-
2. See also 29 CFR 2550.408g-1 (regulation requires fiduciary 
advisers to plans and individual retirement accounts (``IRAs'') 
seeking to rely on the statutory exemption for participant 
investment advice to provide certain disclosures, among other 
conditions). See also infra Section IV.A.1.c, which further 
describes disclosure obligations under DOL regulations and 
exemptions, including the DOL's ``Best Interest Contract Exemption'' 
(the ``BIC Exemption'').
    \12\ Disclosure of Services, Conflicts and Duties, FINRA Notice 
10-54 (Oct. 2010), available at http://www.finra.org/sites/default/files/NoticeDocument/p122361.pdf (``FINRA Notice 10-54'').
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    In 2017, Commission Chairman Clayton continued the discourse on 
these issues by outlining a series of questions and welcoming the 
public to submit their views on standards of conduct and related 
disclosures for investment advisers and broker-dealers. More than 250 
commenters responded.\13\ Many commenters recommended enhanced 
disclosures in addition to regulations that would raise the standard of 
conduct for broker-dealers providing advice.\14\ Some recommended that 
both broker-dealers and investment advisers should provide a uniform 
disclosure document to retail investors,\15\ while others suggested new 
disclosure requirements only for broker-dealers.\16\ Commenters also 
noted that investor confusion based on financial professionals' titles 
persists, and made a range of suggestions.\17\ Specifically, some 
commenters believed that particular titles cause investors to either 
form misimpressions about whether the services received are those of an 
investment adviser and subject to a fiduciary duty, or these investors 
are misled by financial professionals to form such beliefs.\18\
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    \13\ Public Comments from Retail Investors and Other Interested 
Parties on Standards of Conduct for Investment Advisers and Broker-
Dealers, Chairman Jay Clayton (Jun. 1, 2017), available at https://www.sec.gov/news/public-statement/statement-chairman-clayton-2017-05-31 (``Chairman Clayton's Request for Comment'').
    \14\ See, e.g., Comment letter of T. Rowe Price (Oct. 12, 2017) 
(``T. Rowe 2017 Letter''); Comment letter of Vanguard (Sept. 29, 
2017) (``Vanguard 2017 Letter''); Comment letter of Teachers 
Insurance and Annuity Association of America (Sept. 26, 2017) 
(``TIAA 2017 Letter''); Comment letter of the Investment Adviser 
Association (Aug. 31, 2017) (``IAA 2017 Letter''); Comment letter of 
Stifel, Nicolaus & Co. (Jul. 25, 2017) (``Stifel 2017 Letter''); 
Comment letter of Bernardi Securities, Inc. (Sept. 11, 2017) 
(``Bernardi Securities 2017 Letter''); Comment letter of UBS 
Financial Services Inc. (Jul. 21, 2017) (``UBS 2017 Letter''); 
Comment letter of SIFMA (Jul 21, 2017) (``SIFMA 2017 Letter''); 
Comment letter of the Equity Dealers of America (Sept. 11, 2017) 
(``Equity Dealers of America 2017 Letter''); Comment letter of AARP 
(Sept. 6, 2017) (``AARP 2017 Letter''); Comment letter of Financial 
Services Institute (Oct. 30, 2017); Comment letter of Financial 
Services Roundtable (Oct. 17, 2017) (``FSR 2017 Letter''); Comment 
letter of Consumer Federation of America (Sept. 14, 2017) (``CFA 
2017 Letter'').
    \15\ See, e.g., Stifel 2017 Letter; Equity Dealers of America 
2017 Letter; Comment letter of Michael Kiley (Jul. 6, 2017) (``Kiley 
2017 Letter''); Comment letter of the American Council of Life 
Insurers (Oct. 3, 2017) (``ACLI 2017 Letter''); Comment letter of 
Allianz Life Insurance Company of North America (Oct. 13, 2017) 
(``Allianz 2017 Letter''); AARP 2017 Letter; Comment letter of 
Robert Shaw (Jun. 5, 2017) (``Shaw 2017 Letter''); Comment letter of 
Alan Syzdek (Jul. 2 2017); Comment letter of Americans for Financial 
Reform (Sept. 22, 2017) (``AFR 2017 Letter'').
    \16\ See, e.g., SIFMA 2017 Letter; Comment letter of the 
Investment Company Institute (Feb. 5, 2018); IAA 2017 Letter; 
Comment letter of Fidelity Investments (Aug. 11, 2017) (``Fidelity 
2017 Letter''); Vanguard 2017 Letter; T. Rowe 2017 Letter; FSR 2017 
Letter; UBS 2017 Letter; TIAA 2017 Letter; Comment letter of Wells 
Fargo & Company (Sept. 20, 2017) (``Wells Fargo 2017 Letter''); 
Bernardi Securities 2017 Letter; Comment letter of State Farm Mutual 
Automobile Insurance Company (Aug. 21, 2017) (``State Farm 2017 
Letter''); Comment letter of PFS Investments Inc. (Dec. 10, 2017); 
Comment letter of Davis & Harman LLP (Jan. 18, 2018); Comment letter 
of LPL Financial LLC (Feb. 22, 2018).
    \17\ See, e.g., CFA 2017 Letter; Comment letter of the Public 
Investors Arbitration Bar Association (Aug. 11, 2017) (``PIABA 2017 
Letter''); IAA 2017 Letter; Comment letter of Pefin (Sept. 13, 2017) 
(``Pefin 2017 Letter''); Comment letter of Jackson National Life 
Insurance Company (Nov. 1, 2017) (``Jackson 2017 Letter''); Comment 
letter of CFA Institute (Jan. 10, 2018); Comment letter of First 
Ascent Asset Management (Jan. 10, 2018) (``First Ascent 2018 
Letter'').
    \18\ See e.g., CFA 2017 Letter; IAA 2017 Letter; Comment letter 
of the National Employment Law Project (Oct. 20, 2017) (``National 
Employment Law Project 2017 Letter'').
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    Many commenters recommended a short disclosure document addressing 
the nature and scope of services, fees and material conflicts of 
interest.\19\ These suggestions are consistent with our staff's 
financial literacy study,\20\

[[Page 21419]]

which found that retail investors favor a summary document and find 
these categories of disclosures, plus a financial intermediary's 
disciplinary history, to be important in choosing financial 
intermediaries.\21\ Regarding investor confusion based on titles, 
commenters also recommended, for example, prohibiting the use of 
certain terms in titles, and prohibiting a firm not registered as an 
investment adviser from holding itself out in a manner that implies it 
is an investment adviser.\22\
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    \19\ See, e.g., SIFMA 2017 Letter; UBS 2017 Letter; Stifel 2017 
Letter; AARP 2017 Letter; Bernardi Securities 2017 Letter; Fidelity 
2017 Letter; Allianz 2017 Letter.
    \20\ See, e.g., Staff of the Securities and Exchange Commission, 
Study Regarding Financial Literacy Among Investors as required by 
Section 917 of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (Aug. 2012), at iv, v, xiv, 37, 73, 121-23 and 131-
32, available at https://www.sec.gov/news/studies/2012/917-financial-literacy-study-part1.pdf (``917 Financial Literacy 
Study'').
    \21\ See, e.g., 917 Financial Literacy Study, supra note 20, at 
iv, x-xiii, xxi, 37, 66-67, 73, 119.
    \22\ See, e.g. Comment letter of Mark D. Moss (Jun. 2, 2017); 
Comment letter of Gimme Credit (Aug. 8, 2017); PIABA 2017 Letter; 
AFL-CIO 2017 Letter; IAA 2017 Letter; Pefin 2017 Letter; Jackson 
2017 Letter; AFR 2017 Letter; National Employment Law Project 2017 
Letter; First Ascent 2018 Letter.
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    We agree that it is important to ensure that retail investors 
receive the information they need to understand the services, fees, 
conflicts, and disciplinary history of firms and financial 
professionals they are considering. Likewise, we believe that we should 
reduce the risk that retail investors could be confused or misled about 
the financial services they will receive as a result of the titles that 
firms and financial professionals use, and mitigate potential harm to 
investors as a result of that confusion. We also believe the 
information should be reasonably concise. Accordingly, we are proposing 
new rules to require broker-dealers and investment advisers to deliver 
to retail investors a customer or client relationship summary (``Form 
CRS'') that would explain general information about each of these 
topics.\23\ Second, we are proposing rules that would (i) restrict the 
use of the terms ``adviser'' and ``advisor'' by broker-dealers and 
their associated financial professionals, and (ii) require broker-
dealers and investment advisers to disclose in retail investor 
communications the firm's registration status while also requiring 
their associated financial professionals to disclose their association 
with such firm.
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    \23\ For investment advisers, Form CRS would be required by Form 
ADV Part 3. For broker-dealers, Form CRS would be required by 
proposed new rule 17a-14 under the Exchange Act. When we refer to 
Form CRS in this release, we are referring to Form CRS for both 
broker-dealers and investment advisers.
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    Together, these requirements would complement a separate release 
that the Commission is proposing concurrently to enhance existing 
broker-dealer conduct obligations (``Regulation Best Interest'').\24\ 
Regulation Best Interest would establish a standard of conduct for 
broker-dealers and associated natural persons of broker-dealers to act 
in the best interest of a retail customer when making a recommendation 
of a securities transaction or investment strategy involving 
securities. While Regulation Best Interest would enhance the standard 
of conduct owed by broker-dealers to retail customers, it would not 
make that standard of conduct identical to that of investment advisers, 
given important differences between investment advisers and broker-
dealers. The requirements we are proposing in this release would help 
an investor better understand these differences, and distinguish among 
different firms in the marketplace, which in turn should assist the 
investor in making an informed choice for the services that best suit 
her particular needs and circumstances.
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    \24\ Regulation Best Interest, Exchange Act Release No. 34-83062 
(Apr. 18, 2018) (``Regulation Best Interest Proposal'').
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II. Form CRS Relationship Summary

    We are proposing to require registered investment advisers and 
registered broker-dealers to deliver a relationship summary to retail 
investors. In the case of an investment adviser, initial delivery would 
occur before or at the time the firm enters into an investment advisory 
agreement with the retail investor; in the case of a broker-dealer, 
initial delivery would occur before or at the time the retail investor 
first engages the firm's services. Dual registrants would deliver the 
relationship summary at the earlier of entering into an investment 
advisory agreement with the retail investor or the retail investor 
engaging the firm's services.\25\
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    \25\ For purposes of the relationship summary, we propose to 
define dual registrant as a firm that is dually registered as a 
broker-dealer and an investment adviser and offers services to 
retail investors as both a broker-dealer and investment adviser. 
Proposed General Instruction 9.(b) to Form CRS. Accordingly, a firm 
that is registered with the Commission as a broker-dealer and with 
one or more states as an investment adviser would be a dual 
registrant.
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    The relationship summary would be as short as practicable (limited 
to four pages or equivalent limit if in electronic format), with a mix 
of tabular and narrative information, and contain sections covering: 
(i) Introduction; (ii) the relationships and services the firm offers 
to retail investors; (iii) the standard of conduct applicable to those 
services; (iv) the fees and costs that retail investors will pay; (v) 
comparisons of brokerage and investment advisory services (for 
standalone broker-dealers and investment advisers); (vi) conflicts of 
interest; (vii) where to find additional information, including whether 
the firm and its financial professionals currently have reportable 
legal or disciplinary events and who to contact about complaints; and 
(viii) key questions for retail investors to ask the firm's financial 
professional. Form CRS would be required by Form ADV Part 3 and rule 
204-5 of the Advisers Act for investment advisers, and by Form CRS and 
rule 17a-14 of the Exchange Act for broker-dealers.\26\
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    \26\ We propose to amend Form ADV, which investment advisers 
must file to register with the Commission and with state securities 
regulators, to include a new Part 3: Form CRS that describes the 
requirements for the relationship summary, and we propose conforming 
technical amendments to the General Instructions of Form ADV. See 
proposed amendments to Advisers Act rule 203-1; proposed amendments 
to General Instructions to Form ADV. We also propose a rule 17a-14 
to require a Form CRS for broker-dealers registered with the 
Commission. See Exchange Act proposed rule 17a-14. Advisers use Form 
ADV to apply for registration with us (Part 1A) or with state 
securities authorities (Part 1B), and must keep it current by filing 
periodic amendments as long as they are registered. See Advisers Act 
rules 203-1 and 204-1. Form ADV has two parts. Part 1(A and B) of 
Form ADV provides regulators with information to process 
registrations and to manage their regulatory and examination 
programs. Part 2 is a uniform form used by investment advisers 
registered with both the Commission and the state securities 
authorities. See Instruction 2 of General Instructions to Form ADV. 
This release discusses the Commission's proposal of Form ADV Part 3: 
Form CRS and related rules applicable to advisers registered with 
the Commission. To the extent that state securities authorities 
could consider making similar changes that affect advisers 
registered with the states, we can forward comments to the North 
American Securities Administrators Association (``NASAA'') for 
consideration by the state securities authorities.
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    We are proposing to define ``relationship summary'' as a written 
disclosure statement that firms must provide to retail investors.\27\ A 
``retail investor'' would be defined as a prospective or existing 
client or customer who is a natural person (an individual).\28\ All 
natural persons would be included in the definition, regardless of the 
individual's net worth (thus including, e.g., accredited investors, 
qualified clients or qualified purchasers).\29\ The definition would

[[Page 21420]]

include a trust or other similar entity that represents natural 
persons, even if another person is a trustee or managing agent of the 
trust.\30\ We believe that this definition is appropriate because 
section 913 of the Dodd-Frank Act defines ``retail customer'' to 
include natural persons and legal representatives of natural persons 
without distinction based on net worth, and because financial literacy 
studies report deficiencies in financial literacy among the general 
population.\31\ While studies also report variability in financial 
literacy among certain sub-sections of the general population,\32\ we 
believe that all individual investors would benefit from clear and 
succinct disclosure regarding key aspects of their advisory and 
brokerage relationships.
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    \27\ Proposed General Instruction 9.(d) to Form CRS.
    \28\ Proposed General Instruction 9.(e) to Form CRS.
    \29\ Advisers Act proposed rule 204-5(d)(2) and Exchange Act 
proposed rule 17a-14(e)(2); proposed General Instruction 9.(e) to 
Form CRS. We recognize that the definition of ``retail investor'' 
would differ from that of ``retail customer,'' as used in Regulation 
Best Interest. ``Retail customer'' for broker-dealers under 
Regulation Best Interest would be defined as ``a person, or the 
legal representative of such person, who: (1) Receives a 
recommendation of any securities transaction or investment strategy 
involving securities from a broker, dealer or a natural person who 
is an associated person of a broker or dealer, and (2) uses the 
recommendation primarily for personal, family, or household 
purposes.'' Regulation Best Interest Proposal, supra note 24, 
section II.C.4. We believe it is beneficial to require firms to 
provide a relationship summary to all natural persons to facilitate 
their understanding of account choices, regardless of whether they 
will receive investment advice primarily for personal, family, or 
household purposes. The relationship summary is intended for an 
earlier stage in the relationship between an investor and a 
financial professional, potentially before discussing the investment 
purposes of the investor. In contrast, Regulation Best Interest 
focuses on recommendations to ``retail customers'' who have chosen 
to engage the services of a broker-dealer after receiving the 
relationship summary.
    \30\ Advisers Act proposed rule 204-5(d)(2) and Exchange Act 
proposed rule 17a-14(e)(2); proposed General Instruction 9.(e) to 
Form CRS.
    \31\ See Federal Research Division, Library of Congress, 
Financial Literacy Among Retail Investors in the United States (Dec. 
30, 2011), available at https://www.sec.gov/news/studies/2012/917-financial-literacy-study-part2.pdf (``Library of Congress Report''). 
The Library of Congress Report is incorporated by reference into the 
917 Financial Literacy Study, supra note 20, at Appendix 1.
    \32\ See, e.g., 917 Financial Literacy Study, supra note 20, at 
viii (``In addition, surveys demonstrate that certain subgroups, 
including women, African-Americans, Hispanics, the oldest segment of 
the elderly population, and those who are poorly educated, have an 
even greater lack of investment knowledge than the average general 
population.''); Library of Congress Report, supra note 31, at 1.
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    As discussed further below, the relationship summary would be in 
addition to, and not in lieu of, current disclosure and reporting 
requirements for broker-dealers and investment advisers.\33\ The 
relationship summary would alert retail investors to important 
information for them to consider when choosing a firm and a financial 
professional, and would prompt retail investors to ask informed 
questions. In addition, the content of the relationship summary would 
facilitate comparisons across firms that offer the same or 
substantially similar services. We are promoting these goals through 
specifying much of the content and presentation of Form CRS in the 
form's instructions (``Instructions''); while firms will be required to 
include firm-specific information in Form CRS, they will have limited 
discretion in the scope and presentation of that information. We are 
proposing that firms electronically file the relationship summary and 
any updates with the Commission, and therefore such filings would be 
subject to section 207 of the Advisers Act \34\ and section 18 of the 
Exchange Act.\35\ Investment advisers would file on the Investment 
Adviser Registration Depository (``IARD''), broker-dealers would file 
on the Commission's Electronic Data Gathering, Analysis and Retrieval 
System (``EDGAR''), and dual registrants would file on both IARD and 
EDGAR.
---------------------------------------------------------------------------

    \33\ See infra Section II.C.
    \34\ 15 U.S.C. 80b-7.
    \35\ 15 U.S.C. 78r.
---------------------------------------------------------------------------

    To aid firms in understanding the type of disclosures we propose to 
require, we have created mock-ups of a relationship summary for an 
investment advisory firm, a brokerage firm, and a dual registrant, and 
have included them as Appendices C-E to this release. The mock 
relationship summaries are for illustrative purposes only, reflect the 
business models of hypothetical firms, and are not intended to imply 
that they reflect a ``typical'' firm. They do not provide a safe harbor 
and, depending on the circumstances of a particular firm, a 
relationship summary that merely copies the mock-ups may not provide 
sufficient or accurate information about the firm, including for 
purposes of meeting the firm's obligations under the antifraud 
provisions of the federal securities laws. Investors seeking to comment 
on the relationship summary may want to submit our short-form tear 
sheet for providing feedback on the relationship summary, available at 
Appendix F. Below we request comments on all requirements of the 
relationship summary, including format, content, method of filing, 
method of delivery, updating, and other aspects as discussed below.
    We preliminarily believe that providing this information before or 
at the time a retail investor enters into an investment advisory 
agreement or first engages a brokerage firm's services, as well as at 
certain points during the relationship (e.g., switching or adding 
account types), as further discussed below, is appropriate and in the 
public interest and will improve investor protection, and will deter 
potentially misleading sales practices by helping retail investors to 
make a more informed choice among the types of firms and services 
available to them.\36\
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    \36\ See Exchange Act section 15(l)(2) and Advisers Act section 
211(h)(2) (providing that the Commission shall examine and, where 
appropriate, promulgate rules prohibiting or restricting certain 
sales practices, among other things, for brokers, dealers, and 
investment advisers that the Commission deems contrary to the public 
interest and the protection of investors).
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A. Presentation and Format

    We are proposing requirements designed to make the relationship 
summary short and easy to read. We believe that the required disclosure 
provides an overview of information that would help retail investors 
when choosing a firm, financial professional, and account type. The 
proposed formatting requirements would help retail investors, many of 
whom may not be sophisticated in legal or financial matters, to 
understand the information in the relationship summary and be in a 
better position to ask informed questions. The proposal is also 
informed by our experience with the mutual fund summary prospectus, 
which has illustrated the benefits of highlighting certain information 
in summary form, coupled with layered disclosure and disclosure 
designed to facilitate comparisons across investments.\37\ We encourage 
firms to use innovative technology to create a relationship summary 
that is user-friendly, concise, easy-to-read, and more interactive than 
paper, and request comment below on ways to do so. The relationship 
summary would be provided to retail investors in addition to, and not 
in lieu of, any other required disclosures.\38\
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    \37\ In a previous study, Commission staff found that most of 
the retail investors agreed that it was important to read a summary 
prospectus prior to investing in a mutual fund, and a majority of 
the retail investors surveyed on the mutual fund summary prospectus 
panel agreed that the actual summary prospectus they reviewed 
highlighted important information, was well-organized, written using 
words that they understood, clear and concise, and user friendly, 
and agreed that summary prospectuses contain the `right amount' of 
information. 917 Financial Literacy Study, supra note 20, at xvii 
and xix.
    \38\ See Proposed General Instruction 3 to Form CRS. Broker-
dealers and investment advisers have disclosure and reporting 
obligations under state and federal law, and broker-dealers are also 
subject to disclosure obligations under the rules of self-regulatory 
organizations. Delivery of the relationship summary would not 
necessarily satisfy a firm's other disclosure obligations.
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    As noted in the General Instructions, the requirements of the 
relationship summary are designed to promote effective communication 
between the firm and its retail investors.\39\ First, as several 
commenters have recommended, we propose requiring that firms use 
``plain language'' principles for the organization, wording, and design 
of the entire relationship summary, taking into consideration retail 
investors' level of financial sophistication.\40\ Specifically,

[[Page 21421]]

firms would be required to be concise and direct and to use short 
sentences, active voice, and definite, concrete, everyday words.\41\ 
Firms would not be permitted to use legal jargon, highly technical 
business terms or multiple negatives.\42\ Firms should write the 
relationship summary as if addressing the retail investor, using 
``you,'' ``us,'' or ``our firm.'' \43\
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    \39\ Proposed General Instruction 2 to Form CRS.
    \40\ Proposed General Instruction 2 to Form CRS. See, e.g., 
PIABA 2017 Letter; State Farm 2017 Letter; Fidelity 2017 Letter; 
Comment letter of BlackRock (Aug. 7, 2017); Comment letter of the 
Investor Advisory Committee (Aug. 24, 2017); CFA 2017 Letter; AFR 
2017 Letter; ACLI 2017 Letter; FSR 2017 Letter.
    \41\ Proposed General Instruction 2 to Form CRS.
    \42\ Proposed General Instruction 2 to Form CRS.
    \43\ Proposed General Instruction 2 to Form CRS.
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    Second, we are proposing to require that, whether in electronic or 
paper format, the relationship summary should be no more than four 8\1/
2\ x 11 inch pages if converted to Portable Document Format (``PDF''), 
using at least an 11 point font size, and margins of at least 0.75 
inches on all sides.\44\ For example, if delivered directly in the text 
of an email or in a mobile viewing format on the firm's website, the 
content of the relationship summary should not exceed this four-page 
PDF-equivalent length. This approach is consistent with our experience 
and commenters' suggestion that brief disclosure is more effective than 
a long-form narrative to focus retail investors on relevant 
information, and with suggestions from commenters who advocated for a 
clear, concise disclosure.\45\ If delivered in paper, the paper size, 
font, and margin requirements would also encourage a clear presentation 
for retail investors, for example, by presenting important disclosures 
in a readable font-size and eliminating fine print.\46\ Recognizing, 
however, that many firms deliver disclosures in electronic format and 
employ a variety of technologies to interact with prospective and 
existing retail investors, the Commission is requesting comment on 
formatting and other features of the relationship summary in electronic 
form.
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    \44\ Proposed General Instruction 1.(c) to Form CRS.
    \45\ See, e.g., Shaw 2017 Letter; SIFMA 2017 Letter; AFL-CIO 
2017 Letter; AARP 2017 Letter; CFA 2017 Letter; AFR 2017 Letter; 
TIAA 2017 Letter; Vanguard 2017 Letter; ACLI 2017 Letter; FSR 2017 
Letter; Allianz 2017 Letter.
    \46\ See, e.g., 917 Financial Literacy Study, supra note 20, at 
xiii and 32.
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    In the past, the Commission has declined to impose page limits on 
disclosures required by the Investment Company Act of 1940 
(``Investment Company Act''), including the summary prospectus, 
expressing concern that page limits could constrain appropriate 
disclosure and lead funds to omit material information about fund 
offerings.\47\ The proposed relationship summary is intended to serve 
different purposes than the summary prospectus, including to provide a 
general overview of firms that could prompt a more detailed, 
individualized, and open conversation between the retail investor and 
his or her financial professional. The Commission preliminarily 
believes that the utility and effectiveness of the relationship summary 
lie in its brevity and conciseness; accordingly, we believe a page 
limit (or equivalent limit if in electronic format) is appropriate.
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    \47\ See Enhanced Disclosure and New Prospectus Delivery Option 
for Registered Open-End Management Investment Companies, Investment 
Company Act Release No. 28584 (Jan. 13, 2009) [74 FR 4546 (Jan. 26, 
2009)], at 24 (``Enhanced Mutual Fund Disclosure Adopting 
Release'').
---------------------------------------------------------------------------

    Brief disclosure would also facilitate a layered approach to 
disclosure in which firms would include certain information in the 
relationship summary, along with references and links to other 
disclosure where interested investors can find additional 
information.\48\ The proposed relationship summary also would encourage 
retail investors to seek additional information in other ways, 
including through suggested questions for retail investors to ask their 
financial professional, as discussed further below.\49\ These 
requirements are intended to create a concise summary that points out 
relevant areas for retail investors to focus on as they consider 
financial services, and the cross references and suggested questions 
facilitate investors' ability to choose to seek additional information. 
In addition, providing retail investors with a relationship summary 
containing specified information about the firm in a standardized 
format should aid retail investors' ability to compare firms at a 
higher level. The suggested questions and cross references to more 
information would enable them to more easily find and compare these 
details about the firms.
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    \48\ Firms would be required to include cross-references to 
where investors could find additional information, such as in the 
Form ADV Part 2 brochure and brochure supplement for investment 
advisers or on the firm's website or in the account opening 
agreement for broker-dealers. For electronic versions of the 
relationship summary, we would require firms to use hyperlinks to 
the cross-referenced document if it is available online. See 
proposed Items 7.E.1. and 7.E.2. of Form CRS; proposed General 
Instruction 1.(g) to Form CRS.
    \49\ See proposed Item 8 of Form CRS.
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    We considered requiring more detailed disclosure for broker-dealers 
similar to many items in the Form ADV brochure that advisers currently 
must deliver to clients. This longer disclosure would provide, for 
example, more information about fee amounts for specific accounts and 
products and more detailed descriptions of a wider range of conflicts 
of interest. We believe, however, that brief disclosure that focuses on 
the proposed topics would be more effective in capturing the attention 
of retail investors, encouraging them to explore certain key areas 
further, including by asking questions, and allowing them to make a 
quick comparison among a number of options.\50\ We also encourage the 
use of methods, such as embedded hyperlinks, to direct retail investors 
to additional disclosures.
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    \50\ See, e.g., 917 Financial Literacy Study, supra note 20, at 
23-24 (citing CFA 2012 Letter, at 4-5).
---------------------------------------------------------------------------

    Alternatively, we considered shorter disclosure, such as a one-page 
document (or equivalent length if in electronic format) that would 
provide either a much abbreviated general description of a firm's 
services, fees, and conflicts, or a list of suggested questions for 
retail investors to discuss with their financial professional. We are 
concerned, however, that these approaches might not provide retail 
investors with enough information to compare firms and types of 
accounts. In addition, we are concerned that providing only a list of 
questions, without sufficient background information for investors to 
know why the question is important to ask, could make it less likely 
that investors would ask the questions or have an informed 
conversation. Only providing questions also would not ensure a 
standardized minimum of information that retail investors would receive 
across firms and therefore would not facilitate comparing firms or 
account types.
    The relationship summary would require eight separate items 
covering: (i) Introduction; (ii) relationships and services the firm 
provides to retail investors; (iii) standard of conduct applicable to 
those services; (iv) the fees and costs that retail investors will pay; 
(v) comparisons of brokerage and investment advisory services (for 
standalone broker-dealers and investment advisers); \51\ (vi) conflicts 
of

[[Page 21422]]

interest; (vii) where to find additional information, including whether 
the firm and its financial professionals currently have reportable 
legal or disciplinary events and who to contact about complaints; and 
(viii) key questions for retail investors to ask the firm's financial 
professional.\52\ In order to promote comparison across firms, we would 
require firms to present this information under prescribed headings in 
the same order.\53\ Firms also would be prohibited from including any 
information other than what the Instructions and the applicable item 
require or permit.\54\ We believe that allowing only the required and 
specified permitted information would promote consistency of 
information presented to investors, allow retail investors to focus on 
information that we believe would be particularly helpful in deciding 
among firms, and help retail investors to decide what further 
information is needed. It would also encourage impartial information by 
preventing firms from adding information commonly used in marketing 
materials, such as performance.\55\
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    \51\ For purposes of the relationship summary, we propose to 
define a standalone investment adviser as a registered investment 
adviser that offers services to retail investors and (i) is not 
dually registered as a broker-dealer or (ii) is dually registered as 
a broker-dealer but does not offer services to retail investors as a 
broker-dealer. We propose to define a standalone broker-dealer as a 
registered broker-dealer that offers services to retail investors 
and (i) is not dually registered as an investment adviser or (ii) is 
dually registered as an investment adviser but does not offer 
services to retail investors as an investment adviser. Proposed 
General Instruction 9.(f) to Form CRS. We are including certain dual 
registrants in these proposed definitions because we understand that 
dual registrants do not always offer both brokerage and advisory 
accounts to retail investors. For example, some dual registrants 
offer advisory accounts to retail investors, but offer brokerage 
broker-dealer services only to institutions (e.g., for their 
underwriting services).
    \52\ See proposed Items 1-8 of Form CRS.
    \53\ Proposed General Instruction 1.(b) and (e) to Form CRS. See 
also e.g., proposed Items 2.A., 3.A., 4.A., 5.A. and 5.B., 6.A., 
7.A., and 8 of Form CRS.
    \54\ Proposed General Instruction 1.(d) to Form CRS.
    \55\ Although performance disclosure is a subject on which the 
Commission focuses, including to promote accuracy, consistency, and 
comparability, such disclosure is not the subject of this 
initiative.
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    For certain items, firms will have some flexibility in how they 
include the required information.\56\ For others, we are requiring 
firms to use prescribed wording, as discussed in the following 
sections. Firms may not include disclosure in the relationship summary 
other than disclosure that is required or permitted by the 
Instructions. We believe that this approach balances the need to 
provide firms flexibility in making the presentation of information 
consistent with their particular business model while ensuring that all 
investors receive certain information regardless of the firm. The 
information in the relationship summary must accurately reflect the 
characteristics of the particular firm and the services that it offers. 
Accordingly, all information in the relationship summary must be true 
and may not omit any material facts necessary to make the required 
disclosures not misleading.\57\ If a statement is inapplicable to a 
firm's business or would be misleading to a reasonable retail investor, 
the firm may omit or modify that statement.\58\
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    \56\ See, e.g., proposed General Instruction 1.(f) to Form CRS 
(``You may use charts, graphs, tables, and other graphics or text 
features to explain the required information, so long as the 
information (i) is responsive to and meets the requirements in these 
instructions (including space limitations); (ii) is not inaccurate 
or misleading; and (iii) does not, because of the nature, quantity, 
or manner of presentation, obscure or impede understanding of the 
information that must be included. When using interactive graphics 
or tools, you may include instructions on their use and 
interpretation.''); proposed Items 2.B., 2.C., and 6.B. of Form CRS.
    \57\ Firms should keep in mind the applicability of the 
antifraud provisions of the federal securities laws, including 
section 206 of the Advisers Act, section 17(a) of the Securities 
Act, and section 10(b) of the Exchange Act and rule 10b-5 
thereunder, in preparing the relationship summary.
    \58\ See proposed General Instruction 3 to Form CRS. Firms may 
omit or modify prescribed wording or other statements required to be 
part of the relationship summary if such statements are inapplicable 
to a firm's business or would be misleading to a reasonable retail 
investor.
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    Based on studies that indicate the effectiveness of graphical 
presentation for retail investors,\59\ we are prescribing the use of 
graphical formats in specified circumstances. For example, dual 
registrants would be required to present all of the information 
required by Items 2 through 4 and Item 6 in a tabular format,\60\ 
comparing advisory services and brokerage services side-by-side, with 
prescribed headings.\61\ Similarly, standalone broker-dealers and 
investment advisers would be required to provide general information 
about fee types in tabular format, in a separate comparison 
section.\62\ All firms would be permitted to use charts, graphs, 
tables, and other graphics or text features to explain the information, 
so long as the information is responsive to and meets the requirements 
in the Instructions (including the space limitations).\63\ The use of a 
graphical presentation would be prohibited if it is inaccurate or 
misleading or, because of its nature, quantity, or manner of 
presentation, obscures or impedes understanding of the information that 
is required to be included. Firms that choose to use interactive 
graphics or tools may include Instructions on their use and 
interpretation.\64\ We believe that standardizing the relationship 
summaries among firms by specifying the headings, sequence, and content 
of the topics; prescribing language for firms to use as applicable; and 
limiting the length of the relationship summary will provide 
comparative information in a user-friendly manner that helps retail 
investors with informed decision-making.\65\
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    \59\ See 917 Financial Literacy Study, supra note 20, at iv, xx, 
21-22; see also Benbasat & Dexter, infra note 592.
    \60\ Empirical evidence suggests that visualization improves 
individual perception of information (see Hattie, infra note 591) 
and that tabular reports may lead to better decision making (see 
Benbasat & Dexter, infra note 592).
    \61\ Dual registrants must present the information in Items 2 
through 4 and Item 6 in a tabular format, comparing advisory 
services and brokerage services side-by-side. In the column 
discussing brokerage services, firms must include the heading 
``Broker-Dealer Services'' and the sub-heading ``Brokerage 
Accounts.'' In the column discussing investment advisory services, 
firms must include the heading ``Investment Adviser Services'' and 
the sub-heading ``Advisory Accounts.'' See proposed General 
Instruction 1.(e) to Form CRS.
    \62\ Standalone broker-dealers and investment advisers would be 
required to include the sub-heading ``You can receive advice in 
either type of account, but you may prefer paying:'' and present 
prescribed information comparing a transaction-based fee and an 
asset-based fee in side-by-side columns, in a tabular format. See 
proposed Items 5.A.4. and 5.B.6. of Form CRS.
    \63\ Proposed General Instruction 1.(f) to Form CRS.
    \64\ Id.
    \65\ Empirical evidence suggests that users are better able to 
make coherent, rational decisions when they have comparative, 
standardized disclosure that allows them to assess relevant trade-
offs. See infra note 593 and accompanying text.
---------------------------------------------------------------------------

    We request comment on the following for the relationship summary.
     Should firms only be required to deliver the relationship 
summary to retail investors? Or should they be required to deliver one 
to other types of investors, too, such as individuals representing sole 
proprietorships or other small businesses, or institutional investors 
that are not natural persons, including workplace retirement plans and 
funds? Would such investors have the need for the information in the 
relationship summary to facilitate a choice among different firms, 
financial professionals, and account types? Or would these investors 
rely directly on the more detailed disclosures in the Form ADV Part 2 
brochure or pursuant to Regulation Best Interest?
     Should retail investors be defined for purposes of Form 
CRS to include all natural persons, as proposed? Should we instead 
exclude certain categories of natural persons based on their net worth 
or income level, such as accredited investors,\66\ qualified 
clients,\67\ or

[[Page 21423]]

qualified purchasers? \68\ If we did exclude certain categories of 
natural persons based on their net worth, what threshold should we use 
for measuring net worth? Should we exclude certain categories of 
natural persons for other reasons?
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    \66\ Accredited investors include natural persons who (i) have a 
net worth over $1 million, either individually or together with a 
spouse (excluding the value of the primary residence); (ii) had an 
individual income greater than $200,000 (or $300,000 together with a 
spouse) in each of the two most recent years, and has a reasonable 
expectation of reaching the same income level in the current year; 
or (iii) for purposes of a securities offering of a particular 
issuer, are directors, executive officers, or general partners of 
that issuer. Accredited investors also include non-natural persons, 
such as, banks, broker-dealers, insurance companies, investment 
companies registered under the Investment Company Act of 1940, and 
certain partnerships, corporations, nonprofit entities, retirement 
plans, and trusts. 17 CFR 230.501.
    \67\ A qualified client is a client that meets one or more of 
the following criteria: (i) Is a natural person or company that has 
at least $1 million in assets under management with the adviser 
immediately after entering into an investment advisory contract with 
the adviser; (ii) the adviser reasonably believes the natural person 
has a net worth (together with assets held jointly with a spouse) of 
more than $2.1 million immediately prior to entering into an 
advisory contract (excluding the value of the primary residence); 
(iii) the adviser reasonably believes the natural person or company 
is a ``qualified purchaser'' as defined in section 2(a)(51)(A) of 
the Investment Company Act at the time an advisory contract is 
entered into; (iv) is an executive officer, director, trustee, 
general partner, or person serving in a similar capacity, of the 
adviser; or (v) is an employee of the adviser who participates in 
the investment activities of the adviser, and has performed 
investment activities for at least twelve months. The dollar 
thresholds under the definition of qualified client are subject to 
inflation adjustments every five years. 17 CFR 275.205-3(d)(1); 
Order Approving Adjustment for Inflation of the Dollar Amount Tests 
in Rule 205-3 under the Investment Advisers Act of 1940, Investment 
Advisers Act Release No. 4421 (Jun. 14, 2016) [81 FR 39985 (Jun. 20, 
2016)].
    \68\ The term ``qualified purchaser'' has been defined for 
purposes of the Investment Company Act and for the Securities Act. 
Under the Investment Company Act, the term ``qualified purchaser'' 
includes any natural persons who or certain family-owned companies 
that own not less than $5 million in investments; certain trusts; 
and any person, acting for its own account or the accounts of other 
qualified purchasers, who in the aggregate owns and invests on a 
discretionary basis, not less than $25 million in investments. 15 
U.S.C. 80a-2(a)(51)(A).
     For purposes of section 18(b)(3) of the Securities Act, the 
term ``qualified purchaser'' means any person to whom securities are 
offered or sold pursuant to a Tier 2 offering as defined in 
Regulation A. 17 CFR 230.256. Tier 2 offerings generally may be sold 
only to (i) accredited investors; (ii) natural persons for whom the 
aggregate purchase price to be paid by the purchaser for the 
securities is no more than 10% of the purchaser's annual income or 
net worth; or (iii) non-natural persons for which the aggregate 
purchase price to be paid by the purchaser for the securities is no 
more than 10% of its revenue or net assets for the most recently 
completed fiscal year. 17 CFR 230.251.
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     Should we conform the definition of retail investor to the 
definition of retail customer as proposed in Regulation Best Interest, 
which would include non-natural persons who use the recommendation 
primarily for personal, family, or household purposes? Should the 
definition of retail investor include trusts or similar entities that 
represent natural persons, as proposed? Are there other persons or 
entities that should be covered? Should we expand the definition to 
cover plan participants in workplace retirement plans who receive 
services from a broker-dealer or investment adviser for their 
individual accounts within a plan?
     Should we include any additional definitions of terms or 
phrases in the relationship summary? Should we omit any definitions we 
have proposed for the relationship summary? Should any of the proposed 
definitions be changed? If so, why?
     Will the length and presentation proposed for the 
relationship summary be effective for retail investors? Are there other 
approaches we should consider? What are the benefits and drawbacks of 
shorter or longer disclosure for retail investors relative to the 
proposed approach?
     We are proposing that the relationship summary discuss all 
of the firm's advisory and brokerage services in one relationship 
summary. Should we instead permit firms to prepare a separate 
relationship summary for different business lines or different programs 
or types of accounts and/or services that a broker-dealer or investment 
adviser offers? If we adopt such an approach, how could we modify the 
requirements to allow for comparison among account options within and 
across firms? For example, should we require that each such separate 
summary refer to the other summaries and include hyperlinks or other 
electronic features if presented on a firm's website? Should we require 
the use of hyperlinks that direct the investor directly to specific 
disclosure (i.e., a ``deep link'') or a more general landing page? How 
would delivery obligations be formulated to ensure that retail 
investors receive sufficient but still user-friendly information?
     In the alternative, should we permit or require firms to 
prepare one relationship summary for the entire affiliated group or 
firm complex, i.e., to summarize the services offered to retail 
investors of all affiliated companies together in a single relationship 
summary? What factors should dictate whether affiliates should be 
permitted or required to prepare a single relationship summary? For 
example, should we base any permissive instruction or requirement on 
whether the affiliates typically market services of multiple investment 
advisers and broker-dealer entities together? What about investment 
advisers and broker-dealers that are not affiliates but have 
partnership agreements, are part of one wrap fee program,\69\ or other 
arrangements? Should they be required or permitted to cross-reference 
to other firms?
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    \69\ A wrap fee program would be defined as an advisory program 
under which a specified fee or fees not based directly upon 
transactions in a retail investor's account is charged for 
investment advisory services and the execution of retail investor 
transactions. Proposed General Instruction 9.(g) to Form CRS. See 
infra note 173.
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     Should we permit the relationship summary, or any part of 
it, to substitute for other disclosure obligations that broker-dealers 
or investment advisers have, if the disclosure obligations overlap? If 
so, for what disclosures could the relationship summary substitute? If 
not, why not?
     Does the proposal sufficiently encourage electronic design 
and delivery? Are there other ways we can modify the requirements to 
make clear that paper-based delivery is not the only permissible or 
desired delivery format?
     With respect to firms that use paper delivery to meet 
investor preferences, are the proposed presentation and content 
requirements appropriate for a relationship summary provided in paper 
or in PDF (e.g., 11 point font, and have margins of at least 0.75 
inches on all sides)? Would they be helpful in encouraging relationship 
summaries that address retail investors' preferences for concise and 
user-friendly information? If not, what requirements would improve the 
document's utility and accessibility for retail investors? In 
particular, are there any areas where requiring the use of a specific 
check-the-box approach, bullet points, tables, charts, graphs or other 
graphics or text features would be helpful in presenting any of the 
information or making it more engaging to retail investors? Should we 
include different requirements for font size, margins and paper size? 
Should we restrict certain types or sizes of font, color choices or the 
use of footnotes?
     Are there special technical specifications we should 
consider for other forms of electronic or online delivery on phones, 
tablets and other devices, and for information conveyed via videos, 
interactive graphics, or tools and calculators? Are the Instructions to 
the relationship summary sufficiently flexible to permit delivery on 
phones, tablets and other devices and to accommodate information 
conveyed via videos, interactive graphics, or tools and calculators? 
Should we require that firms make the relationship summary available by 
specific forms of electronic delivery or certain electronic devices? 
How can the Commission encourage investment advisers and broker-dealers 
to make fuller use of innovative technology to enable more interactive, 
user-friendly relationship summary disclosure, while still creating a 
short, easy-to-read relationship summary that includes the proposed 
content? Are there potential tools that the Commission should encourage 
or require firms to use in order to make

[[Page 21424]]

their disclosures more interactive and understandable? For instance, 
should we permit or require a firm to use pop-ups or hovers to provide 
retail investors with additional information required or permitted by 
the relationship summary, without retail investors having to scroll to 
find the information in another section of the relationship summary? 
Would this tool be useful for firms to use, for example, in the 
Introduction section of the relationship summary, so that a retail 
investor could access upfront additional information about the terms 
used (advisory and brokerage accounts) that is presented in other 
sections of the relationship summary? Instead of requiring and 
permitting hyperlinks in certain circumstances (e.g., to link to an 
adviser's Form ADV or a fee schedule), are there other technological 
tools that would better help an investor find information that is 
cross-referenced in the relationship summary? Should we permit or 
require other technologies (such as QR codes \70\) in addition to or in 
lieu of hyperlinks to connect to such information?
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    \70\ A QR code is a two-dimensional barcode capable of encoding 
information such as a website address, text information, or contact 
information. These codes are becoming increasingly popular in print 
materials and can be read using the camera on a smartphone.
---------------------------------------------------------------------------

     Would retail investors be more likely to read a firm's 
relationship summary if we required or permitted firms to use certain 
design elements--such as larger font sizes or greater use of white 
space, colors, or visuals? Could this be accomplished while still 
providing retail investors with the information we are proposing to 
require in a short and easy-to-read relationship summary?
     We are proposing that the firm use plain language 
principles and the Instructions refer to the SEC's Plain English 
Handbook. Should we modify any of these principles? Should the 
Instructions refer to any other principles to promote understandable 
wording?
     Do firms commonly market to non-English speakers or 
provide information--including marketing materials--in languages other 
than English? To what extent would firms expect to deliver a 
relationship summary in a language other than English? Should we 
propose requirements to prepare relationship summaries in languages 
other than English? For example, should we require that firms prepare, 
file, and deliver a relationship summary in any language in which they 
disseminate marketing materials? Are there concerns with translating 
the relationship summary without also having to translate the firm's 
other disclosures? If so, what are those concerns?
     Should we limit the relationship summary to four pages (or 
equivalent limit if in electronic format), as proposed? Is this enough 
space for firms to provide meaningful information? Should we instead 
eliminate page limits (and their equivalent for electronic format) or 
increase the amount of permitted pages or their equivalent? Are there 
particular items that may require longer responses than others? If so, 
how should the Commission take these into account in considering page 
limits? For example, if commenters believe the use of graphics will be 
more effective to communicate fees, should we permit a greater number 
of pages to account for the use of graphics? Conversely, will retail 
investors read four pages? Should the page limit be shorter, such as 
one to three pages? If so, what information in the proposed 
requirements should we omit? Should we have different page limits for 
dual registrants than for firms that offer only brokerage or only 
advisory services? If we do require shorter disclosure, what 
information should firms be required to provide regardless of the 
length?
     Are there too few or too many items that would be required 
in the relationship summary? Are there other items that we should also 
require or proposed items that we should delete? Do commenters agree 
that we should only permit the items required by the relationship 
summary? Is there other information that we should permit, but not 
require, firms to include? If so, what items are those?
     Do commenters agree that all items should be presented in 
the same order under the same heading to promote comparability across 
firms? Why or why not? If the items are not listed in the same order, 
could retail investors still easily compare firm relationship 
summaries? Does the prescribed order work, or should we consider a 
different order? Is there information that we should always require to 
appear on the first page or at the beginning of an electronic 
relationship summary? Are there any specifications we should include to 
enhance comparability for electronic delivery of the relationship 
summary in various forms?
     Should we, as proposed, prescribe headings for each item 
or allow firms to choose their own headings? Should we require or 
permit a different style of headings, such as a question and answer 
format or other wording to encourage retail investors to continue 
reading?
     Should we permit firms to include additional disclosure 
with the relationship summary, such as a comprehensive fee table, or 
other disclosures? Would the inclusion of additional disclosures affect 
whether retail investors would view the relationship summary? What are 
the benefits and drawbacks of such an approach?
     Should we generally permit firms to use charts, graphs, 
tables, and/or other graphics or text features to explain the 
information required by the relationship summary (so long as any such 
feature meets requirements as specified in the Instructions), as 
proposed? Should we permit firms to choose the graphical presentation 
that they will use? Are there specific graphical presentations that we 
should require? Should we permit other mediums of presentation, such as 
the use of video presentations?
     Do any elements of the proposed presentation requirements 
impose unnecessary costs or compliance challenges? Please provide 
specific data. Are there any changes to the proposal that could lower 
those costs? Please provide examples.
     Are the mock relationship summaries useful and 
illustrative of the proposed form requirements? Do they appropriately 
show the level of detail that firms might provide?
    With respect to each item for which we prescribe wording in the 
relationship summary, we request the following comment on each of those 
required disclosures:
     Does the narrative style work for the prescribed wording 
or are there other presentation formats that we should require? Should 
the Commission instead require more prescribed wording? Conversely, is 
there prescribed wording we have proposed that we should modify or 
replace with a more general instruction that allows firms to use their 
own description?

B. Items

1. Introduction
    We are proposing that the beginning of the relationship summary 
contain a title highlighting the types of investment services and 
accounts the firm offers to retail investors, specifically ``Which Type 
of Account is Right for You--Brokerage, Investment Advisory or Both?'' 
for dual registrants and ``Is a[n] [Brokerage/Investment Advisory] 
Account Right for You?'' for standalone brokerage firms or investment 
advisory firms, respectively.\71\ A firm also would be required to 
include its name, whether it is registered with the Commission as a 
broker-dealer, investment adviser, or

[[Page 21425]]

both, and date of the relationship summary prominently on the first 
page or beginning of the electronic disclosure (this information could 
be included in the header or footer).\72\
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    \71\ Proposed Items 1.B., 1.C. and 1.D. of Form CRS.
    \72\ Proposed Item 1.A. of Form CRS. The disclosure of 
Commission registration would make the relationship summary 
consistent with proposed rules 15l-3 of the Exchange Act and 211h-1 
of the Advisers Act, which would require that a broker-dealer and a 
registered investment adviser prominently disclose that it is 
registered with the Commission as a broker-dealer or investment 
adviser, respectively, in print or electronic retail investor 
communications.
---------------------------------------------------------------------------

    An introductory paragraph would briefly explain the types of 
accounts (brokerage accounts and/or investment advisory accounts) and 
services the firm offers. Using prescribed wording, all firms would be 
required to state: ``There are different ways you can get help with 
your investments. You should carefully consider which types of accounts 
and services are right for you.'' In a new paragraph and using 
prescribed wording and bold font, a standalone broker-dealer would be 
required to state: ``We are a broker-dealer and provide brokerage 
accounts and services rather than advisory accounts and services.'' 
\73\ Likewise, a standalone investment adviser would be required to 
state in bold font: ``We are an investment adviser and provide advisory 
accounts and services rather than brokerage accounts and services.'' 
\74\ Dual registrants would include a similar statement in bold font 
that discusses both types of services, specifically: ``Depending on 
your needs and investment objectives, we can provide you with services 
in a brokerage account, investment advisory account, or both at the 
same time.'' \75\ Finally, all firms would be required to include: 
``This document gives you a summary of the types of services we provide 
and how you pay. Please ask us for more information. There are some 
suggested questions on page [ ].'' \76\
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    \73\ Proposed Item 1.B. of Form CRS.
    \74\ Proposed Item 1.C. of Form CRS.
    \75\ Proposed Item 1.D. of Form CRS.
    \76\ Proposed Items 1.B.--1.D. of Form CRS.
---------------------------------------------------------------------------

    The proposed introductory paragraph sets up a key theme of the 
relationship summary--helping retail investors to understand and make 
choices among account types and services. For example, some retail 
investors want to receive periodic recommendations while others prefer 
ongoing advice and monitoring. Some retail investors wish to pursue 
their own investment ideas and direct their own transactions, while 
others seek to delegate investment discretion to the firm. Emphasizing 
that there are different types of accounts and services from which a 
retail investor may choose would help the retail investor make an 
informed choice about whether the firm provides services that are the 
right fit for his or her needs and help the retail investor to choose 
the right firm or account type. Although the disclosures are 
intentionally simplified and generalized, we believe they would help 
retail investors to obtain more detailed information.
    We request comment generally on the proposed requirement for firms 
to include specific information in the introduction.
     In addition to the title, firm name and SEC registration 
status, and date, is there other information that we should require at 
the beginning of the relationship summary? Should we instead require a 
cover page? Are the titles we proposed in the Instructions appropriate? 
What alternatives should we consider? Should we allow firms to select 
their own title for the relationship summary?
     Should we require firms to include the prescribed wording, 
as proposed, or should we allow more flexibility in the words they use? 
Should we modify the prescribed wording? Does the proposed wording 
capture the range of business models among investment advisers and 
broker-dealers? Would the prescribed wording require a firm to provide 
any inaccurate information given that firm's circumstances? Instead of 
the proposed prescriptive wording, should the Commission permit or 
require a more open-ended narrative?
     Is there additional information we should require in the 
introduction?
     Should we require that standalone brokerage and investment 
advisory firms include a statement that the retail investor may instead 
prefer investment advisory or brokerage services, respectively? Why or 
why not?
2. Relationships and Services
    After the introduction, the proposed relationship summary would 
provide information about the relationships between the firm and retail 
investors and the investment advisory account services and/or brokerage 
account services the firm provides to retail investors.\77\ The section 
would begin with the heading ``Relationships and Services'' for a 
standalone broker-dealer or investment adviser.\78\ A dual registrant 
would use the heading ``Types of Relationships and Services,'' followed 
by this statement: ``Our accounts and services fall into two 
categories.'' \79\ Each firm would discuss specific information about 
the nature, scope, and duration of its relationships and services, 
including the types of accounts and services the firm offers, how often 
it offers investment advice, and whether the firm monitors the account.
---------------------------------------------------------------------------

    \77\ Proposed Item 2 of Form CRS.
    \78\ Proposed Item 2.A. of Form CRS.
    \79\ Id.
---------------------------------------------------------------------------

    This item requires firms to provide specific information with a mix 
of prescribed wording and short narrative statements. As discussed 
above, if a prescribed statement is not applicable to the firm's 
business or would be misleading to a reasonable retail investor, the 
firm would be permitted to omit or modify that statement.\80\ We have 
designed these requirements to provide retail investors with 
consistent, concise, and meaningful information about the services they 
would receive from a firm and help them to ask relevant questions, 
compare firms' services against each other, and make more informed 
choices about the services they choose.
---------------------------------------------------------------------------

    \80\ See supra note 58 and accompanying text.
---------------------------------------------------------------------------

    We considered an approach whereby firms would be required to 
complete a prescribed checklist of common characteristics of brokerage 
and advisory accounts, indicating which characteristics applied to 
their accounts and services. This approach could improve comparability 
among firms. We are concerned, however, that this approach would not be 
sufficiently flexible to accommodate the variety of business models and 
services that broker-dealers and advisers provide, and that a mix of 
prescribed wording and narrative format would help investors better 
understand the firm's services. We believe that our proposed approach 
provides enough information to help retail investors understand and 
choose between investment advisory accounts and brokerage accounts 
without overwhelming them with too much information.
    Brokerage Account Services. We propose requiring broker-dealers to 
summarize the principal brokerage services that they provide to retail 
investors.\81\ First, broker-dealers would include the following 
wording to explain the transaction-based nature of their fees (emphasis 
required): ``If you open a brokerage account, you will pay us a 
transaction-based fee, generally referred to as a commission, every 
time you buy or sell an investment.'' \82\ Even though a separate 
section of the relationship summary would discuss a firm's fees, we 
believe it is important for broker-dealers to explain transaction-based 
fees at the beginning of the

[[Page 21426]]

disclosure because these types of fees are typically a critical 
distinction between brokerage and investment advisory accounts.\83\
---------------------------------------------------------------------------

    \81\ Proposed Item 2.B. of Form CRS.
    \82\ Proposed Item 2.B.1. of Form CRS.
    \83\ See infra note 126 (discussing our use of the term 
``transaction-based fees'' in the relationship summary).
---------------------------------------------------------------------------

    Next, broker-dealers that offer accounts in which they offer 
recommendations to retail investors would state that the retail 
investor may select investments or the broker-dealer may recommend 
investments for the retail investor's account, but that the retail 
investor will make the ultimate investment decision regarding the 
investment strategy and the purchase or sale of investments.\84\ 
Broker-dealers that offer accounts in which they do not offer 
recommendations to retail investors (e.g., execution-only brokerage 
services) would state that the retail investor will select the 
investments and make the ultimate investment decision regarding the 
investment strategy and the purchase or sale of investments.\85\ 
Starting with a clear description of the services provided in a 
brokerage account by a broker-dealer--including the retail investor's 
choice of receiving recommendations or self-directing his or her 
investments, and the fact that the retail investor will make the 
ultimate investment decision--would help address confusion about the 
services that broker-dealers offer to retail investors.\86\ This 
language also highlights differences from the services that investment 
advisers would describe, discussed below.
---------------------------------------------------------------------------

    \84\ Proposed Item 2.B.2. of Form CRS.
    \85\ Id.
    \86\ We believe that retail investors have the ultimate 
investment decision for their investment strategy and the purchase 
or sale of investments, even if the broker-dealer has temporary or 
limited discretion over retail investors' accounts. See Regulation 
Best Interest Proposal, supra note 24, at section II.F.
---------------------------------------------------------------------------

    Next, we propose requiring broker-dealers to state if they offer 
additional services to retail investors, including, for example: (a) 
Assistance with developing or executing the retail investor's 
investment strategy (e.g., the broker-dealer discusses the retail 
investor's investment goals or designs with the retail investor a 
strategy to achieve the retail investor's investment goals); or (b) 
monitoring the performance of the retail investor's account.\87\ They 
would also state that a retail investor might pay more for these 
additional services, if applicable.\88\ Broker-dealers that offer 
performance monitoring as part of the standard brokerage account 
services would indicate how frequently they monitor the 
performance.\89\ While broker-dealers do not undertake to provide 
investment strategy and performance monitoring services when they give 
recommendations, we recognize that many broker-dealers offer these 
services to retail investors as part of their account agreement. We 
believe that retail investors would benefit from disclosure that such 
services exist, and that broker-dealers might charge higher fees for 
these services. Broker-dealers would also be required to briefly 
describe any regular communications they have with retail investors, 
such as providing account statements, giving an overview of 
transactions during a period, or evaluating the account's 
performance.\90\ Firms would include the frequency (e.g., at least 
quarterly) and the method (e.g., by email, phone or in person) of the 
communications.\91\
---------------------------------------------------------------------------

    \87\ Proposed Item 2.B.3. of Form CRS.
    \88\ Id.
    \89\ Id. Broker-dealers that monitor the performance of the 
retail investor's account, as market and customer conditions demand 
(rather than on a specific time schedule), could state so.
    \90\ Id.
    \91\ Id. We are proposing the same requirement for investment 
advisers, described below. See infra note 102 and accompanying text.
---------------------------------------------------------------------------

    Finally, broker-dealers would be required to include the following 
if they significantly limit the types of investments available to 
retail investors in any accounts: ``We offer a limited selection of 
investments. Other firms could offer a wider range of choices, some of 
which might have lower costs.'' \92\ A broker-dealer would 
significantly limit the types of investments if, for example, the firm 
only offers one type of asset (e.g., mutual funds, exchange-traded 
funds, or variable annuities), the firm only offers mutual funds or 
other investments sponsored or managed by the firm or its affiliate 
(i.e., proprietary products), or the firm only offers a small choice of 
investments.\93\ In addition, if the limitations only apply to some of 
the accounts the firm offers, such as, for example, limiting the types 
of investments for retail investors within different asset tiers, then 
the firm would have to identify those accounts.\94\
---------------------------------------------------------------------------

    \92\ Proposed Item 2.B.4. of Form CRS.
    \93\ Id.
    \94\ Id.
---------------------------------------------------------------------------

    Limitations on investments offered could have a significant effect 
on investor choice and performance of the account over time. In 
particular, firms that offer proprietary products exclusively preclude 
investor access to competing products that could offer lower fees or 
result in better performance over time. As a result, retail investors 
should understand these limitations before they enter into a 
relationship with a firm.
    Advisory Account Services. We propose requiring investment advisers 
that offer investment advisory accounts to retail investors to 
summarize the principal investment advisory services provided to retail 
investors.\95\ First, investment advisers would be required to state 
the type(s) of fee they receive as compensation if a retail investor 
opens an investment advisory account.\96\ For example, an investment 
adviser would state if it charges an on-going asset-based fee based on 
the value of the cash and investments in the advisory account, a fixed 
fee, or some other fee arrangement. A standalone adviser would also 
state how frequently it assesses the fee.\97\ Similar to the 
requirement for broker-dealers,\98\ we are proposing to require a 
statement about how investment advisers charge fees up-front because of 
the importance that investors understand how they will pay for services 
and to highlight this critical distinction between brokerage and 
advisory accounts. We are proposing to require that firms describe 
additional fees associated with these services in the discussion of 
fees and costs. Because the fees charged by each investment adviser may 
differ, we are not prescribing specific wording and instead are 
allowing firms flexibility in choosing the exact wording to use for 
this disclosure. Advisers would, however, emphasize the type of fee in 
bold and italicized font.\99\
---------------------------------------------------------------------------

    \95\ Proposed Item 2.C. of Form CRS.
    \96\ Proposed Item 2.C.1. of Form CRS. The relationship summary 
would refer to ``account advisory services'' and ``opening an 
account'' to simplify the explanations for retail investors. When an 
investment adviser provides investment advisory services, the client 
may have a custodial account with another firm, such as a broker-
dealer or bank. A dual registrant may maintain custody for an 
advisory client's assets as broker-dealer. We are not proposing to 
require that firms include these nuances in the discussion of 
relationships and services.
    \97\ Id.
    \98\ See supra note 82 and accompanying text.
    \99\ Proposed Item 2.C.1 of Form CRS.
---------------------------------------------------------------------------

    Next, investment advisers would state that they offer advice on a 
regular basis, or, if they do not offer advice on a regular basis, they 
would state how frequently they offer advice.\100\ They would also 
state the services they offer to retail investors including, for 
example, (a) assistance with developing the retail investor's 
investment strategy (e.g., the investment adviser discusses the retail 
investor's investment goals or designs with the retail investor a 
strategy to achieve the retail investor's investment goals), or (b) how 
frequently

[[Page 21427]]

they monitor the retail investor's accounts.\101\ Similar to broker-
dealers, advisers would include the frequency (e.g., at least 
quarterly) and the method (e.g., by email, phone or in person) of the 
communications.\102\ We believe that the regularity of advice and other 
services that investment advisers commonly provide, including, as 
applicable--discussions with the retail investor, designing a strategy 
to achieve investment goals, monitoring, and reporting on performance--
are key aspects of services that advisers commonly provide.\103\ As 
discussed above with respect to broker-dealers, these services can 
distinguish advisory accounts from brokerage accounts and therefore the 
disclosure will help retail investors determine which type of account 
best suits their needs.
---------------------------------------------------------------------------

    \100\ Proposed Item 2.C.2. of Form CRS.
    \101\ Id.
    \102\ Id.
    \103\ An agreement for advisory services typically defines the 
scope and specific types of services provided.
---------------------------------------------------------------------------

    Additionally, investment advisers would state if they offer 
advisory accounts for which they exercise investment discretion (i.e., 
discretionary accounts), accounts for which they do not exercise 
investment discretion (i.e., non-discretionary accounts), or both.\104\ 
For purposes of this Item in the relationship summary, investment 
advisers generally should use the same definition of ``discretionary 
authority'' as in Form ADV, which is the authority to decide which 
securities to purchase and sell for the client, or the authority to 
decide which investment advisers to retain on behalf of the 
client.\105\ If an investment adviser offers a discretionary account, 
the relationship summary would state that a discretionary advisory 
account allows the firm to buy and sell investments in the retail 
investor's account, without asking the retail investor in advance. For 
a non-discretionary advisory account, the relationship summary would 
state that the firm gives advice and the retail investor decides what 
investments to buy and sell.\106\
---------------------------------------------------------------------------

    \104\ Proposed Item 2.C.3. of Form CRS. Investment advisers 
would be required to emphasize the type of account (discretionary 
and non-discretionary) in bold and italicized font.
    \105\ Term 12 of Glossary of Terms to Form ADV.
    \106\ Proposed Item 2.C.3. of Form CRS.
---------------------------------------------------------------------------

    We believe it is important for retail investors considering an 
advisory account to understand the difference between discretionary 
services and non-discretionary services, as that distinction would 
affect the degree of control the retail investor would provide to the 
adviser. Discretionary advice is also a common feature of many 
investment advisory accounts,\107\ so explaining discretion would 
benefit a retail investor in choosing between brokerage and investment 
advisory services, as well as between different types of advisory 
accounts.
---------------------------------------------------------------------------

    \107\ In 1992, only approximately three percent of SEC-
registered advisers had discretionary authority over client assets; 
as of March 31, 2018, according to data collected on Form ADV, 91 
percent of SEC-registered advisers have that authority.
---------------------------------------------------------------------------

    Finally, as we are proposing for broker-dealers, investment 
advisers that significantly limit the types of investments available to 
retail investors in any accounts would include the same statement that 
broker-dealers would be required to include, and if such limits only 
apply to certain accounts, the investment adviser would identify those 
accounts, for the same reasons discussed above.\108\
---------------------------------------------------------------------------

    \108\ Proposed Item 2.C.4. of Form CRS. The required statement 
would be ``Our investment advice will cover a limited selection of 
investments. Other firms could provide advice on a wider range of 
choices, some of which might have lower costs.'' Also consistent 
with the requirements for broker-dealers, such limitations could 
include, for example, only offering a selection of mutual funds, 
equities, or proprietary products.
---------------------------------------------------------------------------

    Affiliate Services. We recognize that many investment advisers and 
broker-dealers that are not dual registrants nonetheless have 
affiliates that are broker-dealers or investment advisers, 
respectively. Often, these standalone firms offer their affiliates' 
services to retail investors. For example, an affiliated sub-adviser 
also may manage a portion of a retail investor's portfolio or an 
investment adviser may effect trades for client accounts through an 
affiliated broker-dealer. We would allow these firms to state that they 
offer retail investors their affiliates' brokerage or advisory 
services, as applicable.\109\ We believe that the inclusion of this 
disclosure could make clear the choice investors have within affiliated 
firms and give financial professionals an opportunity to discuss these 
services.
---------------------------------------------------------------------------

    \109\ Proposed Item 2.D. of Form CRS. This disclosure only 
applies in the context of an affiliate of the firm. This is not 
intended to describe disclosure of a financial professional's 
outside business activities, such as an outside investment advisory 
business of a broker-dealer registered representative.
---------------------------------------------------------------------------

    We request comment generally on the proposed requirement for firms 
to include specific information about the relationships and services 
offered in their advisory and brokerage accounts.
     Would the proposed summary of relationships and services 
help retail investors to make informed choices about whether investment 
advisory or brokerage services better suit their needs? If not, how 
should we revise it?
     Would the proposed requirements result in disclosure that 
is clear, concise, and meaningful to retail investors? Would this 
information help retail investors to better understand the general 
differences in the services that investment advisers and broker-dealers 
provide? Are there other differences in the services provided by 
investment advisers and broker-dealers that we should require firms to 
discuss in this section? If so, should we permit or require information 
about those differences in the summary of services? Are there any 
common misconceptions about services provided by broker-dealers, 
investment advisers, or dual registrants that the relationship summary 
should specifically seek to clarify or correct?
     Would more or less information about a firm's services be 
helpful for retail investors? Are there any elements of the proposed 
requirements that firms should or should not include? If so, why? 
Should any of the required disclosures be included in a different 
section of the relationship summary? Is the proposed order of the 
information appropriate, or should it be modified? If so, how should it 
be modified? Should we allow firms the flexibility to present this 
information in a different order if doing so makes their relationships 
and services more understandable to retail investors?
     Is the proposed heading and the introductory wording for 
firms clear and useful to retail investors? Are there alternative 
headings we should consider?
     Does the mix of prescribing wording for some information 
and requiring brief narratives for other information strike the right 
balance between having similar, neutral wording to promote comparisons 
and permitting firms to conform the language to reflect the services 
they offer? Should the Commission instead require more prescribed 
wording in this Item? Conversely, is there prescribed wording we have 
proposed that we should modify or replace with a more general 
instruction that allows firms to use their own description?
     Does the prescribed wording we are proposing capture the 
range of business models of investment advisers and broker-dealers? 
Would the prescribed wording require any firm to state something 
inaccurate in the relationship summary? Should we instead provide more 
flexibility to change the prescribed wording?
     Should we require broker-dealers to include prescribed 
wording about transaction-based fees and investment advisers to state 
the type of fee for an advisory account at the beginning of this

[[Page 21428]]

section, or should fees only be discussed in the fee section?
     How should broker-dealers describe execution-only 
accounts, sometimes referred to as ``discount'' brokerage, and accounts 
in which they provide recommendations concerning securities, sometimes 
referred to as ``full-service'' brokerage? Should we, as proposed, 
require that broker-dealers offering recommendations to retail 
investors state that the retail investor may select investments or the 
broker-dealer may recommend investments, but the retail investor will 
make the ultimate investment decision? Should we also, as proposed, 
require that broker-dealers only offering discount brokerage accounts 
to retail investors state that the retail investor will select the 
investments and make the ultimate investment decision? Should we 
require prescribed language about these accounts, or should we permit a 
brief narrative as proposed? Should firms be permitted or required to 
use the terms ``full-service'' accounts and ``discount'' brokerage 
accounts, or other terms, so long as they are likely to be understood? 
Do investors understand the meanings of these terms?
     Should investment advisers that provide investment 
advisory services be required to discuss both discretionary and non-
discretionary account services, regardless of whether they offer both 
discretionary and non-discretionary accounts? Should they instead be 
permitted to describe only the service they offer? Do firms offer 
accounts that involve limited discretionary services that would not be 
covered in the proposed discussions of discretionary and non-
discretionary accounts? If so, how should the requirements be changed 
to reflect these accounts? Should we also require investment advisers 
to state that they offer advice on a regular basis, or, if not on a 
regular basis, state how frequently they offer advice? Should we 
require the disclosure of any additional information about the advice 
an investment adviser provides?
     We are proposing to require firms to disclose if they 
offer certain additional services, such as assistance with developing 
or executing the retail investor's investment strategy, and performance 
monitoring, and to briefly describe any regular communications they 
have with retail investors. Are there services in addition to those in 
the Instructions that broker-dealers and investment advisers also 
should disclose? Should we require disclosure of the same types of 
additional services for both broker-dealers and investment advisers?
     We understand that, to some extent, all firms limit the 
investments offered to retail investors. Would other disclosures 
regarding a firm's product offering limitations be helpful to 
investors, in addition to the proposed disclosures for firms that 
significantly limit the types of investments that are available? Why or 
why not? Should we, for example, require firms that only offer 
proprietary investments to also state that the only investments 
available to a retail investor are investments that the firm or its 
affiliates issue, sponsor, or manage? How feasible would this 
disclosure be for a firm that has several account types? Should we 
consider other alternatives?
     Is it clear what we mean by ``significantly limit'' with 
regard to the requirement to disclose limitations on investment 
choices? Should we provide additional examples or more prescriptive 
instructions regarding when firms must disclose such limitations? Are 
there other ways a firm may significantly limit the types of 
investments that should be captured by this instruction?
     Should we permit firms to prepare different relationship 
summaries for different types of services and lines of business, 
particularly where the firm offers a broad array of accounts and 
services? Would separate relationship summaries still promote 
comparability across firms and the ability to understand the 
differences between advisory and brokerage services?
     Would the proposed summary of services allow retail 
investors to easily compare the services provided by different firms? 
If not, what changes to the requirements should we make to increase 
comparability?
     Would other disclosures about a firm's services be more 
helpful for retail investors? Should we permit or require firms to 
describe services they offer to retail investors, in addition to 
brokerage and advisory services, such as insurance services? Would such 
disclosure about other services give retail investors a more complete 
overview of a firm's offerings, or would it detract from the other 
disclosures, for example, by overwhelming the more important 
information about a firm's brokerage and advisory services?
     Should we require firms to include more details about the 
specific services provided for each type of advisory account or 
brokerage account that they offer? Should the relationship summary help 
investors to choose among a variety of account options that the firm 
offers, rather than providing more summary information about the 
advisory and brokerage services that are offered?
     Some dual registrants have implemented a default 
relationship for retail investors, where, for example, the firm will 
act as a broker-dealer with respect to the account unless specifically 
stated otherwise. Should we require these firms to disclose that they 
are acting as a broker-dealer (or investment adviser, as applicable) 
with respect to the account unless the firm specifically states 
otherwise?
     Should we, as proposed, allow firms with affiliated 
broker-dealers or investment advisers to state that they offer retail 
investors additional brokerage or advisory services, as applicable, 
through their affiliates? Should we require such statements, if 
applicable? Should we permit or require firms to expand on the 
different types of services available to their retail investors through 
the firm's affiliates? Should affiliates be required or permitted to 
use a single relationship summary that describes the services of all 
affiliates? If not, why not? What are the advantages and disadvantages 
to the retail investor?
     Should we also permit or require disclosure regarding a 
firm's relationships with other third parties, such as where the 
registered representatives of a broker-dealer are also investment 
adviser representatives of an unaffiliated investment adviser or where 
an investment adviser uses a single unaffiliated broker-dealer to 
provide execution and custody and generally does not consider execution 
through other firms?
     Should we require investment advisers and broker-dealers 
to disclose whether they have a minimum account size and state that 
minimum (or range of minimums) if the account minimum varies by 
account? If applicable, should we require disclosure that the selection 
of investments or services is limited by account size? Would this help 
investors understand whether they are eligible for certain accounts or 
certain services and understand the ways in which their investment 
choices may be limited? Are there any drawbacks to requiring such 
disclosure?
     So-called robo-advisers and online broker-dealers 
represent a fast-growing trend within the brokerage and investment 
advisory industries. They employ a wide range of business models. For 
example, differences among robo-advisers and online broker-dealers 
include: The degree of reliance on computer algorithms (as opposed to 
individualized human judgment) to generate financial advice; the level 
of human interaction between the client or customer and firm personnel; 
and the use of the internet to communicate with

[[Page 21429]]

clients and customers. Are the Instructions pertaining to relationships 
and services sufficient and appropriate to capture the business models 
of robo-advisers and online broker-dealers? For example, would it be 
appropriate to require or permit descriptions regarding the degree of 
human involvement in the oversight and management of individual client 
accounts, how computer algorithms are used in generating investment 
advice, and the availability of financial professionals to answer 
retail investors' questions? Do the requirements with respect to the 
content and delivery of the relationship summary, as further discussed 
below, allow retail investors to make informed decisions about entering 
into a relationship with a robo-adviser, other type of investment 
adviser, or broker-dealer?
3. Obligations to the Retail Investor--Standard of Conduct
    Following the relationships and services section, the relationship 
summary would include a brief section, using prescribed wording, to 
describe the firm's legal standard of conduct to the retail 
investor.\110\ The section would begin with the heading ``Our 
Obligations to You'' and the following language: ``We must abide by 
certain laws and regulations in our interactions with you.'' Firms 
would then use prescribed wording describing the standard of conduct 
applicable to investment advisers and/or broker-dealers.\111\ As with 
certain other sections of the relationship summary, dual registrants 
would provide this information in tabular format to facilitate 
comparison.
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    \110\ Proposed Item 3.A. of Form CRS.
    \111\ Proposed General Instruction 1.(e) to Form CRS.
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    We understand that the standard of conduct that applies to firms 
and financial professionals has been a source of investor 
confusion.\112\ For example, the 913 Study noted that retail investors 
were not clear about the specific legal duties of broker-dealers and 
investment advisers.\113\ We believe that providing a brief overview of 
the standards of conduct to which broker-dealers and investment 
advisers must adhere, including the differences between the standards 
of care of broker-dealers and investment advisers, could help alleviate 
this confusion. We further believe that providing this overview, in 
combination with the key question about the financial professional's 
legal obligations discussed below, would encourage a conversation 
between the retail investor and the financial professional about 
applicable legal obligations.\114\ We also believe that prescribing 
language is appropriate to promote consistency in communicating these 
standards to retail investors.\115\
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    \112\ See, e.g., Siegel & Gale Study, supra note 5; and RAND 
Study, supra note 5. See also CFA Survey, supra note 5.
    \113\ See 913 Study, supra note 3, at v. See also Rand Study, 
supra note 5.
    \114\ See infra at Section II.B.8. Similarly, certain DOL 
regulations already obligate firms and financial professionals to 
acknowledge fiduciary status when they provide certain advisory type 
services to workplace retirement plans subject to ERISA and to IRAs. 
See, e.g., 29 CFR 2550.408g-1(b)(7)(i)(G) (regulation under 
statutory exemption for participant advice requires fiduciary 
advisers to plans and IRAs seeking exemptive relief to provide 
advice and receive compensation to acknowledge fiduciary status); 29 
CFR 2550.408b-2(c)(1)(iv)(B) (regulation under statutory exemption 
for reasonable service arrangements requires certain ERISA-covered 
plan service providers to state, if applicable, that the service 
provider will provide or reasonably expects to provide services as a 
``fiduciary'' as defined by ERISA). Similarly, the DOL's BIC 
Exemption, see infra note 504, would require an investment advice 
fiduciary that seeks to rely on that exemption to receive 
compensation in connection with investment recommendations to state 
in writing that it is acting as a fiduciary under ERISA or the Code.
    \115\ As noted above, if a prescribed statement is inapplicable 
to a firm's business or would be misleading to a reasonable retail 
investor, the firm may omit or modify that statement, as further 
discussed below. Proposed General Instruction 3 to Form CRS. See 
supra note 58.
---------------------------------------------------------------------------

    Broker-Dealers. We are proposing a required description of the 
standard of conduct for broker-dealers based on the proposed standards 
in Regulation Best Interest, as well as existing obligations of broker-
dealers when they provide services to customers. First, a broker-dealer 
that provides recommendations subject to Regulation Best Interest \116\ 
would include the following wording: ``We must act in your best 
interest and not place our interests ahead of yours when we recommend 
an investment or an investment strategy involving securities.'' \117\ 
Execution-only broker-dealers and other broker-dealers that do not 
provide such recommendations would not be required to include this 
sentence. We believe retail investors receiving recommendations that 
are subject to Regulation Best Interest would benefit from 
understanding the new obligation.
---------------------------------------------------------------------------

    \116\ Regulation Best Interest Proposal, supra note 24.
    \117\ Proposed Item 3.B.1. of Form CRS. This wording assumes 
Commission adoption of Regulation Best Interest. As noted above (see 
supra note 29 and accompanying text), the proposed definition of 
``retail customer,'' to whom Regulation Best Interest would apply, 
differs from the proposed definition of ``retail investor'' under 
Form CRS. The relationship summary is intended for a broader range 
of investors than the intended focus of Regulation Best Interest. 
Accordingly, the proposed Regulation Best Interest standard may not 
apply to the recommendations of all retail investors receiving the 
relationship summary from broker-dealers. The Instructions for 
proposed Item 3.B.1 recognizes this possibility and seeks to ensure 
that broker-dealers provide accurate disclosure to their retail 
investors, even if the broker-dealer is not providing a 
recommendation subject to Regulation Best Interest.
---------------------------------------------------------------------------

    Second, all broker-dealers providing services to retail investors 
would state, ``When we provide any service to you, we must treat you 
fairly and comply with a number of specific obligations.'' This would 
inform retail investors that broker-dealers have a duty of fair dealing 
under the federal securities laws and self-regulatory organization 
rules, as well as other obligations and standards to which they must 
adhere.\118\
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    \118\ See Report of the Special Study of Securities Markets of 
the Securities and Exchange Commission, H.R. Doc. No. 88-95, at 238 
(1st Sess. 1963); In the Matters of Richard N. Cea, et al., Exchange 
Act Release No. 8662 (Aug. 6, 1969), at 18 (``Release 8662'') 
(involving excessive trading and recommendations of speculative 
securities without a reasonable basis); In the Matter of Mac Robbins 
& Co. Inc., Exchange Act Release No. 6846 (Jul. 11, 1962). See also 
FINRA Rule 2111.01 (Suitability) (``Implicit in all member and 
associated person relationships with customers and others is the 
fundamental responsibility for fair dealing. Sales efforts must 
therefore be undertaken only on a basis that can be judged as being 
within the ethical standards of [FINRA's] Rules, with particular 
emphasis on the requirement to deal fairly with the public. The 
suitability rule is fundamental to fair dealing and is intended to 
promote ethical sales practices and high standards of professional 
conduct''); see also FINRA Rule 2010 (Standards of Commercial Honor 
and Principles of Trade) (requiring a member, in the conduct of its 
business, to observe high standards of commercial honor and just and 
equitable principles of trade).
---------------------------------------------------------------------------

    Finally, broker-dealers would be required to state, ``Unless we 
agree otherwise, we are not required to monitor your portfolio or 
investments on an ongoing basis.'' This sentence reflects that neither 
Regulation Best Interest nor existing broker-dealer standards oblige 
the broker-dealer to monitor the performance of retail investor's 
accounts,\119\ while making clear that broker-dealers could agree to 
provide monitoring as an additional service. We are proposing this 
wording because we believe that the episodic, rather than ongoing, 
nature of broker-dealers' standard of conduct in Regulation Best 
Interest is a distinction from investment advisers' obligations to 
clients that retail investors should be

[[Page 21430]]

aware of from the outset of a relationship.
---------------------------------------------------------------------------

    \119\ References to ``monitoring'' relate to monitoring the 
performance of a portfolio or investments, and are not intended to 
alter or diminish broker-dealers' current supervisory obligations 
under the Exchange Act and detailed self-regulatory organization 
rules, including the establishment of policies and procedures 
reasonably designed to prevent and detect violations of, and to 
achieve compliance with, the federal securities laws and 
regulations, as well as applicable self-regulatory rules. See 
section 15(b)(4)(E) of the Exchange Act; FINRA Rule 3110.
---------------------------------------------------------------------------

    After the description of the standard of conduct, broker-dealers 
would be required to state: ``Our interests can conflict with your 
interests.'' If the broker-dealer provides to retail investors 
recommendations that are subject to Regulation Best Interest, it would 
also include the language, ``When we provide recommendations, we must 
eliminate these conflicts or tell you about them and in some cases 
reduce them.'' \120\ These statements reflect proposed requirements in 
Regulation Best Interest that broker-dealer would need to establish, 
maintain, and enforce reasonably designed policies and procedures 
relating to material conflicts of interest, including those arising 
from financial incentives, associated with recommendations to retail 
customers. While we are not using the exact words of the proposed 
standard, we believe that this information, in combination with the 
conflicts section below, can make the retail investor aware that 
conflicts exist and that the broker-dealer has obligations regarding 
disclosure, mitigation, or elimination of conflicts when the broker-
dealer is subject to Regulation Best Interest. We believe this could 
help prompt a conversation between retail investors and their financial 
professionals about both the conflicts the firm and financial 
professional have and what steps the firm takes to reduce the 
conflicts.\121\
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    \120\ Proposed Item 3.B.2. of Form CRS. This wording assumes 
Commission adoption of the Regulation Best Interest.
    \121\ See discussion of the proposed conflicts of interest 
disclosure in the relationship summary, infra Section II.B.6.
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    Investment Advisers. We propose to require that investment advisers 
state the standard of conduct that applies to them as an investment 
adviser by including the following wording: ``We are held to a 
fiduciary standard that covers our entire investment advisory 
relationship with you.'' In addition, unless the investment adviser 
does not provide ongoing advice (for example, provides only a one-time 
financial plan), the investment adviser would also state, ``For 
example, we are required to monitor your portfolio, investment strategy 
and investments on an ongoing basis.'' \122\ While we are not proposing 
to include a specific definition of fiduciary, we believe that the 
proposed wording that the relationship covers the ``entire investment 
advisory relationship'' and wording regarding the ongoing duty to 
monitor would provide retail investors with information about aspects 
of the fiduciary duty that can help the retail investor understand the 
standard.\123\ Additionally, as with the proposed standard of conduct 
disclosure for broker-dealers, we believe that the ongoing, as opposed 
to episodic, nature of investment advisers' standard of conduct is a 
distinction from broker-dealers' typical obligations when providing 
recommendations that retail investors should be aware of from the 
outset of a relationship.
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    \122\ Proposed Item 3.C.1. of Form CRS.
    \123\ We are concurrently publishing for comment a proposed 
interpretation of the standard of conduct for investment advisers 
under the Advisers Act. See Proposed Commission Interpretation 
Regarding Standard of Conduct for Investment Advisers; Request for 
Comment on Enhancing Investment Adviser Regulation, Investment 
Advisers Act Release No. IA-4889 (Apr. 18, 2018) (``Fiduciary Duty 
Interpretive Release'').
---------------------------------------------------------------------------

    After the description of the standard of conduct, investment 
advisers would then be required to state, ``Our interests can conflict 
with your interests. We must eliminate these conflicts or tell you 
about them in a way you can understand, so that you can decide whether 
or not to agree to them.'' As with broker-dealers, we believe that this 
information, in combination with the conflicts section below, can make 
retail investors aware that conflicts exist and that investment 
advisers, as part of their fiduciary duty, have obligations regarding 
conflicts.\124\ We believe this could help prompt a conversation 
between retail investors and their financial professionals about both 
the conflicts the firm and financial professional have and what steps 
the firm takes to reduce the conflicts.
---------------------------------------------------------------------------

    \124\ See, e.g., General Instruction 3 to Form ADV, Part 2.
---------------------------------------------------------------------------

    We request comment generally on the proposed standard of conduct 
descriptions, and in particular on the following issues:
     Should we require, as proposed, that all firms include a 
brief prescribed statement about the legal standards of conduct that 
apply to them under the federal securities laws, including the new 
standard proposed in Regulation Best Interest and an investment 
adviser's fiduciary duty? Is such disclosure likely to be meaningful to 
retail investors? Does the prescribed wording capture what retail 
investors should or want to understand about broker-dealers' and 
investment advisers' standards of conduct? Would the prescribed wording 
require any firm to provide any inaccurate information? Are there 
modifications to the proposed wording or alternative wording that would 
make the legal standards more clear in a succinct way? Should we 
require or permit additional information, and if so, what? 
Alternatively, would a briefer statement be appropriate? Are there any 
common misconceptions about broker-dealers' and investment advisers' 
standard of conduct that the relationship summary should specifically 
seek to clarify or correct?
     Should we require or permit broker-dealers to include 
additional detail about the best interest standard proposed in 
Regulation Best Interest or their duty of fair dealing? Would this or 
other disclosure provide retail investors with useful information? 
Should we provide flexibility in how broker-dealers describe the best 
interest standard or duty of fair dealing?
     We are proposing to require that broker-dealers state that 
they must comply with a number of specific obligations when providing 
any service to customers. Should we permit or require more detailed 
disclosure about these obligations? For example, should we permit or 
require broker-dealers to disclose their obligations to make sure that 
the prices a customer receives when a trade is executed are fair and 
reasonable, and to make sure that the commissions and fees the customer 
pays are not excessive?
     Should we require disclosure that further describes the 
investment adviser fiduciary standard, including any additional details 
described in the proposed interpretation? If so, what wording should we 
require? Should we provide flexibility in describing the fiduciary 
standard?
     For dual registrants, would the side-by-side descriptions 
of the standards of conduct for broker-dealers and investment advisers 
assist retail investors in understanding the differences between these 
standards? Are there modifications we can make to the wording or the 
presentation to facilitate this comparison?
     Should we permit or require firms to disclose additional 
information about the legal differences between broker-dealers and 
investment advisers, such as explaining that broker-dealers are subject 
to regulation by self-regulatory organizations in addition to the SEC? 
Should we permit or require firms to disclose the differences in 
licensing requirements for financial professionals of broker-dealers 
and investment advisers, such as the frequency of licensing or 
qualifications examinations? Would such disclosure about financial 
professionals fit within this section of the relationship summary that 
focuses on the firm? What information would be most relevant to retail 
investors?

[[Page 21431]]

     We understand that state laws and other regulations,\125\ 
also may require broker-dealers and advisers to affirmatively 
acknowledge fiduciary status. Should we provide firms flexibility to 
include language in a relationship summary consistent with or to 
satisfy these other regulatory requirements? Would such flexibility 
enhance or potentially reduce the effectiveness of the relationship 
summary?
---------------------------------------------------------------------------

    \125\ See. e.g., supra note 114.
---------------------------------------------------------------------------

4. Summary of Fees and Costs
    We are proposing to require broker-dealers and investment advisers 
to include an overview of specified types of fees and expenses that 
retail investors will pay in connection with their brokerage and 
investment advisory accounts. This section would include a description 
of the principal type of fees that the firm will charge retail 
investors as compensation for the firm's advisory or brokerage 
services, including whether the firm's fees vary and are negotiable, 
and the key factors that would help a reasonable retail investor 
understand the fees that he or she is likely to pay.\126\ Investment 
advisers that provide advice to retail investors about investing in 
``wrap fee programs'' would include an overview of the fees associated 
with those wrap fee programs.\127\ Both broker-dealers and investment 
advisers would state that some investments impose fees that will reduce 
the value of a retail investor's investment over time, and would 
provide examples relevant to the firm's business.\128\ In addition, 
each firm would include the incentives it and its financial 
professionals have to put their own interests ahead of their retail 
investors' interests based on the account fee structure,\129\ and would 
state that depending on an investor's investment strategy, retail 
investors may prefer paying a different type of fee in certain 
specified circumstances.\130\ Having a clear, simple explanation of the 
fees a retail investor would pay firms for advisory accounts versus 
brokerage accounts, and the incentives that such fees create, would 
help the retail investor to understand the types of fees that they will 
pay and make a more informed choice about which account is right for 
them. As with other sections of the relationship summary, dual 
registrants would provide this information in tabular format to 
facilitate comparison.\131\
---------------------------------------------------------------------------

    \126\ Proposed Item 4 of Form CRS. A broker-dealer would 
describe transaction-based fees as its principal type of fee, using 
prescribed wording. See proposed Item 4.B.1 of Form CRS. We use the 
term ``transaction-based fees'' in the relationship summary for 
plain language purposes to refer generally to broker-dealer 
compensation such as commissions, mark-ups, mark-downs, sales loads 
or similar fees, including 12b-1 fees, tied to specific 
transactions. An investment adviser would summarize the principal 
fees and costs that align with the type of fee(s) the adviser 
reports in response to Item 5.E. of Form ADV Part 1A that are 
applicable to retail investors. See proposed Item 4.C. of Form CRS. 
Investment advisers and associated persons that receive compensation 
in connection with the purchase or sale of securities should 
carefully consider the applicability of the broker-dealer 
registration requirements of the Exchange Act.
    \127\ Proposed Items 4.C.3., 4.C.7., 4.C.9. and 4.C.10. of Form 
CRS.
    \128\ Proposed Items 4.B.2.b. and 4.C.4. of Form CRS.
    \129\ Proposed Items 4.B.5. and 4.C.8. of Form CRS.
    \130\ Proposed Items 4.B.6. and 4.C.10. of Form CRS. Dual 
registrants would make these disclosures under the heading ``Fees 
and Costs,'' whereas standalone investment advisers and broker-
dealers would make certain of these disclosures under the heading 
``Fees and Costs,'' and certain of these disclosures under the 
heading, as applicable ``Compare with Brokerage Accounts'' or 
``Compare with Advisory Accounts,'' as described below. Proposed 
Items 5.A.4. and 5.B.6. of Form CRS.
    \131\ Proposed General Instruction 1.(e) to Form CRS.
---------------------------------------------------------------------------

    Fees and costs are important to retail investors,\132\ but many 
retail investors are uncertain about the fees they will pay.\133\ Many 
commenters have stressed the importance of clear fee disclosure to 
retail investors, including disclosure about differences between 
advisory and brokerage fees.\134\ Accordingly, the proposed 
relationship summary is intended to provide investors greater clarity 
concerning certain categories of fees they should expect to pay, how 
the types of fees affect the incentives of the firm and their financial 
professionals, and certain other fees and expenses that will reduce the 
value of the retail investor's investment. The proposed relationship 
summary would focus on certain general types of fees, rather than 
describe all fees or provide a comprehensive schedule of fees. 
Specifically, the proposal would highlight certain differences in how 
broker-dealers and investment advisers charge for their services.
---------------------------------------------------------------------------

    \132\ See 917 Financial Literacy Study, supra note 20, at iv 
(``With respect to financial intermediaries, investors consider 
information about fees, disciplinary history, investment strategy, 
conflicts of interest to be absolutely essential.'').
    \133\ See Rand Study, supra note 5, at xix (``In fact, focus-
group participants with investments acknowledged uncertainty about 
the fees they pay for their investments, and survey responses also 
indicate confusion about the fees.''). In addition, we have brought 
enforcement actions against advisers providing inaccurate disclosure 
of all of the fees and costs that retail investors pay. See, e.g., 
In the Matter of Robert W. Baird & Co. Inc., Investment Advisers Act 
Release No. 4526 (Sept. 8, 2016) (settled action) (``In re Robert W. 
Baird''); In the Matter of Raymond James & Associates, Inc., 
Investment Advisers Act Release No. 4525 (Sept. 8, 2016) (settled 
action) (``In re Raymond James''); In the Matter of Barclays Capital 
Inc., Investment Advisers Act Release No. 3929 (Sep. 23, 2014) 
(settled action) (``Release 3929'').
    \134\ See, e.g., Kiley 2017 Letter (recommending that investors 
receive disclosures about the differences in advisory and brokerage 
fees, and brokers' specific fee and commission structure); Stifel 
2017 Letter (recommending that firms explain the differences between 
brokerage and advisory accounts with the goal of improving 
understanding of a firm's different service models, compensation 
arrangements, and conflicts of interests); Equity Dealers of America 
2017 Letter (recommending disclosure of aspects of advisory and 
brokerage accounts, including the type of fees charged, to 
facilitate investors' selection of an account type); Wells Fargo 
2017 Letter; ACLI 2017 Letter; FSR 2017 Letter; SIFMA 2017 Letter; 
UBS 2017 Letter; Comment letter of the Investment Company Institute 
(Aug. 7, 2017) (``ICI 2017 Letter''); State Farm 2017 Letter; IAA 
2017 Letter; Bernardi Securities 2017 Letter; Fidelity 2017 Letter; 
Vanguard 2017 Letter.
---------------------------------------------------------------------------

    We are not proposing a requirement that firms personalize the fee 
disclosure for their retail customers, or provide a comprehensive fee 
schedule, as some commenters had proposed.\135\ A personalized fee 
disclosure could be expensive and complex for firms to provide in a 
standardized presentation across all of their accounts and in a way 
that captures all fees, including embedded fees in various investments 
(which will vary for each investor depending on their portfolio). Many 
firms likely would seek to implement systems to automate the disclosure 
for each of their existing and prospective retail investors, and if 
such systems were expensive, some firms could choose to reduce the 
products and services that they offer as a result of the additional 
costs. Our proposal would encourage retail investors to ask financial 
professionals about their fees and request personalized information 
about the specific fees and expenses associated with their current or 
prospective accounts. As further discussed in Section II.B.8 below, one 
of the proposed questions for a retail investor to ask a financial 
professional is to ``do the math for me,'' and specifically encourages 
retail investors to ask about the amount that they would pay per year 
for the account, what would make the fees more or less, and the 
services included in those fees.\136\ Additionally, the beginning of 
the Fees and Costs section of the relationship summary would state: 
``Please ask your financial professional to give you personalized 
information on fees and

[[Page 21432]]

costs that you will pay.'' \137\ We believe that financial 
professionals are well positioned to provide individualized fee 
information to their retail investors upon request. During the account 
opening process, for example, generally the relevant financial 
professional would have access to personalized information about the 
retail investor's account and can put together personalized fee 
information estimates during the process.
---------------------------------------------------------------------------

    \135\ See, e.g., Comment letter of Mark J. Flannery, BankAmerica 
Professor of Finance, University of Florida (Jul. 27, 2017) 
(``Flannery 2017 Letter''); Pefin 2017 Letter (recommending that 
clients should receive information on a quarterly basis on fees 
charged to their account, the calculation used to determine fees, 
and a breakdown of the charges by category).
    \136\ See infra Section II.B.8.; infra notes 299-303 and 
accompanying text; proposed Item 8 of Form CRS.
    \137\ Proposed Item 4.A. of Form CRS.
---------------------------------------------------------------------------

    Likewise, we believe that requiring a comprehensive fee schedule in 
the relationship summary also could be more complex than a retail 
investor would find useful for an overview disclosure such as this. 
However, we believe our proposed layered disclosure would achieve 
similar results in a less costly and complex manner. The relationship 
summary would provide required information about fees, and a later 
section titled ``Additional Information'' would provide references and 
links to other disclosures where interested investors can find more 
detailed information.\138\ As discussed below, investment advisers 
would be required to direct retail investors to additional information 
in the firm's Form ADV Part 2 brochure and any brochure supplement 
provided by a financial professional to the retail investor.\139\ An 
adviser's Form ADV Part 2 contains more detailed information about the 
firm's fees. Broker-dealers would likewise be required to direct retail 
investors to additional information at BrokerCheck, the firm's website, 
and the retail investor's account agreement.\140\ Up-to-date fee 
disclosures may appear on broker-dealers' websites or in the retail 
investors' account agreements, if applicable, where we understand 
broker-dealers typically provide information about fees, including, in 
some cases, comprehensive fee schedules.\141\
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    \138\ Proposed Item 7 of Form CRS.
    \139\ Proposed Item 7.E.2. of Form CRS. Investment advisers that 
do not have a public firm website or do not maintain their current 
Form ADV brochure on its public website would be required to include 
a link to adviserinfo.sec.gov. Advisers that do not have a public 
firm website would also be required to include a toll-free telephone 
number where retail investors can request up-to-date information.
    \140\ Proposed Item 7.E.1. of Form CRS. Broker-dealers that do 
not have a public firm website would be required to include a toll-
free telephone number where retail investors can request up-to-date 
information.
    \141\ Under Regulation Best Interest, broker-dealers would also 
be required to disclose the material facts relating to the scope and 
terms of the relationship, which would include disclosure of fees 
and charges that apply to a customer's transactions, holdings and 
accounts. Regulation Best Interest Proposal, supra note 24, at 
section II.D.1.a.
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    We are also not proposing to require firms to include examples of 
how fees could affect a retail investor's investment returns. We 
recognize that the Commission has required firms to disclose examples 
showing the effects of fees and other costs in certain contexts. For 
example, we have required mutual funds to provide in their summary 
prospectuses an example that is intended to help investors compare the 
cost of investing in the mutual fund with the cost of investing in 
other mutual funds.\142\ While we continue to believe that examples of 
the effect of fees on returns could be helpful to retail investors, 
they could also fail to capture the effect of a firm's fees on a 
particular retail investor's account. Transactional fees, in 
particular, can vary widely based on a number of circumstances, and it 
could be potentially misleading to present a typical example showing 
how sample transaction fees apply to a sample account over time. We 
believe requiring firms to provide an example for each type of account 
that would show the effect of fees on a sample account could overwhelm 
investors due to the number and variability of assumptions that would 
need to incorporated, explained, and understood in order for the 
example to be meaningful, and would not necessarily promote 
comparability. If the assumptions were standardized, such examples 
might not be useful, or might even be potentially misleading, to the 
retail investor, whose circumstances may be different from the 
assumptions used.
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    \142\ See Item 3 of Mutual Fund Summary Prospectus; Enhanced 
Mutual Fund Disclosure Adopting Release, supra note 47, at section 
III.A.3.b (``The fee table and example are designed to help 
investors understand the costs of investing in a fund and compare 
those costs with the costs of other funds.'').
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    Some commenters suggested requiring that a firm disclose the types 
of compensation firms and their financial professionals receive, 
including from third parties, in connection with providing investment 
recommendations.\143\ A few commenters suggested requiring disclosure 
of how much the firm and its financial professionals receive in fees, 
including commissions and fees from third parties.\144\ We agree with 
commenters that it is important to make investors aware of such fees 
and compensation because they create conflicts of interest for firms 
and financial professionals making investment recommendations for 
retail investors. We are proposing to require that firms disclose 
commissions and certain third-party fees related to mutual funds in 
this section, and certain compensation-related conflicts (e.g., 
conflicts related to revenue sharing) in the conflicts section of the 
relationship summary, as discussed in Section II.B.6 below.
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    \143\ See, e.g., SIFMA 2017 Letter; UBS 2017 Letter; ICI 2017 
Letter; State Farm 2017 Letter; Bernardi Securities 2017 Letter; 
Fidelity 2017 Letter.
    \144\ See, e.g., Flannery 2017 Letter; Pefin 2017 Letter.
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    Heading. To emphasize the importance of fees, all firms would be 
required to include the following statement at the beginning of this 
section under the heading ``Fees and Costs'': ``Fees and costs affect 
the value of your account over time. Please ask your financial 
professional to give you personalized information on the fees and costs 
that you will pay.'' \145\ We are proposing this precise wording 
because we believe it is applicable to retail investors regardless of 
any differences among the accounts and their fees. Understanding that 
fees and costs affect investment value over time would help retail 
investors to understand why they should review and understand this 
information. This introductory language also would highlight that 
retail investors could get more personalized information from the 
firm's financial professionals.
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    \145\ Proposed Item 4.A. of Form CRS.
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    Brokerage Account Fees and Costs. Broker-dealers would be required 
to summarize the principal fees and costs that retail investors will 
incur.\146\ First, we are proposing prescribed language that describes 
the transactional nature of many brokerage fees.\147\ We are proposing 
different wording for dual registrants than for standalone broker-
dealers to facilitate the side-by-side comparison with the description 
of the advisory fee in the dual registrant's relationship summary. 
Specifically, dual registrants that offer retail investors both 
investment advisory accounts and brokerage accounts would include the 
following wording to assist with the side-by-side comparison with 
investment advisers: ``Transaction-based fees. You will pay us a fee 
every time you buy or sell an investment. This fee, commonly referred 
to as a commission, is based on the specific transaction and not the 
value of your account.'' \148\ A standalone broker-dealer

[[Page 21433]]

would include the following: ``The fee you pay is based on the specific 
transaction and not the value of your account.'' \149\
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    \146\ Proposed Item 4.B. of Form CRS.
    \147\ As discussed above, we use the term ``transaction-based 
fees'' to refer to broker-dealer compensation such as commissions, 
mark-ups, mark-downs, sales loads or similar fees, including 12b-1 
fees, tied to specific transactions. See supra note 126.
    \148\ Proposed Item 4.B.1. of Form CRS. As discussed further 
below, dual registrants would include a parallel statement regarding 
their investment advisory account fees. Proposed Item 4.C.1. of Form 
CRS.
    \149\ Proposed Item 4.B.1. of Form CRS. As discussed above, 
standalone broker-dealers would be required to include wording that 
a transaction-based fee is generally referred to as a commission in 
the Relationships and Services section of the relationship summary. 
See proposed Item 2.B.1. of Form CRS.
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    In addition, both standalone and dual registrant broker-dealers 
would include the following (emphasis required): ``With stocks or 
exchange-traded funds, this fee is usually a separate commission. With 
other investments, such as bonds, this fee might be part of the price 
you pay for the investment (called a ``mark-up'' or ``mark down''). 
With mutual funds, this fee (typically called a ``load'') reduces the 
value of your investment.'' \150\ Because of the importance of these 
transaction-based fees to brokerage services, as well as the variety of 
forms that such fees can take, we believe it will benefit investors to 
have specific examples to illustrate transaction-based fees with 
standardized, concise wording. We are proposing to require the example 
of mutual fund loads because they are common indirect fees associated 
with investments that compensate the broker-dealer.
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    \150\ Proposed Item 4.B.2.a. of Form CRS.
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    We are not proposing to require broker-dealers to provide the range 
of their transaction-based fees. We understand that these fees vary 
widely based on the specific circumstances of a transaction. For 
example, a broker-dealer that transacts in only one type of security--
such as equities--can have a wide range of transaction fees for such 
securities, depending on factors such as the size of the transaction, 
the type of investment purchased, the type of account and services 
provided, and how retail investors place their orders (for example, 
online, telephone or with the assistance of a financial professional). 
A broker-dealer that transacts in multiple types of securities--for 
example, equities and real estate investment trusts (REITs)--could have 
an even wider range of transaction fees. Given this variability, and 
our intent that the relationship summary be short and that it be 
provided in addition to, and not in lieu of, other disclosure, we 
believe that requiring firms to provide a range of transaction-based 
fees in the relationship summary could be confusing or provide limited 
benefit to retail investors.
    Following the examples of transaction-based fees, broker-dealers 
would be required to state that some investments impose additional fees 
that will reduce the value of retail investors' investments over time, 
and provide examples of such investments that they offer to retail 
investors.\151\ Mutual funds, variable annuities and exchange-traded 
funds are common examples, as well as any other investment that incurs 
fund management, 12b-1, custodial or transfer agent fees, or any other 
fees and expenses that reduce the value of the investment over 
time.\152\ Broker-dealers also would be required to state that a retail 
investor could be required to pay fees when certain investments are 
sold, for example, surrender charges for selling variable 
annuities.\153\ We believe that it is important to highlight for 
investors the costs associated with particular investments in addition 
to describing the transaction-based fee for brokerage services. Retail 
investors may not appreciate that they will bear costs for some 
investments in addition to the transaction-based brokerage fee they pay 
to their financial professional or firm.\154\ In addition, the 
investment fees and expenses we are proposing to require that firms 
disclose are ones that we believe are among the most common and can 
have a substantial impact on an investor's return from a particular 
investment.
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    \151\ Proposed Item 4.B.2.b. of Form CRS. Investment advisers 
would also be required to make this disclosure. See proposed Item 
4.C.4. of Form CRS.
    \152\ We acknowledge that some fees, such as 12b-1 fees, could 
be a broker-dealer's principal fee for their brokerage services and 
are also fees that reduce the return on an investment. In such a 
case, the broker-dealer would describe transaction-based fees as its 
principal fees and costs pursuant to proposed Item 4.B.1, and would 
also describe these fees as additional fees that will reduce the 
return on an investor's investments pursuant to proposed Item 
4.B.2.b. of Form CRS.
    \153\ Proposed Item 4.B.2.b. of Form CRS. Investment advisers 
would also be required to make this disclosure. See proposed Item 
4.C.4. of Form CRS.
    \154\ See, e.g., Enhanced Disclosure and New Prospectus Delivery 
Option For Registered Open-End Management Investment Companies, 
Investment Company Act Release No. 28064 (Nov. 21, 2007) [72 FR 
67790 (Nov. 30, 2007)], at n.49 and accompanying text (``In recent 
years, we have taken significant steps to address concerns that 
investors do not understand that they pay ongoing costs every year 
when they invest in mutual funds, including requiring disclosure of 
ongoing costs in shareholder reports.'').
---------------------------------------------------------------------------

    Requiring the disclosure of these investment fees and expenses, 
sometimes described as ``indirect fees,'' follows commenters' 
recommendations that investment advisers and broker-dealers disclose 
certain indirect costs to retail investors.\155\ We are not proposing a 
requirement that firms disclose the amount or range of mutual fund fees 
or other third-party fees that retail investors may pay related to 
their underlying investments, as a few commenters recommended.\156\ 
These expenses vary so greatly that attempts to quantify them or 
describe their range likely would not be useful to retail investors or 
would provide limited benefit to retail investors given that the 
relationship summary is designed to be short disclosure provided in 
addition to, and not in lieu of, other disclosures.\157\ Instead, we 
intend that our proposed summary disclosure would effectively highlight 
these costs in a simple, understandable way.
---------------------------------------------------------------------------

    \155\ See, e.g., State Farm 2017 Letter; Bernardi Securities 
2017 Letter; Pefin 2017 Letter; Flannery 2017 Letter; Comment letter 
of Dan Keppel (Jun. 5, 2017); Comment letter of Edward H. Weyler 
(Jun. 8, 2017).
    \156\ See Flannery 2017 Letter; Pefin 2017 Letter.
    \157\ See Amendments to Form ADV, Investment Advisers Act 
Release No. 3060 (Jul. 28, 2010) [75 FR 49233 (Aug. 12, 2010)] 
(``Brochure Adopting Release''); Amendments to Form ADV, Investment 
Advisers Act Release No. 2711 (Mar. 3, 2008) [73 FR 13958 (Mar. 14, 
2008)] (``2008 Brochure Proposing Release'').
---------------------------------------------------------------------------

    Additionally, broker-dealers would be required to state whether or 
not the fees they charge retail investors for their brokerage accounts 
vary and are negotiable, including a description of the key factors 
that they believe would help a reasonable retail investor understand 
the fee that he or she is likely to pay for the firm's services.\158\ 
Such factors could include, for example, how much the retail investor 
buys or sells, what type of investment the retail investor buys or 
sells, and what kind of account the retail investor has with the 
broker-dealer. We believe investors would benefit from knowing at 
account opening whether they have the ability to negotiate the fees 
they pay.
---------------------------------------------------------------------------

    \158\ Proposed Item 4.B.3. of Form CRS.
---------------------------------------------------------------------------

    Broker-dealers would next be required to state, if applicable, that 
a retail investor will also pay other fees in addition to the firm's 
transaction-based fee, and to list those fees, including account 
maintenance fees, account inactivity fees, and custodian fees.\159\ We 
believe that it is important to highlight for investors the fees 
associated with an account that they will pay in addition to the 
principal type of fee that the firm charges retail investors for their 
brokerage account because these fees are common and they can have an 
impact on a retail investor's return.
---------------------------------------------------------------------------

    \159\ Proposed Item 4.B.4. of Form CRS.
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    Broker-dealers would then be required to disclose certain specified 
incentives they have to put their own interests ahead of retail 
investors' interests based on charging transaction-based fees for 
brokerage accounts.\160\

[[Page 21434]]

They would be required to include the following: ``The more 
transactions in your account, the more fees we charge you. We therefore 
have an incentive to encourage you to engage in transactions.'' \161\ 
We believe this information would help retail investors understand how 
the fee structures for brokerage accounts could affect their 
investments and the incentives that firms and financial professionals 
have to place their interests ahead of retail investors' interests by 
encouraging retail investors to engage in transactions to increase 
their fees.\162\ We are proposing to prescribe wording because we 
believe these particular incentives and considerations generally apply 
to most brokers that offer retail investors brokerage accounts, and 
using uniform wording would promote consistency. We believe that retail 
investors would benefit from understanding these incentives when they 
are considering broker-dealers. Additionally, we believe this 
disclosure would reinforce a key theme of the relationship summary, 
which is choice across account types and services.
---------------------------------------------------------------------------

    \160\ Proposed Item 4.B.5. of Form CRS.
    \161\ Id.
    \162\ Pursuant to the federal securities laws, broker-dealers 
can violate the federal antifraud provisions by engaging in 
excessive trading that amounts to churning, switching, or unsuitable 
recommendations. Churning occurs when a broker-dealer, exercising 
control over the volume and frequency of trading in a customer 
account, abuses the customer's confidence for personal gain by 
initiating transactions that are excessive in view of the character 
of the account and the customer's investment objectives. Excessive 
trading is an excessive level of trading unjustified in light of the 
customer's investment objectives. See Mihara v. Dean Witter & Co., 
Inc., 619 F.2d 814, 821 (9th Cir. 1980); Carras v. Burns, 516 F.2d 
251, 258 (4th Cir. 1975). See also Regulation Best Interest 
Proposal, supra note 24, at section II.D.2.c.
---------------------------------------------------------------------------

    Finally, dual registrants would be required to include the 
following with respect to brokerage services: ``From a cost 
perspective, you may prefer a transaction-based fee if you do not trade 
often or if you plan to buy and hold investments for longer periods of 
time.'' \163\ We believe that these factors--cost, trading frequency, 
and the desire to ``buy and hold''--are important for retail investors 
to consider when determining whether to use brokerage services or 
advisory services.\164\ We are proposing to prescribe the wording 
because we believe these factors reflect common circumstances in which 
a brokerage account could be more cost-effective for a retail investor 
than an advisory account, and using uniform wording would promote 
consistency. We believe this disclosure, in conjunction with the 
corresponding disclosure regarding advisory accounts that would appear 
next to it, would help retail investors to compare the two services and 
make an informed choice about the account type that is the right fit 
for them based on their goals and preferences.
---------------------------------------------------------------------------

    \163\ Proposed Item 4.B.6. of Form CRS.
    \164\ See e.g., Comment letter of The Capital Group Companies, 
Inc. (Mar. 12, 2018) (discussing considerations for buy and hold 
investors choosing among commission-based and fee-based 
arrangements). Standalone broker-dealers and standalone investment 
advisers would also be required to include similar wording under the 
headings ``Compare with Typical Advisory Accounts'' and ``Compare 
with Typical Brokerage Accounts,'' as applicable. See proposed Items 
5.B.5 and 5.A.4 of Form CRS. Dual-registrants, standalone broker-
dealers, and standalone investment advisers would also be required 
to include a statement that retail investors may prefer an asset-
based fee in certain circumstances, and that an asset-based fee may 
cost more than a transaction-based fee. See proposed Items 4.C.10, 
5.B.5 and 5.A.4 of Form CRS.
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    Investment Advisory Account Fees and Costs. Investment advisers 
that offer advisory accounts to retail investors would be required to 
summarize the principal fees and costs that retail investors will 
incur.\165\ Dual registrants that charge ongoing asset-based fees for 
their advisory services would state the following: ``Asset-based fees. 
You will pay an on-going fee [at the end of each quarter] based on the 
value of the cash and investments in your advisory account.'' \166\ 
replacing, as needed, the bracketed wording with how often they assess 
the fee. If the dual registrant charges another type of fee for 
advisory services, it would briefly describe that fee and how often it 
is assessed.\167\ Standalone investment advisers would state the 
following: ``The amount paid to our firm and your financial 
professional generally does not vary based on the type of investments 
we select on your behalf.'' \168\ Standalone investment advisers that 
charge an ongoing asset-based fee would also state ``The asset-based 
fee reduces the value of your account and will be deducted from your 
account.'' \169\ Standalone investment advisers that charge another 
type of fee would succinctly describe how the fee is assessed and the 
impact it has on the value of the retail investor's account.\170\
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    \165\ Proposed Item 4.C. of Form CRS. An investment adviser 
would summarize the principal fees and costs that align with the 
type of fee(s) the adviser reports in response to Item 5.E. of Form 
ADV Part 1A that are applicable to retail investors.
    \166\ Proposed Item 4.C.1. of Form CRS.
    \167\ Id. Some investment advisers report on Form ADV Item 5.E 
that they receive ``commissions.'' These ``commissions'' may include 
deferred sales loads, including fees for marketing and service, as 
well as commissions as understood in the broker-dealer context. As a 
form of deferred sales load, all payments of ongoing sales charges 
to intermediaries would constitute transaction-based compensation. 
Intermediaries receiving those payments should consider whether they 
need to register as broker-dealers under section 15 of the Exchange 
Act.
    \168\ Proposed Item 4.C.2. of Form CRS. We recognize that, in 
some cases, the amount paid to the advisory firm and the financial 
professional can vary based on the type of investment selected 
(e.g., advisory firms and financial professionals may recommend 
certain mutual funds that pay the adviser or the financial 
professional 12b-1 fees out of fund assets).
    \169\ Id.
    \170\ Proposed Item 4.C.2. of Form CRS. Investment advisers that 
offer retail investors advisory accounts sometimes charge fees that 
are not ongoing, asset based fees. A financial planner, for example, 
sometimes charges a one-time fixed fee to prepare a plan.
---------------------------------------------------------------------------

    These requirements are consistent with the current fee disclosure 
requirements for the Form ADV brochure and how investment advisers 
typically describe asset-based fees, and we believe that retail 
investors would find this type of disclosure helpful.\171\ We are not 
proposing to require that investment advisers provide the range of 
fees, as ranges an investment adviser charges can vary based on a 
number of factors individual to the retail investor and the services 
they choose. Additionally, although we do not believe that ranges for 
investment advisers' asset based fees vary as much as broker-dealers' 
transaction-based fees, we recognize that requiring firms to provide a 
fee range for advisory accounts and not brokerage accounts could cause 
confusion among retail investors and be of limited benefit when 
comparing advisory and brokerage services. However, we recognize that 
providing such a range could promote comparability between different 
advisers, and we request comment below on whether we should require 
disclosure of the adviser's range of principal fees charged.
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    \171\ As discussed above, when completing Form CRS, investment 
advisers should generally consider achieving consistency with the 
type(s) of fee(s) that the investment adviser reports on Item 5.E. 
of Form ADV Part 1A. See supra note 126.
---------------------------------------------------------------------------

    An investment adviser that provides advice to retail investors 
about investing in a wrap fee program would be required to include 
specified language about the program fees.\172\ A ``wrap fee program'' 
would be defined as an advisory program that charges a specified fee 
not based directly upon transactions in the account for investment 
advisory services and the execution of transactions.\173\ The advisory 
services may include portfolio management or advice concerning 
selection of other advisers.\174\ An

[[Page 21435]]

investment adviser that provides advice to retail investors about 
investing in a wrap fee program and does not also offer another type of 
advisory account would be required to include the following (emphasis 
required): ``We offer advisory account programs called wrap fee 
programs. In a wrap fee program, the asset-based fee will include most 
transaction costs and fees to a broker-dealer or bank that will hold 
your assets (known as ``custody''), and as a result wrap fees are 
typically higher than non-wrap advisory fees.'' \175\ An investment 
adviser that provides advice about investing in a wrap fee program and 
offers another type of advisory account would be required to include 
similar prescribed wording, modified as applicable to reflect that the 
adviser also offers other types of advisory accounts.\176\
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    \172\ Proposed Items 4.C.3., 4.C.6., 4.C.9. and 4.C.10. of Form 
CRS. We also refer to these types of investment advisers as 
``client-facing firms.''
    \173\ Proposed General Instruction 9.(g) to Form CRS. This 
proposed definition is identical to the definition already used in 
Form ADV.
    \174\ Proposed General Instruction 9.(g) to Form CRS.
    \175\ Proposed Item 4.C.3. of Form CRS. The asset-based fee in a 
wrap program does not always include all transaction costs. For 
example, in some cases retail investors pay mark-ups, mark-downs, or 
spreads, and mutual fund fees and expenses in addition to the wrap 
fee program's asset-based fee. In addition, as discussed below, an 
investment adviser may select a broker-dealer outside of the wrap 
fee program to execute certain trades in a retail investor's 
account--a practice sometimes referred to as ``trading away''--that 
results in the retail investor's account incurring separate 
brokerage fees. See infra note 187 and accompanying text.
    \176\ Such investment advisers would be required to include the 
following (emphasis required): ``For some advisory accounts, known 
as wrap fee programs, the asset-based fee will include most 
transaction costs and custody services, and as a result wrap fees 
are typically higher than non-wrap advisory fees.'' Proposed Item 
4.C.3. of Form CRS.
---------------------------------------------------------------------------

    Many retail investors participate in wrap fee programs.\177\ We 
believe that retail investors would benefit from receiving information 
about certain characteristics of wrap fee programs, particularly with 
respect to their fees. Requiring investment advisers to describe the 
asset-based fee, what it includes, and that it is typically higher than 
non-wrap advisory fees would help a retail investor to distinguish wrap 
fee programs from other types of advisory accounts that charge or incur 
separate transaction fees.
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    \177\ Based on IARD data as of December 31, 2017, of the 12,667 
SEC-registered investment advisers, 1,035 (8.17%) sponsor a wrap fee 
program, and 1,597 (12.61%) act as a portfolio manager for one or 
more wrap fee programs.
---------------------------------------------------------------------------

    Next, investment advisers would be required to state that some 
investments impose additional fees that will reduce the value of a 
retail investor's investment over time, and provide examples of such 
investments that the firm offers to retail investors.\178\ Investment 
advisers also would state that a retail investor could be required to 
pay fees when certain investments are sold, for example, surrender 
charges for selling variable annuities.\179\ These proposed 
requirements are identical to the disclosure that broker-dealers would 
provide.\180\
---------------------------------------------------------------------------

    \178\ Proposed Item 4.C.4 of Form CRS. See supra notes 151-155 
and accompanying text for a discussion of this requirement 
applicable to both investment advisers and broker-dealers.
    \179\ Proposed Item 4.C.4. of Form CRS.
    \180\ See proposed Item 4.B.2.b. of Form CRS.
---------------------------------------------------------------------------

    In addition, investment advisers would be required to state whether 
or not the fees they charge retail investors for their advisory 
accounts vary and are negotiable.\181\ They would be required to 
describe the key factors that they believe would help a reasonable 
retail investor understand the fee that he or she is likely to pay for 
the firm's services.\182\ Such factors could include, for example, the 
services the retail investor receives and the amount of assets in the 
account. As discussed above with regard to broker-dealers, we believe 
investors would benefit from knowing at account opening whether they 
have the ability to negotiate the fees they pay.
---------------------------------------------------------------------------

    \181\ Proposed Item 4.C.5. of Form CRS.
    \182\ Id.
---------------------------------------------------------------------------

    Investment advisers would next be required to state, if applicable, 
that a retail investor will pay transaction-based fees when the firm 
buys and sells an investment for the retail investor (e.g., commissions 
paid to broker-dealers for buying or selling investments) in addition 
to the firm's principal fee it charges retail investors for the firm's 
advisory accounts.\183\ Investment advisers would also be required to 
state, if applicable, that a retail investor will pay fees to a broker-
dealer or bank that will hold the retail investor's assets and that 
this is called ``custody,'' and would be required to list other fees 
the retail investor will pay.\184\ Examples could include fees for 
account maintenance services. These other fees we are proposing to 
require firms to disclose are ones that we believe are among the most 
common or can have an impact on a retail investor's return.\185\ As 
discussed above, we believe that investors would benefit from being 
aware of the fees associated with an account that they will pay in 
addition to the principal fee that the firm charges retail investors 
for their brokerage or advisory account.
---------------------------------------------------------------------------

    \183\ Proposed Item 4.C.6. of Form CRS.
    \184\ Id.
    \185\ See, e.g., Advisers Act rule 204-3; Item 5 of Form ADV 
Part 2A (requiring each adviser to describe the types of other 
costs, such as brokerage, custody fees and fund expenses that 
clients may pay in connection with the advisory services provided to 
them by the adviser).
---------------------------------------------------------------------------

    An investment adviser that provides advice to retail investors 
about investing in a wrap fee program also would be required to state: 
``Although transaction fees are usually included in the wrap program 
fee, sometimes you will pay an additional transaction fee (for 
investments bought and sold outside the wrap fee program).'' \186\ The 
Commission is aware that wrap fee program portfolio managers employ, to 
varying degrees, ``trading away'' practices, in which they use a broker 
other than the sponsoring broker to execute trades for which a 
commission or other transaction-based fee is charged, in addition to 
the wrap fee, to the retail investor.\187\ The Commission has 
identified instances in which firms participating in wrap fee programs 
had poor disclosure about the overall cost of selecting a wrap fee 
program, including the effect of their trade away practices.\188\ We 
believe that investors would benefit from the relationship summary 
highlighting that, even in a wrap fee program, they sometimes will pay 
an additional transaction fee.
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    \186\ Proposed Item 4.C.7. of Form CRS.
    \187\ A wrap fee program portfolio manager may trade away 
because, for example, it believes that doing so will allow it to 
seek best execution of clients' transactions, as investment advisers 
have an obligation to seek best execution of clients' securities 
transactions where they have the responsibility to select broker-
dealers to execute client trades (typically in the case of 
discretionary accounts). See Advisers Act rule 206(3)-2(c) 
(referring to adviser's duty of best execution of client 
transactions). See also Commission Guidance Regarding Client 
Commission Practices Under Section 28(e) of the Securities Exchange 
Act of 1934, Exchange Act Release No. 54165 (Jul. 18, 2006) (stating 
that investment advisers have ``best execution obligations'') 
(``Release 54165''). See also Brochure Adopting Release at 9.
    \188\ The Commission has brought enforcement actions in these 
circumstances. See, e.g., In re Robert W. Baird, supra note 133; In 
re Raymond James, supra note 133; In the Matter of Riverfront 
Investment Group, LLC, Investment Advisers Act Release No. 4453 
(Jul. 14, 2016) (settled action); In the Matter of Stifel, Nicolaus 
& Company, Inc., Investment Advisers Act Release No. 4665 (Mar. 13, 
2017) (settled action).
---------------------------------------------------------------------------

    As with broker-dealers, investment advisers that charge an ongoing 
asset-based fee for advisory services would next be required to address 
the incentives they have to put their own interests ahead of their 
retail investors' interests based on the type of fee charged for 
investment advisory services.\189\ These advisers would be required to 
include the following statement: ``The more assets you have in the 
advisory account, including cash, the more you will pay us. We 
therefore have an incentive to increase the assets in your account in 
order to increase our fees. You pay our fee [insert frequency of fee 
(e.g., quarterly)] even if you do not

[[Page 21436]]

buy or sell,'' replacing the brackets with the frequency of their 
fee.\190\ Investment advisers that provide advice to retail investors 
about participating in a wrap fee program would, in addition, be 
required to include the following: ``Paying for a wrap fee program 
could cost more than separately paying for advice and for transactions 
if there are infrequent trades in your account.'' \191\ We are 
proposing to require prescribed wording to promote consistency and 
because we believe these particular incentives and considerations 
generally apply to all advisers that charge retail investors ongoing 
asset-based fees or provide advice about participating in a wrap fee 
program. While we are not proposing any prescribed language for other 
fee types, such as fixed fees, we request comment, below, on whether 
advisers that charge other types of fees for their advisory services 
have incentives to act in their own interest based on the type of fee 
charged, and whether we should require disclosure of such incentives.
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    \189\ Proposed Item 4.C.8. of Form CRS.
    \190\ Proposed Item 4.C.8. of Form CRS.
    \191\ Proposed Item 4.C.9. of Form CRS.
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    These disclosures would help retail investors understand how the 
fee structures for advisory accounts could affect their investments and 
the incentives that firms and financial professionals have to place 
their interests ahead of retail investors' interests. The disclosures 
for investment advisers that provide advice about investing in a wrap 
fee program also would help retail investors to understand that in 
certain circumstances a wrap fee would cost them more than separately 
paying for advice and for transactions in a different type of advisory 
account. Similarly, wrap fee sponsors that complete the Form ADV Wrap 
Fee Program Brochure are required to explain that the wrap fee program 
may cost the client more or less than purchasing such services 
separately and describe the factors that bear upon the relative cost of 
the program, such as the cost of the services if provided separately 
and the trading activity in the client's account.\192\ As with some of 
the proposed requirements described above, we are proposing to 
prescribe wording because we believe these particular considerations 
generally apply to any investment in a wrap fee program and would 
promote consistency. Also, as discussed above, we believe this 
disclosure would reinforce a key theme of the relationship summary, 
which is choice across account types and services.
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    \192\ See Item 4.B. of Form ADV Part 2A; Appendix 1 of Form ADV: 
Wrap Fee Program Brochure.
---------------------------------------------------------------------------

    Finally, dual registrants that charge ongoing asset-based fees for 
advisory accounts would be required to include the following with 
respect to their investment advisory services: ``An asset-based fee may 
cost more than a transaction-based fee, but you may prefer an asset-
based fee if you want continuing advice or want someone to make 
investment decisions for you.'' \193\ Dual registrants that provide 
advice to retail investors about investing in wrap fee programs would 
also be required to include the following with respect to wrap fee 
program accounts: ``You may prefer a wrap fee program if you prefer the 
certainty of a [insert frequency of the wrap fee (e.g., quarterly)] fee 
regardless of the number of transactions you have.'' \194\ We believe 
that these features--ongoing advice, discretion, standards of conduct, 
and, for wrap fee programs, certainty in pricing--distinguish advisory 
accounts and wrap fee programs from brokerage accounts. We also believe 
it is important to highlight how costs relate to the services 
included.\195\ We are proposing to prescribe wording because we believe 
these particular considerations generally apply to all advisory 
accounts and wrap fee programs, and using uniform wording would promote 
consistency. We believe these disclosures, in conjunction with the 
corresponding disclosure regarding broker-dealer accounts that would 
appear next to it for dual registrants, would help retail investors to 
compare the two types of services and combinations of those services 
and make an informed choice about the account type that is the right 
fit for them based on their goals and preferences.
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    \193\ Proposed Item 4.C.10. of Form CRS. Standalone investment 
advisers and standalone broker-dealers would also be required to 
include similar wording under the headings ``Compare with Typical 
Brokerage Based Accounts,'' and ``Compare with Typical Advisory 
Accounts,'' as applicable. Proposed Items 5.A.4 and 5.B.5. of Form 
CRS.
    \194\ Proposed Item 4.C.10. of Form CRS.
    \195\ We also propose to require dual registrants to include the 
following with respect to broker-dealer services: ``From a cost 
perspective, you may prefer a transaction-based fee if you do not 
trade often or if you plan to buy and hold investments for longer 
periods of time.'' See proposed Items 4.B.6. See also Items 5.A.4. 
and 5.B.5 of Form CRS (including similar disclosures to be made by 
standalone investment advisers and broker-dealers).
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    We request comment generally on the proposed fees and costs 
disclosures, and in particular on the following issues:
     Is the proposed disclosure discussing fees and expenses 
useful to investors?
     Do the proposed requirements encourage disclosure that is 
simple, clear and useful to retail investors? Would the proposed 
disclosure help investors to understand and compare the fees and costs 
associated with a firm's advisory services and brokerage services? Are 
there any revisions to the descriptions of fees that would make the 
proposed disclosure more useful to investors? Is it clear that retail 
investors would incur different costs for different types of accounts 
and advice services? Are there common assumptions or misconceptions 
regarding account fees and services that firms should be required to 
discuss, clarify, or address?
     Is the proposed order of the information appropriate, or 
should it be modified? If so, how should it be modified?
     Do the proposed requirements strike the right balance 
between requiring specific wording and allowing firms to draft their 
own responses? Why or why not? Should the Commission permit or require 
a more open-ended narrative or require more prescribed wording? Do the 
proposed Instructions cover the range of business models and fee 
structures that investment advisers and broker-dealers offer fully and 
accurately? Are there other fees that should be required to be 
disclosed for broker-dealers or investment advisers?
     Is the proposed format useful for retail investors to 
understand and compare fees and costs as between broker-dealers and 
investment advisers? Should we require further use of bullet points, 
tables, charts, graphs or other illustrative format? Should we require, 
as proposed, that dual registrants present the fee and cost information 
in a tabular format, comparing advisory services and brokerage services 
side-by-side, or permit other formats such as in a bulleted format?
     How would the required disclosures contribute to 
readability and length of the proposed relationship summary? Should 
each of these disclosures be required? Should any of these disclosures 
not be required but instead permitted? Should any of these disclosures 
be required to appear in the relationship summary, but outside the 
proposed summary of fees and costs?
     Should any additional disclosures about fees and costs be 
included for investment advisers? In particular, should we require any 
disclosures from an investment adviser's Form ADV Part 2A narrative 
brochure, such as more details about an investment adviser's fees? Some 
other disclosures about fees that are included in Form ADV Part 2A, but 
that we have not included in the proposed relationship summary, include 
an adviser's fee schedule; whether the adviser bills clients or

[[Page 21437]]

deducts fees directly from clients' accounts; and an explanation of how 
an adviser calculates and refunds prepaid fees when a client contract 
terminates (for an adviser charging fees in advance). Should we require 
some or all of such disclosures, or other disclosures about fees?
     Should we require or permit advisers to disclose whether 
they charge performance-based fees, which is a type of compensation 
investment advisers may charge to ``qualified clients,'' that is based 
on a share of capital gains on, or capital appreciation of, such 
clients' assets? \196\ Advisers are required to disclose their receipt 
of performance-based fees on Form ADV, and they provide an incentive 
for the adviser to take additional investment risks with the account.
---------------------------------------------------------------------------

    \196\ See Advisers Act rule 205-3.
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     Should we permit or require each firm to provide the range 
of its fees? If so, should broker-dealers be required to include a 
range for each type of transaction-based fee it charges or the 
aggregate range for all of the firm's transaction-based fees? Should 
investment advisers be required to include a range for each type of 
principal fee they charge retail investors for advisory services, or 
the aggregate range for all of its principal advisory fees? Do broker-
dealers and investment advisers currently compute or have the ability 
to compute such aggregated fee information? What factors determine the 
type or amount of fee that firms charge (e.g., for broker-dealers, such 
factors could include the: means of placing an order, such as online, 
by telephone or in person; type of account, such as full-service or 
discount brokerage, and; type of product)? Do commenters have 
suggestions for how best to convey one or more ranges in a space-
limited disclosure in light of the different fee structures? Are there 
other ways to give retail investors a better sense of the amount of 
fees they will pay without providing account-specific disclosures?
     Should we require firms to state whether their fees are 
``negotiable,'' as we have proposed? At firms that offer negotiable 
fees, are retail investors generally able to negotiate their fees, and 
if not, would they find this disclosure helpful or could it be 
confusing? Will firms be able to succinctly describe the key factors 
they believe would help a reasonable retail investor understand the fee 
that he or she is likely to pay for a firm's services (e.g., the size 
of the transaction, the type of investment purchased, and the type of 
account and services he or she receives)?
     Will any of the required disclosures be misleading or make 
it more difficult for investors to select the right type of account for 
them?
     Should we make the proposed relationship summary more 
personalized to individual retail investors, such as by requiring or 
permitting estimates for each retail investor, reflecting the fees and 
charges incurred for the retail investor's brokerage or advisory 
account? Is personalization feasible for this type of relationship 
summary disclosure? If so, what information should be included in the 
personalized fees and cost disclosure, and how should such information 
be presented? How would firms calculate those estimates? How often 
should we require firms to update the personalized fees and 
compensation disclosure, and how should the personalized fee disclosure 
updates be delivered or made available to retail investors? What would 
be the costs to firms to prepare and update personalized fee and 
compensation disclosures?
     Should we require firms to provide investors with 
personalized fee information in a different disclosure, such as an 
account statement? What would be the cost and benefits, including the 
costs of books and records requirements, of personalizing information 
to investors relative to the proposal? Do firms currently provide 
retail investors with personalized fee disclosure estimates at or 
before account opening? Do they provide personalized fee disclosures in 
periodic account statements? For firms that provide personalized fee 
disclosures, do they include all fees paid by the retail investor as 
well as compensation received by the firm and financial professionals, 
even if such compensation is not paid directly or indirectly by the 
retail investor, such as commissions, mark-ups, mark-downs, other fees 
embedded in the investment or fees from third parties? What other types 
of fee information do firms include? Do they automate such disclosures? 
How expensive and complex a process is creating and delivering such 
personalized fee disclosures?
     Should we require firms to state where retail investors 
can find personalized information about account fees and costs, such as 
on account statements and trade confirmations? What other source of 
such information might be available for prospective customers and 
clients? Should we require firms to include hyperlinks to fee and cost 
calculators on investor.gov?
     Should we require firms to provide an example showing how 
sample fees and charges apply to a hypothetical advisory account and a 
hypothetical brokerage account, as applicable? Should we require a more 
general example that shows the impact of hypothetical fees on an 
account? If so, what assumptions should we require firms to make in 
preparing such an example? For example, should we specify assumptions 
such as the kinds of assets that are most typical for a broker-dealer's 
customers, stated commission schedules, and aggregate third-party 
compensation? If the assumptions were standardized, would such examples 
be useful to the retail investor, whose circumstances may be different 
from the assumptions used or would they help give an investor a better 
idea about what kind of fees are being charged? Would such examples 
provide retail investors with a clear understanding of the application 
of ongoing asset-based, transaction-based and product-level fees to an 
account? Should we require one example for an advisory account and one 
example for a brokerage account? How should the information be 
presented (e.g., mandated graphical presentation)? Should we require 
firms to present more than one hypothetical example showing a range of 
fees instead (e.g., based on representative holdings or 
recommendations)? Should specific assumptions be included in 
calculating the hypothetical example? What disclosures would need to 
accompany the example? Should the example(s) track the effect of the 
fees over time, and if so, over what time period (e.g., over one, five 
and 10 years)? Or should firms describe the impact of different amounts 
or types of fees over a longer period of time, such as 20 years?
     Should firms be permitted or required to include in the 
relationship summary a detailed fee table or schedule? Should we permit 
or require firms to create a fee schedule as separate disclosure, and 
then include it as an attachment (or cross reference it with a website 
address and hyperlink) to the relationship summary? What should be 
included in such a fee table or schedule? Should it include 
compensation received by the firm and financial professionals, even if 
such compensation is not paid directly or indirectly by the retail 
investor, such as commissions or fees from third parties?
     Regarding fees related to funds and other investments that 
reduce the value of the investment over time, would the required 
disclosures by investment advisers and broker-dealers be clear and 
understandable to retail investors?

[[Page 21438]]

Should we, as proposed, permit firms to select their own example that 
they offer to retail investors? Are there other considerations related 
to fees for funds and other investments that we should require firms to 
highlight for retail investors? Would our proposed requirement that 
firms disclose the existence of such fees, along with examples of 
investments that impose such fees, adequately inform retail investors 
of these costs? Should we require an example showing how investment 
fees and expenses and other account fees and expenses may affect a 
retail investor's investment over time? Should we require a reference 
to such an example if available elsewhere (e.g., in mutual fund, ETF or 
variable annuity prospectuses)?
     Should firms describe the types of compensation they and 
their financial professionals receive from sources other than the 
retail investor in the description of their conflicts of interest, as 
we have proposed (for example, with respect to revenue sharing 
arrangements, such as payments for ``shelf space,'' i.e., product 
distribution by broker-dealers)? Or, should we require firms to state 
in the fees and costs section of the relationship summary that they and 
their financial professionals receive such compensation? If so, what 
types of additional compensation should we require firms to disclose in 
the summary of fees and costs? Should we require firms to disclose how 
the amount of fees received from retail investors relates to the amount 
of fees received from others in connection with recommendations or 
other services to those investors? Would such disclosure be confusing 
to retail investors? Should we require firms only to disclose which 
source of fees is greater or to provide a reasonable estimate of the 
relative magnitude of the categories of such fees (e.g., that on 
average for retail customers that the amount the firm receives from 
third parties is twice as much as the firm charges investors)?
     Should we require firms to state, as proposed, that a 
retail investor will also pay other fees in addition to the firm's 
principal fee for brokerage or advisory services, and to list such 
fees? Should we also require firms to state ranges for such fees?
     We are proposing disclosures that are intended to help 
retail investors understand how the principal types of fees firms 
charge for advisory and brokerage accounts affect the incentives of the 
firm and their financial professionals. Are these disclosures clear? Do 
they capture all incentives that broker-dealers or investment advisers 
may have from their fee structures? Are there other considerations 
related to fees and compensation that we should require firms to 
highlight for retail investors that are not captured here or elsewhere 
in the relationship summary? Should we require firms to include the 
prescribed wording, as proposed, or should we allow more flexibility in 
the words they use? Should we modify the prescribed wording? For 
example, should we expressly permit or require broker-dealers to modify 
the prescribed wording regarding their incentive to encourage retail 
investors to engage in transactions, to the extent they also receive 
compensation that might lower such incentive, such as asset-based 
compensation (e.g., rule 12b-1 fees, sub-transfer agent or other 
similar service fees)?
     For our prescribed wording for investment advisers 
regarding the adviser's incentive to increase the assets in a retail 
investor's advisory account, would different wording better reflect 
this incentive? Does the proposed wording capture the conflict of 
interest, or does the wording suggest that advisers will increase 
retail investors' assets by generating higher investment returns? 
Because many advisers do not charge ongoing asset-based fees as their 
principal fees for retail investor advisory accounts, and instead 
charge fixed fees, hourly fees, commissions or other types of fees, 
should we require these firms to state the incentives they have as a 
result of receiving such other types of fees? If so, what are the 
incentives that such firms have that are important for retail investors 
to understand and would be relevant to the relationship summary?
     These proposed disclosures about a firm's incentives can 
also be considered to involve conflicts, as they address the incentives 
that investment advisers and broker-dealers have as a result of 
receiving certain types of fees. Should we require this disclosure in 
the conflicts of interest disclosure instead of the summary of fees and 
costs? Should we require firms to include in the summary of fees and 
costs any other fee-related conflicts that we propose to include in the 
conflicts of interest disclosure, as discussed in Section II.B.6 below? 
Should we require firms to include other fee-related conflicts in these 
sections that are not included elsewhere in the relationship summary?
     Would our proposed disclosure for advisers and broker-
dealers, that retail investors may, in certain circumstances, prefer 
one type of fee over another, be useful to retail investors? Are these 
proposed disclosures clear? Do they adequately capture the typical 
circumstances in which retail investors would prefer one fee type over 
another? Are there other considerations related to fees and 
compensation that we should require or permit firms to highlight for 
retail investors that are not captured here or elsewhere in the 
relationship summary? Should we require firms to include the prescribed 
wording, as proposed, or should we allow more flexibility in the words 
they use? Should we modify the prescribed wording? Does the proposed 
prescribed wording capture the range of business models among 
investment advisers and broker-dealers? Would the prescribed wording 
require a firm to provide any inaccurate information given that 
particular firm's circumstances?
     Should we require firms to make disclosures about wrap fee 
programs, as proposed? Would the proposed disclosures help investors to 
understand the fees and costs associated with a wrap fee program as 
compared to unbundled advisory accounts and brokerage accounts? Would 
the proposed disclosures help retail investors to make informed choices 
about whether a wrap fee program suits their needs, as compared with 
unbundled investment advisory or brokerage services? If not, how could 
we revise it? Are there any revisions to the descriptions of wrap fee 
programs that would make the proposed disclosures more useful to 
investors?
     Are there other differences between wrap fee programs, 
unbundled advisory accounts, and brokerage accounts that we should 
require firms to include, such as other differences in fees and 
services? Would more or less information about wrap fee programs be 
helpful for retail investors? For instance, should we require firms to 
disclose information about the firms that participate in the wrap fee 
programs they recommend (e.g., the wrap fee program sponsors or 
managers), and any particular conflicts relevant to investors in wrap 
fee programs? Should we require more or less disclosure, or different 
disclosure, about the amount and frequency of additional transaction 
fees retail investors incur in wrap fee programs? Are there any 
elements of the proposed requirements that we should exclude? If so, 
why? Should any of the required disclosures be included in a different 
section of or an appendix to the relationship summary?
     Have we appropriately tailored the information required 
for advisers that provide advice about investing in both a wrap fee and 
a non-wrap fee program, and advisers that only provide advice about 
investing in a wrap fee program?

[[Page 21439]]

Should we require firms that provide advice about investing in both a 
wrap fee and a non-wrap fee program to prepare a separate relationship 
summary for the wrap fee program? Should we instead require firms to 
prepare an appendix with information about the wrap fee program, in 
addition to the relationship summary, as we do for the Form ADV 
brochure? If so, what types of information should we require firms to 
include about wrap fee programs in a separate relationship summary or 
appendix, and why should we require such disclosure?
     Should we require broker-dealers that sponsor wrap fee 
programs to include any additional disclosures about wrap fee programs, 
other than the disclosures that would be made by dual registrants?
     We understand that client-facing firms--or advisers that 
provide advice to retail investors about investing in wrap fee 
programs--are not necessarily the same firms that sponsor wrap fee 
programs (we define a wrap fee program sponsor in Form ADV General 
Instructions as a firm that sponsors, organizes, or administers the 
program or selects, or provides advice to clients regarding the 
selection of, other investment advisers in the program). Should we 
require each client-facing firm to include the proposed wrap fee 
disclosures in its relationship summary, even if the firm is not the 
wrap fee program sponsor, as proposed? Please describe how this 
information is currently provided to wrap fee program clients.
     Should we require only sponsors of wrap fee programs (and 
not all client-facing firms) to include the proposed wrap fee 
disclosures in the relationship summary, similar to the Form ADV wrap 
fee brochure delivery requirement, which requires only investment 
advisers that sponsor wrap fee programs to deliver to their wrap fee 
clients the Form ADV wrap fee brochure? If so, should we permit only 
one sponsor of a wrap fee program that has multiple sponsors to include 
the proposed wrap fee disclosures in the relationship summary, similar 
to the delivery requirements for the Form ADV wrap fee brochure?
     In addition to wrap fee programs, are there other types of 
retail investor programs and services for which it would be useful to 
require investment advisers and broker-dealers to disclose additional 
information about the nature and scope of services, fees and conflicts 
of interest? If so, which programs and services, and why should we 
require such disclosure?
     Are there any common misconceptions about broker-dealers' 
and investment advisers' compensation that the relationship summary 
should specifically seek to clarify or correct (e.g., that the firm or 
financial professional will only be compensated if the retail investor 
makes money on the investment)?
5. Comparisons
    We are proposing to require standalone investment advisers and 
standalone broker-dealers to prepare this section under the following 
headings: ``Compare with Typical Brokerage Accounts'' (for standalone 
investment advisers) or ``Compare with Typical Advisory Accounts'' (for 
standalone broker-dealers).\197\ Specifically, standalone broker-
dealers would include the following information about a generalized 
retail investment adviser: (i) The principal type of fee for investment 
advisory services; (ii) services investment advisers generally provide, 
(iii) advisers' standard of conduct; and (iv) certain incentives 
advisers have based on the investment adviser's asset-based fee 
structure.\198\ For investment advisers, this section would include 
parallel categories of information regarding broker-dealers.\199\
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    \197\ Proposed Items 5.A. and 5.B. of Form CRS. As discussed 
above, for purposes of the relationship summary, we propose to 
define a standalone investment adviser as a registered investment 
adviser that offers services to retail investors and (i) is not 
dually registered as a broker-dealer or (ii) is dually registered as 
a broker-dealer but does not offer services to retail investors as a 
broker-dealer. We propose to define a standalone broker-dealer as a 
registered broker-dealer that offers services to retail investors 
and (i) is not dually registered as an investment adviser or (ii) is 
dually registered as an investment adviser but does not offer 
services to retail investors as an investment adviser. Proposed 
General Instruction 9.(f) to Form CRS. See supra note 51. A dually 
registered firm that offers retail investors only advisory or 
brokerage services (but not both) may in the future decide to offer 
retail investors both services. We would expect a firm to update its 
relationship summary within 30 days whenever any information in the 
relationship summary becomes materially inaccurate. See proposed 
General Instruction 6.(a). to Form CRS and infra note 350 and 
accompanying text. In addition, the firm would communicate the 
information in its amended relationship summary to retail investors 
who are existing clients or customers of the firm within 30 days 
after the updates are required to be made and without charge. See 
proposed General Instruction 6.(b) to Form CRS and infra note 354 
and accompanying text.
    \198\ Proposed Item 5.B. of Form CRS.
    \199\ Proposed Item 5.A. of Form CRS.
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    We are proposing to require these disclosures to help retail 
investors choose among different account types and services. Having a 
clear explanation of differences in the fees, scope of services, 
standard of conduct, and incentives that are generally relevant to 
advisory and brokerage accounts would help retail investors that are 
considering one such type of relationship to compare whether their 
needs might be better met with the other type of relationship. In 
addition, we are proposing to prescribe wording in this section because 
it is intended to provide a general comparison of what we believe is a 
typical brokerage or investment adviser account that is offered to 
retail investors. Moreover, we believe prescribing language will 
promote uniformity and allow retail investors to receive the same 
information to use in comparing choices from different standalone 
firms.
    Standalone investment advisers would be required to include the 
following prescribed language (emphasis required): ``You could also 
open a brokerage account with a broker-dealer, where you will pay a 
transaction-based fee, generally referred to as a commission, when the 
broker-dealer buys or sells an investment for you.'' \200\ They would 
be required to include prescribed statements in bullet point format 
(except as otherwise specified) under the lead-in ``Features of a 
typical brokerage account include:'' \201\ First, there would be a 
general description of brokerage accounts: ``With a broker-dealer, you 
may select investments or the broker-dealer may recommend investments 
for your account, but the ultimate decision as to your investment 
strategy and the purchase and sale of investments will be yours.'' 
\202\ This statement would highlight for the retail investor two 
aspects of a typical broker-dealer's services that differ from that of 
an investment adviser--specifically, that an investor may select 
investments without advice or he or she may receive recommendations 
from the broker-dealer, and that the investor will make the ultimate 
investment decision.
---------------------------------------------------------------------------

    \200\ Id.
    \201\ Id.
    \202\ Proposed Item 5.A.1. of Form CRS.
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    Standalone investment advisers would then include the following 
information about the standard of conduct applicable to broker-dealers: 
``A broker-dealer must act in your best interest and not place its 
interests ahead of yours when the broker-dealer recommends an 
investment or an investment strategy involving securities. When a 
broker-dealer provides any service to you, the broker-dealer must treat 
you fairly and comply with a number of specific obligations. Unless you 
and the broker-dealer agree otherwise, the broker-dealer is not

[[Page 21440]]

required to monitor your portfolio or investments on an ongoing 
basis.'' \203\ As discussed above in Section II.B.3, above, the 
applicable standard of conduct for financial professionals has been a 
source of confusion among retail investors. This statement would 
provide information to retail investors about the obligations of 
broker-dealers, including some differences from investment advisers' 
obligations so that they can consider this factor when determining 
whether brokerage services might better suit their needs.
---------------------------------------------------------------------------

    \203\ Proposed Item 5.A.2. of Form CRS.
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    Standalone investment advisers would then include the following 
statement discussing incentives created by a typical broker-dealer's 
fee: ``If you were to pay a transaction-based fee in a brokerage 
account, the more trades in your account, the more fees the broker-
dealer charges you. So it has an incentive to encourage you to trade 
often.'' \204\ This disclosure is substantially similar to the 
disclosure we propose a broker-dealer would be required to include in 
the ``Fees and Costs'' section of its relationship summary.\205\ As 
discussed above, we believe this information would help retail 
investors understand how the fee structures for brokerage accounts 
could affect their investments, which they could compare with the 
incentives advisers have based on their fee structure.\206\
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    \204\ Proposed Item 5.A.3. of Form CRS.
    \205\ See supra Section II.B.4.
    \206\ Id.
---------------------------------------------------------------------------

    Finally, a tabular chart would compare certain specified 
characteristics of a transaction-based fee and an ongoing asset-based 
fee side-by-side, set off by the wording ``You can receive advice in 
either type of account, but you may prefer paying:'' \207\ One column 
would include the following (emphasis required): ``a transaction-based 
fee from a cost perspective, if you do not trade often or if you plan 
to buy and hold investments for longer periods of time.'' \208\ The 
other column would include the following (emphasis required): ``an 
asset-based fee if you want continuing advice or want someone to make 
investment decisions for you, even though it may cost more than a 
transaction-based fee.'' \209\ This disclosure is substantially similar 
to the disclosure we propose that each dual registrant would include in 
the ``Fees and Costs'' section of its relationship summary.\210\ For 
the reasons discussed above, we are proposing this requirement to 
encourage choice across account types and services.\211\ We are also 
proposing that advisers include this information in the specified side-
by-side manner in order to promote comparisons between the relevant 
considerations for both types of relationships.
---------------------------------------------------------------------------

    \207\ Proposed Item 5.A.4. of Form CRS.
    \208\ Id.
    \209\ Id.
    \210\ See supra Section II.B.4.
    \211\ Id.
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    Standalone broker-dealers would be required to include the 
following prescribed language (emphasis required), which would 
highlight for the retail investor the different fee structure of many 
investment advisers: ``You could also open an advisory account with an 
investment adviser, where you will pay an ongoing asset-based fee that 
is based on the value of the cash and investments in your advisory 
account.'' \212\ Standalone broker-dealers would list prescribed 
statements describing certain differences from investment advisers in 
bullet point format (except as otherwise specified) under the lead-in 
``Features of a typical advisory account include:''.\213\ First, there 
would be a general description of investment advisory accounts as 
follows: ``Advisers provide advice on a regular basis. They discuss 
your investment goals, design with you a strategy to achieve your 
investment goals, and regularly monitor your account.'' \214\ The next 
bullet would highlight that investment advisers offer discretionary 
accounts and non-discretionary accounts by including the following 
(emphasis included): ``You can choose an account that allows the 
adviser to buy and sell investments in your account without asking you 
in advance (a ``discretionary account'') or the adviser may give you 
advice and you decide what investments to buy and sell (a ``non-
discretionary account'').'' \215\ Together, these statements would 
highlight for the retail investor two aspects of a typical investment 
adviser's services that differ from the typical services of a broker-
dealer--specifically, ongoing advice and monitoring and discretionary 
accounts.
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    \212\ Proposed Item 5.B. of Form CRS. We recognize that some 
investment advisers charge other types of fees for their advisory 
services, including fixed fees for one-time services such as 
financial planning. However, because asset-based fees are a common 
type of fee for advisory services, we think it would be useful for 
firms to describe asset-based fees in this section of the 
relationship summary for comparison with broker-dealers' 
transaction-based fees.
    \213\ Proposed Item 5.B. of Form CRS.
    \214\ Proposed Item 5.B.1. of Form CRS.
    \215\ Proposed Item 5.B.2. of Form CRS.
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    Standalone broker-dealers would then include the following 
disclosure about an investment adviser's standard of conduct: 
``Advisers are held to a fiduciary standard that covers the entire 
relationship. For example, advisers are required to monitor your 
portfolio, investment strategy and investments on an ongoing basis.'' 
\216\ As discussed above, the applicable standard of conduct for 
financial professionals has been a source of confusion among retail 
investors. This statement would provide information to retail investors 
about the obligations of investment advisers so that they can consider 
this factor when determining whether investment advisory services might 
better suit their needs.
---------------------------------------------------------------------------

    \216\ Proposed Item 5.B.3. of Form CRS.
---------------------------------------------------------------------------

    Standalone broker-dealers would then include the following 
disclosure about a typical investment advisory asset-based fee, as 
follows: ``If you were to pay an asset-based fee in an advisory 
account, you would pay the fee periodically, even if you do not buy or 
sell.'' \217\ They would also be required to include the following 
prescribed disclosure about hourly fees and one-time flat fees, which 
are common among investment advisers that offer financial planning 
services and other advisory services to retail investors: ``You may 
also choose to work with an investment adviser who provides investment 
advice for an hourly fee, or provides a financial plan for a one-time 
fee.'' \218\
---------------------------------------------------------------------------

    \217\ Proposed Item 5.B.4. of Form CRS.
    \218\ Id.
---------------------------------------------------------------------------

    The next statement would note certain incentives created by an 
investment adviser's ongoing asset-based fee. Broker-dealers would 
include the following: ``For an adviser that charges an asset-based 
fee, the more assets you have in an advisory account, including cash, 
the more you will pay the adviser. So the adviser has an incentive to 
increase the assets in your account in order to increase its fees.'' 
\219\ This statement is substantially similar to the disclosure an 
investment adviser would be required to include in the ``Fees and 
Costs'' section of its relationship summary.\220\ For the reasons 
discussed above, we believe this information would help retail 
investors understand how the principal fee structures for typical 
advisory accounts could affect their investments and the incentives 
financial professionals may have based on charging ongoing asset-based 
fees for investment advisory services. This proposed disclosure would 
encourage retail investors to compare these incentives with certain 
incentives broker-dealers have based on their fee structure, which 
broker-dealers

[[Page 21441]]

would describe under ``Fees and Costs.'' \221\
---------------------------------------------------------------------------

    \219\ Proposed Item 5.B.5. of Form CRS.
    \220\ See supra Section II.B.4.
    \221\ Id.
---------------------------------------------------------------------------

    Finally, standalone broker-dealers would be required to include the 
same tabular chart that standalone investment advisers would 
include.\222\ As discussed above, requiring this information side-by-
side would promote comparisons of typical advisory and brokerage 
relationships.
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    \222\ Proposed Item 5.B.6. of Form CRS.
---------------------------------------------------------------------------

    We request comment generally on the proposed comparison disclosures 
to be provided by standalone investment advisers and broker-dealers, 
and in particular on the following issues:
     Is it useful to require firms to include disclosures about 
services and fees they do not offer, so that investors know other 
choices are available and are better able to compare different types of 
firms?
     Is it clear from the headings that the information 
provided in this section describes a typical investment adviser and 
broker-dealer, and does not describe the circumstances of all 
investment advisers and broker-dealers? Why or why not? Should we 
modify the headings or provide additional information at the beginning 
of this section?
     Do the proposed requirements encourage disclosure that is 
simple, clear, and useful to retail investors? Would the proposed 
disclosure help investors to understand and compare the fees, services 
and standard of conduct associated with a firm's advisory services and 
brokerage services? Are there any revisions to the descriptions of 
fees, services, standard of conduct, and incentives that would make the 
proposed disclosure more useful to investors?
     Is the proposed order of the information appropriate, or 
should it be modified? If so, how should it be modified?
     Is the proposed disclosure about how often a typical 
advisory firm monitors retail investors' accounts useful to retail 
investors, given that different firms may view ``ongoing monitoring'' 
differently?
     Is the proposed format useful for retail investors to 
understand and compare fees, services, standard of conduct and 
incentives among broker-dealers and investment advisers? Should we 
permit or require further use of tables, charts, graphs or other 
graphics or text features?
     Should we require firms to include the prescribed wording, 
as proposed, or should we allow more flexibility in the words they use? 
Does the proposed prescribed wording capture the range of typical 
business models and fee structures that investment advisers and broker-
dealers offer? Would the prescribed wording require a firm to provide 
any inaccurate information given that particular firm's circumstances? 
If so, how should it be modified? Instead of the proposed prescriptive 
wording, should the Commission permit or require a more open-ended 
narrative?
     How would the required explanations and various 
disclosures contribute to readability and length of the proposed 
relationship summary? Should each of these explanations be required, 
permitted, or prohibited? Should any of these explanations be required 
to appear in the relationship summary, but outside the comparisons 
section?
     Are there other considerations related to investment 
advisers and broker-dealers that we should require or permit firms to 
highlight for retail investors? For example, should we require advisers 
to state that broker-dealers sometimes offer both full-service and 
discount brokerage accounts, and the differences between them, 
including fees? Are there any disclosures that we should omit?
     Is the proposed prescriptive wording describing the 
standard of conduct required for investment advisers and broker-dealers 
clear and useful to retail investors? Would the proposed disclosure 
help investors to understand the standard of conduct associated with a 
firm's advisory services and brokerage services? Should such disclosure 
be modified? If so, how should it be modified?
     Should we amend the proposed wording that describes the 
standard of conduct for broker-dealers to incorporate or refer to any 
fiduciary obligations that certain broker-dealers have under state law 
or other laws or regulations?
     Our proposal would require a standalone investment adviser 
to include prescribed disclosure about a broker-dealer's incentives 
based on a typical broker-dealer's principal fee structure, and vice 
versa. Should these disclosures be substantially similar to the 
disclosures we propose certain dual registrants to include, as 
proposed? \223\ Or should we modify these disclosures for firms that do 
not offer retail investors both brokerage and advisory services? If so, 
how should these disclosures be modified?
---------------------------------------------------------------------------

    \223\ See supra Section II.B.4.
---------------------------------------------------------------------------

     Our proposal would require a standalone investment adviser 
and a standalone broker-dealer to include prescribed disclosure that a 
retail investor may prefer one type of fee over another in certain 
circumstances. Should these disclosures be substantially similar to the 
disclosures we propose certain dual registrants to include, as 
proposed? Or should we modify these disclosures for firms that do not 
offer retail investors both brokerage and advisory services? If so, how 
should these disclosures be modified?
6. Conflicts of Interest
    We are proposing to require that investment advisers and broker-
dealers summarize their conflicts of interest related to certain 
financial incentives. Specifically, firms would be required to disclose 
conflicts relating to: (i) Financial incentives to offer to, or 
recommend that the retail investor invest in, certain investments 
because (a) they are issued, sponsored or managed by the firm or its 
affiliates, (b) third parties compensate the firm when it recommends or 
sells the investments, or (c) both; (ii) financial incentives to offer 
to, or recommend that the retail investor invest in, certain 
investments because the manager or sponsor of those investments or 
another third party (such as an intermediary) shares revenue it earns 
on those products with the firm; and (iii) the firm buying investments 
from and selling investments to a retail investor for the firm's own 
account (i.e., principal trading).\224\
---------------------------------------------------------------------------

    \224\ Proposed Item 6 of Form CRS. Studies have shown, for 
example, that for broker-dealers, the most frequently identified 
disclosures concerned issues of compensation--e.g., how clients 
compensate the firm, how other firms compensate it, and how 
employees are compensated. See, e.g., Rand Study, supra note 5, at 
xviii. We sometimes refer interchangeably to payments, compensation 
and benefits that firms and financial professionals receive. These 
terms are all meant to capture the various ways through which firms 
and financial professionals have financial incentives to favor a 
product, service, account type, investor, or provider over another.
---------------------------------------------------------------------------

    Investment advisers, broker-dealers, and their financial 
professionals have incentives to put their interests ahead of the 
interests of their retail investor clients and customers. The federal 
securities laws do not preclude broker-dealers or investment advisers 
from having conflicts of interest that might adversely affect the 
objectivity of the advice they provide; however, firms and financial 
professionals have obligations regarding their conflicts. Investment 
advisers are required to eliminate, or, at a minimum, fully and fairly 
disclose conflicts of interest clearly enough for a client to make an 
informed decision to consent to such conflicts and practices,

[[Page 21442]]

or reject them.\225\ For broker-dealers, the federal securities laws 
and rules and self-regulatory organization rules address broker-dealer 
conflicts in one (or more) of the following ways: Express 
prohibitions,\226\ mitigation,\227\ or disclosure.\228\ Under 
Regulation Best Interest, broker-dealers would be required to 
establish, maintain and enforce written policies and procedures 
reasonably designed to identify and disclose and mitigate, or 
eliminate, material conflicts of interest arising from financial 
incentives associated with such recommendation,\229\ as well as to 
disclose, in writing, all material conflicts of interest that are 
associated with the recommendation.\230\
---------------------------------------------------------------------------

    \225\ See SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 
180, 194 (1963) (An adviser must deal fairly with clients and 
prospective clients, seek to avoid conflicts with its clients and, 
at a minimum, make full disclosure of any material conflict or 
potential conflict.); see also Instruction 3 of General Instructions 
to Part 2 of Form ADV. See Fiduciary Duty Interpretive Release, 
supra note 123.
    \226\ For example, FINRA rules establish restrictions on the use 
of non-cash compensation in connection with the sale and 
distribution of mutual funds, variable annuities, direct 
participation program securities, public offerings of debt and 
equity securities, and real estate investment trust programs. These 
rules generally limit the manner in which members can pay for or 
accept non-cash compensation and detail the types of non-cash 
compensation that are permissible. See FINRA Rules 2310, 2320, 2341, 
and 5110.
    \227\ See, e.g., FINRA Rule 3110(c)(3) (firm must have 
procedures to prevent the effectiveness of an internal inspection 
from being compromised due to conflicts of interest); FINRA Rule 
3110(b)(6)(C) (supervisory personnel generally cannot supervise 
their own activities); FINRA Rule 3110(b)(6)(D) (firm must have 
procedures reasonably designed to prevent the required supervisory 
system from being compromised due to conflicts of interest).
    \228\ For example, when engaging in transactions directly with 
customers on a principal basis, a broker-dealer violates Exchange 
Act rule 10b-5 when it knowingly or recklessly sells a security to a 
customer at a price not reasonably related to the prevailing market 
price and charges excessive mark-ups, without disclosing the fact to 
the customer. See, e.g., Grandon v. Merrill Lynch & Co., 147 F.3d 
184, 189-90 (2d. Cir. 1998). See also Exchange Act rule 10b-10 
(requiring a broker-dealer effecting transactions in securities to 
provide written notice to the customer of certain information 
specific to the transaction at or before completion of the 
transaction, including the capacity in which the broker-dealer is 
acting (i.e., agent or principal) and any third party remuneration 
it has received or will receive.
    \229\ Broker-dealers would also be required to establish, 
maintain, and enforce written policies and procedures reasonably 
designed to identify and at a minimum disclose, or eliminate, all 
material conflicts of interest that are associated with such 
recommendation. See Regulation Best Interest Proposal, supra note 
24, section II.D.3.
    \230\ See Regulation Best Interest Proposal, supra note 24, 
section II.D.1.
---------------------------------------------------------------------------

    Conflicts of interest with retail investors often arise when firms 
and/or their financial professionals recommend or sell proprietary 
products or products offered by third parties, recommend products that 
have revenue sharing arrangements, and engage in principal 
trading.\231\ For example, a firm could have a financial incentive to 
recommend proprietary products because the firm (or its affiliate) 
would receive additional revenue or an affiliate could pay a firm for 
recommending affiliate products. A broker-dealer making a platform 
available for self-directed transactions may select investments 
available for purchase on the platform based on financial incentives 
the broker-dealer receives. Similarly, a financial professional could 
be paid for recommending affiliated products or could get a bonus or 
greater promotion potential for recommending certain investments.\232\ 
These conflicts create an incentive for firms and their financial 
professionals to make available for sale or base investment 
recommendations on the compensation or profit that firms will receive, 
rather than on the client's best interests.\233\ The Commission's 
enforcement actions underscore how these types of compensation 
arrangements and activities may produce conflicts of interest that can 
lead firms and their financial professionals to act in their own 
interests, rather than the interests of their retail investors.\234\
---------------------------------------------------------------------------

    \231\ See, e.g., Rand Study, supra note 5, at 13 (``Examples of 
such conflicts include various practices in which an adviser may 
have pecuniary interest (through, e.g., fees or profits generated in 
another commercial relationship, finder's fees, outside commissions 
or bonuses) in recommending a transaction to a client.'') and 15 
(noting that the formation of the Committee on Compensation 
Practices was, in part, motivated by concerns that commission-based 
compensation may encourage registered representatives to churn 
accounts or make unsuitable recommendations).
    \232\ Jason Zweig & Anne Tergesen, Advisers at Leading Discount 
Brokers Win Bonuses to Push Higher-Priced Products, Wall Street 
Journal (Jan. 10, 2018), available at https://www.wsj.com/articles/advisers-at-leading-discount-brokers-win-bonuses-to-push-higher-priced-products-1515604130.
    \233\ See, e.g., Brochure Adopting Release, supra note 157, at 
n.62 and accompanying text and n.132; Report of the Committee on 
Compensation Practices (Apr. 10, 1995), at 3, available at https://www.sec.gov/news/studies/bkrcomp.txt (``The prevailing commission-
based compensation system inevitably leads to conflicts of interest 
among the parties involved.''). See also FINRA Report on Conflicts 
of Interest (Oct. 2013), available at https://www.finra.org/sites/default/files/Industry/p359971.pdf (discussing conflicts of interest 
in the broker-dealer industry and highlighting effective conflicts 
management practices); SEC v. Capital Gains Research Bureau Inc., 
375 U.S. at 191, 196-97 (``The Investment Advisers Act of 1940 thus 
reflects a congressional recognition of the delicate fiduciary 
nature of an investment advisory relationship. . . . An investor 
seeking the advice of a registered investment adviser must, if the 
legislative purpose is to be served, be permitted to evaluate such 
overlapping motivations, through appropriate disclosure, in deciding 
whether the adviser is serving two masters or only one, especially 
if one happens to be economic self-interest.''); In the Matter of 
Feeley & Willcox Asset Management Corp., Investment Advisers Act 
Release No. 2143 (Jul. 10, 2003) (Commission opinion) (``It is the 
client, not the adviser, who is entitled to make the determination 
whether to waive the adviser's conflict. Of course, if the adviser 
does not disclose the conflict, the client has no opportunity to 
evaluate, much less waive, the conflict.'').
    \234\ See infra notes 243, 255, 256, 260 and 267, citing 
examples of where we have brought enforcement actions regarding 
conflicts of interest arising from one or more of the following 
categories of compensation practices and activities: the 
compensation of the firm's financial professionals; payments from 
others; incentives for selling the firm's own products, and 
principal trading.
---------------------------------------------------------------------------

    We are not proposing to require or permit the relationship summary 
disclosure to include specific information about all of the conflicts 
of interests that are or could be present in a firm's relationship with 
retail investors. For example, conflicts that can be applicable to 
investment advisers include using certain affiliated service 
providers,\235\ charging performance-based fees to some accounts but 
not others,\236\ personal trading by an adviser's personnel,\237\ 
receipt of soft dollar products and services provided by brokers in 
connection with client transactions,\238\ and voting client 
securities.\239\ Likewise, a broker-dealer

[[Page 21443]]

may have several conflicts of interest with its retail investors that 
we are not proposing to include in the relationship summary. These 
include, for example, a broker-dealer's incentive to favor its 
institutional customers over its retail customers when making available 
proprietary research or certain investment opportunities, such as 
widely anticipated initial public offerings, acting as a market maker 
for a recommended security, using certain service providers, or voting 
client securities.\240\ In addition, broker-dealers are subject to 
Exchange Act rules that require them to disclose in writing to the 
customer if they have any control, affiliation, or interest in a 
security they are offering or the issuer of such security.\241\
---------------------------------------------------------------------------

    \235\ Item 10.C. of Form ADV Part 2A. Item 10 requires an 
investment adviser to describe in its brochure material 
relationships or arrangements the adviser (or any of its management 
persons) has with related financial industry participants, any 
material conflicts of interest that these relationships or 
arrangements create, and how the adviser addresses the conflicts. 
The disclosure that Item 10 requires highlights for clients their 
adviser's other financial industry activities and affiliations that 
can create conflicts of interest and may impair the objectivity of 
the adviser's investment advice. See Brochure Adopting Release, 
supra note 157, at 29.
    \236\ Item 6 of Form ADV Part 2A. An adviser faces a variety of 
conflicts of interest that it is required to address in its Form ADV 
brochure, including that the adviser can potentially receive greater 
fees from its accounts having a performance-based compensation 
structure than from those accounts it charges a fee unrelated to 
performance (e.g., an asset-based fee). See Brochure Adopting 
Release, supra note 157, at n.64 and accompanying text; 2008 
Brochure Proposing Release, supra note 157, at n.51 and accompanying 
text.
    \237\ Items 11.C. and 11.D. of Form ADV Part 2A. For example, 
because of the information they have, advisers and broker-dealers 
and their personnel are in a position to abuse clients' positions 
by, for example, placing their own trades before or after client 
trades are executed in order to benefit from any price movements due 
to the clients' trades. An investment adviser is required to address 
this conflict in its Form ADV brochure. See Brochure Adopting 
Release, supra note 157, at n.83 and accompanying text.
    \238\ Item 12 of Form ADV Part 2A. Use of client commissions to 
pay for research and brokerage services presents money managers with 
significant conflicts of interest, and may give incentives for 
managers to disregard their best execution obligations when 
directing orders to obtain client commission services as well as to 
trade client securities inappropriately in order to earn credits for 
client commission services. See Brochure Adopting Release, supra 
note 157, at n.128 (citing Release 54165, supra note 187).
    \239\ Item 17 of Form ADV Part 2A. Each adviser must describe 
how the adviser addresses conflicts of interest when it votes 
securities pursuant to its proxy voting authority, as applicable. 
See Brochure Adopting Release, supra note 157, at n.172 and 
accompanying text.
    \240\ See 913 Study, supra note 3, at nn.251 and 254 and 
accompanying text (discussing that courts have found that broker-
dealers should have disclosed these conflicts).
    \241\ See Exchange Act rules 15c1-1, 15c1-5, and 15c1-6. 
Similarly, rule 15c1-6 requires written disclosure of the broker-
dealer's interest in a security it is offering at or before the 
completion of the transaction. Self-regulatory organizations require 
similar disclosures. See, e.g., FINRA Rules 2262 and 2269; and MSRB 
Rule G-22.
---------------------------------------------------------------------------

    It is important for firms to disclose information about each of 
these conflicts to retail investors; however, we believe that requiring 
an exhaustive discussion of all conflicts in the relationship summary 
would make the relationship summary too long for its intended purpose--
that is, focusing on key aspects of a firm and its services, as well as 
helping retail investors to make an informed choice between receiving 
the services of a broker-dealer or an investment adviser or among 
different broker-dealers or investment advisers. Since investment 
advisers already report conflicts of interest in Form ADV Part 2, a 
more exhaustive discussion of conflicts by investment advisers would be 
duplicative of certain disclosures provided in Form ADV Part 2, which 
is provided to clients of investment advisers, including retail 
investors.\242\ While we are not proposing to require such detailed 
disclosures for broker-dealers in the relationship summary, Regulation 
Best Interest would require broker-dealers to disclose, in writing, all 
material conflicts of interest that are associated with a 
recommendation to a retail customer.\243\
---------------------------------------------------------------------------

    \242\ For investment advisers, the Form ADV Part 2 brochure and 
the brochure supplement address many of the conflicts an adviser may 
have. Items in Part 2 of Form ADV may not address all conflicts an 
adviser may have, and may not identify all material disclosure that 
an adviser may be required to provide clients. As a result, 
delivering a brochure prepared under Form ADV's requirements may not 
fully satisfy an adviser's disclosure obligations under the Advisers 
Act. See Brochure Adopting Release, supra note 157, at n.7. Broker-
dealers also must make a variety of disclosures, but the extent, 
form and timing of the disclosures are different. See 913 Study, 
supra note 3, at 55--58. In accordance with the Instructions to Form 
CRS, if a relationship summary is posted on a firm's website or 
otherwise provided electronically, the firm must use hyperlinks for 
any document that is cross-referenced in the relationship summary if 
the document is available online. See proposed General Instruction 
1.(g) to Form CRS.
    \243\ See supra notes 229- 230 and accompanying text. When 
recommending a security, broker-dealers generally are liable under 
the antifraud provisions if they do not give ``honest and complete 
information'' or disclose any material adverse facts or material 
conflicts of interest, including any economic self-interest. See, 
e.g., De Kwiatkowski v. Bear, Stearns & Co., 306 F.3d 1293, 1302 (2d 
Cir. 2002); Chasins v. Smith, Barney & Co., 438 F.2d 1167, 1172 (2d 
Cir. 1970); In the Matter of Richmark Capital Corp., Exchange Act 
Release No. 48758 (Nov. 7, 2003) (Commission opinion) (``Release 
48758'') (``When a securities dealer recommends stock to a customer, 
it is not only obligated to avoid affirmative misstatements, but 
also must disclose material adverse facts of which it is aware. That 
includes disclosure of ``adverse interests'' such as ``economic self 
interest'' that could have influenced its recommendation.'') 
(citations omitted).
---------------------------------------------------------------------------

    We are proposing to require specific information about conflicts of 
interest related to financial incentives for recommending or selling 
proprietary products or products offered by third parties, and from 
revenue sharing arrangements. Such incentives could include, for 
example, the firm earning more money or the financial professional 
receiving compensation or other benefits, including an increase in 
compensation such as a bonus, when a retail investor invests in the 
product. Disclosure of these conflicts would highlight for retail 
investors that firms and financial professionals have financial 
incentives to place their own interests first when making investment 
recommendations. Including these disclosures prominently, in one place, 
at or before the start of a retail investor's relationship with a firm 
or financial professional would facilitate retail investors' 
understanding of the incentives that may be present throughout the 
course of the relationship. Retail investors also have indicated they 
find information about the sources and amount of compensation from 
third parties useful and relevant to making informed financial 
decisions before engaging a firm.\244\ In addition, a number of 
commenters responding to Chairman Clayton's Request for Comment 
suggested disclosure that would focus on incentives associated with the 
products and services offered and how associated persons are 
compensated.\245\
---------------------------------------------------------------------------

    \244\ See 917 Financial Literacy Study, supra note 20, at xxi. 
(``The most useful and relevant information that the online survey 
respondents indicated that they favored to make informed financial 
decisions before engaging a financial intermediary includes 
information about . . . [s]ources and amount of compensation that a 
financial intermediary may receive from third parties in connection 
with and [sic] investment transaction . . .'').
    \245\ See, e.g., SIFMA 2017 Letter; UBS 2017 Letter; ICI 2017 
Letter; State Farm 2017 Letter; IAA 2017 Letter; Bernardi Securities 
2017 Letter; Fidelity 2017 Letter.
---------------------------------------------------------------------------

    We are also proposing to require disclosures about conflicts 
relating to principal transactions. Commenters recognized the 
importance of principal trading, with appropriate safeguards, including 
disclosure.\246\ As we explain further below, we believe that investors 
should be aware of and understand this conflict at or before the start 
of the relationship.
---------------------------------------------------------------------------

    \246\ See, e.g., SIFMA 2017 Letter (recommending that a best 
interest standard of conduct for broker-dealers would not prohibit 
principal trading, provided that such transactions be accompanied by 
written disclosure and corresponding client consent); Wells Fargo 
2017 Letter. See also ICI 2017 Letter (recommending that a broker-
dealer would be able to engage in principal trading, subject to 
appropriate limitations, disclosure, and customer consent); Bernardi 
Securities 2017 Letter (recommending that any revised standard of 
conduct for broker-dealers permit principal transactions, and 
suggesting that firms could implement disclosures and policies and 
procedures to protect investors from the related potential 
conflicts).
---------------------------------------------------------------------------

    Specifically, we are proposing that firms use the heading 
``Conflicts of Interest'' under which a broker-dealer, investment 
adviser or dual registrant would describe three categories of 
conflicts, as applicable to the firm.\247\ To emphasize the importance 
of conflicts, broker-dealers would be required to state the following 
language after the heading: ``We benefit from our recommendations to 
you.'' \248\ Similarly, investment advisers would be required to state: 
``We benefit from the advisory services we provide you.'' \249\ Dual 
registrants would be required to state: ``We benefit from the services 
we provide you.'' \250\ If all or a portion of a conflict is not 
applicable to the firm's business, the firm should omit that conflict 
or portion thereof.\251\ If a conflict only applies to a dual 
registrant's brokerage accounts or investment advisory accounts, the 
firm would include that conflict in the applicable column.\252\
---------------------------------------------------------------------------

    \247\ Proposed Items 6.A. and 6.B. of Form CRS.
    \248\ Proposed Item 6.A. of Form CRS..
    \249\ Id.
    \250\ Id.
    \251\ Proposed Item 6.B. of Form CRS.
    \252\ Id.
---------------------------------------------------------------------------

    First, we propose that a firm be required to state, as applicable, 
that it has a financial incentive to offer or

[[Page 21444]]

recommend to the retail investor certain investments because: (a) They 
are issued, sponsored or managed by the firm or the firm's affiliates, 
(b) third parties compensate the firm when it recommends or sells the 
investments, or (c) both.\253\ The firm also would provide examples of 
such types of investments, and state if its financial professionals 
receive additional compensation if the retail investor buys these 
investments.\254\
---------------------------------------------------------------------------

    \253\ Proposed Item 6.B.1. of Form CRS. We are not prescribing 
the specific language that firms must use to discuss each of these 
conflicts, which would give firms some flexibility to structure 
their disclosure, particularly if they offer proprietary products 
and receive compensation from third parties.
    \254\ Proposed Items 6.B.1. of Form CRS.
---------------------------------------------------------------------------

    This conflict disclosure would highlight that a variety of 
financial incentives affects the incentives of the firm or its 
financial professional to offer or recommend certain investments to the 
retail investor.\255\ These financial incentives can range from cash 
and non-cash compensation that a firm or financial professional 
receives for selling those investments as well as less direct financial 
incentives. In particular, investors might not be aware that the firm 
or its affiliate offers proprietary products that provide a financial 
incentive to the firm to recommend those products, that a third party 
provides incentives for a firm to recommend investments, or that the 
firm's financial professional will receive additional compensation if 
the retail investor buys certain investments. We believe that requiring 
this disclosure is consistent with indications that retail investors 
find information about sources and amount of compensation that firms 
receive from third parties useful to make informed financial 
decisions.\256\ Additionally, we believe that it is important for firms 
to separately and explicitly disclose if the financial professionals 
benefit from these payments because these individuals are making the 
recommendations to the retail investors and their compensation is an 
incentive that could affect their advice.
---------------------------------------------------------------------------

    \255\ The Commission has brought enforcement actions against 
firms that the Commission alleged to have failed to disclose fees, 
such as referral fees, that financial professionals receive as a 
result of recommending certain investments to retail investors. See, 
e.g., In the Matter of Financial Design Associates, Inc. and Albert 
Coles Jr., Investment Advisers Act Release No. 2654 (Sept. 25, 2007) 
(settled action) (respondents failed to disclose to investment 
advisory clients payments received from a company in which clients 
were advised to invest); In the Matter of Energy Equities, Inc. and 
David G. Snow, Investment Advisers Act Release No. 1811 (Aug. 2, 
1999) (settled action) (respondents received finder's fees or other 
compensation from issuers, the securities of which were recommended 
to clients or prospective clients); Vernazza v. SEC, 327 F.3d 851 
(9th Cir. 2003).
    \256\ See 917 Financial Literacy Study, supra note 20, at xxi. 
The Commission's enforcement actions also have underscored how these 
types of compensation and benefits from third parties for 
recommending certain investments may produce conflicts of interest 
that lead firms and their financial professionals to favor those 
investments over others. See, e.g., In the Matter of the Robare 
Group, LTD., Investment Advisers Act Release No. 3907 (Sep. 2, 2014) 
(Commission opinion) (investment adviser failed to disclose 
compensation it received through agreements with a registered 
broker-dealer and conflicts arising from that compensation).
---------------------------------------------------------------------------

    We are also proposing to require examples of the types of 
investments associated with each of these conflicts (e.g., mutual funds 
and variable annuities) because we believe it would be helpful for 
investors to be aware of the types of products for which firms and 
financial professionals have these incentives.\257\ We considered 
whether to require a complete list of investments; however, we believe 
that a long list of the names of each of the affected products would 
not necessarily benefit investors or be helpful to them in their review 
of the firm's conflicts and could detract from the other information in 
the relationship summary.
---------------------------------------------------------------------------

    \257\ See proposed Items 6.B.1. of Form CRS.
---------------------------------------------------------------------------

    Next, we propose that firms disclose revenue sharing arrangements 
by stating that the firm has an incentive to offer or recommend the 
retail investor to invest in certain investments because the manager or 
sponsor of those investments or another third party (such as an 
intermediary) shares with the firm revenue it earns on those 
investments.\258\ The firm also would provide examples of such types of 
investments.\259\ This disclosure would highlight another type of 
compensation firms receive that affects their incentives to offer or 
recommend certain investments to the retail investor, and like the 
disclosures regarding proprietary products and third party payments, 
would provide retail investors with information about sources of 
compensation the firm receives from third parties.\260\ This 
requirement is intended to capture arrangements pursuant to which a 
firm receives payments or other benefits from third parties for 
recommending certain investments, including, for example, conflicts 
related to payment for distribution support or ongoing services from 
distributors or advisers of mutual funds, annuity products or other 
products. We are proposing that firms would be required to describe 
these and other conflicts of interest even if the compensation the firm 
receives is not shared with the firm's financial professionals, as the 
compensation can create incentives for the firm to promote certain 
investments over others. These types of distribution-related 
arrangements may give broker-dealers heightened incentives to market 
the shares of particular mutual funds, or particular classes of fund 
shares. Those incentives may be reflected in a broker-dealer's use of 
``preferred lists'' that explicitly favor the distribution of certain 
funds, or they may be reflected in other ways, including incentives or 
instructions that the broker-dealer provides to its managers or its 
salespersons.\261\
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    \258\ Proposed Item 6.B.2. of Form CRS.
    \259\ Id.
    \260\ The Commission has pursued enforcement actions against 
firms that the Commission alleged to have failed to disclose revenue 
sharing arrangements. See, e.g., In re Edward D. Jones & Co, 
Securities Act Release No. 8520 (Dec. 22, 2004) (broker-dealer 
violated antifraud provisions of Securities Act and Exchange Act by 
failing to disclose conflicts of interest arising from receipt of 
revenue sharing, directed brokerage payments and other payments from 
``preferred'' fund families that were exclusively promoted by 
broker-dealer); In re Morgan Stanley DW Inc., Securities Act Release 
No. 8339 (Nov. 17, 2003) (``Release 8339'') (broker-dealer violated 
antifraud provisions of Securities Act by failing to disclose 
special promotion of funds from fund families that paid revenue 
sharing and portfolio brokerage); In the Matter of KMS Financial 
Services, Inc., Investment Advisers Act Release No. 4730 (Jul. 19, 
2017) (dually-registered investment adviser and broker-dealer that 
failed, in its capacity as an investment adviser, to disclose to its 
advisory clients compensation it received from a third party broker-
dealer for certain investments it selected for its advisory 
clients); In the Matter of Voya Financial Advisors, Inc., Investment 
Advisers Act Release No. 4661 (Mar. 8, 2017) (registered investment 
adviser failed to disclose to its clients compensation it received 
through an arrangement with a third party broker-dealer and 
conflicts arising from that compensation).
    \261\ See, e.g., Release 8339, supra note 260.
---------------------------------------------------------------------------

    Finally, we propose that firms address principal trading by stating 
that the firm can buy investments from a retail investor, and sell 
investments to a retail investor, from its account (called ``acting as 
principal'').\262\ Firms must state that they can earn a profit on 
those trades, and disclose that the firm has an incentive to encourage 
the retail investor to trade with it.\263\ If this activity is part of 
the firm's investment advisory business, it must state that the retail 
investor's specific approval is required on each transaction.\264\
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    \262\ Proposed Item 6.B.3. of Form CRS.
    \263\ Id.
    \264\ Section 206(3) of the Advisers Act. Proposed Item 6.B.3. 
of Form CRS.
---------------------------------------------------------------------------

    While access to securities that are traded on a principal basis, 
such as certain types of municipal bonds, is important to many 
investors, principal trades by broker-dealers and investment advisers 
raise potential conflicts of

[[Page 21445]]

interest.\265\ Principal trading raises concerns because of the risks 
of price manipulation or the placing of unwanted securities into client 
accounts (i.e., ``dumping'').\266\ Under the Advisers Act, an adviser 
may not engage in a principal trade with an advisory client unless it 
discloses to the client in writing, before completion of the 
transaction, the capacity in which the adviser is acting, and obtains 
the consent of the client to the transaction.\267\ Broker-dealers also 
are subject to a number of requirements when they engage in principal 
transactions with customers, including disclosure of such capacity on 
the trade confirmation.\268\ There is no specific requirement for 
broker-dealers, however, to provide written disclosure prior to the 
trade or obtain consent for each principal transaction.\269\ Our 
proposal to require firms to disclose, if applicable, that they engage 
in principal transactions, and to summarize the conflict of interest 
raised by principal transactions, would not replace the disclosure and 
consent requirements under the Advisers Act or any other requirement, 
such as under the Exchange Act. Rather, our disclosure requirement 
would supplement such disclosures by alerting retail investors to this 
practice and the related conflicts of interest at the start of the 
relationship.
---------------------------------------------------------------------------

    \265\ See 913 Study, supra note 3, at 120.
    \266\ See id., at 118.
    \267\ Section 206(3) of the Advisers Act. See also Opinion of 
Director of Trading and Exchange Division interpreting the reference 
to ``the transaction'' to require separate disclosure and consent 
for each transaction. Investment Advisers Act Release No. 40 (Feb. 
5, 1945) (``[T]he requirements of written disclosure and of consent 
contained in this clause must be satisfied before the completion of 
each separate transaction. A blanket disclosure and consent in a 
general agreement between investment adviser and client would not 
suffice.''); 913 Study, supra note 3, at n.534 and accompanying 
text. An investment adviser must provide written disclosure to a 
client and obtain the client's consent at or prior to the completion 
of each transaction. 913 Study, supra note 3, at n.535 and 
accompanying text. See also, e.g., Release 3929, supra note 133; In 
the Matter of JSK Associates, et al., Investment Advisers Act 
Release No. 3175 (Mar. 14, 2011) (settled action).
    \268\ As an example of one such requirement, broker-dealers must 
disclose their capacity in the transactions (typically on the 
confirmation statement). See Exchange Act rule 10b-10.
    \269\ See 913 Study, supra note 3, at n.540 and accompanying 
text.
---------------------------------------------------------------------------

    We request comment generally on the conflicts of interest 
disclosures proposed to be included in the relationship summary, and in 
particular on the following issues:
     Do the proposed conflicts of interest disclosures 
encourage firms to provide information that is simple, clear, and 
useful to retail investors? Would the proposed disclosures help retail 
investors to compare the conflicts of interest associated with advisory 
services and brokerage services and the conflicts among firms? Does the 
relationship summary help retail investors understand that compensation 
to firms and financial professionals creates incentives that could 
impact the advice or recommendations that they provide? If not, should 
it do so and if so, what modifications should be made to the summary to 
address this concern?
     Should we require brief statements about particular 
conflicts of interest, as proposed, or should we require a more open-
ended narrative or more prescribed wording? Would an open-ended 
narrative permit firms to tailor the disclosure and describe all of the 
conflicts they believe retail investors should know? Or would firms 
seek to provide so much information about their conflicts that the 
proposed page limit (or equivalent limit in electronic format) would 
not provide enough space for all of the disclosures? How would the 
required explanations of various items contribute to the readability 
and length of the relationship summary?
     Our intent in using layered disclosure for conflicts 
(i.e., short summaries of certain types of conflicts of interest with 
information later in the relationship summary on where retail investors 
can find more information) is to highlight these conflicts and 
encourage retail investors to ask questions and seek more information 
about the firm's and its financial professionals' conflicts of 
interest. Do our proposed requirements achieve this goal? In light of 
our objective of keeping the relationship summary short, should we 
instead prescribe general language concerning the importance of 
understanding conflicts, while simply requiring cross-references to the 
relevant sections of Form ADV Part 2 brochure or brochure supplement 
(for investment advisers) and relevant disclosures typically included 
in account opening documents or websites (for broker-dealers)? Should 
we provide wording to encourage retail investors to ask questions about 
conflicts, including advising customers to go through all of the firm's 
and financial professional's conflicts with the financial professional? 
Are there other modifications or alternatives we should consider?
     Should we instead require firms to make the conflicts of 
interest disclosure more detailed, even if it results in a lengthier 
relationship summary?
     Are the proposed conflicts of interest disclosures too 
limited? Are there other types of conflicts we should include, such as 
additional disclosure currently required in the Form ADV Part 2 
brochure or brochure supplement (for investment advisers), or 
disclosure typically included in account opening documents or websites 
(for broker-dealers)? Should we, for example, require firms to describe 
all of their conflicts and how they address them, such as specific 
information about incentives to favor certain clients over others, 
agency cross-trades, relationships with certain clients, personal 
trading by personnel, soft dollar practices, directed brokerage, proxy 
voting practices, or acting as a market maker for a recommended 
security? Or should we require firms to list all of their conflicts and 
provide cross references to where additional information about each 
conflict can be found (i.e., cross referencing the relevant sections of 
Form ADV Part 2 and analogous broker-dealer disclosures)? Would this 
detract from the brevity of the disclosure? Is there another way to 
provide additional information about conflicts to retail investors in a 
way that would be meaningful to them and would facilitate their ability 
to obtain additional information?
     Are there certain types of investments that should be 
disclosed by firms as ones that the firm ``issues, sponsors, or 
manages?'' For example, should we require firms to disclose that any 
investment with a firm's name in the title is generally an investment 
that the firm issues, sponsors, or manages? If a firm uses a name other 
than its own name to market proprietary investments, should we require 
firms disclose such other names?
     Should we require firms to disclose whether they provide 
ancillary services to retail investors themselves or through their 
affiliates so that retail investors better understand that the firm has 
incentives to select its affiliates over third parties?
     With respect to the required disclosure regarding 
financial incentives a firm has to offer or recommend investment in 
certain investments because they are offered by the firm's affiliates, 
or third parties compensate the firm for selling their investments, or 
both, would firms understand what types of financial incentives would 
be covered by this item--and what would not be covered? Should the 
Commission provide additional guidance or instructions to clarify?
     Should we require firms to disclose that they use third-
party service providers that offer the firms or their financial 
professionals additional compensation? For example, some investment 
advisers select broker-

[[Page 21446]]

dealers to execute their clients' transactions that provide the adviser 
or financial professionals with compensation or other benefits, 
including in the form of client referrals. Should we highlight that 
compensation can be in the form of advisory client referrals?
     Firms would be required to provide examples of investments 
that firms have a financial incentive to offer. Are these requirements 
clear? Should we provide additional guidance? Should firms also be 
required to identify specific account types for which financial 
professionals receive incentives? Or should firms list all of their 
services or products that create the stated conflicts (or cross-
reference to such disclosure elsewhere)? Should additional information 
be provided in this section of the relationship summary or should it be 
provided in an attachment?
     Should firms explicitly state that other firms offer 
similar products that could be less expensive for the retail investor? 
Should we require firms to disclose if the firm engages in principal 
trading, as proposed, including that the firm can earn a profit on 
these trades and may have an incentive to encourage the retail investor 
to trade with the firm? Should we require investment advisers to state 
the retail investor's specific approval on each principal transaction 
is required? Are there additional disclosures that we should require 
for broker-dealers?
     Should we require firms to disclose any additional 
conflicts of interest related to the compensation of financial 
professionals? For example, should firms be required to include any 
specific conflicts related to financial professionals' outside business 
activities? Should we require firms to include additional disclosure on 
compensation that a financial professional receives from third parties, 
such as compensation that an investment adviser representative receives 
in his or her capacity as a registered representative of an unrelated 
broker-dealer?
     Should we allow firms to choose the order they present the 
conflicts? For example, should firms be permitted to base the order on 
the conflicts they believe are most relevant in their business, or is a 
standardized order preferable to increase the comparability of the 
disclosures among different firms? If a firm does not engage in any 
practices that would be required to be disclosed, should we permit or 
require a firm to state that it does not have that conflict, or should 
we require firms to say nothing, as proposed? Would it be confusing to 
investors if, as proposed, the order was prescribed but some firms omit 
certain conflicts because they do not have the particular conflict? 
Would such presentation lessen the ability to compare conflicts across 
firms?
     Is the proposed format useful for retail investors in 
understanding and comparing conflicts of interest among firms? Would 
the use of tables, charts, graphs or other graphics or text features be 
helpful in explaining all or any particular conflict? If so, how could 
firms structure that disclosure?
     Should any of the conflicts be required to appear in the 
relationship summary, but outside of the conflicts of interest section?
7. Additional Information
    We are proposing to require that firms include information on where 
retail investors can find more information about the firm's 
disciplinary events, services, fees, and conflicts, which facilitates 
the layered disclosure that the relationship summary provides.\270\ 
This section would be titled ``Additional Information'' and firms would 
include the following after the title: ``We encourage you to seek out 
additional information.'' First, firms would be required to state 
whether or not they or their financial professionals currently disclose 
or are currently required to disclose certain legal or disciplinary 
events to the Commission, self-regulatory organizations, state 
securities regulators or other jurisdictions, as applicable. We are 
including information about a firm's and its financial professionals' 
disciplinary information because this information may assist retail 
investors in evaluating the integrity of a firm and its financial 
professionals.\271\ For example, a prior disciplinary event could 
reflect upon the firm's integrity, affect the degree of trust and 
confidence a client would place in the firm, or impose limitations on 
the firm's activities.\272\ Knowledge of a firm's and financial 
professional's disciplinary history is among the most important items 
for retail investors when deciding whether to receive financial 
services from a particular firm, according to one study.\273\ 
Approximately 67.5% of the online survey respondents considered 
information about an adviser's disciplinary history to be absolutely 
essential, and about 20.0% deemed it important, but not essential.\274\ 
But despite its importance, many investors do not review this 
information prior to engaging a firm.\275\ A study also found that many 
retail investors would check the Investment Adviser Public Disclosure 
site (``IAPD'') for comparative information on investment advisers, 
including disciplinary history, if they were made aware of its 
existence.\276\ We believe that requiring firms to state the existence 
of

[[Page 21447]]

disciplinary events, provide specific questions for retail investors to 
ask, and provide information on where retail investors can find more 
information, would cause more retail investors to seek out this 
information and would make them better informed when they choose a firm 
and a financial professional.\277\
---------------------------------------------------------------------------

    \270\ See supra notes 37, 48-50 and 139-141 and accompanying 
text (regarding the use of layered disclosure and alternative 
approaches to presentation).
    \271\ See Brochure Adopting Release, supra note 157, at n.81 and 
accompanying text. See also Electronic Filing by Investment 
Advisers; Proposed Amendments to Form ADV, Investment Advisers Act 
Release No. 1862 (Apr. 5, 2000) [65 FR 20524 (Apr. 17, 2000)], at 
nn.148-149 and accompanying text (``2000 Brochure Proposing 
Release'') (``When assessing whether an adviser will fulfill its 
obligations to clients, an investor would likely give great weight 
to whether the adviser has met its fiduciary and other legal 
obligations in the past.''); Self-Regulatory Organizations; 
Financial Industry Regulatory Authority, Inc.; Order Approving a 
Proposed Rule Change to Amend FINRA Rule 8312 (FINRA BrokerCheck 
Disclosure) to Expand the Categories of Civil Judicial Disclosures 
Permanently Included in BrokerCheck, Release No. 34-71196 (Dec. 27, 
2013) [79 FR 417 (Jan. 3, 2014)] (``By making certain of this 
information publicly available, BrokerCheck, among other things, 
helps investors make informed choices about the individuals and 
firms with which they conduct business.'').
    \272\ See Brochure Adopting Release, supra note 157, at n.85.
    \273\ See 917 Financial Literacy Study, supra note 20, at nn.308 
and 498 and accompanying text (``When asked how important certain 
factors would be to them if they were to search for comparative 
information on investment advisers, the majority of online survey 
respondents identified the fees charged and the adviser's 
disciplinary history as the most important factors.'').
    \274\ Id.
    \275\ 917 Financial Literacy Study, supra note 20, at n.770 
(citing Applied Research Consulting LLC for FINRA Investor Education 
Foundation, Financial Capability in the United States: Initial 
Report of Research Findings from the 2009 National Survey (Dec. 1, 
2009), available at http://www.usfinancialcapability.org/downloads/NFCS_2009_Natl_Full_Report.pdf (``2009 National Survey Initial 
Report''), which revealed that only 15% of respondents claimed that 
they had checked a financial professional's background or 
credentials with a state or federal regulator, although the 
Commission notes that the study encompasses a wide group of 
advisors, such as debt counselors and tax professionals.). In 
addition, the FINRA 2015 Investor Survey found that only 24% of 
investors were aware of Investor.gov; only 16% were aware of 
BrokerCheck; only 14% were aware of the IAPD website, and only 7% 
had used BrokerCheck. FINRA, Investors in the United States 2016 
(Dec. 2016), available at http://www.usfinancialcapability.org/downloads/NFCS_2015_Inv_Survey_Full_Report.pdf).
    \276\ See 917 Financial Literacy Study, supra note 20, at 
nn.317-319 and accompanying text ([A]bout 76.5% of the online survey 
respondents reported that, in selecting their current adviser, they 
did not use an SEC-sponsored website to find information about the 
adviser. 73% of respondents stated that they would check IAPD if 
they were made aware of its existence. Of that subset--those who 
reported not using an SEC-sponsored website--approximately 85.2% 
indicated that they did not know that such a website was available 
for that purpose. Of that majority (i.e., a further subset)--those 
who were unaware of such a website--approximately 73.5% reported 
that they would review information about their adviser on an SEC-
sponsored website if they knew it were available).
    \277\ In addition, this would address an issue that was 
highlighted by the Commission's Investor Advisory Committee, which, 
among other things, encouraged the Commission to develop an enhanced 
approach to the disclosure of disciplinary events. Broker-Dealer 
Fiduciary Duty Recommendations, supra note 10 (recommending a 
summary disclosure document that includes, among other disclosures, 
basic information about a firm's disciplinary record).
---------------------------------------------------------------------------

    Specifically, in the relationship summary, firms would state ``We 
have legal and disciplinary events'' if they are required to disclose 
(i) disciplinary information per Item 11 of Part 1A or Item 9 of Part 
2A of Form ADV,\278\ or (ii) legal or disciplinary events per Items 
11A-K of Form BD (``Uniform Application for Broker-Dealer 
Registration'') \279\ except to the extent such information is not 
released through BrokerCheck pursuant to FINRA Rule 8312 or in 
IAPD.\280\ Regarding their financial professionals, firms would 
determine whether they need to include the statement based on legal and 
disciplinary information on Form U4,\281\ Form U5 \282\ and Form 
U6.\283\ In particular, firms would be required to state, ``We have 
legal and disciplinary events'' if they have financial professionals 
for whom disciplinary events are reported per Items 14 A-M on Form U4, 
Items 7(a) and 7(c)-(f) on Form U5,\284\ and Form U6 except to the 
extent such information is not released through BrokerCheck pursuant to 
FINRA Rule 8312 or in IAPD.\285\
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    \278\ Proposed Item 7.B. of Form CRS. Generally, investment 
advisers are required to disclose on Form ADV Part 2A any legal or 
disciplinary event, including pending or resolved criminal, civil 
and regulatory actions, if it occurred in the previous 10 years, 
that is material to a client's (or prospective client's) evaluation 
of the integrity of the adviser or its management personnel, and 
include events of the firm and its personnel. See Brochure Adopting 
Release, supra note 157, at 22-27. Items 9.A., 9.B., and 9.C. 
provide a list of disciplinary events that are presumptively 
material if they occurred in the previous 10 years. However, Item 9 
requires that disciplinary events more than 10 years old be 
disclosed if the event is so serious that it remains material to a 
client's or prospective client's evaluation of the adviser and the 
integrity of its management.
    \279\ Item 11 of Form BD requires disclosure on the relevant 
Disclosure Reporting Page (``DRP'') with respect to: (A) felony 
convictions, guilty pleas, ``no contest'' pleas or charges in the 
past ten years; (B) investment-related misdemeanor convictions, 
guilty pleas, ``no contest'' pleas or charges in the past ten years; 
(C) certain SEC or the Commodity Futures Trading Commission (CFTC) 
findings, orders or other regulatory actions (D) other federal 
regulatory agency, state regulatory agency, or foreign financial 
regulatory authority findings, orders or other regulatory actions; 
(E) self-regulatory organization or commodity exchange findings or 
disciplinary actions; (F) revocation or suspension of certain 
authorizations; (G) current regulatory proceedings that could result 
in ``yes'' answers to items (C), (D) and (E) above; (H) domestic or 
foreign court investment-related injunctions, findings, settlements 
or related civil proceedings; (I) bankruptcy petitions or SIPC 
trustee appointment; (J) denial, pay out or revocation of a bond; 
and (K) unsatisfied judgments or liens. Some of these disclosures 
are only required if the relevant action occurred within the past 
ten years, while others must be disclosed if they occurred at any 
time.
    \280\ FINRA Rule 8312 governs the information FINRA releases to 
the public via BrokerCheck. FINRA established BrokerCheck in 1988 
(then known as the Public Disclosure Program) to provide the public 
with information on the professional background, business practices, 
and conduct of FINRA member firms and their associated natural 
persons. The information that FINRA releases to the public through 
BrokerCheck is derived from the CRD system, the securities industry 
online registration and licensing database. Firms, their associated 
natural persons and regulators report information to the CRD system 
via the uniform registration forms (Form U4 (Uniform Application for 
Securities Industry Registration or Transfer), Form U5 (Uniform 
Termination Notice for Securities Industry Registration), Form U6 
(Uniform Disciplinary Action Reporting Form), Form BD (Uniform 
Application for Broker-Dealer Registration), Form BDW (Uniform 
Request for Broker-Dealer Withdrawal), and Form BR (``Uniform Branch 
Office Registration Form'')). Under FINRA Rule 8312, FINRA limits 
the information that is released to BrokerCheck in certain respects. 
For example, pursuant to FINRA Rule 8312(d)(2), FINRA shall not 
release ``information reported on Registration Forms relating to 
regulatory investigations or proceedings if the reported regulatory 
investigation or proceeding was vacated or withdrawn by the 
instituting authority.'' We believe it is appropriate to limit 
disclosure in the relationship summary to disciplinary information 
or history that would be released to BrokerCheck.
    \281\ Form U4 (Uniform Application for Securities Industry 
Registration or Transfer) requires disclosure of registered 
representatives' criminal, regulatory, and civil actions similar to 
those reported on Form BD as well as certain customer-initiated 
complaints, arbitration, and civil litigation cases. See generally 
Form U4.
    \282\ Form U5 (Uniform Termination Notice for Securities 
Industry Registration) requires information about representatives' 
termination from their employers. See Form U5.
    \283\ Form U6 (Uniform Disciplinary Action Reporting Form) is 
used by SROs, regulators, and jurisdictions to report disciplinary 
actions against broker-dealers and associated persons. This form is 
also used by FINRA to report final arbitration awards against 
broker-dealers and associated persons. See Form U6.
    \284\ The disclosure would be triggered by reportable 
information on Items 7(a) and 7(c) through (f). Item 7(b) (Internal 
Review Disclosure) is not released to BrokerCheck by FINRA, pursuant 
to FINRA Rule 8312(d)(3). As noted above (see supra note 280), we 
believe it is appropriate to limit disclosure in the relationship 
summary to disciplinary information or history that would be 
released to BrokerCheck.
    \285\ Proposed Item 7.B.3. of Form CRS.
---------------------------------------------------------------------------

    We considered requiring firms to provide additional details about 
the reported legal and disciplinary events of the firms and their 
financial professionals. For example, we could have proposed to require 
firms to include details about the type and number of the reported 
events. Broker-dealers and investment advisers do not report all of the 
same types of disciplinary events. We also considered whether to 
require firms to only discuss the types of disciplinary events that 
both broker-dealers and investment advisers report, require investment 
advisers to disclose complaints and other disciplinary events that only 
broker-dealers report, or create separate requirements to require firms 
to disclose certain types of events in the relationship summary without 
reference to information in other disclosures.
    We are not proposing to take any of these approaches because this 
is summary disclosure rather than a comprehensive discussion of a 
firm's legal and disciplinary history. We believe that for many firms, 
requiring additional information would include too much detail for 
short summary disclosure, and updating these details in the 
relationship summary on an ongoing basis would add significant costs 
without compensating benefit. The information already is required to be 
disclosed elsewhere, and the relationship summary as proposed would 
direct retail investors to those resources. We believe that requiring 
an affirmative statement that the firm and its financial professionals 
have reportable legal or disciplinary events, if applicable, will flag 
this important issue for retail investors and help them to determine 
whether they want additional information in other disclosures. By 
proposing to base the new disclosure on information that is already 
reported elsewhere and also to include details about where to find more 
information, we would give retail investors the tools to learn 
more.\286\ Furthermore, as discussed below, the statement encouraging 
retail investors to visit Investor.gov for more information would help 
retail investors to more easily learn additional details from the firms 
themselves and from their existing disclosures.\287\
---------------------------------------------------------------------------

    \286\ Proposed Item 7.D. of Form CRS.
    \287\ Id.
---------------------------------------------------------------------------

    Next, all firms would be required to include the following wording 
to highlight where retail investors can find more information about the 
disciplinary history of the firm and its financial professionals, 
whether or not the firm is required to state the existence of legal or 
disciplinary events in the relationship summary: ``Visit Investor.gov 
for a free and simple search tool to research our

[[Page 21448]]

firm and our financial professionals.'' \288\
---------------------------------------------------------------------------

    \288\ Proposed Item 7.C. of Form CRS.
---------------------------------------------------------------------------

    Retail investors would further benefit from understanding how to 
report problems and complaints to the firm and regulators. Accordingly, 
we propose to require that firms include the following wording next in 
this section:
    ``To report a problem to the SEC, visit Investor.gov or call the 
SEC's toll-free investor assistance line at (800) 732-0330. [To report 
a problem to FINRA, [ ].] If you have a problem with your investments, 
account or financial professional, contact us in writing at [insert 
your primary business address].\289\
---------------------------------------------------------------------------

    \289\ Proposed Item 7.D. of Form CRS.

Broker-dealers and dual registrants also would include the bracketed 
language regarding how to report a problem to FINRA. Firms would be 
required to review and update (if needed) the current telephone numbers 
for the SEC and FINRA at least annually.\290\
---------------------------------------------------------------------------

    \290\ Id.
---------------------------------------------------------------------------

    Firms would be required to state where the retail investor can find 
additional information about their brokerage and investment advisory 
services, as applicable. Broker-dealers would be required to direct 
retail investors to additional information about their brokers and 
services on BrokerCheck (https://brokercheck.finra.org), their firm 
websites (including a link to the portion of the website that provides 
up-to-date information for retail investors), and the retail investor's 
account agreement.\291\ Broker-dealers that do not have public websites 
would be required to state where retail investors can find up-to-date 
information.\292\
---------------------------------------------------------------------------

    \291\ Proposed Item 7.E.1. of Form CRS.
    \292\ Id.
---------------------------------------------------------------------------

    Investment advisers likewise would be required to direct retail 
investors to additional information in the firm's Form ADV Part 2 
brochure and any brochure supplement provided by a financial 
professional to the retail investor.\293\ If an adviser has a public 
website and maintains a current version of its firm brochure on the 
website, the firm would be required to provide the website 
address.\294\ If an adviser does not have a public website or does not 
maintain its current brochure on its public website, then the adviser 
would provide the IAPD website address (https://
adviserinfo.sec.gov).\295\
---------------------------------------------------------------------------

    \293\ Proposed Item 7.E.2. of Form CRS.
    \294\ Id.
    \295\ Id. SEC- and state-registered investment advisers are 
required to file their brochures and brochure amendments through the 
IARD system. See rules 203-1 and 204-1 of the Advisers Act and 
similar state rules. Members of the public can view an adviser's 
most recent Form ADV online at the IAPD website: 
www.adviserinfo.sec.gov.
---------------------------------------------------------------------------

    Unlike investment advisers, which deliver brochures and brochure 
supplements to clients, broker-dealers are not currently required to 
deliver to their retail investors written disclosures covering their 
services, fees, conflicts, and disciplinary history in one place.\296\ 
However, under Regulation Best Interest, broker-dealers would be 
required to disclose, in writing, the material facts relating to the 
scope and terms of the relationship with the retail customer including 
all material conflicts of interest that are associated with the 
recommendation.\297\ We understand that, under current practice, 
broker-dealers typically provide information about some or all of the 
categories of disclosure included in this relationship summary on their 
firm websites and in their account opening agreements. We recognize 
that the different disclosure requirements for investment advisers and 
broker-dealers may result in retail investors having access to more 
information about investment advisers on a particular topic as compared 
to information about broker-dealers and vice versa. We request comment 
on whether we should take additional steps to ensure that retail 
investors have access to a similar amount of additional information 
about each of the topics covered by the relationship summary, such as 
by requiring firms to include appendices or hyperlinks with specific 
information.
---------------------------------------------------------------------------

    \296\ Broker-dealers are required under certain circumstances, 
such as when effecting certain types of transactions, to disclose 
certain conflicts of interest to their customers in writing, in some 
cases at or before the time of the completion of the transaction. 
See, e.g., supra notes 228 and 241 and accompanying text. See also 
913 Study, supra note 3, at nn.256-259 and accompanying text; supra 
notes 230 and 243-243 and accompanying text (describing broker-
dealer obligations under proposed Regulation Best Interest).
    \297\ See Regulation Best Interest Proposal, supra note 24, at 
section II.D.1.
---------------------------------------------------------------------------

    We request comment generally on the disclosure about where to find 
additional information, and in particular on the following issues:
     Do commenters agree that it is important for retail 
investors to know of a firm and its financial professionals' legal and 
disciplinary events before entering into an agreement with a firm? Why 
or why not?
     Is including the disciplinary history disclosure in the 
additional information section sufficient to draw a retail investors' 
attention or encourage retail investors to ask follow-up questions on 
this topic?
     Would the proposed format with prescribed wording 
effectively communicate information about disciplinary events to retail 
investors? Or should we use a table with yes/no check boxes or another 
graphical format to describe this information, or should we permit a 
firm to state in its own words whether it has reported any events? What 
approach would permit easier comparison by retail investors across 
firms, including dual registrants?
     Would more detail about these events be more beneficial 
and easily understandable for retail investors? For example, should 
firms be required to provide background about the types of events that 
would trigger the disclosure (such as criminal, civil, and regulatory 
actions and, for broker-dealers and financial professionals, customer 
complaints, arbitrations and bankruptcies)? Should we require separate 
disclosures for firms and their financial professionals? Should we 
consider requiring a more specific list of the types of disciplinary 
events that firms and financial professionals report and require firms 
to state whether there are reported disclosures for each type? For 
example, should firms be required to state they have reported 
disclosures for criminal actions, civil actions and administrative 
proceedings, and for broker-dealers specifically, arbitrations and 
complaints? Should we instead require firms to disclose the total 
number of the legal and disciplinary events that are reported on Form 
BD, Form ADV, and/or Forms U4, U5, and U6, as applicable? Or should we 
require firms to report the total number of all reported criminal 
actions, civil actions, administrative proceedings, arbitrations, and 
complaints for them and their financial professionals, as applicable? 
Would this information be confusing for retail investors without more 
information about each reported event? If we do require this 
information, should we require firms to disclose the percentage of a 
firm's total financial professionals that have reported disciplinary 
events? As part of this approach, should we require a firm to disclose 
its total number of financial professionals to provide additional 
context for the percentage?
     Should we require firms to include specific wording 
directing retail investors to ask them questions about these events and 
to review more detailed disclosures by searching Investor.gov?
     Should firms be required or permitted to state that they 
do not currently have reportable legal and/or disciplinary events, if 
that is the case? Should we require firms to distinguish whether they 
or their financial professionals have reportable

[[Page 21449]]

disciplinary events, for example by stating ``Our firm has legal and 
disciplinary events'' or ``We have financial professionals who have 
legal and disciplinary events''?
     Do commenters agree with requiring disclosure if firms or 
financial professionals have reported legal and/or disciplinary events 
on Form BD, Forms U4, U5 or U6, and Form ADV, as applicable? Do 
commenters agree with the specific items on those forms that we have 
identified as triggering reportable events? Should we only require 
disclosure of the types of legal events that both broker-dealers and 
investment advisers report? For example, should we require all firms to 
disclose financial information, which broker-dealers are required to 
report pursuant to Items 11 (I, J, and K) on Form BD but investment 
advisers do not report? Or, in the alternative, should we exclude 
financial disclosures from a broker-dealer's reportable legal or 
disciplinary events? Do commenters agree that the legal or disciplinary 
events triggering disclosure on the relationship summary should be the 
same for financial professionals working for broker-dealers as for 
investment advisers? If not, why not?
     Do commenters agree that, for broker-dealers and financial 
professionals of broker-dealers and investment advisers, we should 
exclude information that is not released to BrokerCheck or IAPD 
pursuant to FINRA Rule 8312? BrokerCheck and IAPD include additional 
information, including summary information about certain arbitration 
awards against a financial professional, or against a firm in 
BrokerCheck, involving a securities or commodities dispute with a 
public customer. Although broker-dealers are not required to report 
arbitrations on Form BD, should we include arbitrations as reportable 
events in light of the BrokerCheck disclosures? If so, how would 
commenters suggest articulating the required disclosure?
     Pursuant to FINRA Rule 4530, broker-dealers are required 
to disclose certain information to FINRA that is not reported on Form 
BD (e.g., customer complaints and arbitrations). Should we include 
disclosures made to FINRA pursuant to FINRA Rule 4530 as reportable 
events? If so, should we require disclosure of similar events by 
investment advisers? Why or why not?
     Do commenters believe that stating whether a firm has 
legal and disciplinary events and then providing hyperlinks on where to 
find additional information is the correct approach? Should we 
explicitly require deep links? Why or why not? Do commenters believe 
that retail investors will check Investor.gov? Should we require firms 
to cross reference other sources of disciplinary information, including 
providing direct links to the IAPD or BrokerCheck? Why or why not?
     Rather than asking firms to identify whether they have 
legal and disciplinary events, should the relationship summary note 
that retail investors may want to consider this information and then 
encourage retail investors to ask their financial professional for more 
details and include cross references to where further information can 
be found? Why or why not? With respect to robo-advisers or broker-
dealers providing online services, will a financial professional be 
available to answer these types of questions? \298\
---------------------------------------------------------------------------

    \298\ Robo-advisers should also keep in mind the considerations 
set forth in the robo-adviser guidance update specifically as it 
relates to the substance and presentation of disclosures. See Robo-
Advisers, IM Guidance Update No. 2017-02 (Feb. 23, 2017), available 
at https://www.sec.gov/investment/im-guidance-2017-02.pdf.
---------------------------------------------------------------------------

     Should we adopt a definition of ``financial professional'' 
for purposes of this disclosure? If so, how would commenters suggest 
formulating the definition?
     Our intent in using layered disclosure, with short 
summaries of selected disclosures and information on where retail 
investors can find more information, is to encourage retail investors 
to ask questions and seek more information about the firm's and their 
financial professionals' services, fees, conflicts of interest and 
disciplinary events. Does the proposed relationship summary, in 
general, and this additional information section, in particular, 
achieve this goal? Are there modifications or alternatives we should 
consider to achieve this goal?
     In addition or as an alternative to the proposed cross 
references to an investment adviser's Form ADV brochure and brochure 
supplement(s) and account agreement, and to a broker-dealer's public 
website, account agreement and BrokerCheck, should the relationship 
summary direct retail investors to other sources of information? Should 
we require firms to include public website addresses and hyperlinks to 
the sources of additional information, if available? Do firms' websites 
typically include additional information about topics included in the 
relationship summary? Given that not all firms have a public website or 
maintain current information on a public website (e.g., its current 
brochure or other current information), are there other places to which 
firms should direct retail investors to look for up-to-date 
information? Should we require firms that do not already maintain a 
public website to establish one for purposes of making the relationship 
summary publicly available?
8. Key Questions
    We are proposing to require that firms include questions for retail 
investors to ask their financial professionals in the relationship 
summary. By requiring these questions, we intend to encourage retail 
investors to have conversations with their financial professionals 
about how the firm's services, fees, conflicts and disciplinary events 
affect them. We encourage financial professionals to engage in balanced 
and meaningful conversations with their retail investors to facilitate 
investors making informed decisions, using these key questions as a 
guide. Firms should use formatting to make the questions more 
noticeable and prominent (for example, by using a larger font, a text 
box, different font, or lines to offset the questions from the other 
sections).\299\ Firms would be required to include ten questions, as 
applicable to their particular business, under the heading ``Key 
Questions to Ask'' after stating the following: ``Ask our financial 
professionals these key questions about our investment services and 
accounts.'' The required questions would be:
---------------------------------------------------------------------------

    \299\ Proposed Item 8 of Form CRS.
---------------------------------------------------------------------------

    1. Given my financial situation, why should I choose an advisory 
account? Why should I choose a brokerage account?
    2. Do the math for me. How much would I pay per year for an 
advisory account? How much for a typical brokerage account? What would 
make those fees more or less? What services will I receive for those 
fees?
    3. What additional costs should I expect in connection with my 
account?
    4. Tell me how you and your firm make money in connection with my 
account. Do you or your firm receive any payments from anyone besides 
me in connection with my investments?
    5. What are the most common conflicts of interest in your advisory 
and brokerage accounts? Explain how you will address those conflicts 
when providing services to my account.
    6. How will you choose investments to recommend for my account?
    7. How often will you monitor my account's performance and offer 
investment advice?
    8. Do you or your firm have a disciplinary history? For what type 
of conduct?

[[Page 21450]]

    9. What is your relevant experience, including your licenses, 
education, and other qualifications? Please explain what the 
abbreviations in your licenses are and what they mean.
    10. Who is the primary contact person for my account, and is he or 
she a representative of an investment adviser or a broker-dealer? What 
can you tell me about his or her legal obligations to me? If I have 
concerns about how this person is treating me, who can I talk to? \300\
---------------------------------------------------------------------------

    \300\ Proposed Item 8 of Form CRS.
---------------------------------------------------------------------------

    We are proposing to allow firms to modify or omit portions of these 
questions, as applicable to their business.\301\ We are also proposing 
to require a standalone broker-dealer and a standalone investment 
adviser, to modify the questions to reflect the type of account they 
offer to retail investors (e.g., advisory or brokerage account).\302\ 
In addition, we are proposing that firms could include any other 
frequently asked questions they receive following these questions. 
Firms would not, however, be permitted to exceed fourteen questions in 
total in order to limit the length of the relationship summary.\303\
---------------------------------------------------------------------------

    \301\ Id.
    \302\ Id.
    \303\ Id.
---------------------------------------------------------------------------

    We recognize that advisers providing computer-generated, automated 
advice, often referred to as ``robo-advisers,'' and online-only broker-
dealers may employ business models that offer varying levels of 
interaction or no interaction with a financial professional. We are 
proposing to require advisers providing automated advice or broker-
dealers providing online-only services without a particular individual 
with whom a retail investor can discuss these questions to include a 
section or page on their website that answers each of the above 
questions, and provide a hyperlink in the relationship summary to that 
section or page.\304\ If the firm provides automated advice, but makes 
a financial professional available to discuss the existing account with 
a retail investor, that firm generally should also make the financial 
professional available to discuss these questions with the retail 
investor.
---------------------------------------------------------------------------

    \304\ Id.
---------------------------------------------------------------------------

    We believe that many of these questions would help retail investors 
to elicit more detail concerning the items discussed in the 
relationship summary. For example, the questions asking why an investor 
should choose an advisory or brokerage account and how much the 
investor can expect to pay are intended to help the retail investor 
receive information about services and fees that are tailored to that 
particular investor's circumstances. We believe that the financial 
professional generally would have access to the information needed to 
provide this information to a particular retail investor during the 
account opening process.\305\ Questions about how the financial 
professional and the firm make money and about conflicts of interest 
would assist investors in understanding the extent to which 
compensation creates incentives for a financial professional to take 
his or her own interests into account in providing services. Similarly, 
the last question in the list of questions, which asks about a retail 
investor's primary contact at the firm and that financial 
professional's legal obligations, is intended to elicit a conversation 
about the different legal obligations of firms and financial 
professionals acting in an investment advisory capacity and in a 
brokerage capacity. Other items allow the investor to learn more 
specific information about the firms and financial professional, such 
as additional conflicts the firms or its financial professionals might 
have or disciplinary history.
---------------------------------------------------------------------------

    \305\ See supra Section II.B.4, ``Summary of Fees and Costs.''
---------------------------------------------------------------------------

    The proposed questions cover all of the sections in the 
relationship summary. They also include one additional topic about the 
financial professional's relevant experience, including licenses and 
other qualifications. In our experience, the relevant experience, 
including licenses, education, and other qualifications for a 
particular financial professional are important to retail 
investors.\306\ However, if we required firms to disclose the 
educational and professional certifications of each financial 
professional, firms would have to attach a separate disclosure for each 
particular financial professional (similar to the Form ADV brochure 
supplement or the information about financial professionals provided on 
BrokerCheck and IAPD) or would have to include lengthy disclosure with 
information about all of their financial professionals. We believe this 
would be more burdensome than prompting retail investors to ask their 
financial professionals these questions to encourage a conversation 
about these topics, if such a conversation is important to that 
investor. We understand that including ``Key Questions to Ask'' would 
result in some firms creating policies and procedures, including 
supervision and compliance reviews, relating to how their financial 
professionals respond to the questions.
---------------------------------------------------------------------------

    \306\ See 917 Financial Literacy Study, supra note 20, at 24 
(``Some examples of information that commenters indicated should be 
included in a summary disclosure document for an investment product 
or service include descriptions of. . . any eligibility 
requirements.''); Brochure Adopting Release, supra note 157, at 
nn.213-216 and accompanying text (discussing commenters that 
supported the brochure supplement, which contains information about 
the educational background, business experience, and disciplinary 
history (if any) of the supervised persons who provide advisory 
services to the client).
---------------------------------------------------------------------------

    We request comment generally on the questions proposed to be 
included in the relationship summary, and in particular on the 
following issues:
     Would our proposed questions encourage discussions between 
retail investors and their financial professionals? Would they help 
retail investors become informed about how a firm's services, fees, 
conflicts, and disciplinary events affect them? Would they help 
investors to compare investment advisers and broker-dealers?
     Would financial professionals be able to answer these 
``Key Questions to Ask''? Do they have access to personalized 
information about the retail investor and the retail investor's account 
to be able to, for example, put together personalized fee information 
and estimates during the account opening process? To the extent 
responses would require information about the particular retail 
investor, would firms need to change the account opening process in 
order to obtain that information and provide responses?
     Should we require or permit firms to include these 
questions throughout the relationship summary rather than, or in 
addition to, including the questions in the ``Key Questions to Ask''? 
In our proposal, for example, the fees and costs section of the 
relationship summary directs retail investors to ask their financial 
professionals for personalized fee information. Are there other 
disclosures in the relationship summary for which we should require or 
permit firms to also include a question to ask as part of the 
disclosure? If so, which disclosures? Could firms use technology such 
as pop-ups or hovers, or internal links, to connect the relevant 
question(s) in the key questions to ask to the disclosure in the 
relationship summary?
     Would firms create policies and procedures, including 
supervision and compliance reviews, relating to how their financial 
professionals respond to these questions? Would implementing and 
maintaining such processes be burdensome or costly for firms? Why or 
why not? Do investment advisers and broker-dealers currently have 
systems in place to answer these questions, particularly the request to 
``do the math for me'' and provide not only fee

[[Page 21451]]

information related to the relationship and certain externalized fees, 
but also information about fees that are implicit to a given product?
     Do firms anticipate that they would implement 
recordkeeping policies and procedures to address communications between 
financial professionals and retail investors about the ``Key Questions 
to Ask''? What kind of recordkeeping policies and procedures would 
firms anticipate implementing in order to address such communications? 
Should we require financial professionals to highlight these key 
questions when they deliver a relationship summary to a retail 
investor? How could the questions be highlighted when the relationship 
summary is delivered electronically?
     Should we require financial professionals to initiate a 
conversation about these key questions if the retail investor does not 
raise these questions?
     Should we, as proposed, permit firms to omit any of the 
proposed questions that are not applicable to their business, and 
permit firms to add additional questions for retail investors to ask 
about the disclosures in their relationship summaries? For example, 
should robo-advisers and online broker-dealers be allowed to omit the 
questions concerning the financial professional's relevant experience 
and whether the investor's primary contact is an investment adviser or 
broker-dealer? Should we add questions specific to investment advisers 
offering automated advice, such as how the robo-adviser's models are 
designed, including the underlying assumptions?
     Should we include any additional questions in our proposed 
list of questions, or remove any proposed questions? If so, what 
additional questions should we add, and which questions should we 
remove, and why? For example, instead of including a question about a 
financial professional's licenses and other qualifications in this 
section, should we instead require firms to discuss information about 
licensing and other qualifications in the relationship summary, 
including educational background, designations held, and examinations 
passed? Should we add a question comparing services offered with 
financial planning and wrap fee programs?
     Do commenters agree that including a question about a 
financial professional's licenses and other qualifications would 
provide useful information to retail investors, given the expansive 
list of professional designations? Should we instead permit or require 
financial professionals to include a list of certain licenses or other 
qualifications in a separate disclosure and, if so, which designations 
should be included?
     We are proposing to permit firms to include up to fourteen 
questions. Do commenters agree with this approach? Should we allow 
firms to include more or fewer questions?
     We are proposing to require that robo-advisers and online-
only brokers include a section or page on their websites that answers 
each of these proposed questions, and include a hyperlink in the 
relationship summary to where the answers are posted. How will these 
advisers and broker-dealers be able to answer the fact specific 
questions in a generalized format on the website? Are there alternative 
ways in which such advisers or broker-dealers should be required to 
provide answers to these proposed questions? For example, should robo-
advisers use a chat or other message function, or answer questions by 
email? Would this work for robo-advisers that offer recommendations to 
retail investors without providing them any way to reach a financial 
professional at the firm? Should we require all advisers to include the 
responses to these questions on their websites, including robo-advisers 
that make available financial professionals to answer retail investors' 
questions?
     Should we require the order of the questions to be fixed? 
Does the proposed order advance our goal? What changes, if any, should 
be made to the proposed order? Should there be sub-categories of 
questions?

C. Delivery, Updating, and Filing Requirements

    Our proposal would require registered investment advisers, 
registered broker-dealers that serve retail customers and dual 
registrants to deliver a relationship summary.\307\ Delivery of the 
relationship summary would not necessarily relieve the firm of any 
other disclosure obligations it has to its retail investors or 
prospective retail investors under any federal or state laws or 
regulations.
---------------------------------------------------------------------------

    \307\ See Advisers Act proposed rule 204-5 and Exchange Act 
proposed rule 17a-14.
---------------------------------------------------------------------------

    The relationship summary requirement would be in addition to, and 
not in lieu of, current disclosure and reporting requirements or other 
obligations for broker-dealers and investment advisers.\308\ Broker-
dealers are liable under the antifraud provisions of the federal 
securities laws for failure to disclose material information to their 
customers when they have a duty to make such disclosure.\309\ When 
recommending a security, broker-dealers may be liable under the 
antifraud provisions if they do not give ``honest and complete 
information'' or disclose any material adverse facts or material 
conflicts of interest, including any economic self-interest.\310\ Among 
other specific disclosure obligations, broker-dealers are required to 
disclose certain potential conflicts to their customers under certain 
circumstances, such as disclosing at or before the time of the 
completion of the transaction whether the broker-dealer is acting as 
agent or principal, and its compensation and any third-party 
remuneration it has received or will receive.\311\ Broker-dealers 
typically provide information about their services, fees, and conflicts 
on their websites and in their account opening agreements. Disciplinary 
history on broker-dealers, details on the background, qualifications, 
and disciplinary history of financial professionals associated with 
broker-dealers, and customer complaints and arbitrations against them, 
are available on FINRA's BrokerCheck website.\312\
---------------------------------------------------------------------------

    \308\ For example, the relationship summary would not 
necessarily satisfy the disclosure requirements under proposed 
Regulation Best Interest. Regulation Best Interest would require 
broker-dealers to disclose in writing, before or at the time of a 
recommendation, the material facts related to the scope and terms of 
the relationship with the retail customer, including all material 
conflicts of interest that are associated with the recommendation. 
Regulation Best Interest Proposal, supra note 24, at section II.D.1 
(noting that the relationship summary would reflect initial layers 
of disclosure, and the disclosure obligation of proposed Regulation 
Best Interest would reflect more specific and additional, detailed 
layers of disclosure).
    \309\ See Basic v. Levinson, 485 U.S. 224, 239 n.17 (1988) 
(``Silence, absent a duty to disclose, is not misleading under Rule 
10b-5.''); Chiarella v. U.S., 445 U.S. 222, 228 (1980) (explaining 
that a failure to disclose material information is only fraudulent 
if there is a duty to make such disclosure arising out of ``a 
fiduciary or other similar relation of trust and confidence''); SEC 
v. Monarch Funding Corp., 192 F.3d 295, 308 (2d Cir. 1999) 
(explaining that defendant is liable under section 10(b) and rule 
10b-5 for material omissions ``as to which he had a duty to 
speak'').
    \310\ See, e.g., De Kwiatkowski v. Bear, Stearns & Co., 306 F.3d 
at 1302; Chasins v. Smith, Barney & Co., 438 F.2d at 1172.
    \311\ 17 CFR 240.10b-10(a)(2).
    \312\ See https://brokercheck.finra.org.
---------------------------------------------------------------------------

    Investment advisers deliver to clients a ``brochure'' (and/or a 
``wrap fee program brochure,'' as applicable) and ``brochure 
supplement'' required by Form ADV Part 2.\313\ The brochure is a plain 
language, narrative document that addresses, among other things, an 
investment adviser's advisory business,

[[Page 21452]]

conflicts of interest with its clients, fees, and disciplinary 
history.\314\ The brochure supplement contains information about the 
advisory personnel providing clients with investment advice.\315\ The 
wrap fee program brochure provides prospective wrap fee program clients 
with important information regarding the cost of the programs and the 
services provided. The current Form ADV Parts 1 and 2A are filed by 
investment advisers, and details about the background qualifications, 
registrations and disciplinary history of financial professionals 
supervised by the investment adviser, are available on IAPD.\316\
---------------------------------------------------------------------------

    \313\ See Advisers Act rule 204-3; Instructions 1 and 2 of 
Instructions for Part 2A of Form ADV; Instructions 2 and 3 of 
Instructions for Part 2B of Form ADV. An investment adviser that 
sponsors a wrap fee program is generally required to complete a wrap 
fee program brochure. See Appendix 1 to Form ADV Part 2A.
    \314\ Much of the disclosure in Part 2A addresses an investment 
adviser's conflicts of interest with its clients, and is disclosure 
that the adviser, as a fiduciary, must make to clients in some 
manner regardless of the form requirements. See Brochure Adopting 
Release, supra note 157, at 9.
    \315\ Form ADV Part 2B includes information about certain 
advisory personnel on whom clients may rely for investment advice, 
including their educational background, disciplinary history, and 
the adviser's supervision of the advisory activities of its 
personnel. Investment advisers are not required to file with the 
Commission the brochure supplements required by Form ADV Part 2B. 
Advisers Act rules 203-1(a), 204-1(b).
    \316\ IAPD is available at https://www.adviserinfo.sec.gov.
---------------------------------------------------------------------------

    The current disclosure requirements and obligations result in 
varying degrees and kinds of information to investors, but we believe 
that all retail investors would benefit from a short summary that 
focuses on certain key aspects of the firm and its services. By 
requiring both investment advisers and broker-dealers to deliver a 
relationship summary that discusses both types of services and their 
differences, the relationship summary would help all retail investors, 
whether they are considering an investment adviser or a broker-dealer. 
A relationship summary would help retail investors to understand key 
aspects of a particular firm, to compare different types of accounts, 
and to compare that firm with other firms. While the information 
required by the relationship summary is generally already provided in 
greater detail for investment advisers by Form ADV Part 2, the 
relationship summary would provide in one place, for the first time, 
summary information about the services, fees, conflicts, and 
disciplinary history for broker-dealers.
1. Filing Requirements
    As proposed, firms would be required to file their relationship 
summary with the Commission, and the relationship summary will be 
available on the Commission's public disclosure website. The essential 
purpose of the relationship summary is to provide information to retail 
investors to help them decide whether to engage a particular firm or 
financial professional and open an investment advisory or brokerage 
account. If a firm does not have retail investor clients or customers 
and is not required to deliver a relationship summary to any clients or 
customers, the firm would not be required to prepare or file a 
relationship summary.\317\ Broker-dealers would file their relationship 
summaries electronically in a text-searchable format with the 
Commission on EDGAR. Investment advisers would file their relationship 
summaries electronically in a text-searchable format through IARD in 
the same manner as they currently file Form ADV Parts 1A and 2A. Dual 
registrants would file on both EDGAR and IARD. All previously filed 
versions of relationship summaries filed via EDGAR will remain 
available to the public. Although previously filed versions of an 
adviser's relationship summary would remain stored as Commission 
records in IARD, only the most recent version of an adviser's 
relationship summary will be available through the Commission's public 
disclosure website.
---------------------------------------------------------------------------

    \317\ See proposed amended Advisers Act rule 203-1 note to 
paragraph (a)(1); proposed Exchange Act rule 17a-14(a), (b). See 
infra Section II.C.2 for a discussion of the delivery requirements.
---------------------------------------------------------------------------

    We considered proposing other electronic filing platforms, either 
maintained by the Commission or by a third-party contractor. We are 
proposing IARD and EDGAR because they are familiar filing systems for 
investment advisers and broker-dealers. Investment advisers registered 
with the Commission file Form ADV on IARD.\318\ Many broker-dealers 
submit documents to the Commission on EDGAR and all broker-dealers have 
an EDGAR CIK number.\319\ As mentioned above, a dual registrant would 
be required to file the relationship summary on EDGAR and IARD. The 
information for dual registrants would be accessible through IARD or 
EDGAR, which are both available through the Commission's website 
www.Investor.gov. Exact processes for firms to follow in filing under 
each system is specified on the IARD system website and in the EDGAR 
filer manual, respectively.
---------------------------------------------------------------------------

    \318\ Investment advisers may instead file a paper copy of the 
Form ADV with the Commission if they apply for a hardship exemption 
by filing Form ADV-H.
    \319\ During fiscal year 2017, approximately 1,100 broker-
dealers submitted documents to the Commission using EDGAR. Broker-
dealers can file their annual reports on EDGAR and broker-dealers 
that also conduct another business activity (e.g., broker-dealers 
that are also municipal advisers or large traders) use EDGAR for 
other required filings.
---------------------------------------------------------------------------

    There are several reasons we propose having the relationship 
summaries filed with the Commission. First, every relationship summary 
would be easily accessible through the Commission's website. The public 
would benefit by being able to use a central location to find any 
firm's relationship summary. Easy access to various relationship 
summaries through one source may facilitate simpler comparison across 
firms. Second, some firms may not maintain a website, and therefore 
their relationship summaries would not otherwise be accessible to the 
public. Although we are proposing that firms without a website include 
a toll-free telephone number in their relationship summaries that 
retail investors can call to obtain up-to-date information,\320\ 
requiring filing with the Commission will allow the public to access 
any firm's relationship summary. Lastly, by having firms file the 
relationship summaries with the Commission, the Commission can more 
easily monitor the filings for compliance with Form CRS.
---------------------------------------------------------------------------

    \320\ Proposed General Instruction 8.(a) to Form CRS.
---------------------------------------------------------------------------

2. Delivery Requirements
    We propose to require that a firm deliver the relationship summary 
to each retail investor, in the case of an investment adviser, before 
or at the time the firm enters into an investment advisory agreement 
or, in the case of a broker-dealer, before or at the time the retail 
investor first engages the firm's services.\321\ A dual registrant 
should deliver the relationship summary at the earlier of entering into 
an investment advisory agreement with the retail investor or the retail 
investor engaging the firm's services.\322\ We encourage delivery of 
the relationship summary far enough in advance of a final decision to 
engage the firm to allow for meaningful discussion between the 
financial professional and retail investor, including by using the Key 
Questions, and for the retail investor to understand the information 
and weigh the available options. The delivery requirement

[[Page 21453]]

applies to investment advisers even if the investment advisory 
agreement is oral, and to broker-dealers even if a transaction is 
executed outside of an account or without an account opening agreement, 
as further discussed below. In the case of paper delivery, if firms do 
not deliver the relationship summary as the sole document, firms should 
ensure that it is the first among any documents that are delivered at 
that time.\323\ A firm would be permitted to deliver the relationship 
summary (including updates) electronically, consistent with the 
Commission's guidance regarding electronic delivery.\324\ We are also 
proposing a requirement for firms that maintain a public website to 
post their relationship summaries on their websites in a way that is 
easy for retail investors to find.\325\ Firms that do not maintain a 
website would be required to include in their relationship summaries a 
toll-free number for investors to call to obtain documents.\326\
---------------------------------------------------------------------------

    \321\ Advisers Act proposed rule 204-5(b)(1) and Exchange Act 
proposed rule 17a-14(c)(1); proposed General Instruction 5.(b) to 
Form CRS.
    \322\ Advisers Act proposed rule 204-5(b)(1) (investment 
advisers or their supervised persons must deliver to each retail 
investor a current Form CRS before or at the time the investment 
adviser enters into an investment advisory contract with the retail 
investors) and Exchange Act proposed rule 17a-14(c)(1) (broker-
dealers must deliver to each retail investor a current Form CRS 
before or at the time the retail investor first engages the broker-
dealer's services). See also proposed General Instruction 5.(b) to 
Form CRS.
    \323\ Proposed General Instruction 8.(c) to Form CRS.
    \324\ See Use of Electronic Media by Broker-Dealers, Transfer 
Agents, and Investment Advisers for Delivery of Information; 
Additional Examples Under the Securities Act of 1933, Securities 
Exchange Act of 1934, and Investment Company Act of 1940, Exchange 
Act Release No. 37182 (May 9, 1996) [61 FR 24644 (May 15, 1996)] 
(``96 Guidance''). See also Use of Electronic Media, Exchange Act 
Release No. 42728 (Apr. 28, 2000) [65 FR 25843 (May 4, 2000)] 
(``2000 Guidance''); and Use of Electronic Media for Delivery 
Purposes, Exchange Act Release No. 36345 (Oct. 6, 1995) [60 FR 53458 
(Oct. 13, 1995)] (``95 Guidance'').
    \325\ Advisers Act proposed rule 204-5(b)(3) and Exchange Act 
proposed rule 17a-14(c)(3); proposed General Instruction 8.(a) to 
Form CRS.
    \326\ Proposed General Instruction 8.(a) to Form CRS.
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    The timing of the initial delivery of the relationship summary for 
investment advisers generally tracks that of Form ADV Part 2A.\327\ The 
requirement for broker-dealers is intended to capture the earliest 
point in time at which a retail investor engages the services of a 
broker-dealer, including instances when a customer opens an account 
with the broker-dealer, or effects a transaction through the broker-
dealer in the absence of an account, for example, by purchasing a 
mutual fund through the broker-dealer via ``check and application.'' 
\328\ We believe that providing the retail investor the relationship 
summary at this first juncture would better assist the retail investor 
in making a determination whether to open an account with a broker-
dealer. The rule does not require delivery to a retail investor to whom 
a broker-dealer makes a recommendation, if that retail investor does 
not open or have an account with the broker-dealer, or that 
recommendation does not lead to a transaction with that broker-dealer. 
If the recommendation leads to a transaction with the broker-dealer who 
made the recommendation, we would consider the retail investor to be 
``engaging the services'' of that broker-dealer at the time the 
customer places the order or an account is opened, whichever occurs 
first.
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    \327\ See Instruction 1 of General Instructions for Part 2A of 
Form ADV.
    \328\ The obligation for a broker-dealer to deliver a 
relationship summary is broader than the proposed application of 
Regulation Best Interest, which would apply when a broker-dealer 
provides a recommendation. See supra note 29. Broker-dealers and 
investment advisers that offer online services would be required to 
provide the relationship summary to retail investors even if the 
only services provided to the customer or client is to offer a 
choice of investment options from an online menu of products, i.e., 
even if the broker-dealer does not provide a recommendation, 
provided that the retail investor engages its services. See also 
infra note 337 and accompanying text.
---------------------------------------------------------------------------

    In addition, a firm would be required to provide a relationship 
summary to an existing client or customer who is a retail investor 
before or at the time a new account is opened or changes are made to 
the retail investor's account(s) that would materially change the 
nature and scope of the firm's relationship with the retail 
investor.\329\ Such changes would include a recommendation that the 
retail investor transfer from an investment advisory account to a 
brokerage account or from a brokerage account to an investment advisory 
account, or move assets from one type of account to another in a 
transaction that is not in the normal, customary, or already agreed 
course of dealing.\330\ A move of assets from one type of account to 
another in a transaction not in the normal, customary, or already 
agreed course of dealing could include, for example, asset transfers 
due to an IRA rollover; deposits or the investment of monies based on 
infrequent events or unusual size, such as an inheritance or receipt 
from a property sale; or a significant migration of funds from savings 
to an investment account. If a firm does not have any retail investors 
to whom it must deliver a relationship summary, it would not be 
required to prepare one.\331\ A firm would be required to deliver the 
relationship summary to a retail investor within 30 days upon 
request.\332\
---------------------------------------------------------------------------

    \329\ Advisers Act proposed rule 204-5(b)(2) and Exchange Act 
proposed rule 17a-14(c)(2); proposed General Instruction 7.(a) to 
Form CRS.
    \330\ Advisers Act proposed rule 204-5(b)(2) and Exchange Act 
proposed rule 17a-14(c)(2); proposed General Instruction 7.(a) to 
Form CRS.
    \331\ Proposed General Instruction 5.(a) to Form CRS.
    \332\ Advisers Act proposed rule 204-5(b)(5) and Exchange Act 
proposed rule 17a-14(c)(5); proposed General Instruction 7.(b) to 
Form CRS.
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    We are proposing different triggers for initial delivery of the 
relationship summary by investment advisers (before or at the time the 
firm enters into an investment advisory agreement with the retail 
investor) and by broker-dealers (before or at the time the retail 
investor first engages the firm's services). These proposed 
requirements are intended to make the relationship summary readily 
accessible to retail investors at the time when they are choosing 
investment services and are generally consistent with the approach many 
commenters recommended.\333\ In addition, the trigger for investment 
advisers is consistent with current requirements for investment 
advisers to deliver the Form ADV Part 2 brochure.\334\ A few commenters 
suggested that disclosures be delivered before a broker-dealer first 
executes a transaction based on a recommendation to a retail 
investor.\335\ Along these lines, we believe that retail investors 
should receive the relationship summary as part of the process of 
engaging the services of a financial professional or firm so the retail 
investor has the relevant information to make that decision.\336\ In 
particular, because broker-dealers are not required to enter into a 
formal agreement with a customer in order to provide services, there 
may be instances in which retail investors engage the services of a 
broker-dealer without (or before) formally opening a brokerage account 
(e.g., by entering an agreement

[[Page 21454]]

with the broker-dealer). For example, some broker-dealers assist their 
customers in purchasing mutual funds or variable insurance products to 
be held with the mutual fund or variable insurance product issuer, by 
sending checks and applications directly to the fund or issuer (this is 
sometimes referred to as ``check and application,'' ``application-
way,'' ``subscription-way'' or ``direct application'' business; we use 
the term ``check and application'' for simplicity).\337\ In light of 
these types of circumstances, we are proposing to require broker-
dealers to deliver the relationship summary before or at the time the 
retail investor first engages the firm's services. As noted above, we 
would not interpret the term ``engage the firm's services'' to capture 
a recommendation by a broker-dealer to a retail investor who does not 
already have an account with that broker-dealer, if that recommendation 
does not lead to a transaction with that broker-dealer.
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    \333\ Many commenters suggested that the document be provided at 
the beginning of the relationship with a firm; such as before or at 
the time the retail investor enters into the agreement. See, e.g., 
Stifel 2017 Letter; Equity Dealers of America 2017 Letter; Fidelity 
2017 Letter; AARP 2017 Letter; State Farm 2017 Letter; AFL-CIO 2017 
Letter; CFA 2017 Letter; Wells Fargo 2017 Letter.
    \334\ An investment adviser is required to give a firm brochure 
to each client before or at the time the adviser enter into an 
advisory agreement with that client. See Advisers Act rule 204-3(b).
    \335\ See, e.g., SIFMA 2017 Letter.
    \336\ See, e.g., 917 Financial Literacy Study, supra note 20, at 
iv (``Generally, retail investors prefer to receive disclosures 
before making a decision on whether to engage a financial 
intermediary or purchase an investment product or service.''); 
Equity Dealers of America 2017 Letter, at 2 (``[W]e believe that [a 
relationship summary] should be a pillar to any new standard when 
establishing a new brokerage or advisory account relationship . . . 
Whether a client wants incidental advice, the ability to provide 
their own investment ideas or to direct their own transactions as 
associated with a brokerage account or whether a client wants 
ongoing advice, monitoring, and a level fee as associated with an 
advisory account will determine the type of account they choose.''); 
State Farm 2017 Letter; AARP 2017 Letter; AFL-CIO 2017 Letter, at 3 
(``If [a proposed enhanced standard of conduct] were supplemented by 
pre-engagement disclosures that briefly and clearly describe the 
sales nature of the broker's services, . . . investors would be 
modestly better off than they are today.''); Fidelity 2017 Letter; 
Kiley 2017 Letter; CFA 2017 Letter.
    \337\ The broker-dealer is typically listed as the broker-dealer 
of record on the retail investor's account application, and 
generally receives fees or commissions resulting from the retail 
investor's transactions in the account. See, e.g., Transfers of 
Mutual Funds and Variable Annuities, FINRA Notice to Members 04-72 
(Oct. 2004), available at http://www.finra.org/sites/default/files/NoticeDocument/p011634.pdf. See also supra note 328 and accompanying 
text.
---------------------------------------------------------------------------

    We also believe that retail investors who are existing clients and 
customers should be reminded of the information highlighted in the 
relationship summary before or at the time (i) a new account is opened 
that is different from the retail investor's existing account(s); or 
(ii) changes are made to the retail investor's existing accounts that 
would materially change the nature and scope of the firm's relationship 
with the retail investor.\338\ For example, firms would be required to 
provide a current version of the relationship summary before or at the 
time a recommendation is made that the retail investor transfers from 
an investment advisory account to a brokerage account, transfers from a 
brokerage account to an investment advisory account, or moves assets 
from one type of account to another in a transaction not in the normal, 
customary or already agreed course of dealing.\339\ In these instances, 
retail investors are again making decisions about whether to invest 
through an advisory account or a brokerage account and would benefit 
from information about the different services and fees that the firm 
offers to make an informed choice. Therefore, we are proposing that 
firms be required to deliver the relationship summary to existing 
retail investors before or at the time these changes occur. Whether a 
change would require delivery of the relationship summary would depend 
on the specific facts and circumstances.\340\ For example, transfers 
among accounts that occur in the ordinary course of business, such as a 
periodic rebalancing of assets among two accounts or quarterly 
investments in a retirement account, would not require the delivery of 
a relationship summary.\341\
---------------------------------------------------------------------------

    \338\ Advisers Act proposed rule 204-5(b)(2) and Exchange Act 
proposed rule 17a-14(c)(2); proposed General Instruction 7.(a) to 
Form CRS.
    \339\ Id.
    \340\ Id.
    \341\ Id.
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    As with other disclosures firms must deliver, firms would be able 
to deliver the relationship summary (including updates) electronically, 
within the framework of the Commission's guidance regarding electronic 
delivery of documents.\342\ The Commission's previously issued guidance 
applicable to electronic delivery of certain documents by investment 
advisers and broker-dealers consists of the following elements: (i) 
Notice to the investor that information is available electronically; 
(ii) access to information comparable to that which would have been 
provided in paper form and that is not so burdensome that the intended 
recipients cannot effectively access it; and (iii) evidence to show 
delivery, i.e., reason to believe that electronically delivered 
information will result in the satisfaction of the delivery 
requirements under the federal securities laws.\343\
---------------------------------------------------------------------------

    \342\ Proposed General Instruction 8.(b) to Form CRS. See 96 
Guidance, supra note 324.
    \343\ 96 Guidance, supra note 324.
---------------------------------------------------------------------------

    We believe that retail investors who are prospective clients or 
customers of a firm would benefit from receiving the relationship 
summary as early as possible when engaging the services of a financial 
professional or firm, so the retail investor has the relevant 
information to make that decision. Further to that goal, and in an 
effort to provide flexibility and recognize the proliferation of means 
of electronic communications that firms and retail investors may 
utilize, a firm would be able to deliver the relationship summary to 
new or prospective clients or customers in a manner that is consistent 
with how the retail investor requested information about the firm or 
financial professional.\344\ This method of initial delivery for the 
relationship summary would be consistent with the Commission 
guidance.\345\ With respect to existing clients or customers, firms 
should deliver the relationship summary in a manner consistent with the 
firm's existing arrangement with that client or customer and with the 
Commission guidance.
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    \344\ For example, a retail investor without access to a 
computer or email would likely request information in person or by 
telephone, and the financial professional would deliver a hard copy 
of the relationship summary in person or by mail.
    \345\ Firms could meet the elements of the Commission's 
electronic delivery guidance in other ways as well when delivering 
the relationship summary to new or prospective clients or customers. 
See 2000 Guidance, supra note 324, at 65 FR 25845-46; 96 Guidance, 
supra note 324, at 61 FR at 24647; 95 Guidance, supra note 324, at 
60 FR at 53461.
---------------------------------------------------------------------------

    In connection with account openings conducted online, the 
Commission previously stated in its 2000 Guidance that broker-dealers 
could obtain consent from a new customer to electronic delivery of 
documents through an account-opening agreement that contains a separate 
section with a separate e-delivery authorization, or through a separate 
document altogether.\346\ The Commission noted that a global consent to 
e-delivery would not be an informed consent if the opening of a 
brokerage account were conditioned upon providing the consent; in such 
cases other evidence of delivery would be required.\347\ However, the 
2000 Guidance made an exception for brokerage firms that require 
accounts to be opened online and all account transactions to be 
initiated and conducted online, stating, ``In these instances only, the 
opening of a brokerage account may be conditioned upon providing global 
consent to electronic delivery.'' \348\ We understand that for some 
robo-advisers, the account opening process and subsequent investment 
decisions and transactions may involve similarly limited interaction 
with a financial professional. Therefore, it would be consistent with 
the Commission's prior guidance if firms that offer only online account 
openings and account transactions, including robo-advisers and online 
broker-dealers, made global consent to electronic delivery a condition 
of account opening, for purposes of delivering the relationship 
summary.
---------------------------------------------------------------------------

    \346\ 2000 Guidance, supra note 324, at 65 FR 25846.
    \347\ Id. Evidence of delivery could include, for example: 
Obtaining evidence that an investor actually received the 
information such as by electronic mail return receipt or 
confirmation of access, downloading, or printing; an investor's 
accessing a document with hyperlinking to a required document; or 
using other forms or material available only by accessing the 
information. See 1995 Guidance, supra note 324, at section II.C.
    \348\ Id. at n.27.
---------------------------------------------------------------------------

    We request comment on whether the Commission should provide 
additional guidance with respect to electronic delivery of the 
relationship summary to

[[Page 21455]]

new and prospective or existing clients and customers.
3. Updating Requirements
    The relationship summary is designed to provide information to 
assist retail investors in making a decision about whether to engage a 
firm and open a particular type of account, but it is also important 
for retail investors to know when there have been changes to this 
information to inform their continuing choice to keep their account 
with the firm. For example, as noted above, the staff's 917 Financial 
Literacy Study indicates that retail investors find the nature and 
scope of a firm's services, its fees and conflicts of interest, and the 
disciplinary history of financial professionals to be important in 
choosing financial intermediaries.\349\ To the extent that this 
information changes in a material way, existing clients and customers 
should be made aware so that they can decide whether the choice of that 
particular firm or financial professional remains appropriate and 
consistent with their decision-making criteria. Therefore, we are 
proposing to require a firm to update its relationship summary within 
30 days whenever the relationship summary becomes materially 
inaccurate.\350\ Firms also would be required to post the latest 
version on their websites (if they have one), and electronically file 
the relationship summary with the Commission.\351\ We believe this 
approach is consistent with the current requirements for investment 
advisers to update the Form ADV Part 2 brochure,\352\ and with broker-
dealers' current obligations, including to update Form BD if its 
information is or becomes inaccurate for any reason, which information 
generally would be made available through EDGAR.\353\ We believe 
allowing 30 days for firms to make updates provides sufficient time for 
firms to make the necessary changes and gives the benefit of certainty 
of when the updates must be made.
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    \349\ See 917 Financial Literacy Study, supra notes 20-21 and 
accompanying text.
    \350\ Advisers Act proposed rule 204-1(a)(2) and Exchange Act 
proposed rule 17a-14(b)(3); proposed General Instruction 6.(a) to 
Form CRS.
    \351\ Advisers Act proposed rules 203-1(a)(1), 204-5(b)(3) and 
Exchange Act proposed rule 17a-14(b)(2), 17a-14(c)(3); proposed 
General Instructions 5.(a), 6.(c) and 8 to Form CRS.
    \352\ See, e.g., Advisers Act proposed rule 204-5(b)(4) and 
Exchange Act proposed rule 17a-14(a)(3); proposed General 
Instruction 6 to Form CRS. Generally, an investment adviser 
registered with the SEC or a state securities authority is required 
to amend its Form ADV promptly if information it provided in its 
brochure becomes materially inaccurate. See Advisers Act rule 204-
1(a)(2); Instruction 4 of General Instructions to Form ADV.
    \353\ See, e.g., Exchange Act rule 15b3-1.
---------------------------------------------------------------------------

    Our proposal would also require firms to communicate without charge 
the information in an amended relationship summary to retail investors 
who are existing clients or customers of the firm within 30 days after 
the updates are required to be made.\354\ Firms could communicate this 
information by delivering the amended relationship summary or by 
communicating the information another way to the retail investor.\355\ 
For example, if an investment adviser communicated a material change to 
information contained in its relationship summary to a retail investor 
by delivering an amended Form ADV brochure or Form ADV summary of 
material changes containing the updated information, this would support 
a reasonable belief that the information had been communicated to the 
retail investor, and the investment adviser would not be required to 
deliver an updated relationship summary to that retail investor. This 
requirement provides firms the ability to disclose changes without 
requiring them to duplicate disclosures and incur additional costs. A 
retail investor also would be able to find the latest version of the 
relationship summary on the firm's website, if it has one, and firms 
would be required to deliver it upon the retail investor's 
request.\356\
---------------------------------------------------------------------------

    \354\ Advisers Act proposed rule 204-5(b)(4) and Exchange Act 
proposed rule 17a-14(c)(4); proposed General Instruction 6.(b) to 
Form CRS.
    \355\ Id.
    \356\ Advisers Act proposed rules 204-5(b)(3) and 204-5(b)(5) 
and Exchange Act proposed rules 17a-14(c)(3) and 17a-14(c)(5); 
proposed General Instructions 7 and 8 to Form CRS.
---------------------------------------------------------------------------

    For purposes of this requirement, it is important that broker-
dealers identify their existing customers who are retail investors and 
recognize that a customer relationship may take many forms. For 
example, under this requirement, a broker-dealer would be required to 
provide the relationship summary to customers who have so-called 
``check and application'' arrangements with the broker-dealer, under 
which a broker-dealer directs the customer to send the application and 
check directly to the issuer. We believe this approach would facilitate 
broker-dealers building upon their current compliance infrastructure in 
identifying existing customers \357\ and would enhance investor 
protections to retail investors engaging the financial services of 
broker-dealers.
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    \357\ For example, broker-dealers may already have compliance 
infrastructure to identify customers pursuant to FINRA's suitability 
rule, which applies to dealings with a person (other than a broker 
or dealer) who opens a brokerage account at a broker-dealer or who 
purchases a security for which the broker-dealer receives or will 
receive, directly or indirectly, compensation even though the 
security is held at an issuer, the issuer's affiliate or custodial 
agent, or using another similar arrangement. See Guidance on FINRA's 
Suitability Rule, FINRA Regulatory Notice 12-55 (Dec. 2012), at 
Q6(a), available at http://finra.complinet.com/net_file_store/new_rulebooks/f/i/FINRANotice12_55.pdf.
---------------------------------------------------------------------------

    Finally, our proposal would require a firm to file its relationship 
summary with the Commission and to maintain the relationship summary 
and all updates as part of its books and records and make it available 
to Commission staff upon request, as discussed in Section IV 
below.\358\
---------------------------------------------------------------------------

    \358\ See Advisers Act proposed rule 204-2(a)(14)(i) and 
Exchange Act proposed rule 17a-3(a)(24).
---------------------------------------------------------------------------

    We request comment on filing, delivery, and updating requirements 
generally, and on the following areas specifically:
     Does this approach to filing, delivery, and updating 
create unique challenges for firms that are providing the relationship 
summary electronically? Does this approach provide retail investors 
with ready access to the information that they need and want in 
connection with the decision to engage a broker-dealer or investment 
adviser?
     Should a relationship summary be required for all 
investment advisers, broker-dealers and dual registrants that provide 
services to retail investors, or should there be any exceptions? For 
example, should execution-only broker-dealers be excluded from the 
requirement to provide the relationship summary because they do not 
provide investment advice to their customers? Should clearing broker-
dealers be excluded from the requirement to prepare and deliver the 
relationship summary to the extent their customers are introduced by an 
introducing broker-dealer pursuant to a clearing agreement? If so, why? 
Should the Commission consider any other exclusions for clearing 
broker-dealers or other entities? If so, why?
     Should a clearing broker-dealer and introducing broker-
dealer be allowed to agree to allocate the responsibility to deliver 
the relationship summary pursuant to applicable self-regulatory rules? 
\359\ Should investment advisers with sub-advisory relationships be 
allowed to receive the relationship summary, and any updated 
information in relationship summaries, from the

[[Page 21456]]

sub-advisers, on behalf of the primary investment adviser's clients? 
Should such clients receive the relationship summary of the sub-
adviser?
---------------------------------------------------------------------------

    \359\ See, e.g., FINRA Rule 4311(c) (Carrying Agreements) 
(requiring each carrying agreement in which accounts are to be 
carried on a fully disclosed basis to specify the responsibilities 
of each party to the agreement), available at http://finra.complinet.com/en/display/display.html?rbid=2403&element_id=10028.
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     Should the relationship summary be required in addition to 
firms' existing disclosure requirements, as proposed? Is the 
relationship summary duplicative of or does it conflict with any 
existing disclosure requirements in any way? What, if any, changes 
would we need to make to the relationship summary if we were to permit 
its delivery in lieu of other disclosures and why would those changes 
be appropriate? Should the Commission instead make any changes to 
existing rules to permit the relationship summary to serve as the venue 
for disclosures required by those rules?
     Should investment advisers that deliver a relationship 
summary have different delivery requirements for the Form ADV brochure 
and brochure supplement?
     Is IARD the optimal system for investment advisers to file 
Form CRS with the Commission? Is EDGAR the optimal system for broker-
dealers to file Form CRS with the Commission? Should dual registrants 
be required to file on both EDGAR and IARD? \360\ Should broker-dealers 
instead be required to file Form CRS solely through IARD? What would be 
the costs or benefits associated with broker-dealers becoming familiar 
with and filing through IARD system rather than through EDGAR? Is there 
another method of electronic filing the Commission should consider for 
Form CRS and why? If broker-dealers should file using a system other 
than EDGAR, what would be the costs and benefits associated with 
creation of, and/or becoming familiar with and filing through, that 
system? Should investment advisers and broker-dealers be required to 
file on the same system?
---------------------------------------------------------------------------

    \360\ See proposed General Instruction 5.(a) to Form CRS.
---------------------------------------------------------------------------

     How important to investors and other interested parties is 
the fact that IAPD serves as the single public disclosure website to 
access an adviser's current filings with the Commission, and compare 
certain filings of other advisers? What would be the impact of retail 
investors having to access a separate website for the relationship 
summary?
     How should the relationship summary be filed? Should it be 
filed as a text-searchable PDF, similar to how Form ADV is currently 
filed? Would a structured PDF, a web-fillable form, HTML, XML, XBRL, 
Inline XBRL or another format be more appropriate, and why? Should the 
Commission require a single, specified format for all firms, require 
one format for EDGAR filings and another format for IARD filings, or 
permit filers to select from two or more possible formats? Would retail 
investors use the relationship summary to obtain information about one 
particular firm, or to compare information among firms? What type of 
format would make it easier for retail investors to use the 
relationship summary in these ways? For example, would retail investors 
seek to compare the information about fees across a number of firms, 
and if so, would a structured format, such as XML or Inline XBRL or an 
unstructured format, such as PDF or HTML, better facilitate such a 
comparison? Which filing formats would illustrate the formatting of 
relationship summaries that are provided electronically, for example, 
relationship summaries sent in the body of an email, posted on the 
firm's website, or formatted for a mobile device? Which formats might 
be most beneficial to retail investors?
     What time or expense is associated with particular 
formats? What time or expense would be required of the public to view 
disclosures in a particular format? Would open source, freely available 
formats be preferred by users and filers, or would commercial 
proprietary formats be preferred? Would a particular format require any 
filers or users to license commercial software they otherwise would 
not, and, if so, at what expense? Would a particular format or formats 
provide more or fewer features with respect to comparability, 
reusability, validation, or analysis? What other considerations are 
related to specific formats? Would a particular format make it possible 
to confirm that a firm complied with the Form CRS requirements and 
validate the information provided before filing? If so, which format 
would filers or users find the most useful?
     We propose to require that an investment adviser deliver 
the relationship summary before or at the time the firm enters into an 
investment advisory agreement with a retail investor or, in the case of 
a broker-dealer, before or at the time the retail investor first 
engages the firm's services. Would this requirement give a retail 
investor ample time to process the information and ask questions before 
entering into an agreement? Or should we require that the relationship 
summary be delivered a certain amount of time before the firm enters 
into an agreement with a retail investor (e.g., 48 hours or a 15 minute 
waiting period)? For broker-dealers, should we require delivery of the 
relationship summary at the earlier of a recommendation or engagement, 
as opposed to just engagement? We also propose that a broker-dealer 
would not need to deliver the relationship summary to a retail investor 
to whom a broker-dealer makes a recommendation, if that retail investor 
does not open or have an account with the broker-dealer, or that 
recommendation does not lead to a transaction with that broker-dealer. 
Should we instead require that broker-dealers deliver the relationship 
summary to prospective customers regardless of whether that leads to a 
transaction or account opening?
     Would the delivery requirements applicable to firms that 
offer only online account openings, investment advice, and transactions 
provide sufficient notice to retail investors of the relationship 
summary's availability and content? Should the Commission require such 
firms to ensure that the relationship summary is delivered separately 
from other disclosures, with additional prominence and emphasis? For 
example, should firms consider employing the technology to require a 
retail investor to scroll through the entirety of the relationship 
summary before entering the next stage in the account opening process, 
accessing a different part of the website in order to obtain more 
information, or permitting the retail investor to check a box in order 
to accept the client agreement? Are there other requirements that 
should be considered for such firms in the delivery of the relationship 
summary when entering into the brokerage or advisory relationship, when 
the nature of that relationship changes, or when updates to the 
relationship summary are made?
     We also propose to require that a firm deliver a 
relationship summary before or at the time the firm implements changes 
that would materially change the nature and scope of the existing 
relationship with a retail investor, for example by the opening of an 
additional account or accounts and/or the migration of assets from one 
account type to another. Should the Commission provide more guidance 
for what might constitute a material change to the nature and scope of 
the relationship or the moving of a significant amount of assets from 
one type of account to another? If so, do commenters have suggestions 
on how the Commission should interpret ``material change to the nature 
and scope of the relationship'' and ``significant amount of assets''? 
Should the delivery of the relationship summary under these 
circumstances be accompanied by additional oral

[[Page 21457]]

disclosures or other types of supplemental information? Would this 
requirement give retail investors sufficient opportunity to process the 
information and ask questions before the changes are made? Should we 
specify how far in advance a firm should deliver the relationship 
summary before making such changes?
     Should we require that firms deliver an updated 
relationship summary to retail investors periodically (e.g., quarterly, 
semi-annually or annually) or whenever there is a material change, as 
proposed, such as a change in fees or commission structure?
     We propose to require that a firm deliver the relationship 
summary to a retail investor upon request. Would that requirement be 
helpful for retail investors? Would that requirement be burdensome for 
firms? Should we require firms to deliver the relationship summary upon 
request by any investor, not just retail investors and any trust or 
other similar entity that represents natural persons?
     We propose to require broker-dealers to initially deliver 
the relationship summary ``before or at the time the retail investor 
first engages the firm's services.'' Would the proposed formulation 
capture instances where a retail investor engages the services of a 
broker-dealer to carry out a transaction outside of an account, for 
example, by purchasing a mutual fund or variable annuity product 
through the broker-dealer via ``check and application''? We do not 
intend to capture instances in which a broker-dealer makes a 
recommendation to a retail investor who does not already have an 
account with that broker-dealer, if that recommendation does not lead 
to a transaction with that broker-dealer. Would such recommendations be 
captured by the proposed language? Would a different formulation be 
clearer (e.g., ``before or at the time the retail investor first enters 
a relationship,'' or ``before or at the time the retail investor 
engages in a transaction or opens an account, whichever occurs first,'' 
or ``before or at the time the retail investor indicates an intent to 
open an account or engage in a transaction, whichever occurs first'')? 
Why or why not? Should the delivery requirements for investment 
advisers and broker-dealers be identical? Why or why not?
     For investment advisers, our proposal generally tracks the 
initial delivery requirements for Form ADV Part 2.\361\ Should we 
instead follow a different disclosure delivery requirement? Should we 
adopt a different delivery requirement, recognizing that the purpose of 
the relationship summary is to provide information to retail investors 
to help them decide whether to engage a particular firm and open an 
investment advisory or brokerage account?
---------------------------------------------------------------------------

    \361\ See Advisers Act rule 204-3.
---------------------------------------------------------------------------

     We propose to permit firms to deliver the relationship 
summary electronically consistent with prior Commission guidance on 
electronic delivery, as discussed above. Is the guidance clear on how 
firms may meet their obligations with respect to delivering the 
relationship summary, or should we provide more guidance? Should any 
additional guidance be more or less prescriptive? Would our proposed 
approach adequately protect investors who have no internet access or 
limited internet access or who prefer not to receive information about 
firms electronically? Is the guidance workable for a disclosure 
delivered at or before the retail investor enters into an agreement 
with an investment adviser or first engages the services of a broker-
dealer?
     Should we permit firms to meet their relationship summary 
obligations by filing their relationship summary with the Commission or 
by posting it online without giving or sending it to specific retail 
investors?
     Should firms also be required to notify retail investors 
that an updated relationship summary is available online? Should we 
require firms to highlight the information that has changed since the 
prior version in an updated relationship summary? If firms communicate 
the changes in the relationship summary by means other than delivery of 
the updated relationship summary, should they be required to inform 
existing retail investors that the existing version is outdated? Are 
there additional requirements that we should consider for amendments to 
relationship summaries, particularly for firms without a website?
     How can we encourage the prominence of the relationship 
summary for retail investors? We are proposing that, if the 
relationship summary is delivered on paper and not as a standalone 
document, firms should ensure that it is the first among any other 
materials or documents that are delivered at that time. Should we 
require that the relationship summary be given greater prominence than 
other materials that accompany it in some other way or that the 
relationship summary not be bound together with any of those materials? 
Should we impose additional requirements to encourage the prominence 
and separateness of the relationship summary? Should we include 
additional or different requirements for relationship summaries that 
are delivered electronically? Should we require that the entire text of 
the relationship summary be provided in the text of an email or other 
form of electronic messaging, instead of an attachment or a link to the 
summary disclosure on the firm's website? Are there more dynamic ways 
to present the relationship summary information online, such as with 
the use of tool tips, explanatory videos, or chat bots to provide 
answers to questions? Are there other ways of increasing the prominence 
of the relationship summary, whether delivered in paper format or 
electronically?
     Should we require a financial professional to make certain 
oral disclosures at time of delivery? For example, should we require 
that a financial professional ask the retail investor if he or she has 
any questions about the relationship summary? How would this be 
satisfied in the context of a primarily or exclusively online or 
electronic delivery?
     Should a firm be required to communicate any material 
changes made to the relationship summary within 30 days, as proposed, 
or sooner, for example in the case of transactions not in the normal, 
customary, or already agreed course of dealing? Should a firm have the 
option of choosing to communicate the new information by either filing 
an amended Form CRS or by communicating the new information to retail 
investors in another way? Should we provide more guidance on the types 
of ways in which the information may be communicated? Should we instead 
require a firm to deliver an amended relationship summary to its 
existing retail investors?
     Are there other changes in conditions that should trigger 
a delivery requirement?
     We are proposing that firms that do not maintain a website 
include in their relationship summaries a toll-free phone number for 
investors to call to obtain documents. Are there additional 
requirements or different approaches that we should consider for firms 
that do not maintain websites, to make it easier for the public to 
access their relationship summaries?

D. Transition Provisions

    To provide adequate notice and opportunity to comply with the 
proposed relationship summary filing requirements, newly registered 
broker-dealers and new applicants for registration with the Commission 
as

[[Page 21458]]

investment advisers would not be required to file or deliver their 
relationship summaries until the date six months after the effective 
date of the proposed new rules and rule amendments.\362\ After that 
date, newly registered broker-dealers would be required to file their 
Form CRS with the Commission by the date on which their registration 
with the Commission becomes effective, and the Commission would not 
accept any initial application for registration as an investment 
adviser that does not include a relationship summary that satisfies the 
requirements of Form ADV, Part 3: Form CRS.\363\
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    \362\ See Advisers Act proposed rule 203-1(a)(2) and Exchange 
Act proposed rule 17a-14(f)(1).
    \363\ See Advisers Act proposed rule 203-1(a)(2) and Exchange 
Act proposed rule 17a-14(f)(3).
---------------------------------------------------------------------------

    Similarly, we believe it would be helpful to provide sufficient 
time for advisers and broker-dealers already registered with us to 
prepare the new Form CRS and file it electronically with the 
Commission. Accordingly, we propose to require a broker-dealer that is 
registered with us as of the effective date of the proposed new rules 
and rule amendments to comply with the new Form CRS filing requirements 
by the date that is six months after the effective date of the proposed 
new rules and rule amendments.\364\ We also propose requiring an 
investment adviser or a dual registrant that is registered with us as 
of the effective date to comply with the new filing requirements as 
part of the firm's next annual updating amendment to Form ADV that is 
required after six months after the rule's effective date.\365\ Such an 
adviser or dual registrant would be required to include Form CRS as 
part of its next such annual updating amendment filing with the 
Commission.\366\
---------------------------------------------------------------------------

    \364\ See Exchange Act proposed rule 17a-14(f)(1); proposed 
General Instruction 5.(c)(i) to Form CRS.
    \365\ See Advisers Act proposed rule 204-1(b)(3); proposed 
General Instruction 5.(c)(i) to Form CRS.
    \366\ See id.
---------------------------------------------------------------------------

    We are proposing to require that a firm deliver its relationship 
summary to all of its existing clients and customers who are retail 
investors on an initial one-time basis within 30 days after the date 
the firm is first required to file its relationship summary with the 
Commission.\367\ This proposed requirement would allow existing retail 
investor clients and customers to receive the important disclosures in 
the relationship summary that will be provided to new and prospective 
retail investor customers and clients. A firm would be required to give 
its relationship summary to its new and prospective clients and 
customers who are retail investors beginning on the date the firm is 
first required to electronically file its relationship summary with the 
Commission, and would be required to give the relationship summary to 
its existing clients and customers who are retail investors within 30 
days, pursuant to the rule's requirements for initial delivery and 
updating.\368\
---------------------------------------------------------------------------

    \367\ See Advisers Act proposed rule 204-5(e)(1) and Exchange 
Act proposed rule 17a-14(f)(2); proposed General Instruction 
5.(c)(iii) to Form CRS.
    \368\ See Advisers Act proposed rule 204-5(e) and Exchange Act 
proposed rule 17a-14(f)(1), (2); proposed General Instruction 
5.(c)(ii), (iii) to Form CRS.
---------------------------------------------------------------------------

    We request comment on our proposed implementation requirements.
     Would a six-month period from the effective date of Form 
CRS provide enough time for newly registered broker-dealers and 
investment advisers that are filing their initial applications for 
registration with the Commission to complete Form CRS? If not, please 
explain why and how much time these advisers and broker-dealers would 
need to complete Form CRS.
     Should implementation of Form CRS filing requirements for 
broker-dealers be on a separate timetable from implementation of Form 
CRS filing requirements for investment advisers, as we have proposed, 
because registered investment advisers are not all required to file 
their Form ADV annual updating amendments on the same timetable? If 
not, please explain why and whether, in order to have one uniform 
initial filing date for broker-dealers and investment advisers, we 
should require investment advisers to potentially file their initial 
Form CRS more than once.
     Should a firm be required to comply with the rule's 
requirements for initial delivery to new and prospective clients and 
customers and for updating beginning on the date the firm is first 
required to electronically file its relationship summary with the 
Commission, as proposed? Should a firm deliver the relationship summary 
to all existing clients and customers who are retail investors within 
30 days after first filing the relationship summary with the 
Commission, as proposed? These requirements would result in a different 
delivery timetable for broker-dealers and investment advisers because 
investment advisers would file Form CRS with their Form ADV annual 
updating amendments. Should we instead require all firms to deliver the 
relationship summary to retail investors beginning on the same date 
(e.g., within six months from the effective date of Form CRS), even if 
investment advisers file Form CRS after that date? Or should we require 
firms to deliver to existing retail investor customers and clients 
initial relationship summaries at a later date? For example, firms 
could be required to deliver the relationship summary only before or at 
the time a new account is opened or changes are made to the retail 
investor's account(s) that would materially change the nature and scope 
of the firm's relationship with the retail investor (including before 
or at the time the firm recommends that the retail investor transfers 
from an investment advisory account to a brokerage account or from a 
brokerage account to an investment advisory account, or moves assets 
from one type of account to another in a transaction not in the normal, 
customary or already agreed course of dealing).

E. Recordkeeping Amendments

    We are also proposing conforming amendments to Advisers Act rule 
204-2 and Exchange Act rules 17a-3 and 17a-4, which set forth 
requirements for maintaining, making and preserving specified books and 
records, to require SEC-registered investment advisers and broker-
dealers to retain copies of each relationship summary.\369\ Firms would 
also be required to maintain each amendment to the relationship summary 
as well as to make and preserve a record of dates that each 
relationship summary and each amendment was delivered to any client or 
to any prospective client who subsequently becomes a client, as well as 
to any retail investor before such retail investor opens an 
account.\370\ Requiring maintenance of these disclosures as part of the 
firm's books and records would facilitate the Commission's ability to 
inspect for and enforce compliance with firms' obligations with respect 
to Form CRS.
---------------------------------------------------------------------------

    \369\ Advisers Act proposed rule 204-2(a)(14)(i); Exchange Act 
proposed rules 17a-3(a)(24) and 17a-4(e)(10).
    \370\ Id.
---------------------------------------------------------------------------

    These proposed changes are designed to update the books and records 
rules in light of our proposed addition of Form ADV Part 3 for 
registered investment advisers and Form CRS for broker-dealers, and 
they mirror the current recordkeeping requirements for the Form ADV 
brochure and brochure supplement. The records for investment advisers 
would be required to be maintained in the same manner, and for the same 
period of time, as other books and records required to be maintained 
under rule 204-2(a), and the records for broker-dealers would be 
required to

[[Page 21459]]

maintained for a period of six years.\371\ The proposed required 
documentation, like other records, would be required to be provided to 
the staff ``promptly'' upon request.\372\
---------------------------------------------------------------------------

    \371\ See Advisers Act rule 204-2(e)(1); Exchange Act rule 17a-
4(e)(10). Pursuant to Advisers Act rule 204-2(e)(1), investment 
advisers will be required to maintain the relationship summary for a 
period of five years, while Exchange Act proposed rule 17a-4(e)(10) 
would require broker-dealers to maintain the relationship summary 
for a period of six years.
    \372\ See Advisers Act rule 204-2(g)(2); Exchange Act rule 17a-
4(j).
---------------------------------------------------------------------------

    We request comment on these proposed amendments.
     Are there other records related to the relationship 
summary or its delivery that we should require firms to keep? Should we 
require them to maintain copies of the relationship summary for a 
longer or shorter period than we have proposed? Should broker-dealers 
and investment advisers be required to keep relationship summary-
related records for the same amount of time? Should firms be required 
to document their responses to the ``key questions'' from investors?

III. Restrictions on the Use of Certain Names and Titles and Required 
Disclosures

    As discussed above, both broker-dealers and investment advisers 
provide investment advice to retail investors, but the regulatory 
regimes and business models under which they give that advice are 
different. For example, the principal services, compensation 
structures, conflicts, disclosure obligations, and legal standards of 
conduct can differ.\373\ We therefore believe that it is vital that 
retail investors understand whether the firm is a registered investment 
adviser or registered broker-dealer, and whether the individual 
providing services is associated with one or the other (or both), so 
that retail investors can make an informed selection of their financial 
professional, and then appropriately monitor their financial 
professional's conduct.
---------------------------------------------------------------------------

    \373\ See, e.g., 913 Study, supra note 3.
---------------------------------------------------------------------------

    While investors should understand who their financial professional 
is, and why that matters, studies indicate that retail investors do not 
understand these differences and are confused about whether their firm 
or financial professional is a broker-dealer or an investment adviser, 
or both.\374\ Proposed Form CRS, as set out in Section II above, should 
help to ameliorate this confusion by helping retail investors 
understand the services that a particular firm offers, and how those 
services differ based on whether the firm is a registered broker-
dealer, registered investment adviser, or both. We preliminarily 
believe, however, that Form CRS is not a complete remedy for investor 
confusion. The education and information that Form CRS provides to 
retail investors could potentially be overwhelmed by the way in which 
financial professionals present themselves to potential or current 
retail investors, including through advertising and other 
communications. This could particularly be the case where the 
presentation could be misleading in nature, or where advertising and 
communications precede the delivery of Form CRS and may have a 
disproportionate impact on shaping or influencing retail investor 
perceptions.
---------------------------------------------------------------------------

    \374\ See, e.g., Siegel & Gale Study, supra note 5; RAND Study, 
supra note 5; 913 Study, supra note 3. Additionally, the RAND Study 
noted that participants ``commented that the interchangeable titles 
and `we do it all' advertisements [by broker-dealers] made it 
difficult to discern broker-dealers from investment advisers.'' 
Those participants also stated that these lines were further blurred 
by the marketing efforts which depicted an ``ongoing relationship 
between the broker and the investor. . . .'' See RAND Study, supra 
note 5, at xix, 19.
---------------------------------------------------------------------------

    Specifically, we believe that certain names or titles used by 
broker-dealers, including ``financial advisor,'' contribute to retail 
investor confusion about the distinction among different firms and 
investment professionals, and thus could mislead retail investors into 
believing that they are engaging with an investment adviser--and are 
receiving services commonly provided by an investment adviser and 
subject to an adviser's fiduciary duty, which applies to the retail 
investors' entire relationship--when they are not.\375\ Additionally, 
broker-dealers and investment advisers, and the financial professionals 
that are associated with them, currently engage in communications with 
prospective or existing retail investors without making clear whether 
they are a broker-dealer or an investment adviser, which can further 
confuse retail investors if this distinction is not clear from context 
(whether intentionally or not).
---------------------------------------------------------------------------

    \375\ See supra notes 122 and 216 and accompanying texts.
---------------------------------------------------------------------------

    As discussed below, our proposed restriction seeks to mitigate the 
risk that the names or titles used by a firm or financial professional 
result in retail investors being misled, including believing that the 
financial professional is a fiduciary, leading to uninformed decisions 
regarding which firm or financial professional to engage, which may in 
turn result in investors being harmed. Additionally, we believe that 
requiring firms and their associated natural persons or supervised 
persons to disclose whether the firms are broker-dealers or investment 
advisers and whether such financial professionals are associated with 
or supervised by, respectively, such firms would also help to address 
investor confusion and mitigate potential harm to investors resulting 
from that confusion. We preliminarily believe that restricting certain 
persons from using the term ``adviser'' or ``advisor'' coupled with the 
requirement that firms disclose their regulatory status in retail 
investor communications would deter potentially misleading sales 
practices. Investors who understand whether their financial 
professional or firm is a broker-dealer or investment adviser will be 
better consumers of the information presented in Form CRS, and less 
likely to mistakenly obtain the services of a broker-dealer when they 
intend to engage an investment adviser, or vice versa.\376\
---------------------------------------------------------------------------

    \376\ Section 15(l)(2) of the Exchange Act and section 211(h)(2) 
of the Advisers Act.
---------------------------------------------------------------------------

A. Investor Confusion

    Over the past decade, various studies have documented that retail 
investors are confused regarding the services offered by, and the 
standards of conduct applicable to, broker-dealers and investment 
advisers, including their use of certain titles.\377\
---------------------------------------------------------------------------

    \377\ See, e.g., Siegel & Gale Study, supra note 5; RAND Study, 
supra note 5; 913 Study, supra note 3.
---------------------------------------------------------------------------

    In 2005, the Siegel & Gale Study found that with respect to titles 
specifically, ``[r]espondents in all focus groups were generally 
unclear about the distinctions among the titles brokers, financial 
advisors/financial consultants, investment advisers, and financial 
planners . . .'' \378\ The following year, the Commission retained RAND 
to conduct a study of broker-dealers and investment advisers for the 
purpose of examining, among other things, whether investors understood 
the duties and obligations owed by investment advisers and broker-
dealers.\379\ The RAND Study

[[Page 21460]]

noted that ``thousands of firms'' are structured in a variety of ways 
and provide various different combinations of services and 
products.\380\ The RAND Study concluded that ``partly because of this 
diversity of business models and services, investors typically fail to 
distinguish broker-dealers and investment advisers along the lines 
defined by federal regulations.'' \381\
---------------------------------------------------------------------------

    \378\ See Siegel & Gale Study, supra note 5, at 2. The study 
used focus groups in both Baltimore, MD and Memphis, TN to ``explore 
investor opinions regarding the services, compensation and legal 
obligations of several types of financial services professionals.'' 
Id., at 5.
    \379\ See RAND Study, supra note 5, at xiv. In conducting the 
study, RAND used several methods to study current practices in the 
financial industry and analyze whether investors understand 
differences between types of financial service professionals. Among 
these methods, RAND sent out national household surveys through the 
internet which studied ``household investment behavior and 
preferences, experience with financial service providers, and 
understanding of the different types of financial service 
providers.'' Additionally, RAND conducted six focus groups with 
investors in Alexandria, Virginia, and Fort Wayne, Indiana to gain 
additional evidence on investor beliefs about and experience with 
financial service providers. RAND also conducted two sets of [in 
person] interviews: one set of interviews with interested parties 
and one set with financial service firms. See RAND Study, supra note 
5, at 3[dash]4.
    \380\ See RAND Study, supra note 5, at 118.
    \381\ Id.
---------------------------------------------------------------------------

    The RAND Study concluded that, based on interviews with industry 
representatives, investor surveys, and focus groups, there was 
generally investor confusion about the distinction between broker-
dealers and investment advisers. In particular, ``[interview] 
participants [in the RAND Study] mentioned that the line between 
investment adviser and broker-dealers has become further blurred, as 
much of the recent marketing by broker-dealers focuses on the ongoing 
relationship between the broker and the investor and as brokers have 
adopted such titles as `financial advisor' and `financial manager.' '' 
\382\ Additionally, participants in RAND's survey believed that 
financial professionals using the title ``financial advisor'' were 
``more similar to investment advisers than to brokers . . .'' \383\
---------------------------------------------------------------------------

    \382\ See id., at 19.
    \383\ See id., at xix.
---------------------------------------------------------------------------

    Moreover, focus group participants shed further light on this 
confusion when they ``commented that the interchangeable titles and `we 
do it all' advertisements by broker-dealers made it difficult to 
discern broker-dealers from investment advisers.'' \384\ More 
specifically, focus group participants observed that ``common job 
titles for investment advisers and broker-dealers are so similar that 
people can easily get confused over the type of professional with which 
they are working.'' \385\ The focus group results also showed that when 
``[c]omparing beliefs on services provided by investment advisers to 
services provided by brokers, participants were more likely to say that 
investment advisers provide advice about securities, recommend specific 
investments, and provide planning services.'' \386\ According to the 
RAND Study, focus-group participants were more likely to say that 
brokers rather than investment advisers execute stock transactions and 
earn commissions and believed ``that investment advisers and brokers 
are required to act in the client's best interest'' and ``were more 
likely to say that brokers rather than investment advisers are required 
to disclose any conflicts of interest.'' \387\ In highlighting part of 
the confusion, the RAND Study noted that the responses from survey 
participants indicated the opposite conclusion from those of the focus-
group participants, namely, that investment advisers are more likely to 
disclose conflicts of interest.\388\
---------------------------------------------------------------------------

    \384\ See id., at xix. Interview participants also stated that 
these lines were further blurred by the marketing efforts which 
depicted an ``ongoing relationship between the broker and the 
investor. . . .''. See id., at 19.
    \385\ See id., at 111.
    \386\ See id., at 109.
    \387\ Id.
    \388\ Id.
---------------------------------------------------------------------------

    As discussed above, in light of significant intervening market 
developments and advances in technology, Chairman Clayton in 2017 
invited input on, among other things, investor concerns about the 
current regulatory framework. Commenters highlighted the risk of harm 
to investors who obtain services from broker-dealers under the 
misimpression that they are receiving services protected by the 
fiduciary duty that applies to investment advisers.\389\ For example, 
one commenter examined the websites of nine different brokerage firms 
and ``found that the firms' advertising presents the image that the 
firms are acting in a fiduciary capacity'' with many firm 
advertisements continuing to present the firm ``as providing all-
encompassing advice, with no differentiation between the firms' 
investment adviser services and brokerage services.'' \390\ This 
commenter also noted that ``[w]ithout uniform standards, persons 
seeking financial advice are left to fend for themselves in deciding 
whether their financial advisor is serving two masters or only one, and 
whether one of those masters is the advisor's financial self-
interest.'' \391\ In addition, a different commenter argued that the 
use of certain titles, such as ``advisor,'' should be standardized by 
the Commission because they are currently ``catch all'' terms for firms 
with ``wildly different practices, standards, and responsibilities to 
their clients.'' \392\ Some of the commenters to Chairman Clayton's 
Request for Comment also noted that this confusion is the result of the 
misleading nature of these titles. Specifically, one commenter stated 
that ``[t]he problem is that investors are being misled into relying on 
biased sales recommendations as if they were objective, best interest 
advice and are suffering significant financial harm as a result.'' 
\393\ The commenter noted that ``these titles and marketing materials 
are misleading'' [if] . . . broker-dealers truly are the ``mere 
salespeople they've claimed to be in their legal challenge to the DOL 
fiduciary rule.'' \394\ A different commenter stated that ``a financial 
professional should not be able to use a title that conveys a standard 
of conduct to which the professional is not in fact held under the law. 
. . .'' \395\ Additionally, another commenter noted that customer 
confusion is ``also driven by misleading marketing and misleading 
titles.'' \396\ Finally, one commenter stated that ``having SEC 
registered entities and their agent, claim such title gives false 
credence and implies a responsibility which the agent never claims to 
provide (numerous brokers go by the title `Financial Advisor', implying 
Fiduciary standard that is not being upheld).'' \397\
---------------------------------------------------------------------------

    \389\ See, e.g., CFA 2017 Letter; PIABA 2017 Letter; IAA 2017 
Letter; Pefin 2017 Letter; First Ascent 2018 Letter.
    \390\ See PIABA 2017 Letter, at 7. See also IAA 2017 Letter, at 
11 (``investor confusion persists where certain financial 
professionals are permitted to use terms such as ``financial 
adviser'' or ``financial advisor'' that imply a relationship of 
trust and confidence but, in effect, disclaim fiduciary 
responsibility for such a relationship''); Pefin 2017 Letter, at 3 
(noting that `` `Investment Advisor' or `Financial Advisor' are not 
defined terms, and are currently a ``catch all'' for firms with 
wildly different practices, standards, and responsibilities to their 
clients. Many of these firms attempt to imply in external 
communication that they are a Fiduciary, while disclaiming their 
responsibilities in the fine print.''); CFA 2017 Letter.
    \391\ See PIABA 2017 Letter, at 17.
    \392\ See Pefin 2017 Letter, at 3. See also First Ascent 2017 
Letter.
    \393\ See CFA 2017 Letter, at 2.
    \394\ See id., at 11.
    \395\ See Comment letter of the U.S. Chamber of Commerce (Dec. 
13, 2017), at 10.
    \396\ See Comment letter of the Steering Group for the Committee 
for the Fiduciary Standard (Nov. 8, 2017) (``Committee for the 
Fiduciary Standard 2017 Letter''), at 3.
    \397\ See Pefin 2017 Letter, at 9.
---------------------------------------------------------------------------

    For many years, the Commission has considered approaches for 
remedying investor confusion about the differing services and 
obligations of broker-dealers and investment advisers. In particular, 
in 2005 we considered addressing how investors perceive the differences 
between broker-dealers and investment advisers by proposing to 
proscribe the use of certain broker-dealer titles.\398\ In adopting our 
final rule, which was subsequently vacated on other grounds by the 
Court of

[[Page 21461]]

Appeals for the D.C. Circuit,\399\ we declined to follow this approach, 
believing that the better approach was to require broker-dealers to 
clearly inform their customers receiving investment advice that they 
are entering into a brokerage, and not an advisory, relationship.\400\ 
However, in light of comments in response to Chairman Clayton's Request 
for Comment and our experience, we believe that it is appropriate to 
revisit that approach.
---------------------------------------------------------------------------

    \398\ Certain Broker-Dealers Deemed Not To Be Investment 
Advisers, Exchange Act Release No. 50980 (Jan. 6, 2005), [70 FR 2716 
(Jan. 14, 2005)] (``Broker Dealer Reproposing Release'').
    \399\ Financial Planning Association v. Securities and Exchange 
Commission, 482 F.3d 481 (D.C. Cir. 2007).
    \400\ As further discussed in the 2005 final rule release, we 
considered but did not adopt a rule which would have placed 
limitations on how a broker-dealer may hold itself out or titles it 
may employ without registering as an investment adviser and 
complying with the Advisers Act. In deciding to not prohibit the use 
of specific titles such as ``financial advisor,'' ``financial 
consultant'' or other similar names, we noted that ``the statutory 
broker-dealer exception is a recognition by Congress that a broker-
dealer's regular activities include offering advice that could bring 
the broker-dealer within the definition of investment adviser, but 
which should nonetheless not be covered by the Act.'' As a result, 
we noted that the ``terms `financial advisor' and `financial 
consultant,' for example, were descriptive of such services provided 
by broker-dealers.'' We also stated our view that these titles were 
generic terms that describe what various persons in the financial 
services industry do, including banks, trust companies, insurance 
companies, and commodity professionals. See 2005 Broker Dealer 
Release, supra note 7; see also Broker Dealer Reproposing Release, 
supra note 398.
---------------------------------------------------------------------------

    A broker-dealer can, and does, provide investment advice to retail 
investors without being regulated as an investment adviser, provided 
that such advice is ``solely incidental to'' its brokerage business and 
the broker-dealer receives no ``special compensation'' for the 
advice.\401\ While we believe such advice is important for providing 
retail investors access to a variety of services, products, and payment 
options, for example, thereby increasing investor choice, we are 
concerned that use of the terms ``adviser'' and ``advisor'' in a name 
or title would continue to result in some retail investors being misled 
that their firm or financial professional is an investment adviser 
(i.e., a fiduciary), resulting in investor harm. We believe that these 
terms can obscure the fact that investment advisers and broker-dealers 
typically have distinct business models with varying services, fee 
structures, standards of conduct, and conflicts of interest.\402\
---------------------------------------------------------------------------

    \401\ The Advisers Act regulates the activities of certain 
``investment advisers,'' which are defined in section 202(a)(11) as 
persons who receive compensation for providing advice about 
securities as part of a regular business. Broker-dealers are 
excluded from the definition of investment adviser by section 
202(a)(11)(C) provided that they meet two prongs: (i) The broker-
dealer's advisory services must be ``solely incidental to'' its 
brokerage business; and (ii) the broker-dealer must receive no 
``special compensation'' for the advice.
    \402\ See RAND Study, supra note 5, at 18 (``There were also 
concerns as to what investors understand regarding similarities and 
differences of brokerage and advisory accounts, the legal 
obligations of each type of account, and the effect of titles and 
marketing used by investment professionals on the expectations of 
investors.'').
---------------------------------------------------------------------------

    It is important for retail investors to better understand the 
distinction between investment advisers and broker-dealers and to have 
access to the information necessary to make an informed choice and 
avoid potential harm. Investor choices of firm type and financial 
professionals can, for example, affect the extent or type of services 
received, the amount and type of fees investors pay for such services, 
and the conflicts of interest associated with any such services. For 
example, if a retail investor prefers an advisory relationship with an 
active trading strategy, and he or she mistakenly retains a broker-
dealer ``financial adviser,'' this investor potentially could incur 
more costs if he or she is placed in a brokerage account than he or she 
would have paid in an advisory account with an asset-based fee. 
Likewise, an investor could also be misled into believing that the 
broker-dealer is subject to a fiduciary standard that may not 
apply,\403\ and provides services it may not offer, such as regular 
monitoring of the account, offering advice on a regular basis, and 
communicating with the investor on a regular basis.
---------------------------------------------------------------------------

    \403\ See supra note 375. Cf. Comment letter of Russel Walker 
(Jun. 17, 207); Comment letter of Jeanne Davis (Jul. 20, 2017); 
Comment letter of Nancy Lowell (Jul. 20, 2017); Comment letter of 
John Dalton (Jul. 21, 2017); Comment letter of Nancy Tew (Jul. 21, 
2017); Comment letter of Bonitta Knapp (Jul. 21, 2017); Comment 
letter of Alan Gazetski (Jul. 21, 2017); Comment letter of A. Arias 
(Jul. 21, 2017); Comment letter of Al Cohen (Jul. 21, 2017); Comment 
letter of James Melloh (Jul. 21, 2017); Comment letter of Mary 
Pellecchia (Jul. 21, 2017); Comment letter of William Muller (Jul. 
21, 2017); Comment letter of Susan Lee (Jul. 22, 2017); Comment 
letter of Steve Daniels (Jul. 22, 2017); AARP 2017 Letter; AFL-CIO 
2017 Letter; Pefin 2017 Letter; PIABA 2017 Letter; IAA 2017 Letter; 
CFA 2017 Letter. These commenters argued that as a result of the use 
of certain titles and communications, retail investors are confused 
and are erroneously led to believe that their financial 
professionals are required to act ``in their best interest.''
---------------------------------------------------------------------------

    While we are proposing to require broker-dealers and investment 
advisers to provide retail investors with a relationship summary that 
would highlight certain features of an investment advisory or brokerage 
relationship, that information might be provided after the retail 
investor has initially decided to meet with the firm or its financial 
professional. The retail investor may make a selection based on such 
person's name or title. If firms and financial professionals that are 
not investment advisers are restricted from using ``adviser'' or 
``advisor'' in their names or titles, retail investors would be less 
likely to be confused or potentially misled about the type of financial 
professional being engaged or nature of the services being received. 
Conversely, an associated natural person of a broker-dealer using the 
term ``adviser'' or ``advisor'' may result in an investor believing 
that such financial professional is an adviser with a fiduciary duty, 
as discussed in the relationship summary the investor would 
receive.\404\ Similarly, requiring firms and their associated natural 
persons or supervised persons, as applicable, to disclose whether the 
firms are broker-dealers or investment advisers would help to address 
investor confusion and complement the information provided in the 
proposed relationship summary.
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    \404\ See proposed Item 5.B.3. of Form CRS.
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B. Restrictions on Certain Uses of ``Adviser'' and ``Advisor''

    We are proposing to restrict any broker or dealer, and any natural 
person who is an associated person of such broker or dealer, when 
communicating with a retail investor, from using as part of its name or 
title the words ``adviser'' or ``advisor'' unless such broker or 
dealer, is registered as an investment adviser under the Advisers Act 
or with a state, or any natural person who is an associated person of 
such broker or dealer is a supervised person of an investment adviser 
registered under section 203 of the Advisers Act or with a state and 
such person provides investment advice on behalf of such investment 
adviser.\405\
---------------------------------------------------------------------------

    \405\ See Exchange Act proposed rule 151-2.
---------------------------------------------------------------------------

1. Firms Solely Registered as Broker-Dealers and Associated Natural 
Persons
    In relevant part, the proposed rule would restrict a broker-
dealer's or its associated natural persons' use of the term ``adviser'' 
or ``advisor'' as part of a name or title when communicating with a 
retail investor in particular circumstances.\406\ This would include 
names or titles which include, in whole or in part, the term 
``adviser'' or ``advisor'' such as financial advisor (or adviser), 
wealth advisor (or adviser), trusted advisor (or adviser), and advisory 
(e.g., ``Sample Firm Advisory'') when communicating with any retail 
investor. In addition, we believe that the proposed rule should apply 
to communications with retail investors (i.e., natural persons), rather 
than

[[Page 21462]]

institutions, for reasons similar to those detailed above for the 
relationship summary.\407\ Additionally, our proposed rule 
appropriately applies to retail investors and not to institutions, as 
institutions generally would be less likely to be misled by such names 
or titles. The proposed rule, however, would not restrict a broker-
dealer's or its associated natural persons' use of the terms 
``adviser'' or ``advisor'' when acting on behalf of a bank or insurance 
company, or when acting on behalf of a municipal advisor or a commodity 
trading advisor.
---------------------------------------------------------------------------

    \406\ See id.
    \407\ See supra note 29 and accompanying text. See also Exchange 
Act proposed rule 151-2(b).
---------------------------------------------------------------------------

    We acknowledge that there may be titles other than ``adviser'' or 
``advisor'' used by financial professionals that might confuse and thus 
potentially mislead investors. We considered whether we should restrict 
broker-dealers from using additional terms, such as, for example, 
``financial consultant.'' Given this concern, we focused our proposal 
on the terms ``adviser'' or ``advisor'' because they are more closely 
related to the statutory term ``investment adviser.'' Thus, as compared 
to additional terms such as ``financial consultant,'' ``adviser'' and 
``advisor'' are more likely to be associated with an investment adviser 
and its advisory activities rather than with a broker-dealer and its 
brokerage activities. Moreover, the term ``investment adviser,'' as 
compared to terms like ``financial consultant,'' is a defined term 
under the Advisers Act as any person who, for compensation, engages in 
the business of advising others, either directly or through 
publications or writings, as to the value of securities.\408\ As 
discussed above, we believe that use of the terms ``adviser'' and 
``advisor'' by broker-dealers and their associated natural persons has 
particularly contributed to investor confusion about the typical 
services, fee structures, conflicts of interest, and legal standards of 
conduct to which broker-dealers and investment advisers are 
subject.\409\ Conversely, we preliminarily believe that other terms, 
even if investors might find them confusing, unclear, or misleading (as 
some commenters have suggested), do not necessarily imply that a firm 
or its financial professional is an ``investment adviser'' who would 
have the principal services, compensation structures, conflicts of 
interest, disclosure obligations, and legal standards of conduct that 
are typically associated with being an investment adviser.\410\
---------------------------------------------------------------------------

    \408\ See section 202(a)(11)(A) of the Advisers Act, defining an 
``investment adviser'' as ``any person who, for compensation, 
engages in the business of advising others, either directly or 
through publications or writings, as to the value of securities or 
as to the advisability of investing in, purchasing, or selling 
securities, or who, for compensation and as part of a regular 
business, issues or promulgates analyses or reports concerning 
securities.''
    \409\ See supra note 402 and accompanying text. We are not 
proposing restrictions on names or titles for investment advisers. 
Our staff is not aware of an investment adviser using a name or 
title that could cause retail investors to mistakenly believe that 
such adviser provides brokerage services. Studies and commenters 
also have not identified retail investor confusion as relating to an 
investment adviser's use of names or titles. We request comment on 
our understanding below.
    \410\ Firms and financial professionals should keep in mind the 
applicability of the antifraud provisions of the federal securities 
laws, including section 17(a) of the Securities Act, and section 
10(b) of the Exchange Act and rule 10b-5 thereunder, to the use of 
names or titles. See also generally FINRA Rule 2210 (stating in part 
``[a]ll retail communications and correspondence must: (A) 
Prominently disclose the name of the member, or the name under which 
the member's broker-dealer business primarily is conducted as 
disclosed on the member's Form BD, and may also include a fictional 
name by which the member is commonly recognized or which is required 
by any state or jurisdiction; (B) reflect any relationship between 
the member and any non-member or individual who is also named; and 
(C) if it includes other names, reflect which products or services 
are being offered by the member.'')
---------------------------------------------------------------------------

    Accordingly, we preliminarily do not believe these terms would 
cause retail investors to believe that their financial professional is 
an investment adviser when he or she is, in fact, a broker-dealer. We 
therefore preliminarily believe that restricting use of terms that are 
similar to ``investment adviser'' appropriately tailors the rule to 
terms that are likely to result in confusion or mislead retail 
investors about whether such broker-dealer is an investment adviser and 
thus a fiduciary.
    As we discuss in more detail above, the proposed relationship 
summary is designed to provide clarity to retail investors regarding 
information about broker-dealers and investment advisers under a 
prescribed set of topics (e.g., services, fees, standards of conduct, 
conflicts). While the proposed relationship summary is designed to help 
retail investors to distinguish between investment advisers and broker-
dealers, we are concerned that the effectiveness of the relationship 
summary could be undermined if we do not restrict a broker-dealer from 
using in a name or title the terms ``adviser'' and ``advisor.''
    For instance, we preliminarily believe that restricting a broker-
dealer or its associated natural persons from using ``adviser'' or 
``advisor'' in a name or title would mitigate the risk that a retail 
investor would be misled into believing and expecting that his or her 
``financial advisor,''--who may solely provide brokerage services at a 
broker-dealer--is an investment adviser because of the name or title. 
For example, if a retail investor were to engage a financial 
professional with the title ``wealth advisor'' who solely provides 
brokerage services but who is associated with a dually registered 
firm,\411\ such investor would likely receive the dually registered 
firm's relationship summary. The relationship summary would include a 
description of both business models; however, the retail investor could 
incorrectly match the services he or she would receive from such 
``wealth advisor'' to the description in the relationship summary of 
investment advisory services. As a result, the retail investor may be 
misled to believe that the brokerage services provided by the ``wealth 
advisor'' are in fact the investment advisory services as described in 
the relationship summary.
---------------------------------------------------------------------------

    \411\ For the purposes of Section III, we are defining a 
``dually registered firm'' in the same manner as it is defined in 
the baseline of the Economic Analysis. See infra Section IV, note 
453.
---------------------------------------------------------------------------

    Similarly, a retail investor who engages a financial professional 
with the title ``wealth advisor'' who is associated solely with a 
broker-dealer entity would likely receive the broker-dealer's 
relationship summary, which focuses on the characteristics of the 
broker-dealer business model. As a result, there would be an 
inconsistency between the description of the broker-dealer business 
model and the investors' likely perceptions that their professional is 
an investment adviser. Therefore, the proposed restriction on the use 
of names or titles would increase the effectiveness of the relationship 
summary by reducing the risk of a mismatch between investor preferences 
and type of services received.
    We acknowledge that studies have demonstrated that many retail 
investors select financial professionals and firms based on personal 
referrals by family, friends, or colleagues.\412\ Even if the name or 
title of the firm or professional may not impact choices made by such 
investors, we preliminarily believe that the protections offered to 
other investors by the proposed restriction and disclosure requirements 
justify the rules.
---------------------------------------------------------------------------

    \412\ See infra note 546 and accompanying text. See also Section 
IV.A.3.g.
---------------------------------------------------------------------------

2. Dually Registered Firms and Dual Hatted Financial Professionals
    The proposed rule would permit firms that are registered both as 
investment advisers (including state-registered investment advisers) 
and broker-dealers to use the term ``adviser'' or ``advisor'' in their 
name or title.\413\ The proposed

[[Page 21463]]

rule would, however, only permit an associated natural person of a 
dually registered firm to use these terms where such person is a 
supervised person of a registered investment adviser and such person 
provides investment advice on behalf of such investment adviser.\414\ 
This would limit the ability of natural persons associated with a 
broker-dealer who do not provide investment advice as an investment 
adviser from continuing to use the term ``adviser'' or ``advisor'' 
simply by virtue of the fact that they are associated with a dually 
registered firm.\415\ We discuss these aspects of the rule in further 
detail below.
---------------------------------------------------------------------------

    \413\ See Exchange Act proposed rule 151-2(a)(1).
    \414\ See Exchange Act proposed rule 151-2(a)(2).
    \415\ See section 202(a)(25) of the Advisers Act [15 U.S.C. 80b-
2(a)(25)] defining ``supervised person'' as ``any partner, officer, 
director (or other person occupying a similar status or performing 
similar functions), or employee of an investment adviser, or other 
person who provides investment advice on behalf of the investment 
adviser and is subject to the supervision and control of the 
investment adviser''.
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a. Dually Registered Firms
    We are not proposing to apply the restriction to dually registered 
firms. We believe that it is inappropriate to restrict a dually 
registered firm from using a name or title that accurately describes 
its registration status. We recognize that under our proposed rule 
there might be occasions where a dually registered firm provides a 
particular retail investor only brokerage services, which could lead to 
some investor confusion.
    At the firm level, we do not believe that the determination of when 
the restriction applies should be based on what capacity a dually 
registered firm is acting in a particular circumstance, i.e., whether a 
dually registered firm is acting solely as a broker-dealer and not 
offering investment advisory services. If we were to apply the 
restriction in this manner, it could result in firms using multiple 
names and titles, which may lead to further confusion and create 
operational and compliance complexities. Accordingly, this could lead 
to dually registered firms avoiding the use of the title ``adviser'' or 
``advisor'' unless they believe they would always offer investment 
advisory services, which we believe is not necessary to avoid the 
potential investor harm. Additionally, we also seek to avoid the 
potential misimpression that may result should a firm use a name or 
title to reflect only its brokerage services and not its investment 
advisory services. In such a circumstance, a retail investor may not 
know that such firm offers both business models and could be led to 
believe that only brokerage services are available.
b. Dual Hatted Financial Professionals
    Dual hatted financial professionals of dually registered firms 
(including state-registered investment advisers) can provide brokerage 
services, advisory services, or both. We believe it is appropriate for 
financial professionals that provide services as an investment adviser 
to retail investors to be permitted to use names or titles which 
include ``adviser'' and ``advisor,'' even if, as a part of their 
business, they also provide brokerage services. As such, our proposed 
rule would not restrict, for example, a financial professional that is 
both a supervised person of an investment adviser and an associated 
person of a broker-dealer from using the term ``adviser'' or 
``advisor'' in his or her name or title if such person provides 
investment advice to retail investors on behalf of the investment 
adviser.\416\ We believe that the relationship summary can sufficiently 
reduce the risk of investors being misled and avoid investor harm 
because it contains parallel information with respect to each of the 
services the dual hatted financial professional offers.
---------------------------------------------------------------------------

    \416\ See Exchange Act proposed rule 151-2(a)(2).
---------------------------------------------------------------------------

    By contrast, we recognize that some financial professionals of 
dually registered firms only provide brokerage services. We are 
concerned that if these financial professionals use ``adviser'' or 
``advisor'' in their names or titles, retail investors may be misled 
about the nature of services they are receiving, and may incorrectly 
believe that such person would provide them investment advisory 
services rather than brokerage services. Therefore, we believe that a 
financial professional who does not provide investment advice to retail 
investors on behalf of the investment adviser, i.e., a financial 
professional that only offers brokerage services to retail investors, 
should be restricted from using the title ``adviser'' or ``advisor'' 
despite such person's association with a dually registered firm.
    We recognize that, as with dually registered firms, some dual 
hatted financial professionals may under some circumstances only offer 
brokerage services to a particular retail investor, which has the 
potential to cause confusion. For the same reasons discussed above 
regarding dually registered firms, however, we do not believe that the 
determination of when the restriction applies should be based on what 
capacity a dual hatted financial professional is acting in a particular 
circumstance, i.e., whether a dual hatted professional is offering only 
brokerage services to that particular investor and not offering 
investment advisory services.\417\ Moreover, we are proposing in 
Regulation Best Interest to require a broker-dealer to make certain 
disclosures, including the capacity of the financial professional and 
firm.\418\ We request comment below on whether and if so how the 
proposed rule should address this particular circumstance.
---------------------------------------------------------------------------

    \417\ See supra note 410. Firms and financial professionals 
should keep in mind the applicability of the antifraud provisions of 
the federal securities laws, including section 17(a) of the 
Securities Act, and section 10(b) of the Exchange Act and rule 10b-5 
thereunder, to the use of names or titles.
    \418\ See Regulation Best Interest Proposal, supra note 24.
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C. Alternative Approaches

    Over the past decade, we and commenters have expressed concern 
about broker-dealer marketing efforts, including through the use of 
titles, and whether these efforts are consistent with a broker-dealer's 
reliance on the exclusion from the definition of investment adviser 
under section 202(a)(11)(C) of the Advisers Act.\419\ Under section 
202(a)(11)(C), a broker-dealer is excluded from the definition of 
investment adviser if its ``performance of [advisory] services is 
solely incidental to the conduct of his business as a broker or dealer 
and who receives no special compensation therefor.'' \420\ In this 
regard, and as an alternative to our proposed rule today, we considered 
proposing a rule which would have stated that a broker-dealer that uses 
the term ``adviser'' or ``advisor'' as part of a name or title cannot 
be considered to provide investment advice solely incidental to the 
conduct of its business as a broker-dealer and therefore is not 
excluded from the definition of investment adviser under section 
202(a)(11)(C). We also considered proposing a rule that would preclude 
a broker-dealer from relying on the exclusion when such a broker-dealer 
held itself out as an investment adviser. We are not proposing these 
alternatives for the reasons discussed below. However, we request 
comment on these alternatives below.
---------------------------------------------------------------------------

    \419\ See, e.g., Comment letter of Investment Counsel 
Association of America (Feb. 7, 2005) (``ICAA 2005 Letter); Comment 
letter of T. Rowe Price (Feb. 22, 2005) (``T. Rowe Price 2005 
Letter'') on Broker Dealer Reproposing Release, supra note 398. See 
also Certain Broker-Dealers Deemed Not to Be Investment Advisers, 
Exchange Act Release No. 42099 (Nov. 4, 1999) (``Release 42099'').
    \420\ Section 202(a)(11)(C) of the Advisers Act.
---------------------------------------------------------------------------

    Our concerns regarding broker-dealer marketing efforts are not new. 
For example, we have previously requested comment on whether we should 
preclude broker-dealers from relying on the solely incidental prong of 
the exclusion if they market their services

[[Page 21464]]

in a manner that suggests that they are offering advisory accounts, 
including through the use of names or titles.\421\ While we have never 
viewed the broker-dealer exclusion as precluding a broker-dealer from 
marketing itself as providing some amount of advisory services, we have 
noted that these marketing efforts raised ``troubling questions as to 
whether the advisory services are not (or would be perceived by 
investors not to be) incidental to the brokerage services.'' \422\ 
Certain commenters have voiced similar concerns, arguing that the use 
of certain titles, such as ``financial advisor,'' is inconsistent with 
the broker-dealer exclusion, with some noting that the marketing of 
advisory services by a broker-dealer is inconsistent with those 
services being solely incidental to the brokerage business.\423\ 
Others, however, contended that the titles are consistent with the 
services provided by broker-dealers, whether in fee-based or 
commission-based accounts.\424\
---------------------------------------------------------------------------

    \421\ See, e.g., Release 42099, supra note 419.
    \422\ See id.
    \423\ See, e.g., ICAA 2005 Letter; T. Rowe Price 2005 Letter. 
See also e.g. AFL-CIO 2017 Letter; CFA 2017 Letter; Comment letter 
of CFA Institute (Jan. 10, 2018); Comment letter of The Committee 
for the Fiduciary Standard (Jan. 12, 2018).
    \424\ See Broker Dealer Reproposing Release.
---------------------------------------------------------------------------

    Taking into account our concerns and the views of commenters, we 
considered proposing a rule which would have stated that a broker-
dealer that uses the term ``adviser'' or ``advisor'' as part of a name 
or title would not be considered to provide investment advice solely 
incidental to the conduct of its brokerage business and therefore would 
not be excluded from the definition of investment adviser under section 
202(a)(11)(C) of the Advisers Act.\425\ In considering this 
alternative, we questioned whether a broker-dealer that uses these 
terms to market or promote its services to retail investors is doing so 
because its advice is significant or even instrumental to its brokerage 
business. Consequently, we questioned whether that broker-dealer's 
provision of advice is therefore no longer solely incidental to its 
brokerage business. Similarly, we believe that if a broker-dealer 
invests its capital into marketing, branding, and creating intellectual 
property in using the terms ``adviser'' or ``advisor'' in its name or 
its financial professionals' titles, the broker-dealer is indicating 
that advice is an important part of its retail investor broker-dealer 
business. As compared to the more principles-based ``holding out'' 
approach below, this alternative may offer more certainty and clarity 
to broker-dealers. It also specifically addresses our concerns about 
the use of ``adviser'' and ``advisor,'' as discussed in this release.
---------------------------------------------------------------------------

    \425\ As with the proposal, our alternative approach would 
likewise preclude an associated natural person of a dually 
registered firm from using the term ``adviser'' or ``advisor'' in a 
name or title unless he or she is a supervised person of an 
investment adviser and provides investment advice on behalf of such 
investment adviser.
---------------------------------------------------------------------------

    We also considered a broader approach that would have precluded a 
broker-dealer from relying on the solely incidental exclusion of 
section 202(a)(11)(C) if a broker-dealer ``held itself out'' as an 
investment adviser to retail investors.\426\ For example, ``holding 
out'' could encompass a broker-dealer that represented or implied 
through any communication or other sales practice (including through 
the use of names or titles) that it was offering investment advice to 
retail investors subject to a fiduciary relationship with an investment 
adviser. As with our alternative approach above, we questioned whether 
these activities could suggest, or could reasonably be understood as 
suggesting, that such broker-dealer or its associated natural persons 
were performing investment advisory services in a manner that was not 
solely incidental to their business as a broker-dealer. In particular, 
this approach could reduce the risk that if we restricted certain 
titles (or limited the use of certain titles used to market services) 
other potentially misleading titles could proliferate. Certain 
commenters to Chairman Clayton's Request for Comment also supported 
this approach, so that retail investors receiving advice from firms 
``holding out'' as investment advisers would receive appropriate 
protections, either under the Advisers Act or through a heightened 
standard of conduct for broker-dealers.\427\ However, we preliminarily 
believe that a ``holding out'' approach would create uncertainty 
regarding which activities (and the extent of such activities) would be 
permissible. Such an approach could also reduce investor choice, as 
broker-dealers may decide to provide fewer services out of an abundance 
of caution.
---------------------------------------------------------------------------

    \426\ See AFL-CIO 2017 Letter, at 3 (stating that ``[o]ne way 
for the SEC to proceed is to clarify that those firms that offer 
advisory services, or hold themselves out as offering such services, 
cannot take advantage of the existing broker-dealer `solely 
incidental to' exemption from the Investment Advisers Act.''); IAA 
2017 Letter; AICPA 2017 Letter.
    \427\ See IAA 2017 Letter, at 11 (``We urge the Commission to 
address this source of investor confusion by prohibiting firms or 
individuals from holding themselves out as trusted advisers without 
being subject to either the Advisers Act fiduciary principles or a 
new equally stringent best interest standard under the Exchange Act, 
discussed above.''). See also, e.g. AFL-CIO 2017 Letter, at 3 
(``clarify that those firms that offer advisory services, or hold 
themselves out as offering such services, cannot take advantage of 
the existing broker-dealer ``solely incidental to'' exemption from 
the Investment Advisers Act. Permitting brokers to rely on this 
exemption when engaged in advisory activities has had the effect of 
exempting them from the fiduciary duty appropriate to that advisory 
role. Adopting this approach would require the SEC to determine what 
constitutes ``holding out'' as an adviser, addressing marketing 
practices, as well as job titles, that create the reasonable 
expectation among investors that they will receive advice and not 
just sales recommendations.'').
---------------------------------------------------------------------------

    We are not proposing any of these approaches however, because we 
preliminarily believe that a restriction on the use of ``adviser'' and 
``advisor'' in names and titles in combination with the requirement to 
deliver a relationship summary would be a simpler, more administrable 
approach to address the confusion about the difference between 
investment advisers and broker-dealers, and to prevent investors from 
being potentially misled, compared to the alternatives presented above. 
While we acknowledge that there are other titles or marketing 
communications that may contribute to investor confusion or mislead 
investors, our proposal is tailored toward creating greater clarity 
with respect to the names and titles that are most closely related to 
the statutory term investment adviser. In particular, our proposed 
rule, in combination with the relationship summary, would help 
distinguish between who is and who is not an investment adviser and 
allow retail investors to select the business model that best suits 
their financial goals. The restriction of the use of the terms 
``adviser'' and ``advisor'' that we are proposing is intended to 
augment protections provided to investors by applicable provisions of 
the federal securities laws. Broker-dealers and their natural 
associated persons can face liability for intentionally, recklessly, or 
negligently misleading investors about the nature of the services they 
are providing through, among other things, materially misleading 
advertisements or other communications that include statements or 
omissions, or deceptive practices or courses of business.\428\
---------------------------------------------------------------------------

    \428\ See, e.g., rule 10b-5 under the Securities Exchange Act 
and section 17(a) of the Securities Act.
---------------------------------------------------------------------------

    We request comment generally on our proposed restriction on the use 
of certain titles and in particular on the following issues:
     Given the required relationship summary, is it necessary 
to impose any restrictions on the use of names or titles?
     Do you agree with our proposed restriction on the use of 
``adviser'' and ``advisor''? Why or why not? To what extent does the 
disclosure provided in Form CRS complement our proposed

[[Page 21465]]

restriction? To what extent could it be a substitute?
     Is our approach too broad or too narrow? Are there 
additional terms that we should explicitly include in the rule? For 
example, do any of the following names or titles have the potential to 
confuse investors about the differences between investment advisers and 
broker-dealers: Wealth manager; financial consultant; financial 
manager; money manager; investment manager; and investment consultant? 
Why or why not? What are the names or titles most commonly used that 
have the potential for investor confusion? Should we consider 
restricting the use of names, titles, or terms that are synonymous with 
``adviser'' or ``advisor'' and if so, what would those names, titles, 
or terms be?
     Do commenters believe that names or titles are a main 
factor contributing to investor confusion and the potential for 
investors to be misled, or are there other more significant factors? 
For example, do particular services offered by broker-dealers 
contribute to, or primarily cause, investor confusion and the potential 
for the broker-dealer's customers to be misled into believing that the 
broker-dealer is an investment adviser? If so, which services 
specifically? For example, do commenters believe that retirement and 
financial planning is more often associated with investment advisers 
rather than broker-dealers or vice versa? Additionally, do commenters 
believe that monitoring is more often associated with investment 
advisers than broker-dealers or vice versa?
     Our proposed rule does not apply to financial 
professionals of a broker-dealer when acting in the capacity, for 
example, as an insurance broker on behalf of an insurance company or a 
banker on behalf of a bank. Do you believe our proposed rule is clear 
that such persons are excluded from the restriction? If not, how should 
we provide such clarification?
     As discussed above, our proposed rule would not prohibit 
dually registered firms from using the term ``adviser'' or ``advisor'' 
in their name or title. However, it would restrict the use of such 
names or titles by some associated natural persons and supervised 
persons of those firms, depending on whether they provide investment 
advice to retail investors on behalf of the investment adviser. Do you 
agree with our proposed approach? Is there investor confusion 
concerning what capacity a dually registered firm, a dual hatted 
financial professional, or an associated or supervised person of a 
dually registered firm is acting in when communicating with a retail 
investor? If such confusion exists, how should we address it, in 
addition to the proposed relationship summary? For example, are retail 
investors confused about which type of account their financial 
professional is referring to when he or she makes a particular 
recommendation? If this is a source of confusion, how should we address 
it (e.g., should we address it through affirmative disclosures of 
account types in account statements or another form of disclosure)?
     Given the prevalence of dually registered firms and their 
associated dual hatted financial professionals, do retail investors 
typically believe they are engaging a financial professional who is 
solely a broker-dealer or investment adviser, or do investors 
understand that such person is a dual hatted professional and therefore 
may be able to engage with them as a broker-dealer and an investment 
adviser? Or do retail investors currently not understand enough to 
distinguish among these options in any meaningful manner?
     Do commenters believe that retail investors will 
understand that there is, and will continue to be under proposed 
Regulation Best Interest, differences in the standards of conduct, 
compensation structures, and services offered (among other items) 
depending on the capacity in which such professional engages a retail 
investor?
     We are proposing to permit or restrict financial 
professionals associated with dually registered firms from using the 
term ``adviser'' or ``advisor'' in their name or title based on whether 
they provide investment advice on behalf of such investment advisers. 
Are there alternatives we should consider in implementing this portion 
of the rule? For example, should we only allow a supervised person to 
use such names or titles where ``a substantial part of his or her 
business consists of rendering investment supervisory services'' to 
retail investors, based upon a facts and circumstances determination? 
\429\
---------------------------------------------------------------------------

    \429\ See section 208(c) of the Advisers Act: ``[i]t shall be 
unlawful for any person registered under section 203 of this title 
to represent that he is an investment counsel or to use the name 
`investment counsel' as descriptive of his business unless (1) his 
or its principal business consists of acting as investment adviser, 
and (2) a substantial part of his or its business consists of 
rendering investment supervisory services.''
---------------------------------------------------------------------------

     Our proposed rule would not prohibit dually registered 
firms or dually hatted financial professionals from using ``adviser'' 
or ``advisor'' in their names or titles, even in circumstances where 
the firm or financial professional provides only brokerage services to 
a particular retail investor. Do you agree with our approach? Why or 
why not? For example, should the proposed rule's application depend on 
the capacity in which a financial professional engages a particular 
retail investor? If so, should financial professionals use multiple 
titles that would vary based on the capacity in which they are acting, 
and what titles would they use? Are there compliance challenges 
associated with this approach? Conversely, would this discourage dually 
registered firms or dually hatted financial professionals from using 
any title with ``adviser'' or ``advisor,'' even when they are providing 
advisory services? Would this discourage dually hatted financial 
professionals from providing brokerage services? Would a firm use 
different names or titles for different subsets of their financial 
professionals?
     Do you agree that the use of the terms ``adviser'' or 
``advisor'' by broker-dealers are the main sources of investor 
confusion? If so, what do these terms confuse investors about (e.g., 
the differences as to the standard of conduct their financial 
professional owes, the duration of the relationship, fees charged, 
compensation)? Are investors harmed by this confusion? If so, how? Do 
you agree that ``adviser'' and ``advisor'' are often associated with 
the statutory term ``investment adviser''? Do you believe that retail 
investors understand what the terms ``adviser'' and ``broker-dealer'' 
mean and can correctly identify what type of financial professional 
they have engaged?
     We understand that the terms ``adviser'' or ``advisor'' 
are included in some professional designations earned by financial 
professionals.\430\ We also understand that particular professional 
designations have been an area of concern for FINRA and NASAA.\431\ 
Should we include an exception to permit the use of professional 
designations that use the terms ``adviser'' or ``advisor''? What 
factors should the Commission consider if it were to include such an 
exception? For example, should such an exception be conditioned on 
prominent disclosure

[[Page 21466]]

that the individual is not an investment adviser or supervised by one?
---------------------------------------------------------------------------

    \430\ See FINRA, Professional Designations, available at https://www.finra.org/investors/professional-designations.
    \431\ See Senior Designations, FINRA Notice 11-52 (Nov. 2011), 
available at http://www.finra.org/sites/default/files/NoticeDocument/p125092.pdf; NASAA, NASAA Model Rule on the Use of 
Senior-Specific Certifications and Professional Designations (Mar. 
20, 2008), available at http://www.nasaa.org/wp-content/uploads/2011/07/3-Senior_Model_Rule_Adopted.pdf.
---------------------------------------------------------------------------

     Do you agree with the proposed approach in Exchange Act 
proposed rules 15l-2 and 15l-3 and Advisers Act proposed rule 211h-1 of 
limiting our proposed rules to ``retail investors'' where such persons 
are defined to include all natural persons as discussed above? \432\ 
Should we instead exclude certain categories of natural persons based 
on their net worth or income level, such as accredited investors,\433\ 
qualified clients \434\ or qualified purchasers? \435\ If we did 
exclude certain categories of natural persons based on their net worth, 
what threshold should we use for measuring net worth? Should we exclude 
certain categories of natural persons for other reasons?
---------------------------------------------------------------------------

    \432\ See supra notes 28-32 and accompanying text.
    \433\ See supra note 66.
    \434\ See supra note 67.
    \435\ See supra note 68.
---------------------------------------------------------------------------

     Should we conform the definition of retail investor to the 
definition of retail customer as proposed in Regulation Best Interest, 
which would include non-natural persons, provided the recommendation is 
primarily for personal, family, or household purposes? What kind of 
compliance burdens would it create to base Form CRS delivery off of a 
definition of retail investor that only included recommendations 
primarily for personal, family, or household purposes? Should the 
definition of retail investor include trusts or similar entities that 
represent natural persons, as proposed? Are there other persons or 
entities that should be covered? Should we expand the definition to 
cover plan participants in workplace retirement plans who receive 
services from a broker-dealer or investment adviser for their 
individual accounts within a plan?
     What costs would broker-dealers impacted by our proposed 
rule incur as a result of having to rebrand themselves and their 
financial professionals along with revising their communications? Are 
there means to mitigate such costs? Would the costs differ if we made 
the broker-dealer exclusion in the Advisers Act unavailable to broker-
dealers that use the terms ``adviser'' or ``advisor''?
     How would broker-dealers and associated natural persons of 
broker-dealers who would be impacted by our proposed rule change the 
way they market themselves or communicate with retail investors as a 
result of our proposed rule? Would this cause any other changes to 
their business? For example, would more broker-dealer firms also 
register with the Commission or the states as investment advisers as a 
result of our proposed rule? Will firms exit the brokerage business as 
a result of our proposed rule? Would more associated natural persons of 
broker-dealers become dual hatted?
     Would our proposed rule impact the marketing and 
communications of dually registered firms and their professionals in 
any manner? If so, how?
     Do investment advisers and their supervised persons also 
use names, titles, or professional designations that can lead or 
contribute to retail investor confusion? If so, please provide examples 
of these names or titles and how they can lead or contribute to 
confusion. Should we restrict investment advisers and their supervised 
persons from using these names or titles?
     What costs would our proposed restriction on certain names 
and titles impose? Are there greater or lower costs associated with our 
proposed rules as compared to alternative approaches that consider 
whether certain titles or marketing practices are consistent with 
advice being ``solely incidental'' to the firm's brokerage activities 
and thus permissible for a firm relying on the broker-dealer exclusion 
from the Advisers Act? If so, what are the specific cost estimates of 
each approach and the components of those estimates? Are there ways to 
mitigate their impact and if so, what methods could be taken? Are there 
operational and compliance challenges associated with our proposed 
approach as compared to the alternatives approaches, and if so, what 
are they?
     We request comment on the alternative approach in which a 
broker-dealer would not be considered to provide investment advice 
solely incidental to the conduct of its brokerage business if it uses 
the term ``adviser'' or ``advisor'' to market or promote its services 
and would instead treat such practices as indicating that the broker-
dealer's advisory services are not ``solely incidental'' to its conduct 
of business as a broker-dealer. What would be the advantages or 
disadvantages of using this approach instead of the approach we have 
proposed? Would the alternative approach address and mitigate investor 
confusion about the differences between broker-dealers and investment 
advisers? Would the alternative approach reduce the likelihood that 
investors may be misled as to the type of firm they are engaging with 
and therefore make an uninformed decision? Would the alternative 
approach have other effects on the analysis of when advisory activities 
are or are not solely incidental to brokerage activities? How would 
this alternative approach impact dually registered firms and dual 
hatted financial professionals? Are there operational and compliance 
challenges associated with this approach, and if so, what are they? How 
would broker-dealers and associated natural persons of broker-dealers 
impacted by the alternative approach change the way they market 
themselves or communicate with retail investors as a result of our 
proposed rule? Would this cause any other changes to their business?
     Would the alternative approach discussed above that would 
preclude a broker-dealer or an associated natural person of a broker-
dealer from relying on the broker-dealer exclusion of section 
202(a)(11)(C) of the Advisers Act if it ``held itself out'' as an 
investment adviser address investor confusion? What would be the 
advantages or disadvantages of using this approach instead of the 
approach we have proposed? Which communications or level of advice do 
you think imply that a broker-dealer or its associated natural person 
is ``holding out'' as an investment adviser? How would an approach that 
focuses on ``holding out'' as an investment adviser impact access to 
advice from different kinds of firms, and how retail investors pay for 
this advice? How would this approach affect competition? Would this 
``holding out'' approach address any confusion that may arise from 
broker-dealer marketing efforts focusing on the ongoing relationship 
between the broker and the investor? Are there operational and 
compliance challenges associated with this approach, and if so, what 
are they?
     Instead of a prohibition or restriction on the use of 
certain terms, should we permit such terms but require broker-dealers 
and their associated natural persons other than dual registrants and 
dual hatted financial professionals to include a disclaimer in their 
communications that they are not an investment adviser or investment 
adviser representative, respectively, each time they use or refer to 
the term ``adviser'' or ``advisor''? Would this approach address 
investor confusion or mitigate the likelihood that investors may be 
misled when broker-dealers and their associated natural persons use the 
term ``adviser'' or ``advisor''? Should this approach be coupled with 
an affirmative obligation that a dually registered broker-dealer or its 
dual hatted associated natural persons disclose that it is an 
investment adviser or an investment adviser representative, 
respectively, when using terms other than ``adviser'' or ``advisor''? 
Would this requirement discourage broker-dealers from using

[[Page 21467]]

these terms even if they were not prohibited? How would this approach 
impact our proposed rule requiring disclosure of the firm's regulatory 
status and the financial professional's association with the firm? How 
would this approach impact dually registered firms and dually hatted 
financial professionals? Are there operational and compliance 
challenges associated with this approach, and if so, what are they?
     We recognize that the term ``adviser'' is used differently 
in connection with the regulation of investment advisory services 
provided to workplace retirement plans and IRAs under ERISA and the 
prohibited transaction provisions of the Internal Revenue Code. For 
example, a statutory exemption for the provision of investment advice 
to participants of ERISA-covered workplace retirement plans and IRAs, 
and related DOL regulations, define the term ``fiduciary adviser'' 
broadly to include a variety of persons acting in a fiduciary capacity 
in providing investment advice, including investment advisers 
registered under the Advisers Act or under state laws, registered 
broker-dealers, banks or similar financial institutions providing 
advice through a trust department, and insurance companies, and their 
affiliates, employees and other agents.\436\ Given that there are 
definitions of ``adviser'' under other federal regulations that capture 
entities and individuals who are not regulated under the Advisers Act, 
would a restriction on the use of the term ``adviser'' that applies 
only to registered broker-dealers and their registered representatives 
contribute to investor confusion or result in conflicting regulations, 
and possibly increased compliance burdens, or affect competition?
---------------------------------------------------------------------------

    \436\ See ERISA Sec.  408 (g)(11)(A); Code Sec.  
4975(f)(8)(J)(i) and 29 CFR 2550.408g-1. In addition, under the 
DOL's BIC Exemption, the term ``Adviser'' would mean an individual 
who is an employee or other agent (including a registered 
representative) of a state or federally registered investment 
adviser, registered broker-dealer, bank or similar financial 
institution, or an insurance company. See Corrected BIC Exemption, 
infra note 504, section VIII(a).
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     What would be the effect on competition by prohibiting 
broker-dealers from using these terms? What would be the effect on 
competition by the alternative approaches described?

D. Disclosures About a Firm's Regulatory Status and a Financial 
Professional's Association

    We are also proposing rules under the Exchange Act and the Advisers 
Act to require a broker-dealer and an investment adviser registered 
under section 203 to prominently disclose that it is registered as a 
broker-dealer or investment adviser, as applicable, with the Commission 
in print or electronic retail investor communications.\437\ We are also 
proposing as part of our proposed Exchange Act rule to require an 
associated natural person of a broker or dealer to prominently disclose 
that he or she is an associated person of a broker-dealer registered 
with the Commission in print or electronic retail investor 
communications.\438\ In addition, we are proposing as part of our 
Advisers Act rule to require a supervised person of an investment 
adviser registered under section 203 to prominently disclose that he or 
she is a supervised person of an investment adviser registered with the 
Commission in print or electronic retail investor communications.\439\ 
For example, an investment adviser registered with the Commission would 
prominently disclose the following on its print or electronic 
communications: ``[Name of Firm], an investment adviser registered with 
the Securities and Exchange Commission'' or ``[Name of Firm], an SEC-
registered investment adviser.'' Dually registered firms would 
similarly be required to prominently disclose both registration 
statuses in their print or electronic communications, for example: 
``[Name of Firm], an SEC-registered broker-dealer and SEC-registered 
investment adviser.'' Similarly, an associated natural person of a 
broker-dealer would prominently disclose the following, for example, on 
his or her business card or signature block: ``[Name of professional], 
a [title] of [Name of Firm], an associated person of an SEC-registered 
broker-dealer.'' Alternatively, a supervised person of an investment 
adviser would prominently disclose the following on, for example, his 
or her business card or signature block: ``[Name of professional], a 
[title] of [Name of Firm], a supervised person of an SEC-registered 
investment adviser.'' Finally, a financial professional who is both an 
associated person of a broker-dealer and a supervised person of an 
investment adviser would prominently disclose the following, for 
example: ``[Name of professional], a [title] of [Name of Firm], an 
associated person of an SEC-registered broker-dealer and a supervised 
person of an SEC- registered investment adviser.''
---------------------------------------------------------------------------

    \437\ See Exchange Act proposed rule 15l-3(a) and Advisers Act 
proposed rule 211h-1(a). We note that in Form ADV investment 
advisers are required to state that registration with the Commission 
does not imply a certain level of skill or training. See Item 1.C. 
of Form ADV Part 2A. We are requesting comment on whether we should 
require broker-dealers and investment advisers to include this 
statement in addition to disclosing their applicable regulatory 
status.
    \438\ See Exchange Act proposed rule 15l-3(b).
    \439\ See Advisers Act proposed rule 211h-1(b).
---------------------------------------------------------------------------

    Our proposed registration disclosure rules, like the proposed 
restriction on names and titles, or our proposed alternative 
approaches, complement our proposed requirement that broker-dealers and 
investment advisers deliver a relationship summary to retail investors. 
Even if a firm uses various titles, such as ``wealth consultant'' or 
``wealth manager,'' the legal term for these firms is ``investment 
adviser'' and/or ``broker-dealer.'' These statutory terms have meaning 
because they relate to a particular regulatory framework that is 
designed to address the nature and scope of the firm's activities, 
which the firm would describe for a retail investor in the relationship 
summary.\440\ Accordingly, we preliminarily believe that requiring a 
firm to disclose whether it is a broker-dealer or an investment adviser 
in print or electronic communications to retail investors would assist 
retail investors to determine which type of firm is more appropriate 
for their specific investment needs.
---------------------------------------------------------------------------

    \440\ For similar reasons, we are requiring the use of the terms 
``supervised person'' and ``associated person'' as they are defined 
legal terms generally describing the financial professional's 
association with the investment adviser or broker-dealer, 
respectively.
---------------------------------------------------------------------------

    For similar reasons, we preliminarily believe that because retail 
investors interact with a firm primarily through financial 
professionals, it is important that financial professionals disclose 
the firm type with which they are associated. We acknowledge that in 
the studies and the comments received, retail investors generally 
believe broker-dealers and investment advisers are similar, and that 
they did not understand differences between them.\441\ As discussed 
above, while we acknowledge that broker-dealers and investment advisers 
are similar in that they provide investment advice, they commonly are 
dissimilar in a variety of key areas such as disclosure of conflicts of 
interest, types of fees charged, and standard of conduct. In 
particular, the

[[Page 21468]]

proposed relationship summary would inform retail investors about many 
of these differences, and in so doing, would be addressing investor 
confusion. As a result, even if investors are currently confused, over 
time they should better understand that investment advisers and broker-
dealers may be different, and how they are different.
---------------------------------------------------------------------------

    \441\ See supra Section III.A. See also, e.g., RAND Study, supra 
note 5, at 19, 20 (``Many [industry interview] participants reported 
that they thought that offering such [fee-based account] products 
and services meant that broker-dealers and investment advisers 
became less distinguishable from one another. They claimed that 
bundling of advice and sales by broker-dealers also added to 
investor confusion . . . . [Industry Representative] interviews 
suggest that individual investors do not distinguish between 
investment advisers and broker-dealers. Marketplace changes that 
have resulted in investment advisers and broker-dealers offering 
similar services have added to investor confusion.'').
---------------------------------------------------------------------------

    Similarly, our proposed rules to require a firm to disclose whether 
it is a broker-dealer or an investment adviser in print or electronic 
communications to retail investors would help to facilitate investor 
understanding, even if investors currently may not understand the 
differences between investment advisers and broker-dealers.
    We believe that disclosures that are as important as whether a firm 
is a broker-dealer or an investment adviser or whether a financial 
professional is associated with a broker-dealer or is a supervised 
person of an investment adviser, should not be inconspicuous or placed 
in fine print. Accordingly, we are proposing to require a firm and its 
financial professionals to disclose their registration statuses in 
print communications in a type size at least as large as and of a font 
style different from, but at least as prominent as, that used in the 
majority of the communication.\442\ To be ``prominent,'' for example, 
we believe the disclosures should be included, at a minimum, on the 
front of a business card or in another communication, in a manner 
clearly intended to draw attention to it. In addition, we are proposing 
to require the disclosure to be presented in the body of the 
communication and not in a footnote.\443\ If a communication is 
delivered through an electronic communication or in any publication by 
radio or television, the disclosure must be presented in a manner 
reasonably calculated to draw retail investors' attention to it.\444\ 
For example, in a televised or video presentation, a voice overlay and 
on-screen text could clearly convey the required information. Finally, 
we propose to stage the compliance date to ensure that firms and 
financial professionals can phase out certain older communications from 
circulation through the regular business lifecycle rather than having 
to retroactively change them.\445\
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    \442\ See Exchange Act proposed rule 15l-3(c)(1) and Advisers 
Act proposed rule 211h-1(c)(1).
    \443\ See supra note 442.
    \444\ See Exchange Act proposed rule 15l-3(c)(2) and Advisers 
Act proposed rule 211h-1(c)(2). See also Proposed Amendments to 
Investment Company Advertising Rules, Investment Company Act Release 
No. 25575 (May 17, 2002); Amendments to Investment Company 
Advertising Rules, Investment Company Act Release No. 26195 (Sept. 
29, 2003) (stating that ``radio and television advertisements [must] 
give the required narrative disclosures emphasis equal to that used 
in the major portion of the advertisement''). See also 17 CFR 
230.420.
    \445\ Similarly, we are not requiring firms to send new 
communications to replace all older print communications as this 
would be overly burdensome and costly for firms.
---------------------------------------------------------------------------

    We request comment generally on our proposed requirement to 
disclose a firm's regulatory status and, for financial professionals, 
their association with such firm, and in particular on the following 
issues:
     Does our proposed rule requiring disclosure of a firm's 
registration status, either alone or in combination with the proposed 
relationship summary, sufficiently address the concerns addressed by 
our proposed restriction on certain names or titles? If not, why not?
     Would the proposed rules requiring disclosure of 
registration status and the financial professional's association with 
the firm give retail investors greater clarity about various aspects of 
their relationship with a financial professional (e.g., his or her 
services, compensation structures, conflicts of interest, and legal 
obligations)?
     To what extent do firms already clearly and conspicuously 
disclose their federal and/or state registration as investment advisers 
or broker-dealers? To what extent do financial professionals already 
disclose their association with the broker-dealer or investment 
adviser? If such status is disclosed, is it typically in fine print or 
presented in a manner that it is not easily recognizable to investors?
     Do retail investors understand what it means for a firm to 
be ``registered'' with the Commission or a state? Additionally, do 
retail investors understand what it means for a financial professional 
to be an ``associated person'' of a broker-dealer or a ``supervised 
person'' of an investment adviser?
     Would our proposed rules improve clarity and consistency 
for investors in identifying a firm's regulatory status and a financial 
professional's association with a firm or will it lead to unnecessary, 
wordy, and possibly redundant disclosure? If the latter, how can we 
address this?
     Are we correct that investors would find it helpful to 
know whether a firm is registered as an investment adviser or a broker-
dealer or a financial professional is associated with a broker-dealer 
or supervised by an investment adviser so that they can refer to the 
relationship summary to better understand the practical implications of 
the firm's registration and such financial professional's association 
with that firm?
     Should dually registered firms be required to disclose 
both registration statuses? Would this requirement cause more confusion 
or help to address it? If so, how? By requiring a financial 
professional to disclose whether he or she is an associated person of a 
broker-dealer or a supervised person of an investment adviser, would we 
be assisting retail investors in understanding the capacity in which 
their financial professional services them? For example, would retail 
investors serviced by dual hatted financial professionals understand 
that their financial professional may act in dual capacities (i.e., 
brokerage and advisory)?
     Are our proposed requirements prescribing the presentation 
of the disclosure appropriate? Should we consider removing any of these 
requirements? Alternatively, are there requirements we should add? If 
so, which requirements and why? Are there requirements that we should 
modify? For example, could the Commission's objective of ensuring 
prominence of disclosure be served through a more principles-based 
approach, or through different requirements (e.g., that the disclosure 
be not 20% smaller than the principal text)?
     Should the account statement or other disclosure clarify 
whether a retail investor has an advisory or a brokerage account? If 
so, how?
     Should our proposed rules define ``communication''? For 
example, should we include in the rule a definition that tracks FINRA's 
definition of ``communication'' in Rule 2210? In particular, FINRA Rule 
2210 defines a ``communication'' as correspondence, retail 
communications and institutional communications. ``Correspondence'' 
means any written (including electronic) communication that is 
distributed or made available to 25 or fewer retail investors within 
any 30 calendar day period and ``Retail communication'' means any 
written (including electronic) communication that is distributed or 
made available to more than 25 retail investors within any 30 calendar 
day period. Finally, ``Institutional communication'' means any written 
(including electronic) communication that is distributed or made 
available only to institutional investors, but does not include a 
member's internal communications. Are there other definitions of 
``communication'' we should consider? As an alternative to the word

[[Page 21469]]

``communication'' in our proposed rules, should we use 
``advertisements'' as defined in rule 206(4)-1 under the Advisers Act, 
or a different term? \446\
---------------------------------------------------------------------------

    \446\ See FINRA Rule 2210(a); rule 206(4)-1 under the Advisers 
Act.
---------------------------------------------------------------------------

     Should the proposed rules apply to all communications to 
retail investors, including oral communications? On the other hand, are 
there certain types of written communications that could be exempted, 
e.g. communications that do not make any financial or investment 
recommendation or otherwise promote a product or service of the member? 
\447\
---------------------------------------------------------------------------

    \447\ See FINRA Rule 2210(b)(1)(D)(iii) (exempting certain 
communications from principal pre-approval).
---------------------------------------------------------------------------

     Should we permit the use of hyperlinks to the registration 
status disclosure statement for electronic communications rather than 
requiring the disclosure statement on the communication itself? Would 
permitting hyperlinks limit or promote the effectiveness of this 
disclosure requirement, and if so, how?
     Should we require broker-dealers, investment advisers and 
financial professionals to state that registration with the Commission 
does not imply a certain level of skill or training? Are there 
potential benefits or drawbacks to requiring this type of statement?

IV. Economic Analysis

    We are sensitive to the economic effects, including the costs and 
benefits that stem from the proposed rules. Whenever the Commission 
engages in rulemaking and is required to consider or determine whether 
an action is necessary or appropriate in the public interest, section 
3(f) of the Exchange Act requires the Commission to consider whether 
the action would promote efficiency, competition, and capital 
formation, in addition to the protection of investors.\448\ Further, 
when making rules under the Exchange Act, section 23(a)(2) of the 
Exchange Act requires the Commission to consider the impact such rules 
would have on competition.\449\ Section 23(a)(2) of the Exchange Act 
also prohibits the Commission from adopting any rule that would impose 
a burden on competition not necessary or appropriate in furtherance of 
the purposes of the Exchange Act.\450\
---------------------------------------------------------------------------

    \448\ See 15 U.S.C. 77b(b) and 15 U.S.C. 78c(f).
    \449\ See 15 U.S.C. 78w(a)(2).
    \450\ Id.
---------------------------------------------------------------------------

    Section 202(c) of the Advisers Act requires the Commission, when 
engaging in rulemaking and required to consider or determine whether an 
action is necessary or appropriate in the public interest, also to 
consider whether the action will promote efficiency, competition, and 
capital formation, in addition to the protection of investors.\451\ The 
Commission provides both a qualitative assessment of the potential 
effects and, where feasible, quantitative estimates of the potential 
aggregate initial and aggregate ongoing costs. In some cases, however, 
quantification is particularly challenging due to the difficulty of 
predicting how market participants would act under the conditions of 
the proposed rules. For example, although we expect that the proposal 
would increase retail investors' understanding of the services provided 
to them, investors could respond differently to the increased 
understanding--by transferring to a different financial firm or 
professional, hiring a financial professional for the first time, or 
entirely abandoning the financial services market while moving their 
assets to other products or markets (e.g., bank deposits or insurance 
products). The Commission encourages commenters to provide any data and 
information that could help us quantify these long-term effects.
---------------------------------------------------------------------------

    \451\ 15 U.S.C. 80b-2(c).
---------------------------------------------------------------------------

    In the economic analysis that follows, we first examine the current 
regulatory and economic landscape to form a baseline for our analysis. 
We then analyze the likely economic effects--including benefits and 
costs and impact on efficiency, competition, and capital formation--
arising from the proposed rules relative to the baseline discussed 
below.

A. Baseline

    This section discusses, as it relates to this proposal, the current 
state of the broker-dealer and investment adviser markets, the current 
regulatory environment, and the current state of retail investor 
perceptions in the market.
1. Providers of Financial Services
a. Broker-Dealers
    As noted above, one market that would be affected by these proposed 
rules \452\ is the market for broker-dealer services, including firms 
that are dually registered as broker-dealers and investment 
advisers.\453\ The market for broker-dealer services encompasses a 
small set of large broker-dealers and thousands of small broker-dealers 
competing for niche or regional segments of the market.\454\
---------------------------------------------------------------------------

    \452\ ``Proposed rules'' used in this economic analysis is 
inclusive of Form CRS and related proposed forms as well as the 
proposed rules themselves.
    \453\ Not all firms that are dually registered as an investment 
adviser and a broker-dealer offer both brokerage and advisory 
accounts to retail investors--for example, some dual registrants 
offer advisory accounts to retail investors but offer only brokerage 
services, such as underwriting services, to institutional clients. 
For purposes of the discussion of the baseline in this economic 
analysis, a dual registrant is any firm that is dually registered 
with the Commission as an investment adviser and a broker-dealer. 
For the purposes of the relationship summary, however, we propose to 
define dual registrant as a firm that is dually registered as a 
broker-dealer and an investment adviser and offers services to 
retail investors as both a broker-dealer and investment adviser. See 
supra note 25.
    \454\ See Risk Management Controls for Brokers or Dealers with 
Market Access, Securities Exchange Act Release No. 63241 (Nov. 3, 
2010) [75 FR 69791, 69822 (Nov. 15, 2010)].
---------------------------------------------------------------------------

    As of December 2017, there were approximately 3,841 registered 
broker-dealers with over 130 million customer accounts. In total, these 
broker-dealers have close to $4 trillion in total assets.\455\ More 
than two-thirds of all brokerage assets and close to one-third of all 
customer accounts are held by the 16 largest broker-dealers, as shown 
in Table 1, Panel A.\456\ Of the broker-dealers registered with the 
Commission as of December 2017, 366 broker-dealers were dually 
registered as investment advisers; \457\ however, these firms hold 
nearly 90 million (68%) customer accounts.\458\ Approximately 546 
broker-

[[Page 21470]]

dealers (14%) reported at least one type of non-securities business, 
including insurance, retirement planning, mergers & acquisitions, and 
real estate, among others.\459\ Approximately 74% of registered broker-
dealers report retail customer activity.\460\
---------------------------------------------------------------------------

    \455\ Assets are estimated by Total Assets (allowable and non-
allowable) from Part II of the FOCUS filings (Form X-17A-5 Part II, 
available at https://www.sec.gov/files/formx-17a-5_2.pdf) and 
correspond to balance sheet total assets for the broker-dealer. The 
Commission does not have an estimate of the total amount of customer 
assets for broker-dealers. We estimate broker-dealer size from the 
total balance sheet assets as described above.
    \456\ Approximately $3.91 trillion of total assets of broker-
dealers (98%) are at firms with total assets in excess of $1 
billion. Of the 30 dual registrants in the group of broker-dealers 
with total assets in excess of $1 billion, total assets for these 
dual registrants are $2.46 trillion (62%) of aggregate broker-dealer 
assets. Of the remaining 88 firms, 81 have affiliated investment 
advisers.
    \457\ Because this number does not include the number of broker-
dealers who are also registered as state investment advisers, the 
number undercounts the full number of broker-dealers that operate in 
both capacities. Further, not all firms that are dually registered 
as an investment adviser and a broker-dealer offer both brokerage 
and advisory accounts to retail investors--for example, some dual 
registrants offer advisory accounts to retail investors but offer 
only brokerage services, such as underwriting services, to 
institutional customers. For purposes of the discussion of the 
baseline in this economic analysis, a dual registrant is any firm 
that is dually registered with the Commission as an investment 
adviser and a broker-dealer.
    \458\ Some broker-dealers may be affiliated with investment 
advisers without being dually registered. From Question 10 on Form 
BD, 2,145 broker-dealers report that directly or indirectly, they 
either control, are controlled by, or under common control with an 
entity that is engaged in the securities or investment advisory 
business. Comparatively, 2,478 (19.57%) SEC-registered investment 
advisers report an affiliate that is a broker-dealer in Section 7A 
of Schedule D of Form ADV, including 1,916 SEC-registered investment 
advisers that report an affiliate that is a registered broker-
dealer. Approximately 75% of total assets under management of 
investment advisers are managed by these 2,478 investment advisers.
    \459\ We examined Form BD filings to identify broker-dealers 
reporting non-securities business. For the 546 broker-dealers 
reporting such business, staff analyzed the narrative descriptions 
of these businesses on Form BD, and identified the most common types 
of businesses: Insurance (208), management/financial/other 
consulting (101), advisory/retirement planning (80), mergers & 
acquisitions (71), foreign exchange/swaps/other derivatives (31), 
real estate/property management (31), tax services (15), and other 
(141). Note that a broker-dealer may have more than one line of non-
securities business.
    \460\ The value of customer accounts is not available from FOCUS 
data for broker-dealers. Therefore, to obtain estimates of firm size 
for broker-dealers, we rely on the value of broker-dealers total 
assets as obtained from FOCUS reports. Retail sales activity is 
identified from Form BR, which categorizes retail activity broadly 
(by marking the ``sales'' box) or narrowly (by marking the 
``retail'' or ``institutional'' boxes as types of sales activity). 
We use the broad definition of sales as we preliminarily believe 
that many firms will just mark ``sales'' if they have both retail 
and institutional activity. However, we note that this may capture 
some broker-dealers that do not have retail activity, although we 
are unable to estimate that frequency. We request comment on whether 
firms that intermediate both retail and institutional customer 
activity generally market only ``sales'' on Form BR.
---------------------------------------------------------------------------

    Panel B of Table 1 limits the broker-dealers to those that report 
some retail investor activity. As of December 2017, there were 
approximately 2,857 broker-dealers that served retail investors, with 
over $3.6 trillion in assets (90% of total broker-dealer assets) and 
128 million (96%) customer accounts.\461\ Of those broker-dealers 
serving retail investors, 360 are dually registered as investment 
advisers.\462\
---------------------------------------------------------------------------

    \461\ Total assets and customer accounts for broker-dealers that 
serve retail customers also include institutional accounts. Data 
available from Form BD and FOCUS data is not sufficiently granular 
to identify the percentage of retail and institutional accounts at 
firms.
    \462\ Of the 36 dual registrants in the group of retail broker-
dealers with total assets in excess of $500 million, total assets 
for these dual registrants are $2.19 trillion (60%) of aggregate 
retail broker-dealer assets. Of the remaining 72 retail broker-
dealers, 67 have affiliated investment advisers.
    \463\ The data is obtained from FOCUS filings as of December 
2017. Note that there may be a double-counting of customer accounts 
among in particular the larger broker-dealers as they may report 
introducing broker-dealer accounts as well in their role as clearing 
broker-dealers.
    \464\ In addition to the approximately 130 million individual 
accounts at broker-dealers, there are approximately 293,000 omnibus 
accounts (0.2% of total accounts at broker-dealers), across all 
3,841 broker-dealers, of which approximately 99% are held at broker-
dealers with greater than $1 billion in total assets. See also supra 
note 455. Omnibus accounts reported in FOCUS data are the accounts 
of non-carrying broker-dealers with carrying broker-dealers. These 
accounts may have securities of multiple customers (of the non-
carrying firm), or securities that are proprietary assets of the 
non-carrying broker-dealer. We are unaware from the data available 
to determine how many customer accounts non-carrying broker-dealers 
may have. The data does not allow the Commission to parse the total 
assets in those accounts to determine to whom such assets belong. 
Therefore, our estimate may be underinclusive of all customer 
accounts held at broker-dealers.
    \465\ Customer Accounts includes both broker-dealer and 
investment adviser accounts for dual registrants.

                      Table 1--Panel A: Registered Broker-Dealers as of December 2017 \463\
                       [Cumulative Broker-Dealer Total Assets and Customer Accounts \464\]
----------------------------------------------------------------------------------------------------------------
                                                                                                    Cumulative
                                                   Total number      Number of      Cumulative       number of
      Size of broker-dealer  (total assets)           of BDs           dual-       total assets      customer
                                                                  registered BDs                  Accounts \465\
----------------------------------------------------------------------------------------------------------------
>$50 billion....................................              16              10     $2,717 bil.      40,969,187
$1 billion to $50 billion.......................             102              20      1,196 bil.      81,611,933
$500 million to $1 billion......................              38               7         26 bil.       4,599,330
$100 million to $500 million....................             118              26         26 bil.       1,957,981
$10 million to $100 million.....................             482              94         17 bil.       2,970,133
$1 million to $10 million.......................           1,035             141          4 bil.         233,946
<$1 million.....................................           2,055              68          1 bil.           5,588
                                                 ---------------------------------------------------------------
    Total.......................................           3,841             366      3,987 bil.     132,348,098
----------------------------------------------------------------------------------------------------------------


                     Table 1--Panel B: Registered Retail Broker-Dealers as of December 2017
                          [Cumulative Broker-Dealer Total Assets and Customer Accounts]
----------------------------------------------------------------------------------------------------------------
                                                                                                    Cumulative
                                                   Total number      Number of      Cumulative       number of
      Size of broker-dealer  (total assets)           of BDs           dual-       total assets      customer
                                                                  registered BDs                     accounts
----------------------------------------------------------------------------------------------------------------
>$50 billion....................................              15              10     $2,647 bil.      40,964,945
$1 billion to $50 billion.......................              70              19        923 bil.      77,667,615
$500 million to $1 billion......................              23               7         16 bil.       4,547,574
$100 million to $500 million....................              93              25         20 bil.       1,957,981
$10 million to $100 million.....................             372              94         14 bil.       2,566,203
$1 million to $10 million.......................             815             139          3 bil.         216,158
<$1 million.....................................           1,469              66        $.4 bil.           5,588
                                                 ---------------------------------------------------------------
    Total.......................................           2,857             360     $3,624 bil.     127,926,064
----------------------------------------------------------------------------------------------------------------


[[Page 21471]]

    Table 2 reports information on brokerage commissions,\466\ fees, 
and selling concessions from the fourth quarter of 2017 for all broker-
dealers, including dual registrants.\467\ On average, broker-dealers, 
including those that are dually registered as investment advisers, earn 
about $2.1 million per quarter in revenue from commissions and more 
than double that amount in fees,\468\ although the Commission notes 
that fees encompass a variety of fees, not just those related to 
advisory services.\469\ The level of revenues earned from broker-
dealers for commissions and fees increases with broker-dealer size, but 
also tends to be more heavily weighted towards commissions for broker-
dealers with less than $10 million in assets and is weighted more 
heavily towards fees for broker-dealers with assets in excess of $10 
million. For example, for the 102 broker-dealers with assets between $1 
billion and $50 billion, average revenues from commissions are $25 
million, while average revenues from fees are approximately $91 
million.\470\
---------------------------------------------------------------------------

    \466\ FOCUS data does not provide mark-ups or mark-downs as a 
separate revenue category and they are not included as part of the 
brokerage commission revenue.
    \467\ Source: FOCUS data.
    \468\ Fees, as detailed in the FOCUS data, include fees for 
account supervision, investment advisory and administrative 
services. Beyond the broad classifications of fee types included in 
fee revenue, we are unable to determine whether fees such as 12b-1 
fees, sub-accounting, or other such service fees are included. The 
data covers both broker-dealers and dually-registered firms. FINRA's 
Supplemental Statement of Income, Line 13975 (Account Supervision 
and Investment Advisory Services) denotes that fees earned for 
account supervision are those fees charged by the firm for providing 
investment advisory services where there is no fee charged for trade 
execution. Investment Advisory Services generally encompass 
investment advisory work and execution of client transactions, such 
as wrap arrangements. These fees also include fees charged by 
broker-dealers that are also registered with the Commodity Futures 
Trading Commission (``CFTC''), but do not include fees earned from 
affiliated entities (Item A of question 9 under Revenue in the 
Supplemental Statement of Income).
    \469\ With respect to the FOCUS data, additional granularity of 
what services comprise ``advisory services'' is not available.
    \470\ A rough estimate of total fees in this size category would 
be 102 broker-dealers with assets between $1 billion and $50 billion 
multiplied by the average fee revenue of $91 million, or $9.381 
billion in total fees. Divided by the number of customer accounts in 
this size category (81,611,933), the average account would be 
charged approximately $115 in fees per quarter, or $460 per year.
---------------------------------------------------------------------------

    In addition to revenue generated from commissions and fees, broker-
dealers may also receive revenues from other sources, including margin 
interest, underwriting, research services, and third-party selling 
concessions, such as from sales of investment company (``IC'') shares. 
As shown in Table 2, Panel A, these selling concessions are generally a 
smaller fraction of broker-dealer revenues than either commissions or 
fees, except for broker-dealers with total assets between $10 million 
and $100 million. For these broker-dealers, revenue from third-party 
selling concessions is the largest category of revenues and constitutes 
approximately 44% of total revenues earned by these firms.
    Table 2, Panel B, below provides aggregate revenues by revenue type 
(commissions, fees, or selling concessions) for broker-dealers 
delineated by whether the broker-dealer is also a dual registrant. 
Broker-dealers dually registered as investment advisers have a 
significantly larger fraction of their revenues from fees compared to 
commissions or selling concessions, whereas broker-dealers that are not 
dually registered generated approximately 43% of their advice-related 
revenues as commissions and only 32% of their advice-related revenues 
from fees, although we lack granularity to determine whether advisory 
services, in addition to supervision and administrative services, 
contribute to fees at standalone broker-dealers.

            Table 2--Panel A: Average Broker-Dealer Revenues From Revenue Generating Activities \471\
----------------------------------------------------------------------------------------------------------------
                                                                                                   Sales of  IC
      Size of broker-dealer in total assets              N          Commissions     Fees \472\        shares
----------------------------------------------------------------------------------------------------------------
>$50 billion....................................              16    $176,193,599    $365,014,954     $20,493,769
$1 billion-$50 billion..........................             102      25,109,619      91,966,559      18,808,687
$500 million-$1 billion.........................              38       6,322,803      11,312,112       6,724,401
$100 million-$500 million.......................             118       7,698,889      11,338,175       4,536,407
$10 million-$100 million........................             483       1,801,079       2,811,290       3,653,475
$1 million-$10 million..........................           1,035         633,720         372,757         217,444
<$1 million.....................................           2,049          66,503          38,618          26,270
                                                 ---------------------------------------------------------------
    Average of All Broker-Dealers...............           3,841       2,132,544       4,897,521       1,322,759
----------------------------------------------------------------------------------------------------------------


---------------------------------------------------------------------------

    \471\ The data obtained from December 2017 FOCUS reports and 
averaged across size groups.
    \472\ Fees, as detailed in the FOCUS data, include fees for 
account supervision, investment advisory and administrative 
services. The data covers both broker-dealers and dually-registered 
firms.
---------------------------------------------------------------------------


---------------------------------------------------------------------------

    \473\ See id.

 Table 2--Panel B: Aggregate Total Revenues From Revenue Generating Activities for Broker-Dealers Based on Dual
                                                Registrant Status
----------------------------------------------------------------------------------------------------------------
                                                                                                    Sales of IC
               Broker-dealer type                        N          Commissions     Fees \473\        shares
----------------------------------------------------------------------------------------------------------------
Dual Registered as IAs..........................             366      $4.27 bil.     $15.88 bil.       $2.8 bil.
Standalone Registered BDs.......................           3,475       3.92 bil.       2.93 bil.       2.28 bil.
                                                 ---------------------------------------------------------------
    All.........................................           3,841       8.19 bil.      18.81 bil.       5.08 bil.
----------------------------------------------------------------------------------------------------------------


[[Page 21472]]

i. Disclosures for Broker-Dealers
    Broker-dealers register with and report information to the 
Commission, the SROs, and other jurisdictions through Form BD. Form BD 
requires information about the background of the applicant, its 
principals, controlling persons, and employees, as well as information 
about the type of business the broker-dealer proposes to engage in and 
all control affiliates engaged in the securities or investment advisory 
business.\474\ Broker-dealers report whether a broker-dealer or any of 
its control affiliates have been subject to criminal prosecutions, 
regulatory actions, or civil actions in connection with any investment-
related activity, as well as certain financial matters.\475\ Once a 
broker-dealer is registered, it must keep its Form BD current by 
amending it promptly when the information is or becomes inaccurate for 
any reason.\476\ In addition, firms report similar information and 
additional information to FINRA pursuant to FINRA Rule 4530.\477\ The 
current Paperwork Reduction Act estimate for the total industry-wide 
annual filing burden to comply with rule 15b1-1 and file Form BD is 
approximately 4,999 hours, with an estimated internal cost of 
compliance associated with those burden hours for all broker-dealers of 
$1,394,721.
---------------------------------------------------------------------------

    \474\ See generally Form BD.
    \475\ See Item 11 and Disclosure Reporting Pages, Form BD.
    \476\ See Exchange Act rule 15b3-1(a).
    \477\ See supra Section II.B.7.
---------------------------------------------------------------------------

    A significant amount of information concerning broker-dealers and 
their associated natural persons, including information from Form BD, 
Form BDW, and Forms U4, U5, and U6, is publicly available through 
FINRA's BrokerCheck system. This information includes violations of and 
claims of violations of the securities and other financial laws by 
broker-dealers and their financial professionals; criminal or civil 
litigation, regulatory actions, arbitration, or customer complaints 
against broker-dealers and their financial professionals; and the 
employment history and licensing information of financial professionals 
associated with broker-dealers, among other things.\478\
---------------------------------------------------------------------------

    \478\ FINRA Rule 8312 governs the information FINRA releases to 
the public via BrokerCheck. See supra note 280 and accompanying 
text.
---------------------------------------------------------------------------

    Broker-dealers are subject to other disclosure requirements under 
the federal securities laws and SRO rules. For instance, under existing 
antifraud provisions of the Exchange Act, a broker-dealer has a duty to 
disclose material information to its customers conditional on the scope 
of the relationship with the customer.\479\ Disclosure has also been a 
feature of other regulatory efforts related to financial services, 
including those of DOL and certain FINRA rules.\480\
---------------------------------------------------------------------------

    \479\ A broker-dealer also may be liable if it does not disclose 
``material adverse facts of which it is aware''. See, e.g., Chasins 
v. Smith, Barney & Co., 438 F.2d at 1172; SEC v. Hasho, 784 F. Supp. 
at 1110; Release 48758, supra note 243 (``When a securities dealer 
recommends stock to a customer, it is not only obligated to avoid 
affirmative misstatements, but also must disclose material adverse 
facts of which it is aware. That includes disclosure of ``adverse 
interests'' such as ``economic self-interest'' that could have 
influenced its recommendation.'') (citations omitted).
    \480\ See, infra Section IV.A.1.c; FINRA Notice 10-54, supra 
note 12. Generally, all registered broker-dealers that deal with the 
public must become members of FINRA, a registered national 
securities association, and may choose to become exchange members. 
See Exchange Act section 15(b)(8) and Exchange Act rule 15b9-1. 
FINRA is the sole national securities association registered with 
the SEC under section 15A of the Exchange Act. Accordingly, for 
purposes of discussing a broker-dealer's regulatory requirements 
when providing advice, we focus on FINRA's regulation, examination 
and enforcement with respect to member broker-dealers. FINRA 
disclosure rules include but are not limited FINRA rules 2210(d)(2) 
(communications with the public), 2260 (disclosures), 2230 (customer 
account statements and confirmations), and 2270 (day-trading risk 
disclosure statement).
---------------------------------------------------------------------------

b. Investment Advisers
    Other parties that would be affected by the proposed rules and 
proposed Form CRS are SEC-registered investment advisers.\481\ This 
section first discusses SEC-registered investment advisers, followed by 
a discussion of state-registered investment advisers.
---------------------------------------------------------------------------

    \481\ In addition to SEC-registered investment advisers, which 
are the focus of this section, the proposed rules and proposed Form 
CRS could also affect banks, trusts, insurance companies, and other 
providers of financial advice.
---------------------------------------------------------------------------

    As of December 2017, there are approximately 12,700 investment 
advisers registered with the Commission. The majority of SEC-registered 
investment advisers report that they provide portfolio management 
services for individuals and small businesses.\482\
---------------------------------------------------------------------------

    \482\ Of the approximately 12,700 SEC-registered investment 
advisers, 7,979 (64%) report in Item 5.G.(2) of Form ADV that they 
provide portfolio management services for individuals and/or small 
businesses. In addition, there are approximately 17,800 state-
registered investment advisers, of which 145 are also registered 
with the Commission. Approximately 13,800 state-registered 
investment advisers are retail facing (see Item 5.D of Form ADV).
---------------------------------------------------------------------------

    Of all SEC-registered investment advisers, 366 identified 
themselves as dually registered broker-dealers.\483\ Further, 2,478 
investment advisers (20%) reported an affiliate that is a broker-
dealer, including 1,916 investment advisers (15%) that reported an SEC-
registered broker-dealer affiliate.\484\ As shown in Panel A of Table 3 
below, in aggregate, investment advisers have over $72 trillion in 
assets under management (``AUM''). A substantial percentage of AUM at 
investment advisers is held by institutional clients, such as 
investment companies, pooled investment vehicles, and pension or profit 
sharing plans; therefore, although the dollar value of AUM for 
investment advisers and of customer assets in broker-dealer accounts is 
comparable, the total number of accounts for investment advisers is 
only 27% of the number of customer accounts for broker-dealers.
---------------------------------------------------------------------------

    \483\ See supra note 457.
    \484\ Item 7.A.1 of Form ADV.
---------------------------------------------------------------------------

    Based on staff analysis of Form ADV data, approximately 60% of 
investment advisers (7,600) have some portion of their business 
dedicated to retail investors, including both high net worth and non-
high net worth individual clients, as shown in Panel B of Table 3.\485\ 
In total, these firms have approximately $32 trillion of assets under 
management.\486\ Approximately 6,600 registered investment advisers 
(52%) serve 29 million non-high net worth individual clients and have 
approximately $5.33 trillion in assets under management, while nearly 
7,400 registered investment advisers (58%) serve approximately 4.8 
million high net worth individual clients with $6.56 trillion in assets 
under management.\487\
---------------------------------------------------------------------------

    \485\ We use the responses to Items 5.D.(a)(1), 5.D.(a)(3), 
5.D.(b)(1), and 5.D.(b)(3) of Part 1A. If at least one of these 
responses was filled out as greater than 0, the firm is considered 
as providing business to retail investors. Form ADV Part 1A.
    \486\ The aggregate AUM reported for these investment advisers 
that have retail investors includes both retail AUM as well as any 
institutional AUM also held at these advisers.
    \487\ Estimates are based on IARD system data as of December 31, 
2017. The AUM reported here is specifically that of those non-high 
net worth clients. Of the 7,600 investment advisers serving retail 
investors, 360 may also be dually registered as broker-dealers.

[[Page 21473]]



                   Table 3--Panel A: Registered Investment Advisers (RIAs) as of December 2017
                           [Cumulative RIA assets under management (AUM) and accounts]
----------------------------------------------------------------------------------------------------------------
                                                                  Number of dual-                   Cumulative
        Size of investment adviser  (AUM)         Number of RIAs    registered    Cumulative AUM     number of
                                                                       RIAs                          accounts
----------------------------------------------------------------------------------------------------------------
>$50 billion....................................             246              15    $48,221 bil.      17,392,968
$1 billion to $50 billion.......................           3,238             115     21,766 bil.      11,560,805
$500 million to $1 billion......................           1,554              53      1,090 bil.       2,678,084
$100 million to $500 million....................           5,568             129      1,303 bil.       3,942,639
$10 million to $100 million.....................           1,103              24         59 bil.         198,659
$1 million to $10 million.......................             172               2          1 bil.           5,852
<$1 million.....................................             778              28        .02 bil.          31,291
                                                 ---------------------------------------------------------------
    Total.......................................          12,659             366     72,439 bil.      35,810,298
----------------------------------------------------------------------------------------------------------------


               Table 3--Panel B: Retail Registered Investment Advisers (RIAs) as of December 2017
                           [Cumulative RIA assets under management (AUM) and accounts]
----------------------------------------------------------------------------------------------------------------
                                                                     Number of
                                                                       dual-                        Cumulative
        Size of investment adviser  (AUM)         Number of RIAs    registered    Cumulative AUM     number of
                                                                       RIAs                          accounts
----------------------------------------------------------------------------------------------------------------
>$50 billion....................................             106              15    $22,788 bil.      16,638,548
$1 billion to $50 billion.......................           1,427             114      8,472 bil.      10,822,275
$500 million to $1 billion......................             934              52        652 bil.       2,602,220
$100 million to $500 million....................           4,114             126        917 bil.       3,814,900
$10 million to $100 million.....................             711              24         40 bil.         231,663
$1 million to $10 million.......................              98               1         .4 bil.           5,804
<$1 million.....................................             198              29        .02 bil.          31,271
                                                 ---------------------------------------------------------------
    Total.......................................           7,588             361     32,870 bil.      34,146,681
----------------------------------------------------------------------------------------------------------------

    As an alternative to registering with the Commission, smaller 
investment advisers could register with state regulators.\488\ As of 
December 2017, there are 17,635 state registered investment 
advisers,\489\ of which 145 are also registered with the Commission. Of 
the state-registered investment advisers, 236 are dually registered as 
broker-dealers, while 5% (920) report a broker-dealer affiliate. In 
aggregate, state-registered investment advisers have approximately $341 
billion in AUM. Eighty-two percent of state-registered investment 
advisers report that they provide portfolio management services for 
individuals and small businesses, compared to just 64% for SEC-
registered investment advisers.
---------------------------------------------------------------------------

    \488\ Pursuant to the Dodd-Frank Act, Item 2.A. of Part 1A of 
Form ADV requires an investment adviser to register with the SEC if 
it (i) is a large adviser that has $100 million or more of 
regulatory assets under management (or $90 million or more if an 
adviser is filing its most recent annual updating amendment and is 
already registered with the SEC); (ii) is a mid-sized adviser that 
does not meet the criteria for state registration or is not subject 
to examination; (iii) meets the requirements for one or more of the 
revised exemptive rules under section 203A discussed below; (iv) is 
an adviser (or subadviser) to a registered investment company; (v) 
is an adviser to a business development company and has at least $25 
million of regulatory assets under management; or (vi) received an 
order permitting the adviser to register with the Commission. 
Although the statutory threshold is $100 million, the SEC raised the 
threshold to $110 million for those investment advisers that do not 
already file with the SEC.
    \489\ There are 79 investment advisers with latest reported 
Regulatory Assets Under Management in excess of $110 million but are 
not listed as registered with the SEC. For the purposes of this 
rulemaking, these are considered erroneous submissions.
---------------------------------------------------------------------------

    Approximately 77% of state-registered investment advisers (13,470) 
have some portion of their business dedicated to retail investors,\490\ 
and in aggregate, these firms have approximately $308 billion in 
AUM.\491\ Approximately 12,700 (72%) state-registered advisers serve 
616,000 non-high net worth retail clients and have approximately $125 
billion in AUM, while over 11,000 (63%) state-registered advisers serve 
approximately 194,000 high net worth retail clients with $138 billion 
in AUM.\492\
---------------------------------------------------------------------------

    \490\ We use the responses to Items 5.D.(a)(1), 5.D.(a)(3), 
5.D.(b)(1), and 5.D.(b)(3) of Part 1A. If at least one of these 
responses was filled out as greater than 0, the firm is considered 
as providing business to retail investors. Form ADV Part 1A.
    \491\ The aggregate AUM reported for these investment advisers 
that have retail investors includes both retail AUM as well as any 
institutional AUM also held at these advisers.
    \492\ Estimates are based on IARD system data as of December 31, 
2017. The AUM reported here is specifically that of those non-high 
net worth investors. Of the 13,471 investment advisers serving 
retail investors, 144 may also be dually registered as broker-
dealers.
---------------------------------------------------------------------------

    Table 4 details the compensation structures employed by 
approximately 12,700 investment advisers. Approximately 95% are 
compensated through a fee-based arrangement, where a percentage of 
assets under management are remitted to the investment adviser from the 
investor for advisory services. As shown in the table below, most 
investment advisers rely on a combination of different compensation 
types, beyond fee-based compensation, including fixed fees, hourly 
charges, and performance based fees. Less than 4% of investment 
advisers charge commissions \493\ to their investors.
---------------------------------------------------------------------------

    \493\ Some investment advisers report on Item 5.E. of Form ADV 
that they receive ``commissions.'' As a form of deferred sales load, 
all payments of ongoing sales charges to intermediaries would 
constitute transaction-related compensation. Intermediaries 
receiving those payments should consider whether they need to 
register as broker-dealers under section 15 of the Exchange Act.

[[Page 21474]]



      Table 4--Registered Investment Advisers Compensation by Type
------------------------------------------------------------------------
            Compensation type                   Yes             No
------------------------------------------------------------------------
A percentage of assets under management.          12,041             617
Hourly charges..........................           3,670           8,988
Subscription fees (for a newsletter or               119          12,539
 periodical)............................
Fixed fees (other than subscription                5,406           7,252
 fees)..................................
Commissions.............................             490          12,168
Performance-based fees..................           4,780           7,878
Other...................................           1,846          10,812
------------------------------------------------------------------------

    As discussed above, many investment advisers participate in wrap 
fee programs. As of December 31, 2017, more than 5% of the SEC-
registered investment advisers sponsor a wrap fee program and more than 
9% act as a portfolio manager for one or more wrap fee programs.\494\ 
From the data available, we are unable to determine how many advisers 
provide advice about investing in wrap fee programs, because advisers 
providing such advice may be neither sponsors nor portfolio managers.
---------------------------------------------------------------------------

    \494\ A wrap fee program sponsor is as a firm that sponsors, 
organizes, or administers the program or selects, or provides advice 
to clients regarding the selection of, other investment advisers in 
the program. See General Instructions to Form ADV.
---------------------------------------------------------------------------

ii. Disclosures for Investment Advisers
    As fiduciaries, investment advisers have a duty to provide full and 
fair disclosure of material facts and are subject to express disclosure 
requirements in Form ADV.\495\ Consistent with this duty and those 
requirements, investment advisers file Form ADV to register with the 
Commission or state securities authorities, as applicable, and provide 
an annual update to the form.\496\ Part 1 of Form ADV provides 
information to regulators, and made available to clients, prospective 
clients, and the public, about the registrants' ownership, investors, 
and business practices. Advisers also prepare a Form ADV Part 2A 
narrative brochure that contains information about the investment 
adviser's business practices, fees, conflicts of interest, and 
disciplinary information,\497\ in addition to a Part 2B brochure 
supplement that includes information about the specific individuals, 
acting on behalf of the investment adviser, who actually provide 
investment advice and interact with the client.\498\ Currently, the 
Part 2A brochure is the primary client-facing disclosure document,\499\ 
however, Parts 1 and 2A are both made publicly available by the 
Commission through IAPD,\500\ and advisers are generally required to 
deliver Part 2A and Part 2B to their clients. The current Paperwork 
Reduction Act estimate of the average annual cost and hour burden for 
investment advisers to complete, amend, and file all parts of Form ADV 
are $6,051 and 23.77 hours.\501\
---------------------------------------------------------------------------

    \495\ See SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 
at 194; see also Brochure Adopting Release, supra note 157. See also 
913 Study, supra note 3, at n.92. For example, if an adviser selects 
or recommends other advisers to investors, it must disclose any 
compensation arrangements or other business relationships between 
the advisory firms, along with the conflicts created, and explain 
how it addresses these conflicts. See Item 10 of Form ADV Part 2A. 
See also 913 Study, supra note 3, at n.93. Other potential conflicts 
of interest include acting as a principal in transactions with 
investors and compensation received thereof; incentives provided by 
third parties to sell their services and products; and agency cross-
trades, where the advisers is also a broker-dealer and executes a 
client's order by crossing the orders with those of non-advisory 
clients. See Interpretation of Section 206(3) of the Investment 
Advisers Act of 1940, Investment Advisers Act Release No. 1732 (Jul. 
20, 1998), at n.3.
    \496\ See Advisers Act rules 203-1 and 204-1. Part 1A (1B) of 
Form ADV is the registration application for the Commission (and 
state securities authorities). Part 2 of Form ADV consists of a 
narrative ``brochure'' about the adviser and ``brochure 
supplements'' about certain advisory personnel on whom clients may 
rely for investment advice. See Brochure Adopting Release, supra 
note 157.
    \497\ Part 2A of Form ADV contains 18 mandatory disclosure items 
about the advisory firm, including information about an adviser's: 
(1) Range of fees; (2) methods of analysis; (3) investment 
strategies and risk of loss; (4) brokerage, including trade 
aggregation polices and directed brokerage practices, as well as the 
use of soft dollars; (5) review of accounts; (6) client referrals 
and other compensation; (7) disciplinary history; and (8) financial 
information, among other things. Much of the disclosure in Part 2A 
addresses an investment adviser's conflicts of interest with its 
investors, and is disclosure that the adviser, as a fiduciary, must 
make to investors in some manner regardless of the form 
requirements. See Brochure Adopting Release, supra note 157.
    \498\ Part 2B, or the ``brochure supplement,'' includes 
information about certain advisory personnel that provide retail 
client investment advice, and contains educational background, 
disciplinary history, and the adviser's supervision of the advisory 
activities of its personnel. See Instruction 5 of General 
Instructions for Form ADV. Registrants are not required to file Part 
2B (brochure supplement) electronically, but must preserve a copy of 
the supplement(s) and make them available upon request.
    \499\ See Brochure Adopting Release, supra note 157.
    \500\ See Investment Adviser Public Disclosure, available at 
https://adviserinfo.sec.gov/.
    \501\ See infra Section V.A.2.
---------------------------------------------------------------------------

c. Disclosure Obligations for Broker-Dealers and Investment Advisers 
Under DOL Rules and Exemptions
    As noted, firms and financial professionals providing services to 
customers in retirement accounts, including workplace retirement plans 
and IRAs, are subject to certain disclosure obligations under rules and 
exemptions issued by the DOL under ERISA and the prohibited transaction 
provisions of the Code.\502\ For example, DOL regulations under a 
statutory exemption for investment advice services provided to plan 
participants and IRAs requires firms and financial professionals to 
disclose information about the services that they will provide and 
their fees and other compensation, and to acknowledge that the adviser 
is acting as a fiduciary.\503\
---------------------------------------------------------------------------

    \502\ See supra note 11.
    \503\ See 29 CFR 2550.408g-1(b)(7). In general, firms and 
financial professionals who receive commissions or other 
transaction-related compensation in connection with providing 
certain fiduciary investment recommendations relating to the assets 
of ERISA-covered workplace retirement plans and IRAs could violate 
provisions under the Code prohibiting fiduciaries from engaging in 
self-dealing and receiving compensation from third parties in 
connection with investments by these plans and IRA (and, with 
respect to such plans, substantially similar prohibited transaction 
rules that apply under ERISA to transactions involving ERISA plans 
but not IRAs). To receive such compensation, firms have historically 
complied with one or more prohibited transaction exemptions 
(``PTEs'') issued by the DOL over time, which generally required 
(among other conditions) disclosures about, e.g., direct and 
indirect compensation received in connection with a recommended 
transactions. See Definition of the Term ``Fiduciary;'' Conflict of 
Interest Rule--Retirement Investment Advice, 81 FR 20945, 20991-92 
(Apr. 8, 2016) (to be codified at 20 C.F.R. pts. 2509, 2510 and 
2550) (``DOL Fiduciary Rule Adopting Release'') (describing action 
to adopt new and amended PTEs and revoke certain PTEs applicable to 
investment advice services).
---------------------------------------------------------------------------

    More recently, the DOL's BIC Exemption would require that firms 
seeking to rely on the exemption to receive commissions and other fees 
in connection with making investment recommendations to IRAs and 
participants of ERISA-covered plans (including advice relating to 
rollovers from plans or between account types) \504\

[[Page 21475]]

generally must (among other conditions) provide disclosure about the 
services to be performed (including monitoring of recommendations, 
offering proprietary products and limiting recommendations) and how the 
investor will pay for services, material conflicts of interest 
(including third party compensation to the firm, affiliates and 
financial professionals), and must also make certain ongoing 
disclosures on a public website.\505\ The DOL adopted the BIC Exemption 
in connection with the amendment of its regulation defining 
``investment advice,'' which had the effect of expanding the 
circumstances under which broker-dealers and investment advisers may be 
fiduciaries for purposes of the prohibited transaction provisions under 
ERISA and the Code (the ``DOL Fiduciary Rule'').\506\ Although a 
decision of the Court of Appeals for the Fifth Circuit recently vacated 
the DOL Fiduciary Rule,\507\ we understand that many firms already have 
taken steps to implement conditions under the BIC Exemption.\508\
---------------------------------------------------------------------------

    \504\ See Best Interest Contract Exemption, 81 FR 21002, 21006-7 
(Apr. 8, 2016) (``BIC Exemption Release'') Best Interest Contract 
Exemption; Correction (Prohibited Transaction Exemption 2016-01), 81 
FR 44773 (July 11, 2016) (``Corrected BIC Exemption''), as amended 
18-Month Extension of Transition Period and Delay of Applicability 
Dates; Best Interest Contract Exemption (PTE 2016-01); Class 
Exemption for Principal Transactions in Certain Assets Between 
Investment Advice Fiduciaries and Employee Benefit Plans and IRAs 
(PTE 2016-02); Prohibited Transaction Exemption 84-24 for Certain 
Transactions Involving Insurance Agents and Brokers, Pension 
Consultants, Insurance Companies, and Investment Company Principal 
Underwriters (PTE 84-24), 82 FR 56545 (Nov. 29, 2017). Depending on 
how they are compensated, investment advisers receiving a level fee 
may not be subject to the full set of contract, disclosure and other 
conditions of the BIC Exemption.
    \505\ See Corrected BIC Exemption, supra note, 504, at sections 
II and III. Ongoing website disclosure would include information 
about certain material conflicts of interest and third party 
payments, a schedule of typical fees and service charges, a 
description of the compensation and incentive arrangements for 
individual financial professionals, and a written description of the 
financial institution's policies and procedures. Id., at section 
III. In the case of recommendations provided to an IRA, the firm 
also would be required to enter into a written contract with the IRA 
owner that includes an acknowledgement of fiduciary status and an 
enforceable promise to adhere to certain ``impartial conduct 
standards'' (including a best interest standard of conduct). Id., at 
section II(a).
    \506\ See DOL Fiduciary Rule Adopting Release, supra note 503.
    \507\ See Chamber of Commerce of the U.S.A., e. al. v. U.S. 
Dep't of Labor, et. al., No. 17-10238 (5th Cir. Mar 15, 2018).
    \508\ See SIFMA and Deloitte, The DOL Fiduciary Rule: A study on 
how financial institutions have responded and the resulting impacts 
on retirement investors (Aug. 9, 2017), available at https://www.sifma.org/wp-content/uploads/2017/08/;Deloitte-White-Paper-on-
the-DOL-Fiduciary-Rule-August-2017.pdf.
---------------------------------------------------------------------------

    The Commission does not currently have data on the number of firms 
that are subject to disclosure obligations under applicable DOL rules 
and exemptions.\509\ However, because we understand that most broker-
dealers expected that they would be required to comply with the BIC 
Exemption to continue to provide services to retail investors in IRAs 
and participant-directed workplace retirement plans,\510\ the 
Commission can broadly estimate the maximum number of broker-dealers 
that could be subject to disclosure obligations under DOL rules and 
exemption including the BIC Exemption from the number of broker-dealers 
that have retail investor accounts. Approximately 74.4% (2,857) of 
registered broker-dealers report sales to retail customers.\511\ 
Similarly, approximately 60% (7,600) of investment advisers serve high 
net worth and non-high net worth individual clients. The Commission 
believes that this number likely overestimates those broker-dealers and 
investment advisers that provide retirement account services. 
Therefore, these 2,850 broker-dealers and 7,600 investment advisers 
that provide retail services represent an upper bound of the number of 
broker-dealers and investment advisers that would likely be subject to 
compliance with disclosure obligations under DOL rules and exemptions 
and may have taken steps to comply with the contract, disclosure and 
other conditions under the DOL's BIC Exemption.\512\
---------------------------------------------------------------------------

    \509\ In order to obtain this information, the Commission would 
need to know which financial firms have retirement-based accounts as 
part of their business model. Under the current reporting regime for 
both broker-dealers and investment advisers, they are not required 
to disclose whether (or what fraction) of their accounts are held by 
retail investors in retirement-based accounts.
    \510\ See BIC Exemption Release, supra note 504, at 21006-07 
(DOL states that it ``anticipates that the [DOL Fiduciary Rule] will 
cover many investment professionals who did not previously consider 
themselves to be fiduciaries under ERISA or the Code.'').
    \511\ As of December 2017, 3,841 broker-dealers filed Form BD. 
Retail sales by broker-dealers were obtained from Form BD.
    \512\ The DOL's Regulatory Impact Analysis estimated that the 
numbers of broker-dealers and investment advisers (including state-
registered investment advisers) that could be affected by their rule 
are approximately 2,500 and 17,500, respectively. See Regulatory 
Impact Analysis for Final Rule and Exemptions, Definition Of The 
Term ``Fiduciary'' Conflicts Of Interest--Retirement Investment 
Advice (Apr. 2016), at 215-229, available at https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/completed-rulemaking/1210-AB32-2/conflict-of-interest-ria.pdf.
---------------------------------------------------------------------------

d. Trends in the Relative Numbers of Providers of Financial Services
    Over time, the relative number of broker-dealers and investment 
advisers has changed. Figure 1 presented below shows the time series 
trend of growth in broker-dealers and investment advisers between 2005 
and 2017. Over the last 13 years, the number of broker-dealers has 
declined from over 6,000 in 2005 to less than 4,000 in 2017, while the 
number of investment advisers has increased from approximately 9,000 in 
2005 to over 12,000 in 2017. This change in the relative numbers of 
broker-dealers and investment advisers over time likely affects the 
competition for advice, and potentially alters the choices available to 
investors on how to receive or pay for such advice, the nature of the 
advice, and the attendant conflicts of interest.
BILLING CODE 8011-01-P

[[Page 21476]]

[GRAPHIC] [TIFF OMITTED] TP09MY18.002

    Increases in the number of investment advisers and decreases in the 
number of broker-dealers could have occurred for a number of reasons, 
including anticipation of possible regulatory changes to the industry, 
other regulatory restrictions, technological innovation (i.e., robo-
advisers and online trading platforms), product proliferation (e.g., 
index mutual funds and exchange-traded products), and industry 
consolidation driven by economic and market conditions, particularly 
among broker-dealers.\513\ Commission staff has observed the transition 
by broker-dealers from traditional brokerage services to also providing 
investment advisory services (often under an investment adviser 
registration, whether federal or state), and many firms have been more 
focused on offering fee-based accounts than accounts that charge 
commissions. \514\ Broker-dealers have indicated that the following 
factors have contributed to this migration: Provision of stability or 
increase in profitability,\515\ perceived lower regulatory burden, and 
provisions of more services to retail customers.
---------------------------------------------------------------------------

    \513\ See, Hester Peirce, Dwindling numbers in the financial 
industry, Brookings Center on Markets and Regulation (May 15, 2017), 
available at https://www.brookings.edu/research/dwindling-numbers-in-the-financial-industry/ (``Brookings Report'') which notes that 
``SEC restrictions have increased by almost thirty percent [since 
2000],'' and that regulations post-2010 were driven in large part by 
the Dodd-Frank Act, page 5. Further, the Brookings Report 
observation of increased regulatory restrictions on broker-dealers 
only reflects CFTC or SEC regulatory actions, but does not include 
regulation by FINRA, SROs, NFA, or the MSRB.
    \514\ The Brookings Report, supra note 513, also discusses the 
shift from broker-dealer to investment advisory business models for 
retail investors, in part due to the DOL Fiduciary Rule (page 7). 
See also the RAND Study, supra note 5, which documents a shift from 
transaction-based to fee-based accounts prior to recent regulatory 
changes. Declining transaction-based revenue due to declining 
commission rates and competition from discount brokerage firms has 
made fee-based products and services more attractive. Although 
discount brokerage firms generally provide execution-only services 
and do not compete directly in the advice market with full service 
broker-dealers and investment advisers, entry by discount brokers 
has contributed to lower commission rates throughout the broker-
dealer industry. Further, fee-based activity generates a steady 
stream of revenue regardless of the customer trading activity, 
unlike commission-based accounts.
    \515\ Commission staff examined a sample of recent Form 10-K or 
Form 10-Q filings of large broker-dealers, many of which are dually 
registered as investment advisers, that have a large fraction of 
retail customer accounts to identify relevant broker-dealers. See, 
e.g., Edward Jones 9/30/2017 Form 10-Q available at https://www.sec.gov/Archives/edgar/data/815917/000156459017023050/ck0000815917-10q_20170929.htm; Raymond James 9/30/2017 Form 10-K 
available at https://www.sec.gov/Archives/edgar/data/720005/000072000517000089/rjf-20170930x10k.htm; Stifle 12/31/2016 Form 10-K 
available at https://www.sec.gov/Archives/edgar/data/720672/000156459017022758/sf-10q_20170930.htm; Wells Fargo 9/30/2017 10-Q 
available at https://www.sec.gov/Archives/edgar/data/72971/000007297117000466/wfc-09302017x10q.htm; and Ameriprise 12/31/2016 
Form 10-K available at https://www.sec.gov/Archives/edgar/data/820027/;000082002717000007/ameriprisefinancial12312016.htm. We note 
that discussions in Form 10-K and 10-Q filings of this sample of 
broker-dealers here may not be representative of other large broker-
dealers or of small to mid-size broker-dealers. Some firms have 
reported record profits as a result of moving clients into fee-based 
accounts, and cite that it provides ``stability and high returns.'' 
See ``Morgan Stanley Wealth Management fees climb to all-time 
high,'' Bloomberg, Jan. 18, 2018, available at https://www.bloomberg.com/news/articles/2018-01-18/morgan-stanley-wealth-management-fees-hit-record-on-stock-rally. Morgan Stanley increased 
the percentage of client assets in fee-based accounts from 37% in 
2013 to 44% in 2017, while decreasing the dependence on transaction-
based revenues from 30% to 19% over the same time period (Morgan 
Stanley Strategic Update, (Jan. 18, 2018), available at https://www.morganstanley.com/about-us-ir/shareholder/4q2017-strategic-update.pdf). See also Beilfuss, Lisa & Brian Hershberg, WSJ Wealth 
Adviser Briefing: The Reinvention of Morgan and Merrill, Adviser 
Profile, The Wall Street Journal (Jan. 25, 2018), available at 
https://blogs.wsj.com/moneybeat/2018/01/25/wsj-wealth-adviser-briefing-the-reinvention-of-morgan-and-merrill-adviser-profile/.
---------------------------------------------------------------------------

    Further, there has been a substantial increase in the number of 
retail clients at investment advisers, both high net worth clients and 
non-high net worth clients as shown in Figure 2. Although the number of 
non-high net worth retail customers of investment advisers dipped 
between 2010 and 2012, since 2012, more than 12 million new non-

[[Page 21477]]

high net worth retail clients have been added. With respect to assets 
under management, we observe a similar, albeit more pronounced pattern 
for non-high net worth retail clients as shown in Figure 3. For high 
net worth retail clients, there has been a pronounced increase in AUM 
since 2012, although AUM has leveled off since 2015.
[GRAPHIC] [TIFF OMITTED] TP09MY18.003

BILLING CODE 8011-01-C
e. Registered Representatives of Broker-Dealers, Investment Advisers 
and Dually Registered Firms
    We estimate the number of associated natural persons of broker-
dealers through data obtained from Form U4, which generally is filed 
for individuals who are engaged in the securities or investment banking 
business of a broker-dealer that is a member of a self-regulatory 
organization (``registered

[[Page 21478]]

representatives'' or ``RR''s). \516\ Similarly, we approximate the 
number of supervised persons of registered investment advisers through 
the number of registered investment adviser representatives (or 
``registered IAR''s), who are supervised persons of investment advisers 
who meet the definition of investment adviser representatives in 
Advisers Act rule 203A-3 and are registered with one or more state 
securities authorities to solicit or communicate with clients.\517\
---------------------------------------------------------------------------

    \516\ The number of associated natural persons of broker-dealers 
may be different from the number of registered representatives of 
broker-dealers, because clerical/ministerial employees of broker-
dealers are associated persons, but are not required to register 
with the firm. Therefore, using the registered representative number 
does not include such persons. However, we do not have data on the 
number of associated natural persons and therefore are not able to 
provide an estimate of the number of associated natural persons. We 
believe that the number of registered representatives is an 
appropriate approximation because they are the individuals at 
broker-dealers that provide advice and services to customers.
    \517\ See Advisers Act rule 203A-3. However, we note that the 
data on numbers of registered IARs may undercount the number of 
supervised persons of investment advisers who provide investment 
advice to retail investors because not all supervised persons who 
provide investment advice to retail investors are required to 
register as IARs. For example, Commission rules exempt from IAR 
registration supervised persons who provide advice only to non-
individual clients or to individuals that meet the definition of 
``qualified client.'' As discussed above, the definition of retail 
investor for purposes of this proposed rulemaking would include 
qualified clients who are natural persons and trusts that represent 
natural persons. Proposed General Instruction 9.(e) to Form CRS. In 
addition, state securities authorities may impose different criteria 
for requiring registration as an investment adviser representative.
---------------------------------------------------------------------------

    We estimate the number of registered representatives and registered 
IARs (together ``registered financial professionals'') at broker-
dealers, investment advisers, and dual registrants by considering only 
the employees of those firms that have Series 6 or Series 7 licenses or 
are registered with a state as a broker-dealer agent or investment 
adviser representative.\518\ We only consider employees at firms who 
have retail-facing business, as defined previously.\519\ We observe in 
Table 5, that approximately 61% of registered financial professionals 
are employed by dually registered entities. The percentage varies by 
the size of the firm. For example, for firms with total assets between 
$1 billion and $50 billion, 72% of all registered financial 
professionals in that size category are employed by dually registered 
firms. Focusing on dually registered firms only, approximately 59.7% of 
total licensed representatives at these firms are dual-hatted, 
approximately 39.9% are only registered representatives; and less than 
one percent are only registered investment adviser representatives.
---------------------------------------------------------------------------

    \518\ We calculate these numbers based on Form U4 filings. 
Representatives of broker-dealers, investment advisers, and issuers 
of securities must file this form when applying to become registered 
in appropriate jurisdictions and with self-regulatory organizations. 
Firms and representatives have an obligation to amend and update 
information as changes occur. Using the examination information 
contained in the form, we consider an employee a financial 
professional if he has an approved, pending, or temporary 
registration status for either Series 6 or 7 (RR) or is registered 
as an investment adviser representative in any state or U.S. 
territory (IAR). We limit the firms to only those that do business 
with retail investors, and only to licenses specifically required to 
be licensed as an RR or IAR.
    \519\ See supra notes 460 and 485.
    \520\ The classification of firms as dually registered, 
standalone broker-dealers, and standalone investment advisers comes 
from Forms BD, FOCUS, and ADV as described earlier. The number of 
representatives at each firm is obtained from Form U4 filings. Note 
that all percentages in the table have been rounded to the nearest 
whole percentage point.

Table 5--Total Licensed Representatives at Broker-Dealers, Investment Advisers, and Dually Registered Firms With
                                             Retail Investors \520\
----------------------------------------------------------------------------------------------------------------
                                                                     % of
  Size of firm (total assets for standalone                    representatives        % of              %
  BDs and dually registered firms; AUM for    Total number of     in  dually    representatives  representatives
               standalone IAs)                representatives     registered     in  standalone    in standalone
                                                                    firms              BD               IA
----------------------------------------------------------------------------------------------------------------
>$50 billion................................           82,668               75                8               18
$1 billion to $50 billion...................          150,662               72               10               18
$500 million to $1 billion..................           31,673               67               16               16
$100 million to $500 million................           62,539               58               24               18
$10 million to $100 million.................          116,047               52               47                1
$1 million to $10 million...................           37,247               34               63                2
<$1 million.................................           13,563                7               87                6
                                             -------------------------------------------------------------------
    Total Licensed Representatives..........          494,399               61               27               12
----------------------------------------------------------------------------------------------------------------

    In Table 6 below, we estimate the number of employees who are 
registered representatives, registered investment adviser 
representatives, or both (``dual-hatted representatives'').\521\ 
Similar to Table 5, we calculate these numbers using Form U4 filings. 
Here, we also limit the sample to employees at firms that have retail-
facing businesses as discussed previously.\522\
---------------------------------------------------------------------------

    \521\ We calculate these numbers based on Form U4 filings.
    \522\ See supra notes 460 and 485.
---------------------------------------------------------------------------


---------------------------------------------------------------------------

    \523\ Firm size is defined as total assets from the balance 
sheet (source: FOCUS reports) for broker-dealers and dual 
registrants and is assets under management for investment advisers 
(source: Form ADV).
---------------------------------------------------------------------------

    In Table 6, approximately 24% of registered employees at registered 
broker-dealers or investment advisers are dual-hatted representatives. 
However, this proportion varies significantly across size categories. 
For example, for firms with total assets between $1 billion and $50 
billion,\523\ approximately 36% of all registered employees are both 
registered representatives and investment adviser representatives. In 
contrast, for firms with total assets below $1 million, 15% of all 
employees are dual-hatted representatives.

[[Page 21479]]



   Table 6--Number of Employees at Retail Facing Firms Who Are Registered Representatives, Investment Adviser
                                         Representatives, or Both \524\
----------------------------------------------------------------------------------------------------------------
 Size of firm  (total assets for standalone                     Percentage of
  BDs and dually registered firms;  AUM for    Total  number     dual-hatted     Percentage of    Percentages of
               standalone IAs)                 of  employees   representatives      RRs only        IARs only
----------------------------------------------------------------------------------------------------------------
>$50 billion................................          216,655               18               17                1
$1 billion to $50 billion...................          292,663               36               11                3
$500 million to $1 billion..................           50,531               15               40                6
$100 million to $500 million................          112,119               23               24                8
$10 million to $100 million.................          189,318               19               41                1
$1 million to $10 million...................           61,310               19               39                1
<$1 million.................................           19,619               15               46                3
                                             -------------------------------------------------------------------
    Total Employees at Retail Facing Firms..          942,215               24               24                3
----------------------------------------------------------------------------------------------------------------

    Approximately 88% of investment adviser representatives are dual-
hatted as registered representatives. This percentage is relatively 
unchanged from 2010. According to information provided in a FINRA 
comment letter in connection with the 913 Study, 87.6% of registered 
investment adviser representatives were dually registered as registered 
representatives as of mid-October 2010.\525\ In contrast, approximately 
50% of registered representatives were dually registered as investment 
adviser representatives at the end of 2017.\526\
---------------------------------------------------------------------------

    \524\ See supra notes 520-521. Note that all percentages in the 
table have been rounded to the nearest whole percentage point.
    \525\ Comment letter of FINRA to File Number 4-606; Obligations 
of Brokers, Dealers and Investment Advisers (Nov. 3, 2010), at 1, 
available at https://www.sec.gov/comments/4-606/4606-2836.pdf.
    \526\ In order to obtain the percentage of IARs that are dually 
registered as registered representatives of broker-dealers, we sum 
the representatives at dually-registered entities and those at 
investment advisers, across size categories to obtain the aggregate 
number of representatives in each of the two categories. We then 
divide the aggregate dually-registered representatives by the sum of 
the dually-registered representatives and the IARs at investment 
adviser-only firms. We perform a similar calculation to obtain the 
percentage of registered representatives of broker-dealers that are 
dually registered as IARs.
---------------------------------------------------------------------------

    With respect to disclosure made about licensed individuals, broker-
dealers and investment advisers must report certain criminal, 
regulatory, and civil actions and complaint information and information 
about certain financial matters in Forms U4 \527\ and U5 \528\ for 
their representatives. Self-regulatory organizations, regulators and 
jurisdictions report disclosure events on Form U6.\529\ FINRA's 
BrokerCheck system discloses to the public certain information on 
registered representatives and investment adviser representatives such 
as principal place of business, business activities, owners, and 
criminal prosecutions, regulatory actions, and civil actions in 
connection with any investment-related activity.
---------------------------------------------------------------------------

    \527\ Form U4 requires disclosure of registered representatives' 
and investment adviser representatives' criminal, regulatory, and 
civil actions similar to those reported on Form BD or Form ADV as 
well as certain customer-initiated complaints, arbitration, and 
civil litigation cases. See generally Form U4.
    \528\ Form U5 requires information about representatives' 
termination from their employers.
    \529\ See FINRA, Current Uniform Registration Forms for 
Electronic Filing in Web CRD, available at http://www.finra.org/industry/web-crd/current-uniform-registration-forms-electronic-filing-web-crd.
---------------------------------------------------------------------------

f. Current Use of Names and Titles
    Although many financial services firms are registered as broker-
dealers, investment advisers, or are dually registered, both firms and 
financial professionals use a variety of terms to label both the firm 
and the professional. Approximately 103 broker-dealers that are not 
dually registered as investment advisers use the term ``adviser,'' 
``advisor,'' or ``advisory'' as part of their current company 
name.\530\ Of these broker-dealers, 16 reported at least one type of 
non-securities business. Approximately 39 percent of the 103 broker-
dealers described above used a proper name coupled with the term 
``advisor'' alone,\531\ and an additional 31 percent used a proper name 
coupled with the term ``capital advisor.'' In addition to those terms, 
less than 10% of these broker-dealers use the terms ``financial 
advisor,'' ``investment advisor,'' or ``wealth advisor'' in their 
corporate name. The remainder of the broker-dealers (approximately 25 
firms) use unique combinations of other words along with ``adviser,'' 
``advisor'' or ``advisory.''
---------------------------------------------------------------------------

    \530\ Source: Form BD.
    \531\ E.g. ``ABC Advisor.''
---------------------------------------------------------------------------

    In addition to company names or professional titles, firms are 
likely to use labels or terms other than their formal company names to 
describe themselves in corporate descriptions, marketing material, or 
other communications with the public. To gauge the extent that 
registered broker-dealers and investment advisers use terms other than 
their registration status as descriptors, Commission staff conducted an 
analysis to evaluate the different terms that broker-dealer, investment 
adviser, and dually-registered firms use to describe themselves.\532\ 
Commission staff reviewed firm websites to collect the terms that were 
used on the website to describe the firm.\533\ Many firms provided 
multiple descriptions of their businesses.\534\
---------------------------------------------------------------------------

    \532\ From the full sample of broker-dealers with retail 
investors (2,857) and investment advisers with retail investors 
(7,600), the Commission staff used a random number generator to 
select 20 firms in each of the size categories listed in Table 7, 
from which to construct a sample of firms for which staff hand-
collected data on firm descriptions from firm website homepages and 
``About'' pages, as available. When a size category contained less 
than 20 firms we sampled all firms in that category. Relative to the 
overall proportion of firms, we oversampled firms from the larger 
size categories because they employ a majority of all licensed 
representatives and are therefore the firms the average retail 
investor is most likely to come in contact with. Overall, 83 
randomly selected standalone broker-dealers, 100 randomly selected 
investment advisers, and 91 randomly selected dual registrants based 
on the previously identified size categories (either total assets 
for broker-dealers and dual registrants or assets under management 
for investment advisers) provided the sample reviewed in the staff 
study. Further, the 917 Financial Literacy Study (see supra note 20) 
showed that a substantial percentage of retail investors use 
information obtained from firm websites in making the selection of 
their financial professional.
    \533\ See Table 7, Panel A for firm level identifiers for 
broker-dealers, Panel B for identifiers for investment advisers, and 
Panel C for dual registrants. Not all firms provided a description 
of their firm on their website, which we coded as ``N/A'' for not 
available.
    \534\ For purposes of our classification analysis, if ``ABC & 
Co.'' were to be a SEC-registered standalone broker-dealer and, on 
ABC's webpage in describing its business and operations, ABC refers 
to itself as a brokerage firm and a wealth manager, we would 
classify, ABC & Co. as using both ``brokerage'' and ``wealth 
manager'' as descriptors in our analysis.
---------------------------------------------------------------------------

    As shown below in Panel A of Table 7, over 50% of broker-dealers 
sampled use the term ``broker,'' ``dealer,'' ``broker-dealer,'' or 
``brokerage'' to

[[Page 21480]]

describe their business, while less than 10% use ``financial advisor,'' 
``wealth advisor,'' or ``investment advisor.'' Registered investment 
advisers (Panel B) are more likely to use the term ``investment 
advisor,'' ``wealth advisor,'' or ``financial advisor'' as a 
description of their business compared to broker-dealers (approximately 
40%). Nearly 50% of the sampled standalone investment advisers use the 
term ``investment manager'' or ``wealth manager'' to describe their 
business model compared to less than 10% of broker-dealers that use 
these terms. Dually registered firms (Panel C) are much more diverse in 
their use of firm descriptions; approximately 40% use the term 
``brokerage,'' ``broker-dealer,'' ``broker,'' or ``dealer,'' while 
nearly 30% use a firm description that contains the term ``adviser'' or 
``advisor.''
---------------------------------------------------------------------------

    \535\ Broker-dealers are randomly drawn from Form BD data (as of 
Dec. 2017). The data on firm descriptions is hand collected from 
individual broker-dealer websites.
    \536\ Investment advisers are randomly drawn from Form ADV data 
(as of Dec. 2017). The data on firm descriptions is hand collected 
from individual investment adviser websites.
    \537\ Dual registrants are randomly drawn from Form BD data (as 
of Dec. 2017). The data on firm descriptions is hand collected from 
individual dually-registered firms' websites.

                                 Table 7--Panel A: Description of Standalone Broker-Dealer Firms on Firm Websites \535\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Wealth/
                                                          Broker- dealer    Investment      investment       Advisory          Other            N/A
                                                                               bank         management
--------------------------------------------------------------------------------------------------------------------------------------------------------
>$50 billion............................................               2               2               0               2               0               0
$1 billion to $50 billion...............................              15               6               0               0               0               1
$500 million to $1 billion..............................              14               2               0               0               1               0
$100 million to $500 million............................              12               7               4               2               4               0
$10 million to $100 million.............................              11               2               5               3               4               0
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................              54              19               9               7               9               1
--------------------------------------------------------------------------------------------------------------------------------------------------------


                               Table 7--Panel B: Description of Standalone Investment Adviser Firms on Firm Website \536\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Wealth/
                                                          Broker- dealer    Investment      investment       Advisory          Other            N/A
                                                                               bank         management
--------------------------------------------------------------------------------------------------------------------------------------------------------
>$50 billion............................................               0               1              16               3               4               0
$1 billion to $50 billion...............................               0               0              13               5               8               0
$500 million to $1 billion..............................               0               0              10              13               9               0
$100 million to $500 million............................               0               0               6               7               9               3
$10 million to $100 million.............................               2               0               2              10               7               1
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................               2               1              47              38              37               4
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                     Table 7--Panel C: Description of Dually-Registered Firms on Firm Website \537\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Wealth/
                                                          Broker- dealer    Investment      investment       Advisory          Other            N/A
                                                                               bank         management
--------------------------------------------------------------------------------------------------------------------------------------------------------
>$50 billion............................................               5               8               2               4               1               0
$1 billion to $50 billion...............................               7               8               5               6               9               0
$500 million to $1 billion..............................               3               1               2               1               2               0
$100 million to $500 million............................              13               3               1               7               6               0
$10 million to $100 million.............................              10               1               3              10               7               0
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................              38              21              13              28              25               0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Regarding the use of titles by individual financial professionals, 
a 2008 RAND Study,\538\ found that households responding to the survey 
\539\ reported a wide variety of titles were used by financial 
professionals with whom they worked. The RAND Study Table 6.3 
(replicated below in Table 8) provides an overview of the most commonly 
used titles by services provided. As shown in the table, financial 
professionals providing brokerage services use a large variety of 
titles to describe their business and the services that they offer, 
including ``financial advisor,'' ``financial consultant,'' ``banker,'' 
and ``broker.'' Around 31% of professionals providing only brokerage 
services used titles containing the terms ``adviser'' or ``advisor.'' 
Professionals providing advisory services or both brokerage and 
advisory services similarly also use a wide variety of titles, but the 
proportion of professionals who use titles containing the terms 
``adviser'' or ``advisor'' are somewhat larger at 35%. Note that the 
RAND Study did not distinguish financial professionals' use of tiles 
based on whether they were RRs or IARs, but rather by type of services 
provided.
---------------------------------------------------------------------------

    \538\ RAND Study, supra note 5.
    \539\ Internet survey administered to members of the American 
Life Panel; 654 (out of 1000) households completed the survey.

[[Page 21481]]



                     Table 8--Replication of Table 6.3 of the RAND Study--Professional Titles Most Commonly Reported by Respondents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Provide         Provide      Provide both
                            Title                             All individual     advisory        brokerage       types of
                                                               professionals   services only   services only     services
----------------------------------------------------------------------------------------------------------------------------
Advisor.....................................................              11               1               1               9
Banker......................................................              21               2               8              11
Broker, stockbroker, or registered representative...........              38               0               8              30
CFP (Certified Financial Planner)...........................              21               3               3              15
Financial adviser or financial advisor......................              78               7              11              60
Financial consultant........................................              25               2               0              23
Financial planner...........................................              44               6               1              37
Investment adviser or investment advisor....................              22               3               3              16
President or vice president.................................              20               0               2              18
--------------------------------------------------------------------------------------------------------------------------------------------------------

2. Investor Account Statistics
    Investors seek financial advice and services to achieve a number of 
different goals, such as saving for retirement or children's college 
education. As shown above in Figures 2 and 3, the number of retail 
investors and their assets under management associated with investment 
advisers has increased significantly, particularly since 2012. As of 
December 2016, nearly $24.2 trillion is invested in retirement 
accounts, of which $7.5 trillion is in IRAs.\540\ In 2016, a total of 
43.3 million U.S. households have either an IRA or a brokerage account, 
of which an estimated 20.2 million U.S. households have a brokerage 
account and 37.7 million households have an IRA (including 72% of 
households that also hold a brokerage account).\541\ Table 9 below 
provides an overview of account ownership segmented by account type 
(e.g., IRA, brokerage, or both) and investor income category based on 
the Survey of Consumer Finances (SCF).\542\
---------------------------------------------------------------------------

    \540\ See ICI Research Perspective, The Role of IRAs in U.S. 
Households' Saving for Retirement, 2016 (Jan. 2017), available at 
https://www.ici.org/pdf/per23-01.pdf.
    \541\ The data is obtained from the Federal Reserve System's 
2016 Survey of Consumer Finances (``SCF''), a triennial survey of 
approximately 6,200 U.S. households and imputes weights to 
extrapolate the results to the entire U.S. population. As noted, 
some survey respondent households have both a brokerage and an IRA. 
Federal Reserve, Survey of Consumer Finances (2016), available at 
https://www.federalreserve.gov/econres/scfindex.htm. The SCF data 
does not directly examine the incidence of households that could use 
advisory accounts instead of brokerage accounts; however, some 
fraction of IRA accounts reported in the survey could be those held 
at investment advisers.
    \542\ Id. To the extent that investors have IRA accounts at 
banks that are not also registered as broker-dealers, our data may 
overestimate the numbers of IRA accounts held by retail investors 
that could be subject to this proposed rulemaking.

                         Table 9--Ownership by Account Type in the U.S. by Income Group
                                          [As reported by the 2016 SCF]
----------------------------------------------------------------------------------------------------------------
                                                                                                      % Both
                         Income category                            % Brokerage     % IRA only    brokerage  and
                                                                       only                             IRA
----------------------------------------------------------------------------------------------------------------
Bottom 25%......................................................             1.2             7.6             2.4
25%-50%.........................................................             3.2            14.5             5.4
50%-75%.........................................................             4.1            21.4            11.4
75%-90%.........................................................             7.5            33.4            16.5
Top 10%.........................................................            12.0            24.7            43.9
Average.........................................................             4.4            18.3            11.6
----------------------------------------------------------------------------------------------------------------

    One question in the SCF asks what sources of information 
households' financial decision-makers use when making decisions about 
savings and investments. Respondents can list up to fifteen possible 
sources from a preset list that includes ``Broker'' or ``Financial 
Planner'' as well as ``Banker,'' ``Lawyer,'' ``Accountant,'' and a list 
of non-professional sources.\543\ Panel A of Table 10 below presents 
the breakdown of where households who have brokerage accounts seek 
advice about savings and investments. The table shows that of those 
respondents with brokerage accounts, 23% (4.7 million households) used 
advice services of broker-dealers for savings and investment decisions, 
while 49% (7.8 million households) took advice from a ``financial 
planner.'' Approximately 36% (7.2 million households) sought advice 
from other sources such as bankers, accountants, and lawyers. Almost 
25% (5.0 million households) did not use advice from the above sources.
---------------------------------------------------------------------------

    \543\ The SCF specifically asks participants ``Do you get advice 
from a friend, relative, lawyer, accountant, banker, broker, or 
financial planner? Or do you do something else?'' (see Federal 
Reserve, Codebook for 2016 Survey of Consumer Finances (2016), 
available at https://www.federalreserve.gov/econres/files/codebk2016.txt). Other response choices presented by the survey 
included ``Calling Around,'' ``Magazines,'' ``Self,'' ``Past 
Experience,'' ``Telemarketer,'' and ``Insurance Agent,'' as well as 
other choices. Respondents could also choose ``Do Not Save/Invest.'' 
The SCF allows for multiple responses, so these categories are not 
mutually exclusive. However, we would note that the list of terms in 
the question did not specifically include ``investment adviser.''
---------------------------------------------------------------------------

    Panel B of Table 10 below presents the breakdown of advice received 
for households who have an IRA. 15% (5.7 million households) relied on 
advice services of their broker-dealers, 48% (18.3 million households) 
obtained advice from financial planners. Approximately 41% (15.5 
million households) sought advice from bankers, accountants, or 
lawyers, while the 25% (9.5 million households) used no advice or 
sought advice from other sources.

[[Page 21482]]



  Table 10--Panel A: Sources of Advice for Households Who Have a Brokerage Account in the U.S. by Income Group
                                                      \544\
----------------------------------------------------------------------------------------------------------------
                                                                                     % Taking
                                                     % Taking        % Taking       advice from    % Taking  no
                 Income category                    advice from     advice from      lawyers,        advice or
                                                      brokers        financial      bankers, or     from other
                                                                     planners       accountants       sources
----------------------------------------------------------------------------------------------------------------
Bottom 25%......................................           20.55           53.89           35.64           24.30
25%-50%.........................................           22.98           38.03           43.92           32.36
50%-75%.........................................           20.75           52.00           31.42           23.61
75%-90%.........................................           22.56           48.94           32.25           28.10
Top 10%.........................................           25.29           50.53           38.47           21.06
                                                 ---------------------------------------------------------------
    Average.....................................           23.02           49.02           35.99           24.94
----------------------------------------------------------------------------------------------------------------


      Table 10--Panel B: Sources of Advice for Households Who Have an IRA in the U.S. by Income Group \545\
----------------------------------------------------------------------------------------------------------------
                                                                                     % Taking
                                                     % Taking        % Taking       advice from    % Taking  no
                 Income category                    advice from     advice from      bankers,        advice or
                                                      brokers        financial     accountants,     from other
                                                                     planners       or lawyers        sources
----------------------------------------------------------------------------------------------------------------
Bottom 25%......................................           12.14           38.30           43.69           31.85
25%-50%.........................................            9.79           43.82           40.67           32.74
50%-75%.........................................           14.93           45.20           41.23           25.23
75%-90%.........................................           14.68           52.14           41.65           24.26
Top 10%.........................................           21.40           55.40           40.03           18.56
                                                 ---------------------------------------------------------------
    Average.....................................           15.25           48.45           41.17           25.28
----------------------------------------------------------------------------------------------------------------

3. Investor Perceptions About Broker-Dealers and Investment Advisers
---------------------------------------------------------------------------

    \544\ Id.
    \545\ Id.
---------------------------------------------------------------------------

    Although many retail investors rely on broker-dealers and 
investment advisers to help them achieve financial goals, evidence 
indicates that many retail investors do not understand, or are confused 
by, among other items, the different standards of conduct applicable to 
broker-dealers and investment advisers, and are also confused and 
potentially misled by the titles used by firms and financial 
professionals. In the subsections below, we review in greater detail 
five aspects of investor perceptions with respect to: (1) How investors 
search for financial professionals and firms and; (2) the nature of the 
relationship with their financial professional (investment adviser or 
broker-dealer) and the meaning of company names and professional 
titles; (3) the structure and level of fees in the industry; (4) the 
existing conflicts of interest; (5) and the disciplinary history of the 
financial professional or firm.
g. How Investors Select Financial Firms or Professionals
    A number of surveys show that retail investors predominantly find 
their current financial firm or financial professional from personal 
referrals by family, friends, or colleagues.\546\ For instance, the 
RAND Study reported that 46% of survey respondents indicated that they 
located a financial professional from personal referral, although this 
percentage varied depending on the type of service provided (e.g., only 
35% of survey participants used personal referrals for brokerage 
services). After personal referrals, RAND survey participants ranked 
professional referrals (31%), print advertisements (4%), direct 
mailings (3%), online advertisements (2%), and television 
advertisements (1%), as their source of locating individual 
professionals. The RAND Study separately inquired about locating a 
financial firm, which yielded substantially different results from the 
selection of the financial professional.\547\ Respondents reported 
selecting financial firm (of any type) based on: Referral from family 
or friends (29%), professional referral (18%), print advertisement 
(11%), online advertisements (8%), television advertisements (6%), 
direct mailings (2%), with a general ``other'' category (36%).
---------------------------------------------------------------------------

    \546\ See RAND Study, supra at 5; 917 Financial Literacy Study, 
supra note 20.
    \547\ The Commission notes that only one-third of the survey 
respondents that responded to ``method to locate individual 
professionals'' also provided information regarding locating the 
financial firm.
---------------------------------------------------------------------------

    The 917 Financial Literacy Study provides similar responses, 
although it allowed survey respondents to identify multiple sources 
from which they obtained information that facilitated the selection of 
the current financial firm or financial professional.\548\ In the 917 
Financial Literacy Study,\549\ 51% of survey participants received a 
referral from family, friends, or colleagues. Other sources of 
information or referrals came from: referral from another financial 
professional (23%), online search (14%), attendance at a financial 
professional-hosted investment seminar (13%), advertisement (e.g., 
television or newspaper) (11.5%), other (8%), while approximately 4% 
did not know or could not remember how they selected their financial 
firm or financial professional. Twenty-five percent of survey 
respondents indicated that the ``name or reputation of the financial 
firm or financial professional'' affected the selection decision.
---------------------------------------------------------------------------

    \548\ See 917 Financial Literacy Study, supra note 20.
    \549\ The data used in the 917 Financial Literacy Study comes 
from the Siegel & Gale Investor Research Report (Jul. 26, 2012), 
available at https://www.sec.gov/news/studies/2012/917-financial-literacy-study-part3.pdf, at 249-250.
---------------------------------------------------------------------------

h. Nature of the Relationship
    Comment letters as well as several studies provide us with 
information about retail investor confusion about the distinctions 
among different types firms and financial professionals. Several

[[Page 21483]]

commenters in response to Chairman Clayton's recent Request for Comment 
highlighted investor confusion about whether financial services 
providers are subject to the fiduciary duty.\550\ Particularly, some 
commenters tied investor confusion about the standard of care 
applicable to financial service providers to the names or titles of 
such firms and financial professionals.\551\ Similarly, during the 
public comment process as part of the 913 Study, commenters indicated 
that retail investors did not understand or found confusing the 
distinctions between broker-dealers and investment advisers, for 
example, in terms of services provided and applicable standards of 
care.\552\ Investor advocate groups submitted comments that reiterated 
the view that many market participants also believe that financial 
professionals should act in investors' best interests.\553\ 913 Study 
commenters also expressed beliefs that certain titles used by firms and 
financial professionals are confusing to investors.\554\
---------------------------------------------------------------------------

    \550\ See, e.g., CFA 2017 Letter; PIABA 2017 Letter; IAA 2017 
Letter; Pefin 2017 Letter.
    \551\ See Chamber 2017 Letter, at 10; Committee for the 
Fiduciary Standard 2017 Letter, at 3; Pefin 2017 Letter, at 9.
    \552\ See 913 Study, supra note 3, at section III.A.
    \553\ Id. See also AFL-CIO 2017 Letter; AARP 2017 Letter.
    \554\ See, e.g., Comment letters on 913 Study, available at 
https://www.sec.gov/comments/4-606/4-606.shtml. Comment letter of 
Bert Oshiro (Aug. 29, 2010) (``Years ago, I was pretty sure who I 
was dealing with based on their titles. . . Today it's a totally 
different story. All kinds of products such as securities, 
insurance, fee based products, bank accounts, loans, health 
insurance, auto/homeowners insurance, etc. are sold by people 
calling themselves: Financial advisors; financial consultants; 
investment advisors; investment consultants; financial planners; 
asset managers; financial services advisors; [and] registered 
representatives. . . It has come to the point that I really don't 
know who I'm dealing with.''); Comment letter of Larry J. Massung 
(Aug. 29, 2010) (``I believe there is considerable confusion within 
the general public with the fiduciary duty, responsibilities, and 
titles of brokers, dealers and investment advisors''); and Comment 
letter of Cecylia Escarcega (Aug. 30, 2010) (``Personally, I find 
the titles confusing because the broker, dealer or investment 
advisor typically does not tell me what their role is and the scope 
of their fiduciary duty to me as an investor'').
---------------------------------------------------------------------------

    Further findings of investor confusion about the roles and titles 
of financial professionals comes from studies conducted by Siegel & 
Gale \555\ in 2004, RAND \556\ in 2008 and CFA in 2010.\557\ The Siegel 
& Gale Study found that focus group participants did not understand 
that the roles and legal obligations of broker-dealers differed from 
investment advisers, and were further confused by different labels or 
titles used by advice providers (e.g., financial planner, financial 
advisor, financial consultant, broker-dealer, or investment adviser). 
More specifically, participants in the Siegel & Gale Study focus groups 
believed that brokers executed trades and were focused on ``near-term'' 
advice, while financial advisors and consultants provided many of the 
same services as brokers, but also provided a greater scope of long-
term planning advice (e.g., portfolio allocation). ``Investment 
adviser,'' on the other hand, was a term unfamiliar to many 
participants, but financial professionals using this label were 
perceived to provide similar services to financial advisors and 
financial consultants. Financial planners were viewed to provide 
services related to insurance and estate planning in addition to 
investment advice, and encompassed long-term financial planning 
including college, retirement, and other long-term savings and 
investment goals. The Siegel & Gale Study focus group participants 
assumed that financial advisors/consultants, investment advisers, and 
financial planners provided planning services, while brokers, financial 
advisors/consultants, and investment advisers provided trade execution 
services.\558\ Further, the focus group participants generally did not 
understand certain legal terms, such as ``fiduciary.''
---------------------------------------------------------------------------

    \555\ The Commission retained Siegel and Gale in 2004 to conduct 
the focus group testing in order to determine how investors 
distinguish the roles, legal obligations, and compensation 
structures between broker-dealers and investment advisers. See 
Siegel & Gale Study, supra note 549.
    \556\ The RAND Study contained two components: (1) An analysis 
of business practices at broker-dealers and investment advisers 
based on regulatory filings and interviews with stakeholders 
(including members of the broker-dealer and investment adviser 
industries); and (2) a survey of 654 households or focus group 
testing on household investment behavior and preferences, experience 
with financial service providers, and understanding of the different 
types of providers. See RAND Study, supra note 5.
    \557\ See CFA Survey, supra note 5.
    \558\ The Commission notes that the results of the Siegel & Gale 
Study relied on a small sample of focus group testing conducted over 
a decade ago. While relevant to our understanding of investor 
perception about broker-dealers and investment advisers, the results 
of the study may not reliably reflect the current views of the 
general population of U.S. retail investors.
---------------------------------------------------------------------------

    Similarly, the RAND Study generally concluded that investors did 
not understand the differences between broker-dealers and investment 
advisers and that common job titles contributed to investor 
confusion.\559\ Further, participants responded similarly that 
investment advisers and brokers are required to act in the client's 
best interest. Similar to the Siegel and Gale Study, focus group 
participants did not understand the term fiduciary, or how the 
fiduciary standard differed from suitability. In addition, the RAND 
Study noted that the confusion about titles, services, legal 
obligations, and compensation persisted even after a fact sheet on 
broker-dealers and investment advisers was provided to 
participants.\560\
---------------------------------------------------------------------------

    \559\ RAND study participants ``commented that the 
interchangeable titles and `we do it all' advertisements [by broker-
dealers] made it difficult to discern broker-dealers from investment 
advisers.'' Although the RAND Study indicates that investors are 
confused the services provided and the titles used by financial 
professionals, more than 70% of participants also answered that they 
were ``very satisfied with the service received from the firm,'' 
that ``they trust the firm acts in their best interest,'' and that 
``the firm provides a valuable service.'' These numbers increased to 
80% when the length of time spent at a firm was at least 10 years. 
The Commission notes that the results of the RAND Study relied on 
testing conducted nearly 10 years ago; therefore, the results of the 
study may not reliably reflect the current views of the general 
population of U.S. retail investors
    \560\ See RAND Study, supra note 5, at 111. The fact sheet 
provided to RAND Study participants included information on the 
definition of broker and investment adviser, including a description 
of common job titles, legal duties and typical compensation. 
Participants in the RAND Study focus groups indicated that they were 
confused over common job titles of broker-dealers and investment 
advisers, thought that because brokers are required to be licensed, 
investment advisers were not as qualified as brokers, deemed the 
term ``suitable'' too vague, and concluded that it would be 
difficult to prove whether or not an investment adviser was not 
acting in the client's best interest.
---------------------------------------------------------------------------

    Similar to the Siegel and Gale Study and the RAND Study, the CFA 
Survey concluded that investors do not understand differences between 
broker-dealers and investment advisers, or the standards of conduct 
that apply to advice or recommendations made by these firms. For 
example, approximately 34% of investors surveyed believed that 
``offering advice'' was a primary service of broker-dealers.\561\ With 
respect to conduct-related questions, 91% of those surveyed believed 
that broker-dealers and investment advisers should follow the same 
investor protection rules if providing the same sort of advisory 
services, while 85% believed that the person providing advice should 
put the retail customer's interest ahead of theirs and should disclose 
fees and commissions earned or any conflicts of interest that could 
affect the advice provided. More than two-thirds believed that a 
fiduciary duty is owed to customers by broker-dealers, suggesting a 
degree of investor confusion.\562\
---------------------------------------------------------------------------

    \561\ See CFA Study, supra note 5.
    \562\ In some circumstances, broker-dealers may owe a fiduciary 
duty to their customers. For example, there is a body of case law 
holding that broker-dealers that exercise discretion or control over 
customer assets, or have a relationship of trust and confidence with 
their customers, owe customers a fiduciary duty, or the scope of 
obligations that attach by virtue of that duty. See, e.g., U.S. v. 
Skelly, 442 F.3d 94, 98 (2d Cir. 2006) (fiduciary duty found ``most 
commonly'' where ``a broker has discretionary authority over the 
customer's account''); United States v. Szur, 289 F.3d 200, 211 (2d 
Cir. 2002) (``Although it is true that there `is no general 
fiduciary duty inherent in an ordinary broker/customer 
relationship,' a relationship of trust and confidence does exist 
between a broker and a customer with respect to those matters that 
have been entrusted to the broker.'') (citations omitted); Leib v. 
Merrill Lynch, Pierce, Fenner & Smith, Inc., 461 F. Supp. 951, 953-
954 (E.D. Mich. 1978), aff'd, 647 F.2d 165 (6th Cir. 1981) 
(recognizing that a broker who has de facto control over non-
discretionary account generally owes customer duties of a fiduciary 
nature; looking to customer's sophistication, and the degree of 
trust and confidence in the relationship, among other things, to 
determine duties owed); Arleen W. Hughes, Exchange Act Release No. 
4048 (Feb. 18, 1948) (Commission Opinion), aff'd sub nom. Hughes v. 
SEC, 174 F.2d 969 (D.C. Cir. 1949) (noting that fiduciary 
requirements generally are not imposed upon broker-dealers who 
render investment advice as an incident to their brokerage unless 
they have placed themselves in a position of trust and confidence, 
and finding that Hughes was in a relationship of trust and 
confidence with her clients).

---------------------------------------------------------------------------

[[Page 21484]]

i. Fees
    The 917 Financial Literacy Study showed that, prior to engaging an 
investment adviser,\563\ approximately 76.4% of survey participants 
indicated that disclosure of the fees and compensation of investment 
advisers was an absolutely essential element to any disclosure.\564\ 
With respect to how investors prefer information about fees and 
compensation to advisers, 23% of respondents preferred a table format 
with examples, 21% preferred a bulleted format with examples, 20% 
preferred a bulleted format, and 12% preferred a table format.\565\
---------------------------------------------------------------------------

    \563\ The 917 Financial Literacy Study, supra note 20, uses the 
term financial intermediary when discussing the importance of 
certain disclosures of firms or financial professionals.
    \564\ See 917 Financial Literacy Study, supra note 20, at 67.
    \565\ 23% of respondents also preferred the ``status quo''--
``the way it was presented'' in the example.
---------------------------------------------------------------------------

    In 2015, FINRA conducted an ``Investor Survey'' which included 
questions about investors' understanding of fees charged for investment 
services.\566\ Approximately 70% of survey participants reported that 
they thought investment firm (generically referred to as ``adviser'' in 
the study) compensation and account fees to be very clear, with less 
than 4% stating that they thought compensation to be unclear. Between 
54.7% and 57.6% of respondents indicated that they considered account 
fees to be ``reasonable,'' while between 0% and 2.3% of respondents 
indicated that account fees were not reasonable. Of investors that have 
commission-based accounts, approximately 28% believed that commissions 
did not affect advice given. Those percentages decline to 15% or less 
when asked to consider whether selling incentives and third party 
compensation had not affected the advice provided by investment firms.
---------------------------------------------------------------------------

    \566\ See FINRA Report on Conflicts of Interest, (Oct. 2013), at 
6, available at http://www.finra.org/sites/default/files/Industry/p359971.pdf (``Investor Survey'').

                    Table 11--Investor Perception of Compensation to Financial Professionals
                                [As obtained from the 2015 FINRA Investor Survey]
----------------------------------------------------------------------------------------------------------------
                                                                                                     Advised:
                                                                   Unadvised (%)  Advised: asset    commission-
                                                                                      fee (%)      based fee (%)
----------------------------------------------------------------------------------------------------------------
Advisor Compensation Clear?
    Very........................................................              NA            70.9            68.5
    Somewhat....................................................              NA            27.6            28.0
    Not.........................................................              NA             1.5             3.5
Account Fees Clear?
    Very........................................................            68.0            70.3            74.7
    Somewhat....................................................            29.0            29.7            23.5
    Not.........................................................             2.9               0             1.8
Account Fees Reasonable?
    Agree.......................................................            55.6            54.7            57.6
    Somewhat Agree..............................................            42.1            45.3            40.2
    Disagree....................................................             2.3               0             2.2
Commissions Affect Advice?
    Great Deal..................................................            58.3            21.8            29.7
    Somewhat....................................................            32.8            57.8            42.5
    Not At All..................................................             8.9            20.4            27.7
Selling Incentives Affect Advice?
    Great Deal..................................................            66.1            41.9            44.3
    Somewhat....................................................            28.4            43.7            40.6
    Not At All..................................................             5.5            14.4            15.1
Third Party Compensation Affects Advice?
    Great Deal..................................................            68.6            32.8            41.4
    Somewhat....................................................            26.3            56.4            45.3
    Not At All..................................................             5.1            10.8            13.4
----------------------------------------------------------------------------------------------------------------


[[Page 21485]]

    Academic evidence also indicates that retail investors exhibit 
limited understanding of the fees and commissions of financial 
products. Several academic studies show that even when disclosures are 
provided to investors, investors experience difficulty in accounting 
for and understanding how fees affect their financial choices.\567\
---------------------------------------------------------------------------

    \567\ Experimental evidence from the U.S. mutual fund market is 
provided by, James J. Choi, David Laibson, & Brigitte C. Madrian, 
Why Does the Law of One Price Fail? An Experiment on Index Mutual 
Funds Review of Financial Studies 23(4): 1405-1432 (Nov. 14, 2009) 
(``Choi Laibson Article'') (finding that experimental subjects fail 
to minimize fees among four different actual S&P 500 index funds and 
80-90% of the subjects in the study presented with simplified fee 
disclosures still failed to select the lowest-priced options among 
products with similar characteristics). Field-based evidence from 
the payday loans market is provided by, Marianne Bertrand & Adair 
Morse, Information Disclosure, Cognitive Biases, and Payday 
Borrowing, The Journal of Finance 46(6): 1865-1893 (Nov. 14, 2011). 
For a comprehensive survey of the literature see George Loewenstein, 
Cass R. Sunstein, & Russell Golman, Disclosure: Psychology Changes 
Everything, Annual Review of Economics 6: 391-419 (Aug. 2014) 
(``Loewenstein Sunstein Article'').
---------------------------------------------------------------------------

j. Conflicts of Interest
    Studies have found that investors consider conflicts of interest to 
be an important factor in the market for financial advice. For example, 
in the 917 Financial Literacy Study,\568\ approximately 52.1% of survey 
participants indicated that an essential component of any disclosure 
would be their financial intermediary's conflicts of interest, while 
30.7% considered information about conflicts of interest to be 
important, but not essential. Investors also were asked to rate their 
level of concern about potential conflicts of interest that their 
adviser might have. Approximately 36% of the investors expressed 
concerns that their adviser might recommend investments in products for 
which its affiliate receives a fee or other compensation, while 57% 
were concerned that their adviser would recommend investments in 
products for which it gets paid by other sources. In addition to 
conflicts directly related to compensation practices of financial 
professionals, some investors were concerned about conflicts related to 
the trading activity of these firms. For example, more than 26% of 
participants were concerned that an adviser might buy and sell from its 
account at the same time it is recommending securities to investors; 
and more than 55% of investors were also concerned about their 
adviser's engaging in principal trading.
---------------------------------------------------------------------------

    \568\ Section 917 of the Dodd-Frank Act further required the 
Commission to conduct a study to identify the level of financial 
literacy among retail investors as well as methods and efforts to 
increase the financial literacy of investors. See 917 Financial 
Literacy Study, supra note 20.
---------------------------------------------------------------------------

    Approximately 70% of the participants in the 917 Financial Literacy 
Study indicated that they would read disclosures on conflicts of 
interest if made available, with 48% requesting additional information 
from their adviser, 41% increasing the monitoring of their adviser, and 
33% proposing to limit their exposure of specific conflicts. The 
majority of investors (70%) also wanted to see specific examples of 
conflicts and how those related to the investment advice provided. 
Academic research also suggests that information about conflicts of 
interest could improve individual decisions.\569\
---------------------------------------------------------------------------

    \569\ See S. Sah & G. Loewenstein, Nothing to declare: Mandatory 
and voluntary disclosure leads advisors to avoid conflicts of 
interest, Psychological Science 25, 575-584 (2014).
---------------------------------------------------------------------------

k. Disciplinary History
    Survey evidence indicates that knowledge of a firm's and financial 
professional's disciplinary history is among the most important items 
for retail investors deciding whether to receive financial services 
from a particular firm, according to one study.\570\ Despite this, most 
investors do not actively seek disciplinary information for their 
advisers and broker-dealers.\571\ A recent FINRA survey, however, found 
that only 15% of survey respondents checked their financial 
professional's background, although the Commission notes that the study 
encompasses a wide group of advisers, such as debt counselors and tax 
professionals.\572\ Another FINRA survey found that only 7% of survey 
respondents use FINRA's BrokerCheck and approximately 14% of survey 
respondents are aware of the Investment Adviser Public Disclosure 
(IAPD) website.\573\
---------------------------------------------------------------------------

    \570\ See 917 Financial Literacy Study, supra note 20, at nn. 
311 and 498 and accompanying text (Approximately 67.5% of the online 
survey respondents considered information about an adviser's 
disciplinary history to be absolutely essential, and about 20.0% 
deemed it important, but not essential, and ``When asked how 
important certain factors would be to them if they were to search 
for comparative information on investment advisers, the majority of 
online survey respondents identified the fees charged and the 
adviser's disciplinary history as the most important factors.'').
    \571\ For example, the FINRA 2015 Investor Survey finds that 
only 24% of investors are aware of Investor.gov; only 16% are aware 
of BrokerCheck; only 14% are aware of the IAPD website, and only 7% 
have used BrokerCheck. Investor Survey, supra note 566.
    \572\ 2009 National Survey Initial Report, supra note 275.
    \573\ See Investor Survey, supra note 566.
---------------------------------------------------------------------------

B. Form CRS Relationship Summary

1. Broad Economic Considerations
    We are proposing to require broker-dealers, investment advisers, 
and firms that are dually registered to deliver a relationship summary 
to retail investors.\574\ The economic tradeoffs involved in 
disclosures made by financial firms and financial professionals are 
complex and affected by a wide range of factors, which we consider in 
more detail below. In this section, we discuss the characteristics of 
disclosures that may effectively convey information that is useful to 
retail investors when they are searching for a financial firm and to 
facilitate matching between retail investors' expectations and the 
choice of financial firm or financial professional.
---------------------------------------------------------------------------

    \574\ See supra Section II.
---------------------------------------------------------------------------

    Disclosure requirements provide benefits to participants in 
financial markets because disclosing parties may lack private 
incentives to voluntarily disclose or standardize relevant 
information.\575\ Disclosure can benefit not only investors but also 
the disclosing parties,\576\ as well as provide indirect benefits to 
financial markets.\577\
---------------------------------------------------------------------------

    \575\ See, e.g., Confirmation Requirements and Point of Sale 
Disclosure Requirements for Transactions in Certain Mutual Funds and 
Other Securities, and Other Confirmation Requirement Amendments, and 
Amendments to the Registration Form for Mutual Funds, Exchange Act 
Release No. 8358 (Jan. 29, 2004) [69 FR 6437 (Feb. 10, 2004)] (``The 
Commission believes that permitting investors to more readily obtain 
information about distribution-related costs that have the potential 
to reduce their investment returns and to give investors a better 
understanding of some of the distribution-related arrangements that 
create conflicts of interest for brokers, dealers, municipal 
securities dealers, and their associated natural persons. The 
disclosure of information about these costs and arrangements can 
help investors make better informed investment decisions.''). See 
also P. Healy & K. Palepu, Information asymmetry, corporate 
disclosure, and the capital markets: A review of the empirical 
corporate disclosure literature, Journal of Accounting and Economics 
31, 405-440 (2001).
    \576\ See, Michael Jensen & William Meckling, Theory of the 
firm: Managerial behavior, agency costs, and ownership structure, 
Journal of Financial Economics 3, 305-360 (1976); Patel, S. and G. 
Dallas, Transparency and disclosure: Overview of methodology and 
study results, United States, Standard & Poor's, New York (2002); A. 
Ferrell, Mandatory disclosure and stock returns: Evidence from the 
over-the-counter market, The Journal of Legal Studies 36, 213-253 
(2007). Regarding the effect of corporate disclosures on improved 
corporate governance, see, e.g. B. Hermalin & M. Weisbach, 
Transparency and corporate governance, NBER Working paper No. W12875 
(2007); R. Lambert, C. Leuz, & R. Verrecchia, Accounting 
information, disclosure, and the cost of capital, Journal of 
Accounting Research 45, 385-420 (2007).
    \577\ See L. Holder-Webb, J. Cohen, L. Nath, & D. Wood, A survey 
of governance disclosures among U.S. firms, Journal of Business 
Ethics 83, 543-563 (2008); Z. Rezaee, Causes, consequences, and 
deterrence of financial statement fraud, Critical Perspectives on 
Accounting 16, 277-298 (2005).

---------------------------------------------------------------------------

[[Page 21486]]

    Although the majority of the information proposed for Form CRS may 
be publicly available in a number of existing regulatory forms and 
platforms, including, for example, Form ADV (and IAPD) or BrokerCheck, 
or may be included in disclosures developed to meet disclosure 
requirements under DOL regulations or exemptions, such as the BIC 
Exemption, the Commission preliminary believes that all retail 
investors would benefit from short summary disclosure that focuses on 
certain aspects of a firm and its services to retail investors which 
could be supplemented by additional disclosure. Like other public-
facing disclosures, the objective of Form CRS would be to provide 
relevant and reliable information to investors. The relationship 
summary would apply to a broad array of relationships, spanning 
different firms as well as both retirement and non-retirement 
accounts.\578\ By requiring both investment advisers and broker-dealers 
to deliver to existing and prospective retail investors and file a 
publicly available concise relationship summary that discusses, in one 
place, both types of services and their differences, the proposed rules 
for Form CRS would also help retail investors to compare certain 
different types of accounts and firms.
---------------------------------------------------------------------------

    \578\ For comparison, the disclosure conditions under applicable 
DOL regulations and exemptions apply only to financial firms and 
financial professionals servicing IRAs and ERISA-covered retirement 
plans and participants in such plans.
---------------------------------------------------------------------------

    Given that most of the information provided by Form CRS would 
already have been made available by investment advisers through other 
regulatory disclosures, and by some broker-dealers through contracts or 
other voluntary disclosures, the focus of this economic analysis is on 
the effects of the format and structure of the proposed Form CRS 
disclosures. Studies have found that the format and structure of 
disclosure may improve (or decrease) investor understanding of the 
disclosures being made.\579\
---------------------------------------------------------------------------

    \579\ See, Justine S. Hastings & Lydia Tejeda-Ashton, Financial 
Literacy, Information, and Demand Elasticity: Survey and 
Experimental Evidence from Mexico, NBER Working Paper 14538 (Dec. 
2008) (finding that providing fee disclosures to Mexican investors 
in peso rather than percentage terms caused financially 
inexperienced investors to focus on fees); See, Richard G. Newell & 
Juha Siikamaki, Nudging Energy Efficiency Behavior, Resources for 
the Future Discussion Paper 13-17 (Jul. 10, 2013) (finds that 
providing dollar operating costs in simplified energy efficiency 
labeling significantly encouraged consumers to choose higher energy 
efficiency appliances, while another related study presents similar 
evidence from payday loans).
---------------------------------------------------------------------------

    Before elaborating on the characteristics of an effective 
disclosure regime, we note that some studies undertaken outside the 
market for financial services find that sometimes certain disclosures 
may result in unintended consequences. In general, the structure of the 
disclosure may affect the choices that investors make. Every disclosed 
item not only presents a piece of new information to retail investors 
but also provides a frame within which all other items are 
evaluated.\580\ This framing effect could lead investors to draw 
different conclusions depending on how information is presented. For 
example, if the disciplinary history information is presented first, it 
could affect the way investors perceive all subsequent disclosures in 
the relationship summary and, possibly, discount more heavily the 
information provided by firms with disciplinary events than by firms 
with clean record. The effect of the disciplinary history information 
would be moderated if this information is provided at the end of the 
relationship summary.
---------------------------------------------------------------------------

    \580\ See Tversky, A., Kahneman, D., 1981. The framing of 
decisions and the psychology of choice. Science 211, 453-458 
(``Tversky Kahneman Article'').
---------------------------------------------------------------------------

    Existing research has also found that conflict of interest 
disclosures can increase the likelihood that the disclosing party would 
act on the conflict of interest.\581\ This bias can be caused by 
``moral licensing,'' a belief that the disclosing party has already 
fulfilled its moral obligations in the relationship and therefore can 
act in any way, or it can be caused by ``strategic biasing,'' aimed at 
compensating the disclosing party for the anticipated loss of profit 
due to the disclosure.\582\ Experimental evidence also suggests that 
disclosure could turn some clients or customers into ``reluctant 
altruists.'' \583\ For example, if financial professionals disclose 
that they earn a referral fee if a customer enrolls in a program, the 
customer may implicitly feel that they are being asked to help their 
financial professional receive the fee. One study also found evidence 
that disclosure of a professional's financial interests (particularly 
in face-to-face interactions) can induce a panhandler effect, whereby 
customers may face an implicit social pressure to meet the 
professional's financial interests.\584\ The above literature indicates 
that conflicts of interest disclosures could undermine the intended 
benefits of the disclosures for investors if investors become reluctant 
altruists or feel an obligation to succumb to the panhandler effect. 
However, these studies also suggest certain factors that may mitigate 
the unintended consequences. For example, in the case of the 
``panhandler effect,'' researchers have found that distancing the 
client or customer from the financial professional either in the 
decision or disclosure phase can dampen this effect.\585\
---------------------------------------------------------------------------

    \581\ See, Daylian Cain, George Loewenstein & Don Moore, The 
Dirt on Coming Clean: Perverse Effects of Disclosing Conflicts of 
Interest, Journal of Legal Studies 34: 1-25 (Jan. 2005) (``Cain 2005 
Article''); Daylian Cain, George Loewenstein & Don Moore, When 
Sunlight Fails to Disinfect: Understanding the Perverse Effects of 
Disclosing Conflicts of Interest, Journal of Consumer Research 37: 
1-45 (Aug. 27, 2010); Bryan Church & Xi Kuang, Conflicts of 
Disclosure and (Costly) Sanctions: Experimental Evidence, Journal of 
Legal Studies 38 2: 505-532 (Jun. 2009); Christopher Tarver 
Robertson, Biased Advice, Emory Law Journal 60: 653-703 (Feb. 17, 
2011). These papers study conflicts of interest in general, 
experimental settings, not specialized to the provision of financial 
advice.
    \582\ Although disclosures in general may cause negative 
unintended consequences, existing rules and regulations for broker-
dealers and investment advisers, as well as proposed Regulation Best 
Interest, are likely to moderate the effects of moral licensing or 
strategic bias for financial professionals.
    \583\ See J. Dana, D. Cain & R. Dawes, What you don't know won't 
hurt me: Costly (but quiet) exit in dictator games, Organizational 
Behavior and Human Decision Processes 100:193-201 (2006).
    \584\ Daylian Cain, George Loewenstein & Don Moore, The burden 
of disclosure: Increased compliance with distrusted advice, Journal 
of Personality and Social Psychology, 104(2): 289-304 (2013) 
(``Burden of Disclosure Article'').
    \585\ See id.
---------------------------------------------------------------------------

    Academic research has identified a set of characteristics, 
including targeted and simple disclosures, salience, and 
standardization, that may increase the effectiveness of a disclosure 
regime. Adhering to these characteristics is expected to increase the 
benefits of a disclosure document to consumers. These characteristics, 
discussed below, frame our analysis of the economic impacts of the 
proposed rule.\586\
---------------------------------------------------------------------------

    \586\ See Loewenstein Sunstein Article, supra note 567. The 
paper provides a comprehensive survey of the literature relevant to 
disclosure regulation.
---------------------------------------------------------------------------

    First, existing research demonstrates that individuals exhibit 
limited ability to absorb and process information.\587\ These cognitive 
limitations suggest that more targeted and simpler disclosures may be 
more effective in communicating information to investors than more 
complex disclosures. As discussed more thoroughly below, costs, such as 
increased investor confusion or reduced understanding of the key 
elements of the disclosure, are likely to

[[Page 21487]]

increase as disclosure documents become longer, more convoluted, or 
more reliant on narratives.\588\ Moreover, empirical evidence suggests 
that simplification benefits consumers of disclosed information.\589\ 
These results appear to support requirements of simple disclosures, 
which provide benefits to consumers of that information.
---------------------------------------------------------------------------

    \587\ See Nisbett RE & Ross L. Human Inference: Strategies and 
Shortcomings of Social Judgment (1980). Englewood Cliffs, NJ: 
Prentice Hall. David Hirshleifer & Siew Hong Teoh, Limited 
attention, information disclosure, and financial reporting, Journal 
of Accounting and Economics 36, 337-386 (Dec. 2003).
    \588\ See, e.g., S.B. Bonsall IV & B.P. Miller, The Impact of 
Narrative Disclosure Readability on Bond Ratings and the Cost of 
Capital, The Review of Accounting Studies 2 (2017) and A. Lawrence, 
Individual Investors and Financial Disclosure, Journal of Accounting 
& Economics 56, 130-47 (2013).
    \589\ See supra notes 35, 46--48 and accompanying text. See also 
S. Agarwal, S. Chomsisengphet, N. Mahoney & J. Stroebel, Regulating 
consumer financial products: evidence from credit cards, NBER 
Working Paper 19484 (Jun. 2014) (finding that a series of 
requirements in the Credit Card Accountability Responsibility and 
Disclosure Act (CARD Act), including several provisions designed to 
promote simplified disclosure, has produced substantial decreases in 
both over-limit fees and late fees, thus saving U.S. credit card 
users $12.6 billion annually).
---------------------------------------------------------------------------

    A second characteristic of an effective disclosure is salience, or 
the tendency to `stand out' or contrast with other information on a 
page. Salience detection is a key feature of the human cognition 
allowing individuals to focus their limited mental resources on a 
subset of the available information and causing them to over-weight 
this information in their decision making processes.\590\ Within the 
context of disclosures, more salient information, such as information 
presented in bold text, would be more effective in attracting attention 
than less salient information, such as information presented in a 
footnote. There is also empirical evidence that visualization improves 
individual perception of information.\591\ For example, one 
experimental study shows that tabular reports lead to better decision 
making and graphical reports lead to faster decision making (when 
people are subject to time constraints).\592\
---------------------------------------------------------------------------

    \590\ Daniel Kahneman, Thinking, Fast and Slow, New York: 
Farrar, Strauss, Giroux (2013). Susan Fiske & Shelley E. Taylor, 
Social cognition: From Brains to Culture, SAGE Publications Ltd; 3rd 
ed. (2017).
    \591\ J. Hattie, Visible learning. A synthesis of over 800 meta-
analyses relating to achievement, Oxon: Routledge (2008) 
(``Hattie'').
    \592\ I. Benbasat & A.S. Dexter, An Investigation of the 
Effectiveness of Color and Graphical Presentation under Varying Time 
Constraints, MIS Quarterly 10, 59-83 (Mar. 1986) (``Benbasat & 
Dexter'').
---------------------------------------------------------------------------

    A third characteristic of effective disclosure is standardization. 
People are generally able to make more coherent and rational decisions 
when they have comparative information that allows them to assess 
relevant trade-offs.\593\ Standardization could be particularly 
important for the disclosure of certain quantitative aspects of 
financial services, such as the level and structure of fees.
---------------------------------------------------------------------------

    \593\ See, e.g., JR Kling, S. Mullainathan, E. Shafir, LC 
Vermeulen & MV Wrobel, Comparison friction: experimental evidence 
from Medicare drug plans, Quarterly Journal of Economics 127, 199-
235 (2012) (finding that in a randomized field experiment, in which 
some senior citizens choosing between Medicare drug plans that were 
randomly selected to receive a letter with personalized, 
standardized, comparative cost information (``the intervention 
group'') while another group (``the comparison group'') received a 
general letter referring them to the Medicare website, plan 
switching was 28% in the intervention group, but only 17% in the 
comparison group, and the intervention caused an average decline in 
predicted consumer cost of about $100 a year among letter 
recipients); CK Hsee, GF Loewenstein, S. Blount & MH Bazerman, 
Preference reversals between joint and separate evaluations of 
options: a review and theoretical analysis, Psychological Bulletin 
125, 576-590 (Oct. 2006).
---------------------------------------------------------------------------

    Finally, personalization may further enhance the effectiveness of 
disclosure.\594\ This approach might involve, for example, adjusting 
the presentation to take account of the receiver's interests, 
expectations, or format preferences or to tailor the information based 
on what the receiver already knows in order not to repeat existing 
knowledge. Personalization is usually achieved at the expense of 
standardization, however, and can be costly to create.
---------------------------------------------------------------------------

    \594\ See Loewenstein Sunstein Article, supra note 567.
---------------------------------------------------------------------------

    Current reporting and disclosure requirements for broker-dealers 
and registered investment advisers including Form BD and Form ADV may 
provide detailed information to investors. However, because these 
existing reports and disclosures (which serve the purposes for which 
they were created) are made in multiple, sometimes lengthy forms, and 
made available at different websites or delivery methods, it can be 
difficult for investors to grasp the most important features of the 
financial services and products they receive. In addition, the 
information available to retail investors about broker-dealers on 
BrokerCheck does not include the same information that investment 
advisers provide in the Form ADV brochure and brochure supplement. The 
relatively low financial literacy of many investors also makes it less 
likely that they would be able to effectively compile this information 
on their own and use it in their decision making. Furthermore, most 
financial firms and professionals could lack the incentives and 
resources to disclose the main aspects of their business practices to 
their customers in the absence of the proposed requirements.
    In evaluating the broad economic issues related to disclosure, the 
Commission preliminarily believes that all retail investors would 
benefit from a short summary that focuses on certain aspects of the 
firm and its financial professionals and its services. By requiring 
both investment advisers and broker-dealers to provide a concise 
relationship summary that discusses both types of services and their 
differences, the relationship summary would help all retail investors 
to understand these aspects of a particular firm, to compare different 
types of accounts, and to compare one firm with other firms. The 
relationship summary would also highlight, in one place, the services, 
some categories of fees, specified conflicts of interest, and whether 
the firm or its financial professionals currently have reportable 
disciplinary events.
2. Economic Effects of the Relationship Summary
    This section analyzes the anticipated economic effects from the 
proposed relationship summary to the directly affected parties: retail 
investors, and broker-dealers and investment advisers that offer 
brokerage or advisory services to retail investors.\595\
---------------------------------------------------------------------------

    \595\ Economic effects of the proposal on the market for 
financial services, including on indirectly-affected parties such as 
banks or insurers that are not regulated by the SEC, are considered 
in the following section.
---------------------------------------------------------------------------

a. Retail Investors
    As noted above, substantial evidence suggests that retail investors 
lack financial literacy and do not understand many basic financial 
concepts, such as the implications of investment costs for investment 
performance.\596\ This, in turn, supports the notion that a well-
functioning market for financial services may provide benefits to 
investors by helping them obtain information and guidance from firms 
and financial professionals and thereby make better investment 
decisions. At the same time, however, evidence also suggests that 
investors do not fully comprehend the nature of the business 
relationships and responsibilities in the market which makes them 
vulnerable to confusion and being misled by firms and financial 
professionals; \597\ it also implies that any improvement of retail 
investor understanding of their relationship with

[[Page 21488]]

financial professionals could improve investor's investment decisions.
---------------------------------------------------------------------------

    \596\ See 917 Financial Literacy Study, supra note 20.
    \597\ See 913 Study, supra note 3, at section III.A.; Siegel & 
Gale Study, supra note 550; RAND Study, supra note 5.
---------------------------------------------------------------------------

    The content of the proposed relationship summary is intended to 
alert retail investors to information that would help them to choose a 
firm or a financial professional and prompt retail investors to ask 
informed questions. It is also intended to facilitate comparisons 
across firms that offer the same or substantially similar services. 
Specifically, the relationship summary would provide information on the 
relationships and services offered by investment advisers and broker-
dealers, the standards of conduct applicable to those services, certain 
categories of fees and costs of the services offered, comparisons of 
brokerage and investment advisory services (for standalone broker-
dealers and investment advisers),\598\ conflicts of interest, and some 
additional information, including the existence of currently reportable 
legal or disciplinary events. The Commission believes that the 
information in the relationship summary could help alleviate investor 
confusion and would promote effective communication between the firm 
and its retail investors and assist investors in making an informed 
choice when choosing an investment firm and professional and type of 
account to help to ensure they receive services that meet their 
preferences and expectations. Although the relationship summary applies 
only to broker-dealers and registered investment advisers, its impact 
could extend beyond the current and prospective clients of these 
institutions and impact a larger set of investors through various 
channels such as public filings and website posting. Both the content 
and the form of the relationship summary are designed to increase the 
likelihood that the disclosed information is consumed easily and 
effectively by retail investors. We discuss the potential benefits and 
costs of the relationship summary and its components in detail below.
---------------------------------------------------------------------------

    \598\ For purposes of the relationship summary, we propose to 
define a standalone investment adviser as a registered investment 
adviser that offers services to retail investors and (i) is not 
dually registered as a broker-dealer or (ii) is dually registered as 
a broker-dealer but does not offer services to retail investors as a 
broker-dealer. We propose to define a standalone broker-dealer as a 
registered broker-dealer that offers services to retail investors 
and (i) is not dually registered as an investment adviser or (ii) is 
dually registered as an investment adviser but does not offer 
services to retail investors as an investment adviser. Proposed 
General Instruction 9.(f) to Form CRS.
---------------------------------------------------------------------------

i. Structure of the Relationship Summary
    The structure of the relationship summary is designed to facilitate 
retail investors' absorption of the provided information. The proposed 
design intentionally restricts the length of the relationship summary, 
whether in electronic or paper format, to four pages on 8\1/2\ x 11 
inch paper if converted to PDF format, with a specified font size and 
margin requirements. Existing research suggests that shorter 
disclosures help investors absorb and process information.\599\ Shorter 
disclosure would also facilitate a layered approach to disclosure. The 
Commission acknowledges that a limit on overall document length (or 
equivalent length for electronic disclosure) may entail limiting the 
information provided through the relationship summary. However, based 
on the studies described above, we preliminarily believe that limiting 
the length of the relationship summary appropriately trades off the 
benefits of additional detail against the costs of increased complexity 
associated with longer disclosures. Similarly, while the required 
standardization across the relationship summary limits the ability of 
firms to provide customized information to potential retail investors, 
we preliminarily believe these constraints are appropriate to 
facilitate comparability.
---------------------------------------------------------------------------

    \599\ See supra Section IV.B.1.
---------------------------------------------------------------------------

    In addition, firms would be required to use short sentences, active 
voice, and plain language throughout the relationship summary. Firms 
would not be permitted to use legal jargon, highly technical business 
terms, or multiple negatives. Existing research also shows that 
visualization helps individuals absorb information more 
efficiently.\600\ Consistent with this research, firms would be 
permitted to use graphical presentations, and dual registrants would be 
required in certain aspects, to use tables to simplify and highlight 
the information. For example, dual registrants will be required to 
provide a side-by-side tabular presentation of all relevant information 
provided in the relationship summary.
---------------------------------------------------------------------------

    \600\ See commenters' feedback in the Financial Literacy Study, 
supra note 20, at iv, xx, 21-22.
---------------------------------------------------------------------------

    Moreover, the disclosure would involve a certain degree of 
standardization across firms. In particular, firms would be required to 
use the same headings, prescribed wording, and present the information 
under the headings in the same order. \601\ Additionally, firms would 
be prohibited from adding any items to those prescribed by the 
Commission and any information other than what the Instructions require 
or permit. As discussed above, standardization facilitates comparisons 
of content across disclosures.\602\ We believe that allowing only the 
required and permitted information would promote standardization of the 
information presented to retail investors, and would allow retail 
investors to focus on information that we believe is particularly 
helpful in deciding among firms. At the same time, we acknowledge that 
standardization of disclosures not only limits personalization that may 
be valuable to retail investors but also could result in disclosures 
that are less precise. Further, all information in the relationship 
summary must be true and not misleading. In particular, the 
Instructions permit firms to omit or modify any prescribed statement 
that is inapplicable to their business or would be misleading to a 
reasonable retail investor. In addition, for certain items, firms will 
have some flexibility in how they include the required information.
---------------------------------------------------------------------------

    \601\ See supra note 593.
    \602\ See supra Section IV.B.1.
---------------------------------------------------------------------------

ii. Introduction
    The proposed Introduction of the relationship summary would 
highlight to retail investors the type of accounts and services the 
firm offers to retail investors, and the firm's SEC registration 
status. In addition, the introduction would require prescribed wording 
stating there are different ways for investors to get help with their 
investments, and that they should carefully consider what type of 
account and services would be right for them and that there are 
suggested questions at the end of the disclosure. An introduction 
designed in this manner may benefit retail investors by clarifying that 
there are choices available in terms of accounts and services and that 
the some services, firms, or financial professionals may be a better 
fit than others for the investor. This in turn may trigger a closer 
read of the relationship summary and perhaps also additional 
information gathering by the investor that could lead to a more 
informed choice of financial professional and better fit between the 
investor's need and the type of accounts and services they use.
iii. Relationships and Services
    In the second section of the relationship summary, firms would 
discuss specific information about the nature, scope, and duration of 
its relationships and services, including the types of accounts and 
services the firm offers, how often it offers investment advice, and 
whether the firm monitors

[[Page 21489]]

the account. As noted above, the relationships and services of firms 
can differ in nature, scope, and duration. The Commission believes that 
a better understanding of the relationships and services could lower 
search costs and the risk of mismatch for retail investors, by 
facilitating cross-firm comparisons, and make it easier for them to 
find a firm and a financial professional that most closely meet their 
expectations, depending on how important different types of fee 
structures, services, standards of conduct or other information points 
are to them.
iv. Obligations to the Retail Investor--Standard of Conduct
    The third section of the relationship summary briefly describes in 
plain language the firm's legal standard of conduct. As noted above, 
studies show that many retail investors are confused about the standard 
of conduct that applies to firms and financial professionals,\603\ and 
the Commission believes that providing retail investors with a brief 
description of legal obligations of firms and professionals could help 
alleviate this confusion. Furthermore, to the extent this section makes 
the issue of standard of conduct more salient to the investors, it may 
encourage additional information gathering by the investors about the 
standard of conduct, which could further increase investors' 
understanding.
---------------------------------------------------------------------------

    \603\ See, e.g., Siegel & Gale Study, supra note 5 and RAND 
Study, supra note 5. See also CFA Survey, supra note 5.
---------------------------------------------------------------------------

    Investor understanding of the obligations of their firms and 
financial professionals with respect to each type of account could help 
investors align their expectations with the expected conduct of their 
firm or financial professional. For example, depending on their 
preferences, some investors might find an advisory account more 
appropriate. Other investors could prefer the services and standards of 
conduct associated with a brokerage account. Thus, to the extent the 
proposed disclosure of obligations in the relationship summary increase 
investors understanding in this area, it may improve the match between 
investors' preferences and expectations and the type of accounts and 
services they select while preserving investor choice.
v. Summary of Fees and Costs
    The Commission is also proposing that firms include an overview of 
specified types of fees and expenses that retail investors will pay in 
connection with their brokerage and investment advisory accounts.\604\ 
This section would include a description of the principal type of fees 
that the firm will charge retail investors as compensation for the 
firm's advisory or brokerage services, including whether the firm's 
fees vary and are negotiable, and factors that would help a reasonable 
retail investor understand the fees that he or she is likely to pay. As 
such, the improved disclosure of the categories of fees, including wrap 
fees, could help improve retail investor's decision to engage a firm 
and a financial professional.
---------------------------------------------------------------------------

    \604\ See supra Section II.B.4.
---------------------------------------------------------------------------

vi. Comparisons
    The Commission is also proposing to require standalone investment 
advisers and standalone broker-dealers to provide comparisons to the 
other type of firm. Standalone broker-dealers would include information 
about the following: (i) The primary types of fees that investment 
advisers charge; (ii) services generally provided by investment 
advisers, (iii) advisers' standard of conduct; and (iv) certain 
incentives advisers have based on the investment adviser's asset-based 
fee structure. For investment advisers, this section would include 
parallel categories of information regarding broker-dealers.
    The choice between a brokerage account and an advisory account in 
part may determine the types of fees and costs and standard of conduct 
associated with the account. Retail investors who are provided with 
more information would be more likely to match their choice of the type 
of account with their expectations; if retail investors do not 
understand the differences between of broker-dealers and investment 
advisers, they are less likely to be able to match their expectations 
for financial services providers with their choices. Thus, the 
Commission preliminary believes that having a clear explanation of 
differences in the fees, scope of services, standard of conduct, and 
incentives that are generally relevant to advisory and brokerage 
accounts may help retail investors who are considering one such type of 
relationship to compare how their preferences and expectations might be 
better met with the other type of relationship.
vii. Conflicts of Interest
    The Commission is also proposing that firms summarize their 
conflicts of interest related to certain financial incentives. 
Specifically, firms would be required to disclose conflicts relating 
to: (i) Financial incentives to offer to, or recommend that the retail 
investor invest in, certain investments because (a) such products are 
issued, sponsored, or managed by the firm or its affiliates, (b) third 
parties compensate the firm when it recommends or sells the 
investments, or (c) both; (ii) financial incentives to offer to, or to 
recommend that the retail investor invest in, certain investments 
because the manager or sponsor of those investments or another third 
party (such as an intermediary) shares revenue it earns on those 
products with the firm; and (iii) the firm buying investments from and 
selling investments to a retail investor from the firm's account (i.e., 
principal trading). Including these disclosures prominently, in one 
place, at or before the start of a retail investor's relationship with 
a firm or financial professional could facilitate retail investors' 
understanding of the incentives that may be present throughout the 
course of the relationship. Such disclosure of financial incentives 
could assist investors in matching their expectations when choosing a 
firm or professional and type of account to help to ensure they receive 
services that meet their expectations. In addition, to the extent that 
the specified conflicts of interest disclosures could draw retail 
investors' attention to conflicts, monitoring of firms and financial 
professionals by retail investors could be improved.
    The first category of conflicts noted above makes the promotion of 
own and third party products more salient for retail investors. The 
possibility that an investor may request an explanation of a 
transaction regarding a recommended investment or strategy, and 
associated costs thereof, could serve as an additional disciplinary 
device for firms and financial professionals and align better their 
interests with the interests of retail investors. Similarly, the 
disclosures in the relationship summary about revenue sharing 
arrangements may induce retail investors to more carefully pay 
attention to investments with such arrangements and request further 
information. Principal trading could also make retail investors 
vulnerable to transactions that transfer value from their accounts to 
the accounts of the firm, and so the disclosure of principal trading 
information could draw retail investors' attention to possible 
conflicts that could emerge from principal transactions and generate 
increased scrutiny of such transactions by investors.
    While the Commission preliminarily believes that disclosures of 
conflicts of

[[Page 21490]]

interest in the relationship summary could match retail investor 
expectations with the choices of firms and financial professionals, 
some studies have found that disclosures of conflicts of interest, in 
some cases, could undermine the motivations of people to behave 
ethically or to take moral license in their actions.\605\ In the 
context of providing investment advice, the perception that an investor 
has been warned (via the disclosure) of a firm's and financial 
professional's potential bias may make them believe that they are less 
obligated to provide unbiased advice.\606\ Further, other studies have 
suggested that disclosures of conflicts of interest could also make 
firms and financial professionals appear more trustworthy and as a 
result reduce the incentives for retail investors to examine additional 
information more carefully.\607\ The Commission preliminarily believes, 
however, that the securities laws and existing rules and regulations 
thereunder, such as investment advisers' fiduciary duty,\608\ broker-
dealers' requirements under proposed Regulation Best Interest \609\ 
standard, as well as under existing self-regulatory organizations' 
rules and the Exchange Act,\610\ reduce the risk that broker-dealers 
and investment advisers might use the proposed relationship summary to 
exploit potential conflicts of interest between themselves and their 
retail investors because these regulations may raise the cost of 
misconduct.\611\
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    \605\ See Genevi[egrave]ve Helleringer, Trust Me, I Have a 
Conflict of Interest! Testing the Efficacy of Disclosure in Retail 
Investment Advice, Oxford Legal Studies Research Paper No. 14/2016 
(Mar. 2016), available at https://ssrn.com/abstract=2755734; and 
Cain 2005 Article, supra note 581. As discussed above, existing and 
proposed rules and regulations for broker-dealers and investment 
advisers could mitigate the negative unintended consequences of 
disclosures of conflicts of interest.
    \606\ See supra Section IV.B.1.
    \607\ See Burden of Disclosure Article, supra note 584. Further, 
this ``panhandler effect'' suggests that in some cases disclosure of 
financial professionals' conflicts of interests (particularly in 
face-to-face interactions) may create social pressure on retail 
investors to meet the financial professionals' interests.
    \608\ Under the Advisers Act, an adviser is a fiduciary whose 
duty is to serve the best interest of its clients, including an 
obligation not to subrogate clients' interest to its own. SEC v. 
Capital Gains Research Bureau, Inc., 375 U.S. at 194 (the United 
States Supreme Court held that, under section 206 of the Investment 
Advisers Act of 1940, advisers have an affirmative obligation of 
utmost good faith and full and fair disclosure of all material facts 
to their clients, as well as a duty to avoid misleading them). 
Section 206 applies to all firms and persons meeting the Advisers 
Act's definition of investment adviser, whether registered with the 
Commission, a state securities authority, or not at all. See also 
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 17 
(1979) (``[T]he Act's legislative history leaves no doubt that 
Congress intended to impose enforceable fiduciary obligations.'').
    \609\ See Regulation Best Interest Proposal, supra note 24. 
Proposed Regulation Best Interest would establish a standard of 
conduct for broker-dealers and associated persons of broker-dealers 
to act in the best interest of the retail customer at the time at 
recommendation is made without placing the financial or other 
interest of the broker-dealer or associated person of a broker-
dealer ahead of the interest of the retail customer. The standard of 
conduct obligation shall be satisfied if the broker-dealer or 
associated person of the broker-dealer discloses at the time of the 
recommendation material facts relating to the scope and terms of the 
relationship, which may be satisfied in part by the relationship 
summary, and all material conflicts associated with the 
recommendation. In addition, broker-dealers would be required to 
satisfy the Care and Conflicts of Interest Obligations, as discussed 
more fully in the Regulation Best Interest Proposal.
    \610\ For example, a broker-dealer may recommend a security even 
when a conflict of interest is present, but that recommendation must 
be suitable. See FINRA Rule 2111. The antifraud provisions of the 
federal securities laws and the implied obligation of fair dealing 
prohibit a broker-dealer from, among other things, making unsuitable 
recommendations and require broker-dealers to investigate an issuer 
before recommending the issuer's securities to a customer. See, 
e.g., Hanly v. SEC, 415 F.2d 589, 596 (2d Cir. 1969). See also 
Municipal Securities Disclosure, Exchange Act Release No. 26100 
(Sept. 22, 1988), at n.75. The fair dealing obligation also requires 
a broker-dealer to reasonably believe that its securities 
recommendations are suitable for its customer in light of the 
customer's financial needs, objectives and circumstances (customer-
specific suitability). See Release 8662, supra note 118, at 18 
(involving excessive trading and recommendations of speculative 
securities without a reasonable basis).
    \611\ Consistent with this belief, one study also finds that 
regulations and legal sanctions on conflicted advice can mitigate 
the effects of moral licensing discussed above. See Bryan Church & 
Xi Kuang, Conflicts of Disclosure and (Costly) Sanctions: 
Experimental Evidence, Journal of Legal Studies 38 2: 505-532 (Jun. 
2009).
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viii. Additional Information
    To facilitate the layered disclosure that the relationship summary 
provides, we are proposing to require that firms include a separate 
section (``Additional Information'') in the relationship summary 
outlining where retail investors can find more information about the 
firm's legal and disciplinary events, services, fees, and conflicts.
    Retail investors may benefit from information on where to find 
disclosures of the disciplinary events of firms and financial 
professionals. For some retail investors, the disciplinary history of 
the firm or the financial professional may affect their choices related 
to obtaining investment advice. By providing information on whether the 
firm or financial professionals have disciplinary history and where to 
obtain more detailed information through layered disclosure may 
facilitate retail investors' ability to match their expectations with 
their choice of financial service provider. The required disclosure 
would succinctly state whether or not the firm or its financial 
professionals have legal and disciplinary events, based on whether or 
not they or their financial professionals currently disclose or are 
currently required to disclose certain legal or disciplinary events to 
the Commission, self-regulatory organizations, state securities 
regulators or other jurisdictions, as applicable. The Additional 
Information section would also highlight where retail investors can 
find more information about the disciplinary history of the firm and 
its financial professionals on ``Investor.gov.'' While the disclosure 
of the existence of disciplinary events does not provide new 
information to the market,\612\ this simple disclosure in the 
relationship summary, if applicable, could help retail investors more 
easily identify firms that have reported disciplinary events for 
themselves or their financial professionals and where to find more 
information about the events. By including this disclosure, in 
combination with the requirement to include a specific question for 
retail investors to ask about disciplinary history in the ``Key 
Questions to Ask'' section (discussed further below), the relationship 
summary would potentially make retail investors more likely to seek out 
disciplinary history information to use in their evaluation of firms 
and financial professionals and would make them better informed when 
they choose a firm and a financial professional. Finally, retail 
investors themselves have indicated that they consider disciplinary 
information important.\613\
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    \612\ See Parts 1 and 2 of Form ADV; Form BD; Form U4.
    \613\ See 917 Financial Literacy Study, supra note 20.
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    Further, by drawing attention to disciplinary histories of 
financial professionals for retail investors, firms could become more 
selective in their employment decisions, which could benefit retail 
investors by having a potentially more trustworthy pool of financial 
professionals to select from when they choose providers of investment 
advice, and reduce potential harm to retail investors. As such, the 
overall quality of financial advice provided to retail investors could 
increase, to the extent that legal and regulatory compliance is 
correlated with advice quality.\614\ As a consequence, such disclosures 
of disciplinary history could promote retail investor confidence in the 
market.
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    \614\ See Mark Egan, Gregor Matvos & Amit Seru, The Market for 
Financial Adviser Misconduct, Journal of Political Economy (Dec. 14, 
2017), available at https://ssrn.com/abstract=2739170.
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    One potential cost of the increased salience of the existence of 
disciplinary events may be that retail investors could

[[Page 21491]]

be deterred from hiring a firm or financial professional with a 
disciplinary record, even if they would be better off to do so, without 
further investigating the nature of the disciplinary event. 
Alternatively, an investor may also incorrectly assume that a firm that 
does not report legal/disciplinary history is a ``better'' or a ``more 
compliant'' firm than a firm that does report such history; i.e., the 
lack of currently reportable disciplinary history could signify a stamp 
of approval for some investors. Therefore, disclosures of the existence 
of disciplinary events could have an unintended consequence of keeping 
some investors out of the market for financial advice or by selecting 
financial professionals that could lead to a mismatch with the 
expectations of the retail investor.
    This section would also include disclosure of how investors can 
contact the firm, the SEC, or FINRA (when applicable) if they have 
problems with their investments, investment accounts, or financial 
professionals. Highlighting this information may encourage more 
outreach by investors when they experience such problems, which may 
increase the likelihood of investors seeking resolution of their or the 
firm's problems. Further, to the extent investors' awareness of how to 
report problems is increased, it may have some incremental disciplining 
effect ex ante on financial professionals to the benefit of all retail 
investors in this market. For example, if retail investors, once aware 
of how to contact the Commission or FINRA are more likely to do so as a 
result of the information provided by the relationship summary, firms 
and financial professionals may improve standards and implement 
policies and procedures aimed at reducing conduct that would warrant 
potential outreach to regulators by retail investors.
    Finally, this section would state where to find more information 
about the firm and its financial professionals. Broker-dealers would be 
required to direct retail investors to additional information about 
their brokers and services on BrokerCheck, their firm websites (if they 
have a website; if not, they would state where retail investors can 
find up-to-date information), and the retail investor's account 
agreement. Investment advisers likewise would be required to direct 
retail investors to additional information in the firm's Form ADV Part 
2 brochure and any brochure supplement provided by a financial 
professional to the retail investor. If an adviser has a public website 
and maintains a current version of its firm brochure on the website, 
the firm would be required to provide the website address (if an 
adviser does not have a public website or does not maintain its current 
brochure on its public website, then the adviser would provide the IAPD 
website address). Making these links to websites available could be 
important given that low levels of financial literacy could make it 
less likely that investors would effectively compile information on 
their own to use in decision making.
ix. Key Questions To Ask
    The proposed relationship summary is expected to benefit retail 
investors either directly, by providing information about the 
corresponding firm and financial professional, or indirectly, by 
encouraging investors to acquire additional information. The 
relationship summary would also include suggested key questions to 
encourage retail investors to have conversations with their financial 
professionals about how the firm's services, fees, conflicts, and 
disciplinary events affect them.
    Under the ``Key Questions To Ask'' heading, firms would be required 
to include ten questions,\615\ as applicable to their particular 
business, to help retail investors to elicit more information 
concerning the items discussed in the relationship summary.\616\ Given 
that standardization of disclosures limits personalization that may be 
valuable to retail investors, the Commission preliminarily believes 
that the proposed questions would serve an important purpose in the 
relationship summary--namely, to prompt retail investors to ask their 
financial professionals for more personalized information.
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    \615\ We are proposing to allow firms to modify or omit portions 
of any of these questions that are not applicable to their business. 
We are also proposing to require a standalone broker-dealer and a 
standalone investment adviser, to modify the questions to reflect 
the type of account they offer to retail investors (e.g., advisory 
or brokerage account). In addition, we are proposing that firms 
could include any other frequently asked questions they receive 
following these questions. Firms would not, however, be permitted to 
exceed fourteen questions in total. See supra Section II.B.8.
    \616\ See proposed Item 8 of Form CRS.
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    The proposed list of questions in the relationship summary may 
alter the actions not only of retail investors but also of firms and 
their financial professionals. In anticipation of having to answer 
these key questions, firms may find it in their self-interest to train 
their staff and develop materials that could help them address the 
question in greater detail. Such a voluntary response by firms would 
likely benefit investors to the extent the answers given to the 
questions may become more informative and more accurate. However, some 
firms may develop standardized answers in anticipation of the key 
questions that become less informative to the retail investor than a 
back and forth conversation.
    We believe the proposed set of questions cover a broad range of 
issues that are likely to be important to retail investors and provide 
benefits, such as a platform from which to begin a dialogue with their 
financial professional. However, potential costs may arise for some 
retail investors. One such potential cost of the proposed questions is 
that they may anchor the attention of retail investors to the list and 
reduce the likelihood that they would explore other potential questions 
that could be important to them based on their unique 
circumstances.\617\ In addition, framing the questions as ``Key 
Questions'' could lead some retail investors to believe that any other 
questions they may have due to their own particular circumstances may 
be of second order importance, even if they may not be.\618\
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    \617\ Anchoring is a cognitive bias, whereby receivers of 
information strongly rely on the initial information received when 
making decisions, and do not sufficiently adjust to new information 
received. See, Anderson, Jorgen Vitting, Detecting Anchoring in 
Financial Markets, Journal of Behavior Finance 11, 129-133 (2010) 
available at https://www.tandfonline.com/doi/abs/10.1080/15427560.2010.483186.
    \618\ See, e.g., Tversky Kahneman Article, supra note 580, on 
the importance of framing.
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x. Other Benefits and Costs to Investors
    As indicated in the 917 Financial Literacy Study, retail investors 
consider the proposed disclosures in the relationship summary to be 
important pieces of information. With respect to content, disclosure 
items identified as absolutely essential for retail investors were: 
Adviser's fees (76%), disciplinary history (67%), adviser's conflicts 
of interest (53%), and adviser's methodology in providing advice (51%). 
Approximately 54% of investors also believe that disclosures that 
provided comparative adviser information would be useful. In light of 
this evidence, the Commission preliminarily believes the disclosure 
would provide valuable information to retail investors and potentially 
encourage further information gathering by retail investors that assist 
them in making an informed choice of what type of account matches their 
preferences and expectations.\619\
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    \619\ Although the 917 Financial Literacy Study indicated that 
nearly 90% of survey participants believed that certain disclosures 
would have been helpful to have in advance of their selection of 
their current adviser, under the current proposal, firms may and are 
highly encouraged, though not required, to deliver the relationship 
summary in advance of the time a retail investor enters into an 
advisory contract with an investment adviser or engages the services 
of a broker-dealer. Firms would be required to file the relationship 
summary with the Commission and the disclosure would be made 
available on public websites of broker-dealers and investment 
advisers, which indicates that prospective investors could have 
access to a given firm's relationship summary in advance of initial 
contact with the firm or its financial professionals. In general, 
however, the Commission preliminarily anticipates that most 
prospective retail investors would receive the relationship summary 
at the time that they meet with a financial professional to consider 
entering into an agreement or engaging services.

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[[Page 21492]]

    By providing specified disclosures in an abbreviated and simplified 
format, the proposed relationship summary could also improve the 
effectiveness of the communication between investors and investment 
advisers or broker-dealers. A more effective communication may enable 
retail investors to more quickly reach an understanding of what type of 
firm and financial professional or type of account offered by the 
broker-dealer or the investment adviser best matches their preferences. 
As a result, search costs may be reduced as retail investors may need 
to contact fewer broker-dealers or investment advisers and financial 
professionals given that they have access to information about those 
firms or financial professionals.\620\ The inclusion of key questions 
as part of the relationship summary also could serve to reduce search 
costs as well as the potential for mismatched expectations borne by 
retail investors if such questions foster greater discussion about the 
services, costs and fees, and possible conflicts associated with 
broker-dealer and investment adviser business models.
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    \620\ Insofar as retail customers may also search for other 
providers of financial advice, such as insurance companies or banks 
and trust companies, the reduction in search costs obtainable from 
the relationship summary would be lower.
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    The Commission preliminarily believes that the proposed 
relationship summary could benefit not only the existing and 
prospective customers and clients of broker-dealers and investment 
advisers but also the public more broadly. First, recipients of the 
relationship summary, to the extent they discuss investing in general, 
may discuss the topics covered in the summary with family and friends 
and in the process increase the degree of public awareness about the 
issues discussed in the disclosure. Second, some prospective retail 
investors could access the relationship summary independently through 
the company website or the Commission's website.
    The proposed relationship summary may also impose some additional 
costs on retail investors. As described more fully in the section that 
follows, brokers-dealers and investment advisers will bear compliance 
costs associated with the production and dissemination of the 
relationship summary. As a result of such increased costs, some firms 
or financial professionals may transfer retail investors from 
potentially lower cost transaction-based accounts to higher cost asset-
based fee advisory accounts, if the firm or the financial professional 
is dually registered.
    In addition to these compliance burdens which may indirectly be 
borne by retail investors, the disclosures themselves may impose 
certain indirect costs on retail investors. For example, since the 
proposed disclosures in the relationship summary are general and 
contain prescribed language in many parts, they could steer retail 
investor attention away from some specific and potentially important 
characteristics of the business practices of the firm or the financial 
professional. This potential cost is likely to be mitigated to the 
extent the required Additional Information section employs layered 
disclosure and the Key Questions encourage more personalized 
information gathering on part of the retail investors.
b. Broker-Dealers and Investment Advisers
    The proposed disclosure requirements would impose direct costs on 
broker-dealers and investment advisers, including costs associated with 
delivery, filing, preparation, and firm-wide implementation of the 
relationship summary, as well as training and monitoring for 
compliance.\621\
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    \621\ See infra Section V.A. for estimates of some of these 
compliance costs for purposes of the Paperwork Reduction Act.
---------------------------------------------------------------------------

    With respect to initial delivery, the relationship summary would 
need to be provided to retail investors \622\ in the case of an 
investment adviser, before or at the time the firm enters into an 
advisory agreement or, in the case of a broker-dealer, before or at the 
time the retail investor first engages the firm's services. A dual 
registrant should deliver the relationship summary at the earlier of 
entering into an investment advisory agreement with the retail investor 
or the retail investor engaging the firm's services. Firms would be 
permitted to deliver the relationship summary (including updates) 
electronically, consistent with prior Commission guidance.\623\ Firms 
would also be required to post their relationship summaries on their 
websites in a way that is easy for retail investors to find, if they 
maintain a public website. Firms that do not maintain a website would 
be required to include in their relationship summaries a toll-free 
number for investors to call to obtain documents. In addition, firms 
would be required to provide a relationship summary to an existing 
client or customer who is a retail investor before or at the time a new 
account is opened or changes are made to the retail investor's 
account(s) that would materially change the nature and scope of the 
firm's relationship with the retail investor. Firms also would be 
required to implement a one-time delivery of the relationship summary 
to all existing retail investors within 30 days after the date the firm 
is first required to file its relationship summary with the 
Commission.\624\
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    \622\ In addition to the firm's delivery requirements, firms 
would also file their relationship summary with the Commission, to 
be publicly available. See supra Section II.C.1.
    \623\ See supra Section II.C.2.
    \624\ Currently, investment advisers have approximately 29 
million non-high net worth individual clients and 5 million high net 
worth individual clients, and the total number of individual clients 
of investment advisers has increased by 10 million since 2012. 
Therefore, investment advisers would need to deliver relationship 
summaries to approximately 35 million existing retail clients, and 
on average, would expect approximately 2.5 million new clients per 
year. Item 5.D of Form ADV. Although the Commission is unable to 
estimate the number of broker-dealer retail customers, we could 
assume that the number of relationship summaries for broker-dealer 
customers would be at least as many, if not more, than what would 
have to be delivered for investment advisers.
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    Regardless of the method of delivery (e.g., paper or electronic 
delivery) firms would incur costs associated with delivering the 
relationship summary to retail investors. Such flexibility in the 
method of delivery, while being consistent with Commission guidance, 
could increase efficiency by allowing a firm to communicate with retail 
investors in the same medium by which it typically communicates other 
information. Further, firms could reduce costs by utilizing 
technologies to deliver information to retail investors at lower costs 
than they may face with paper delivery.\625\ While we recognize that 
some firms are likely to use electronic delivery methods, and that 
these methods may be lower cost than paper delivery, some firms may 
still produce paper versions of the relationship

[[Page 21493]]

summary, particularly if they have some retail investors that prefer 
delivery of disclosure in this method, or do not have access to the 
Internet, or if firms are delivering the relationship summary in the 
same format alongside other deliverables, such as Form ADV or account 
statements. Firms would also incur costs of posting the relationship 
summary on their websites and filing the summary with the Commission.
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    \625\ Firms would be required to create and maintain records of 
deliveries of the relationship summary. See supra Section II.E. See 
supra Section II.E (discussing recordkeeping requirements relating 
to the relationship summary). If choosing electronic delivery, firms 
would have compliance costs in providing notice to retail investors 
that the relationship summary would be available electronically. See 
supra Section II.C.2 (discussing elements of Commission guidance 
about electronic delivery of certain documents).
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    Beyond costs associated with delivery of the relationship summary 
to retail investors, firms would be required to prepare the 
relationship summary. The Commission preliminarily believes, however, 
that these costs would be limited for several reasons. First, the 
relationship summary is concise (limited to four pages in length or the 
equivalent length for electronic disclosure), and would contain a 
mandated set and sequence of topic areas, with much of the language to 
be prescribed, thus limiting the time required to prepare the 
disclosure. Second, the relationship summary will be uniform across 
retail investors and would not be customized or personalized to 
potential investors. Finally, the relationship summary would contain 
some standardized elements across investment advisers and broker-
dealers, allowing for potential economies of scale for entities that 
may have subsidiaries that would also be required to produce the 
disclosure.
    Further to the costs of preparing the relationship summary, we 
consider the implication of the disclosure requirements attributable to 
the DOL rules and exemptions, including the DOL's BIC Exemption, and 
the potential effects of those disclosures relative to the relationship 
summary for broker-dealers and investment advisers. The conditions of 
the DOL rules and exemptions, including the BIC Exemption, discussed 
above in the baseline section, are limited to retirement accounts. 
Although some firms may have voluntarily adopted disclosure 
requirements of the BIC Exemption for non-retirement accounts, the 
proposed relationship summary would apply to a broader array of 
relationships, spanning both retirement and non-retirement accounts for 
broker-dealers and investment advisers. To the extent that the 
information provided by the relationship summary would be duplicative 
of information that would be required by the BIC Exemption (or other 
DOL rules and exemptions) and provided to the same group of account 
holders that would receive the DOL required disclosures, the overall 
benefits of the relationship summary could be reduced. Lastly, to the 
extent that some financial firms already have set up procedures and 
systems to comply with the DOL disclosure requirements, these firms may 
incur lower incremental compliance burdens. The Commission 
preliminarily believes, however, that the scope of the disclosure 
requirements under DOL rules and exemptions and the systems that firms 
would have put in place to accommodate such disclosures are unlikely to 
have a significant overlap with the relationship summary. Therefore, 
the Commission anticipates that any potential cost savings for firms to 
comply with disclosure obligations under DOL rules and exemptions and 
the relationship summary are likely to be minimal.
    With respect to preparing and implementing the relationship 
summary, firms would also need to expend resources with respect to the 
required Key Questions in the relationship summary. Firms would bear 
costs of preparing responses the questions from the list and training 
their employees on how to respond. Financial professionals need to 
spend time to prepare their responses to the questions and to respond 
to these questions when asked. As a result, some firm employees or 
financial professionals could take away from the time they dedicate to 
investigate investment recommendations, which could inadvertently harm 
investors if financial professionals divert resources to answering key 
questions but reduce their time devoted to arriving at investment 
strategies. In this case, the quality of their recommendations could 
decline. In both cases, the possible additional costs to firms could be 
(partially) transferred to retail investors.
    In addition to the costs associated with preparation, delivery, 
filing, and posting on websites of the initial relationship summary, 
firms would also bear costs for updating the relationship summary 
within 30 days whenever any information becomes materially 
inaccurate.\626\ The firm would be required to communicate updated 
information to retail investors who are existing customers or clients 
of the firm within 30 days whenever any information in the relationship 
summary becomes materially inaccurate.\627\ Firms could communicate 
this information by delivering the amended relationship summary or by 
communicating the information another way to the retail investor. For 
example, if an investment adviser communicated a material change to 
information contained in its relationship summary to a retail investor 
by delivering an amended Form ADV brochure or Form ADV summary of 
material changes containing the updated information, this generally 
would support a reasonable belief that the information had been 
communicated to the retail investor, and the investment adviser 
generally would not be required to deliver an updated relationship 
summary to that retail investor. This requirement provides firms the 
ability to disclose changes without requiring them to duplicate 
disclosures and incur additional costs. The updated relationship 
summary would also need to be posted prominently to the firm's website 
if the firm has one and filed electronically with the Commission. In 
addition, firms could also incur some costs to keep records of how the 
updated relationship summary or the information in the updated 
relationship summary was delivered to retail investors.
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    \626\ Along this line, firms could also incur some costs of 
modifying prescribed disclosure per the parameters of Instruction 3.
    \627\ The requirement to communicate updated information to 
retail investors, rather than deliver an updated relationship 
summary could reduce the effectiveness of the information to the 
extent that the communication does not allow retail investors to see 
the context in which information was changed.
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    We anticipate that the compliance costs associated with producing 
updates of the relationship summary would be also relatively minor 
given that the relationship summary uses largely prescribed language 
and updates of the relationship summary, which are only required for 
material changes, are expected to be infrequent. As a result, the costs 
of such updates are expected to be small relative to the costs 
associated with the initial production of the disclosure. Further, 
annual costs associated with communications regarding updates to the 
relationship summary are anticipated to be lower than the costs of the 
initial delivery to existing retail investors to the extent the 
frequency of updates is low or the firm communicates the updates 
through other ways than formal delivery. The Commission anticipates 
that some of the costs associated with preparation, delivery, filing, 
website posting, and updates to the relationship summary for an average 
broker-dealer or average dual registrant could exceed the costs for the 
average investment adviser. As Table 1 and Table 3 indicate, broker-
dealers maintain a larger number of accounts than investment advisers 
do; therefore, delivery costs for broker-dealers could exceed those of 
investment advisers, if the number of accounts is a good indicator of 
the number of retail

[[Page 21494]]

investor customers.\628\ Similarly, given that the average dual 
registrant has more customer accounts than the average investment 
adviser, and that the preparation of relationship summaries for dual 
registrants may require more effort than for standalone broker-dealers 
or investment advisers, the compliance costs could be larger for these 
firms.
---------------------------------------------------------------------------

    \628\ The Commission is unable to obtain from Form BD or FOCUS 
data information on broker-dealer numbers of customers, and instead, 
is only provided with the number of customer accounts. The number of 
customer accounts will exceed the number of customers as a customer 
could have multiple accounts at the same broker-dealer.
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    In addition, unlike investment advisers, which produce Part 2A of 
Form ADV, a broker-dealer currently is not required to prepare a 
narrative disclosure document for its retail investors, although under 
existing antifraud provisions of the Exchange Act, a broker-dealer may 
be liable if it does not disclose material information to its retail 
investors. Thus, broker-dealers could expend additional time and effort 
to aggregate the information required by the relationship summary 
relative to investment advisers. As a result, the Commission 
preliminarily believes that the investment advisers should be able to 
produce the relationship summary at a relatively lower cost than 
broker-dealers, given investment advisers' experience with preparing 
and distributing Part 2A of Form ADV.\629\
---------------------------------------------------------------------------

    \629\ For example, investment advisers may already have 
specialized staff dealing with disclosure issues.
---------------------------------------------------------------------------

    The Commission preliminary believes that compliance costs would 
also be different across firms with relatively smaller or larger 
numbers of retail investors as customers or clients. For example, to 
the extent that developing the relationship summary entails a fixed 
cost, firms with a relatively smaller number of retail investors as 
customers or clients may be at a disadvantage relative to firms with a 
larger number of such customers or clients since the former would 
amortize these costs over a smaller retail investor base. Firms with a 
relatively larger number of existing retail investors would face higher 
costs of initial distribution of the relationship summary compared to 
firms with a relatively smaller retail investor base. Further, to the 
extent that certain costs associated with preparing different versions 
of the proposed relationship summary scale with the number of branches 
and associated financial professionals that a firm has, firms with a 
relatively larger number of branches and employees may bear higher 
costs than firms with a smaller number.
    While the imposed four-page limit is expected to impose nominal 
compliance costs on market participants, it could also generate 
additional costs for some firms relative to others. For example, the 
four-page limit may be more costly for firms that have more complex 
business models because it will limit the information they can present 
within the relationship summary.\630\ For example, a firm with a 
disciplinary history that provides exceptionally good customer service 
could be at a disadvantage compared to other firms with no disciplinary 
history because the relationship disclosure may not summarize relevant 
information about the quality of customer service or the full scope of 
services offered by the firm.
---------------------------------------------------------------------------

    \630\ Complexity is not necessarily linked to size--for example, 
there are large, simple firms and small, complex firms.
---------------------------------------------------------------------------

    Based on the estimates provided in Section V.A for Paperwork 
Reduction Act purposes, the average cost burden for an investment 
adviser to prepare the proposed Form CRS for the first time is 
estimated to range between approximately $1,300 and $3,400, depending 
on the extent to which external help is used.\631\ The estimated 
aggregate combined internal and external costs to investment advisers 
industry-wide for initially preparing and filing the relationship 
summary would be approximately $22 million.\632\ Similarly, for broker-
dealers, the average cost to a firm for preparing Form CRS for the 
first time is estimated to range between approximately $4,000 and 
$6,100, based on the estimate provided in Section V.D.\633\ The 
estimated aggregate combined internal and external costs to broker-
dealers industry-wide of initially preparing and filing the 
relationship summary would be approximately $15 million.\634\ In terms 
of the initial cost of delivering the relationship summary to current 
retail investors, we estimate that the cost to existing and newly 
registered investment advisers would be approximately $43.4 million in 
aggregate, or approximately $5,350 per adviser.\635\ For broker-
dealers, the estimated initial cost of delivering the relationship 
summary to current retail investors would be approximately $121.5 
million in aggregate, or approximately $42,500 per broker-dealer.\636\ 
For both investment advisers and broker-dealers, the estimated annual 
costs of the requirement to deliver the relationship summary before or 
at the time a new account is opened, or changes are made to the retail 
investor's account(s) that would materially change the nature and scope 
of the firm's relationship with the retail investor, is approximately 
10% of the respective estimated costs of the initial delivery to 
existing retail investors.\637\
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    \631\ The lower end estimate is based on the assessment that, 
without additional external help, it will take an average investment 
adviser 5 hours to prepare the relationship summary for the first 
time, see infra Section V.A.2.a. We assume that performance of this 
function will be equally allocated between a senior compliance 
examiner and a compliance manager at a cost of $229 and $298 per 
hour, (see infra note 743 for how we arrived at these costs). Thus, 
the cost for one investment adviser to produce the relationship 
summary for the first time is estimated at $1,317 (2.5 hours x $229 
+ 2.5 hours x $298 = $1,317) if no external help is needed. In 
addition, we estimate that if the investment adviser needs external 
help, the average cost to an investment adviser for the most 
expensive type of such help (i.e., compliance consulting services) 
would be $2,109, see infra note 732, which brings the total cost to 
$3,426.
    \632\ See infra Sections V.A.2.a and V.A.2.b for estimates of 
aggregate internal and external costs, respectively, of the initial 
preparation and filing of the relationship summary.
    \633\ The lower end estimate is based on the assessment that, 
without additional external help, it will take an average broker-
dealer 15 hours to prepare the relationship summary for the first 
time, see infra Section V.D.2.a. We assume that performance of this 
function will be equally allocated between a senior compliance 
examiner and compliance manager at a cost of $229 and $298 per hour, 
respectively (see infra note 743 for how we arrived at these costs). 
Thus, the cost for one broker-dealer to produce the relationship 
summary for the first time is estimated a $3,953 (7.5 hours x $229 + 
7.5 hours x $298 = $3,953) if no external help is needed. In 
addition, we estimate that if the broker-dealer needs external help, 
the average cost to a broker-dealer for the most expensive type of 
such help (i.e., compliance consulting services) would be $2,109, 
see infra note 826, which brings the total cost to $6,062.
    \634\ See infra Sections V.D.2.a and V.D.2.b for estimates of 
aggregate internal and external costs, respectively, of the initial 
preparation and filing of the relationship summary.
    \635\ See infra Section V.C.2.b.i for the estimate of costs 
investment advisers would incur to deliver the relationship summary 
to their existing clients. Note that the analysis includes 
investment advisers that are dual registrants.
    \636\ See infra Section V.D.2.d.i for the estimate of costs 
investment advisers would incur to deliver the relationship summary 
to their existing clients. Note that thee analysis includes broker-
dealers that are dual registrants.
    \637\ See infra Section V.C.2.b.ii for the estimate of these 
costs for investment advisers and infra Section V.D.2.d.ii for the 
analysis of these costs for broker-dealers.
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    Finally, the Commission believes that the proposed relationship 
summary would bring tangible benefits to many broker-dealers and 
investment advisers. Although the possibility of mismatched 
expectations for retail investors and their choice of financial firm or 
professional generally are most costly to the retail investors, such 
mismatch also imposes costs on broker-dealers and investment advisers. 
For instance, some investors who have mismatched their

[[Page 21495]]

expectations of a financial services provider with the type of provider 
they have engaged may lodge complaints with the SEC or FINRA for 
perceived misconduct by their financial professional without 
understanding the nature of their relationship (e.g., an investor may 
file a complaint of discretionary trading in an investment advisory 
account because they did not understand the nature of the services for 
which they contracted). These complaints are costly to firms and 
financial professionals, and the Commission preliminarily believes that 
the relationship summary could alleviate search costs for investors and 
the likelihood of mismatch between investor expectations and their 
choice of firm or financial professional.
    With respect to particular elements of the relationship summary, 
firms with relatively no currently reportable legal and disciplinary 
disclosures could benefit directly from the reporting in the 
relationship summary because the reporting would make these 
characteristics more salient for retail investors by prompting 
investors to research disciplinary history of firms with currently 
reportable legal and disciplinary disclosures. To the extent that 
including disciplinary history information in the relationship summary 
increases the propensity of retail investors to consider this 
information when selecting firms and financial professionals, it could 
also ultimately increase the cost of misconduct for firms and financial 
professionals (for example, by making it more difficult to attract 
retail investors), which would make it more likely that firms take 
disciplinary information into account when making employment choices, 
thereby potentially raising the overall quality of their workforce. The 
relationship summary could further exhibit some positive long-term 
effects on the markets for broker-dealers and investment advisers and 
we elaborate on these long-term effects in greater detail in the next 
subsection.
3. Impact on Efficiency, Competition, and Capital Formation
    In addition to the specific benefits and costs discussed in the 
previous section, the Commission expects that the proposed disclosure 
could cause some broader long-term effects on the market for financial 
advice. Below, we elaborate on these possible effects, including a 
discussion of their impact on efficiency, competition, and capital 
formation.
    The primary long-term effect of the disclosure on the market is 
that it could enhance the competitiveness of the broker-dealer and 
investment adviser markets. The increased transparency with respect to 
the nature of the relationship between broker-dealers or investment 
advisers and their retail investors may allow retail investors to 
better evaluate their firms and financial professionals as well as the 
options for financial services that are advertised by them, which may 
increase the overall level of retail investor understanding in the 
market. When retail investor understanding increases, the degree of 
competitiveness of the financial services industry may also increase 
because retail investors could better assess the types of services 
available in the market. Market competitiveness could be further 
enhanced by the fact that, by prompting investors to understand better 
and obtain more information on the services provided as well as the 
types of fees and costs associated with such services, the relationship 
summary may reduce search costs for retail investors associated with 
acquiring this information, thus allowing them to more readily identify 
less expensive services that match their preferences and expectations 
for financial services. The relationship summary also could cause 
additional competition around conflicts of interest, resulting in some 
firms changing their practices to decrease conflicts. Proposed 
Regulation Best Interest also requires broker-dealers to disclose all 
material facts relating to the scope and terms of the relationship, and 
all material conflicts of interest associated with the 
recommendation.\638\ The Commission preliminarily believes that the 
relationship summary, which draws investor awareness to potential 
conflicts of interest at the outset of the relationship with a firm or 
financial professional, would address similar concerns related to the 
material facts associated with the scope and terms of the relationship 
as required by proposed Regulation Best Interest. Relative to the 
disclosures required by proposed Regulation Best Interest, the 
relationship summary conflicts of interest disclosures apply not only 
to broker-dealers and dually-registered firms, but also to investment 
advisers.
---------------------------------------------------------------------------

    \638\ Further, proposed Regulation Best Interest would establish 
policies and procedures to identify and at a minimum disclose or 
mitigate material conflicts of interest associated with such 
recommendations, as well as policies and procedures to identify, 
disclose and mitigate or eliminate material conflicts of interest 
arising from financial incentives associated with such 
recommendations.
---------------------------------------------------------------------------

    Increased competitiveness in the market for financial services 
could have ancillary effects as well, including reduced pricing power 
for firms and incentives for firms to innovate products and services. 
Reduced pricing power, as a result of increased competitiveness, could 
benefit retail investors through lower fees, effectively redistributing 
value from holders of financial firm equity to their retail 
investors.\639\ We note, however, that this effect could be mitigated 
by the possibility that people may still be willing to pay higher 
prices for other reasons, including firm reputation. Competition also 
provides incentives for firms to develop and innovate. Additional 
competition among financial services firms could provide incentives for 
broker-dealers and investment advisers to seek alternative ways to 
generate profits. In the process, firms could develop new and better 
ways of providing services to retail investors, for example, by 
utilizing recent developments in information technologies to deliver 
information to retail investors at lower cost. In this way, innovation 
could thus improve the satisfaction of retail investors and the 
profitability of firms in the financial services provider market.
---------------------------------------------------------------------------

    \639\ See Jean Tirole, The Theory Of Industrial Organization, 
M.I.T. Press (1989).
---------------------------------------------------------------------------

    Another potential positive effect of the relationship summary is 
that, by reporting whether a firm or financial professional has 
currently reportable legal or disciplinary events, the relationship 
summary could prompt retail investors to seek out disciplinary 
information on their current and prospective firms and financial 
professionals and take that information into account when considering 
whom to engage for financial services. In this respect, the proposed 
relationship summary may also enhance competition if, for example, 
firms and financial professionals with better disciplinary records 
outcompete those with worse records. We note, however, that reporting 
whether a firm or financial professional has currently reportable legal 
or disciplinary events may also bias firms toward hiring firms or 
financial professionals with fewer years of experience (i.e., fewer 
opportunities for customer complaints) and against hiring experienced 
financial professionals with some (minor) customer complaints. The 
expected economic impact of the above effect across small and large 
firms, however, is generally unclear. For investment advisers and 
broker-dealers, reportable disciplinary events are less common for 
smaller firms than for larger firms.\640\
---------------------------------------------------------------------------

    \640\ For example, while only 10% of registered investment 
advisers with less than $1 million of AUM disclose at least one 
disciplinary action as of January 1, 2018, 66% of registered 
investment advisers with more than $50 billion of AUM disclosed at 
least one disciplinary action that year. Form ADV. Similarly, while 
89% of broker-dealers with less than $1 million in total assets 
disclose at least one disciplinary action as of January 1, 2018, 
100% of broker-dealers with more than $50 billion total assets 
disclosed at least one disciplinary action that year. Form BD.

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[[Page 21496]]

    However, in the market for financial services between investment 
advisers and broker-dealers, disclosing the existence of currently 
reportable legal and disciplinary events in the relationship summary 
may confer a small competitive advantage for investment advisers 
because broker-dealers are more likely to have to report that they have 
a disciplinary history due to broader broker-dealer disclosure 
obligations.\641\ They are also more likely to report if they have more 
disciplinary issues. Reporting from Form BD with respect to broker-
dealer disclosures of disciplinary actions taken by any regulatory 
agency or SRO shows that 308 (84%) out of 366 dual-registered broker-
dealers disclosed a disciplinary action. By contrast, 1,650 (47%) out 
of 3,475 standalone broker-dealers have a disclosed disciplinary 
action. For investment advisers, Form ADV requires disclosures of any 
disciplinary actions taken in the past ten years. 289 (79%) out of 366 
dual-registered investment advisers disclosed a disciplinary action. A 
much lower fraction, 1,732 (14%) of 12,293, standalone investment 
advisers disclosed a disciplinary action.\642\ The fact that broker-
dealers have relatively more reportable legal and disciplinary events 
than investment advisers may cause retail investors to engage 
investment advisers rather than broker-dealers, thus creating a 
competitive advantage for some investment advisers.
---------------------------------------------------------------------------

    \641\ See supra notes 251, 253--255 and accompanying text.
    \642\ Source: Items 11C, 11D, and 11E of Form BD and Items 
11.C., 11.D. and 11.E. of Form ADV. Form BD asks if the SEC, CFTC, 
other federal, state, or foreign regulatory agency, or a self-
regulatory organization have ever found the applicant broker-dealer 
or control affiliate to have (1) made a false statement or omission, 
(2) been involved in a violation of its regulations or statues, (3) 
been a cause of an investment related business having its 
authorization to do business denied, suspended, revoked, or 
restricted, or (4) imposed a civil money penalty or cease and desist 
order against the applicant or control affiliate. Likewise, Form ADV 
asks similar questions of registered investment advisers and 
advisory affiliates.
---------------------------------------------------------------------------

    Although the proposed relationship summary applies to SEC-
registered broker-dealers and SEC-registered investment advisers, it 
could exhibit some spillover effects for other categories of firms not 
affected by the proposal such as investment advisers not registered 
with the SEC, bank trust departments, and others. In particular, the 
relationship summary could change the size of the broker-dealer and 
investment adviser markets--relative to each other, as well as relative 
to other markets. To the extent the relationship summary reduces retail 
investors' confusion and makes it easier for them to choose a 
relationship in line with their preferences and expectations, the 
Commission expects that this could attract new retail investors to 
these markets, coming from firms in other markets. Firms' current 
retail investors also may consider switching to a different type of 
firm if the relationship summary makes the different services provided 
and the fees and costs of investment advisory and brokerage services 
more prominent. The exact extent and direction of substitution between 
brokerage and advisory services is hard to predict and depends on the 
nature of the current mismatch between retail investor preferences and 
expectations and the type of services for which they have contracted.
    The proposed relationship summary may also benefit financial 
markets more broadly. Recent survey evidence suggests that 60% of all 
American households have sought advice from a financial 
professional.\643\ Despite their prevalence and importance, however, 
financial professionals are often perceived as dishonest and 
consistently rank among the least trustworthy professionals.\644\ This 
perception has been partly shaped by highly publicized scandals that 
have affected the industry over the past decade. Systematic mistrust 
may suppress household stock market participation below the optimal 
threshold predicted by academic investment theory, as documented in 
household survey based studies.\645\ The Commission preliminarily 
believes that the increased transparency of the existing business 
practices of financial professionals could raise the level of investor 
trust in the market. The enhanced trust could promote retail investor 
participation in capital markets which could increase the availability 
of funds for businesses. Depending on the magnitude of the effect, 
greater availability of funds could lower firms' cost of capital, 
allowing firms to accumulate more capital over time.
---------------------------------------------------------------------------

    \643\ See supra note 541. Survey of Consumer Finances, 2016. The 
percentage aggregates all respondents indicating that they use at 
least one of the following sources in making saving and investment 
decisions--brokers, financial planners, accountants, lawyers, or 
bankers. 26% of the respondents indicate that they have used brokers 
or financial planners.
    \644\ See Edelman Trust Barometer, 2015 Edleman Trust Barometer 
Executive Summary (2015), available at https://www.edelman.com/2015-edelman-trust-barometer/; Anna Prior, Brokers are Trusted Less than 
Uber Drivers, Survey Finds, Wall Street Journal (Jul. 28, 2015), 
available at https://www.wsj.com/articles/brokers-are-trusted-less-than-uber-drivers-survey-finds-1438081201; Luigi Zingales, Does 
Finance Benefit Society, Journal of Finance 70, 1327-1363 (Jan. 
2015).
    \645\ See, e.g., Luigi Guiso, Paola Sapienza & Luigi Zingales, 
Trusting in the Stock Market, The Journal of Finance, Vol. 63, No. 
6, 2557-2600 (2012); and J. Campbell, Household Finance, The Journal 
of Finance, Vol. 61, No. 4, 1553-1604 (2006) (``Campbell Article'').
---------------------------------------------------------------------------

    We note a possible negative effect on the trust of some retail 
investors due to the disclosure on the relationship summary that a firm 
or financial professional has currently reportable legal or 
disciplinary events. The decrease in the trust levels of some retail 
investors, however, could also benefit these investors by bringing 
their expectations and perceptions in line with their choice of a firm 
or financial professional.\646\
---------------------------------------------------------------------------

    \646\ See Jeremy Ko, Economics Note: Investor Confidence (Oct. 
2017), available at https://www.sec.gov/files/investor_confidence_noteOct2017.pdf.
---------------------------------------------------------------------------

    Another possible long-term effect of the relationship summary is 
that it could decrease the prevalence of third-party selling 
concessions in the market by requiring broker-dealers and dual 
registrants to include prescribed disclosure about indirect fees 
associated with investments that compensate the broker-dealer, 
including mutual fund loads. Currently, selling concessions constitute 
a significant part of the compensation of broker-dealers selling mutual 
fund products.\647\ For example, a mutual fund may provide a selling 
concession, in the form of a sales charge, some portion of which could 
be remitted to the broker-dealer that recommended the product.
---------------------------------------------------------------------------

    \647\ See supra Table 2, Section IV.A.1.a.
---------------------------------------------------------------------------

    Table 2, Panel A also indicates that selling concessions constitute 
a larger fraction of total revenue (commissions, fees, and sales of IC 
shares) for smaller broker-dealers--for example, selling concessions as 
a fraction of revenues represent around 20% for broker-dealers with 
total assets less than $1 million and less than 4% for broker-dealers 
with total assets in excess of $50 billion. To compensate for the 
potential loss of concession-based revenue, broker-dealers could try to 
switch customers to advisory accounts. As noted above, however, if the 
proposed disclosure also increases the competitiveness in the broker-
dealer and investment adviser markets the increased competitiveness 
would create some downward price pressure in the market.

[[Page 21497]]

4. Alternatives to the Proposed Relationship Summary
    This section highlights alternatives to the relationship summary 
concerning an amendment of existing Forms BD and ADV for broker-dealers 
and investment advisers, respectively; the form and format of the 
relationship summary; extensiveness of disclosure; delivery; and 
communicating information about the updated relationship summary.
a. Amendment to Existing Disclosures
    As proposed, the relationship summary would be a new, standalone 
disclosure produced by broker-dealers and investment advisers, in 
addition to the other required information disclosed by broker-dealers 
and investment advisers. As an alternative, the Commission could 
consider incorporating the relationship summary information into 
existing disclosures.
    For example, Part 2A of Form ADV currently has 18 mandatory 
reporting elements, produced as a narrative discussion, as part of the 
disclosure ``brochure'' provided to prospective retail investors 
initially and to existing retail investors annually. Instead of 
requiring investment advisers to produce a completely new disclosure as 
a separate Form CRS, the Commission could instead make an amendment to 
Part 2A of Form ADV to require a brief summary at the beginning of the 
brochure in addition to the existing narrative elements, or to change 
certain of the disclosure requirements to reduce or eliminate 
redundancy. Similarly, broker-dealers could be required to deliver 
longer narrative disclosure to their retail investors with specified 
elements. Such disclosure could also be required as part of Form BD or 
a standalone requirement.\648\ For example, the instructions to Form BD 
contain a section on the explanation of terms which could be extended 
to include basic (registrant-specific) information on the business 
practices of the registrant.
---------------------------------------------------------------------------

    \648\ We note, however, that Form BD is a registration/
application form (rather than an existing brochure-type disclosure 
form).
---------------------------------------------------------------------------

    Although modifying existing disclosure and reporting in these ways 
could provide the same information to retail investors as the proposed 
relationship summary, the Commission believes that these approaches 
would be less suited for the objective of this disclosure, which is to 
provide a short, simple overview. The proposed relationship summary 
would provide disclosure in a standardized, simplified manner, that 
would allow retail investors not only to compare information within a 
category (e.g., two investment advisers), but also across categories 
(e.g., investment advisers and broker-dealers). Further, the 
relationship summary would be designed to be easily comprehensible by 
retail investors, relying on short, easy-to-read disclosure that would 
provide an overview of information about the firm and its financial 
professionals to retail investors when choosing a firm and account 
type. We believe that the proposed relationship summary would benefit 
retail investors by highlighting succinct information that is relevant 
to a decision to select a firm, financial professional, or account type 
and services, at the time such decisions are made, and relying on 
layered disclosure to provide additional detail.
b. Form and Format of the Relationship Summary
    The Commission is proposing to require broker-dealers and 
investment advisers to create and deliver a short relationship summary 
to retail investors that would highlight specified information under 
prescribed headings in the same order to facilitate comparability. The 
relationship summary would be limited in length and would contain a mix 
of prescribed and firm-specific language. The proposal does not specify 
a single format for filing the disclosure.
    The Commission could require the relationship summary be filed with 
the Commission in a specified format, such as an text-searchable PDF 
file or in some other format, for example, an unstructured PDF or HTML, 
structured PDF, a web-fillable form, XML, XBRL or Inline XBRL. Further 
to this alternative, the Commission could require that the relationship 
summary information be filed in a structured format to facilitate 
validation, aggregation and comparison of disclosures, and the 
Commission could then make the data available on IARD and EDGAR. 
Structured format, such as XML, can enable the automatic generation of 
unstructured formats such as PDF, HTML, and others to meet the needs of 
those users who would prefer a paper-oriented layout.
    As an alternative to the largely prescribed language for the 
relationship summaries, the Commission could instead allow broker-
dealers and investment advisers to construct bespoke disclosure, while 
providing guidance to firms on the elements of the relationship 
disclosure that are required to be included. Although this disclosure 
would allow firms to tailor the discussion of the nature of the 
business, fees and costs, conflicts of interest, and disciplinary 
history specifically to their business model, this approach would 
likely be more costly to retail investors, as it would likely diminish 
the usefulness of a concise, simplified disclosure that is capable of 
being used by retail investors to understand firm types. Longer firm-
specific disclosures could also increase the search costs for retail 
investors which could ultimately result in worse choices by lowering 
investor ability and incentives to screen a large number of firms. 
Higher search costs for investors could also lower the competitiveness 
of the market by allowing some firms with lower-quality services to 
maintain customers and sustain market share, even if better choices are 
available to retail investors. As discussed above in Section III.B, 
simplification of disclosures, in terms of size, presentation, and 
readability, allows for ease of processing of information, while 
standardization of the content would facilitate identification of 
information most useful to a retail investor. Finally, lengthier 
bespoke disclosure would be also costlier for firms to produce. As 
another alternative, the Commission could have required the 
relationship summaries to include only prescribed wording. However, the 
Commission believes that a mix of prescribed and firm-drafted language 
provides both information that is useful for retail investors in 
comparing different firms along with some flexibility for firms to 
determine how best to communicate the information about their 
particular practices to retail investors.
c. Extensiveness of Disclosure
    As currently proposed, the relationship summary would include high-
level information on (i) introduction; (ii) the relationships and 
services provided in the firm's advisory accounts and brokerage 
accounts; (iii) the standard of conduct applicable to those services; 
(iv) the fees and costs that retail investors will pay, (v) comparison 
to other account types; (vi) specified conflicts of interest; (vii) 
where to find additional information, including whether the firm and 
its financial professionals currently have reportable legal or 
disciplinary events and who to contact about complaints; and (viii) key 
questions for retail investors to ask the firm's financial 
professional. As an alternative, the Commission could require the 
inclusion of additional topics or additional disclosures on one or more 
topics proposed to be covered by the relationship summary. These 
disclosures could be required as part of the relationship summary or as 
separate appendices.

[[Page 21498]]

    With respect to the additional topics to be disclosed, the 
Commission could request that firms disclose additional information on 
their performance, investment style, or other business practices. 
Retail investors, however, may become overwhelmed if presented with a 
number of very lengthy disclosures, which therefore could bury the 
information that is most useful to investors and reduce the 
effectiveness of those disclosures.\649\ With respect to the specific 
topics of additional information, evaluating the performance, 
investment style and business practices of a firm or financial could be 
subjective or speculative, and may be more suited for marketing 
materials rather than prescribed language in the relationship 
summary.\650\ For all these reasons, we believe that these additional 
disclosure topics are not appropriate for inclusion in the relationship 
summary.
---------------------------------------------------------------------------

    \649\ See also supra note 50 and accompanying text (discussing 
comment letters to the 917 Financial Literacy Study regarding the 
length of disclosure documents).
    \650\ In terms of performance, studies have shown that investors 
take into account information about historic fund performance in 
their investment choice; see, e.g., Choi Laibson Article, supra note 
567.
---------------------------------------------------------------------------

    Regarding alternatives to the disclosure of fees and costs as 
proposed here, the relationship summary could require additional 
disclosures on one or more of these topics. For example, the 
relationship summary could include the firm's fee schedule, either as 
part of the body of the relationship summary or as an attachment. 
Alternatively, we could require each relationship summary to include a 
personalized fee schedule,\651\ to be created for each retail investor, 
detailing the specific fees and costs associated with the retail 
investor's account, presented both in dollars and as a percentage of 
the value of the retail investor's account. These fee schedules could 
also include compensation received by the firm and its financial 
professionals related to the account, and the indirect fees that are 
payable by the retail investor to others (e.g., mutual fund and 
exchange-traded fund fees and expenses). However, ex ante identifying 
possible fee schedules for investors at the outset of a relationship as 
opposed to at the time of the transaction could impose costs to both 
investors and firms. For example, firms might need to outline a long 
list of possible transactions and the associated fee schedules, which 
in turn could be confusing to investors.
---------------------------------------------------------------------------

    \651\ One requirement of proposed Regulation Best Interest would 
be to provide to investors at the time of or prior to a 
recommendation the expected fees and costs, and possibly a fee 
schedule, associated with the individual transaction.
---------------------------------------------------------------------------

    We could also require more comprehensive disclosures regarding 
conflicts of interest and disciplinary history, including requiring 
firms to summarize more or all of their conflicts of interest.\652\ For 
example, firms could disclose potential conflicts of interest 
associated with execution services, such as those required to be 
reported in rule 606 disclosures.\653\
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    \652\ See supra Section II.B.6 for a discussion of conflicts, or 
specific details of conflicts, that would not be required to be 
disclosed in the proposed Form CRS.
    \653\ See 17 CFR 242.606 (requiring that broker-dealers make 
publicly available a quarterly report on order routing information, 
including a discussion of the material aspects of their relationship 
with venues executing non-directed orders, including arrangements 
for payment for order flow and any profit-sharing arrangement).
---------------------------------------------------------------------------

    We could also require additional details about a firms' and its 
financial professionals' disciplinary history. Instead of requiring 
firms to disclose whether or not they have currently reportable legal 
or disciplinary history, as proposed, we could require firms to 
disclose the number of disciplinary events, expressed as a number or as 
a percentage of the size of the firm or the number of firm 
professionals. We could further differentiate the disclosures by 
requiring firms to disclose the existence and numbers of disciplinary 
histories within categories of disciplinary history.
    More detailed disclosures about fees, compensation, conflicts and 
disciplinary history could help retail investors understand better the 
differences between types of accounts, and could facilitate the 
decision about the most appropriate account for each retail investor. 
As noted above, current disclosures on these topics cover only subsets 
of firms and relationships and could take different forms. For example, 
firms wishing to make investment recommendations to IRAs and 
participants of ERISA-covered plans may be subject to certain 
disclosure obligations.\654\ This disclosure, however, does not apply 
to non-retirement accounts. Investment advisers also prepare a Form ADV 
Part 2A narrative brochure but such a retail disclosure document is not 
currently required for broker-dealers. As a result, the Commission 
preliminary believes that retail investors could benefit from the 
proposed relationship summary given its wide coverage, delivery method, 
and design.
---------------------------------------------------------------------------

    \654\ See supra Section IV.A.1.c (discussing disclosure 
obligations under DOL rules and exemptions).
---------------------------------------------------------------------------

    In particular, the disclosures about types of fees and costs 
included in the relationship summary could help retail investors 
understand better the types of fees that they will pay and how those 
types of fees and costs affect their accounts. As discussed in the 
baseline, the 917 Financial Literacy Study highlighted that 
transparency and disclosure about fees charged by financial 
intermediaries was one of the most essential elements that investors 
would consider in making their decision about which financial 
professional to choose.\655\
---------------------------------------------------------------------------

    \655\ See supra note 20.
---------------------------------------------------------------------------

    Similarly, the information provided about conflicts of interest in 
the relationship summary could help retail investors understand how 
such conflicts that might be pertinent to their account. The disclosure 
about whether the firm or financial professional has currently 
reportable legal or disciplinary events could encourage retail 
investors to research the extensiveness and nature of the disciplinary 
history of a firm, therefore allowing retail investors to further 
evaluate firms based on the types of disciplinary events.
    Although additional disclosures on account types, fees and 
compensation (including a fee/compensation schedule), conflicts of 
interest and disciplinary history could enhance retail investors' 
understanding of the accounts that are available to them, there are a 
number of additional costs associated with these alternatives. As noted 
earlier in the release, extensive empirical evidence suggests that as 
documents get lengthier and more complex, readers either stop reading 
or read less carefully.\656\ Retail investors, therefore, may become 
overwhelmed if presented with lengthy disclosure, which could bury the 
information that is most important to investors and reduce the 
effectiveness of those disclosures.\657\ Further, the compliance and 
production costs of additional disclosure would increase significantly 
the overall compliance costs to broker-dealers and registered 
investment advisers.
---------------------------------------------------------------------------

    \656\ See, e.g., 917 Financial Literacy Study, supra note 20.
    \657\ See also supra note 50 and accompanying text (discussing 
comment letters to the 917 Financial Literacy Study regarding the 
length of disclosure documents).
---------------------------------------------------------------------------

    As another alternative, the Commission could require a shorter 
relationship summary, limited to one page (or equivalent limit for 
electronic format) that would highlight important topics for retail 
investors and/or including only key questions for retail investors to 
ask. This alternative relationship summary would be highly readable, 
with prescribed formatting,

[[Page 21499]]

and could highlight the differences between brokerage and advisory 
services and fees, and flag for retail investors the existence of 
firms' and financial professionals' conflicts of interest without 
discussing any specific conflicts. However, the one-page relationship 
summary would be the same or very similar across firms, and therefore 
likely would not facilitate detailed comparison across firms or provide 
enough information to highlight the differences for most retail 
investors.
    We alternatively could require firms to create separate 
relationship summaries for each account type they offer to retail 
investors, and require firms to provide a retail investor only the 
relationship summary for the service being offered.\658\ This would 
result in more detailed disclosures on specific account types, and 
would potentially provide retail investors with more relevant 
information about account types that they are interested in reviewing 
(and less extraneous information about account types that they are not 
interested in reviewing). However, providing such focused relationship 
summaries could decrease comparability across account types, as the 
relationship summary would not present, in one place, the differences 
in accounts and services offered.\659\ In addition, this would result 
in more costs to firms with multiple advisory and brokerage services, 
as they would be required to prepare several relationship summaries, 
although they may also have the resources to do this. The Commission 
preliminarily believes that, as a tool for layered disclosure, the 
relationship summary as proposed facilitates retail investors' ability 
to obtain more detailed disclosures on account types by encouraging 
retail investors to ask questions and request more information.
---------------------------------------------------------------------------

    \658\ See Comment letter of Fidelity responding to FINRA's 
Regulatory Notice 10-54 (Dec. 27, 2010), available at http://www.finra.org/sites/default/files/NoticeComment/p122723.pdf.
    \659\ We note that firms with multiple account types within 
brokerage or advisory would not have the flexibility to describe/
distinguish the different account types (e.g., a brokerage firm that 
offers a range of accounts--from completely self-directed to mutual-
fund only to full-service).
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d. Delivery
    As currently proposed, firms would be required to deliver the 
relationship summary before or at the time an investment adviser enters 
into an advisory agreement with a retail investor, or, for broker-
dealers, before or at the time the retail investor first engages the 
firm's services. Dual registrants would be required to deliver the 
relationship summary at the earlier of entering into an investment 
advisory agreement with a retail investor or the retail investor 
engaging the firm's services. As with other disclosure, a firm would be 
permitted to deliver the relationship summary (including updates) 
electronically, consistent with the Commission's guidance regarding 
electronic delivery. In addition, firms would be required to implement 
a one-time delivery of the relationship summary to existing retail 
investors as a transition requirement. We are also proposing a 
requirement for firms to post their relationship summaries on their 
websites in a way that is easy for retail investors to find, if they 
maintain a public website. Firms that do not maintain a website would 
be required to include in their relationship summaries a toll-free 
number for investors to call to obtain documents.
    In addition, a firm would be required to provide a relationship 
summary to an existing client or customer who is a retail investor 
before or at the time a new account is opened or changes are made to 
the retail investor's account(s) that would materially change the 
nature and scope of the firm's relationship with the retail investor, 
as described in more detail in Section III.C.2 above. A firm would also 
be required to deliver the relationship summary to a retail investor 
within 30 days upon request. Furthermore, firms would be required to 
file current relationship summaries with the Commission, which would be 
made publicly available, and would be required to post a current 
version of their relationship summary on their website, if they 
maintain one.
    As an alternative regarding delivery, the Commission could require 
that the relationship summary would only be available through 
electronic delivery, such as an email attachment, an email with the 
full text of the relationship summary in the body of the text, or an 
email with a hyperlink to the firm's website. Although alternatives 
relying exclusively on electronic delivery could reduce costs 
associated with the production of those disclosures, the proposed 
approach would give the potential benefits of providing information to 
retail investors in a timely fashion in order to help retail investors 
select a financial professional or firm, while recognizing the 
proliferation of the various means of communications, electronic or 
otherwise, available to firms and retail investors. Our approach also 
recognizes that some retail investors may not have Internet access or 
may prefer delivery in paper.
    The Commission could have also eliminated the requirement for firms 
to post the relationship summary on their websites and file the 
disclosure with the Commission. However, we believe that the relatively 
minimal cost to firms for posting and filing is outweighed by the 
benefit of providing easily accessible information to retail investors 
to assist them in deciding among firms and financial professionals.
    Another possibility would have been also not to require a one-time 
delivery of the relationship summary to existing retail investors. The 
Commission believes that since the information in the relationship 
summary is potentially valuable to new investors it would be also 
potentially valuable for the existing customers of broker-dealers and 
investment advisers. While existing retail investors would face higher 
costs to change from an existing financial services provider to a new 
one than new potential investors would, most existing investors would 
be still able to reevaluate their relationships with their current firm 
and investment professionals. Furthermore, there is an inherent cost to 
retail investors when the services they receive do not meet their 
expectations. To the extent delivery of the relationship summary to 
existing retail investors fosters greater understanding and decreases 
the mismatch, this could mitigate any costs of changing financial 
service providers. Distributing the relationship summary to a larger 
group of initial investors further increases the group of individuals 
that could become familiar with the disclosure indirectly through 
interactions with family and friends.
    As another alternative, the Commission could have proposed only a 
delivery requirement for the relationship summary, like Form ADV Part 
2B, instead of also requiring that firms file it with the Commission. 
As discussed also in Section III.A above, although not requiring the 
summaries to be filed with the Commission could reduce the costs to 
firms for preparing the document to be filed, the Commission believes 
that public access to relationship summaries benefits prospective 
retail investors by allowing them to compare firms when deciding 
whether to engage a particular firm or financial professional or open 
an advisory or brokerage account, particularly if the summaries can be 
located on a single point of access. Further, filing the relationship 
summary with the Commission provides public access regardless of 
whether a particular firm has a website with which to provide public 
access to the disclosure.

[[Page 21500]]

e. Communicating Updated Information
    As currently proposed, firms would need to update their 
relationship summary within 30 days whenever any information in the 
relationship summary becomes materially inaccurate. Our proposal would 
also require firms to communicate the information in the amended 
relationship summary to retail investors who are existing clients or 
customers of the firm within 30 days after the updates are required to 
be made and without charge. The communication can be made by delivering 
the relationship summary or by communicating the information in another 
way to the retail investor.\660\ Each firm would also be required to 
post the updated relationship summary prominently on its website (if it 
has one) and electronically file the current version of the summary 
with the Commission.
---------------------------------------------------------------------------

    \660\ See supra Section II.C.3.
---------------------------------------------------------------------------

    Alternatively, the Commission could require that the relationship 
summary also be updated and delivered annually, which would be similar 
to the current requirements for investment advisers to provide an 
updated ``brochure'' derived from Part 2A of Form ADV to their existing 
retail investors both annually and upon any changes to the Item 9 of 
Part 2A (disciplinary information). The Commission preliminarily 
believes that the benefits of preparing and delivering an annual 
relationship summary, regardless of the format of that delivery, would 
not outweigh the costs to produce and distribute. As noted earlier, the 
Commission anticipates that the terms of the business relationship 
between most firms and their retail investors would be relatively 
stable over time, except when a new account is opened or a significant 
amount of assets is moved from one type of account to another that is 
different from the retail investor's existing accounts, or other 
changes are made that result in a material change to the nature and 
scope of the firm's relationship with the retail investor. As a result, 
every new delivery would bring relatively small amount of information 
to retail investors.
    We believe that mere public posting of the updated summary would 
not itself adequately inform retail investors about material changes to 
the relationship summary, and that firms providing communication of 
information about relationship summary updates to investors as 
described above is therefore necessary.
    Finally, instead of proposing that firms may choose to communicate 
information about updated relationship summaries to existing retail 
investors instead of delivering an updated relationship summary, the 
Commission could have proposed that firms must deliver the updated 
relationship summary to each existing retail investor regardless of 
whether or not it communicated the information to retail investors in 
another way. While delivering the summary would provide retail 
investors with the full scope of changes being made to the summary in 
the context of existing information, the Commission preliminarily 
believes that allowing firms to communicate information about the 
updates as well as making the current version of the summary publicly 
available, via a firm's website (if the firm has a website) and on the 
Commission's website, provides flexibility for firms to utilize 
existing communication methods and reduces the costs of delivery on 
firms while providing adequate notice to retail investors about the 
updates to the relationship summary, as well as access to the updated 
summaries.
5. Request for Comments
    The Commission requests comment on all aspects of the economic 
analysis, including the analysis of: (i) Potential benefits and costs 
and other economic effects; (ii) long-term effects of the proposed 
relationship summary on efficiency, competition, and capital formation; 
and (iii) reasonable alternatives to the proposed regulations. We also 
request comments identifying sources of data and that could assist us 
in analyzing the economic consequences of the proposed regulations.
    In addition to our general request for comment on the economic 
analysis, we request specific comment on certain aspects of the 
proposal:
     Do commenters agree with the overall assessment that the 
relationship summary would benefit retail investors and assist them in 
making a choice of what type of account matches their preferences? Do 
commenters believe there are alternatives to the structure and content 
of the relationship summary that we have not considered that could make 
it more beneficial to retail investors? Are there any unintended costs 
of the relationship summary for retail investors that we have not 
considered?
     Do commenters believe that the proposed disclosures about 
relationships and services and fees are clear and effective enough? How 
would you recommend altering the presentation of these disclosures in 
order to increase their effectiveness?
     Do commenters agree the proposed disclosure of the 
categories of conflicts of interest would be beneficial to retail 
investors? How would you recommend altering the presentation of the 
conflicts of interest information so that costs are minimized?
     What additional costs and benefits do you envision with 
extending the disclosure of disciplinary history?
     Are there alternative key questions we should consider 
recommending that retail investors ask their financial professional? 
Are there questions we should exclude, and, if so, why? Do commenters 
agree with the concern that there could be potential costs associated 
with the list of proposed questions, such as anchoring the attention of 
retail investors to the list and thereby reducing the likelihood that 
they would explore other potential questions that could be important to 
them?
     What costs do commenters anticipate that firms and 
financial professionals will incur in implementing and complying with 
the proposed Form CRS, both initial and ongoing? Please provide 
estimates of the time and cost burdens for preparing, delivering and 
filing the proposed form. What costs do commenters expect firms and 
financial professionals will incur to prepare answers to the ``Key 
Questions to Ask'' in the proposed Form CRS? Please provide estimates 
of the time and cost burden for preparing to answer the questions.
     How do commenters anticipate that the benefits and costs 
of the proposed rule will be shared between broker-dealers and their 
clients; or between investment advisers and their clients?
     Do commenters anticipate that the benefits and costs of 
the proposed rule would be different across broker-dealers and 
investment advisers? What about dually-registered firms?
     Are retail investors likely to access and download 
relationship summaries of broker-dealers through EDGAR and investment 
advisers through IAPD?
     Are there other reasonable alternatives that the 
Commission should consider? If so, please provide additional 
alternatives and how their costs and benefits would compare to the 
proposal.

C. Restrictions on the Use of Certain Names and Titles and Required 
Disclosures

    As discussed above, several studies suggest that retail investors 
may lack financial literacy and are confused about the differences 
between broker-

[[Page 21501]]

dealers and investment advisers.\661\ Part of this confusion may be 
related to the current use of professional names and titles as 
indicated by these studies and commenters.\662\ This proposal would 
seek to reduce investor confusion related to the use of certain terms 
in firm names and professional titles and prevent retail investors from 
potentially being misled that their firm or financial professional is 
an investment adviser, resulting in investor harm. In particular, our 
proposed rule seeks to restrict a broker or dealer, and any natural 
person who is an associated person of such broker or dealer, when 
communicating with a retail investor, from using as part of its name or 
title the words ``adviser'' or ``advisor'' unless such broker or dealer 
is registered as an investment adviser under the Advisers Act or with a 
state, or such natural person who is an associated person of a broker 
or dealer is a supervised person of an investment adviser registered 
under section 203 of the Advisers Act or with a state, and such person 
provides investment advice on behalf of such investment adviser.\663\ 
In addition to the restriction on the use of certain names and titles, 
we are proposing rules that require both broker-dealers and investment 
advisers to prominently disclose their registration status with the 
Commission and for their financial professionals to disclose their 
association with such firm in all print and electronic retail investor 
communications. Dual registrants would be required to disclose both 
registration statuses.
---------------------------------------------------------------------------

    \661\ See Siegel & Gale Study, supra note 549 and RAND Study, 
supra note 5. Although these studies do not limit the types of 
financial professionals exclusively to broker-dealers or investment 
advisers, the majority of the survey questions focus on differences 
between advisory services versus brokerage services.
    \662\ Id. See supra note 4.
    \663\ See section 202(a)(25) of the Advisers Act [15 U.S.C. 80b-
2(a)(25)] defining ``supervised person'' as any partner, officer, 
director (or other person occupying a similar status or performing 
similar functions), or employee of an investment adviser, or other 
person who provides investment advice on behalf of the investment 
adviser and is subject to the supervision and control of the 
investment adviser.
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    This section provides an analysis of the economic effects of the 
proposed rules relative to the baseline, including a discussion of the 
benefits and costs to the affected parties and the impact on 
efficiency, competition and capital formation. We also discuss 
reasonable alternatives to the proposed rules.
1. Broad Economic Considerations
    The economic tradeoffs involved in the choice of names and titles 
by firms and financial professionals are complex and affected by a wide 
range of factors. In this section, we discuss under what conditions 
firm names and financial professionals' titles may convey information 
that is important to retail investors when they are searching for a 
provider of financial advice, as well as factors that are likely to 
matter for firms and financial professionals when choosing their names 
and titles. We also discuss some conditions where investor confusion 
over the information conveyed by the names and titles chosen by firms 
and financial professionals may lead to investor harm.
    We believe that investors fall into a spectrum of knowledge about 
the providers in the market for financial advice. On one end of the 
spectrum, there are investors who may understand and correctly 
distinguish the types of services and standard of conduct provided by 
different types of firms and financial professionals. If firms and 
financial professionals use names that accurately describe their 
regulatory type, these types of investors would understand and expect 
that ``broker-dealers,'' or close synonyms thereof, would provide the 
services of, and be subjected to the standard of conduct applicable to, 
a broker-dealer, while ``investment advisers,'' or similar names and 
titles, would provide the services of, and be subject to the standard 
of conduct applicable to, an investment adviser. On the other end of 
the spectrum there are less knowledgeable investors who do not 
understand that there are different types of services that can be 
provided by firms or financial professionals, or differing applicable 
standards of conduct. These investors may not be able to discern from 
the name or title what type of service will be provided by a firm or 
financial professional. As a result, these investors may bear costs 
associated with their confusion, such as increased time and effort 
(``search costs'') to identify the right type of financial 
professional,\664\ or harm associated with inadvertently selecting, or 
potentially being misled to select, a type of firm and financial 
professional that is not consistent with their preferences and 
expectations. The harm from a mismatched relationship could be, for 
example, a higher-than-expected cost of services or reduced protection 
for the investor.
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    \664\ According to the 2009 National Survey Initial Report (see 
supra note 275), of the 816 survey respondents that used a financial 
professional in the last five years, 56% indicated that when looking 
for a financial professional, they met or talked with more than one 
professional before making their choice.
---------------------------------------------------------------------------

    In addition to confusion over firm names and professional titles, 
and what they may represent, some investors may also have confusion 
over the type of brokerage, advisory and other services and standard of 
conduct that best match their preferences. Retail investors, therefore, 
can also be categorized based on whether they know the type of advice 
relationship (and associated payment model) that they would prefer, 
regardless of whether they understand the names and titles of firms and 
professionals. For instance, some investors may know that they prefer 
to receive and pay for advice on a per transaction basis, such as that 
provided typically by a broker-dealer, while others know they prefer an 
ongoing advisory relationship with an asset-based fee model, such as 
that typically provided by an investment adviser. On the other hand, 
some other investors may only understand that they are seeking 
financial advice but do not understand that there are different types 
of advice relationships, and different ways to pay for advice, and may 
not correctly identify the type of advice relationship that would be 
most consistent with their preferences. This dimension of investor 
confusion could also lead to investor harm such as increased search 
costs, an overall mismatch in the type of advice relationship, or 
paying more than expected for services received.
    In principle, firm names and professional titles used by financial 
intermediaries, to the extent that names and titles accurately reflect 
the financial services provided, may serve as a search tool for some 
investors when they initially select which financial professionals to 
approach. In particular, for investors that both understand and 
correctly interpret company or professional names and titles and also 
know the type of investment advice relationship that they prefer, names 
and titles of firms and financial professionals that are mainly 
associated with one type of financial services could be used as an 
initial sorting mechanism that may reduce search costs. For example, to 
the extent names and titles accurately reflect the type of firms and 
financial professionals, knowledgeable investors that prefer only 
brokerage services could lower their search costs by using names and 
titles to increase the likelihood they would contact broker-dealers 
rather than investment advisers in their search. Similarly, 
knowledgeable investors looking to hire an investment adviser would 
more easily be able to contact investment advisers and avoid contacting 
broker-dealers simply by observing the firm or professional names and 
titles. We also note that investors who understand the

[[Page 21502]]

differences between broker-dealers and investment advisers generally 
are unlikely to face a mismatch in the selection of a financial 
professional, and that the names and titles, in this case primarily 
serve to reduce search costs.
    Less knowledgeable investors may face confusion over either the 
information conveyed by firm or professional names and titles or the 
preferred scope of their advice relationship. To the extent that names 
or titles used by financial intermediaries accurately reflect services 
provided, any reduction in search costs or reduction of the risk of 
investors matching with the wrong type of firm and financial 
professional will depend on the nature of the investor confusion, as we 
discuss in more detail below.
    When selecting firm or professional names and titles, financial 
services providers may account for the level of investor understanding 
(or confusion). For example, they may be aware that some investors are 
informed by the use of particular names and titles, and the 
implications for the services provided and applicable standard of 
conduct, while other investors may face confusion over the use of 
particular names and titles or the type of advice relationship they 
seek. The incentives of financial intermediaries are two-fold: (1) They 
seek to build their client/customer base; and (2) they desire to reduce 
the costs associated with building that client/customer base, such as 
the time, effort, and marketing costs incurred in the initial client 
acquisition process. Therefore, financial intermediaries would 
rationally choose titles that effectively attract the attention of 
potential investors, while reducing the likelihood of ``false starts'' 
with investors that are not the right match (and understand what type 
of advice that they seek). For example, if investors that fully 
understand the differences between different types of financial 
intermediaries are a significant majority of the potential investor 
pool, then profit maximizing financial intermediaries would likely 
choose names and titles that clearly identify the nature of services 
provided and applicable standard of conduct. These knowledgeable 
investors will then be able to identify from that choice of name or 
title whether the firm or financial professional will meet their 
preferred type of investment advice relationship, and therefore, the 
unambiguous choice of title by the financial professional both reduces 
search costs incurred by these investors and reduces the effort 
expended by the financial professionals to build their customer base.
    Continuing the same example, the remainder of the investor pool 
would then consist of less knowledgeable investors, which would 
represent a small portion of the aggregate investor pool. These 
investors, in particular those who are confused about the differences 
among firms and financial professionals and what type of investment 
advice relationship they should seek, may be unlikely to understand 
from names or titles alone how well the financial intermediary would 
match their preferences, and therefore, will bear search costs and the 
possibility of mismatch even when names and titles provide little 
ambiguity for informed investors. However, we expect that when the 
hypothetical investor pool predominantly consists of investors who 
fully understand the differences between different financial 
intermediaries, as we assumed for this example, overall costs borne by 
both investors (e.g., search costs) and financial intermediaries (e.g., 
customer acquisition costs) are minimized by the use of distinct names 
and titles clearly identifying financial intermediary type.
    As the hypothetical pool of less knowledgeable investors that face 
confusion over company names, titles, or services increases, the choice 
of names and professional titles by financial intermediaries become 
more complex to analyze and depends on a number of factors related to 
investors. These factors include, among others: (i) Whether and how 
much these investors infer information from titles about the type of 
advisory or other services provided; (ii) the source of investors' 
confusion, such as (a) a lack of understanding about the type of 
service they would prefer, (b) an inability (in the absence of 
additional information) to understand the differences in the services 
offered and their associated payment models, or (c) a lack of knowledge 
about professional titles and information provided therein; (iii) how 
easily investors can learn, upon meeting with a financial professional, 
about whether the type of advice or other services provided by the 
financial professional meets their preferences; (iv) whether investors 
could be persuaded to choose a type of advisory service that is not 
consistent with the investor's preferences after meeting with a 
financial professional; (v) investors willingness or ability to keep 
searching for a financial professional until they find one that best 
matches their preferences; and (vi) the distribution in the investor 
pool of investors with different levels of knowledge and understanding 
as described above.
    When less knowledgeable investors are confused not only about what 
services broker-dealers and investment advisers provide, but also are 
confused about the types of services that they would prefer, the 
factors noted above may lead firms and financial professionals of 
either type to rationally choose generic or common terms in names and 
titles. Consider the example where retail investors know they would 
benefit from financial advice in a general sense, but are confused 
about which type of investment advice relationship and associated 
payment model would be best for them.\665\ A portion of these investors 
are also persuadable, to some degree, to contract for whatever service 
is offered to them by any given financial professional they contact, 
regardless of whether that type of service matches the investors' 
preferences.
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    \665\ The assumptions underlying this hypothetical example are 
meant to be illustrative of the incentives of firms and financial 
professionals to pick certain names and titles when their pool of 
potential customers is relatively uninformed. Should the 
relationship summary disclosure be provided to potential and 
existing customers, we believe that some of the confusion regarding 
the nature of services would be addressed/mitigated; however, some 
investors may still, even in the event that the relationship summary 
is provided be confused about what type of firm or financial 
professional or which particular service is best for their investing 
situation.
---------------------------------------------------------------------------

    In this case, and in order to maximize the number of investors that 
a firm or financial professional may be able to contract with, both 
broker-dealers and investment advisers facing these less knowledgeable 
investors would have incentives to pick names and titles that are the 
most effective at getting these investors to approach them, to the 
extent that names or titles alone have any impact on the choices made 
by these investors.\666\ Once these investors make contact, a firm and 
financial professional hypothetically may be able to persuade the 
investor to hire them regardless of the type of financial advice 
relationship offered, to the extent that the investor cannot 
distinguish the characteristics of different types of advice 
relationships that best fit their preferences, does not know the most

[[Page 21503]]

cost effective way to pay for that relationship, and cannot easily 
distinguish between the types of relationships that are offered by 
different firms and their financial professionals. In order to attract 
this type of investors, firms may favor titles that indicate their 
financial professionals' ability to dispense guidance and advice. For 
example, they may select titles that include the word ``adviser'' or 
``advisor,'' such as ``financial advisor''.\667\
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    \666\ Although a number of studies discussed in the baseline 
provide survey evidence that investors are confused about titles, we 
are unaware of any direct evidence that titles alone affect the 
choice of firms or financial professionals that are contacted or 
eventually hired. However, in conjunction with the proposed 
relationship summary, we expect that investors would gain better 
understanding of the services provided by, and standards of conduct 
applicable to, broker-dealers and investment advisers, which could 
lead to more informed decision making about choosing the type of 
financial intermediary that best matches to the investors' own 
expectations regarding services and standard of conduct.
    \667\ Alternatively, these firms may choose relatively generic 
names or titles that in other ways suggest an advisory service, such 
as ``financial planner'' or ``financial consultant,'' which are not 
subject to the present rulemaking proposal.
---------------------------------------------------------------------------

    In addition to potential search costs expended by less 
knowledgeable investors, these investors also bear a greater risk of 
mismatch between the type of advice relationship that best fits their 
preference and the actual advisory service for which they contract. 
However, in this example, the mismatch arises because of investor 
confusion over the type of relationship that best would meet their 
preference, and this confusion itself may lead the investor to, by 
chance, seek out a type of firm or financial professional that is 
inconsistent with the investor's preference, rather than any confusion 
directly related to the firm's or financial professional's use of a 
common name or title. Conversely, generic names and titles may make it 
easier for less knowledgeable investors to identify a broader class of 
firms or financial professionals that can meet their perceived need for 
financial advice to some extent.\668\ In situations where the pool of 
less knowledgeable investors is likely to be large, one likely outcome 
is that many firms and financial professionals could end up using 
similar names or titles, which would potentially increase search costs 
for those more knowledgeable investors who otherwise may use names and 
titles as an initial sorting mechanism.
---------------------------------------------------------------------------

    \668\ To the extent generic titles in use today such as 
``financial planner'' and ``financial consultant'' make it more 
likely less knowledgeable investors can identify both investment 
advisers and broker-dealers that offer advice, there may be benefits 
to some of these investors if they in their contacts with financial 
professionals of both types learn about which relationship and 
payment models is most consistent with their preferences.
---------------------------------------------------------------------------

    Other particular kinds of investor confusion, which could impose 
costs on some investors, may provide benefits, such as increased 
customer flow, to only a certain type of firm or financial 
professional. For example, some investors may be fully aware of the 
type of advice relationship that they prefer, but are confused about 
which firm or professional names and titles are associated with that 
type of advice relationship. In particular, consider a situation where 
investors know that they would like an advice relationship that is 
provided by investment advisers. In this case, some broker-dealers may 
have incentives to use titles such as ``advisor'' that suggest such an 
advice relationship to maximize their customer flow. As a result, some 
less knowledgeable investors may be misled to wrongly approach broker-
dealers rather than investment advisers in their search for advice, and 
bear both potentially higher search costs and an increased likelihood 
of a mismatch between the type of advice that is received and the type 
of advice that is preferred. The risk of a mismatch and associated harm 
in this case would be especially large for any of these investors that 
primarily base their choice of firm and financial professional on names 
and titles, rather than any information they would receive from a firm 
or financial professional about the type of services or applicable 
standards of conduct.
    In addition to the factors related to investors discussed above, 
the selection of names and titles by financial intermediaries also 
depend on other factors specific to the intermediary. For example, 
competitive concerns may cause some financial intermediaries to simply 
choose terms in names and titles that are commonly used by other 
financial intermediaries of their type. Alternatively, firms may choose 
names and titles that distinguish them from their competitors. Some 
firms or financial professionals may choose ambiguous generic titles, 
such as ``financial consultant,'' in order to capture a larger fraction 
of the investor pool, thinking that investors may seek information if 
the title does not clearly identify the kinds or levels of services 
provided or the applicable standard of conduct. We acknowledge that 
these factors could also be important determinants of the choice of 
names and titles.
2. Economic Effects of the Proposed Restrictions on the Use of Certain 
Titles and Required Disclosures
    In this section we discuss the potential economic effects from the 
proposed rules to the directly affected parties: Investors, standalone 
broker-dealers, standalone investment advisers, dually registered 
firms, and financial professionals. Potential economic effects on 
indirectly-affected parties, in particular financial intermediaries not 
regulated by the Commission, are discussed in the next section.
a. Investors
    The objective of the proposed rules is to reduce retail investor 
confusion and limit the ability for retail investors to be misled that 
a firm or financial professional is an investment adviser as a result 
of the use of firm and financial professional names and titles that 
contain either ``adviser'' or ``advisor''. Specifically, our proposed 
rule seeks to enable retail investors to be able to discern more fully 
whether a particular firm or financial professional will offer advisory 
or other services provided by investment advisers versus those provided 
by broker-dealers. In this section, we discuss the potential benefits 
to investors as a result of the proposed rules, while considering the 
potential costs that could be borne by investors. In general, we expect 
the benefits and costs are unlikely to be evenly distributed among 
investors, but will rather depend on both the differences in investors' 
preferences for broker-dealer or investment adviser services, and 
investors' individual degree of understanding what services any given 
firm or financial professional is providing and the standard of conduct 
that is applicable.
i. Benefits of Restrictions on the Use of Certain Names or Titles
    The proposed restriction on the use of the terms ``adviser'' and 
``advisor'' in names and titles of broker-dealers who are not also 
dually registered as investment advisers and of financial professionals 
who are not supervised persons of investment advisers and who provide 
advice on behalf of such advisers, may reduce investor confusion about 
what type of firm or financial professional is likely to match with 
their preferences for a particular type of investment advice 
relationship. The proposed rule may also reduce corresponding search 
costs for some investors under certain conditions. Moreover, the 
proposed rule may reduce the likelihood that a mismatch between an 
investor's preferences and the services offered by a firm or financial 
professional occur.\669\ Specifically, to the extent investors looking 
for an advice relationship of the type provided by investment advisers, 
and believe that

[[Page 21504]]

names or titles containing the terms ``adviser'' or ``advisor'' are 
associated with this type of advice relationship, the proposed rule 
would make it easier to identify firms and financial professionals that 
offer such advice relationships, thereby reducing investor confusion, 
search costs, and any mismatch in the advice relationship that may 
occur from the potential misleading nature of such names or titles, as 
well as any associated harm with such mismatch.\670\
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    \669\ We note that a potential mismatch could occur because 
investors may contact the wrong type of firm or financial 
professional and may not fully understand the type of financial 
advice that best match their preferences (even if the proposed 
relationship summary is made available), may be persuaded to hire 
the wrong type of firm or financial professional, or may be misled 
that a firm or financial professional will provide the type of 
service that the investor prefers, but in fact, does not.
    \670\ See supra discussion in Section IV.C.1.
---------------------------------------------------------------------------

    As a result of the proposed restriction on the use of certain 
terms, we expect the greatest potential reduction in search costs for 
retail investors who know that they specifically want the services 
provided by investment advisers and also would use names and titles in 
their search. The proposed rule would potentially make it easier for 
such investors to distinguish firms and professionals providing 
investment adviser services from firms and professionals providing 
brokerage services. The proposed rules may also reduce search costs for 
investors that prefer brokerage services, if standalone registered 
broker-dealers and financial professionals who are not supervised 
persons of an investment adviser or who are supervised persons but do 
not provide investment advice on behalf of such investment adviser are 
using names or titles including ``adviser'' and ``advisor,'' would 
choose new names and titles due to the proposed rule that more 
distinctly indicate the types of services they provide, such as 
``broker'' or ``broker representative.''
    However, the reduction in search costs for retail investors as a 
result of the proposed rule would be limited to the extent the firms 
and financial professionals covered by the restriction on the use of 
the terms ``adviser'' or ``advisor'' are not currently using the 
proposed terms in their names and titles. Further, the potential impact 
of the proposed rule on search costs is likely to be mitigated to the 
extent the proposed rule is limited to firm names and job titles, and 
would not itself affect the use of terms, such as ``advisory services'' 
in other communications or using those terms in metadata to attract 
internet search engines.\671\ Moreover, beyond registered investment 
advisers, dual registrants, and their supervised persons, other types 
of financial services providers, such as insurance companies and banks, 
may also continue to use the terms ``adviser'' and ``advisor'' in their 
names and professional titles, and any confusion and search costs borne 
by investors related to the use of such names and titles by financial 
intermediaries not affected by this proposed rule would not be reduced. 
As noted above, the Commission recognizes that terms such as 
``financial advisor'' or ``financial consultant'' may be used by banks, 
trust companies, insurance companies, and commodities 
professionals.\672\
---------------------------------------------------------------------------

    \671\ As discussed above, these other communications by firms 
and financial professionals would continue to be subject to 
antifraud rules. See supra note 309.
    \672\ See supra note 400. Further, as identified by Commission 
staff, as of December 2017, approximately 546 broker-dealers 
reported at least one type of non-securities business, such as 
insurance, retirement planning, and real estate; see supra note 459.
---------------------------------------------------------------------------

    As discussed above in Section IV.C.1, some investors may be 
confused by names and titles and believe that certain names and titles 
are likely to specifically signal the type of advice services provided 
by firms and financial professionals that use those names and titles 
and the associated standard of conduct.\673\ In particular, investors 
that prefer the type of investment advice relationship and the 
associated standard of conduct offered by investment advisers may 
believe that names or titles containing the terms ``adviser'' or 
``advisor'' are only associated with that type of advisory 
relationship. If some of these investors are persuaded by financial 
professionals associated with broker-dealers (who are not themselves 
investment advisers or supervised persons of investment advisers who 
provide advice on behalf of such adviser) that they could have a 
similar type of advice relationship as they would with an investment 
adviser, a potential mismatch between investor preferences and the 
advice relationship received may occur, which in turn may lead to 
investor harm such as higher payments for the services by the investor 
than necessary.\674\ Thus, the proposed prohibition on the use of 
``adviser'' or ``advisor'' by certain broker-dealers may reduce the 
risk of a mismatch between investors seeking advisory services of the 
type provided by investment advisers and the type of services for which 
they contract, as these investors under the proposed restriction would 
be potentially less likely to be misled or inadvertently approach and 
hire a type of firm or financial professional that does not match with 
their preferences and expectations.
---------------------------------------------------------------------------

    \673\ As discussed in Section IV.A.3.b, survey evidence suggest 
that many investors in general do not have a clear understanding 
about the differences in the nature of the advisory services 
provided by, and standard of conduct applicable to, different types 
of financial professionals.
    \674\ Broker-dealers may elect to provide some services similar 
to those of many investment advisers, such as ongoing monitoring, 
thereby potentially mitigating any mismatches between preferred 
services and the services provided.
---------------------------------------------------------------------------

    Because mismatch in investor preferences and the type of advice 
relationship they receive can potentially be very costly for investors 
by resulting in inefficient advice relationships, reducing this cost 
could be a potential benefit of the proposed rule for some investors. 
In particular, if an investor seeks an advice relationship of the type 
offered by investment advisers, but mismatches to a brokerage 
relationship, then the frequency of advice received may not be the most 
appropriate, or the cost for the advice may be too high if it leads to 
frequent trading, and could result in suboptimal investment decisions 
or lower investment returns net of costs. The Commission preliminarily 
believes this reduction in mismatch risk would mainly apply to those 
investors seeking a relationship similar to that provided by investment 
advisers, as discussed above. However, for at least some investors 
requiring advice on a per-transaction basis, the confusion about the 
use of titles or the services provided by financial professionals could 
potentially lead them to inadvertently select investment advisers even 
if they truly want a broker-dealer. To the extent the proposed rule 
would also help these investors more clearly distinguish between 
broker-dealers and investment advisers, they may avoid inadvertently 
hiring an investment adviser and thereby avoid paying potentially 
higher fees for that type of advice relationship.
    At this time the Commission is unable to estimate how many 
investors have contracted for services that do not meet their 
preferences, or are paying more than they would have preferred for 
services, due to confusion about the names and titles of financial 
intermediaries. Further, to the extent that confusion exists among 
retail investors regarding the names and titles used by firms and their 
financial professionals, surveys of retail investors with brokerage 
accounts suggest that they tend to be satisfied with their firms and 
financial professionals, and also believe that services provided by 
these firms and financial professionals are valuable, which further 
complicates any estimate of the incidence or magnitude of harmful 
mismatch.\675\
---------------------------------------------------------------------------

    \675\ See RAND Study, supra note 5, at 98.
---------------------------------------------------------------------------

    As discussed above with respect to search costs, any reduction in 
mismatch risk associated with investor confusion over names and titles 
would be limited to the extent that standalone registered

[[Page 21505]]

broker-dealers and their associated natural persons do not use the 
proposed prohibited terms in their names and titles. This would also be 
the case to the extent that registered representatives of dually-
registered broker-dealers who are not themselves supervised persons of 
an investment adviser or who are supervised persons but do not provide 
investment advice on behalf of such investment adviser do not use those 
terms. The potential reduction in mismatch risk due to this proposed 
rule would also be limited to extent the rule is limited to firm name 
and individual job titles, and would not itself affect firms and 
financial professionals from using terms such as ``advisory'' in other 
content. Moreover, other types of financial intermediaries may use the 
terms ``adviser'' and ``advisor'' in their names and titles, such as 
banks, trust companies, insurance companies, and commodities 
professionals.\676\ Therefore, the potential gains associated with a 
reduction in mismatch risk due to the prohibition on certain names and 
titles may be limited because some confused investors seeking an advice 
relationship from investment advisers could continue to inadvertently 
hire these other types of financial intermediaries that also use 
``adviser'' or advisor'' in their names and titles.
---------------------------------------------------------------------------

    \676\ See supra note 400.
---------------------------------------------------------------------------

    Another potential limitation of the proposed restriction on the use 
of certain titles is that a dual registrant could still call itself an 
``adviser'' or ``advisor,'' but then only offer brokerage services to 
investors that may not be legally and financially sophisticated enough 
to understand the differences in types of relationships and standards 
of conduct available.\677\ Finally, for retail investors that rely on 
professional or personal recommendations in their search for financial 
professionals, the proposed prohibition on the use of certain titles is 
likely to have a limited effect on both search costs and the risk of 
mismatch in the advice relationship.
---------------------------------------------------------------------------

    \677\ As discussed above, however, financial professionals who 
are not themselves investment advisers or supervised persons of 
investment advisers and who provide advice on behalf of such 
advisers would also not be able to use the terms ``adviser'' or 
``advisor'' in their professional titles.
---------------------------------------------------------------------------

ii. Costs of the Restriction on the Use of Certain Titles
    Although the Commission preliminarily believes that the proposed 
rule would decrease investor confusion, search costs, and mismatch for 
some segment of the investor pool that search for professionals based 
on names or titles, investor confusion and search costs could increase 
for those that would have, in the absence of the rule, selected broker-
dealers and associated natural persons that would have to change their 
company names or titles as a result of the proposed rule.\678\ For 
example, prospective customers familiar with a firm's name or financial 
professional's title may be especially confused by a change of either 
name or title to the extent that the term ``adviser'' or ``advisor'' is 
part of the firm's name brand or the titles of the professionals. Any 
increase in confusion as a result of the rule along these lines would 
likely be larger if the changed names or titles of broker-dealer firms 
that currently contain the words ``adviser'' or ``advisor'' are widely 
recognized as brands by investors.\679\ Further, even if the broker-
dealer name or title is unlikely to change, some investors may remove 
certain firms from their search list as professional names or titles 
change as a result of the rule. If, for example, a prospective investor 
is using the search term ``financial advisor'' to search for firms and 
financial professionals located in their city, some firms and financial 
professionals will be removed from any possible searches by these 
investors as a result of the proposed rule, even though these financial 
professionals might have been the best match to the preferences and 
expectations of the investor. However, these kind of potential costs to 
some current investors are likely to be limited to the extent that 
proposed rule is limited to firm name or title and individual job name 
or title and would not require firms and financial professionals to 
remove the restricted terms from other content, if they are not using 
such terms as a name or a title.
---------------------------------------------------------------------------

    \678\ As discussed in the baseline, several studies indicate 
that many investors receive personal or professional referrals in 
the selection of their broker-dealer or investment advisor. However, 
even these investors may investigate these referrals prior to 
undertaking outreach, and therefore, may avoid certain financial 
professionals as a result of the name or title change.
    \679\ As discussed in the baseline, approximately 87 broker-
dealers that are not dually registered as investment advisers and do 
not report non-securities business use the words ``adviser,'' 
``advisor,'' or ``advisory'' as part of their current company name. 
These firms would likely have to change their company name as a 
result of this proposed rule. However, any loss in brand value due 
to this change could be mitigated to the extent the prohibited terms 
are not an important part of the firm's brand.
---------------------------------------------------------------------------

    The proposed rule may also increase investor confusion to the 
extent some firms and financial professionals invent new names or 
titles to substitute for the restricted ones. Studies already indicate 
that the wide variety of names and titles used by firms and financial 
professionals causes general investor confusion about the market for 
investment advice. The magnitude of such costs is hard to predict, but 
would likely increase search costs for less knowledgeable retail 
investors that use names or titles to search for financial 
professionals or firms, and may also increase the likelihood of a 
mismatch for some of these investors between the type of advice 
relationship they prefer and the type of firm and financial 
professional they hire.
    Investors seeking advice from broker-dealers may also face 
potential harm if some broker-dealers change their business model as a 
result of the proposed rule. As discussed above, we believe that most 
broker-dealers that would be subject to the restrictions of the 
proposed rule have chosen names and titles to build their customer 
base. Given that the market for investment advice overall appears to be 
relatively competitive, with respect to the number of firms and 
financial professionals, firms and financial professionals likely have 
chosen names or titles that they view as effective in marketing their 
services to investors. Therefore, being forced to switch names or 
titles could reduce the potential customer flow for some broker-dealers 
(and registered representatives of dual registrants who are not 
supervised persons of an investment adviser or who are supervised 
persons but do not provide investment advice on behalf of such 
investment adviser) who currently are using name or titles which 
include the term ``adviser'' and ``advisor'' and who serve retail 
investors. In lieu of adopting a new name or title without ``adviser'' 
or ``advisor,'' these firms or financial professionals might respond by 
exiting the retail investor market, or may bypass the compliance and 
other costs associated with this proposed rule by also registering as 
investment advisers or becoming supervised persons of an investment 
adviser who provide investment advice on behalf of such investment 
adviser, which would change their incentives to market their brokerage 
services to investors.\680\ Either of these changes to business 
practices could reduce the availability of broker-dealer services for 
investors.\681\ To the

[[Page 21506]]

extent the costs of exiting the retail investor market or associated 
initial and ongoing costs of becoming a registered investment adviser 
(or a supervised person of an investment adviser who provides 
investment advice on behalf of such investment adviser) are greater 
than the costs associated with complying with the proposed rule, the 
likelihood of exit from the retail market or a change to the existing 
business model from a brokerage to advisory model would be low. In this 
case, the anticipated effect on investors from the loss of existing 
broker-dealer advice is expected to be limited. However, if it is 
costlier to change names or titles than to switch business model for 
broker-dealers, we expect some investors may experience a reduction in 
supply of broker-dealer advice services. Finally, because the 
Commission recognizes that a standalone broker-dealer can provide 
advice to retail investors without being regulated as an investment 
adviser provided that such advice is merely ``solely incidental to'' 
its brokerage business and the broker-dealer receives no ``special 
compensation'' for the advice, the proposed restriction would not 
prevent standalone broker-dealers from conveying the services that they 
provide in other content, without using the titles or names ``adviser'' 
or ``advisor.'' This may also limit the likelihood of exit from the 
retail market or a change to the existing business model from a 
brokerage to an advisory model.
---------------------------------------------------------------------------

    \680\ Some firms could potentially increase their profits by 
moving some customers from a brokerage account to an advisory 
account (e.g., customers who rarely trade). Such firms would have 
incentives to cut back on marketing of existing brokerage services 
to such customers and instead market the new advisory services.
    \681\ For example, in the event of exit by a broker-dealer, 
investors who want broker-dealer services would be forced to 
undertake search costs to find another firm and financial 
professional to meet their perceived needs, but also bear an 
increased cost associated with mismatch if they choose the wrong 
type of firm and financial professional. In the event of a switch 
from a brokerage model to an advisory model, investors may be forced 
to bear the costs associated with an advisory account that could 
exceed costs associated with services provided by a broker-dealer, 
or face costs associated with search and mismatch if they choose to 
change financial intermediaries, as discussed above.
---------------------------------------------------------------------------

    The proposed rule could, however, also increase the risk of 
mismatch for some investors by removing standalone registered broker-
dealers and registered representatives of dual registrants who are not 
supervised persons of an investment adviser from the pool of financial 
intermediaries that use the terms ``adviser'' or ``advisor'' in names 
and titles, while not affecting the use of these terms by other types 
of financial intermediaries, including banks, trust companies, 
insurance companies, and commodities professionals. Investors who are 
seeking financial services from either investment advisers or broker-
dealers could instead inadvertently hire other types of financial 
intermediaries that would continue use these terms ``adviser'' or 
``advisor,'' thereby potentially exacerbating the degree of mismatch 
between the type of relationship that they seek and what they receive. 
Further, neither this rule nor the proposed relationship summary would 
address the potential mismatch because these entities and natural 
persons are outside of the scope of the Commission rules. The 
Commission is not able to estimate the scope of this continuing 
potential for mismatch because we do not have access to information on 
the extent to which retail investors include these other types of 
financial intermediaries (deliberately or inadvertently) in their 
search for financial advice, nor the extent to which they see the 
services provided by these other financial intermediaries as substitute 
for the services provided by investment advisers or broker-dealers.
    Another potential cost for investors is that affected broker-
dealers may attempt to directly pass through any costs they would incur 
due to the proposed restriction on certain names and titles. A broker-
dealer's incentives for such pass-through behavior would be attenuated 
the more competitive the broker-dealer's local market is in the sense 
that price sensitivity of demand is high.
    Finally, we note that many of the costs and benefits to investors 
that we discussed above depend on the extent that titles and names 
affect investors' selection of their financial professional. The 
evidence discussed in Section IV.A.3.a suggests that between 40% and 
50% of investors find their financial professionals through personal 
recommendations.\682\ For this set of investors, the proposed rule 
would likely have little impact on search costs or potential for 
mismatch between their preferences and expectations and the type of 
advisory service for which they contract. We also note that we are not 
able to provide quantitative estimates of potential changes in search 
costs. Search costs for investors as well as costs due to mismatch 
would depend on a large set of individual specific factors, such as 
exactly what procedures investors use to search for financial 
professionals, what restrictions they put on their search (for example, 
choice of market, how many firms or professionals they are willing to 
sample before making a decision), the method they use to evaluate 
different alternative financial professionals they have identified, 
etc. The costs will to a large part not be monetary in nature but 
rather in the form of time and effort spent. The monetized value of 
that time and effort will also be individual specific. We do not have 
access to data that would provide us with this type of information, 
which we would need to estimate search costs. Similarly, we also are 
unable to provide estimates of changes in costs due to changes in the 
potential for mismatch as we do not currently have data on the 
percentage of the investor population that is mismatched, or the extent 
of harm that comes from mismatch.\683\ For example, we don't have an 
analysis of how well someone would have done in their portfolio 
(especially after costs) if they had been correctly matched.
---------------------------------------------------------------------------

    \682\ RAND Study, supra note 5 and 917 Financial Literacy Study, 
supra note 20.
    \683\ To estimate the potential harm from mismatch we would need 
to analyze how well someone could have done in their portfolio 
(after costs) if they had been correctly matched. This requires a 
rich set of investor characteristics as well as information about 
the investment menus and fee structures of potential alternative 
firms and financial professionals investors could have hired. We do 
not currently have access to such detailed information.
---------------------------------------------------------------------------

iii. Benefits and Costs of the Required Disclosures About Regulatory 
Status of a Financial Services Provider
    We anticipate the proposed requirements for broker-dealers and 
investment advisers and their associated natural persons and supervised 
persons to prominently disclose their registration (or firm association 
for financial professionals) status in retail investor communications 
would reduce investor confusion as well as search costs associated with 
locating and hiring a firm, which could reduce the probability of 
mismatch for investors seeking advice. In particular, for investors who 
understand the meaning of the registration status and know they want to 
hire either a registered broker-dealer or a SEC-registered investment 
adviser, we expect the search for the correct type of firm will be made 
both clearer and less time consuming, as these investors will more 
readily observe the registration status. Search costs for investors for 
whom the registration status has little meaning, however, are not 
expected to experience a decrease in either confusion or search costs 
due to these disclosure requirements. Disclosure may also reduce the 
possibility of mismatch of hiring the wrong type of firm for investors 
who understand the meaning of the registration status and know what 
type of financial intermediary they want to hire, although we note that 
the likelihood for such mismatch is likely lower in the first place for 
such investors compared to less knowledgeable investors. For the pool 
of investors that are confused by both the type of advice relationship 
that they

[[Page 21507]]

prefer, including how they want to pay for it, as well as 
professionals' titles, disclosure of registration status alone may not 
be sufficient to alleviate confusion in the type of advisory services 
provided by or the standard of conduct applicable to firms or financial 
professionals. Finally, for retail investors that rely on professional 
or personal recommendations in their search for financial 
professionals, the disclosure requirement is likely to have a limited 
effect on both search costs and the risk of mismatch in the advice 
relationship. As discussed above, we do not have access to information 
that would allow us to provide quantitative estimates of the potential 
costs and benefits to the investor from these proposed disclosure 
requirements.
    In general, we do not anticipate any costs to investors from the 
proposed rules to disclose registration status. However, it could be 
that firms may attempt to pass through any compliance costs to 
investors through higher fees, in particular those that operate in 
markets where the price sensitivity of demand may be lower. Given that 
compliance costs would be of a one-time nature, as discussed above, we 
believe the likelihood and magnitude of such pass-through would be low.
b. Standalone Registered Broker-Dealers
    The proposed rule would restrict broker-dealers who are not dually 
registered as investment advisers and their associated natural persons 
who are not themselves investment advisers or supervised persons of 
investment advisers that provide advice on behalf of such advisers from 
using the terms ``adviser'' or ``advisor'' when communicating with 
retail investors. As described previously in Section IV.A.1, 
approximately 87% of retail facing broker-dealer firms and 50% of 
registered representatives are not dually registered as investment 
advisers, and therefore potentially could be affected by the proposed 
restriction. The fraction of standalone broker-dealer firms that are 
currently using the terms ``adviser'' or ``advisor'' in their firm 
names or titles and do not report a non-securities business, is only 
approximately 3.5%.\684\ When it comes to names or titles by registered 
representatives at standalone broker-dealers, the RAND Study evidence 
discussed in Section IV.A.1.f suggests that around 31% of professionals 
providing only brokerage services used titles containing the terms 
``adviser'' or ``advisor.'' If the evidence presented in the baseline, 
is representative of the overall universe of standalone registered 
broker-dealers, the fraction of firms and associated natural persons 
that would be affected by the proposed prohibition may be relatively 
low.\685\
---------------------------------------------------------------------------

    \684\ As discussed in supra Section IV.A.1.f, there are 87 (103-
16 = 87) retail facing standalone broker-dealers without non-
securities business that are currently using one of these terms in 
their firm names, which represents approximately 3.5% of the 2,497 
retail acing standalone broker-dealers (2,857-360 = 2,497; see supra 
Table 1, Panel B). If we go beyond firm names and instead look at 
how firms' publicly describe themselves on their websites, the 
evidence presented in Section IV.A.1.f suggests that of the sampled 
standalone broker-dealers, less than 10% describe themselves using 
the terms ``adviser'' or ``advisor.'' Although some of these website 
descriptions may still be allowed under the proposed rule, it 
suggests that the fraction of standalone broker-dealers that rely on 
these terms to describe themselves may be relatively low.
    \685\ We estimate that approximately 226,132 (942,215 x 0.24 = 
226,132; see supra Table 6) registered representatives of broker-
dealers are not also registered as investment advisory 
representatives. Among these registered representatives, 
approximately 119,729 are employed by dually registered firms 
(494,399 x 0.61 x 0.397 = 119,729; see supra Section IV.A.1.e), 
which means 106,403 are employed by standalone broker-dealers. 
Further, if only 31% of broker-dealer registered representatives 
that are not dual-hatted (see supra Table 8) use titles containing 
the terms ``adviser'' or ``advisor,'' then we estimate that the 
total number of non-dual hatted registered representatives that 
would be potentially subject to this proposed prohibition would be 
70,101, which is approximately 15.5% of all registered 
representatives. Of these representatives, 32,985 (0.31 x 106,403 = 
32,985) are employed by standalone broker-dealers and approximately 
37,116 (0.31 x 119,729 = 37,116) are employed by dual registrants. 
Note, the number of non-dual hatted registered representatives at 
dual registrants that would be potentially affected by the rule is 
likely lower than the estimated 37,166 because some of these 
representatives may be supervised persons providing advisory service 
without being dual-hatted. We are not able to estimate how large the 
fraction of such registered representatives would be. On the other 
hand, we do not have information about how many dual-hatted 
registered representatives among dual registrants that they are not 
supervised persons providing advisory services despite being dual-
hatted, and therefore would also be subject to the proposed 
restriction on the use of certain titles.
---------------------------------------------------------------------------

    If the proposed restriction on certain names or titles would reduce 
potential investor confusion and prevent retail investors from 
potentially being misled, it could have some positive benefits for the 
subset of broker-dealers that would be impacted by this restriction but 
are not marketing advice services to attract business. In particular, 
these broker-dealers may be able to better attract customer flow and 
more efficiently target their marketing and advertising campaigns to 
reduce the likelihood of ``false starts'' associated with the potential 
mismatch with retail investors. Moreover, broker-dealers that are not 
dually registered may similarly benefit from the requirement to 
prominently display registration status as that may also help reduce 
investor confusion. Firms and financial professionals may also realize 
a limited benefit from this disclosure such that they can more 
effectively signal their type in communications, even when the firm or 
professional names or titles are not perfectly aligned with the 
registration status.\686\
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    \686\ Note that any such benefits from the proposed rules relies 
on an assumption that some broker-dealers are not currently 
optimizing to receive such benefits by voluntarily changing names 
and titles or prominently display their registration status. 
However, as noted above, we expect in an efficient market, firms 
have already chosen names and titles that they view as effective 
marketing tools. As a result, we expect this benefit will be limited 
to the extent firms are currently rationally optimizing their choice 
of names and titles.
---------------------------------------------------------------------------

    For the segment of broker-dealers that would be affected by a 
restriction of using the terms ``adviser'' or ``advisor,'' we 
anticipate potentially substantial, one-time costs associated with the 
proposed rule. Broker-dealer firms subject to the restrictions on the 
use of certain names or titles would be required to change current 
company names or titles (if the company name or title contains 
``adviser/advisor''), and marketing materials, advertisements (e.g., 
print ads or television commercials), website and social media 
appearances that use the current company name or title, among other 
items, resulting in direct compliance costs. Similarly, all personal 
communications tools used by financial professionals, such as business 
cards, letterhead, social media profiles, and signature blocks would 
need to be amended to reflect new company and financial professionals' 
names or titles. The proposed requirement to prominently disclose 
registration status in print or electronic retail investor 
communications is also expected to require changes to the same set of 
materials and communication tools, and therefore, also would have to be 
modified to incorporate the registration status in the manner the rule 
prescribes.\687\
---------------------------------------------------------------------------

    \687\ See infra Section V.G for estimates of some of these 
compliance costs developed for the purpose of the Paperwork 
Reduction Act.
---------------------------------------------------------------------------

    To the extent that the costs discussed above have a fixed-cost 
component (i.e., a print ad would likely cost the same regardless of 
the size of the firm), the costs associated with producing new 
communication and advertising materials would be disproportionately 
higher for smaller broker-dealer firms. Other costs, however, may 
increase with the size of the broker-dealer, such as costs associated 
with revisions to each individual representative's communication and 
advertising materials, and therefore would increase with a broker-
dealer's size.

[[Page 21508]]

    In addition to direct compliance costs associated with producing 
new materials, broker-dealers would likely bear costs associated with 
contacting current and prospective customers, whether by email, mass 
mailings, one-on-one meetings, or telephone conversations, to inform 
them of changes to names and titles. Such outreach on behalf of the 
broker-dealer or the individual representatives would inform existing 
and prospective investors of a name or title change, and whether or not 
any services have changed and may be necessary in order to minimize any 
confusion among current and prospective customers that could 
potentially lead to a loss of business during a ``changeover'' 
period.\688\ This kind of outreach, however, could be costly to 
financial professionals and firms if it diverted time and resources 
away from the core business of the broker-dealer.\689\ Further, the 
greater the name recognition of a current company or the larger the 
size of the company, the costlier such an outreach is likely to be as 
more current and prospective customers would need to be informed of the 
name change. Finally, to the extent that a broker-dealer's company name 
is recognized as a brand in the market and therefore represents a 
valuable intangible asset to the firm, some of its ``brand value'' may 
be lost following a company name change.\690\ We note that the number 
of broker-dealer firms whose brand value may be negatively affected by 
the rule is relatively limited, as only around 3.5% of the broker-
dealer firms that would be subject to the rule are using any of the 
prohibited terms in their company names.\691\
---------------------------------------------------------------------------

    \688\ In particular, without outreach, some broker-dealers could 
experience a temporary reduction in the flow of prospective 
customers that would have relied on the use of titles prohibited by 
the proposed rule. In the absence of the prohibitions, these 
investors would have ended up contracting with the broker-dealers, 
but due to confusion over new company names and titles that would be 
required to be used, these investors may avoid broker-dealers 
subject to the change in names and titles, and these broker-dealers 
could earn less revenue. Only after the potential customer base 
becomes familiar with the new names and titles associated with a 
given broker-dealer and its financial professionals, or the search 
costs associated with these new titles decline, could these firms 
potentially recover a portion of the prospective customer base that 
was originally lost during the name transition period as a result of 
the changeover confusion. The Commission does not have access to the 
type of detailed customer information of individual broker-dealers 
that would allow us to estimate the percentage of customers that 
might be confused as a result of the name change or what fraction of 
these customers might eventually be recovered by a broker-dealer.
    \689\ Although such outreach is not required by the proposed 
rule, we anticipate that at least some percentage of affected 
broker-dealers or financial professionals would undertake such 
efforts in order to maintain good relationships with existing 
customers.
    \690\ Academic evidence suggest corporate brands are valuable 
intangible assets to firms; see, e.g., M. E. Barth, M. B. Clement, 
G. Foster, & R. Kasznik, Brand values and capital market valuation, 
Review of Accounting Studies, 3(1), 41-68 (1998).
    \691\ See supra note 648. Specifically, 3% refers to the total 
number of broker-dealers that do not report non-securities business.
---------------------------------------------------------------------------

    Likewise, broker-dealers facing no constraints on their choice of 
names and titles may choose the names and titles that they believe are 
the most effective at helping attract customers, and may best describe 
their business model, and reduce the effort associated with building a 
customer base, as described above.\692\ Therefore, a segment of broker-
dealers that are currently using terms that would be restricted under 
the proposed rule could experience a reduction in the efficiency of 
their marketing efforts, which in turn might lead to fewer customers 
and a loss of revenue compared to the baseline. In particular, those 
broker-dealers that rely on advice services as an important part of 
their value proposition to retail investors and directly compete with 
investment advisers may lose competiveness, if names and titles become 
less descriptive of this aspect of their business in the eyes of retail 
investors. These marketing efficiency costs would be mitigated to the 
extent the broker-dealers would use new names and titles that are 
equally efficient at conveying they are providing advice, or to the 
extent that the proposed restriction would not affect the use of terms 
such as ``advisory services'' in other content, or using them in 
metadata to attract internet search engines.\693\
---------------------------------------------------------------------------

    \692\ See discussion in Section IV.C.1.
    \693\ Note that to the extent affected broker-dealers would 
choose other names and titles that convey a similar signal to 
investors as those containing the terms ``adviser'' or ``advisor,'' 
it would reduce the efficiency of the proposed prohibition. In 
Section IV.C.4.a we discuss an alternative that would prohibit a 
broker-dealer from otherwise ``holding out'' as an investment 
adviser, which would potentially also prevent the use of some 
similar names and titles.
---------------------------------------------------------------------------

    Although we recognize that a significant fraction of a broker-
dealer's customer base is attributed to referrals, as noted in the 917 
Financial Literacy Study, approximately 25% of survey respondents rely 
on broker-dealer or financial professional names or titles in selecting 
their current advisor.\694\ Depending on how effective the terms 
``adviser'' or ``advisor'' are at attracting customers, costs 
associated with the loss of certain titles or names could be 
substantial for some broker-dealers.\695\
---------------------------------------------------------------------------

    \694\ See supra note 20.
    \695\ For example, if investors know that they are seeking 
advice related to individual transactions (e.g., the type of mutual 
fund or exchange-traded fund in which to invest), they may have a 
preference for terms such as ``financial advisor'' compared to terms 
such as ``financial planner'' or ``investment strategist,'' 
depending on their colloquial understanding of what an these terms 
might imply for the level of service and standard of conduct. If 
certain broker-dealers are restricted from using ``financial 
advisor,'' these firms may lose these potential customers. Moreover, 
these investors could potentially expend search costs as they sort 
through investment advisers that use the term ``financial advisor'' 
until the investor is able to match with the right type of financial 
professional.
---------------------------------------------------------------------------

    One way that affected broker-dealers could potentially mitigate the 
costs associated with the potential loss of titles or names could be 
for these firms to dually register as investment advisers. However, 
dual registration imposes an additional layer of regulatory oversight 
and compliance and need for training and licensing of employees to work 
as investment adviser representatives, which would also be costly. A 
broker-dealer would likely pursue such a strategy only if it expected 
the costs of regulation as an investment adviser were lower than the 
expected costs of modifying names and titles. We do not have access to 
data that would allow us to estimate either the total costs for 
modifying names and titles for broker-dealers, or the total costs of 
becoming an investment adviser for these broker-dealers.
c. Investment Advisers (Including Dual Registrants)
    The proposed restriction on the use of the terms ``adviser'' and 
``advisor'' in names and titles does not apply to registered investment 
advisers, whether they are solely registered as investment advisers or 
whether they are dually registered. Consequently, there would be no 
compliance costs for registered investment advisers associated with the 
restriction on the use of certain terms in names or titles. Some 
benefits could accrue to investment advisers at the expense of impacted 
broker-dealers. However, supervised persons of investment advisers who 
are dually registered but do not provide investment advice on behalf of 
such investment adviser would be prohibited from using the terms, which 
could lead to costs for those financial professionals or their firms.
    Because the proposed restriction would force some standalone 
registered broker-dealers to change their names and titles in a way 
that may lead to less efficient marketing aimed at attracting potential 
investors, as discussed above, some customer flow that might have gone 
to these broker-dealers could be permanently diverted to investment 
advisers who will not be required to

[[Page 21509]]

change their names.\696\ As a result, some investment advisers could 
experience an increase in revenues due to an increase in customer flow. 
The benefits may also be larger for investment advisers or dual 
registrants that are able to continue to use names or titles that 
include the term ``adviser'' or ``advisor'' as these terms could be the 
draw that currently attracts customer flow to certain firms and 
financial professionals, and that would be diverted due to a 
restriction on the use of these terms by standalone registered broker-
dealers. In addition, assuming that small broker-dealers and investment 
advisers select geographic areas where competition from larger firms is 
low, then, as result of the proposed rule restricting the use of 
certain names or titles by broker-dealers, small investment advisers 
could especially benefit at the expense of small broker-dealers in 
these locations.
---------------------------------------------------------------------------

    \696\ To the extent that investor confusion about the market for 
financial services generally increases during the period when 
affected firms and financial professionals remove the term 
``adviser'' or ``advisor'' from their names and titles, investment 
advisers that are not required to change their names or titles may 
see an increase in the diversion of customer flow from broker-
dealers to investment advisers until investor confusion over the 
change in titles subsides. To the extent that some investors that 
are not currently making an efficient choice of a broker-dealer as 
indicated by investor confusion about titles and associated 
standards of conduct, and would choose an investment adviser after 
the proposed rules were adopted, this proposed rule change may 
assist them in making a more efficient choice to a service they 
would prefer.
---------------------------------------------------------------------------

    In terms of additional potential benefits, investment advisers and 
dual registrants, like standalone broker-dealers, will be subject to 
the required disclosure of their registration status, as part of the 
proposed rules. As we discussed in the case of standalone registered 
broker-dealers above, the prominent display of registration status 
could help reduce investor confusion, and could be used by both firms 
and their financial professionals as a marketing tool. Moreover, firms 
may benefit from this disclosure such that they can more effectively 
signal their type, even if the firm or professional names or titles are 
not perfectly aligned with the registration status. These potential 
benefits may be larger for dual registrants, as the prominent display 
of both their registrations may help attract investors that are looking 
for both types of services or investors who are generally unsure about 
which type of services they want.\697\
---------------------------------------------------------------------------

    \697\ However, as noted previously, all firms and financial 
professionals can already voluntarily choose to prominently display 
their registration status, therefore implying that the direct 
benefits to firms and financial professionals from the proposed rule 
requiring disclosure of registration status may be limited.
---------------------------------------------------------------------------

    The proposed restriction on the use of certain names and titles 
would apply to financial professionals of dual registrant investment 
advisers who are not supervised persons of an investment adviser or who 
are supervised persons of an investment adviser but who do provide 
investment advice on behalf of such investment adviser, which could 
lead to costs for those financial professionals or their firms. 
Consistent with the discussion of standalone registered broker-dealer 
firms above, this segment of persons associated with dual registrants, 
and the dual registrants themselves, could bear a potentially 
substantial, one-time costs associated with the proposed rule to change 
marketing materials and other communications to remove the restricted 
terms and to explain the change to their customers. Further, some 
financial professionals using the restricted terms could experience a 
reduction in the efficiency of their marketing efforts. This could 
happen to the extent the terms were optimally chosen in the first place 
from a marketing perspective. This, in turn, might lead to fewer 
customers for the financial professional and his or her associated firm 
and a loss of revenue compared to the baseline. Furthermore, financial 
professionals that are not currently supervised persons of an 
investment adviser, or cannot immediately qualify to be hired in such a 
professional role may become less attractive to retain or hire by dual 
registrants, to the extent their services would be less valuable to 
dual registrants if they cannot use the terms ``adviser'' or 
``advisor'' in their names or titles. These financial professionals 
could potentially mitigate the costs associated with the potential loss 
of names or titles by becoming a supervised person of an investment 
adviser and providing investment advice on behalf of such investment 
adviser. A financial professional would likely pursue such a strategy 
only if it expected the costs of becoming a supervised person of an 
investment adviser who provides investment advice on behalf of such 
investment adviser were lower than the expected costs of modifying 
their professional names or titles.
    We expect the proposed requirements to prominently disclose 
registration status to impose one-time direct compliance costs 
associated with changes to written and electronic retail investor 
communications on both investment advisers and dually registered 
financial firms.\698\ Similar to standalone registered broker-dealers, 
we expect that to the extent the required changes have a fixed-cost 
component, smaller investment adviser firms would incur relatively 
higher costs associated with this disclosure. Larger investment 
advisers and dual registrants, however, would likely bear an increase 
in the variable costs associated with such disclosures, as the amount 
of revisions associated with individual representative's and firm's 
communications will rise.\699\
---------------------------------------------------------------------------

    \698\ See infra Section V.H. for estimates of some of these 
compliance costs developed for the purpose of the Paperwork 
Reduction Act.
    \699\ Consistent with this argument, we estimate in the 
Paperwork Reduction Act analysis in infra Section V.H.2, that the 
initial one-time burden for complying with the disclosure 
requirements would be 72 hours per large investment adviser and 15 
hours per small investment adviser.
---------------------------------------------------------------------------

3. Impact on Efficiency, Competition, and Capital Formation
    In addition to the specific benefits and costs discussed in the 
previous section, the Commission expects that the proposed disclosure 
could cause some broader long-term effects on the market for financial 
advice. Below, we elaborate on these possible effects, specifically 
discussing the impact on efficiency, competition and capital formation.
a. Efficiency
    As discussed above, the proposed rules have the potential to reduce 
investor confusion about the meaning of the names and titles used by 
firms and their financial professionals and to improve the matching 
between investor preferences and types of services they receive. To the 
extent retail investors use titles and names in their search for firms 
and financial professionals, the potential reduction in search costs 
would improve the overall efficiency of the market for financial advice 
by making the search process shorter in time and more cost effective. 
Moreover, to the extent the proposed rules would reduce the risk of any 
mismatch between investor preferences and the type of relationship 
their financial professional provides, it could lead to potentially 
improved efficiency in retail investors' asset allocation as investors 
would be more likely to receive investment advice that is optimal for 
their individual situation. A reduced risk of mismatch in the 
relationship would also make it less likely that investors pay more 
than necessary for the services they receive, which could lead to 
higher investment returns net of cost.

[[Page 21510]]

    Alternatively, as discussed previously, investor confusion may 
increase rather than decrease under certain circumstances, which would 
increase search costs for investors. In this case, we would instead 
expect a negative effect on efficiency. Moreover, there could also be 
negative effects on efficiency to the extent affected broker-dealers 
start using new names and titles that potentially convey the same 
information to investors as the restricted terms. Under such 
circumstances, the proposed rules would then only impose cost increases 
on broker-dealers without achieving any reduction of investor 
confusion. These costs may or may not be passed through to investors. 
In addition, some of the other potential costs outlined previously 
could have negative effects on efficiency. For example, this proposed 
rule could have a direct negative impact on efficiency in the 
registered broker-dealer segment of the market by making marketing less 
efficient for any affected broker-dealers (including any affected dual 
registrants with affected registered representatives). Further, any 
compliance costs or increased marketing costs may be passed through to 
investors in local markets where the competitive pressure is relatively 
low--for example, due to, a relatively low supply of financial 
professionals--and some investors may then face higher costs for 
broker-dealer services as a result. Finally, some affected firms and 
financial professionals may decide to exit the market if their costs of 
doing business go up substantially, which could decrease supply and 
increase costs of brokerage services for retail investors in some 
segments of the market. Any such increases in costs of broker-dealer 
services may also price some investors with limited ability to absorb a 
cost increase out of the brokerage market altogether, thereby limiting 
their access to advice and investment choices offered by broker-dealers 
and potentially hurting the efficiency of their investment allocation.
    Because of the complexity associated with the use of names or 
titles by firms and their financial professionals, and their potential 
importance for investors both with respect to investor confusion and as 
a selection mechanism for hiring financial professionals, coupled with 
the lack of data on how investors could react to a restriction of the 
use of certain names and titles among broker-dealers and their 
associated natural persons, we are unable to provide estimates for the 
potential effects on efficiency. However, we preliminarily believe that 
any potential effects on the overall efficiency in the market for 
financial advice, or in segments of this market, are likely to be 
limited because of several factors that would mitigate the potential 
impact on investor confusion and/or the potential costs imposed on 
firms and financial professionals from the proposed restriction: (i) 
Only a fraction of standalone registered broker-dealers and their 
associated natural persons, as well as registered representatives 
working for dual registrants that are not dual-hatted are currently 
using the terms ``adviser'' and ``advisor'' in names and titles; \700\ 
(ii) the extent to which the proposed restriction would not affect the 
use of terms such as ``advisory services'' in communications which do 
not convey a name or title; (iii) financial intermediaries and 
professionals not regulated by the Commission could still use the terms 
``adviser'' or advisor'' in their names and titles.\701\
---------------------------------------------------------------------------

    \700\ The use of names and titles by firms and financial 
professionals is discussed in Section IV.A.1.f. Only around 87 
current standalone broker-dealers with retail investors use the 
terms ``advisor'' or ``adviser'' in their company names. Further, 
around 31% of professionals providing only brokerage services used 
titles containing the terms ``adviser'' or ``advisor'' according to 
the RAND Study.
    \701\ See discussion of other such financial intermediaries and 
professionals in supra Section III.B.1.
---------------------------------------------------------------------------

    The proposed requirements to disclose a firm's regulatory status 
and a financial professional's association may increase the efficiency 
in the search and matching process in the market for financial advice 
to the extent retail investors understand the meaning of the 
registration status and would use it in their search for financial 
professionals. Among firms, the potential efficiency benefits may be 
larger for dual registrants, as the prominent display of both types of 
registrations may help attract investors that are looking for both 
brokerage services and an investment advice relationship, or investors 
who are in general unsure about which type of services they want.
b. Competition
    The proposed rules could affect competition in the market for 
financial advice through potential effects on both demand and supply in 
the market. In terms of potential effects on demand, to the extent 
search costs are reduced for investors, it may raise the price 
elasticity of demand and consequently we would expect the competition 
between firms in this market to increase.\702\ To the extent it is 
primarily investors who prefer the services provided by investment 
advisers who would experience a reduction in search costs, we would 
expect in particular an increase in the average price elasticity of 
demand for investment adviser services and therefore greater 
competition in the investment adviser market segment. However, a 
reduction in search cost may also increase retail investor 
participation in the market for financial advice. Investors at the high 
end of the search cost distribution who previously may have refrained 
from seeking financial advice altogether may enter the market for 
financial advice if there is a reduction in search costs. Because these 
new entrants to the market for financial advice would likely have 
higher search costs than the existing investors in the market, average 
investor demand elasticity may go down, which in turn would reduce 
competition at the margin.\703\ To the extent it is mainly investors 
that prefer investment adviser services who would experience a 
reduction in search costs; we expect the new entrants to primarily 
belong to this group of investors. Therefore, the average demand 
elasticity may potentially decrease in particular for investment 
adviser services and reduce competition in the investment adviser 
market segment.
---------------------------------------------------------------------------

    \702\ All else equal, we would expect customers in a marketplace 
with differentiated products to prolong their search for the right 
product at the right price if search costs are reduced. The 
resulting increase in demand elasticity would increase downward 
pressure on prices in the market, see, e.g. S. Anderson & R. 
Renault, Pricing, Product Diversity, and Search Costs: A Bertrand-
Chamberlin-Diamond Model, The RAND Journal of Economics, 30, 719-735 
(1999).
    \703\ For a theoretical model on how lower search costs may 
increase the average price elasticity of demand in this manner, see, 
e.g., J. L. Moraga-Gonz[aacute]lez, Z. S[aacute]ndor, & M.R. 
Wildenbeest, Prices and heterogeneous search costs, The RAND Journal 
of Economics, 48, 125-146 (2017). A study of the U.S. mutual fund 
industry also provide empirical evidence consistent with this type 
of effect; see A. Horta[ccedil]su & C. Syverson, Product 
differentiation, search costs, and competition in the mutual fund 
industry: A case study of S&P 500 Index funds, The Quarterly Journal 
of Economics, Vol. 119, Issue 2, 403-456 (May 2004).
---------------------------------------------------------------------------

    Conversely, if investor confusion and associated search costs 
instead are increased by the proposed rules, which as we discussed 
previously may happen under certain circumstances, it would likely 
lower price elasticity of demand among current retail investor market 
participants and reduce competition in the market for financial advice. 
However, if search costs are increased to the extent that current 
investors at the high end of the search cost distribution are induced 
to exit the market for financial advice altogether, it could instead 
increase average demand elasticity and increase competition among the 
firms in this market, as the

[[Page 21511]]

remaining investors would be those at the lower end of the search cost 
distribution and consequently would have higher price sensitivity. To 
the extent it is mainly investors that prefer broker-dealer services 
who would experience an increase in search costs we expect the 
investors exiting the market to primarily be such investors. Therefore, 
the average demand elasticity may potentially increase in particular 
for broker-dealer adviser services and increase competition in the 
broker-dealer market segment.
    In terms of the effect on the supply of advice services, to the 
extent the proposed restriction on the use of certain names or titles 
would cause affected broker-dealers to register as investment advisers 
and start promoting that side of their business, or perhaps completely 
move to an investment adviser model, there would likely be a shift in 
the mix of supply of advice services, where the supply of broker-dealer 
(and associated registered representative) services could potentially 
decrease and the supply of investment adviser services could increase. 
Such a shift in the mix of the supply of advice services could 
potentially raise brokerage account prices, reduce choice for investors 
who prefer to pay for execution of trades on a transactional basis, and 
lower the costs of advisory accounts with investment advisers. However, 
to the extent some broker-dealers would exit the market for retail 
investors altogether, the overall supply of advice services could go 
down and we may see a decrease in competition not only in the market 
for broker-dealer services but also in the overall market for 
investment adviser services, assuming that retail investors view 
broker-dealer and investment adviser services as substitutes for one 
another, thereby increasing costs and limiting choices for retail 
investors. This potential negative effect on competition would be 
mitigated to the extent other firms (whether other broker-dealers or 
investment advisers) decide to compete for the customers of any broker-
dealers exiting the market.
    Further, to the extent the proposed restriction would make 
standalone broker-dealers services more costly and marketing less 
effective, non-affected standalone broker-dealers (i.e., broker-dealers 
that do not use the restricted terms), dual-registrants, investment 
advisers, and financial intermediaries that are not registered as 
investment advisers (such as banks, trust companies, insurance 
companies, commodity trading advisers, and municipal advisors) may to a 
varying degree gain business at these affected firms expense. That is, 
by only affecting a subset of firms, the proposed restriction on the 
use of certain names and titles may change competitive positions among 
different suppliers in the market for financial advice. In addition, 
the proposed requirement to disclose registration status may benefit 
the competitive positon of dual registrants, as the prominent display 
of both types of registrations may help attract investors that are 
looking for both brokerage services and an investment advice 
relationship, or investors who are in general unsure about which type 
of services they want.
    In addition, assuming that small broker-dealers and investment 
advisers select geographic areas where competition from larger firms is 
low, then any reduction of competition in the broker-dealer market due 
to a switch to an investment adviser business model would be 
particularly large in such geographic areas. Similarly, any reduction 
in competition due to exit of standalone registered broker-dealer 
altogether from the retail market would be particularly large in such 
geographic areas, where smaller investment advisers and dual 
registrants could especially see competitive benefits at the expense of 
small standalone registered broker-dealers.
    We are not able to assess the magnitude of the potential demand or 
supply related effects as we do not have access to information that 
would allow us to do so, such as the distribution of search costs 
across the population of retail investors, estimates of the effect of 
the proposed rules on search costs, the internal cost functions of 
broker-dealers, etc. However, we preliminarily believe that the impact 
of any effects on the overall competitive situation in the market for 
financial advice is likely to be limited because of the same three 
mitigating factors we discussed above regarding the potential impact on 
efficiency.\704\
---------------------------------------------------------------------------

    \704\ See discussion of mitigating factors in supra Section 
IV.C.3.a.
---------------------------------------------------------------------------

c. Capital Formation
    Some aspects of the proposed rules could lead to increased capital 
formation, if, for example, retail investors are better able to 
allocate capital due to a better match with financial professionals or 
more retail investors enter the market for financial advice and start 
investing in securities. However, as discussed above, if some broker-
dealers exit the market or move to an advisory business model as a 
result of the proposed rules, some investors may lose access to the 
market for advice serviced by broker-dealers, which may cause them to 
exit the market for financial advice altogether and reduce their 
(direct or indirect) investments in productive assets, thereby reducing 
capital formation. Alternatively, any investors who lose access to 
broker-dealers services may switch to an investment adviser 
relationship, which could reduce their investment returns net of costs 
to the extent the broker-dealer payment model was more optimal for 
their investment preferences, thereby also potentially reducing capital 
formation. Overall, the Commission is unable to determine how these 
countervailing effects could impact capital formation, and what the 
likely magnitude of those impacts would be. However, we preliminarily 
believe that the proposed rules would have a limited impact on capital 
formation because of the same three mitigating factors we discussed 
above regarding the potential impact on efficiency.\705\
---------------------------------------------------------------------------

    \705\ See discussion of mitigating factors in supra Section 
IV.C.3.a.
---------------------------------------------------------------------------

4. Alternatives to the Proposed Rules
    As discussed above, the proposed rule would restrict broker-dealers 
and their associated natural persons from using as part of a name or 
title the term ``adviser'' or ``advisor,'' unless such broker-dealer is 
dually registered as an investment adviser or the associated natural 
person is a supervised person of an investment adviser and provides 
advice on behalf of such investment adviser. Further, our proposed 
rules would also require both broker-dealers and investment advisers to 
disclose their registration status in print or electronic retail 
investor communications. Finally, the proposed rules would require 
associated natural persons of a broker-dealer and supervised persons of 
an investment adviser to disclose their association with a particular 
firm in print or electronic retail investor communications. Below, the 
Commission describes several alternatives to the proposed rules, 
including the continued ability of broker-dealers to rely on section 
202(a)(11)(C) of the Advisers Act (the ``Solely Incidental'' 
exclusion), prohibitions on a broker-dealer ``holding out'' as an 
investment adviser, disclosure of the registration status only, or 
additional requirements for dual registrants.

[[Page 21512]]

a. No ``Solely Incidental'' Exclusion
    As an alternative to the proposed rule restricting the use of the 
term ``adviser'' or ``advisor'' in names and titles, the Commission 
could propose a rule that stated that a broker-dealer cannot be 
considered to provide investment advice solely incidental to the 
conduct of its business as a broker-dealer under section 202(a)(11)(C) 
of the Advisers Act if the broker-dealer used the term ``adviser'' or 
``advisor'' in names or titles, and therefore, would not be excluded 
from the definition of investment adviser. This alternative would rely 
on the assumption that a broker-dealer that uses these terms in its 
name to market or promote its services is doing so because its advice 
is significant or even instrumental to its brokerage business, and 
consequently, the broker-dealer's provision of advice is therefore no 
longer solely incidental to its brokerage business. Similarly, it would 
also rely on the assumption that if a broker-dealer invests its capital 
into marketing, branding, and creating intellectual property in using 
the terms ``adviser'' or ``advisor'' in its name or title, the broker-
dealer is indicating that advice is an important part of its broker-
dealer's business.
    This alternative, like the proposed rule, would not permit an 
associated natural person of a dually registered firm to use the terms 
``adviser'' or ``advisor'' in their names or titles unless such person 
was a supervised person of a registered investment adviser who provides 
investment advice on behalf of such investment adviser. For standalone 
broker-dealers, and their associated natural persons as well as 
associated natural person of a dually registered firm that are not 
supervised persons of a registered investment adviser providing advice 
on behalf of such investment adviser, that are currently marketing 
their services to retail investors using the terms ``adviser'' and 
``advisor,'' in their name or title, the economic effects of this 
alternative would be expected to be substantially the same as under the 
proposed restriction on the use of the terms in names and titles.
b. Prohibit Broker-Dealers From Holding Themselves Out as Investment 
Advisers
    Instead of prohibiting a broker-dealer from using certain names or 
titles, we could propose a rule to preclude a broker-dealer from 
relying on the solely incidental exclusion of section 202(a)(11)(C) if 
a broker-dealer ``held itself out'' as an investment adviser to retail 
investors. This approach could encompass a broker-dealer and its 
associated natural persons representing or implying through any 
communication or other sales practice (including through the use of 
names or titles) that they are offering investment advice subject to a 
fiduciary relationship with an investment adviser.
    This approach would reduce the risk that by only proscribing 
``adviser'' and ``advisor,'' or any other specific names and titles, 
new names and titles could arise with similar, confusing connotations. 
Moreover, this alternative could promote informed investor choices by 
focusing more comprehensively on broker-dealer marketing and titles 
that may confuse or mislead investors into believing that a brokerage 
relationship is an advice relationship of the type provided by 
investment advisers. Relative to either the baseline or the proposed 
rule, the ``holding out'' alternative could have a broader application 
because it could capture any communication or other sales practices 
that may lead to confusion by investors in believing that their firms 
or financial professionals provide more or different services than they 
provide. As a result, investor confusion and associated costs may be 
reduced more compared to the proposed rule.
    This alternative, however, could create uncertainty for broker-
dealers as to which activities (and the extent of such activities) 
would be permissible and not considered ``holding out'' as an 
investment adviser and therefore triggering the need to register as 
such. As a result of a ``holding out'' alternative, broker-dealers may 
feel compelled to avoid fully describing even the types of advisory 
services they are allowed to provide in their communications and 
marketing efforts and may also limit or reduce allowable advice 
provided by broker-dealers to avoid any instances where the advice 
provided could be misconstrued that such person is ``holding out'' as 
an investment adviser. Given that broker-dealers under the current 
regulatory environment are permitted to provide incidental advice 
related to recommendations of securities or investment strategies, 
investor confusion may be increased and some investors may believe that 
as a result of the ``holding out'' alternative that this advice could 
no longer be offered, and could face a mismatch in their preferences 
and expectations if they sub-optimally choose to hire investment 
advisers and avoid broker-dealers. Therefore, implementing a rule along 
these lines could have significant competitive effects for broker-
dealers, and could reduce the effectiveness in how investors choose 
their firms and financial professionals. As a result of increased 
investor confusion, both search costs and costs associated with 
choosing the wrong type of firm and financial professional could be 
increased under this alternative. Moreover, if some broker-dealers 
avoid providing advice as a result of this alternative, some retail 
investors may be shut out of the advice market entirely or may have to 
incur higher costs that may be associated with investment advisory 
services.
    From a compliance cost perspective, broker-dealers that could be 
subject to the ``holding out'' alternative would face costs in revising 
their communications and advertisements in order to eliminate any 
discussion about them implying they are offering investment advice 
subject to a fiduciary relationship with an investment adviser. To the 
extent such revisions have a significant fixed cost component or there 
are other economies of scale, such as decreasing variable costs for 
printed material as the number of copies increase, we would expect 
smaller broker-dealers to face relatively higher costs following the 
implementation of this alternative. There could also be increased costs 
under this alternative from training and monitoring of associated 
natural persons to ensure compliance with the rule, as the restrictions 
would be more principles-based than prescriptive compared to the 
proposed rule.
c. Disclosure of Registration Status Only
    The proposed rules both prohibit certain names or titles and 
require disclosure of broker-dealer or investment adviser registration 
status in all written and electronic retail investor communications of 
broker-dealers and SEC-registered investment advisers, including those 
of individual representatives, such as business cards, social media 
profiles, and signature blocks on paper or electronic correspondence. 
As an alternative to the proposed rules, the Commission could not 
propose a restriction on the use of certain names or titles by 
standalone registered broker-dealers, and solely propose requiring 
disclosure of registration status in all written and electronic retail 
investor communications given by the firm or its representatives.
    Although both broker-dealers and SEC-registered investment advisers 
would have to bear the cost of including a disclosure of their 
registration status in all written and electronic retail investor 
communications under this alternative, they would have to bear this 
cost under the proposed rules, as well.

[[Page 21513]]

This alternative, however, would allow broker-dealers to continue to 
use titles or names that include ``Adviser/Advisor'' and therefore 
would likely result in a lower overall cost of rebranding their 
financial professionals or the firm itself in all other communications.
    While the costs of compliance with a disclosure of registration 
status only requirement would be lower than under the proposed rules, 
and would apply uniformly to all broker-dealers and investment 
advisers, this alternative could be less effective in reducing investor 
confusion over the titles or names used by financial professionals and 
firms, and the implications of the types of services provided by, or 
standard of conduct applicable to, these professionals to the extent 
the registration status is uninformative to retail investors because 
they do not understand the regulatory implications of a firm being 
registered as either a broker-dealer or an investment adviser.
    Another potential, related, alternative would be to limit the 
disclosure of registration status only to certain marketing 
communications. The overall compliance costs to broker-dealers, 
particularly small broker-dealers that are less likely to produce 
advertising campaigns in either print media, television/radio 
broadcasts, mass mailings, or on websites, would be lower than under 
the requirements of the proposed rules for disclosure of registration 
status in all communications. This alternative, however, would likely 
reduce the potential benefits to retail investors, as only 
``advertisements'' would be required to produce the disclosure of 
registration status, and could increase both search costs and the 
possibility of mismatch associated with choosing the wrong type of 
financial firm or professional. To the extent small broker-dealers or 
investment advisers are less likely to use these types of marketing 
communications to reach potential customers relative to larger broker-
dealers and investment advisers (e.g., because there are fixed costs in 
producing an advertisement, the reduction in benefits is more likely to 
affect retail investors that use such small broker-dealers or 
investment advisers). Therefore, the Commission preliminarily believes 
that the potential compliance cost savings for limiting communications 
that would require such disclosure do not justify the reduced level of 
investor protection under such alternative.
    Another ``disclosure only'' alternative to the proposed restriction 
on the use of the terms ``adviser'' and ``advisor'' in names and titles 
would be to propose a rule that would provide that when any broker-
dealer not registered under the Advisers Act chooses to distribute 
advertisements or other communications using the term ``adviser'' or 
``advisor'' as part of a name or title, each use of the term would have 
to include an asterisked disclaimer clarifying its registration status. 
Under this alternative broker-dealers and their associated natural 
persons could continue to use these terms in their names and titles in 
retail investor communications, but investors would be potentially 
alerted by the asterisk to the actual registration status of the 
broker-dealer, which may reduce investors confusion about the type of 
services provided the associated standard of care to the extent they 
understand the meaning of the registration status. One limitation of 
this alternative, as well as the other alternatives discussed in this 
section, compared to the proposed rule is that some of the evidence on 
investor perceptions discussed previously in Section IV.A.3 suggest 
that many retail investors may not fully understand the meaning of the 
registration status. Moreover, the asterisked declaimer may not be 
salient enough to attract investors' attention to the disclaimer.
d. Additional Requirements for Dual Registrants
    We estimate that the number of dual registrants represents 
approximately 13% of all retail broker-dealer firms and that 
approximately 65% of registered representatives of retail broker-
dealers work at these dual registrants.\706\ Although the proposed rule 
restricts supervised persons of dual registrants who do not provide 
investment advice on behalf of such investment adviser, a percentage of 
dually registered firms would not be affected by the proposed 
restriction of certain names and titles. To address this issue, we 
considered an alternative to the proposed rule which would prohibit the 
name or title containing the terms ``adviser'' or ``advisor'' unless a 
``a substantial part of the business consists of rendering investment 
supervisory services.'' \707\ We also considered limiting dual 
registrants' use of the term ``adviser'' or ``advisor'' to when they 
provide advice to a retail investor in the capacity as an investment 
adviser, and prohibiting dual registrants from using such terms when 
acting in the capacity of a broker-dealer to a particular customer.
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    \706\ As shown in supra Table 1, Panel B those broker-dealer 
firms that were registered in a dual capacity were 360 of 
approximately 2,857 firms (about 13%) as of December 31, 2017. Using 
data from Form ADV filings, these 360 dually-registered firms had 
approximately $4.3 trillion of AUM. As discussed in Section 
IV.A,1.e, almost all registered financial professionals at dual 
registrants are either dual-hatted or registered representatives. 
Because dual registrants employ approximately 61% of all licensed 
financial professionals (see supra Table 5) and approximately 94% of 
all financial professionals are either dual hatted or registered 
representatives (48/51 = 0.94; see supra Table 6), it means that 
approximately 65% (0.61/0.94 = 0.65) of all registered 
representatives, whether dual hatted or not, work at dual 
registrants.
    \707\ See section 208(c) of the Advisers Act.
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    Under this alternative, some of the investor pool may face reduced 
confusion in their communications with their financial professional 
with regard to the use of specific names and titles, because these 
names and titles containing the term ``adviser'' or ``advisor'' would 
be limited only to the accounts or the instances in which the financial 
professional actually serves in the capacity as an investment adviser. 
However, these alternatives for dual registrants would create 
substantial compliance challenges for dual registrants. For example, 
dual registrants would have to ensure the appropriate name or title is 
being used when the financial professional is engaging in multiple 
capacities with investors. Moreover, requiring financial professionals 
that are dual registrants to tailor their names or titles based on what 
capacity they are acting in could increase confusion to investors, 
given that some dual registrants might act in broker-dealer and 
investment adviser capacities for a single investor. For example, a 
retail investor may have both a brokerage account and an advisory 
account, and may receive advice related to both brokerage 
recommendations as well as ongoing advice in the advisory account in a 
single communication.
5. Request for Comments
    The Commission requests comment on all aspects of the economic 
analysis, including the analysis of: (i) Potential benefits and costs 
and other economic effects; (ii) long-term effects of the proposed 
restriction on the use of certain titles and required disclosure of 
registration status on efficiency, competition, and capital formation; 
and (iii) reasonable alternatives to the proposed regulations. We also 
request comments identifying sources of data and that could assist us 
in analyzing the economic consequences of the proposed regulations.
    In addition to our general request for comment on the economic 
analysis, we request specific comment on certain aspects of the 
proposal:
     Do commenters agree with our assessment that the main 
potential

[[Page 21514]]

benefits to retail investors are reduced search costs and a lower risk 
of mismatch? Are there other benefits of the proposed rule that have 
not been identified in our discussion and that warrant consideration? 
Are the assumptions that form the basis of our analysis of the benefits 
appropriate? Can commenters provide data that supports or opposes these 
assumptions?
     Do commenters agree with our characterization of the 
costs? Are the assumptions that form the basis of our analysis of the 
costs appropriate? Are there other costs to investors of the proposed 
rule that have not been identified in our discussion and that warrant 
consideration? Can commenters provide data that supports or opposes 
these assumptions?
     We request additional information on how retail investors 
search for financial professionals. In particular, are there studies, 
evidence or data available on how investors use company names and 
titles of representatives in their search for a financial professional?
     We request comments on our characterization of the 
benefits and costs to broker-dealers and investment advisers of the 
proposed rule. Do commenters agree with our characterization of the 
benefits and costs? Are there other benefits or costs of the proposed 
rule that have not been identified in our discussion and that warrant 
consideration? Are the assumptions that form the basis of our analysis 
of the benefits and costs appropriate? Can commenters provide data that 
supports or opposes these assumptions?
     We specifically request comments on the costs to broker-
dealers from having to change their company names as a result of the 
rule. How costly do commenters believe it would be for affected 
entities that would be required to their change current company names, 
including the costs of marketing materials and advertisements? Do 
broker-dealer company names have significant brand value? To what 
extent does the brand value lie in terms such as ``adviser'' or 
``advisor''?
     Do commenters believe standalone broker-dealers that would 
be affected by the proposed rule may decide to register as an 
investment advisers? Are there any specific types of standalone broker-
dealers that would be more likely to respond in this way? Do you 
believe standalone broker-dealers registering as investment advisers 
would affect their supply of brokerage services? What are the 
compliance and indirect costs for broker-dealers who would seek to 
register as an investment adviser? Is there additional data to estimate 
such costs, either initially or on an ongoing basis?
     Are there any effects on efficiency, competition, and 
capital formation that are not identified or are misidentified in our 
economic analysis? Please be specific and provide data and analysis to 
support your views.
     Do commenters believe that the alternatives the Commission 
considered are appropriate? Are there other reasonable alternatives 
that the Commission should consider? If so, please provide additional 
alternatives and how their costs and benefits would compare to the 
proposal.

D. Combined Economic Effects of Form CRS Relationship Summary and 
Restrictions on the Use of Certain Titles and Required Disclosures 
About a Firm's Regulatory Status

    Above, we have described the anticipated standalone economic 
effects of the proposed Form CRS relationship summary and the proposed 
restrictions on the use of certain titles and required disclosures 
about a firm's regulatory status relative to the current baseline. In 
this section, we discuss how we anticipate these economic effects could 
change when considering both these proposed rules in combination.
    To the extent that investors may be confused and potentially misled 
about what type of investment advice relationship is best for their 
investing situation, being provided with the proposed Form CRS, along 
with the proposed restriction on names and titles, could incrementally 
reduce some of the investor confusion and mismatch risk. In particular, 
if a retail investor communicates with a financial professional 
associated with a dual registrant and the professional has a name or 
title containing either of the terms ``adviser'' or ``advisor'' but 
solely provides brokerage services, such investor would likely receive 
the dually registered firm's relationship summary. Because Form CRS 
would include a description of both business models, without the 
restriction on names and titles and the requirement of disclosure of 
registration status, some retail investors might incorrectly match the 
services they would receive from this financial professional to the 
description in the relationship summary of investment advisory 
services. In this case, the proposed restriction on names or titles and 
the requirement to disclose regulatory status would increase the 
effectiveness of Form CRS by reducing the risk of any mismatch between 
investor preferences and type of services received due to this kind of 
misunderstanding, which in turn may lead to harm such as the investor 
paying too much for advice if it if it leads to frequent trading. To 
the extent investors who received a relationship summary shares it with 
family and friends, the potential importance of having the restriction 
on the use of certain names and titles would be increased, because it 
could also reduce the risk of this type of misunderstanding being 
spread to a greater set of retail investors.
    However, for those investors whose confusion about the differences 
between broker-dealers' and investment advisers' services and standards 
of conduct would be substantially reduced once receiving and reading a 
firm's relationship summary we expect a reduced overall incremental 
benefit of the proposed restriction on the use of certain names and 
titles. Specifically, because such investors would learn about the 
differences between broker-dealer and investment adviser services 
through the relationship summary, they may be unlikely to hire the 
wrong type of firm or financial professional even without the proposed 
restriction on the use of certain names or titles.
    With respect to the initial search costs borne by investors, we do 
not believe that the relationship summary would alter the incremental 
effects the proposed restriction on certain names and titles may have 
on search costs, because the proposed Form CRS would generally be 
provided at a later stage in the search process (e.g., after initial 
contact with a financial professional is made) relative to the initial 
stage where names and titles of firms and financial professionals may 
be a useful search tool to investors. Similarly, we do not believe that 
the relationship summary would alter the incremental effects on search 
costs from the proposed requirement to disclose registration status in 
retail investor communications, because investors would likely 
encounter communications disclosing a firm's registration status prior 
to being provided a firm's relationship summary.
    We believe that the proposed Form CRS and the proposed required 
disclosures of registration status would complement each other because 
both are designed to reduce investor confusion. In particular, for less 
knowledgeable investors, the disclosure of registration status may 
raise awareness about the different forms of registration among 
financial intermediaries and their associated natural persons and 
prompt questions about the difference between registered broker-dealers 
and registered investment advisers. The relationship summary 
potentially could work in concert with the disclosure of

[[Page 21515]]

registration status to facilitate investors' learning about the 
different types of financial firms and professionals because it would 
highlight many of the key differences between investment advisers and 
broker-dealers in different communications and different times, 
consistent with the layered approach to disclosure that the 
relationship summary is designed to further. Likewise, if the 
disclosure of registration status makes such status more salient to 
less knowledgeable investors, such disclosure may induce a more careful 
reading of related parts in the relationship summary or provide 
incentives to discuss the information contained in disclosure with a 
financial professional. Thus, the combination of the disclosure of 
registration status and the relationship summary may further help 
facilitate the search process also for investors initially confused 
about the difference between broker-dealers and investment advisers, 
and help them ultimately better match to an appropriate financial 
professional.
    However, for more knowledgeable investors, there may be some 
overlap in function that could reduce the potential benefits to either 
the relationship summary or the disclosure of regulatory status without 
offsetting anticipated costs. As discussed previously, the disclosure 
of registration status may help to reduce search costs for investors 
who already understand the meaning of the registration status. These 
relatively knowledgeable investors may therefore already be familiar 
with some of the information in relationship summary by having 
encountered the disclosure of the registration status beforehand. In 
this case, the relationship summary may provide fewer additional 
benefits for these investors in either reducing search costs or the 
likelihood of mismatch, but would impose costs on both broker-dealers 
and investment advisers that must produce both the relationship summary 
and the disclosures of registration status.
    Finally, we note that any complementarities between the proposed 
restrictions on the use of certain names and titles, required 
disclosures about a firm's regulatory status, and the proposed 
relationship summary would be constrained by the fact (1) the 
relationship summary does not need to be provided by state-registered 
standalone investment advisers and (2) these state-registered 
investment advisers (and their supervised persons) would not be 
required to provide registration status disclosures in retail investor 
communications pursuant to this proposed rule.

V. Paperwork Reduction Act Analysis

    Certain provisions of our proposal contain ``collection of 
information'' requirements within the meaning of the Paperwork 
Reduction Act of 1995 (``PRA'').\708\ The Commission is submitting 
these collections of information to the Office of Management and Budget 
(``OMB'') for review in accordance with 44 U.S.C. 3507(d) and 5 CFR 
1320.11. The titles for the existing collections of information that we 
are proposing to amend are (i) ``Form ADV'' (OMB control number 3235-
0049), (ii) ``Rule 204-2 under the Investment Advisers Act of 1940'' 
(OMB control number 3235-0278), (iii) ``Rule 17a-3; Records to be Made 
by Certain Exchange Members, Brokers and Dealers'' (OMB control number 
3235-0033) and (iv) ``Rule 17a-4; Records to be Preserved by Certain 
Exchange Members, Brokers and Dealers'' (OMB control number 3235-0279). 
The new collections of information relate to (i) ``Rule 204-5 under the 
Investment Advisers Act of 1940,'' (ii) ``Form CRS and rule 17a-14 
under the Exchange Act,'' (iii) ``Rule 15l-3 under the Securities 
Exchange Act,'' and (iv) ``Rule 211h-1 under the Investment Advisers 
Act of 1940.'' An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid control number. The Commission is also 
including a short-form tear sheet for investors to provide feedback on 
the relationship summary.\709\
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    \708\ 44 U.S.C. 3501 et seq.
    \709\ See Appendix F. The Commission determines that using this 
short-form tear sheet to obtain information from investors is in the 
public interest and will protect investors. See Securities Act 
section 19(e).
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A. Form ADV

    Form ADV (OMB Control No. 3235-0049) is currently a two-part 
investment adviser registration form. Part 1 of Form ADV contains 
information used primarily by Commission staff, and Part 2 is the 
client brochure. We are not proposing amendments to Part 1 or 2. We use 
the information to determine eligibility for registration with us and 
to manage our regulatory and examination programs. Clients use certain 
of the information to determine whether to hire or retain an investment 
adviser. The collection of information is necessary to provide advisory 
clients, prospective clients and the Commission with information about 
the investment adviser and its business, conflicts of interest and 
personnel. Rule 203-1 under the Advisers Act requires every person 
applying for investment adviser registration with the Commission to 
file Form ADV. Rule 204-4 under the Advisers Act requires certain 
investment advisers exempt from registration with the Commission 
(``exempt reporting advisers'') to file reports with the Commission by 
completing a limited number of items on Form ADV. Rule 204-1 under the 
Advisers Act requires each registered and exempt reporting adviser to 
file amendments to Form ADV at least annually, and requires advisers to 
submit electronic filings through IARD. The paperwork burdens 
associated with rules 203-1, 204-1, and 204-4 are included in the 
approved annual burden associated with Form ADV and thus do not entail 
separate collections of information. These collections of information 
are found at 17 CFR 275.203-1, 275.204-1, 275.204-4 and 279.1 (Form ADV 
itself) and are mandatory. Responses are not kept confidential.
    We are proposing to amend Form ADV to add a new Part 3, requiring 
certain registered investment advisers to prepare and file a 
relationship summary for retail investors. As with Form ADV Parts 1 and 
2, we will use the information to determine eligibility for 
registration with us and to manage our regulatory and examination 
programs. Similarly, clients can use the information required in Part 3 
to determine whether to hire or retain an investment adviser, as well 
as what types of accounts and services are appropriate for their needs. 
The collection of information is necessary to provide advisory clients, 
prospective clients and the Commission with information about the 
investment adviser and its business, conflicts of interest and 
personnel. The proposal requiring investment advisers to deliver the 
relationship summary is contained in a new collection of information 
under proposed new rule 204-5 under the Advisers Act, which estimates 
are discussed in Section V.B below. We are not proposing amendments to 
Part 1 or 2 of Form ADV.\710\
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    \710\ We are proposing conforming technical amendments to the 
General Instructions of Form ADV to add references to the Part 3, 
but these amendments would not affect the burden of Part 1 or Part 
2. See proposed amendments to Form ADV: General Instructions.
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1. Respondents: Investment Advisers and Exempt Reporting Advisers
    The respondents to current Form ADV are investment advisers 
registered with the Commission or applying for registration with the 
Commission and

[[Page 21516]]

exempt reporting advisers.\711\ As of December 31, 2017, 12,721 
investment advisers were registered with the Commission, and 3,848 
exempt reporting advisers report information to the Commission.
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    \711\ An exempt reporting adviser is an investment adviser that 
relies on the exemption from investment adviser registration 
provided in either section 203(l) of the Advisers Act because it is 
an adviser solely to one or more venture capital funds or 203(m) of 
the Advisers Act because it is an adviser solely to private funds 
and has assets under management in the United States of less than 
$150 million. An exempt reporting adviser is not a registered 
investment adviser and therefore would not be subject to the 
relationship summary requirements.
---------------------------------------------------------------------------

    As discussed in Section II above, we propose to adopt amendments to 
Form ADV that would add a new Part 3, requiring certain registered 
investment advisers to prepare and file a relationship summary for 
retail investors. Only those registered investment advisers offering 
services to retail investors would be required to prepare and file a 
relationship summary. Based on IARD system data, the Commission 
estimates that 7,625 investment advisers provide advice to individual 
high net worth and individual non-high net worth clients.\712\
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    \712\ Based on responses to Item 5.D. of Form ADV. These 
advisers indicated that they advise either high net worth 
individuals or individuals (other than high net worth individuals), 
which includes trusts, estates, and 401(k) plans and IRAs of 
individuals and their family members, but does not include 
businesses organized as sole proprietorships. The proposed 
definition of retail investor would include a trust or other similar 
entity that represents natural persons, even if another person is a 
trustee or managing agent of the trust. We are not able to 
determine, based on responses to Form ADV, exactly how many advisers 
provide investment advice to these types of trusts or other 
entities; however, we believe that these advisers most likely also 
advise individuals and are therefore included in our estimate.
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    This would leave 5,096 registered investment advisers that do not 
provide advice to retail investors \713\ and 3,848 exempt reporting 
advisers that would not be subject to Form ADV Part 3 requirements, but 
are included in the PRA analysis for purposes of updating the overall 
Form ADV information collection.\714\ We also note that these figures 
include the burdens for 366 registered broker-dealers that are dually 
registered as investment advisers as of December 31, 2017.\715\
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    \713\ 12,721 registered investment advisers--7,625 = 5,096 
registered investment advisers not providing advice to retail 
investors.
    \714\ Based on IARD system data.
    \715\ See supra note 457.
---------------------------------------------------------------------------

2. Changes in Burden Estimates and New Burden Estimates
    Based on the prior revision of Form ADV,\716\ the currently 
approved total aggregate annual hour burden estimate for all advisers 
of completing, amending and filing Form ADV (Part 1 and Part 2) with 
the Commission is 363,082 hours, or a blended average of 23.77 hours 
per adviser,\717\ with a monetized total of $92,404,369, or $6,051 per 
adviser.\718\ The currently approved annual cost burden is $13,683,500. 
This burden estimate is based on: (i) The total annual collection of 
information burden for SEC-registered advisers to file and complete 
Form ADV (Part 1 and Part 2); and (ii) the total annual collection of 
information burden for exempt reporting advisers to file and complete 
the required items of Part 1A of Form ADV. Broken down by adviser type, 
the current approved total annual hour burden is 29.22 hours per SEC-
registered adviser, and 3.60 hours per exempt reporting adviser.\719\ 
The proposed amendments would increase the current burden estimate due 
in part to the proposed amendments to Form ADV to add Form ADV Part 3: 
Form CRS (the relationship summary) and the increased number of 
investment advisers and exempt reporting advisers since the last burden 
estimate. We are not proposing any changes to Part 1 or Part 2 of Form 
ADV.
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    \716\ See Form ADV and Investment Advisers Act Rules, Final 
Rule, Investment Advisers Act Release No. 4509 (Aug. 25, 2016) [81 
FR 60418 (Sep. 1, 2016)] (``2016 Form ADV Paperwork Reduction 
Analysis'').
    \717\ 363,082 hours/(12,024 registered advisers + 3,248 exempt 
reporting advisers) = 23.77 hours.
    \718\ $92,404,369 hours/(12,024 registered advisers + 3,248 
exempt reporting advisers) = $6,051.
    \719\ See 2016 Form ADV Paperwork Reduction Analysis, supra note 
716, at 81 FR 60454.
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    The proposed amendments to Form ADV to add Part 3 would increase 
the information collection burden for registered investment advisers 
with retail investors. As discussed above in Section II, we propose to 
adopt amendments to Form ADV, under Part 3, that would require certain 
registered investment advisers to prepare and file a relationship 
summary for retail investors. Only those registered investment advisers 
providing services to retail investors would be required to prepare and 
file a relationship summary. We propose to require that those 
investment advisers file their relationship summaries with the 
Commission electronically through IARD in the same manner as they 
currently file Form ADV Parts 1 and 2. Investment advisers also would 
need to amend and file an updated relationship summary within 30 days 
whenever any information becomes materially inaccurate.
    As noted in Section V.A.1 above, not all investment advisers would 
be required to prepare and file the relationship summary. For those 
investment advisers, the per adviser annual hour burden for meeting 
their Form ADV requirements would remain the same, in particular, 29.22 
hours per registered investment adviser without relationship summary 
obligations. Similarly, because exempt reporting advisers also would 
not have relationship summary obligations, the annual hour burden for 
exempt reporting advisers to meet their Form ADV obligations would 
remain the same, at 3.60 hours per exempt reporting adviser. However, 
although we are not proposing changes to Form ADV Part 1 and Part 2, 
and the per adviser information collection burden would not increase 
for those without the obligation to prepare and file the relationship 
summary, the information collection burden attributable to Parts 1 and 
2 of Form ADV would increase due to an increase in the number of 
registered investment advisers and exempt reporting advisers since the 
last information collection burden estimate. In this section, we 
discuss the increase in burden for Form ADV overall attributable to the 
proposed amendments, i.e., new Form ADV Part 3: Form CRS, and the 
increase due to the updated number of respondents that would not be 
subject to the proposed amendments.
a. Initial Preparation and Filing of Relationship Summary
    For investment advisers that provide advice to retail investors, we 
estimate that the initial first year burden for preparing and filing 
the relationship summary would be five hours per registered adviser. As 
discussed above, much of the language of the proposed relationship 
summary is prescribed. Furthermore, much of the information proposed to 
be required in the relationship summary overlaps with that required by 
Form ADV Part 2 and therefore should be readily available to registered 
investment advisers because of their existing disclosure obligations. 
Investment advisers also already file the Form ADV Part 2 brochure on 
IARD, and we have considered this factor in determining our estimate of 
the additional burden to file Form ADV Part 3: Form CRS. In addition, 
the narrative descriptions required in the relationship summary should 
be narrowly tailored and brief, and the relationship summary must be 
limited to four pages (or

[[Page 21517]]

equivalent limit if in electronic format). Thus, while we recognize 
that different firms may require different amounts of time to prepare 
the relationship summary, we believe that this is an appropriate 
average number for estimating an aggregate amount for the industry for 
purposes of the PRA analysis. Moreover, a considerable amount of 
language within each topic area also would be prescribed, thereby 
limiting the amount of time required to prepare the relationship 
summary. Based on these factors, we believe that the estimate of five 
hours to prepare and file the relationship summary is appropriate. We 
therefore estimate that the total burden of preparing and filing the 
relationship summary would be 38,125 hours.\720\ As with the 
Commission's prior Paperwork Reduction Act estimates for Form ADV, we 
believe that most of the paperwork burden would be incurred in 
advisers' initial preparation and submission of Part 3: Form CRS, and 
that over time this burden would decrease substantially because the 
paperwork burden would be limited to updating information.\721\ As 
under the currently approved collection, the estimated initial burden 
associated with preparing the relationship summary would be amortized 
over the estimated period that advisers would use the relationship 
summary, i.e., over a three-year period.\722\ The annual hour burden of 
preparing and filing the relationship summary would therefore be 
12,708.\723\ In addition, based on IARD system data, the Commission 
assumes that 1,000 new investment advisers will file Form ADV with us 
annually. Of these, we estimate that 477 would be required to prepare 
and file the relationship summary.\724\ Therefore, the aggregate 
initial burden for newly registered advisers to prepare the 
relationship summary would be 2,385 \725\ and, amortized over three 
years, 795 on an annual basis.\726\ In sum, the annual hour burden for 
existing and newly registered investment advisers to prepare and file a 
relationship summary would be 13,503 hours,\727\ or 1.67 hours per 
adviser.\728\
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    \720\ 5.0 hours x 7,625 investment advisers = 38,125 total 
aggregate initial hours.
    \721\ We discuss the burden for advisers making annual updating 
amendments to Form ADV in Section V.A.3 below.
    \722\ See 2016 Form ADV Paperwork Reduction Analysis, supra note 
716.
    \723\ 5.0 hours x 7,625 investment advisers/3 = 12,708 total 
annual aggregate hours.
    \724\ The number of new investment advisers is calculated by 
looking at the number of new advisers in 2016 and 2017 and then 
determining the number each year that serviced retail investors. 
(455 for 2016 + 499 for 2017)/2 = 477.
    \725\ 477 new RIAs required to prepare relationship summary x 
5.0 hours = 2,385 hours for new RIAs to prepare relationship 
summary.
    \726\ 477 x 5.0 hours/3 = 795.
    \727\ (38,125 + 2,385)/3 years = 13,503 annual hour burden for 
existing and new advisers to prepare and file relationship summary.
    \728\ 13, 503 hours/(7,625 existing advisers + 477 new advisers) 
= 1.67 hours per year.
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b. Estimated External Costs for Investment Advisers Preparing the 
Relationship Summary
    The currently approved total annual collection of information 
burden estimate for Form ADV anticipates that there will be external 
costs, including (i) a one-time initial cost for outside legal and 
compliance consulting fees in connection with the initial preparation 
of Part 2 of Form ADV, and (ii) the cost for investment advisers to 
private funds to report the fair value of their private fund 
assets.\729\ We do not anticipate that the amendments we are proposing 
today will affect the per adviser cost burden for those existing 
requirements but anticipate that some advisers may incur a one-time 
initial incremental cost for outside legal and consulting fees in 
connection with the initial preparation of the relationship summary. We 
do not anticipate external costs to investment advisers in the form of 
website set-up, maintenance, or licensing fees because they would not 
be required to establish a website for the sole purpose of posting 
their relationship summary if they do not already have a website. We 
also do not expect other ongoing external costs for the relationship 
summary. Although advisers would be required to amend the relationship 
summary within 30 days whenever any information becomes materially 
inaccurate, given the standardized nature and prescribed language of 
the relationship summary, we expect that amendments would be factual 
and require relatively minimal wording changes. We believe that the 
investment adviser would be more knowledgeable about these facts than 
outside legal or compliance consultants and would be able to make these 
revisions in-house. Therefore, we do not expect that investment 
advisers will need to incur ongoing external costs for the preparation 
and review of relationship summary amendments. Although advisers that 
would be subject to the relationship summary requirement may vary 
widely in terms of the size, complexity and nature of their advisory 
business, we believe that the amount of disclosure required would not 
vary substantially among advisers. Accordingly, we believe that the 
amount of time, and thus cost, required for outside legal and 
compliance review is unlikely to vary substantially among those 
advisers who elect to obtain outside assistance.\730\
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    \729\ See 2016 Form ADV Paperwork Reduction Analysis, supra note 
716, at 81 FR 60452. We do not anticipate that the amendments we are 
proposing to add Form ADV Part 3 will affect those per adviser cost 
burden estimates for outside legal and compliance consulting fees. 
The estimated external costs of outside legal and consulting 
services for the relationship summary are in addition to the 
estimated hour burden discussed above.
    \730\ We estimate that an external service provider would spend 
3 hours helping an adviser prepare an initial relationship summary. 
In estimating the external cost for the initial preparation of Form 
ADV Part 2, we estimated that small, medium, and large advisers 
would require 8, 11, and 26 hours of outside assistance, 
respectively, to prepare Form ADV Part 2. In comparison, as 
discussed above, the relationship summary is limited to four pages 
in length (or equivalent limit if in electronic format) and is 
standardized across investment advisers in terms of the mandated 
selection and sequence of topic areas. While we recognize that 
different firms may require different amounts of external assistance 
in preparing the relationship summary, we believe that this is an 
appropriate average number for estimating an aggregate amount for 
the industry purposes of the PRA analysis. See Brochure Adopting 
Release, supra note 157, at 75 FR at 49257.
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    Most of the information proposed to be required in the relationship 
summary is readily available to investment advisers from Form ADV Part 
2, and the narrative descriptions are narrowly tailored and brief or 
prescribed. As a result, we anticipate that a quarter of advisers will 
seek the help of outside legal services and half will seek the help of 
compliance consulting services in connection with the initial 
preparation of the relationship summary. We estimate that the initial 
per existing adviser cost for legal services related to the preparation 
of the relationship summary would be $1,416.\731\ We estimate that the 
initial per existing adviser cost for compliance consulting services 
related to the preparation of the relationship summary would be 
$2,109.\732\ Thus, the incremental external cost burden for existing 
investment advisers is estimated to be $10,739,813, or $3,579,938 
annually when amortized over a three-year

[[Page 21518]]

period.\733\ In addition, we assume that 1,000 new advisers will 
register with us annually, 477 of which would be required to prepare a 
relationship summary. For these 477 new advisers, we estimate that they 
will require $671,855 in external costs to prepare the relationship 
summary.\734\ In summary, the annual external legal and compliance 
consulting cost for existing and new advisers relating to relationship 
summary obligations is estimated to total $4,251,792, or $525 per 
adviser.\735\
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    \731\ External legal fees are in addition to the projected hour 
per adviser burden discussed above. $472 per hour for legal services 
x 3 hours per adviser = $1,416. The hourly cost estimate of $472 is 
based on an inflation-adjusted figure and our consultation with 
advisers and law firms who regularly assist them in compliance 
matters.
    \732\ External compliance consulting fees are in addition to the 
projected hour per adviser burden discussed above. Data from the 
SIFMA Management and Professional Earnings Report, modified to 
account for an 1,800-hour work year and multiplied by 5.35 to 
account for bonuses, firm size, employee benefits, and overhead, and 
adjusted for inflation (``SIFMA Management and Professional Earnings 
Report''), suggest that outside management consulting services cost 
approximately $703 per hour. $703 per hour for outside consulting 
services x 3 hours per adviser = $2,109.
    \733\ 25% x 7,625 existing advisers x $1,416 for legal services 
= $2,699,250 for legal services. 50% x 7,625 existing advisers x 
$2,109 for compliance consulting services = $8,040,563. $2,699,250 + 
$8,040,563 = $10,739,813 in external legal and compliance consulting 
costs for existing advisers. $10,739,813/3 = $3,579,938 annually.
    \734\ 25% x 477 new advisers x $1,416 for legal services = 
$168,858. 50% x 477 new advisers x $2,109 for compliance consulting 
services = $502,997. $168,858 + $502,997 = $671,855 annually in 
external legal and compliance consulting costs for newly registered 
advisers.
    \735\ $3,579,938 in external legal and compliance consulting 
costs for existing advisers + $671,855 for new advisers = $4,251,792 
annually for existing and new advisers. $4,251,792/($7,625 existing 
advisers + 477 new advisers) = $525 per adviser.
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c. Amendments to the Relationship Summary and Filing of Amendments
    The current approved information collection burden for Form ADV 
also includes the hour burden associated with annual and other 
amendments to Form ADV, among other requirements. We anticipate that 
the proposed relationship summary would increase the annual burden 
associated with Form ADV by 0.5 hours \736\ due to amendments to the 
relationship summary,\737\ for those advisers required to prepare and 
file a relationship summary. We do not expect amendments to be 
frequent, but based on the historical frequency of amendments made on 
Form ADV Parts 1 and 2, estimate that on average, each adviser 
preparing a relationship summary will likely amend the disclosure an 
average of 1.80 times per year.\738\ The collection of information 
burden of 0.5 hours for amendments to the relationship summary would 
include filing it. Based on the number of other-than-annual amendments 
filed by investment advisers with retail investors last year, we 
estimate that advisers will file an estimated total of 1.80 \739\ 
relationship summary amendments per year for an estimated total 
paperwork burden of 6,878 hours per year.\740\
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    \736\ We have previously estimated that investment advisers 
would incur 0.5 hours to prepare an interim (other-than-annual) 
amendment to Form ADV. See 2016 Form ADV Paperwork Reduction 
Analysis, supra note 716, at 81 FR at 60452. We believe that an 
amendment to the relationship summary would take a similar amount of 
time, if not less.
    \737\ Similarly, we estimated that 0.5 hours would be required 
for interim updating amendments to Form ADV Part 2. See Brochure 
Adopting Release, supra note 157, at 75 FR at 49257.
    \738\ This estimate is based on IARD system data regarding the 
number of filings of Form ADV amendments.
    \739\ Based on IARD data, 7,625 investment advisers with retail 
clients filed 13,756 other-than-annual amendments to Form ADV. 
13,756 other-than-annual amendments/7,625 investment advisers = 1.80 
amendments per investment adviser.
    \740\ 7,625 investment advisers amending relationship summaries 
x 1.80 amendments per year x 0.5 hours = 6,878 hours.
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d. Incremental Increase to Form ADV Hourly and External Cost Burdens 
Attributable to Proposed Amendments
    For existing and newly-registered advisers with relationship 
summary obligations, the additional burden attributable to amendments 
to Form ADV to add Part 3: Form CRS, (including the initial preparation 
and filing of the relationship summary and amendments thereto) totals 
20,381 hours,\741\ or 2.52 hours per adviser,\742\ and a monetized cost 
of $5,248,193, or $648 per adviser.\743\ The incremental external legal 
and compliance cost is estimated to be $4,251,792.\744\
---------------------------------------------------------------------------

    \741\ 13,503 hours for initial preparation and filing of the 
relationship summary + 6,878 hours for amendments to the 
relationship summary = 20,381 total aggregate annual hour burden 
attributable to the Form ADV amendments to add Part 3: Form CRS.
    \742\ 20,381 hours/(7,625 existing advisers + 477 newly 
registered advisers) = 2.52 hours per adviser.
    \743\ 20,381 total aggregate annual hour burden for preparing 
and filing a relationship summary. We expect that performance of 
this function will most likely be equally allocated between a senior 
compliance examiner and a compliance manager. Data from the SIFMA 
Management and Professional Earnings Report suggest that costs for 
these positions are $229 and $298 per hour, respectively. 20,381 
hours x 0.5 x $229 = $2,211,375. 20,381 hours x 0.5 x $298 = 
$3,036,819. $2,211,375 + $3,036,819 = $5,248,193. $5,248,193/(7,625 
existing registered advisers + 477 newly registered advisers) = $648 
per adviser.
    \744\ See supra note 735.
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3. Total Revised Burden Estimates for Form ADV
a. Revised Hourly and Monetized Value of Hourly Burdens
    As discussed above, the currently approved total aggregate annual 
hour burden for all registered advisers completing, amending, and 
filing Form ADV (Part 1 and Part 2) with the Commission is 363,082 
hours, or a blended average per adviser burden of 23.77 hours, with a 
monetized cost of $92,404,369, or $6,051 per adviser. This includes the 
total annual hour burden for registered advisers of 351,386 hours, or 
29.22 hours per registered adviser, and 11,696 hours for exempt 
reporting advisers, or 3.60 hours per exempt reporting adviser. For 
purposes of updating the total information collection based on the 
proposed amendments to Form ADV, we consider three categories of 
respondents, as noted above: (i) Existing and newly-registered advisers 
preparing and filing a relationship summary, (ii) registered advisers 
with no obligation to prepare and file a relationship summary, and 
(iii) exempt reporting advisers.
    For existing and newly-registered advisers preparing and filing a 
relationship summary, including amendments to the disclosure, the total 
annual collection of information burden for preparing all of Form ADV, 
updated to reflect the proposed amendments to Form ADV, equals 31.74 
hours per adviser, with 2.52 hours attributable to the proposed 
amendments.\745\ On an aggregate basis, this totals 257,122 hours for 
existing and newly registered advisers, with a monetized value of 
$66,208,857.\746\
---------------------------------------------------------------------------

    \745\ 29.22 hours + 2.52 hours for increase in burden 
attributable to initial preparation and filing of, and amendments 
to, relationship summary = 31.74 hours total.
    \746\ 31.74 hours x 7,625 existing RIAs required to prepare a 
relationship summary + 477 newly registered RIAs required to prepare 
a relationship summary = 257,122 total aggregate annual hour burden 
for preparing, filing and amending a relationship summary. We expect 
that performance of this function will most likely be equally 
allocated between a senior compliance examiner and a compliance 
manager. Data from the SIFMA Management and Professional Earnings 
Report suggest that costs for these positions are $229 and $298 per 
hour, respectively. 257,122 hours x 0.5 x $229 = $27,897,712. 
257,122 hours x 0.5 $298 = $38,311,144. $27,897,712 + $38,311,144 = 
$66,208,857.
---------------------------------------------------------------------------

    As noted above, we estimate 5,096, or approximately 40% of existing 
registered advisers, would not have retail investors; therefore, they 
would not be obligated to prepare and file relationship summaries, so 
their annual per adviser hour burden would remain unchanged.\747\ To 
that end, using the currently approved total annual hour estimate of 
29.22 hours per registered investment adviser to prepare and amend Form 
ADV, we estimate that the updated annual hourly burden for all existing 
and newly-registered investment advisers not required to prepare a 
relationship summary would be 164,187,\748\ with a monetized value

[[Page 21519]]

of $43,263,322.\749\ The revised total annual collection of information 
burden for exempt reporting advisers, using the currently approved 
estimate of 3.60 hours per exempt reporting adviser, would be 15,653 
hours,\750\ for a monetized cost of $4,124,513, or $949 per exempt 
reporting adviser.\751\
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    \747\ 12,721 registered investment advisers--7,625 registered 
investment advisers with retail investors = 5,096 registered 
investment advisers without retail investors.
    \748\ 29.22 hours x (5,096 existing and 523 newly-registered 
investment advisers without retail investors) = approximately 
164,187 total annual hour burden for RIAs not preparing a 
relationship summary.
    \749\ We expect that performance of this function for registered 
advisers will most likely be equally allocated between a senior 
compliance examiner and a compliance manager. Data from the 2018 
SIFMA Management and Professional Earnings Report suggest that costs 
for these positions are $229 and $298 per hour, respectively. 
164,187 hours x 0.5 x $229 = $18,799,432. 164,187 hours x 0.5 x $298 
= $24,463,890. $18,799,432 + $24,463,890 = $43,263,322.
    \750\ 3.60 hours x 3,848 exempt reporting advisers currently + 
500 new exempt reporting advisers = 15,653 hours.
    \751\ As with preparation of the Form ADV for registered 
advisers, we expect that performance of this function for exempt 
reporting advisers will most likely be equally allocated between a 
senior compliance examiner and a compliance manager. Data from the 
2018 SIFMA Management and Professional Earnings Report suggest that 
costs for these positions are $229 and $298 per hour, respectively. 
15,653 hours x 0.5 x $229 = $1,792,246. 15,653 hours x 0.5 x $298 = 
$2,322,267. $1,792,246 + $2,322,267 = $4,124,513. $4,124,513/(3,848 
exempt reporting advisers currently + 500 new exempt reporting 
advisers) = $949 per exempt reporting adviser.
---------------------------------------------------------------------------

    In summary, factoring in the proposed amendments to Form ADV to add 
Part 3, the revised aggregate burden for Form ADV for all registered 
advisers and exempt reporting advisers would be 436,962,\752\ for a 
monetized cost of $115,139,422.\753\ This results in a blended average 
per adviser burden for Form ADV of 26.37 hours \754\ and $6,949 per 
adviser.\755\ This is an increase of 73,880 hours, \756\ or $22,735,053 
\757\ in the monetized value of the hour burden, from the currently 
approved annual aggregate burden estimates, increases which are 
attributable primarily to the proposed burden estimates on the larger 
registered investment adviser and exempt reporting adviser population 
since the most recent approval, adjustments for inflation, and the 
amendments to Form ADV.
---------------------------------------------------------------------------

    \752\ 257,122 annual hour burden for RIAs preparing relationship 
summary + 164,187 annual hour burden for RIAs not preparing 
relationship summary + 15,653 annual hour burden for exempt 
reporting advisers = 436,962 total updated Form ADV annual hour 
burden.
    \753\ $66,208,857 for RIAs preparing relationship summary + 
$43,263,890 for RIAs not preparing relationship summary + $4,124,513 
for exempt reporting advisers = $115,139,422 total updated Form ADV 
annual monetized hourly burden.
    \754\ 436,962/(12,721 registered investment advisers + 3,843 
exempt reporting advisers) = 26.37 hours per adviser.
    \755\ $115,139,422/12,721 registered investment advisers + 3,843 
exempt reporting advisers) = $6,949 per adviser.
    \756\ 436,962 hours estimated--363,082 hours currently approved 
= 73,880 hour increase in aggregate annual hourly burden.
    \757\ $115,139,422 monetized hourly burden-$92,404,369 = 
$22,735,053 increase in aggregate annual monetized hourly burden.
---------------------------------------------------------------------------

b. Revised Estimated External Costs for Form ADV
    The currently approved total annual collection of information 
burden estimate for Form ADV anticipates that there will be external 
costs, including (i) a one-time initial cost for outside legal and 
compliance consulting fees in connection with the initial preparation 
of Part 2 of Form ADV, and (ii) the cost for investment advisers to 
private funds to report the fair value of their private fund 
assets.\758\ The currently approved annual cost burden for Form ADV is 
$13,683,500, $3,600,000 of which is attributable to external costs 
incurred by new advisers to prepare Form ADV Part 2, and $10,083,500 of 
which is attributable to obtaining the fair value of certain private 
fund assets.\759\ We do not expect any change in the annual external 
costs relating to new advisers preparing Form ADV Part 2. Due to the 
slightly higher number of registered advisers with private funds, 
however, the cost of obtaining the fair value of private fund assets 
may be higher. We estimate that 6% of registered advisers have at least 
one private fund client that may not be audited. Based on IARD system 
data as of December 31, 2017, 4,670 registered advisers advise private 
funds. We therefore estimate that approximately 281 registered advisers 
may incur costs of $37,625 each on an annual basis, for an aggregate 
annual total cost of $10,572,625.\760\
---------------------------------------------------------------------------

    \758\ See 2016 Form ADV Paperwork Reduction Analysis, supra note 
716, at 81 FR 60452. We do not anticipate that the amendments we are 
proposing to add to Form ADV Part 3 will affect those per adviser 
cost burden estimates for outside legal and compliance consulting 
fees. The estimated external costs of outside legal and compliance 
consulting services for the relationship summary are in addition to 
the estimated hour burden discussed above.
    \759\ See 2016 Form ADV Paperwork Reduction Analysis, supra note 
716, at 81 FR at 60452-53. The $10,083,500 is based on 4,469 
registered advisers reporting private fund activity as of May 16, 
2016.
    \760\ 6% x 4,760 = 281 advisers needing to obtain the fair value 
of certain private fund assets. 281 advisers x $37,625 = 
$10,572,625.
---------------------------------------------------------------------------

    In summary, taking into account (i) a one-time initial cost for 
outside legal and compliance consulting fees in connection with the 
initial preparation of Part 2 of Form ADV, (ii) the cost for investment 
advisers to private funds to report the fair value of their private 
fund assets, and (iii) the incremental external legal or compliance 
costs for the preparation of the proposed relationship summary, we 
estimate the annual aggregate external cost burden of the Form ADV 
information collection would be $18,424,417, or $1,448 per registered 
adviser.\761\ This represents a $4,740,917 increase from the current 
external costs estimate for the information collection.\762\
---------------------------------------------------------------------------

    \761\ $3,600,000 for preparation of Form ADV Part 2 + 
$10,572,625 for registered investment advisers to fair value their 
private fund assets + $4,251,792 to prepare relationship summary = 
$18,424,417 in total external costs for Form ADV. $18,424,417/12,721 
total registered advisers as of December 31, 2017 = $1,448 per 
registered adviser.
    \762\ $18,424,417 - $13,683,500 = $4,740,917.
---------------------------------------------------------------------------

B. Rule 204-2 Under the Advisers Act

    Under section 204 of the Advisers Act, investment advisers 
registered or required to register with the Commission under section 
203 of the Advisers Act must make and keep for prescribed periods such 
records (as defined in section 3(a)(37) of the Exchange Act), furnish 
copies thereof, and make and disseminate such reports as the 
Commission, by rule, may prescribe as necessary or appropriate in the 
public interest or for the protection of investors. Rule 204-2 sets 
forth the requirements for maintaining and preserving specified books 
and records. We are proposing amendments to rule 204-2 that would 
require registered advisers to retain copies of each relationship 
summary. Investment advisers would also be required to maintain each 
amendment to the relationship summary as well as to make and preserve a 
record of dates that each relationship summary and each amendment was 
delivered to any client or to any prospective client who subsequently 
becomes a client, as well as to any retail investor before such retail 
investor opens an account. These records would be required to be 
maintained in the same manner, and for the same period of time, as 
other books and records required to be maintained under rule 204-2(a), 
to allow regulators to access the relationship summary during an 
examination. Specifically, investment advisers would be required to 
maintain and preserve a record of the relationship summary in an easily 
accessible place for not less than five years from the end of the 
fiscal year during which the last entry was made on such record, the 
first two years in an appropriate office of the investment adviser. 
This collection of information is found at 17 CFR 275.204-2 and is 
mandatory. The Commission staff uses the collection of information in 
its examination and oversight program. Requiring maintenance of these 
disclosures as part of the firm's books and records would facilitate 
the Commission's ability to inspect for and enforce compliance with 
firms' obligations with respect to Form CRS.

[[Page 21520]]

The information generally is kept confidential.\763\
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    \763\ See section 210(b) of the Advisers Act (15 U.S.C. 80b-
10(b)).
---------------------------------------------------------------------------

    The likely respondents to this collection of information are all of 
the approximately 12,721 advisers currently registered with the 
Commission. We estimate that based on updated IARD data as of December 
31, 2017, 7,625 existing advisers will be subject to the amended 
provisions of rule 204-2 to preserve the relationship summary as a 
result of the proposed amendments.
1. Changes in Burden Estimates and New Burden Estimates
    The approved annual aggregate burden for rule 204-2 is currently 
2,199,791 hours, with a total annual aggregate monetized cost burden of 
approximately $130,316,112, based on an estimate of 12,024 registered 
advisers, or 183 hours per registered adviser.\764\ We estimate that 
the proposed amendments would result in an increase in the collection 
of information burden estimate by 0.2 hours \765\ for each of the 
estimated 7,625 registered advisers with relationship summary 
obligations,\766\ resulting in a total of 183.2 hours per adviser. This 
would yield an annual estimated aggregate burden of 1,396,900 hours 
under amended rule 204-2 for all registered advisers with relationship 
summary obligations,\767\ for a monetized cost of $85,476,311.\768\ In 
addition, the 5,096 advisers \769\ not subject to the proposed 
amendments would continue to be subject to an unchanged burden of 183 
hours under rule 204-2, or a total aggregate annual hour burden of 
932,568,\770\ for a monetized cost of $57,063,836.\771\ In summary, 
taking into account the estimated annual burden of registered advisers 
that would be required to maintain records of the relationship summary, 
as well as the estimated annual burden of registered advisers that do 
not have relationship summary obligations and whose information 
collection burden is unchanged, the revised annual aggregate burden for 
all respondents to rule 204-2, under the proposed amendments, would be 
estimated to be 2,329,468 total hours,\772\ for a monetized cost of 
$142,540,147.\773\
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    \764\ See 2016 Form ADV Paperwork Reduction Analysis, supra note 
716, at 81 FR at 60454-55.
    \765\ In the Paperwork Reduction Act analysis for amendments to 
Form ADV adopted in 2016, we estimated that 1.5 hours would be 
required for each adviser to make and keep records relating to (i) 
the calculation of performance the adviser distributes to any person 
and (ii) all written communications received or sent relating to the 
adviser's performance. Because the burden of preparing of the 
relationship summary is already included in the collection of 
information estimates for Form ADV, and because the relationship is 
a short, standardized document, we assume that recordkeeping burden 
for the relationship summary would be considerably less than 1.5 
hours and estimate that 0.2 hours would be appropriate.
    \766\ See supra note 674.
    \767\ 7,625 registered investment advisers required to prepare 
relationship summary x 183.2 hours = 1,396,900 hours.
    \768\ As with our estimates relating to the previous amendments 
to rule 204-2 (see 2016 Form ADV Paperwork Reduction Analysis, supra 
note 716, at 81 FR at 60454-55, we expect that performance of this 
function will most likely be allocated between compliance clerks and 
general clerks, with compliance clerks performing 17% of the 
function and general clerks performing 83% of the function. Data 
from the SIFMA Office Salaries in the Securities Industry Report, 
modified to account for an 1,800-hour work year and multiplied by 
2.93 to account for bonuses, firm size, employee benefits, and 
overhead (``SIFMA Office Salaries Report), suggest that costs for 
these positions are $67 and $60, respectively. (17% x 1,396,9001 
hours x $67) + (83% x 1,396,900 hours x $60) = $85,476,311.
    \769\ See supra note 681.
    \770\ 5,096 registered investment advisers not required to 
prepare the relationship summary x 183 hours = 932,568.
    \771\ As with our estimates relating to the previous amendments 
to rule 204-2 (see 2016 Form ADV Paperwork Reduction Analysis, supra 
note 716, at 81 FR at 60454-55, we expect that performance of this 
function will most likely be allocated between compliance clerks and 
general clerks, with compliance clerks performing 17% of the 
function and general clerks performing 83% of the function. Data 
from the SIFMA Office Salaries Report suggest that costs for these 
positions are $67 and $60, respectively. (17% x 932,568 hours x $67) 
+ (83% x 932,568 hours x $60) = $57,063,836.
    \772\ 7,625 registered investment advisers required to prepare 
relationship summary x 183.2 hours = 1,396,900 hours. 5,096 
registered investment advisers not required to prepare the 
relationship summary x 183 hours = 932,568 hours. 1,396,900 hours + 
932,568 hours = 2,329,468 hours.
    \773\ $85,476,311 + $57,063,836 = $142,540,147.
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2. Revised Annual Burden Estimates
    As noted above, the approved annual aggregate burden for rule 204-2 
is currently 2,199,791, hours based on an estimate of 12,024 registered 
advisers, or 183 hours per registered adviser.\774\ The revised annual 
aggregate hourly burden for rule 204-2 would be 2,329,468 \775\ hours, 
represented by a monetized cost of $142,540,147,\776\ based on an 
estimate of 7,625 registered advisers with the relationship summary 
obligation and 5,096 registered advisers without, as noted above. This 
represents an increase of 129,677 \777\ annual aggregate hours in the 
hour burden and an annual increase of $12,224,035 from the currently 
approved total aggregate monetized cost for rule 204-2.\778\ These 
increases are attributable to a larger registered investment adviser 
population since the most recent approval and adjustments for 
inflation, as well as the proposed rule 204-2 amendments relating to 
the relationship summary as discussed in this proposing release.
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    \774\ 2,199,791 hours/12,024 registered advisers = 183 hours per 
adviser.
    \775\ See supra note 772.
    \776\ See supra note 773.
    \777\ 2,329,467 hours - 2,199,791 hours = 129,677 hours.
    \778\ $142,540,073 - $130,316,112 = $12,224,035.
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C. Rule 204-5 Under the Advisers Act

    Proposed new rule 204-5 would require an investment adviser to 
deliver the relationship summary to each retail investor before or at 
the time the adviser enters into an investment advisory agreement (even 
if the adviser's agreement with the retail investor is oral) as well as 
to existing clients one time within a specified time period after the 
effective date of the proposed amendments. The adviser also would 
deliver the relationship summary to existing clients before or at the 
time (i) a new account is opened that is different from the retail 
investor's existing account(s); or (ii) changes are made to the retail 
investor's existing account(s) that would materially change the nature 
and scope of the adviser's relationship with the retail investor, as 
further discussed in Section II.C.2 above. In addition, advisers would 
be required to post a current version of their relationship summary 
prominently on their public website (if they have one). Investment 
advisers would be required to communicate any changes in an updated 
relationship summary to retail investors who are existing clients or 
customers of the firm within 30 days after the updates are required to 
be made and without charge. The communication can be made by delivering 
the relationship summary or by communicating the information in another 
way to the retail investor.
    Proposed new rule 204-5 contains a collection of information 
requirement. The collection of information is necessary to provide 
advisory clients, prospective clients and the Commission with 
information about the investment adviser and its business, conflicts of 
interest and personnel. Clients would use the information contained in 
the relationship summary to determine whether to hire or retain an 
investment adviser and what type of accounts and services are 
appropriate for their needs. The Commission would use the information 
to determine eligibility for registration with us and to manage our 
regulatory and examination programs. This collection of information 
would be found at 17 CFR 275.204-5 and would be mandatory. Responses 
would not be kept confidential.
1. Respondents: Investment Advisers
    The likely respondents to this information collection would be the 
approximately 7,625 investment

[[Page 21521]]

advisers registered with the Commission that would be required to 
deliver a relationship summary per proposed new rule 204-5. We also 
note that these figures include the 366 registered broker-dealers that 
are dually registered as investment advisers.\779\
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    \779\ See supra note 457 and accompanying text.
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2. Initial and Annual Burdens
a. Posting of the Relationship Summary to Website
    Under proposed new rule 204-5, advisers would be required to post a 
current version of their relationship summary prominently on their 
public website (if they have one). We estimate that each adviser would 
incur 0.5 hours to prepare the relationship summary, such as to ensure 
proper electronic formatting, and to post the disclosure to the 
adviser's website, if the adviser has one.\780\ Based on IARD system 
data, 91.1% of investment advisers with individual clients report at 
least one public website. Therefore, we estimate that 91.1% of the 
7,625 existing and 477 newly-registered investment advisers with 
relationship summary obligations would incur a total of 3,690 aggregate 
burden hours to post relationship summaries to their websites,\781\ 
with a monetized cost of $221,428.\782\ As with the initial preparation 
of the relationship summary, we amortize the estimated initial burden 
associated with posting the relationship summary over a three-year 
period.\783\ Therefore, the total annual aggregate hourly burden 
related to the initial posting of the relationship summary is estimated 
to be 1,230 hours, with a monetized cost of $73,809.\784\ We do not 
anticipate external costs to rule 204-5 because investment advisers 
without a public website would not be required to establish or maintain 
one. External costs for the preparation of the relationship summary are 
already included for the collection of information estimates for Form 
ADV, in Section V.A, above.
---------------------------------------------------------------------------

    \780\ This estimate is based upon staff experience. See e.g., 
Enhanced Mutual Fund Disclosure Adopting Release, supra note 47 
(``we estimate, as we did in the proposing release, that rule 498 
will impose a \1/2\ hour burden per portfolio annually associated 
with the compilation of the additional information required on a 
cover page or at the beginning of the Summary Prospectus. Rule 498 
also imposes annual hour burdens associated with the posting of a 
fund's Summary Prospectus, statutory prospectus, SAI, and most 
recent report to shareholders on an Internet website. We estimate 
that the average hour burden for one portfolio to comply with the 
Internet website posting requirements will be approximately one hour 
annually.'') Because rule 204-5 pertains to one document, the 
relationship summary, which is much shorter than the several 
documents to which rule 498 applies, we estimate that each adviser 
on average would incur approximately 0.5 hours for the preparation 
of the relationship summary for posting, and for the posting itself.
    \781\ 0.5 hours to prepare and post the relationship summary x 
91.1% x (7,625 existing advisers + 477 newly-registered advisers 
with relationship summary obligations) x 0.5 hours = 3,690 hours.
    \782\ Based on data from the SIFMA Office Salaries Report, we 
expect that requirement for investment advisers to post their 
relationship summaries to their websites will most likely be 
performed by a general clerk at an estimated cost of $60 per hour. 
0.5 hours per adviser x $60 = $30 in monetized costs per adviser. 
$30 per adviser x (7,625 existing advisers + 477 newly registered 
advisers = $221,428 total aggregate monetized cost.
    \783\ See 2016 Form ADV Paperwork Reduction Analysis, supra note 
716.
    \784\ 43,688 hours/3 years = 1,230 hours annually. $221,428/3 
years = $73,809 in annualized monetized costs.
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b. Delivery to Existing Clients
i. One-Time Initial Delivery to Existing Clients
    The burden for this proposed rule is based on each adviser with 
retail investors having, on average, an estimated 4,461 clients who are 
retail investors.\785\ Although advisers may either deliver the 
relationship summary separately, in a ``bulk delivery'' to clients, or 
as part of the delivery of information that advisers already provide, 
such as the annual Form ADV update, account statements or other 
periodic reports, we base our estimates here on a ``bulk delivery'' to 
existing clients. This is similar to the approach we took in estimating 
the delivery costs for amendments to rule 204-3 under the Advisers Act, 
which requires investment advisers to deliver their Form ADV Part 2 
brochures and brochure supplements to their clients.\786\ As with the 
estimates for rule 204-3, we estimate that advisers would require 
approximately 0.02 hours to deliver the relationship summary to each 
client.\787\ Based on IARD data as of December 31, 2017, we estimate 
that advisers with the obligation to deliver the relationship summary 
under proposed rule 204-5 have, on average, 4,461 clients who are 
retail investors, per adviser. Thus, we estimate the total burden hours 
for 7,625 advisers for initial delivery of the relationship to existing 
clients to be 89.22 hours per adviser, or 722,860 total aggregate 
hours, for the first year after the rule is in effect,\788\ with a 
monetized cost of $5,353 \789\ per adviser or $43,339,507 in 
aggregate.\790\ Amortized over three years, the total annual hourly 
burden is estimated to be 29.74 hours per adviser, or 240,953 annual 
hours in aggregate,\791\ with annual monetized costs of $1,784 per 
adviser, or $14,457,209 in aggregate.\792\ We do not expect that 
investment advisers will incur external costs for the initial delivery 
of the relationship summary to existing clients because we assume that 
advisers will make such deliveries along with another required 
delivery, such as an interim or annual update to the Form ADV Part 2.
---------------------------------------------------------------------------

    \785\ Based on IARD system data as of December 31, 2017.
    \786\ See Brochure Adopting Release, supra note 157, at 75 FR at 
49259.
    \787\ This is the same estimate we made in the Form ADV Part 2 
proposal and for which we received no comment. Brochure Adopting 
Release, supra note 157, at 75 FR at 49259 We note that the burden 
for preparing relationship summaries is already incorporated into 
the burden estimate for Form ADV discussed above.
    \788\ (0.02 hours per client x 4,461 retail clients per adviser) 
= 89.22 hours per adviser. 89.22 hours per adviser x (7,625 existing 
advisers + 477 newly registered advisers) = 722,860 total aggregate 
hours.
    \789\ Based on data from the SIFMA Office Salaries Report, we 
expect that initial delivery requirement to existing clients of rule 
204-5 will most likely be performed by a general clerk at an 
estimated cost of $60 per hour. 89.22 hours per adviser x $60 = 
$5,353 in monetized costs per adviser. We estimate that advisers 
will not incur any incremental postage costs because we assume that 
they will make such deliveries with another mailing the adviser was 
already delivering to clients, such as interim or annual updates to 
the Form ADV, or will deliver the relationship summary 
electronically.
    \790\ $5,353 in monetized costs per adviser x (7,625 existing 
advisers + 477 newly registered advisers) = $43,339,507 in total 
aggregate costs.
    \791\ 89.22 initial hours per adviser/3 = 29.74 total annual 
hours per adviser. 722,860 initial aggregate hours/3 = 240,953 total 
annual aggregate hours.
    \792\ $5,353 in monetized costs per adviser/3 = $1,784 
annualized monetized cost per adviser. $43,339,507 initial aggregate 
monetized cost/3 = $14,14,457,209 in total annual aggregate 
monetized cost.
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ii. Delivery for New Account Types or Material Changes in the Nature or 
Scope of the Advisory Relationship
    As noted above, investment advisers also would be required to 
deliver the relationship summary to existing clients before or at the 
time (i) a new account is opened that is different from the retail 
investor's existing account(s); or (ii) changes are made to the retail 
investor's existing account(s) that would materially change the nature 
and scope of the adviser's relationship with the retail investor, as 
further discussed in Section II.C.2. With respect to delivery of the 
relationship summary in the event new account types are opened or 
material changes occur in the nature or scope of the advisory 
relationship, we expect that such delivery would take place among 10% 
of an adviser's retail investors annually. We would therefore estimate 
a total annual hourly burden of 9 hours per adviser and 72,286 hours in 
total annual aggregate hours,\793\ with a monetized cost of $535 per 
adviser \794\

[[Page 21522]]

and $4,337,163 in aggregate.\795\ We do not expect advisers to incur 
external costs related to deliveries of the relationship summary due to 
new account type openings, or material changes to the nature or scope 
of the relationship, because we assume that advisers will deliver the 
relationship summary along with new account agreements and other 
information normally required in such circumstances.
---------------------------------------------------------------------------

    \793\ 10% of 4,461 retail clients per adviser x .02 hours to 
deliver the relationship summary = 9 hours per adviser. 9 hours x 
(7,625 existing advisers + 477 new advisers) = 72,286 total 
aggregate hours.
    \794\ Based on data from the SIFMA Office Salaries Report, we 
expect that delivery requirements of rule 204-5 will most likely be 
performed by a general clerk at an estimated cost of $60 per hour. 9 
hours per adviser x $60 = $535 per adviser. We estimate that 
advisers will not incur any incremental postage costs in the 
delivery of the relationship summary to existing clients for changes 
in accounts, because we assume that advisers will make such 
deliveries with another mailing the adviser was already delivering 
to clients, such as new account agreements and other documentation 
normally required in such circumstances.
    \795\ $535 in monetized costs per adviser x (7,625 existing 
advisers + 477 newly registered advisers) = $4,337,163 in total 
aggregate costs.
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iii. Posting of Amended Relationship Summaries to Websites and 
Communicating Changes to Amended Relationship Summaries, Including by 
Delivery
    Investment advisers would be required to amend their relationship 
summaries within 30 days when any of the information becomes materially 
inaccurate. We do not expect amendments to be frequent, but based on 
the historical frequency of amendments made on Form ADV Parts 1 and 2, 
estimate that on average, each adviser preparing a relationship summary 
will likely amend the disclosure and average of 1.81 times per 
year.\796\ As above, we estimate that preparation of the relationship 
summary for posting to the web and the posting itself will require 0.5 
hours. Therefore, once again using the same percentage of investment 
advisers reporting public websites, 91.1% of 7,625 advisers would incur 
a total annual burden of 0.91 hours per adviser, or 6,286 hours in 
aggregate,\797\ to post the amended relationship summaries to their 
website. This translates into an annual monetized cost of $54.30 per 
adviser, or $377,188 in the aggregate for existing registered advisers 
with relationship summary obligations.\798\ Investment advisers also 
will be required to communicate any changes in an amended relationship 
summary to existing clients who are retail investors. The communication 
can be made by delivering the relationship summary or by communicating 
the information in another way. For this requirement, we estimate that 
50% of advisers will choose to deliver the relationship summary to 
communicate the updated information, and that the delivery will be made 
along with other disclosures already required to be delivered, such as 
an interim or annual Form ADV update. We therefore estimate a burden of 
615,674 \799\ hours, or 161.5 hours per adviser,\800\ at a monetized 
cost of $36,940,426 in aggregate,\801\ or $9,689 per adviser,\802\ for 
the 50% of advisers that choose to deliver amended relationship 
summaries in order to communicate updated information. Similar to the 
other delivery requirements discussed above for proposed rule 204-5, we 
do not expect investment advisers to incur external costs in delivering 
amended relationship summaries because we assume that they will make 
this delivery with other disclosures required to be delivered, such as 
an interim or annual update to Form ADV.
---------------------------------------------------------------------------

    \796\ This estimate is based on IARD system data regarding the 
number of filings of Form ADV amendments. See also supra note 702 
and accompanying text.
    \797\ 0.5 hours to post the amendment x 1.81 amendments annually 
= 0.91 hours per adviser annually to post amendments to the website. 
0.91 x 7,625 existing advisers amending the relationship summary x 
91.1% of advisers with public websites = 6,286 aggregate annual 
hours to post amendments of the relationship summary.
    \798\ Based on data from the SIFMA Office Salaries Report, we 
expect that the posting requirements of rule 204-5 will most likely 
be performed by a general clerk at an estimated cost of $60 per 
hour. 0.91 hours per adviser x $60 = $54.30 per adviser. $54.30 per 
adviser x 91.1% x 7,625 existing advisers = $377,188 in annual 
monetized costs.
    \799\ 7,625 advisers amending the relationship summary x 4,461 
retail clients per adviser x 50% delivering the amended relationship 
summary to communicate updated information x 0.02 hours per delivery 
x 1.81 amendments annually = 615,674 hours to deliver amended 
relationship summaries.
    \800\ 4,461 retail clients per adviser x 0.02 hours per delivery 
x 1.81 amendments annually = 161.5 hours per adviser.
    \801\ Based on data from the SIFMA Office Salaries Report, we 
expect that delivery requirements of rule 204-5 will most likely be 
performed by a general clerk at an estimated cost of $60 per hour. 
615,674 hours x $60 = $36,940,426. We estimate that advisers will 
not incur any incremental postage costs to deliver the relationship 
summary for communicating updated information by delivering the 
relationship summary, because we assume that advisers will make the 
delivery along with other documents already required to be 
delivered, such as an interim or annual update to Form ADV, or will 
deliver the relationship summary electronically.
    \802\ Based on data from the SIFMA Office Salaries Report, 
modified to account for an 1,800-hour work-year and multiplied by 
2.93 to account for bonuses, firm size, employee benefits and 
overhead, we expect that delivery requirements of rule 204-5 will 
most likely be performed by a general clerk at an estimated cost of 
$60 per hour. 161.5 hours per adviser x $60 per hour = $9,689 per 
adviser.
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c. Delivery to New Clients or Prospective New Clients
    Data from the IARD system indicate that of the 12,721 advisers 
registered with the Commission, 7,625 have retail investors, and on 
average, each has 4,461 clients who are retail investors.\803\ Based on 
IARD system data from 2015 to 2017, we estimate that the client base 
for investment advisers will grow by approximately 4.5% annually.\804\ 
Based on our experience with Form ADV Part 2, we estimate the annual 
hour burden for initial delivery of a relationship summary would be the 
same by paper or electronic format, at 0.02 hours for each relationship 
summary,\805\ or 4 annual hours per adviser.\806\ Therefore, we 
estimate that the aggregate annual hour burden for initial delivery of 
the relationship summary to new clients would be 30,614 hours,\807\ at 
a monetized cost of $1,836,817, or $241 per adviser.\808\ We do not 
expect that advisers will incur external costs to deliver the 
relationship summary to new or prospective clients because we assume 
that advisers will make the delivery along with other documentation 
normally provided in such circumstances, such as Form ADV Part 2, or 
will deliver the relationship summary electronically.
---------------------------------------------------------------------------

    \803\ This average is based on advisers' responses to Item 5 of 
Part 1A of Form ADV as of December 31, 2017.
    \804\ The number of retail clients reported by RIAs changed by 
6.7% between December 2015 and 2016, and by 2.3% between December 
2016 and 2017. (6.7% + 2.3%)/2 = 4.5% average annual rate of change 
over the past two years.
    \805\ This is the same as the estimate for the burden to deliver 
the brochure required by Form ADV Part 2. See Brochure Adopting 
Release, supra note 157.
    \806\ 4,461 clients per adviser with retail clients x 4.5% = 201 
new clients per adviser. 201 new clients per adviser x .02 hours per 
delivery = 4.0 hours per adviser for delivery of a relationship 
summary to new or prospective new clients.
    \807\ 4.0 hours per adviser for delivery obligation to new or 
prospective clients x 7,625 advisers = 30,614 hours.
    \808\ Based on data from the SIFMA Office Salaries Report, 
modified to account for an 1,800-hour work-year and multiplied by 
2.93 to account for bonuses, firm size, employee benefits and 
overhead, we expect that delivery requirements of rule 204-5 will 
most likely be performed by a general clerk at an estimated cost of 
$60 per hour. 7,625 hours x $60 = $1,836,817. We estimate that 
advisers will not incur any incremental postage costs to deliver the 
relationship summary to new or prospective clients because we assume 
that advisers will make the delivery along with other documentation 
normally provided in such circumstances, such as Form ADV Part 2. 
$1,835,371/7,625 investment advisers = $241 per adviser.
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d. Total New Initial and Annual Burdens
    Altogether, we estimate the total collection of information burden 
for proposed new rule 204-5 to be 967,044 annual aggregate hours per 
year,\809\ or

[[Page 21523]]

126.8 hours per respondent,\810\ for a total annual aggregate monetized 
cost of $58,022,611,\811\ or $7,610 \812\ per adviser. We request 
comment on the estimated hourly and cost burdens for the new collection 
of information under proposed rule 204-5.
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    \809\ 1,230 annual hours for posting initial relationship 
summaries to adviser websites + 240,953 annual hours for initial 
delivery to existing clients + 72,286 hours for delivery to existing 
clients based on material changes to accounts or scope of 
relationship + 6,286 annual hours to post amended relationship 
summary to website + 615,674 hours for delivery to existing clients 
to communicate updated information in amended relationship summaries 
+ 30,614 hours for delivery to new or prospective clients = 967,044 
annual total hours for investment advisers to post and deliver the 
relationship summary under proposed rule 204-5.
    \810\ 967,044 hours (initial and other deliveries)/7,625 
advisers = 126.8 hours per adviser.
    \811\ $73,809 for posting initial relationship summaries to 
adviser websites + $14,457,209 for initial delivery to existing 
clients + $4,337,162 for delivery to existing clients based on 
material changes to accounts or scope of relationship + $377,188 to 
post amended relationship summary to website + $36,940,426 for 
delivery to existing clients to communicate updated information in 
amended relationship summaries + $1,836,817 for delivery to new or 
prospective clients = $58,022,611 in total annual aggregate 
monetized cost for investment advisers to post and deliver the 
relationship summary under proposed rule 204-5.
    \812\ $58,022,611/7,625 advisers = $7,610 per adviser.
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D. Form CRS and Rule 17a-14 Under the Exchange Act

    New proposed rule 17a-14 under the Exchange Act [17 CFR 240.17a-14] 
and Form CRS [17 CFR 249.640] would require a broker-dealer that offer 
services to retail investors to prepare, file with the Commission, post 
to the broker-dealer's website (if it has one), and deliver to retail 
investors a relationship summary, as discussed in greater detail in 
Section II above. Broker-dealers would file the relationship summary 
with EDGAR and deliver the relationship summary to both existing 
customers and new or prospective new customers who are retail 
investors. New proposed rule 17a-14 under the Exchange Act [17 CFR 
240.17a-14] and Form CRS [17 CFR 249.640] contain a collection of 
information requirement. We will use the information to manage our 
regulatory and examination programs. Clients can use the information 
required in Form CRS to determine whether to hire or retain a broker-
dealer, as well as what types of accounts and services are appropriate 
for their needs. The collection of information is necessary to provide 
broker-dealer customers, prospective customers, and the Commission with 
information about the broker-dealer and its business, conflicts of 
interest and personnel. This collection of information would be found 
at 17 CFR 249.640 and would be mandatory. Responses would not be kept 
confidential.
1. Respondents: Broker-Dealers
    The respondents to this information collection would be the broker-
dealers registered with the Commission that would be required to 
deliver a relationship summary in accordance with proposed new rule 
17a-14 under the Exchange Act [17 CFR 240.17a-14]. As of December 31, 
2017, there were 2,857 broker-dealers registered with the Commission 
that reported sales to retail customer investors,\813\ and therefore 
likely would be required to prepare and deliver the relationship 
summary.\814\ We also note that these include 366 broker-dealers that 
are dually registered as investment advisers.\815\ To a great extent, 
the burden for dual registrants to prepare and deliver the relationship 
summary and post it to a website is already accounted for in the 
estimated burdens for investment advisers under the proposed amendments 
to Form ADV and proposed new rule 204-5, discussed in Sections V.A and 
V.C above. However, dually registered broker-dealers will incur burdens 
related to their business as an investment adviser that standalone 
broker-dealers will not incur, such as the requirement to file the 
relationship summary with IAPD (in addition to EDGAR as a broker-
dealer), and to deliver to both investment advisory clients and 
brokerage customers, to the extent those groups of retail investors do 
not overlap. Therefore, although treating dually registered broker-
dealers in this way may be over-inclusive, we base our burden estimates 
for proposed rule 17a-14 and Form CRS on 2,857 broker-dealers with 
relationship summary obligations, including those dually registered as 
broker-dealers. \816\
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    \813\ See supra note 461 and accompanying text. Retail sales 
activity is identified from Form BR (see supra note 280, which 
categorizes retail activity broadly (by marking the ``sales'' box) 
or narrowly (by marking the ``retail'' or ``institutional'' boxes as 
types of sales activity). We use the broad definition of sales as we 
preliminarily believe that many firms will just mark ``sales'' if 
they have both retail and institutional activity. However, we note 
that this may capture some broker-dealers that do not have retail 
activity, although we are unable to estimate that frequency.
    \814\ For purposes of Form CRS, a ``retail investor'' would be 
defined as: a prospective or existing client or customer who is a 
natural person (an individual) and would include a trust or other 
similar entity that represents natural persons, even if another 
person is a trustee or managing agent of the trust.
    \815\ See supra note 457 and accompanying text.
    \816\ See supra note 457 and accompanying text.
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2. Initial and Annual Burdens
a. Initial Preparation, Filing, and Posting of Relationship Summary
    Unlike investment advisers, broker-dealers currently are not 
required to disclose in one place all of the information required by 
the relationship summary or to file a narrative disclosure document 
with the Commission. We estimate, therefore, that the initial first 
year burden for preparing and filing the relationship summary would be 
15.0 hours per registered broker-dealer. The narrative descriptions 
required in the relationship summary should be narrowly tailored and 
brief, and the relationship summary must be limited to four pages (or 
equivalent limit if in electronic format). The relationship summary 
would be standardized across broker-dealers given the mandated set and 
sequence of topic areas, and moreover, a considerable amount of 
language within each topic area also would be prescribed, thereby 
limiting the amount of time required to prepare the disclosure. 
Therefore, we believe that the time needed to prepare the relationship 
summary should not vary significantly based on the size of the broker-
dealer. However, unlike investment advisers, which already prepare Form 
ADV Part 2 brochures and have information readily available to prepare 
the relationship summary, broker-dealers would be required for the 
first time to prepare disclosure that contains all the information 
proposed to be required by the relationship summary. In addition, 
investment advisers already file their brochures on IARD, while broker-
dealers may incur new burdens to file their relationship summaries on 
EDGAR. Therefore, we believe that each broker-dealer respondent would 
incur 15 hours on a one-time basis, instead of five hours for 
investment advisers, for the initial preparation and filing of the 
relationship summary. However, we believe that the amount of time 
needed to post the relationship summary on the broker-dealer's website, 
if it has one, would not vary significantly from the time needed by 
investment advisers because the time required to prepare and post 
disclosure that is standardized in length and content should not vary 
significantly across firms. As with investment advisers, we estimate 
that each broker-dealer would incur 0.5 hours to prepare the 
relationship summary for posting to its website, if it has one, such as 
to ensure proper electronic formatting, and to perform the actual 
posting.\817\
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    \817\ See supra note 780.
---------------------------------------------------------------------------

    Given these assumptions, we estimate the total one-time initial 
hourly burden for broker-dealers to prepare the relationship summary 
and file it with the Commission would be 42,855

[[Page 21524]]

hours,\818\ for a monetized value of $11,292,293.\819\ We estimate that 
the initial burden of posting the relationship summary to their 
websites, if they have one, would be 1,428 hours,\820\ for a monetized 
value of $85,710.\821\ To arrive at an annual burden for preparing, 
filing, and posting the relationship summary, as for advisers, the 
initial burden would be amortized over a three-year period. Therefore, 
the total annual aggregate hour burden for registered broker-dealers to 
prepare, file, and post a relationship summary to their website, if 
they have one, would be 14,761 hours, or 5.17 hours per broker-
dealer,\822\ for an annual monetized cost of $3,792,668, or $1,328 per 
broker-dealer.\823\
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    \818\ 15.0 hours x 2,857 broker-dealers with retail accounts = 
42,855 total hours.
    \819\ 42,855 total aggregate initial hour burden for preparing 
and filing a relationship summary. We expect that performance of 
this function will most likely be equally allocated between a senior 
compliance examiner and a compliance manager. Data from the SIFMA 
Management and Professional Earnings Report suggest that costs for 
these positions are $229 and $298 per hour, respectively. (21,427.5 
hours x $229 + (21,427.5 hours x $298 = $11,292,293).
    \820\ 0.5 hours x 2,857 broker-dealers = 1,248 hours to prepare 
and post relationship summary to the website.
    \821\ Based on data from the SIFMA Office Salaries Report, 
modified to account for an 1,800-hour work-year and multiplied by 
2.93 to account for bonuses, firm size, employee benefits and 
overhead, we expect that performance of this function will most 
likely be performed by a general clerk at an estimated cost of $60 
per hour. 1,429 hours x $60 = $85,710 total aggregate monetized 
cost.
    \822\ 42,855 hours/3 years = 14,761 total aggregate annual hour 
burden to prepare and file relationship summary. 14,761 hours/2,857 
broker-dealers with retail accounts = 5.17 hours annually per 
broker-dealer.
    \823\ ($11,292,293 total initial aggregate monetized cost for 
preparation and filing + $85,710 for posting to the website)/3 = 
$3,792,668 total annual monetized cost for preparation, filing and 
posting the relationship summary. $3,792,668/2,857 broker-dealers 
subject to relationship summary obligations = $1,328 per broker-
dealer.
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b. Estimated External Costs for Initial Preparation of Relationship 
Summary
    Under proposed new rule 17a-14, broker-dealers would be required to 
prepare and file a relationship summary, as well as post it to their 
website if they have one. We do not anticipate external costs in the 
form of website set-up, maintenance, or licensing fees because broker-
dealers would not be required to establish a website for the sole 
purpose of posting their relationship summary if they do not already 
have a website. We do anticipate that some broker-dealers may incur a 
one-time initial cost for outside legal and consulting fees in 
connection with the initial preparation of the relationship summary. 
Although broker-dealers subject to the relationship summary requirement 
may vary widely in terms of the size, complexity and nature of their 
businesses, the amount of disclosure required would not vary 
substantially among broker-dealers. Accordingly, the amount of time, 
and thus cost, required for outside legal and compliance review is 
unlikely to vary substantially among those broker-dealers who elect to 
obtain outside assistance.\824\ The relationship summary is short, 
standardized, and contains largely prescribed language. Because the 
information required in the relationship summary pertains largely to 
the broker-dealer's own business practices, the information is likely 
more readily available to the broker-dealer than to an external legal 
or compliance consultant. As a result, we anticipate that only a 
quarter of broker-dealers will seek the help of outside legal services 
and half will seek the help of compliance consulting services in 
connection with the initial preparation of the relationship summary. We 
estimate that the initial per broker-dealer cost for legal services 
related to the preparation of the relationship summary would be 
$1,416.\825\ We estimate that the initial per broker-dealer cost for 
compliance consulting services related to the preparation of the 
relationship summary would be $2,109.\826\ Accordingly, we estimate 
that 715 broker-dealers will use outside legal services, for a total 
initial aggregate cost burden of $1,011,378,\827\ and 1,429 broker-
dealers will use outside compliance consulting services, for a total 
initial aggregate cost burden of $3,012,707,\828\ resulting in a total 
initial aggregate cost burden among all respondents of $4,024,085, or 
$1,409 per broker-dealer, for outside legal and compliance consulting 
fees related to preparation of the relationship summary.\829\ Annually, 
this represents $1,341,362, or $470 per broker-dealer, when amortized 
over a three-year period.\830\
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    \824\ We estimate that an external service provider would spend 
3 hours helping a broker-dealer prepare an initial relationship 
summary.
    \825\ External legal fees are in addition to the projected hour 
per broker-dealer burden discussed above. $472 per hour for legal 
services x 3 hours per broker-dealer = $1,416. The hourly cost 
estimate of $472 is adjusted for inflation and based on our 
consultation with broker-dealers and law firms who regularly assist 
them in compliance matters.
    \826\ External compliance consulting fees are in addition to the 
projected hour per broker-dealer burden discussed above. Data from 
the SIFMA Management and Professional Earnings Report suggest that 
outside management consulting services cost approximately $703 per 
hour. $703 per hour for outside consulting services x 3 hours per 
adviser = $2,109.
    \827\ 25% x 2,857 SEC registered broker-dealers = 715 broker-
dealers. $1,416 for legal services x 715 broker-dealers = 
$1,011,378.
    \828\ 50% x 2,857 SEC registered broker-dealers = 1,429 broker-
dealers. $2,109 for compliance consulting services x 1,429 broker-
dealers = $3,012,707.
    \829\ $1,011,378 + $3,012,707 = $4,024,085. $4,024,085/2,857 
broker-dealers = $1,409 per broker-dealer.
    \830\ $4,024,085 initial aggregate hours/3 years = $1,341,362 
annually. $1,409 initial hours per broker-dealer/3 years = $469.50.
---------------------------------------------------------------------------

    We do not expect ongoing external legal or compliance consulting 
costs for the relationship summary. Although broker-dealers would be 
required to amend the relationship summary within 30 days whenever any 
information becomes materially inaccurate, given the standardized 
nature and prescribed language of the relationship summary, we expect 
that amendments would be factual and require relatively minimal wording 
changes. We believe that broker-dealers would be more knowledgeable 
about these facts than outside legal or compliance consultants and 
would be able to make these revisions in-house. Therefore, we do not 
expect that broker-dealers will need to incur ongoing external costs 
for the preparation and review of relationship summary amendments.
c. Amendments to the Relationship Summary and Filing and Posting of 
Amendments
    As with our estimates above for investment advisers, we do not 
expect broker-dealers to amend their relationship summaries frequently. 
Based on staff experience, we believe that many broker-dealers, as a 
matter of best practices, would update their relationship summary at a 
minimum once a year, after conducting an annual supervisory review, for 
example.\831\ We also estimate that on average, each broker-dealer 
preparing a relationship summary may amend the disclosure once more 
during the year, due to emerging issues. Therefore, we assume that 
broker-dealers would update their relationship summary, on average, 
twice a year, and as with investment advisers, we estimate that broker-
dealers would require 0.5 hours to amend and file the updated 
relationship summary, and 0.5 hours to post it to their website. Thus, 
we estimate that broker-dealers would incur a total annual aggregate 
hourly

[[Page 21525]]

burden of 5,714 hours per year, to prepare and file, and post to their 
websites an estimated total of 5,714 amendments per year.\832\
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    \831\ FINRA rules set an annual supervisory review as a minimum 
threshold for broker-dealers, for example in FINRA Rules 3110 
(requiring an annual review of the businesses in which the broker-
dealer engages), 3120 (requiring an annual report detailing a 
broker-dealer's system of supervisory controls, including compliance 
efforts in the areas of antifraud and sales practices); and 3130 
(requiring each broker-dealer's CEO or equivalent officer to certify 
annually to the reasonable design of the policies and procedures for 
compliance with relevant regulatory requirements).
    \832\ 2,857 broker-dealers amending relationship summaries x 2 
amendments per year = 5,714 amendments per year. 5,714 amendments x 
(0.5 hours to amend and file + 0.5 hours to post to website) = 5,714 
hours.
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d. Delivery of the Relationship Summary
    Proposed rule 17a-14 under the Exchange Act would require a broker-
dealer to deliver the relationship summary, with respect to a retail 
investor that is a new or prospective customer, before or at the time 
the retail investor first engages the broker-dealer's services. Broker-
dealers also would make a one-time, initial delivery of the 
relationship summary to all existing customers within a specified time 
period after the effective date of the proposal. Also with respect to 
existing customers, broker-dealers would deliver the relationship 
summary before or at the time (i) a new account is opened that is 
different from the retail investor's existing account(s); or (ii) 
changes are made to the retail investor's account(s) existing 
account(s) that would materially change the nature and scope of the 
broker-dealer's relationship with the retail investor, as further 
discussed in II.C.2 above.
i. One-Time Initial Delivery to Existing Customers
    We estimate the burden for broker-dealers to make a one-time 
initial delivery of the relationship summary to existing customers 
based on an estimate of the number of accounts held by these broker-
dealers. Based on FOCUS data, we estimate that the 2,857 broker-dealers 
that report retail activity have approximately 128 million customer 
accounts, and that approximately 79%, or 101.248 million, of those 
accounts belong to retail customers.\833\ We estimate that, under the 
proposed rule, broker-dealers would send their relationship summary 
along with other required disclosures, such as periodic account 
statements, in order to comply with initial delivery requirement for 
the relationship summary. As with investment advisers, we estimate that 
a broker-dealer will require no more than 0.02 hours to send the 
relationship summary to each customer, or an aggregate initial burden 
of 2,024,960 hours, or approximately 709 hours per broker-dealer for 
the first year after the rule is in effect.\834\ We would therefore 
expect the aggregate monetized cost for broker-dealers to make a one-
time initial delivery of relationship summaries to existing customers 
to be $121,497,600.\835\ Amortized over three years, the total annual 
hourly burden is estimated to be 674,987 hours, or approximately 236.3 
hours per broker-dealer,\836\ with annual monetized costs of 
$40,499,200 and $14,175, respectively.\837\ We do not expect that 
broker-dealers will incur external costs for the initial delivery of 
the relationship summary to existing clients because we assume that 
they will make such deliveries along with another required delivery, 
such as periodic account statements.
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    \833\ See supra notes 428-437 and accompanying text. 2,857 
broker-dealers (including dual registrants) report 128 million 
customer accounts. We are aware that, based on data from IARD, 
investment advisers reporting retail activity have approximately 
79.1% retail clients and 21.9% non-retail clients. While 
acknowledging the differences between the investment adviser and 
broker-dealer models, we apply the 79.1% in estimating the 
proportion of broker-dealer accounts that belong to retail 
customers. Therefore, 79.1% x 128 million accounts = 101.248 million 
accounts. This number likely overstates the number of deliveries to 
be made due to the double-counting of deliveries to be made by dual 
registrants to a certain extent, and the fact that one customer may 
own more than one account.
    \834\ (0.02 hours per customer account x 101.248 million 
customer accounts) = 2,024,960 hours. We note that the burden for 
preparing updated relationship summaries is already incorporated 
into the burden estimate for Form CRS discussed above. 2,024,960 
hours/2,857 broker-dealers = approximately 709 hours per broker-
dealer.
    \835\ Based on data from SIFMA's Office Salaries Report, we 
expect that initial delivery requirement to existing clients of rule 
17a-14 will most likely be performed by a general clerk at an 
estimated cost of $60 per hour. 2,024,960 hours x $60 = 
$121,497,600. We estimate that broker-dealers will not incur any 
incremental postage costs because we assume that they will make such 
deliveries with another mailing the broker-dealer was already 
delivering to clients, such as periodic account statements.
    \836\ 2,024,960 initial aggregate hours/3 = 674,987 total annual 
aggregate hours. 709 initial hours per broker-dealer/3 = 236.3 total 
annual hours per broker-dealer.
    \837\ $121,497,600 initial aggregate monetized cost/3 = 
$40,499,200 annual aggregate monetized cost. $40,499,200/2,857 
broker-dealers = $14,175 annual monetized cost per broker-dealer.
---------------------------------------------------------------------------

ii. Delivery for New Account Types or Material Changes in the Nature or 
Scope of the Brokerage Relationship
    Broker-dealers would be required to deliver the relationship 
summary to existing customers before or at the time (i) a new account 
is opened that is different from the retail investor's existing 
account(s); or (ii) changes are made to the retail investor's existing 
account(s) that would materially change the nature and scope of the 
adviser's relationship with the retail investor, as further discussed 
in Section II.C.2. With respect to delivery of the relationship summary 
in the event of material changes in the nature or scope of the 
brokerage relationship, as with investment advisers, we estimate that 
this would take place among 10% of a broker-dealer's retail investors 
annually. We would therefore estimate broker-dealers to incur a total 
annual aggregate burden of 202,496 hours, or 71 hours per broker-
dealer,\838\ at an annual aggregate monetized cost of $12,149,760, or 
approximately $4,253 per broker-dealer.\839\ We do not expect broker-
dealers to incur external costs related to deliveries of the 
relationship summary due to new account type openings, or material 
changes to the nature or scope of the relationship, because we assume 
that broker-dealers will deliver the relationship summary along with 
new account agreements and other documentation normally required in 
such circumstances, or with periodic account statements.
---------------------------------------------------------------------------

    \838\ 10% of 101.248 million customers x .02 hours = 202,496 
hours. 202,496 hours/2,857 broker-dealers = 71 hours per broker-
dealer.
    \839\ Based on data from the SIFMA Office Salaries Report, 
modified to account for an 1,800-hour work-year and multiplied by 
2.93 to account for bonuses, firm size, employee benefits and 
overhead, we expect that delivery requirements of rule 17a-14 will 
most likely be performed by a general clerk at an estimated cost of 
$60 per hour. 202,496 hours x $60 = $12,149,760. $12,149,760/2,857 
broker-dealers = $4,253 per broker-dealer. We estimate that broker-
dealers will not incur any incremental postage costs in these 
deliveries of the relationship summary to existing customers, 
because we assume that broker-dealers will make such deliveries with 
another mailing the broker-dealer was already delivering to clients, 
such as periodic account statements, or new account agreements and 
other similar documentation.
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iii. Communicating Changes to Amended Relationship Summaries, Including 
by Delivery
    As discussed above, broker-dealers must communicate any changes in 
an updated relationship summary to retail investors who are existing 
customers of the firm within 30 days after the updates are required to 
be made and without charge. The communication can be made by delivering 
the relationship summary or by communicating the information in another 
way to the retail investor. Consistent with our discussion on broker-
dealers' amendments to the relationship summary we are assuming that 
the 2,857 broker-dealers with relationship summaries will amend them 
twice each year. We also assume that 50% will choose to deliver the 
relationship summary to communicate the update information. As with 
investment advisers, we estimate that broker-dealers would require 0.02 
hours to make a delivery to each customer. Therefore, the estimated 
burden for those broker-dealers choosing to deliver an amended 
relationship summary to meet this communication requirement

[[Page 21526]]

would be approximately 2,024,960 hours, or 709 hours per broker-
dealer,\840\ translating into a monetized cost of $121,497,600 in 
aggregate, or $42,526 per broker-dealer.\841\ Similar to the other 
delivery requirements relating to proposed rule 17a-14, we do not 
expect broker-dealers to incur external costs in delivering amended 
relationship summaries because we assume that they will make this 
delivery with other documents required to be delivered, such as 
periodic account statements.
---------------------------------------------------------------------------

    \840\ 2 amendments per year x 101.248 million customer accounts 
x 50% delivering the amended relationship summary to communicate 
updated information x 0.02 hours per delivery = 2,024,960 hours to 
deliver amended relationship summaries. 2,024,960 hours/2,857 
broker-dealers = 709 hours per broker-dealer.
    \841\ Based on data from the SIFMA Office Salaries Report, 
modified to account for an 1,800-hour work year and multiplied by 
2.93 to account for bonuses, firm size, employee benefits and 
overhead, we expect that delivery requirements of rule 17a-14 will 
most likely be performed by a general clerk at an estimated cost of 
$60 per hour. 2,024,960 hours x $60 = $121,497,600. $121,467,600/
2,857 broker-dealers = $42,526 per broker-dealer. We estimate that 
broker-dealers will not incur any incremental postage costs to 
deliver these relationship summaries, because we assume that 
advisers will make the delivery along with other documentation they 
normally would provide, such as account opening documents.
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e. Delivery to New Clients or Prospective New Customers
    To estimate the delivery burden for broker-dealers' new or 
prospective new customers, as discussed above, we estimate that the 
2,857 standalone broker-dealers with retail activity have approximately 
101.248 million retail customer accounts.\842\ Based on FOCUS data over 
the past five years, we estimate that broker-dealers grow their 
customer base and enter into new agreements with, on average, 8% more 
new retail investors each year.\843\ We estimate the hour burden for 
initial delivery of a relationship summary would be the same by paper 
or electronic format, at 0.02 hours for each relationship summary, as 
we have estimated above. Therefore, the aggregate annual hour burden 
for initial delivery of the relationship summary by broker-dealers to 
new or prospective new customers would be 161,917 hours, or 56.7 hours 
per broker-dealer.\844\ at a monetized cost of $9,715,001 at an 
aggregate level, or $3,400 per broker-dealer.\845\
---------------------------------------------------------------------------

    \842\ See supra notes 429-439 and accompanying text.
    \843\ This represents the average annual rate of growth from 
2012-2016 in the number of accounts for all broker-dealers reporting 
retail activity.
    \844\ 101.248 million customer accounts x 8% increase = 
8,095,834 new customers. 8,095,834 new customers x 0.02 hours per 
delivery = 161,917 total annual aggregate hours. 161,917/2,857 
broker-dealers = 56.7 hours per broker-dealer for delivery to new 
customers.
    \845\ Based on data from the SIFMA Office Salaries Report, 
modified to account for an 1,800-hour work-year and multiplied by 
2.93 to account for bonuses, firm size, employee benefits and 
overhead, we expect that these functions will most likely be 
performed by a general clerk at an estimated cost of $60 per hour. 
161,917 hours x $60 = $9,715,001. $9,715,001/2,857 broker-dealers = 
$3,400 per broker-dealer for delivery to new customers. We estimate 
that broker-dealers will not incur any incremental postage costs to 
deliver the relationship summary to new or prospective clients 
because we assume that broker-dealers will make the delivery along 
with other documentation, such as periodic account statements.
---------------------------------------------------------------------------

f. Total New Initial and Annual Burdens
    As discussed above, we estimate the total annual collection of 
information burden for proposed new rule 17a-14 in connection with 
obligations relating to the relationship summary, including (i) initial 
preparation, filing, and posting to a website; (ii) amendments to the 
relationship summary for material updates and related filing and 
website posting burdens; (iii) one-time initial delivery to existing 
customers; (iv) delivery to existing customers who are opening new 
accounts or materially changing the nature or scope of their 
relationship with the broker-dealer; (v) delivery of amended 
relationship summaries; and (vi) delivery to new and prospective 
customers. Given these proposed requirements, we estimate the total 
annual aggregate hourly burden to be approximately 3,084,835 hours per 
year, or 1,080 hours on a per broker-dealer basis.\846\ This translates 
into an aggregate annual monetized cost of $188,578,462, or $66,066 on 
a broker-dealer basis per year.\847\ In addition, we estimate that 
broker-dealers would incur external legal and compliance costs in the 
initial preparation of the relationship summary of approximately 
$4,024,085 in aggregate, or $1,409 per broker-dealer, translating into 
$1,341,362 annually, or $470 per broker-dealer, when amortized over a 
three year period.
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    \846\ 14,761 hours per year for initial preparation, filing, and 
posting of relationship summary + 5,714 hours per year for 
amendments, filing, and posting of amendments + 674,987 hours for 
one-time initial delivery to existing customers + 202,496 hours for 
delivery to existing customers making material changes to their 
accounts + 2,024,960 hours for delivery of amendments + 161,917 
hours for delivery to new customers = 3,084,835 total annual 
aggregate hours. 3,084,835 hours/2,857 broker-dealers = 1,080 hours 
per broker-dealer.
    \847\ $3,792,668 per year for initial preparation, filing, and 
posting of relationship summary + $924,240 per year for amendments, 
filing, and posting of amendments + $40,499,200 for one-time initial 
delivery to existing customers (amortized over three years) + 
$12,149,760 for delivery to existing customers making material 
changes to their accounts + $121,497,600 for delivery of amendments 
+ $9,715,001 for delivery to new customers = $188,578,468 in total 
annual aggregate monetized cost. $188,578,468/2,857 broker-dealers = 
$66,066 per broker-dealer.
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E. Recordkeeping Obligations Under Rule 17a-3 of the Exchange Act \848\
---------------------------------------------------------------------------

    \848\ In a concurrent release, we are proposing additional 
burden adjustments to rules 17a-3 and 17a-4 of the Exchange Act. See 
Regulation Best Interest Proposal, supra note 24.
---------------------------------------------------------------------------

    The proposed requirement to make a record indicating the date that 
a relationship summary was provided to each customer and to each 
prospective customer who subsequently becomes a customer would contain 
a collection of information that would be found at 17 CFR 240.17a-
3(a)(24) and would be mandatory. The Commission staff would use this 
collection of information in its examination and oversight program, and 
the information generally is kept confidential.\849\ The likely 
respondents to this collection of information requirement are the 
approximately 2,857 broker-dealers currently registered with the 
Commission that offer services to retail investors, as defined 
above.\850\
---------------------------------------------------------------------------

    \849\ See section 24(b) of the Exchange Act (15 U.S.C. 78x-
24(b)).
    \850\ See supra note 29 and accompanying text.
---------------------------------------------------------------------------

    Exchange Act section 17(a)(1) requires registered broker-dealers to 
make and keep for prescribed periods such records as the Commission 
deems ``necessary or appropriate in the public interest, for the 
protection of investors or otherwise in furtherance of the purposes 
of'' the Exchange Act.'' \851\ Exchange Act rules 17a-3 and 17a-4 
specify minimum requirements with respect to the records that broker-
dealers must make, and how long those records and other documents must 
be kept, respectively.
---------------------------------------------------------------------------

    \851\ See section 17(a) of the Exchange Act.
---------------------------------------------------------------------------

    The amendments to rule 17a-3 that we are proposing today would 
require SEC-registered broker-dealers to make a record indicating the 
date that a relationship summary was provided to each customer and to 
each prospective customer who subsequently becomes a customer. 
Commission staff has estimated that the proposed amendments to rule 
17a-3(a)(24) would result in an incremental burden increase of 0.1 
hours annually for each of the estimated SEC-registered broker-dealers 
that would be required to prepare and preserve the initial relationship 
summary and any amendments.\852\
---------------------------------------------------------------------------

    \852\ We apply the same 0.2 hour estimate as with investment 
advisers, but divided equally between creating a record of the 
relationship summary and its deliveries and the maintenance of those 
records.
---------------------------------------------------------------------------

    The incremental hour burden for broker-dealers to maintain the 
relationship summary would therefore

[[Page 21527]]

be 286 hours,\853\ for a monetized cost of 17,481 in aggregate, or 
$6.00 per broker-dealer.\854\
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    \853\ 2,857 broker-dealers x 0.1 hours annually = 286 annual 
hours for recordkeeping.
    \854\ As with our estimates relating to the proposed amendments 
to rule 204-2 under the Advisers Act (see, e.g., supra note 771 and 
accompanying text), we expect that performance of this function will 
most likely be allocated between compliance clerks and general 
clerks, with compliance clerks performing 17% of the function and 
general clerks performing 83% of the function. Data from the SIFMA 
Office Salaries Report suggest that costs for these position are $67 
and $60, respectively. (17% x 286 hours x $67) + (83% x 286 hours x 
$60) = $17,481. $17,481/2,857 broker-dealers = $6.00 per broker-
dealer.
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F. Record Retention Obligations Under Rule 17a-4 of the Exchange Act

    Exchange Act section 17(a)(1) requires registered broker-dealers to 
make and keep for prescribed periods such records as the Commission 
deems ``necessary or appropriate in the public interest, for the 
protection of investors or otherwise in furtherance of the purposes 
of'' the Exchange Act.'' \855\ Exchange Act rule 17a-4 specifies 
minimum requirements with respect to how long records created under 
Exchange Act rule 17a-3 and other documents must be kept. We are 
proposing amendments to rule 17a-4 that would require broker-dealers to 
retain copies of each relationship summary, including amendments, and 
to preserve the record of dates that each relationship summary and each 
amendment thereto was delivered to any existing customer or to any new 
or prospective customer, pursuant to the proposed new requirements 
under amended rule 17a-3, discussed above. These records would be 
required to be maintained in an easily accessible place for at least 
six years after such record or relationship summary is created. This 
collection of information would be found at 17 CFR 240.17a-4 and would 
be mandatory. The Commission staff would use the collection of 
information in its examination and oversight program. Requiring 
maintenance of these disclosures as part of the broker-dealer's books 
and records would facilitate the Commission's ability to inspect for 
and enforce compliance with firms' obligations with respect to Form 
CRS. The information generally is kept confidential.\856\
---------------------------------------------------------------------------

    \855\ See section 17(a) of the Exchange Act.
    \856\  See section 24(b) of the Exchange Act (15 U.S.C. 78x-
24(b)).
---------------------------------------------------------------------------

    The likely respondents to this collection of information 
requirement are the approximately 2,857 broker-dealers that report 
retail activity, as described above.
1. Changes in Burden Estimates and New Burden Estimates
    The approved annual aggregate burden for rule 17a-4 is currently 
1,042,416 hours, with a total annual aggregate monetized cost burden of 
approximately $67.8 million, based on an estimate of 4,104 broker-
dealers and 150 broker-dealers maintaining an internal broker-dealer 
system.\857\ The currently approved external cost estimate to 
respondents is $20,520,000.\858\ We estimate that the proposed 
amendments would result in an increase in the collection of information 
burden estimate by 0.10 hours \859\ for each of the estimated 2,857 
currently registered broker-dealers that report retail sales activity 
and would have relationship summary obligations.\860\ This would yield 
an annual estimated aggregate burden of 754,964 hours for all broker-
dealers with relationship summary obligations to comply with rule 17a-
4,\861\ for a monetized cost of approximately $48.6 million.\862\ In 
addition, the 984 broker-dealers \863\ not subject to the proposed 
amendments would continue to be subject to an unchanged burden of 254 
hours per broker-dealer, or 249,936 hours for these broker-
dealers.\864\ In addition, those maintaining an internal broker-dealer 
system would continue to be subject to an unchanged burden of 450 hours 
annually, under rule 17a-4. In summary, taking into account the 
estimated annual burden of broker-dealers that would be required to 
maintain records of the relationship summary, as well the estimated 
annual burden of broker-dealers that do not have relationship summary 
obligations and whose information collection burden is unchanged, the 
revised annual aggregate burden for all broker-dealer respondents to 
the recordkeeping requirements under rule 17a-4 is estimated to be 
976,350 total annual aggregate hours,\865\ for a monetized cost of 
approximately $65.4 million.\866\
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    \857\ (4,104 broker-dealers x 254 hours per broker-dealer) + 
(150 broker-dealers maintaining internal broker-dealer systems x 3 
hours) = (1,042,416 hours + 450 hours ) = 1,042,866 hours each year. 
The monetized cost was based on these functions being performed by a 
compliance clerk earning an average of $65 per hour, resulting in a 
total internal cost of compliance of (1,042,416 x $65) + (450 x $65) 
= $67,786. See 17a-4 Supporting Statement, available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201607-3235-007.
    \858\ 4,104 broker-dealers x $5,000 annual recordkeeping cost 
per broker-dealer = $20,520,000. See id.
    \859\ We apply the same 0.2 hour estimate as with investment 
advisers, but divided equally between creating a record of the 
relationship summary and its deliveries and the maintenance of those 
records.
    \860\ See supra note 616.
    \861\ 2,857 broker-dealers required to prepare relationship 
summary x (254 hours + 0.1 hour) = 725,964 hours.
    \862\ Consistent with our prior paperwork reduction analyses for 
rule 17a-4, we expect that performance of this function will most 
likely be performed by compliance clerks. Data from the SIFMA Office 
Salaries Report suggest that costs for these positions are $67 per 
hour. 725,964 hours x $67 = $48,639,568.
    \863\ See supra note 618.
    \864\ 984 broker-dealers x 254 hours = 249,936 hours for broker-
dealers not preparing a relationship summary.
    \865\ 725,964 + 249,936 + 450 = 976,350 total aggregate hours.
    \866\ Consistent with our prior paperwork reduction analyses for 
rule 17a-4, we expect that performance of this function will most 
likely be performed by compliance clerks. Data from the SIFMA Office 
Salaries Report suggest that costs for these positions are $67 per 
hour. 976,650 hours x $67 = $65,415,430.
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2. Revised Annual Burden Estimates
    As noted above, the approved annual aggregate burden for rule 17a-4 
is currently 1,042,416 hours, with a total annual aggregate monetized 
cost burden of approximately $67.8 million, based on an estimate of 
4,104 broker-dealers and 150 broker-dealers maintaining an internal 
broker-dealer system. The revised annual aggregate hourly burden for 
rule 17a-4 would be 976,350 \867\ hours, represented by a monetized 
cost of approximately $65.4 million,\868\ based on an estimate of 2,857 
broker-dealers with the relationship summary obligation and 984 broker-
dealers without, as noted above. This represents a decrease of 66,516 
\869\ annual aggregate hours in the hour burden and an annual decrease 
of approximately $2.37 million from the currently approved total 
aggregate monetized cost for rule 17a-4.\870\ These changes are 
attributable to the proposed amendments to rule 17a-4 relating to the 
relationship summary as discussed in this proposing release and the 
decline in the number of registered broker-dealer respondents. The 
revised external cost to respondents is estimated at approximately 
$19.2 million, or a reduction of $1.3 million from the currently 
approved external cost burden of $20,520,000.\871\
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    \867\ See supra note 865.
    \868\ See supra note 739.
    \869\ 1,042,866 hours - 976,350 hours = 66,516 hours.
    \870\ $67,786,290 - $65,415,430 = $2,370,860.
    \871\ 3,841 registered broker-dealers as of December 31, 2017 x 
$5,000 per broker-dealer in record maintenance costs = $19,205,000. 
$20,520,000-$19,205,000 = $1,315,000.
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G. Rule 151-3 Under the Exchange Act

    Proposed new rule 151-3 would require broker-dealers and their 
associated natural persons to prominently disclose that it is, or in 
the case of a natural person that such person is associated with a 
broker-

[[Page 21528]]

dealer that is, registered with the Commission as a broker-dealer in 
print or electronic retail investor communications. For print 
communications, we propose to require that such registration status be 
displayed in a type size at least as large as and of a font style 
different from, but at least as prominent as, that used in the majority 
of the communication. In addition, such disclosure must be presented in 
the body of the communication and not in a footnote. For electronic 
communications, or in any publication by radio or television, we 
propose to require that such disclosure be presented in a manner 
reasonably calculated to draw retail investor attention to it.
    Rule 151-3 contains a collection of information requirement. This 
collection of information would be found at [17 CFR 240.15l-3] and 
would be mandatory. The likely respondents to this information 
collection would be all broker-dealers and their associated natural 
persons that distribute print or electronic retail investor 
communications.
    The Commission believes that the collection of information is 
necessary to provide retail investors and the Commission with 
information to better determine whether a communication is from a 
broker-dealer or investment adviser, and, for retail investors 
specifically, to allow them to better identify which type of firm is 
more appropriate for their specific investment needs. Additionally, by 
requiring an affirmative identification, retail investors would also be 
better informed whether a financial professional is an associated 
person of a broker-dealer rather than a supervised person of an 
investment adviser, allowing them to make a more informed choice as to 
which type of professional is appropriate for their financial goals.
1. Respondents: Broker-Dealers and Associated Natural Persons
    Currently, there are 3,841 registered broker-dealers and 435,071 
associated natural persons licensed with FINRA.\872\ Of these 
registered broker-dealers, we estimate that approximately 74% or 2,857 
distribute print or electronic retail investor communications \873\ 
while 435,071 associated natural persons distribute print or electronic 
retail investor communications at standalone broker-dealers or dually 
registered firms.\874\ Of these broker-dealers that distribute print or 
electronic retail investor communications, 1,388 are large broker-
dealers and 1,469 are small broker-dealers.\875\ Accordingly, the 
Commission estimates that 2,857 broker-dealers and 435,071 associated 
natural persons would be required to comply with proposed rule 15l-3. 
For the purposes of this analysis of the paperwork burden associated 
with the proposed rules, the Commission preliminarily estimates that 
there would be approximately 2,857 broker-dealer respondents and 
435,071 associated natural person respondents. \876\
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    \872\ The number of broker-dealers is as of Dec. 31, 2017. Such 
associated natural persons are registered as registered 
representatives with FINRA through Form U4 as of Dec. 31, 2017. We 
took the total 494,399 registered representatives across standalone 
broker-dealers, dually registered firms, and standalone investment 
advisers and isolated those registered representatives that act on 
behalf of standalone broker-dealers and dually registered firms 
(i.e. 88%). See supra Section IV.A.1.e, Economic Analysis: 
Registered Representatives of Broker-Dealers, Investment Advisers 
and Dually Registered Firms.
    \873\ See Section IV.A, supra note 460 and accompanying text. As 
noted above, as of December 2017, 3,841 broker-dealers filed Form 
BD. Retail sales by broker-dealers were obtained from Form BR.
    \874\ See supra Section IV.A.1.e, at Table 5. For the purposes 
of the Paperwork Reduction Act analysis applicable to proposed rules 
15l-3 and 211h-1, we are defining a ``dually registered firm'' in 
the same manner as ``dual registrant'' is defined in the baseline of 
the Economic Analysis. See supra Section IV, note 453.
    We assume for the purposes of this rule that all 435,071 
registered representatives engage retail investors. This estimate is 
based on the following calculation: (494,399 total licensed 
registered representatives) x (12% (the percentage of pure 
investment adviser representatives)) = 59,328 representatives at 
standalone investment advisers. Then, to isolate the number of 
representatives at standalone broker-dealers and dually registered 
firms, subtract 59,328 from 494,399 = 435,071 retail-facing, 
licensed registered representatives at standalone broker-dealers or 
dually registered firms.
    \875\ For the purposes of this proposed rule, we define large 
broker-dealers as those with total assets greater than 1 million and 
small broker-dealers as those with less than 1 million in total 
assets. See Table 1, Panel B supra Section IV.A.1.a. We note that 
this distinction differs from the distinction used for proposed rule 
211h-1 below because historically we have used the number of 
employees rather than total assets to distinguish small and large 
investment advisers. See cf. Rules Implementing Amendments to the 
Investment Advisers Act of 1940, Investment Advisers Act Release No. 
3221 (Jun. 22, 2011), at n.727 (``Release 3221''). Additionally, we 
believe that because broker-dealer services encompass a small set of 
large broker-dealers and thousands of smaller broker-dealers 
competing for niche or regional segments of the market, the number 
of employees would not provide the best estimate for how firms would 
be impacted by our proposed rule based on the number of 
communications produced. Instead, we believe that total assets 
properly account for the varying sizes of these smaller broker-
dealers and are a better indicator as to how many communications 
would be impacted in proportion to a firm's size. More specifically, 
we assume that the greater the total assets, the larger the firm and 
associated number of customer accounts which in turn would lead to a 
greater number of communications with retail investors.
    \876\ We note that we are not analyzing new broker-dealers or 
associated natural persons because there has been a downward trend 
in broker-dealer registration and the number of associated natural 
persons has not shown signs of a noticeable increase over the past 
few years. From 2016 through 2018 the number of broker-dealers 
registered with the Commission decreased by 160. (4064 - 3904) = 
160. See also FINRA Statistics, available at https://www.finra.org/newsroom/statistics#reps.
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2. Initial and Annual Burdens
    We estimate that the initial one time burden for complying with the 
disclosure requirements would be 72 hours per large broker-dealer \877\ 
and 15 hours per small broker-dealer.\878\ We note that we are staging 
the compliance date to ensure that firms can phase out certain older 
communications from circulation through the regular business lifecycle 
rather than having to retroactively change them.\879\ As a result of 
this staged compliance, our burden estimates do not reflect the burdens 
that would have been imposed had these firms had to replace all 
outstanding communications.
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    \877\ (8 hours for print communications per large broker-dealer 
+ 64 hours for electronic communications per large broker-dealer).
    \878\ (5 hours for print communications per small broker-dealer 
+ 10 hours for electronic communications per small broker-dealer).
    \879\ Similarly, we are not requiring firms to send new 
communications to replace all older print communications as this 
would be overly burdensome and costly for firms.
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    Aside from certain anticipated outside legal costs, as discussed 
below, we preliminary estimate that to comply with our proposed rule 
with respect to print communications,\880\ broker-dealers would need to 
review their communications, identify which would need to be amended, 
make the changes, and verify that all firm communications comply with 
the rule's requirements including its technical specifications such as 
the type size, font, and prominence. Therefore, for existing print 
communications for large broker-dealers, we preliminarily estimate that 
the total burden for broker-dealers would be 8 hours for compliance and 
business operations personnel to review, identify, and make changes 
across all print communications.\881\ For

[[Page 21529]]

smaller broker-dealers, we preliminarily estimate that the total burden 
for broker-dealers would be 5 hours for compliance and business 
operations personnel to review, identify, and make changes across all 
print communications.\882\ We note that there is a difference between 
large broker-dealers and smaller broker-dealers. We assume that large 
broker-dealers will have to review, identify and change more print 
communications and in turn have their compliance staff verify more 
print communications as being compliant with our proposed rule as 
compared to small broker-dealers which will have fewer print 
communications.
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    \880\ Such communications could include business cards, 
letterheads, newspaper advertisements, and article reprints from an 
unaffiliated magazine or newspaper.
    \881\ This estimate is based upon staff experience and industry 
sources more generally. See e.g., Self-Regulatory Organizations; 
Financial Industry Regulatory Authority, Inc.; Notice of Filing of a 
Proposed Rule Change to Amend FINRA Rule 2210, Exchange Act Release 
No. 34-75377 (Jul. 7, 2015), at Economic Impact Assessment (``FINRA 
2015-22 Notice'') (stating with reference to adding BrokerCheck 
links to mid-size and smaller firm communications, which we believe 
is analogous to the manual changes made to print communications, 
that ``mid-size and small members typically have less complex 
websites, which they manage and maintain with nontechnical staff. 
These members would use personnel in non-technical roles to 
accomplish the required updates to their websites . . . [I]t would 
take mid-size or small members approximately eight hours of non-
technical staffs' time to make the required updates . . .'').
    To compute the 8 hours internal initial burden we assume 2 hours 
by compliance personnel and 6 hours by business operations personnel 
of the broker-dealer.
    \882\ This estimate is based upon staff experience and industry 
sources more generally. See e.g., FINRA 2015-22 Notice, supra note 
881. To compute the 5 hours internal initial burden we assume 1 hour 
by compliance personnel and 4 hours by business operations personnel 
of the broker-dealer.
---------------------------------------------------------------------------

    With respect to electronic communications,\883\ we preliminarily 
anticipate that it would take large broker-dealers approximately 64 
hours \884\ to review, identify and make the required updates coupled 
with verifying that such communications (present and future) would be 
compliant with the proposed rule. Our estimates take into account that 
larger firms likely have full-featured websites that generate other 
webpages based on complex system code and logic.\885\ In order to make 
changes to comply with our proposed rule, we assume that business 
operations and information technology personnel would likely be 
required to update the underlying code and logic to automate the 
implementation of the required language to populate across all 
associated electronic media. Additionally, we assume that these teams 
would need to test to ensure that such changes were implemented 
correctly.
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    \883\ We believe such communications could include websites, 
smart phone apps, social media, emails, and blogs.
    \884\ This estimate is based upon staff experience and industry 
sources more generally. See e.g., FINRA 2015-22 Notice, supra note 
881. (``These estimates are based on FINRA's assumption that large 
members typically have full-featured websites that dynamically 
generate webpages based on data and logic. The technology personnel 
at these members would be required to update the underlying 
information in order to automate the implementation of references 
and hyperlinks to BrokerCheck across all applicable webpages. FINRA 
estimates that on average it would take large members approximately 
60 hours of technology staffs' time to make the required updates . . 
.''). To compute the 64 hours internal initial burden we assume 4 
hours by compliance personnel and 60 hours by business operations 
and information technology personnel of the broker-dealer.
    \885\ This is based upon staff experience and industry sources 
more generally. See e.g., FINRA 2015-22 Notice, supra note 
(discussing the burdens associated with the inclusion of a 
BrokerCheck reference and hyperlink across all firm communications 
for certain firms).
---------------------------------------------------------------------------

    With respect to smaller broker-dealers, we preliminarily anticipate 
that it would take approximately 10 hours \886\ to review, identify and 
make the required updates coupled with verifying that such 
communications (present and future) would be compliant with the 
proposed rule. Our estimate for smaller broker-dealers assumes that 
smaller broker-dealers have fewer electronic communications that would 
be subject to our proposed rule as compared to larger firms, resulting 
in a lower burden preliminary estimate.
---------------------------------------------------------------------------

    \886\ This estimate is based upon staff experience and industry 
sources more generally. See e.g., FINRA 2015-22 Notice, supra note 
881 (stating with reference to adding BrokerCheck links to firm 
communications that ``mid-size and small members typically have less 
complex websites, which they manage and maintain with nontechnical 
staff. These members would use personnel in non-technical roles to 
accomplish the required updates to their websites . . . [I]t would 
take mid-size or small members approximately eight hours of non-
technical staffs' time to make the required updates . . .'').
    To compute the 10 hours internal initial burden, we assume 2 
hours by compliance personnel and 8 hours by business operations and 
information technology personnel of the broker-dealer.
---------------------------------------------------------------------------

    We preliminarily estimate that the total initial burden for broker-
dealers is 121,971 hours.\887\ We preliminarily estimate a cost of 
approximately $33,179,514 for broker-dealers.\888\ This would be an 
annual average burden of 43 hours per broker-dealer \889\ (as 
monetized, is an average annual burden per broker-dealer of 
$11,613).\890\
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    \887\ (8 hours for print communications per large broker-dealer 
+ 64 hours for electronic communications per large broker-dealers) = 
72 hours per large broker-dealer. (72 hours x 1,388 large broker-
dealers) = 99,936 total initial burden for large broker-dealers.
    (5 hours for print communications per small broker-dealer + 10 
hours for electronic communications per small broker-dealer) = 15 
hours per small broker-dealer. (15 hours x 1,469 small broker-
dealers) = 22,035 total initial burden for small broker-dealers.
    (99,936 total initial burden large broker-dealers + 22,035 total 
initial burden small broker-dealers) = 121,971 total broker-dealer 
initial burden.
    \888\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270. 
The average technology and business rate is ($268 business rate + 
$270 technology rate)/2 = $269 average rate.
    This figure was calculated as follows: (6 compliance hours x 
$298 compliance rate) + (66 technology/business hours x $269 
averaged technology/business rate) x 1,388 large broker-dealers = 
$27,124,296 total initial costs for large broker-dealers.
    (3 compliance hours x $298 compliance rate) + (12 technology/
business hours x $269 averaged technology/business rate) x 1,469 
small broker-dealers = $6,055,218 total initial costs for small 
broker-dealers.
    $27,124,296 total initial cost for large broker-dealers + 
$6,055,218 total initial cost for small broker-dealers = $33,179,514 
total initial costs for all broker-dealers.
    \889\ (8 hours for print communications per large broker-dealer 
+ 64 hours for electronic communications per large broker-dealers) = 
72 hours per large broker-dealer. (72 hours x 1,388 large broker-
dealers) = 99,936 total initial burden for large broker-dealers.
    (5 hours for print communications per small broker-dealer + 10 
hours for electronic communications per small broker-dealer) = 15 
hours per small broker-dealer. (15 hours x 1,469 small broker-
dealers) = 22,035 total initial burden for small broker-dealers.
    99,936 total initial burden large broker-dealers + 22,035 total 
initial burden small broker-dealers = 121,971 total broker-dealer 
initial burden/2,857 total broker-dealers = 43 total initial burden 
per broker-dealer.
    \890\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270. 
The average technology and business rate is ($268 business rate + 
$270 technology rate)/2 = $269 average rate.
     This figure was calculated as follows: (6 compliance hours x 
$298 compliance rate) + (66 technology/business hours x $269 
averaged technology/business rate) x 1,388 large broker-dealers = 
$27,124,296 total initial costs for large broker-dealers.
    (3 compliance hours x $298 compliance rate) + (12 technology/
business hours x $269 averaged technology/business rate) x 1,469 
small broker-dealers = $6,055,218 total initial costs for small 
broker-dealers.
    $27,124,296 total initial cost for large broker-dealers + 
$6,055,218 total initial cost for small broker-dealers = $33,179,514 
total initial costs for all broker-dealers/2,857 total number of 
broker-dealers = $11,613 total initial cost per broker-dealer.
---------------------------------------------------------------------------

    We further preliminarily anticipate that associated natural persons 
would have an initial one-time burden of 0.5 hours for each associated 
natural person respondent to review, identify, and make changes to 
their individual communications, both print and electronic.\891\ Based 
on staff experience,

[[Page 21530]]

we anticipate that many firms will make many communication changes for 
their associated natural persons, including their business cards and 
letterheads, leaving only certain responsibilities to the individual 
such as changes to their individual social media profile(s) and email 
signatures. Therefore, we preliminarily estimate that the total initial 
one-time burden for associated natural persons is 217,536 hours.\892\ 
We preliminarily estimate a monetized cost of approximately 
$31,107,576.50 for associated natural persons.\893\ This would be an 
annual average burden of 0.5 hours per associated natural person \894\ 
(as monetized, is an average annual burden per associated natural 
person of $71.50).\895\
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    \891\ This estimate is based upon staff experience. See e.g., 
Custody of Funds or Securities of Clients by Investment Advisers, 
Investment Advisers Act Release No. 2968 (Dec. 30, 2009) (``Release 
2968'') (``We further estimate that the adviser will spend 10 
minutes per client drafting and sending the notice.''); Enhanced 
Mutual Fund Disclosure Adopting Release, supra note 47 (``we 
estimate, as we did in the proposing release, that rule 498 will 
impose a \1/2\ hour burden per portfolio annually associated with 
the compilation of the additional information required on a cover 
page or at the beginning of the Summary Prospectus. Rule 498 also 
imposes annual hour burdens associated with the posting of a fund's 
Summary Prospectus, statutory prospectus, SAI, and most recent 
report to shareholders on an Internet website. We estimate that the 
average hour burden for one portfolio to comply with the Internet 
website posting requirements will be approximately one hour 
annually.'').
    \892\ (0.5 hours x 435,071 associated natural persons) = 217,536 
total initial burden for associated natural persons.
    \893\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per associated natural person.
     (0.5 x $143 total cost per associated natural person x 435,071 
associated natural persons) = $31,107,576.50 total initial cost for 
associated natural persons.
    \894\ (0.5 hours x 435,071 associated natural persons) = 217,536 
total initial burden for associated natural persons.
    (217,536 total initial burden/435,071 total associated natural 
persons) = 0.5 total initial burden per associated natural person.
    \895\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per associated natural person.
     (0.5 x $143 total cost per associated natural person x 435,071 
associated natural persons) = $31,107,576.50 total initial cost for 
associated natural persons.
    ($31,107,576.50 total initial cost for associated natural 
persons/435,071 total number of associated natural persons) = $71.50 
total initial cost per associated natural person.
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    Aside from the internal initial burden, we anticipate that there 
will be certain associated outside costs as well. We believe that 
broker-dealers and their associated natural persons may engage outside 
counsel to assist them in understanding our proposed rule should it be 
adopted.\896\ We assume that the amount of outsourced legal assistance 
would vary among various sizes of broker-dealers and their number of 
associated natural persons. As a result, we preliminarily estimate that 
large broker-dealers together with their associated natural persons may 
initially outsource approximately 8 hours of legal time in order to 
understand the implications of our proposed rule, including which 
communications are subject to the proposed rule and how best to comply 
with the technical specifications.\897\ For small broker-dealers, we 
anticipate that such firms will outsource 4 hours of legal time.\898\ 
Our preliminary estimates take into account that large firms have more 
communications affected by our proposed rule and more associated 
natural persons to supervise than smaller firms. We estimate initial 
outside legal costs associated with the proposed rule of $8,014,560 for 
broker-dealers \899\ or $2,805 per broker-dealer.\900\
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    \896\ We are assuming that associated natural persons would not 
independently seek outside counsel and would instead rely on the 
advice received from outside counsel to the firm. Therefore, we are 
not including a separate estimate for associated natural persons.
    \897\ This estimate is based upon staff experience. See e.g. 
Disclosure of Order Handling Information Proposed Rule, Securities 
Exchange Act Release No. 34-78309 (July 13, 2016) (``Release 34-
78309'') (estimating 4 hours for legal burden ``to assign each order 
routing strategy for institutional orders into passive, neutral, and 
aggressive categories and establish and document its specific 
methodologies for assigning order routing strategies as required by 
Rule 606(b)(3)(v)''); Regulation of NMS Stock Alternative Trading 
Systems Proposed Rule, Securities Exchange Act Release No. 34-76474 
(Nov. 18, 2015) (``Release 34-76474'') (estimating 7 legal hours 
``to put in writing its safeguards and procedures to protect 
subscribers' confidential trading information and the oversight 
procedures to ensure such safeguards and procedures are followed . . 
.'').
    \898\ This estimate is based upon staff experience. See supra 
note 897.
    \899\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for legal services is $472/hour.
    ($472 x 8 legal hours = $3,776 x 1,388 large broker-dealers = 
$5,241,088) + ($472 x 4 legal hours = $1,888 x 1,469 small broker-
dealers = $2,773,472).
    ($5,241,088 large broker-dealers + $2,773,472 small broker-
dealers) = $8,014,560 total cost.
    \900\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for legal services is $472/hour.
    ($472 x 8 legal hours = $3,776 x 1,388 large broker-dealers = 
$5,241,088) + ($472 x 4 legal hours = $1,888 x 1,469 small broker-
dealers = $2,773,472).
    $5,241,088 large broker-dealers + $2,773,472 small broker-
dealers = $8,014,560 total cost/2,857 broker-dealers = $2,805 total 
cost per broker-dealer.
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    Additionally, we anticipate that firms will also have one-time 
outside cost associated with the cost of printing new communications 
including new business cards, envelopes, pitch books, and letterheads. 
As part of these costs, we anticipate that both large and small broker-
dealers will have to work with printers to set the disclosure on, for 
example, business cards. We estimate initial costs to amend certain 
communications associated with the proposed rule of $617,848,307 for 
broker-dealers \901\ (or $216,258 per broker-dealer).\902\ We assume 
that because small broker-dealers have fewer associated natural persons 
there will be less communications that will require printing.
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    \901\ Our estimates are based on staff experience and industry 
sources. In particular, staff factored in its cost estimate the 
costs associated with printing envelopes, pitch books, letterheads, 
and business cards. For large broker-dealers, the staff assumes a 
printing cost of $445,121. For small broker-dealers, the staff 
assumes a printing cost of $20,359.
    ($445,121 x 1,388 large broker-dealers = $617,827,948) + 
($20,359 x 1,469 small broker-dealers = $29,907,371) = $617,848,307 
total broker-dealer outside costs.
    \902\ ($445,121 x 1,388 large broker-dealers = $617,827,948) + 
($20,359 x 1,469 small broker-dealers = $29,907,371) = $617,848,307 
total broker-dealer outside costs/2,857 broker-dealers = $216,258 
total cost per broker-dealer.
---------------------------------------------------------------------------

    For the ongoing burden of new communications for broker-dealers, we 
preliminarily estimate that the burden for legal, compliance, business 
operations, and technology services for adding a registration status 
statement would be 0.5 hours annual hours per broker-dealer.\903\ We 
anticipate that broker-dealers will need to add the registration 
disclosure to each new communication which they create, however we 
anticipate the burdens associated with this task to be minimal and 
therefore we do not believe there is a material difference between 
large and small broker-dealers.\904\ We

[[Page 21531]]

preliminarily estimate that the total ongoing annual aggregate burden 
for broker-dealers is 1,429 hours.\905\ We preliminarily estimate a 
total ongoing monetized cost of approximately $204,275.50 for broker-
dealers.\906\ This would be an annual average burden of 0.5 hours per 
broker-dealer \907\ (as monetized, is an average annual burden per 
broker-dealer of $71.50).\908\
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    \903\ This estimate is based upon staff experience. See e.g., 
Release 2968, supra note 891; Enhanced Mutual Fund Disclosure 
Adopting Release, supra note 47.
    In this estimate we are not calculating the print and 
technological associated burdens of updating communications which we 
analyzed earlier as we are assuming those burdens to be a one-time 
initial burden for a firm seeking compliance with the proposed rule.
    \904\ Our assumption of no material difference between large and 
small rests on the fact that all major systems changes would already 
have been implemented as part of the initial one-time burden. 
Therefore, any new electronic communications would have the 
disclosure statement required by our proposed rule built in at the 
outset which should take minimal time rather than having to 
retroactively insert it into the systems logic which is a more 
onerous task. We note that such communications will need to be 
reviewed by compliance staff for compliance with applicable 
securities laws and associated self-regulatory agency rules, 
including FINRA Rule 2210. We anticipate that compliance with 
proposed rule 151-3's requirements will be reviewed as part of this 
larger compliance check.
    \905\ (0.5 hours x 2,857 broker-dealers) = 1,429 total ongoing 
burden for broker-dealers.
    \906\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per broker-dealer.
     (0.5 hours x $143 total cost per broker-dealer x 2,857 broker-
dealers) = $204,275.50 total ongoing cost for broker-dealers.
    \907\ (0.5 hours x 2,857 broker-dealers) = 1,429 total ongoing 
burden for broker-dealers.
    (1,429 total ongoing burden for broker-dealers/2,857 total 
broker-dealers) = 0.5 total initial burden per broker-dealer.
    \908\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per broker-dealer.
     (0.5 hours x $143 total cost per broker-dealer x 2,857 broker-
dealers) = $204,275.50 total ongoing cost for broker-dealers/2,857 
total number of broker-dealers = $71.50 total ongoing cost per 
broker-dealer.
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    For the ongoing burden of new communications for associated natural 
persons of a broker-dealer, we preliminarily estimate that the burden 
for compliance, business operations, and technology services for adding 
a registration status statement would be 0.5 hours.\909\ Therefore, we 
preliminarily estimate that the total ongoing annual aggregate burden 
for associated natural persons is 217,536 hours.\910\ We preliminarily 
estimate a total ongoing monetized cost of approximately $31,107,576.50 
for associated natural persons.\911\ This would be an ongoing annual 
average burden of 0.5 hours per associated natural person \912\ (as 
monetized, is an average ongoing annual burden per associated natural 
person of $71.50).\913\
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    \909\ This estimate is based upon staff experience. See e.g., 
Release 2968, supra note 891; Enhanced Mutual Fund Disclosure 
Adopting Release, supra note 47.
    In this estimate we are not calculating the print and 
technological associated burdens of updating communications which we 
analyzed earlier as we are assuming those burdens to be a one-time 
initial burden for an associated natural person of a broker-dealer 
seeking compliance with the proposed rule.
    \910\ (0.5 hours x 435,071 associated natural persons) = 217,536 
total ongoing burden for associated natural persons.
    \911\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per associated natural person.
     (0.5 hours x $143 total cost per associated natural person x 
435,071 associated natural person) = $31,107,576.50 total ongoing 
cost for associated natural persons.
    \912\ (0.5 hours x 435,071 associated natural persons) = 217,536 
total ongoing annual burden for associated natural persons.
    (217,536 total ongoing burden/435,071 total associated natural 
persons) = 0.5 total ongoing annual burden per associated natural 
person.
    \913\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per associated natural person.
     (0.5 hours x $143 total cost per associated natural person x 
435,071 associated natural person) = $31,107,576.50 total ongoing 
cost for associated natural persons/435,071 total number of 
associated natural persons) = $71.50 total ongoing annual cost per 
associated natural person.
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H. Rule 211h-1 Under the Advisers Act

    Proposed rule 211h-1 would require investment advisers registered 
under section 203 and their supervised persons to prominently disclose 
that it is, or in the case of supervised persons that such persons are 
supervised by an investment adviser that is, registered with the 
Commission as an investment adviser in print or electronic retail 
investor communications. For print communications, we propose to 
require that such registration status be displayed in a type size at 
least as large as and of a font style different from, but at least as 
prominent as, that used in the majority of the communication. In 
addition, such disclosure must be presented in the body of the 
communication and not in a footnote. For electronic communications, or 
in any publication by radio or television, we propose to require that 
such disclosure be presented in a manner reasonably calculated to draw 
retail investor attention to it. This collection of information would 
be found at [17 CFR 240.15l-3] and would be mandatory. The likely 
respondents to this information collection would be all investment 
advisers and their supervised persons that distribute print or 
electronic retail investor communications.
    The Commission believes that the collection of information is 
necessary to provide retail investors and the Commission with 
information to better determine whether a communication is from a 
broker-dealer or investment adviser, and, for retail investors 
specifically, to allow them to better identify which type of firm is 
more appropriate for their specific investment needs. Additionally, by 
requiring an affirmative identification, retail investors would also be 
better informed whether a financial professional is a supervised person 
of an investment adviser rather than an associated person of a broker-
dealer. For similar reasons, we believe that because retail investors 
interact with a firm primarily through financial professionals, it is 
important that financial professionals disclose the firm type with 
which they are associated.
1. Respondents: Investment Advisers and Supervised Persons
    Currently, there are 12,721 registered investment advisers and 
approximately 942,215 supervised persons.\914\ Of these, 7,625 
investment advisers distribute print or electronic retail investor

[[Page 21532]]

communications while 245,408 supervised persons distribute print or 
electronic retail investor communications at standalone investment 
advisers or dually registered firms.\915\ Additionally, of these 
investment advisers 2,738 are large advisers and 4,887 are small 
advisers.\916\ Accordingly, the Commission estimates that 7,625 
investment advisers and 245,408 supervised persons would be required to 
comply with proposed rule 211h-1. There are also 477 new SEC registered 
investment advisers per year on average and 3,000 new supervised 
persons per year.\917\
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    \914\ The investment adviser and supervised person numbers are 
as of December 31, 2017. See supra Section IV.A.1.b, at Table 3, 
Panel A. We note that our estimate of supervised persons is based on 
those supervised persons identified in the baseline in the Economic 
Analysis. See Section IV.A.1.e, at Table 6.
    \915\ We estimate the number of supervised persons who 
distribute print or electronic retail investor communications using 
several data points. First, we analyzed those supervised persons who 
only hold a series 65 at a dual registrant or an investment adviser 
firm, totaling 27,879. Next we analyzed those supervised persons at 
dual registrants or investment advisers holding a combination of 
either a series 6 and 65 or a series 7 and 65, totaling 15,381 and 
172,304 respectively. Finally, we analyzed those supervised persons 
at dual registrants or investment advisers holding a series 6, 7, 
and 65, totaling 29,944. (27,879 + 15,281 + 172,304 + 29,944) = 
245,408 total supervised persons who engage retail investors through 
print or electronic communications. We note that our estimate does 
not reflect supervised persons who hold various designations (e.g. 
Chartered Financial Analyst) in lieu of the licenses we used to 
identify supervised persons of investment advisers who distribute 
print or electronic retail investor communications. Finally, our 
estimate does not employ rounding as compared to Table 6 in the 
Economic Analysis Baseline. See Table 6: Number of Employees at 
Retail Facing Firms who are Registered Representatives, Investment 
Adviser Representatives, or Both, Section I.V.A.1.e. These numbers 
are as of December 31, 2017.
    \916\ For purposes of this estimate, we categorize small 
advisers as advisers with 10 or fewer employees and large advisers 
as those with 10 or more employees. See cf. Release 3221, supra note 
875, at n.727.
    \917\ The number of new investment advisers is calculated by 
looking at the number of new advisers in 2016 and 2017 and then 
isolating the number each year that services retail investors. (455 
for 2016 + 499 for 2017)/2) = 477.
     The number of new supervised persons is calculated by looking 
at the difference in the number of supervised persons in 2017 as 
compared to 2016 at firms which service retail investors.
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2. Initial and Annual Burdens
    We estimate that the initial one-time burden for complying with the 
disclosure requirements would be 72 hours per large investment adviser 
\918\ and 15 hours per small investment adviser.\919\ We note that we 
are staging the compliance date to ensure that firms can phase out 
certain older communications from circulation through the regular 
business lifecycle rather than having to retroactively change 
them.\920\ As a result of this staged compliance, our burden estimates 
do not reflect the burdens that would have been imposed had these firms 
had to replace all outstanding communications.
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    \918\ (8 hours for print communications per broker-dealer + 64 
hours for electronic communications per broker-dealer).
    \919\ (5 hours for print communications per broker-dealer + 10 
hours for electronic communications per broker-dealer).
    \920\ Similarly, we are not requiring firms to send new 
communications to replace all older print communications as this 
would be overly burdensome and costly for firms.
---------------------------------------------------------------------------

    Aside from certain anticipated outside legal costs, as discussed 
below, we preliminary estimate that to comply with our proposed rule 
with respect to print communications,\921\ investment advisers would 
need to review their communications, identify which would need to be 
amended, make the changes, and verify that all firm communications 
comply with the rule's requirements including its technical 
specifications such as the type size, font, and prominence. Our 
preliminary estimates differ for large and small investment advisers. 
We drew these distinctions because we assume that the larger an adviser 
is the more communications it would need to review, identify and change 
and in turn have its compliance staff verify that such communications 
are compliant with our proposed rule.
---------------------------------------------------------------------------

    \921\ Such communications could include business cards, 
letterheads, newspaper advertisements, and article reprints from an 
unaffiliated magazines or newspaper.
---------------------------------------------------------------------------

    For existing print communications for large investment advisers we 
preliminarily estimate that the total burden for investment advisers 
would be 8 hours for compliance and business operations personnel to 
review, identify, and make changes across all print 
communications.\922\ For small investment advisers, we preliminarily 
estimate that the total burden for investment advisers would be 5 hours 
for compliance and business operations personnel to review, identify, 
and make changes across all print communications.\923\
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    \922\ This estimate is based upon staff experience and industry 
sources more generally. See e.g., FINRA 2015-22 Notice, supra note 
881.
    To compute the 8 hours internal initial burden we assume 2 hours 
by compliance personnel and 6 hours by business operations personnel 
of the broker-dealer.
    \923\ This estimate is based upon staff experience and industry 
materials more generally. See e.g., FINRA 2015-22 Notice, supra note 
881. To compute the 5 hours internal initial burden we assume 1 hour 
by compliance personnel and 4 hours by business operations personnel 
of the investment adviser.
---------------------------------------------------------------------------

    With respect to electronic communications \924\ we preliminarily 
anticipate that it would take large investment advisers approximately 
64 hours \925\ to review, identify and make the required updates 
coupled with verifying that such communications (present and future) 
would be compliant with the proposed rule. Our estimates take into 
account that larger firms likely have full-featured websites that 
generate other webpages based on complex system code and logic.\926\ In 
order to make changes to comply with our proposed rule, we assume that 
business operations and information technology personnel would likely 
be required to update the underlying code and logic to automate the 
implementation of the required language to populate across all 
associated electronic media. Additionally, we assume that these teams 
would need to test to ensure that such changes were implemented 
correctly.
---------------------------------------------------------------------------

    \924\ We believe such communications could include websites, 
smart phone apps, social media, emails, and blogs.
    \925\ This estimate is based upon staff experience and industry 
materials more generally. See e.g., FINRA 2015-22 Notice, supra note 
881. To compute the 64 hours internal initial burden we assume 4 
hours by compliance personnel and 60 hours by business operations 
and information technology personnel of the investment adviser.
    \926\ This is based upon staff experience and industry materials 
more generally. See e.g., FINRA 2015-22 Notice, supra note 881 
(discussing the burdens associated with the inclusion of a 
BrokerCheck reference and hyperlink across all firm communications 
for certain firms).
---------------------------------------------------------------------------

    With respect to small investment advisers, we preliminarily 
anticipate that it would take approximately 10 hours \927\ to review, 
identify and make the required updates coupled with verifying that such 
communications (present and future) would be compliant with the 
proposed rule. Our estimate for small investment advisers assumes that 
small investment advisers have fewer electronic communications that 
would be subject to our proposed rule as compared to larger firms, 
resulting in a lower burden preliminary estimate.
---------------------------------------------------------------------------

    \927\ This estimate is based upon staff experience and industry 
materials more generally. See e.g., FINRA 2015-22 Notice, supra note 
881.
    To compute the 10 hours internal initial burden, we assume 2 
hours by compliance personnel and 8 hours by business operations and 
information technology personnel of the investment adviser.
---------------------------------------------------------------------------

    We preliminarily estimate that the total initial burden for 
investment advisers is 270,441 hours.\928\ We

[[Page 21533]]

preliminarily estimate a cost of approximately $73,650,210 for 
investment advisers.\929\ This would be an annual average burden of 35 
hours per investment adviser \930\ (as monetized, an annual average 
cost of $9,659 per investment adviser).\931\
---------------------------------------------------------------------------

    \928\ (8 hours for print communications per large investment 
adviser + 64 hours for electronic communications per large 
investment adviser) = 72 hours per large investment adviser.
    (72 hours x 2,738 large investment advisers) = 197,136 total 
initial burden for large investment advisers.
    (5 hours for print communications per small investment adviser + 
10 hours for electronic communications per small investment adviser) 
= 15 hours per small investment adviser. (15 hours x 4887 small 
investment advisers) = 73,305 total initial burden for small 
investment advisers.
    (197,136 total burden large investment advisers + 73,305 total 
burden small investment advisers) = 270,441 hours.
    \929\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services in the securities industry is 
$298, for business services is $268, and for technology services is 
$270. The average technology and business rate is ($270 technology 
rate + $268 business rate)/2 = $269 average rate.
     This figure was calculated as follows: (6 compliance hours x 
$298 compliance rate) + (66 technology/business hours x $269 
averaged technology/business rate) x 2,738 large investment advisers 
= $53,505,996 total initial costs for large investment advisers.
    (3 compliance hours x $298 compliance rate) + (12 technology/
business hours x $269 averaged technology/business rate) x 4,887 
small investment advisers = $20,144,214 total initial costs for 
small investment advisers.
    ($53,505,996 total initial costs for large investment advisers + 
$20,144,214 total initial costs for small investment advisers) = 
$73,650,210 total initial costs for investment advisers.
    \930\ (8 hours for print communications per large investment 
adviser + 64 hours for electronic communications per large 
investment adviser) = 72 hours per large investment adviser.
    (72 hours x 2,738 large investment advisers) = 197,136 total 
initial burden for large investment advisers.
    (5 hours for print communications per small investment advisers 
+ 10 hours for electronic communications per small investment 
adviser) = 15 hours per small investment adviser. (15 hours x 4887 
small investment advisers) = 73,305 total initial burden for small 
investment advisers.
    197,136 total burden large investment advisers + 73,305 total 
burden small investment advisers = 270,441 hours/7,625 total 
investment advisers = 35 hours average initial burden per investment 
adviser.
    \931\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270. 
The average technology and business rate is ($268 business rate + 
$270 technology rate)/2 = $269 average rate.
     This figure was calculated as follows: (6 compliance hours x 
$298 compliance rate) + (66 technology/business hours x $269 
averaged technology/business rate) x 2,738 large investment advisers 
= $53,505,996 total initial costs for large investment advisers.
     (3 compliance hours x $298 compliance rate) + (12 technology/
business hours x $269 averaged technology/business rate) x 4,887 
small investment advisers = $20,144,214 total initial costs for 
small investment advisers.
    $53,505,996 total initial cost large investment advisers + 
$20,144,214 total initial costs small investment advisers = 
$73,650,210 total initial cost investment advisers/7,625 total 
number of investment advisers = $9,659 average initial cost per 
investment adviser.
---------------------------------------------------------------------------

    We further preliminarily anticipate that supervised persons would 
have an initial burden of 0.5 hours for each supervised person 
respondent to review, identify, and make changes to their individual 
communications, both print and electronic.\932\ Based on staff 
experience, we anticipate that many firms will make many communication 
changes for their supervised persons, including their business cards 
and letterheads, leaving only certain responsibilities to the 
individual such as changes to their individual social media profile(s) 
and email signatures. Therefore, we preliminarily estimate that the 
total initial one-time burden for supervised persons is 122,704 
hours.\933\ We preliminarily estimate a monetized cost of approximately 
$17,546,672 for supervised persons.\934\ This would be an annual 
average burden of 0.5 hours per supervised person \935\ (as monetized, 
is an annual average cost of $71.50 per supervised person).\936\
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    \932\ This estimate is based upon staff experience. See e.g., 
Release 2968, supra note 891; Enhanced Mutual Fund Disclosure 
Adopting Release, supra note 47.
    \933\ (0.5 hours x 245,408 supervised persons) = 122,704 total 
initial burden for supervised persons.
    \934\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per supervised person.
     (0.5 hours x $143 total cost per supervised person x 245,408 
supervised persons) = $17,546,672 total initial cost for supervised 
persons.
    \935\ (0.5 hours x 245,408 supervised persons) = 122,704 total 
initial burden for supervised persons.
    (122,704 total initial burden for supervised persons/245,408 
total supervised persons) = 0.5 hours average initial burden per 
investment adviser.
    \936\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per supervised person.
     (0.5 hours x $143 total cost per supervised person x 245,408 
supervised persons) = $17,546,672 total initial cost for supervised 
persons/245,408 total number of supervised persons) = $71.50 average 
initial cost per supervised person.
---------------------------------------------------------------------------

    Aside from the internal initial burden, we anticipate that there 
would be certain associated outside costs as well. We believe that 
investment advisers and their supervised persons may engage outside 
counsel to assist them in understanding our proposed rule should it be 
adopted.\937\ We assume that the amount of outsourced legal assistance 
would vary among various sizes of investment advisers and their number 
of supervised persons. As a result, we preliminarily estimate that 
large investment advisers together with their supervised persons may 
initially outsource approximately 8 hours of legal time in order to 
understand the implications of our proposed rule and how best to comply 
with the technical specifications.\938\ For small investment advisers, 
we anticipate that such firms will outsource 4 hours of legal 
time.\939\ The hour differences in our preliminary estimates take into 
account that larger firms have more communications affected by our 
proposed rule and more supervised persons to supervise than small 
firms. We estimate initial outside legal costs associated with the 
proposed rule of $19,565,344 for investment advisers \940\ (or $2,566 
on average per investment adviser.) \941\
---------------------------------------------------------------------------

    \937\ We are assuming that supervised persons would not 
independently seek outside counsel and would instead rely on the 
advice received from outside counsel to the firm. Therefore, we are 
not including a separate estimate for supervised persons.
    \938\ This estimate is based upon staff experience. See e.g., 
Release 34-78309, supra note 897; Release 34-76474, supra note 897.
    \939\ This estimate is based upon staff experience. See supra 
note 938.
    \940\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for legal services is $472/hour.
    ($472 x 8 legal hours) = $3,776 x 2,738 large investment 
advisers = $10,338,688.
    ($472 x 4 legal hours) = $1,888 x 4,887 small investment 
advisers = $9,226,656.
    ($10,338,688 total large investment advisers costs + $9,226,656 
total small investment advisers costs) = $19,565,344.
    \941\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for legal services is $472/hour.
    ($472 x 8 legal hours) = $3,776 x 2,738 large investment 
advisers = $10,338,688.
    ($472 x 4 legal hours) = $1,888 x 4,887 small investment 
advisers = $9,226,656.
    $10,338,688 total large investment advisers costs + $9,226,656 
total small investment advisers costs = $19,565,344/7625 total 
investment advisers = $2,566 total cost per investment adviser.
---------------------------------------------------------------------------

    Additionally, we anticipate that firms will also have one-time 
outside costs associated with the cost of printing new communications 
including new business cards, envelopes, pitch books, and letterheads. 
As part of these costs, we anticipate that both large and small 
investment advisers will have to work with printers to set the 
disclosure on, for example, business cards. We

[[Page 21534]]

estimate initial costs to amend certain communications associated with 
the proposed rule of $346,787,187 for investment advisers \942\ (or 
$45,480 per investment adviser.) \943\ We assume that because small 
investment advisers have fewer supervised persons there will be less 
communications that will require printing.
---------------------------------------------------------------------------

    \942\ Our estimates are based on staff experience and industry 
materials. In particular, staff factored in its cost estimate the 
costs associated with printing envelopes, pitch books, letter heads, 
and business cards. For large investment advisers, we assume 
printing costs of $65,973. For small investment advisers, we assume 
printing costs of $33,999.
    ($65,973 x 2,738 large investment advisers = $180,634,074) + 
($33,999 x 4,887 small investment advisers = $166,153,113) = 
$346,787,187 total investment adviser outside costs.
    \943\ ($65,973 x 2,738 large investment advisers = $180,634,074) 
+ ($33,999 x 4,887 small investment advisers = $166,153,113) = 
$346,787,187 total investment adviser outside costs/7,625 investment 
advisers = $45,480 total cost per investment adviser.
---------------------------------------------------------------------------

    For the ongoing burden of new communications for investment 
advisers, we preliminarily estimate that the burden for compliance, 
business operations, and technology services for adding a registration 
status statement would be 0.5 hours annual hours per investment 
adviser.\944\ We anticipate that investment advisers will need to add 
the registration disclosure to each new communication which they 
create, however we anticipate the burdens associated with this task to 
be minimal and therefore we do not believe there is a material 
difference between large and small investment advisers.\945\ We 
preliminarily estimate that the total ongoing annual aggregate burden 
for investment advisers is 3,812.50 hours.\946\ We preliminarily 
estimate a total ongoing monetized cost of approximately $545,187.50 
for investment advisers.\947\ This would be an annual average burden of 
0.5 hours per investment advisers \948\ (as monetized, is an annual 
average cost of $71.50 per investment adviser).\949\
---------------------------------------------------------------------------

    \944\ This estimate is based upon staff experience. See e.g., 
Release 2968, supra note 891; Enhanced Mutual Fund Disclosure 
Adopting Release, supra note 47.
    In this estimate we are not calculating the print and 
technological associated burdens of updating communications which we 
analyzed earlier as we are assuming those burdens to be a one-time 
initial burden for a firm seeking compliance with the proposed rule.
    \945\ Our assumption of no material difference between large and 
small investment advisers rests on the fact that all major systems 
changes would already have been implemented as part of the initial 
burden. Therefore, any new electronic communications would have the 
disclosure statement required by our proposed rule built in at the 
outset which should take minimal time rather than having to 
retroactively insert it into the systems logic which is a more 
onerous task. We note that such communications would likely be 
reviewed by compliance staff for compliance with applicable 
securities laws including rule 206(4)-1 of the Advisers Act. We 
anticipate that compliance with proposed rule 211h-1's requirements 
would be reviewed as part of this larger compliance check.
    \946\ (0.5 hours x 7,625 investment advisers) = 3,812.50 total 
ongoing burden for investment advisers.
    \947\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per investment adviser.
     (0.5 hours x $143 total cost per investment adviser x 7,625 
investment advisers) = $545,187.50 total ongoing cost for investment 
advisers.
    \948\ (0.5 hours x 7,625 investment advisers) = 3,812.50 total 
ongoing burden for investment advisers.
    (3,812.5/7,625 total investment advisers) = 0.5 hours average 
initial burden per investment adviser.
    \949\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per investment adviser.
     (0.5 hours x $143 total cost per investment adviser x 7,625 
investment advisers) = $545,187.50 total ongoing cost for investment 
advisers/7,625 total number of investment advisers = $71.50 average 
annual ongoing cost per investment adviser.
---------------------------------------------------------------------------

    For the ongoing burden of new communications for supervised persons 
of an investment adviser, we preliminarily estimate that the burden for 
compliance, business operations, and technology services for adding a 
registration status statement would be 0.5 hours.\950\ Therefore, we 
preliminarily estimate that the total ongoing annual aggregate burden 
for supervised persons is 122,704 hours.\951\ We preliminarily estimate 
a total ongoing monetized cost of approximately $17,546,672 for 
supervised persons.\952\ This would be an annual average burden of 0.5 
hours per supervised person \953\ (as monetized, is an annual average 
cost of $71.50 per supervised person).\954\
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    \950\ This estimate is based upon staff experience. See e.g., 
Release 2968, supra note 891; Enhanced Mutual Fund Disclosure 
Adopting Release, supra note 47.
    In this estimate we are not calculating the print and 
technological associated burdens of updating communications which we 
analyzed earlier as we are assuming those burdens to be a one-time 
initial burden for a supervised person of an investment adviser 
seeking compliance with the proposed rule.
    \951\ (0.5 hours x 245,408 supervised persons) = 122,704 total 
ongoing burden for supervised persons.
    \952\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per supervised person.
     (0.5 hours x $143 total cost per supervised person x 245,408 
supervised persons) = $17,546,672 total ongoing cost for supervised 
persons.
    \953\ (0.5 hours x 245,408 supervised persons) = 122,704 total 
ongoing annual burden for supervised persons.
    (122,704 total initial burden for supervised persons/245,408 
total supervised persons) = 0.5 hours average ongoing annual burden 
per supervised person.
    \954\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268, and for information technology services is $270.
    This figure was calculated as follows: 0.5 hours/3 firm staff 
categories (i.e., compliance, business operations, and information 
technology) = 0.17 hours per staff category
    ($298 compliance/hour x 0.17) = $51 per 0.17 of an hour.
    ($268 business operations rate/hour x 0.17) = $46 per 0.17 of an 
hour.
    ($270 information technology rate/hour x 0.17) = $46 per 0.17 of 
an hour.
    $51 + $46 + $46 = $143 total cost per supervised person.
     (0.5 hours x $143 total cost per supervised person x 245,408 
supervised persons) = $17,546,672 total ongoing cost for supervised 
persons/245,408 total number of supervised persons = $71.50 average 
ongoing annual cost per supervised person.
---------------------------------------------------------------------------

    Additionally, we believe that any new investment advisers and their 
supervised persons would likely only incur the same ongoing annual 
burden estimate rather than the initial burden because they would 
incorporate the proposed registration status in all communications at 
their inception and not have to conduct a review and identification of 
outstanding communications nor make changes to their already existing 
communications. We do anticipate that such persons would also incur 
similar outside legal

[[Page 21535]]

costs, depending on their size, as discussed above. We do not believe 
that such new investment advisers would incur outside printing costs as 
a result of our proposed rule because these new firms would have their 
print communications produced with the appropriate disclosure initially 
as part of other materials they seek to have printed. Therefore, we 
preliminarily estimate that the total burden for new investment 
advisers is 238.50 hours.\955\ Additionally, we preliminarily estimate 
a cost of approximately $34,105.50 for new investment advisers.\956\ 
This would be an initial average burden of 0.5 hours per new investment 
adviser \957\ (as monetized, is an initial average cost of $71.50 per 
new investment adviser).\958\ Additionally, we anticipate 1,500 hours 
\959\ for new supervised persons of an investment adviser and costs of 
approximately $214,500 for new supervised persons \960\ of an 
investment adviser resulting from these requirements. This would be an 
initial average burden of 0.5 hours per new supervised person \961\ (as 
monetized, is an initial average cost of $71.50 per supervised 
person).\962\
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    \955\ (0.5 hours x 477 new investment advisers) = 238.50 total 
burden for new investment advisers.
    \956\ Based on the SIFMA Management and Professional Earnings 
Report, Commission staff preliminarily estimates that the average 
hourly rate for compliance services is $298, for business operation 
services is $268,