[Federal Register Volume 83, Number 228 (Tuesday, November 27, 2018)]
[Notices]
[Pages 60927-60931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25732]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-84630; File No. SR-MSRB-2018-07]


Self-Regulatory Organizations; Municipal Securities Rulemaking 
Board; Order Granting Approval of a Proposed Rule Change To Amend MSRB 
Rule G-3, on Professional Qualification Requirements, To Require 
Municipal Advisor Principals To Become Appropriately Qualified by 
Passing the Municipal Advisor Principal Qualification Examination

November 20, 2018.

I. Introduction

    On September 19, 2018, the Municipal Securities Rulemaking Board 
(the ``MSRB'' or ``Board'') filed with the Securities and Exchange 
Commission (the ``SEC'' or ``Commission''), pursuant to Section 
19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 
19b-4 thereunder,\2\ a proposed rule to amend Rule G-3, on professional 
qualification requirements, to (i) require persons who meet the 
definition of a municipal advisor principal, as defined under Rule G-
3(e)(i), to pass the Municipal Advisor Principal Qualification 
Examination (``Series 54 examination'') in order to become 
appropriately qualified as a municipal advisor principal; (ii) specify 
that such persons who cease to be associated with a municipal advisor 
for two or more years at any time after having qualified as a municipal 
advisor principal must requalify by examination unless a waiver is 
granted; (iii) add the Series 54 examination to the list of 
qualification examinations for which a waiver can be sought; (iv) 
provide that municipal advisor representatives may function as a 
principal for 120 calendar days without being qualified with the Series 
54 examination; and (v) make a

[[Page 60928]]

technical amendment to Rule G-3(e) to clarify that a municipal advisor 
principal must pass the Municipal Advisor Representative Qualification 
Examination (``Series 50 examination'') as a prerequisite to becoming 
qualified as a municipal advisor principal (collectively the ``proposed 
rule change''). The MSRB requested that the proposed rule change become 
effective 30 days from the date of SEC approval. The proposed rule 
change was published for comment in the Federal Register on October 9, 
2018.\3\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Securities Exchange Act Release No. 84341 (October 2, 2018) 
(the ``Notice of Filing''), 83 FR 50708 (October 9, 2018).
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    The Commission received one comment letter on the proposed rule 
change.\4\ On November 16, 2018, the MSRB responded to the comments 
received by the Commission.\5\
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    \4\ See Letter to Gail Marshall, Chief Compliance Officer, 
Municipal Securities Rulemaking Board, from Elaine M. Philbrick, 
Principal, Derivative Advisors, dated October 23, 2018 (the 
``Derivative Advisors Letter''). This letter was delivered to the 
MSRB, who then filed the letter with the Commission.
    \5\ See Letter to Secretary, Commission, from Gail Marshall, 
Chief Compliance Officer, MSRB, dated November 16, 2018 (the ``MSRB 
Response Letter''), available at https://www.sec.gov/comments/sr-msrb-2018-07/srmsrb201807-4654464-176503.pdf.
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II. Description of Proposed Rule Change

    The proposed rule change would adopt MSRB Rule G-3(e)(ii)(A) to 
establish additional qualification requirements for municipal advisor 
principals. Specifically, the proposed rule change would require those 
who meet the definition of a municipal advisor principal, as defined 
under MSRB Rule G-3(e)(i), (i.e., persons engaged in the management, 
direction or supervision of the municipal advisory activities of the 
municipal advisor and its associated persons) to pass both the Series 
50 examination and Series 54 examination prior to becoming qualified as 
a municipal advisor principal. Additionally, the proposed amendments to 
MSRB Rule G-3(e)(ii) would also prescribe that the passing score shall 
be determined by the Board. The MSRB stated that the establishment of 
qualification requirements for municipal advisor principals would 
assist in ensuring that such persons have a specified level of 
competency that is appropriate in the public interest and for the 
protection of investors, and municipal entities and obligated 
persons.\6\ Additionally, the MSRB stated that the establishment of the 
Series 54 examination is consistent with the intent of the 
establishment of the Series 50 examination ``to mitigate problems 
associated with advice provided by those individuals without adequate 
training or qualifications,'' in that municipal advisor principals 
should be appropriately qualified to supervise such activities of 
municipal advisor representatives.\7\
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    \6\ See Notice of Filing.
    \7\ Id.
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    Proposed MSRB Rule G-3(e)(ii)(B) would require any person qualified 
as a municipal advisor principal who ceases to be associated with a 
municipal advisor for two or more years at any time after having 
qualified as a municipal advisor principal to requalify by examination 
by passing both the Series 50 examination and Series 54 examination 
prior to becoming qualified as a municipal advisor principal, unless a 
waiver is granted pursuant to MSRB Rule G-3(h)(ii), on waiver of 
qualification requirements.\8\ The MSRB also proposed to amend MSRB 
Rule G-3(h)(ii) and Supplementary Material .02 to provide that the MSRB 
will consider waiving the qualification requirements of a municipal 
advisor principal in extraordinary cases where the applicant was 
previously qualified as a municipal advisor principal by passing both 
the Series 50 examination and Series 54 examination and the person's 
qualification lapsed. The MSRB stated that Proposed Rule G-3(e)(ii)(C) 
would allow a municipal advisor principal to be designated a municipal 
advisor principal and to function in that capacity for a period of 120 
calendar days without having passed the Series 54 examination.\9\ The 
MSRB noted that on June 8, 2018, the MSRB filed a proposed rule change 
with the SEC for immediate effectiveness, which, in part, extended the 
period from 90 calendar days to 120 calendar days for municipal 
securities representatives to function in a principal capacity without 
passing a principal examination as long as the municipal securities 
representative has at least 18 months of experience within the five-
year period immediately preceding the designation as a principal.\10\ 
The MSRB stated that it is not extending this experience requirement to 
a municipal advisor representative in order to function as a municipal 
advisor principal for 120 calendar days because, given the typical size 
of a municipal advisor firm, coupled with the newness of the 
qualification classifications and development of professional 
qualification requirements for municipal advisor professionals, such a 
requirement could pose an undue burden on a municipal advisor's 
operational needs.\11\
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    \8\ The Board stated that it will review waiver requests on 
their individual merits, taking into consideration relevant facts 
presented by an applicant. See Notice of Filing.
    \9\ See Notice of Filing.
    \10\ Id.
    \11\ Id.
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    The MSRB proposed a technical amendment to Rule G-3(e)(i), on 
definitions, to establish as a separate rule provision, and to clarify, 
that qualification as a municipal advisor representative is a 
prerequisite to obtaining qualification as a municipal advisor 
principal.\12\ The MSRB is also proposing a technical amendment to 
renumber the rule provisions under Rule G-3(e).
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    \12\ Id.
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    The MSRB stated that it believes that professional qualification 
examinations, such as the Series 50 examination and Series 54 
examination, are established means for determining the competency of 
individuals in a particular qualification classification.\13\ The MSRB 
stated that it has, in consultation with the MSRB's Professional 
Qualification Advisory Committee, developed the Series 54 examination 
to ensure that a person seeking to qualify as a municipal advisor 
principal satisfies a specified level of competency and knowledge by 
measuring a candidate's ability to apply the applicable federal 
securities laws, including MSRB rules to the municipal advisory 
activities of a municipal advisor.\14\ The MSRB stated that it has 
adhered to recognized test development standards by performing a job 
study to determine the appropriate topics to be covered and weighting 
of such topics on the Series 54 examination.\15\ The MSRB noted that 
from October 17, 2017 through November 7, 2017, it conducted a job 
study of municipal advisor principals via a web-based survey.\16\ The 
MSRB stated that the job study was sent to the primary and optional 
regulatory contacts at over 500 municipal advisors, representing every 
municipal advisor with at least one person qualified with the Series 50 
examination. The MSRB stated that it received 212 responses to the job 
study, representing data from municipal advisor principals from 
different-sized municipal advisors in different areas of the 
country.\17\
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    \13\ See Notice of Filing.
    \14\ Id.
    \15\ Id.
    \16\ Id.
    \17\ Id.
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    In the Notice of Filing, MSRB stated that it will announce the 
effective date of the permanent Series 54 examination at a later date 
in an MSRB Notice published on MSRB.org.\18\ The MSRB stated that the 
effective date of the

[[Page 60929]]

Series 54 examination will be the date the Series 54 examination 
becomes permanently available.\19\ However, the MSRB stated that in 
advance of the permanent version of the Series 54 examination, the MSRB 
anticipates conducting a pilot of the Series 54 examination, the 
results of which will be used to determine the passing score for the 
permanent Series 54 examination.\20\ The MSRB also stated that prior to 
the launch of the pilot version of the Series 54 examination, it will 
file a content outline with the SEC describing: the topics on the 
examination; the percentage of the examination devoted to each topic 
area; and the number of questions that will appear on the 
examination.\21\ In the Notice of Filing, the MSRB stated that the 
content outline will also contain sample examination questions and a 
list of reference materials to assist individuals in preparation for 
the examination.\22\ The MSRB stated that to provide persons who 
function as municipal advisor principals with sufficient time to 
satisfy the new qualification requirement, consistent with the 
implementation process for the Series 50 examination, the MSRB is 
proposing a one-year grace period from the effective date of the Series 
54 examination for such persons to pass the examination and become 
appropriately qualified as municipal advisor principals.\23\ According 
to the MSRB, during this one-year grace period, a person functioning as 
a municipal advisor principal would be permitted to continue to engage 
in the management, direction or supervision of the municipal advisory 
activities of the municipal advisor and its associated persons so long 
as such person is qualified with the Series 50 examination.\24\ The 
MSRB stated that this one-year grace period is designed to ensure that 
those persons functioning as a municipal advisor principal can prepare 
for and pass the Series 54 examination without causing considerable 
disruption to the business of the municipal advisor.\25\ The MSRB also 
stated that after the one-year grace period, a municipal advisor 
representative would only be permitted to function in the capacity of a 
municipal advisor principal, after being so designated, for a period of 
120 days without being a qualified municipal advisor principal.\26\
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    \18\ Id.
    \19\ Id.
    \20\ Id.
    \21\ Id.
    \22\ Id.
    \23\ Id.
    \24\ Id.
    \25\ Id.
    \26\ Id.
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    The MSRB requested in the Notice of Filing that the proposed rule 
change become effective 30 days from the date of SEC approval.\27\
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    \27\ Id.
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III. Summary of Comments Received and MSRB's Responses to Comments

    As noted previously, the Commission received one comment letter on 
the proposed rule change, as well as the MSRB Response Letter. The 
commenter, Derivative Advisors (``Derivative Advisors''), stated that 
it is an interest rate swap broker who is a registered municipal 
advisor. The commenter believes that a firm that is principally an 
interest rate swap broker that is also registered as a municipal 
advisor should not have to take a qualification examination that is not 
specifically targeted to their business model.\28\ The commenter 
suggested that only 5% of the questions on the Series 50 examination 
were related to swaps, and the rest had nothing to do with the firm's 
services.\29\ The commenter also stated that ``the proposed amendment 
to Rule G-3 requires yet an additional exam that is completely 
unrelated to our firm,'' and that in order to pass the Series 54 
examination, each principal will need to spend hundreds of hours to 
learn and master unfamiliar new material that does not serve the firm's 
customers or business.\30\ The commenter also suggested that it may 
consider exiting the business of advising municipalities due to the 
investment of time and effort required by the proposed rule change.\31\ 
Lastly, the commenter stated that requiring the Series 54 examination 
for municipal advisors that are strictly swap brokers is not in the 
public interest and does not benefit investors, municipal entities or 
obligated persons. Therefore the commenter believes that swap brokers 
should be exempt from the proposed requirement that each municipal 
advisor principal take and pass the Series 54 examination.\32\
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    \28\ See Derivative Advisors Letter.
    \29\ Id.
    \30\ Id.
    \31\ Id.
    \32\ Id.
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    The MSRB responded by stating that the MSRB is charged with setting 
professional qualification standards for municipal advisors under 
Section 15B(b)(2)(A) \33\ of the Act.\34\ The MSRB stated that it 
believes that the establishment of the Series 54 examination is 
consistent with the intent of the establishment of the Series 50 
examination to mitigate problems associated with advice by those 
individuals without adequate training or qualification, in that 
municipal advisor principals should be appropriately qualified to 
supervise such activities of municipal advisor representatives.\35\ The 
MSRB also stated that the creation of a principal-level examination 
furthers the stated objective of Section 15B(b)(2)(C) \36\ of the Act 
to foster the prevention of fraudulent practices by enhancing the 
overall professional qualification standards of municipal advisor 
principals--recognizing that proper supervision of a municipal 
advisor's activities and that of its associated persons play a role in 
the protection of the municipal securities market.\37\
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    \33\ 15 U.S.C. 78o-4(b)(2)(A).
    \34\ See MSRB Response Letter.
    \35\ Id.
    \36\ 15 U.S.C. 78o-4(b)(2)(C).
    \37\ See MSRB Response Letter.
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    In further response to the Derivative Advisors Letter, the MSRB 
stated that it believes that a municipal advisor principal should 
demonstrate knowledge of the rules and regulations governing municipal 
advisors.\38\ The MSRB noted that as a principal qualification 
examination, the Series 54 examination is designed to measure a 
candidate's knowledge of the regulatory requirements under the federal 
securities laws, including MSRB rules, applicable to municipal 
advisors.\39\ The MSRB stated that these rules and regulations 
generally apply to all municipal advisors and the range of activities 
that a municipal advisor is permitted to engage in, regardless of the 
niche business a municipal advisor firm may opt to engage in.\40\ The 
MSRB further noted that all municipal advisors are required to adhere 
to the federal securities laws, including the MSRB rules applicable to 
municipal advisors, including, but not limited to, those governing the 
registration requirements, recordkeeping requirements and pay-to-play 
prohibitions.\41\ Accordingly, the MSRB stated that it does not believe 
it is prudent to establish an exemption from the qualification 
requirements for those municipal advisors that opt to limit the scope 
of their municipal advisory activities.\42\
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    \38\ Id.
    \39\ Id.
    \40\ Id.
    \41\ Id.
    \42\ Id.
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    Furthermore, the MSRB stated that it does not believe that the 
proposed rule change would impose any burden on competition not 
necessary or

[[Page 60930]]

appropriate in furtherance of the purposes of the Act.\43\ The MSRB 
stated that it considered whether it is possible that the costs 
associated with preparing for and taking the Series 54 examination, 
relative to the baseline of no principal-level examination, may affect 
the competitive landscape by leading some municipal advisors to exit 
the market rather than incur the burden of meeting the qualification 
requirements.\44\ The MSRB stated that it recognizes that meeting 
professional qualification requirements results in municipal advisors 
incurring programmatic costs, including costs to study for and take the 
applicable examinations. The MSRB also stated that it believes the 
benefit of having associated persons of municipal advisors who engage 
in the management, direction or supervision of the municipal advisory 
activities of the municipal advisor and its associated persons to 
demonstrate specified level of competency necessary to supervise 
municipal advisory activities, outweighs the potential burden 
imposed.\45\ The MSRB stated that, as noted in the filing, to minimize 
disruption to a municipal advisor's operation, the MSRB proposed a one-
year grace period from the effective date of the Series 54 examination 
to afford time for associated persons of a municipal advisor who are 
directly engaged in the management, direction or supervision of the 
municipal advisory activities of the municipal advisor and its 
associated persons to take and pass the Series 54 examination and 
become appropriately qualified as municipal advisor principals.\46\ The 
MSRB stated that during this one-year grace period, a person 
functioning as a municipal advisor principal would be permitted to 
continue to engage in the management, direction or supervision of the 
municipal advisory activities of the municipal advisor and its 
associated persons so long as such person is qualified with the Series 
50 examination.\47\
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    \43\ Id.
    \44\ Id.
    \45\ Id.
    \46\ Id.
    \47\ See Notice of Filing and MSRB Response Letter.
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IV. Discussion and Commission Findings

    The Commission has carefully considered the proposed rule change, 
the comment letter received, and the MSRB Response Letter. The 
Commission finds that the proposed rule change is consistent with the 
requirements of the Act and the rules and regulations thereunder 
applicable to the MSRB.
    In particular, the proposed rule change is consistent with Sections 
15B(b)(2)(A), 15B(b)(2)(C), and 15B(b)(2)(L) of the Act.\48\ Section 
15B(b)(2)(A) of the Act provides that the MSRB's rules shall provide 
that no municipal securities broker or municipal securities dealer 
shall effect any transaction in, or induce or attempt to induce the 
purchase or sale of, any municipal security, and no broker, dealer, 
municipal securities dealer, or municipal advisor shall provide advice 
to or on behalf of a municipal entity or obligated person with respect 
to municipal financial products or the issuance of municipal 
securities, unless . . . such municipal securities broker or municipal 
securities dealer and every natural person associated with such 
municipal securities broker or municipal securities dealer meet such 
standards of training, experience, competence, and such other 
qualifications as the Board finds necessary or appropriate in the 
public interest or for the protection of investors and municipal 
entities or obligated persons.\49\ Section 15B(b)(2)(A) of the Act also 
provides that, in connection with the definition and application of 
such standards, the MSRB may appropriately classify municipal advisors 
and their associated persons, specify that all or any portion of such 
standards shall be applicable to any such class, and require persons in 
any such class to pass an examination regarding such standards of 
competence.\50\ The Commission believes that the proposed rule change 
is consistent with Section 15B(b)(2)(A) of the Act because the proposed 
rule change requires individuals who supervise municipal advisory 
activities to pass a professional qualification examination which is an 
established means for determining the basic competency of individuals 
in a particular class. The Commission believes that requiring 
prospective municipal advisor principals to pass a basic qualification 
examination will protect investors, municipal entities, and obligated 
persons by ensuring such principals have a basic understanding of the 
role of a municipal advisor principal and the rules and regulations 
governing such individuals.
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    \48\ 15 U.S.C. 78o-4(b)(2)(A), 78o-4(b)(2)(C), 78o-4(b)(2)(L).
    \49\ 15 U.S.C. 78o-4(b)(2)(A).
    \50\ Id.
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    Section 15B(b)(2)(C) of the Act \51\ provides in part that MSRB 
rules be designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, and to 
protect investors, municipal entities, obligated persons, and the 
public interest. The Commission believes that the proposed rule change 
will bolster the protection of municipal entities and obligated persons 
who employ municipal advisors to engage in municipal advisory 
activities on their behalf by helping to ensure that individuals 
engaged in the management, direction or supervision of the municipal 
advisory activities of a municipal advisor and its associated persons 
demonstrate a specified level of competence of the rules and 
regulations governing such municipal advisory activities. The 
Commission also believes that the proposed rule change will, through 
the establishment of professional qualification standards, effectively 
serve to benefit municipal advisors as such standards for municipal 
advisor principals are designed to ensure that any person that 
supervises, manages or directs the municipal advisory activities of a 
municipal advisor and its associated persons understands the 
application of the federal securities laws to a municipal advisor's 
municipal advisory activities in order to safeguard the municipal 
advisor from conduct that would violate the federal securities laws.
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    \51\ 15 U.S.C. 78o-4(b)(2)(C).
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    Additionally, Section 15B(b)(2)(L)(iii) of the Act provides that 
the MSRB's rules shall provide professional standards with respect to 
municipal advisors.\52\ The Commission believes that the proposed rule 
change is consistent with Section 15B(b)(2)(L)(iii) of the Act because 
it would establish professional standards for those individuals 
supervising municipal advisory activities by requiring such individuals 
to demonstrate a basic competency regarding the role of municipal 
advisor principals and the rules and regulations governing the conduct 
of such persons.
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    \52\ 15 U.S.C. 78o-4(b)(2)(L)(iii).
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    Section 15B(b)(2)(L)(iv) of the Act requires that MSRB rules not 
impose a regulatory burden on small municipal advisors that is not 
necessary or appropriate in the public interest and for the protection 
of investors, municipal entities, and obligated persons, provided that 
there is robust protection of investors against fraud.\53\ The 
Commission believes that the

[[Page 60931]]

proposed rule change is consistent with Section 15B(b)(2)(L)(iv) of the 
Act. While the proposed rule change would affect all municipal 
advisors, including small municipal advisors, it is a necessary and 
appropriate regulatory burden in order to establish the baseline 
competence of those supervising individuals engaged in municipal 
advisory activities. Establishing a baseline competence standard is 
necessary for the protection of investors, municipal entities, and 
obligated persons. The Commission also believes such baseline 
competence standard is in the public interest because it promotes 
compliance with the rules and regulations governing the conduct of 
municipal advisors.
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    \53\ 15 U.S.C. 78o-4(b)(2)(L)(iv).
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    In approving the proposed rule change, the Commission has 
considered the proposed rule change's impact on efficiency, 
competition, and capital formation.\54\ Section 15B(b)(2)(C) of the Act 
\55\ requires that MSRB rules not be designed to impose any burden on 
competition not necessary or appropriate in furtherance of the purposes 
of the Act. The Commission does not believe that the proposed rule 
change would impose any burden on competition not necessary or 
appropriate in furtherance of the purposes of the Act since it would 
apply equally to all municipal advisor principals who supervise 
municipal advisory activities. Furthermore, the Commission believes 
that the potential burdens created by the proposed rule change are to 
be likely outweighed by the benefits of establishing baseline 
professional qualification standards and promoting compliance with the 
rules and regulations governing the conduct of municipal advisors. The 
Commission has reviewed the record for the proposed rule change and 
notes that the record does not contain any information to indicate that 
the proposed rule change would have a negative effect on capital 
formation. The Commission believes that the proposed rule change 
includes accommodations that help promote efficiency. Specifically, the 
MSRB has provided a one-year grace period for passing the examination. 
As noted by the MSRB, the grace period provides municipal advisor 
principals with sufficient time to study and take the examination 
without causing an undue disruption to the business of the municipal 
advisor.
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    \54\ 15 U.S.C. 78c(f).
    \55\ 15 U.S.C. 78o-4(b)(2)(C).
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    As noted above, the Commission received one comment letter on the 
proposed rule change. The Commission believes that the MSRB considered 
carefully and responded adequately to the comments and concerns 
regarding the proposed rule change. For the reasons noted above, the 
Commission believes that the proposed rule change is consistent with 
the Act.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\56\ that the proposed rule change (SR-MSRB-2018-07) be, and hereby 
is, approved.
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    \56\ 15 U.S.C. 78s(b)(2).
    \57\ 17 CFR 200.30-3(a)(12).

    For the Commission, pursuant to delegated authority.\57\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-25732 Filed 11-26-18; 8:45 am]
 BILLING CODE 8011-01-P