
[Federal Register Volume 82, Number 63 (Tuesday, April 4, 2017)]
[Notices]
[Pages 16449-16456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06562]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80327; File No. SR-MSRB-2017-02]


Self-Regulatory Organizations; Municipal Securities Rulemaking 
Board; Notice of Filing of a Proposed Rule Change to Rule G-3, on 
Professional Qualification Requirements, and Rule G-8, on Books and 
Records, To Establish Continuing Education Requirements for Municipal 
Advisors and Accompanying Recordkeeping Requirements

March 29, 2017.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Exchange Act'' or ``Act'') \1\ and Rule 19b-4 thereunder,\2\ 
notice is hereby given that on March 22, 2017 the Municipal Securities 
Rulemaking Board (the ``MSRB'' or ``Board'') filed with the Securities 
and Exchange Commission (the ``SEC'' or ``Commission'') the proposed 
rule change as described in Items I, II, and III below, which Items 
have been prepared by the MSRB. The Commission is publishing this 
notice to solicit comments on the proposed rule change from interested 
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The MSRB filed with the Commission a proposed rule change to amend 
MSRB Rule G-3, on professional qualification requirements, to establish 
continuing education requirements for municipal advisors; \3\ and 
accompanying amendments to MSRB Rule G-8, on books and records to be 
made by brokers, dealers and municipal securities dealers (``dealers'') 
and municipal advisors; and the proposed rule change also makes minor 
technical changes to Rule G-3 to reflect the renumbering of sections 
and updates to cross-referenced provisions (collectively the ``proposed 
rule change''). The MSRB requests that the proposed rule change be 
approved with an implementation date of January 1, 2018. Municipal 
advisors would, therefore, have until December 31, 2018 to complete a 
needs analysis, develop a written training plan and deliver the 
appropriate training to comply with the annual training requirement for 
calendar year 2018.
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    \3\ Municipal advisor would have the same meaning as in Section 
15B(e)(4) of the Act, 17 CFR 240.15Ba1-1(d)(1)-(4) and other rules 
and regulations thereunder.
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    The text of the proposed rule change is available on the MSRB's Web 
site at www.msrb.org/Rules-and-Interpretations/SEC-Filings/2017-Filings.aspx, at the MSRB's principal office, and at the Commission's 
Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the MSRB included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The MSRB has prepared summaries, set forth in Sections 
A, B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Now that the MSRB has launched the Municipal Advisor Representative 
Qualification Examination (Series 50),\4\ in connection with its 
statutory mandate,\5\ the MSRB seeks to amend Rule G-3(i) to prescribe 
continuing education requirements for municipal advisors. Section 
15B(b) of the Act, as amended by the Dodd-Frank Wall Street Reform and 
Consumer Protection Act (``Dodd-Frank Act''), specifically requires the 
MSRB to provide professional standards and continuing education 
requirements for municipal advisors. The goal of continuing education 
is to ensure that certain associated persons of municipal advisors stay 
abreast of issues that may affect their job responsibilities and of 
product and regulatory developments. The proposed rule change also 
would amend Rule G-8 to establish recordkeeping requirements related to 
the administration of a municipal advisor's continuing education 
program.
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    \4\ On February 26, 2015, the MSRB received approval from the 
SEC amending Rule G-3 to establish two new registration 
classifications for municipal advisors: Municipal advisor 
representatives and municipal advisor principals; and to require 
each prospective municipal advisor representative and municipal 
advisor principal to take and pass the municipal advisor 
representative qualification examination. See Exchange Act Release 
No. 74384 (February 26, 2015), 80 FR 11706 (March 4, 2015) (SR-MSRB-
2014-08).
    \5\ See 15 U.S.C. 78o-4(b)(2)(L)(ii) and (iii).
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    In addition, the proposed rule change would make technical changes 
to Rule G-3 to reflect the renumbering of sections and updates to 
cross-referenced provisions.
Background
    In May 1993, due to the increasing complexity of the securities 
industry, a self-regulatory organization (``SRO'') task force \6\ was 
formed by the industry's SROs, to study and develop recommendations 
regarding continuing education needs in the securities industry. In 
September 1993, the task force issued a report recommending a formal 
two-part continuing education program.\7\ The task force also 
recommended that a permanent council on continuing education, composed 
of broker-dealers and SRO representatives, be formed to develop the 
content for the continuing education program and provide ongoing 
maintenance of the program. Pursuant to this recommendation, the 
Securities Industry/Regulatory Council on Continuing Education (``CE 
Council'') was formed. \8\ The CE Council prepared

[[Page 16450]]

draft rules to implement the continuing education program, which the 
SROs filed as proposed enabling rules with the Commission.\9\
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    \6\ The SROs in the task force included the MSRB, American Stock 
Exchange, Inc., the Chicago Board Options Exchange, Inc., the 
National Association of Securities Dealers, Inc. (n/k/a the 
Financial Industry Regulatory Authority), the New York Stock 
Exchange, Inc., and the Philadelphia Stock Exchange, Inc.
    \7\ Report and Recommendations of the Securities Industry Task 
Force on Continuing Education (September 1993).
    \8\ The CE Council is currently composed of up to 20-industry 
members from broker-dealers, representing a broad cross section of 
securities industry firms, and representatives from the MSRB and 
other SROs, as well as liaisons from the SEC and the North American 
Securities Administrators Association.
    \9\ See Exchange Act Release No. 35341 (February 8, 1995), 60 FR 
8426 (February 14, 1995) (SR-MSRB-94-17, SR-AMEX-94-59, SR-CBOE-94-
49, SR-CHX-94-27, SR-NASD-94-72, SR-NYSE-94-43, SR-PSE-94-35, and 
SR-PHLX-94-52).
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    The MSRB was a member of the CE Council upon its formation and has 
remained a member since. Consistent with the CE Council's 
recommendation, the MSRB filed, and the SEC approved, amendments to 
Rule G-3 establishing a formal two-part continuing education program 
for registered persons, requiring uniform industry-wide periodic 
training in regulatory matters, and ongoing training programs conducted 
by firms to enhance their registered persons' securities knowledge and 
skills. Hence, continuing education requirements for securities 
industry participants are not a new regulatory development.
    Dealers are currently required, pursuant to Rule G-3(i), to 
maintain a continuing education program for their ``covered registered 
persons'' \10\ after their initial qualification and registration. Rule 
G-3(i) also sets out the two-pronged approach to continuing education 
requirements consisting of a Regulatory Element and a Firm Element 
component. The Regulatory Element, which is developed by the CE 
Council, is a computer-based training program that focuses on 
compliance, regulatory, ethical and sales practice standards with the 
content derived from common industry rules and regulations, as well as 
widely accepted standards and practices within the industry. Under Rule 
G-3(i)(i)(A), covered registered persons are required to complete 
Regulatory Element training within 120 days of the second anniversary 
of their registration approval date, and every three years 
thereafter.\11\
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    \10\ Under Rule G-3(i)(ii)(A), a ``covered registered person'' 
means ``any person registered with a broker, dealer or municipal 
securities dealer and qualified as a representative or principal in 
accordance with this rule or as a general securities principal and 
who regularly engages in or supervises municipal securities 
activities.''
    \11\ MSRB Rule G-3(i)(i)(A).
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    The Firm Element is a firm-administered training program that 
requires dealers to annually evaluate and prioritize their training 
needs. The documentation evidencing such annual evaluation is commonly 
referred to as a needs analysis. A needs analysis generally reflects a 
firm's assessment of its unique training needs based on various 
factors, for example, the business activities the firm and its 
associated persons engage in, the level of industry experience the 
firm's associated persons have and any changes to applicable rules or 
regulations. Upon completion of a needs analysis, a dealer is required 
to develop a written training plan consistent with its analysis of the 
training priorities identified. Dealers must maintain records 
documenting the completion of the needs analysis, the content of the 
training programs and completion of the training by each of the firm's 
covered registered persons.\12\
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    \12\ MSRB Rule G-9(b)(viii)(C).
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Proposed Amendments to Rule G-3: Establishing Continuing Education 
Requirements for Municipal Advisors
    As described in detail below, the MSRB is proposing amendments to 
Rule G-3 to establish continuing education requirements for municipal 
advisors. Like the Firm Element component for dealers, municipal 
advisors would be required to, at least annually, conduct a needs 
analysis that evaluates and prioritizes their specific training needs, 
develop a written training plan based on the needs identified in the 
analysis, and deliver training concerning municipal advisory activities 
designed to meet those training needs. However, the proposed 
requirements for municipal advisors would differ from the dealers' Firm 
Element requirements with respect to identifying those that are subject 
to the training and the content that must be covered in the training as 
part of the minimum standards for the annual training.
    Under proposed Rule G-3(i)(ii), municipal advisors would be 
required to implement a continuing education training program for those 
individuals qualified as either a municipal advisor representative or 
as a municipal advisor principal (collectively, ``covered 
persons'').\13\ The establishment of continuing education requirements 
for municipal advisors would assist in ensuring that all firms provide 
a minimum-level standard of training that is appropriate in the public 
interest and for the protection of investors and municipal entities or 
obligated persons.
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    \13\ Under Rule G-3(d)(i)(A), ``municipal advisor 
representative'' means ``a natural person associated with a 
municipal advisor who engages in municipal advisory activities on 
the municipal advisor's behalf.'' Under MSRB Rule G-3(e)(i), 
``municipal advisor principal'' means ``a natural person associated 
with a municipal advisor who is qualified as a municipal advisor 
representative and is directly engaged in the management, direction 
or supervision of the municipal advisory activities of the municipal 
advisor and its associated persons.''
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    Pursuant to proposed Rule G-3(i)(ii)(B)(1), a municipal advisor 
would be required to, at least annually, conduct a needs analysis that 
evaluates and prioritizes its training needs, develop a written 
training plan based on the needs analysis, and deliver training 
applicable to its municipal advisory activities. Additionally, in 
developing a written training plan, a municipal advisor must take into 
consideration the firm's size, organizational structure, scope of 
municipal advisory activities, as well as regulatory developments.
    Proposed Rule G-3(i)(ii)(B)(2) would prescribe the minimum 
standards for continuing education training by requiring that each 
municipal advisor's training include, at a minimum, training on the 
applicable regulatory requirements and the fiduciary duty obligations 
owed to municipal entity clients. The minimum training on the 
applicable regulatory requirements would require a municipal advisor's 
continuing education program to include training on the regulatory 
requirements applicable to the municipal advisory activities its 
covered persons engage in. However, training on the fiduciary duty 
obligation owed to municipal entity clients is a minimum component of 
the continuing education training for all covered persons, even those 
that may not engage in municipal advisory activities on behalf of a 
municipal entity client. The fiduciary duty obligation owed to a 
municipal entity client is a keystone principal of the regulatory 
framework for municipal advisors that the MSRB believes every covered 
person engaged in municipal advisory activities should be familiar 
with. A municipal advisor would, nonetheless, still have the 
flexibility to determine the appropriate scope of training that its 
covered persons need on the fiduciary duty obligation based on the 
municipal advisory activities that its covered persons engage in.
    Recognizing that the nature of municipal advisory activities 
engaged in by municipal advisors can be diverse, the proposed rule 
change would provide municipal advisors with sufficient flexibility to 
determine their firm-specific training needs and the content and scope 
of the training appropriate for their covered persons. For example, a 
municipal advisor that only provides advice to municipal entities on 
swap transactions would be permitted to design its annual training plan 
based upon the rules and practices applicable to its limited business 
model, so long as such training plan included the applicable regulatory 
requirements

[[Page 16451]]

applicable to that limited business and a component regarding the 
fiduciary duty obligation owed to municipal entity clients. Moreover, 
municipal advisors would be able to determine the method for delivering 
such training. For example, a municipal advisor could determine that 
the most effective manner for delivering the training would be to 
require its covered persons to attend an applicable seminar by subject 
matter experts and/or to utilize an on-line training resource.
    The MSRB notes that the minimum requirements for continuing 
education training, outlined under the proposed rule change, should not 
be viewed by municipal advisors as the full scope of the subject matter 
appropriate for municipal advisors' training programs. The minimum 
standard for training does not negate the need for each municipal 
advisor to consider whether, based on its needs analysis, additional 
training applicable to the municipal advisory activities it conducts 
are appropriate.
    Proposed Rule G-3(i)(ii)(B)(3) would require a municipal advisor to 
administer its continuing education program in accordance with the 
annual evaluation and prioritization of its training needs and the 
written training plan developed as consistent with its needs analysis. 
Also, pursuant to this provision, a municipal advisor would be required 
to maintain records documenting the content of its training programs 
and a record that each of its covered persons identified completed the 
applicable training.
    Under proposed Rule G-3(i)(ii)(C), a municipal advisor's covered 
persons (those individuals qualified as a municipal advisor 
representative or municipal advisor principal) would be required to 
participate in the firm's continuing education training programs. If 
consistent with its training plan, a municipal advisor could deliver 
training appropriate for all covered persons. In addition, a municipal 
advisor may determine that its training needs indicate that it should 
also deliver particular training for certain covered persons, for 
example, those covered persons that have been designated with 
supervisory responsibilities under Rule G-44, or those covered persons 
that have been engaged in municipal advisory activities for a short 
period of time.
    Under proposed Rule G-3(i)(ii)(D), on specific training 
requirements, the appropriate examining authority may require a 
municipal advisor, individually or as part of a larger group, to 
provide specific training to its covered persons in such areas the 
appropriate examining authority deems appropriate.\14\ Such a 
requirement may stipulate the class of covered persons for which it is 
applicable, the time period in which the requirement must be satisfied 
and, where appropriate, the actual training content.
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    \14\ For purposes of Rule G-3(i)(ii)(D), ``appropriate examining 
authority'' means ``a registered securities association with respect 
to a municipal advisor that is a member of such association, or the 
Commission, or the Commission's designee, with respect to any other 
municipal advisor.''
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    In an effort to reduce regulatory overlap for dealer-municipal 
advisors,\15\ the proposed rule change would allow a dealer-municipal 
advisor to deliver continuing education training that would satisfy its 
training needs for the firm's dealer and municipal advisor activities. 
More specifically, pursuant to Rule G-3(i)(ii)(E), as proposed, each 
dealer-municipal advisor would be permitted to develop a single written 
training plan, if that training plan is consistent with each needs 
analysis that was conducted of the firm's municipal advisory activities 
and municipal securities activities. In addition, the proposed rule 
provision would allow a municipal advisor to conduct training for its 
covered persons and covered registered persons, which would satisfy the 
continuing education requirements under Rules G-3(i)(i)(B) and G-
3(i)(ii), if such training is consistent with the firm's written 
training plan(s) and that training meets the minimum standards for the 
training programs, as required under the rule.
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    \15\ A member of the Financial Industry Regulatory Authority 
that is a municipal securities dealer and municipal advisor is 
commonly referred to as a ``dealer-municipal advisor.''
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Proposed Amendments to Rule G-8
    The proposed amendments to Rule G-8 address the books and records 
that must be made and maintained by a municipal advisor to show 
compliance with recordkeeping requirements related to the 
administration of a municipal advisor's continuing education program. 
The Board adopted the approach of specifying, in some detail, the 
information to be reflected in various records. Specifically, the 
proposed amendments to Rule G-8(h) would require each municipal advisor 
to make and maintain records regarding the firm's completion of its 
needs analysis and the development of its corresponding written 
training plan. Moreover, with respect to each municipal advisor's 
written training plan, municipal advisors would be required to make and 
keep records documenting the content of the firm's training programs 
and a record evidencing completion of the training programs by each 
covered person.\16\ Recordkeeping requirements are an important element 
of compliance and the proposed amendments to Rule G-8 are appropriately 
tailored to facilitate the examination of a municipal advisor's 
compliance with the continuing education requirements.
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    \16\ Rule G-9(h) generally requires municipal advisors to 
preserve the books and records described in Rule G-8(h) for a period 
of not less than five years for purposes of consistency with SEC 
Rule 15Ba1-8 of the Act on books and records to be made and 
maintained by municipal advisors. See Exchange Act Release No. 73415 
(October 23, 2014), 79 FR 64423 (October 29, 2014) (SR-MSRB-2014-
06).
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Technical Amendments
    The MSRB is proposing minor technical amendments to add paragraph 
headers, and renumber and update rule cross-references to Rule G-
3(i)(i) and Rule G-3(i)(ii). Rule G-3(i)(i) would be revised by adding 
the paragraph header ``Continuing Education Requirements for Brokers, 
Dealers, and Municipal Securities Dealers.'' Rule G-3(i)(i)(D) would be 
revised by adding the paragraph header ``Reassociation'' and renumbered 
Rule G-3(i)(i)(A)(4). Rule G-3(i)(i)(E) would be relocated to proposed 
subparagraph Rule G-3(i)(i)(A)(4). Rule G-3(i)(ii) would be re-lettered 
Rule G-3(i)(i)(B). Due to these changes, other paragraphs under Rule G-
3(i) would be renumbered and re-lettered.
    As noted above, the MSRB is seeking an implementation date for the 
proposed rule change of January 1, 2018. To comply with the annual 
training requirement for calendar year 2018, a municipal advisor would 
need to complete a needs analysis, develop a written training plan and 
deliver the appropriate training by December 31, 2018.
2. Statutory Basis
    The MSRB believes that the proposed rule change is consistent with 
Section 15B(b)(2)(A) of the Act,\17\ which provides that the MSRB's 
rules shall:
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    \17\ 15 U.S.C. 78o-4(b)(2)(A).

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

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the Board finds necessary or appropriate in the public interest or 
for the protection of investors and municipal entities or obligated 
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persons.

    This provision provides the MSRB with authority to establish 
standards of training, experience, competence and other qualifications 
as the MSRB finds necessary. The MSRB believes that the proposed rule 
change is consistent with this provision of the Act in that the 
proposed rule change would provide for minimum levels of training for 
persons engaged in municipal advisory activities, which is in the 
public interest and for the protection of investors, municipal entities 
and obligated persons. The SEC noted that ``[the] new registration 
requirements and regulatory standards are intended to mitigate some of 
the problems observed with the conduct of some municipal advisors, 
including [. . .] advice rendered by financial advisors without 
adequate training or qualifications, and failure to place the duty of 
loyalty to their clients ahead of their own interests.'' \18\ Requiring 
municipal advisors to provide continuing education, including minimum 
training on the fiduciary duty obligations owed to municipal entities, 
is consistent with and in furtherance of the stated objectives 
articulated in the Municipal Advisor Registration Final Rule. In 
addition, a continuing education requirement provides investors, 
municipal entities and obligated persons with the confidence that 
individuals who engage in municipal advisory activities and those who 
supervise municipal advisory activities are kept informed of regulatory 
developments that can occur after such individuals pass a qualification 
examination to engage in municipal advisory activities.
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    \18\ See Exchange Act Release No. 70462 (September 20, 2013), 78 
FR 67467 at 67469 (November 12, 2013) (``Municipal Advisor 
Registration Final Rule'').
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    Additionally, the MSRB believes that the proposed rule change is 
consistent with Section 15B(b)(2)(L) of the Act,\19\ which provides 
that the MSRB's rules shall, with respect to municipal advisors:
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    \19\ 15 U.S.C. 78o-4(b)(2)(L).
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    (i) Prescribe means reasonably designed to prevent acts, practices, 
and courses of business as are not consistent with a municipal 
advisor's fiduciary duty to its clients;
    (ii) provide continuing education requirements for municipal 
advisors;
    (iii) provide professional standards; and
    (iv) 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.
    As noted by the SEC in the Municipal Advisor Registration Final 
Rule, ``the municipal advisor regulatory regime should continue to 
enhance municipal entity and obligated person protections and 
incentivize municipal advisors not to engage in misconduct.'' \20\ The 
proposed rule change would establish continuing education program 
requirements for municipal advisors. By establishing a formal, robust 
continuing education program, municipal advisors would ensure their 
covered persons are kept informed of issues that affect their job 
responsibilities and of regulatory developments, which is in 
furtherance of the protection of investors against fraud and 
misconduct.
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    \20\ See Municipal Advisor Registration Final Rule, supra note 
14, at 67611.
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    The MSRB believes that, while the proposed rule change would lead 
to some associated costs, the costs would be a necessary and 
appropriate regulatory burden to ensure that individuals engaging in 
municipal advisory activities are adequately trained and maintain an 
adequate level of industry knowledge. Specifically, the MSRB believes 
that requiring municipal advisors to have a continuing education 
program serves to maintain the integrity of the municipal securities 
market and, specifically, preserve the public confidence, including the 
confidence of municipal entities and obligated persons, that those 
engaged in municipal advisory activities meet minimum standards of 
training, experience, competence, and such other qualifications as the 
Board finds necessary or appropriate. A discussion of the economic 
analysis of the proposed rule change and its impact on municipal 
advisors is provided below.
    Lastly, the MSRB also believes that the proposed rule change is 
consistent with Section 15B(b)(2)(G) of the Act,\21\ which provides 
that the MSRB's rules shall prescribe records to be made and kept by 
municipal securities brokers, municipal securities dealers, and 
municipal advisors and the periods for which such records shall be 
preserved.
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    \21\ 15 U.S.C. 78o-4(b)(2)(G).
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    The proposed amendments to Rule G-8 would assist in ensuring that 
municipal advisors are complying with proposed Rule G-3 by extending 
the existing recordkeeping requirements applicable to municipal 
advisors to include making and maintaining records relating to their 
continuing education program. Establishing a requirement for municipal 
advisors to maintain records reflecting their continuing education 
programs would allow the appropriate examining authority that examines 
municipal advisors to better monitor and promote compliance with the 
proposed rule change.

B. Self-Regulatory Organization's Statement on Burden on Competition

    Section 15B(b)(2)(C) of the Act \22\ 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 MSRB has 
considered the economic impact associated with the proposed rule 
change, including a comparison to reasonable alternative regulatory 
approaches, relative to the baseline. The MSRB does not believe that 
the proposed rule change would impose any burden on competition that is 
not necessary or appropriate in furtherance of the purposes of the Act.
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    \22\ 15 U.S.C. 78o-4(b)(2)(C).
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    The MSRB believes that the proposed rule change would produce 
benefits for users of municipal advisory services by ensuring 
compliance, by municipal advisors, with existing regulations and 
applicable laws that protect investors, municipal entities, and 
obligated persons. The proposed rule change would keep covered persons 
informed of issues and regulatory developments that affect their job 
responsibilities with respect to helping protect investors and 
municipal entities. Such requirements may reduce the risk that users of 
municipal advisory services would receive advice that results in harm 
or negative impact. Thus, the proposed rule change would help promote a 
larger pool of qualified municipal advisor professionals available for 
selection by users of municipal advisory services, resulting in the 
possibility of greater meaningful competition between providers of 
these services.
    The MSRB recognizes that municipal advisors would incur 
programmatic costs associated with developing a continuing education 
program, delivering training and maintaining records of compliance with 
the continuing education requirements. These costs are likely to be 
highest when the rule's requirements are initially being implemented, 
but should diminish over time after these initial start-up costs are 
incurred. The effect on competition between municipal advisors may be 
impacted by these upfront costs as some firms, particularly

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larger firms, may be better able to bear these costs than other firms.
    To mitigate these costs, the proposal was modified, based on public 
comments, to offer flexibility to municipal advisors in how they 
implement the requirements of the proposed rule change. The proposed 
rule change allows flexibility for developing continuing education 
training based on firm size, organizational structure, and scope of 
business activities. In addition, the proposed rule change has been 
modified to also allow for the development of a single training plan 
that is consistent with each needs analysis conducted by a dealer-
municipal advisor. Moreover, dealer-municipal advisors can incorporate 
identified, firm-specific training needs, with respect to their 
municipal advisory activities, into their existing training programs, 
as long as any offered training is consistent with the written training 
plan(s).
    The MSRB understands that most small municipal advisors may not 
employ full-time staff for the purpose of developing and implementing 
continuing education training. However, the MSRB believes that the 
proposed rule change, which provides sufficient flexibility regarding 
how the requirement is met, does not demand that municipal advisors 
hire additional staff. Moreover, third parties, including the MSRB, may 
provide training resources that would be available to municipal 
advisors at a relatively low cost. To the extent that the costs 
associated with the proposed rule change may cause some municipal 
advisors to exit the market or to consolidate with other firms, the 
MSRB believes these effects are unlikely to materially impact 
competition for the provision of municipal advisory services.
    The MSRB considered alternatives, including the development of a 
mandatory training program, similar to the Regulatory Element 
requirement for dealers, and a more prescriptive continuing education 
requirement.\23\ However, at this time, the MSRB does not believe that 
such proposals are necessary and that the current proposed rule change 
achieves the proper balance between the likely benefits associated with 
the proposed rule change and the likely costs associated with 
implementing the requirements of the proposed rule change.
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    \23\ MSRB Regulatory Notice 2016-24, Request for Comment on 
Draft Provisions to Establish a Continuing Education Requirement for 
Municipal Advisors (``draft amendments'') (September 30, 2016)
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    The MSRB considered the economic impact of the proposed rule change 
and has addressed comments relevant to the impact in additional 
sections of the filing.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The MSRB solicited comment on establishing continuing education 
requirements for municipal advisors in a Request for Comment \24\ and 
received 11 comment letters in response to the draft amendments.\25\ A 
copy of MSRB Notice 2016-24 is attached as Exhibit 2a; a list of the 
comment letters received in response is attached as Exhibit 2b; and 
copies of the comment letters are attached as Exhibit 2c. Below is a 
summary of the comments and the MSRB's responses are provided.
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    \24\ See MSRB Regulatory Notice 2016-24, supra note 23.
    \25\ See Email from G. Letti, Breena LLC, dated September 30, 
2016 (``Breena''); Email from Garth Schulz, Castle Advisory Company 
LLC, dated September 30, 2016 (``Castle Advisory''); Letter from 
Jeff White, Principal, Columbia Capital Management, LLC, dated 
November 11, 2016 (``Columbia Capital''); Letter from David T. 
Bellaire, Executive Vice President and General Counsel, Financial 
Services Institute, dated November 14, 2016 (``FSI''); Letter from 
Robert A. Lamb, President, Lamont Financial Services Corporation, 
dated October 21, 2016 (``Lamont Financial''); Email from Lawrence 
Goldberg, dated September 30, 2016(``Goldberg''); Letter from Susan 
Gaffney, Executive Director, National Association of Municipal 
Advisors, dated November 14, 2016 (``NAMA''); Letter from Leo 
Karwejna, Managing Director and Chief Compliance Officer, PFM Group, 
dated November 14, 2016 (``PFM''); Letter from Marianne F. Edmonds, 
Senior Managing Director, Public Resources Advisory Group, dated 
November 14, 2016 (``PRAG''); Email from Jonathan Roberts, Roberts 
Consulting, LLC, dated October 14, 2016 (``Roberts''); Letter from 
Donna DiMaria, Chairman of the Board of Directors, Third Party 
Marketers Association, dated November 17, 2016 (``3PM'').
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Support for the Proposed Rule Change
    In response to MSRB Notice 2016-24, commenters generally expressed 
support for the establishment of continuing education requirements for 
municipal advisors.\26\ PFM commented that they ``[welcome] the 
implementation of continuing education requirements for municipal 
advisors because [they] believe there are inherent benefits of ongoing 
continuing education which would assist municipal advisors in expanding 
their knowledge and promoting compliance with applicable regulations 
necessary within the current regulatory environment.'' FSI stated that 
it supports the proposed rule change because, as proposed, such 
amendments would ``establish a flexible, principles-based rule that is 
harmonized with current FINRA [continuing education] requirements.'' 
FSI also commended the MSRB for ``choosing a flexible and less 
prescriptive approach to this rule making.'' PRAG commented that 
``continuing education is a necessary part of the regulatory 
framework.'' Similarly, NAMA commented ``[c]ontinuing education 
requirements are imperative to ensuring that MAs are held to a 
professional standard that strengthens their professional 
responsibilities to municipal entities.''
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    \26\ 3PM, Breena, Castle Advisory, Columbia Capital, FSI, Lamont 
Financial, NAMA, PFM and PRAG.
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    Although supportive, a few commenters suggested the need for 
clarification on aspects of the proposal and additional guidance with 
respect to the implementation of any continuing education 
requirements.\27\
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    \27\ NAMA, PFM and PRAG.
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Implementation of the Proposed Rule Change
    Certain commenters asserted that the proposal is premature and 
recommended that the MSRB delay implementing continuing education 
requirements for municipal advisors.\28\ NAMA recommended that the MSRB 
``step back and complete an analysis on the impact that the 
implementation of all of the new rules and qualification standards have 
on MAs, and then determine the scope of continuing education 
standards.'' Lamont Financial noted that a phased in implementation 
period ``would be the only appropriate way to make the rule 
effective.'' According to PFM, the MSRB should consider ``[t]he 
institution of a reasonable [phased] in period that considers 
additional requirements for municipal advisor principals which more 
likely consists of at least a two-year timeframe for implementing the 
proposed continuing education requirements.'' PRAG expressed a similar 
sentiment, stating that the ``implementation of continuing education 
requirements [should] be delayed until the `grace period' for the 
Series 50 exam has passed and implementation of the Series 54 exam has 
occurred.''
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    \28\ Lamont, NAMA and PRAG.
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    The MSRB is supportive of a delayed implementation period. The MSRB 
believes that implementing the continuing education requirements after 
the one-year grace period for the Municipal Advisor Representative 
Qualification Examination (Series 50) \29\

[[Page 16454]]

affords municipal advisors time to continue to more fully digest 
current regulatory requirements and for municipal advisor professionals 
to take and pass the Series 50 exam. The MSRB does not believe, 
however, that it is necessary to delay the implementation of continuing 
education requirements until the development of the Municipal Advisor 
Principal Qualification Examination (Series 54), as any municipal 
advisor must first be qualified as a municipal advisor representative. 
Moreover, the goal of the continuing education requirement is to 
enhance the knowledge, skill, and professionalism of covered persons by 
ensuring that all covered persons receive regular training, and in an 
acceptable depth, applicable to a firm's municipal advisory activities. 
As noted earlier in the filing, the MSRB has requested an 
implementation date of January 1, 2018. As a result, municipal advisors 
would have until December 31, 2018, to conduct the first required 
annual training in compliance with the rule.
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    \29\ The one-year grace period for the Series 50 examination 
ends on September 12, 2017. The one-year grace period allows 
municipal advisor professionals to continue to engage in or 
supervise municipal advisory activities, without having passed the 
Series 50 examination, until the expiration of the grace period.
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Commercial Training Materials
    Some commenters expressed concerns regarding the lack of 
commercially available materials specifically designed to use in 
delivering continuing education training for municipal advisors.\30\ 
Columbia Capital indicated, ``it is not likely that third-parties will 
develop CE content that is broad enough to encompass the full breadth 
of the MA's role with respect to governmental issuers and obligated 
parties.'' Moreover, according to Columbia Capital, ``most MA firms 
will be left to develop their own CE programs--an outcome that could be 
onerous for small firms.'' PRAG noted it is ``not confident that 
[third-party] providers will step into this space and have concern 
[sic] about both the cost and time required for the development of 
appropriate materials.'' Lamont Financial stated, ``the Board may be 
out over its skis in considering [the] rule at this point because the 
development of commercial training resources for municipal advisors has 
not been significant to date.''
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    \30\ Columbia Capital, Lamont Financial and PRAG.
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    Conversely, 3PM stated that ``several of the industry's CE 
providers began offering MA training modules as part of their firm-
element product offerings over a year ago.'' Columbia Capital noted, 
``[w]e have historically provided ongoing continuing education for our 
MA professionals in-house using a mix of formal and informal training/
education methods. We also leverage free and low-cost resources 
provided by third-parties--state GFOA conferences, web-based seminars 
from organizations like the Council of Development Finance Agencies, 
etc.--to supplement our advisors' continuing education.'' Lamont 
Financial acknowledged that the MSRB is a resource for training 
materials and expressed that ``the Board should continue to develop 
materials that will help educate professionals in the field.'' Lamont 
Financial also added that ``[c]ertain national associations, such as 
NAMA, may be a good source for providing continuing education to 
municipal advisors.''
    As proposed, the continuing education requirements for municipal 
advisors preserve flexibility as to the content and delivery method for 
continuing education training. The proposed rule change does not 
prescribe content requirements for the training that municipal advisors 
must provide, beyond addressing the regulatory requirements and, 
specifically, the fiduciary duty obligation to a firm's municipal 
entity clients. Instead, the proposed rule change affords municipal 
advisors the flexibility to identify and deliver continuing education 
training in the most convenient and effective manner possible based on 
their business model. A municipal advisor's training program may 
utilize multiple methods of delivery, such as seminars, computer-based 
training, webcasts, or dissemination of information requiring written 
acknowledgement that the materials have been received and read. 
Moreover, industry trade associations may be a good source of 
continuing education training materials, in addition to podcasts, 
webinars and educational materials developed by the MSRB. Accordingly, 
the MSRB does not believe the lack of commercially-available content 
would cause an undue burden on municipal advisors.\31\
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    \31\ For example, as suggested by Lamont Financial, continuing 
education training would most likely occur through attendance at 
conferences or committee conference calls from membership in 
organizations like the National Society of Compliance Professionals 
or participation in organizations related to the business of the 
advisor.
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Conducting a Needs Analysis and Developing a Written Training Plan
    Two commenters noted the proposal would benefit from additional 
clarity and details regarding completing a needs analysis, including 
the core subjects to be covered, and on developing a written training 
plan.\32\ NAMA suggested that the MSRB could provide such details and 
expectations, with respect to the development of a needs analysis, by 
providing representative sample needs analyses or additional guidance. 
NAMA also stated, more specifically, further guidance would benefit 
municipal advisors with respect to:
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    \32\ NAMA and PFM.
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     How firms should identify and evaluate applicable training 
needs, including those related to the fiduciary duty standard and 
regulatory issues that arise with respect to current practices for 
clients, as well as anticipated or forthcoming responsibilities for 
clients;
     What content should be included in a written training 
plan;
     Acceptable delivery mechanisms for meeting continuing 
education requirements; and
     How to document that training was completed.
    PFM requested that the MSRB ``provid[e] more specific guidance on 
required subjects with further interpretive guidance describing 
information to be covered on core concepts within the municipal 
industry.'' Additionally, PFM suggested that the MSRB publish core 
competency subject requirements on a range of various topics for 
purposes of ensuring ``a level of consistency in educational 
information so as to enhance the quality and standard of training 
received by all municipal advisors.''
    The MSRB recognizes that additional guidance on conducting a needs 
analysis and how to implement a continuing education program may 
benefit municipal advisors, especially non-dealer municipal advisors. 
The MSRB intends, before the proposed rule change is implemented,\33\ 
whether in collaboration with industry associations, or otherwise, to 
provide guidance to assist municipal advisors in understanding their 
obligations to develop a continuing education program. The guidance 
would not be designed to promote or establish a uniform training 
program, but rather to provide a common approach to assist municipal 
advisors in the development and implementation of a firm-specific 
training program. Municipal advisors should be aware that any guidance 
or approaches recommended for consideration would not create a safe 
harbor and that each municipal advisor would need to decide what 
measures

[[Page 16455]]

should be taken in fulfilling its continuing education obligations 
based on the municipal advisory activities it engages in.
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    \33\ The MSRB notes, to assist broker-dealers in complying with 
their continuing education program requirements, the CE Council 
publishes a Guide to Firm Element Needs Analysis and Training Plan 
Development that is available at http://www.cecouncil.com/media/232538/guide_to_firm_element.pdf.
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Additional Compliance Burdens and Duplicative Documentation 
Requirements
    3PM expressed concerns that the requirement for dealer-municipal 
advisors to complete a separate needs analysis and separate written 
training plan for both its municipal advisory activities and municipal 
securities activities would be duplicative and did not sufficiently 
reduce regulatory overlap. 3PM stated, ``by requiring firms to complete 
separate needs analyses, written training plans and other documentation 
for its municipal advisory and broker dealer activities, is in fact 
creating, rather than reducing, regulatory overlap.'' According to 3PM, 
given that dealer-municipal advisors are examined by FINRA, there is 
``[no] benefit to examiners in segregating [the details of a firm's] 
training that apply to [its] MA business from other areas being 
evaluated by FINRA.''
    The MSRB acknowledges that, in some areas, additional regulatory 
efficiencies could be achieved for dealer-municipal advisors. With 
respect to dealer-municipal advisors conducting a separate needs 
analysis, accounting for both their municipal advisory activities, as 
well as, their dealer activities, the MSRB notes that, because firms' 
municipal advisory and municipal securities lines of businesses are 
subject to separate functions and regulatory regimes, such regulatory 
burden is appropriate. Dealer-municipal advisors must evidence that a 
separate needs analysis was conducted, by clearly delineating the needs 
analysis, for the separate business lines, within the dealer-municipal 
advisor's written training plan(s). However, the MSRB believes that 
permitting dealer-municipal advisors to develop a single written 
training plan that comprehensively details and satisfies the needs 
analysis for both the firm's municipal advisory activities and dealer 
activities could further reduce regulatory overlap. To that end, the 
proposed rule change, which differs slightly from the draft amendments 
initially proposed in the request for comment, would allow dealer-
municipal advisors engaged in diverse lines of business or with complex 
organizational structures to choose to have separate plans coordinated 
to cover appropriate areas or incorporate all training requirements 
into a single plan.
Economic and Administrative Burdens
    Some commenters raised the concern that the requirements are likely 
to be burdensome on small and single-person municipal advisors.\34\ 
Commenters also believe there could be considerable financial cost 
related to the development of in-house training materials. PRAG stated, 
``like other non-broker-dealer MA firms, [the firm] has had to develop 
compliance procedures, hire compliance personnel and divert time of 
existing personnel from other duties in order to document compliance 
with MSRB rules. The transition has been burdensome for us as it has 
been for all independent MA firms.'' Lamont Financial expressed, ``if 
each firm then has to develop its own materials, the cost in lost 
productive work time will be significant and the quality of any 
training will be dependent on the municipal advisor preparing the 
materials.'' Goldberg declared, the ``latest Request for Comments 
suggest overregulation [and] increasing interference with [and] 
restriction of business conduct.'' Similarly, NAMA stated, ``the MSRB 
should recognize the multiple roles a principal in a small MA firm or a 
sole-practitioner MA has to their clients and under the rulemaking 
regime already imposed by the MSRB.'' NAMA further adds, ``[t]he 
additional requirements of continuing education for all MAs and 
especially sole practitioners and smaller firms, should be considered 
along with the already existing regulatory burdens of the MSRB 
rulebook, and not create an overwhelming economic or administrative 
burden on these professionals.''
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    \34\ Columbia Capital, Lamont Financial, NAMA and PRAG.
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    As an initial matter, the MSRB acknowledges that the proposed rule 
change would require municipal advisors to devote some level of 
resources to the development of its continuing education program. 
However, requiring registration, testing and training of municipal 
advisors should further strengthen compliance with securities laws, 
rules and regulations. Moreover, the MSRB has considered whether the 
regulation is appropriately tailored and needed in furtherance of the 
protection of investors, municipal entities and the public interests. 
It is important to note that the proposed rule change does not require 
a municipal advisor to produce in-house training materials, but rather, 
provides flexibility recognizing there are less costly alternatives to 
developing in-house training materials, such as utilizing existing 
content available or content subsequently developed by third-party 
resources. Each municipal advisor also has the flexibility to determine 
its firm-specific training needs and the content of its training for 
its covered persons. Small municipal advisors and sole proprietorships 
with a narrowly focused municipal advisory business may find 
establishing a continuing education program is uniquely different and 
significantly less complex and narrower in scope than that of full-
service firms. As the MSRB has noted in this filing, the content and 
method for delivery of continuing education training is determined by 
the municipal advisor.
Other Comments
    Roberts noted that the nature of its municipal advisory business 
does not involve the engagement of municipal entity clients. That is, 
the municipal advisor only provides municipal advisory services to 
obligated person clients. Roberts expressed concerns regarding the 
application of the requirement for municipal advisors to provide 
continuing education training on a municipal advisor's fiduciary duty 
obligations. The commenter recommended that the MSRB revise the 
proposal to allow for an exception to the requirement, if it lacks 
applicability to the respective municipal advisor. The proposed rule 
change has been amended to reflect that the training is with respect to 
the fiduciary duty obligations of municipal advisors to municipal 
entity clients. The scope of municipal advisory business can be 
diverse; therefore, a municipal advisor may or may not engage in 
municipal advisory activities on behalf of a municipal entity client. 
However, this does not negate the fact that a municipal advisor, at 
some point, may pursue an undertaking that involves engaging in 
municipal advisory activities on behalf of a municipal entity client. 
Therefore, all municipal advisors are subject to the requirement to 
provide training on the fiduciary duty obligation; however, municipal 
advisors have the flexibility to determine the extent and scope of that 
training.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period of up to 90 days (i) as 
the Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:

[[Page 16456]]

    (A) By order approve or disapprove such proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-MSRB-2017-02 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-MSRB-2017-02. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of the MSRB. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-MSRB-2017-02 and should be 
submitted on or before April 25, 2017.

    For the Commission, pursuant to delegated authority.\35\
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    \35\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-06562 Filed 4-3-17; 8:45 am]
BILLING CODE 8011-01-P


