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On February 14, 2013, SEC Chairman Elisse Walter at long last
indicated, in testimony for the Senate Banking Committee, that the
SEC's final regulations regarding "municipal
advisors" will "address ,,, the need for an
exception" to the definition of "municipal advisor"
for appointed board members of municipal securities issuers.
This acknowledgment came more than two years after the firestorm
ignited by the SEC's suggestion in proposed regulations issued
December 20, 2010
(http://www.mintz.com/newsletter/2011/Advisories/0841-0111-NAT-PF/web.htm)
that appointed board members of issuers of municipal securities
were or might be required to register as "municipal
advisors," That suggestion provoked a substantial share
of the over 1,000 comment letters received by the SEC on the
proposed regulations.
The SEC's final regulations have not yet been issued and the
phrasing of the exception remains to be seen. However,
Chairman Walter's testimony is consistent with the conclusion
long since reached by most municipal market participants that the
SEC's interpretation of the Dodd-Frank legislation as requiring
or potentially requiring registration as municipal advisors by
non-elected board members who provide input relating to
issuance of municipal securities in the course of their board
duties was an overreach that would not be implemented. For
board members appointed to municipal bond issuers or to issuers of
state-sponsored Section 529 program municipal fund securities,
Chairman Walter's pronouncement is as close to a valentine
as the SEC dispenses.
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