61806 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Notices 

11 15 U.S.C. 78s(b)(3)(A). 

12 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 

4(f)(6) requires a self-regulatory organization to give 

the Commission written notice of its intent to file 

the proposed rule change, along with a brief 

description and text of the proposed rule change, 

at least five business days prior to the date of filing 

of the proposed rule change, or such shorter time 

as designated by the Commission. The Exchange 

has satisfied this requirement. 

13For purposes only of waiving the 30-day 

operative delay, the Commission has considered the 

proposed rule’s impact on efficiency, competition, 

and capital formation. See 15 U.S.C. 78c(f). 

14The text of the proposed rule change is 

available on the Commission’s Web site at http:// 

www.sec.gov. 

15 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3See Public Law No. 111–203, 124 Stat. 1376 

(2010). 

4See Securities Exchange Act Release No. 62827 

(September 1, 2010), 75 FR 54673. 

5See e-mail from Peter Shapiro, Managing 

Director, Swap Financial Group, LLC, dated 

September 14, 2010 (‘‘Swap Financial Letter’’); 

email from Kevin Olson, dated September 17, 2010 

(‘‘Olson Letter’’); letter from Mike Nicholas, Chief 

Executive Officer, Bond Dealers of America, dated 

September 17, 2010 (‘‘Bond Dealers Letter’’); letter 

from Robert W. Doty, President, American 

Governmental Financial Services, dated September 

21, 2010 (‘‘AGFS Letter I’’); letter from Joy A. 

Howard, Principal, WM Financial Strategies, dated 

September 21, 2010 (‘‘WM Financial Letter’’); letter 

from Steve Apfelbacher, President, National 

Association of Independent Public Finance 

Advisors, dated September 22, 2010 (‘‘NAIPFA 

Letter’’); letter from Michael Decker, Managing 

Director and Co-Head, Municipal Securities 

Division, Securities Industry and Financial Markets 

Association, dated September 22, 2010 (‘‘SIFMA 

Letter’’); letter from Susan Gaffney, Director, Federal 

Liaison Center, Government Finance Officers 

Association, dated September 22, 2010 (‘‘GFOA 

Letter’’); letter from Thomas M. DeMars, Managing 

Principal, Fieldman, Rolapp & Associates, dated 

September 22, 2010 (‘‘Fieldman Letter’’); letter from 

Lawrence P. Sandor, Senior Associate General 

Counsel, MSRB, dated September 23, 2010 (‘‘MSRB 

Response Letter’’); email from Robert W. Doty, 

President, American Governmental Financial 

Services, dated September 27, 2010 (‘‘AGFS Letter 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Because the foregoing proposed rule 

change does not: (i) Significantly affect 

the protection of investors or the public 

interest; (ii) impose any significant 

burden on competition; or (iii) become 

operative for 30 days after the date of 

the filing, or such shorter time as the 

Commission may designate, if 

consistent with the protection of 

investors and the public interest, it has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 11 and Rule 19b– 

4(f)(6) thereunder.12

The Exchange has requested that the 

Commission waive the 30-day operative 

delay. The Commission hereby grants 

that request.13 The Commission believes 

that waiver of the operative delay is 

consistent with the protection of 

investors and the public interest 

because it has recently approved Phlx’s 

proposal to initiate trading on PSX, 

which it plans to do on October 8, 2010, 

and believes that the proposed rule 

change should be implemented on that 

date to ensure that the Exchange’s rules 

on clearly erroneous trades are 

consistent with the recently approved 

changes to the clearly erroneous 

execution rules of the other markets. 

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission summarily may 

temporarily suspend such rule change if 

it appears to the Commission that such 

action is necessary or appropriate in the 

public interest, for the protection of 

investors, or otherwise in furtherance of 

the purposes of the Act. If the 

Commission takes such action, the 

Commission shall institute proceedings 

to determine whether the proposed rule 

should be approved or 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 e-mail to rulecomments@sec.gov. Please include File 

No. SR–Phlx–2010–125 on the subject 

line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File No. 

SR–Phlx–2010–125. This file number 

should be included on the subject line 

if e-mail 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 

Web site (http://www.sec.gov/rules/ 

sro.shtml). Copies of the submission,14

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 

a.m. and 3 p.m. Copies of such filing 

also will be available for inspection and 

copying at the principal office of Phlx. 

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 No. 

SR–Phlx–2010–125 and should be 

submitted on or before October 27, 

2010. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.15

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–25137 Filed 10–5–10; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–63025; File No. SR–MSRB– 

2010–08] 

Self-Regulatory Organizations; 

Municipal Securities Rulemaking 

Board; Notice of Filing of Amendment 

No. 1 to and Order Granting 

Accelerated Approval of a Proposed 

Rule Change, as Modified by 

Amendment No. 1, to Amend Rule A– 

3, on Membership on the Board, To 

Comply With the Dodd-Frank Wall 

Street Reform and Consumer 

Protection Act 

September 30, 2010. 

On August 27, 2010, the Municipal 

Securities Rulemaking Board (‘‘Board’’ 

or ‘‘MSRB’’) filed with the Securities and 

Exchange Commission (‘‘Commission’’), 

pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Exchange Act’’) 1 and Rule 19b–4 

thereunder,2 a proposed rule change to 

amend MSRB Rule A–3, on membership 

on the Board, to comply with the 

requirements of the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act (‘‘Dodd-Frank Act’’).3 The 

Commission published the proposed 

rule change for comment in the Federal 

Register on September 8, 2010.4 The 

Commission received ten comment 

letters, the MSRB’s response, and a 

supplemental response to the MSRB’s 

response.5 On September 30, 2010, the 

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Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Notices 61807 

II’’); letter from Lawrence P. Sandor, Senior 

Associate General Counsel, MSRB, dated September 

30, 2010 (‘‘MSRB Supplemental Response Letter’’). 

6 In Amendment No. 1, to address concerns raised 

by commenters, MSRB proposes that advisor 

representatives (as defined below) shall not be 

associated with a broker, dealer or municipal 

securities dealer. In addition, in Amendment No. 1, 

the MSRB proposes to amend Rule A–3(i)(iv) to 

provide that on or after October 1, 2010 the MSRB 

will propose amendments to its rules that would 

assure that for future board elections that the 

Nominating Committee will be composed of a 

majority of public representatives and that would 

assure fair representation of bank representatives, 

broker-dealer representatives and advisor 

representatives (as such terms are defined below) 

on the Nominating Committee. 

7See Section 975(b) of the Dodd-Frank Act. 

8See Section 975(i) of the Dodd-Frank Act. 

9Section 15B(b)(1) of the Exchange Act also 

provided that ‘‘[p]rior to the expiration of the terms 

of office of the initial members of the Board, an 

election shall be held under rules adopted by the 

Board (pursuant to subsection (b)(2)(B) of this 

section) of the members to succeed such initial 

members.’’ 

10Section 15B(b)(1)(A) defined the term ‘‘public 

representatives’’ to mean individuals who are not 

associated with any broker, dealer, or municipal 

securities dealer (other than by reason of being 

under common control with, or indirectly 

controlling, any broker or dealer which is not a 

municipal broker, municipal dealer or municipal 

securities dealer), at least one of whom shall be 

representative of investors in municipal securities, 

and at least one of whom shall be representative of 

issuers of municipal securities. 

11Section 15B(b)(1)(B) defined the term ‘‘brokerdealer representatives’’ to mean individuals who are 

associated with and representative of municipal 

securities brokers and municipal securities dealers 

which are not banks or subsidiaries or departments 

or divisions of banks. 

12Section 15B(b)(1)(C) defined the term ‘‘bank 

representatives’’ to mean individuals who are 

associated with and representative of municipal 

securities dealers which are banks or subsidiaries 

or departments or divisions of banks. 

13See 15 U.S.C. 78o–4(b)(1)(A) (as amended by 

the Dodd-Frank Act). 

14See 15 U.S.C. 78o–4(b)(1)(B) (as amended by 

the Dodd-Frank Act). 

15See 15 U.S.C. 78o–4(b)(1) (as amended by the 

Dodd-Frank Act). 

16See 15 U.S.C. 78o–4(b)(2)(B) (as amended by 

the Dodd-Frank Act). 

17See id. 

MSRB filed Amendment No. 1 to the 

proposed rule change.6 This notice and 

order provide notice of Amendment 

No.1 to the proposed rule change and 

approves the proposed rule change, as 

modified by Amendment No. 1, on an 

accelerated basis. 

I. Background and Description of the 

Proposal 

A. Dodd-Frank Act 

The Dodd-Frank Act, among other 

things, amended provisions of Section 

15B of the Exchange Act governing the 

nomination, election and composition 

of members of the Board.7 These 

amendments to Section 15B of the 

Exchange Act will be effective on 

October 1, 2010.8

Prior to enactment of the Dodd-Frank 

Act, Section 15B(b)(1) of the Exchange 

Act provided that the Board must be 

composed initially of fifteen members 

appointed by the Commission.9 In 

addition, the Exchange Act required that 

the initial members of the Board must 

consist of five individuals who are 

public representatives,10 five 

individuals who are broker-dealer 

representatives 11 and five individuals 

who are bank representatives.12

Consistent with the requirements of the 

Exchange Act, the MSRB adopted Rule 

A–3 regarding membership on the 

Board. MSRB Rule A–3, among other 

things, provided that the Board shall be 

composed of 15 members, at all times 

equally divided among public 

representatives, broker-dealer 

representatives and bank 

representatives. 

The Dodd-Frank Act amended Section 

15B(b)(1) of the Exchange Act to provide 

that the members of the Board shall 

consist of two separate groups: eight 

‘‘public representatives’’ and seven 

‘‘regulated representatives.’’ Section 

15B(b)(1)(A) of the Exchange Act 

defines ‘‘public representatives’’ to mean 

individuals who are independent of any 

municipal securities broker, municipal 

securities dealer, or municipal advisor, 

at least one of whom shall be 

representative of institutional or retail 

municipal securities investors (‘‘investor 

representative’’), at least one of whom 

shall be representative of municipal 

entities (‘‘issuer representative’’), and at 

least one of whom shall be 

representative of the public with 

knowledge of or experience in the 

municipal industry (‘‘general public 

representative’’).13 Section 15B(b)(1)(B) 

of the Exchange Act defines ‘‘regulated 

representatives’’ to mean individuals 

who are associated with a broker, 

dealer, municipal securities dealer, or 

municipal advisor, including at least 

one individual who is associated with 

and representative of brokers, dealers, or 

municipal securities dealers that are not 

banks or subsidiaries or departments or 

divisions of banks (‘‘broker-dealer 

representative’’), at least one individual 

who is associated with and 

representative of municipal securities 

dealers which are banks or subsidiaries 

or departments or divisions of banks 

(‘‘bank representative’’), and at least one 

individual who is associated with a 

municipal advisor (‘‘advisor 

representative’’).14 In addition, Section 

15B(b)(1) of the Exchange Act provides 

that each member of the Board must be 

knowledgeable of matters related to the 

municipal securities markets.15

The Dodd-Frank Act also amended 

Section 15B(b)(2)(B) of the Exchange 

Act to provide that the Board shall 

establish fair procedures for the 

nomination and election of the members 

of the Board, and shall assure fair 

representation in such nominations and 

elections of public representatives, 

broker-dealer representatives, bank 

representatives and advisor 

representatives.16 Further, the DoddFrank Act amended Section 15B(b)(2)(B) 

to provide that the Board shall establish 

rules that: Set forth requirements 

regarding the independence of public 

representatives; provide that the number 

of public representatives at all times 

exceed the number of regulated 

representatives; and provide that 

membership on the Board is at all times 

as evenly divided as possible between 

public and regulated representatives. In 

addition, the Dodd-Frank Act amended 

Section 15B(b)(2)(B) to provide that the 

MSRB, by rule, may increase the 

number of members on the Board, 

provided that such number is an odd 

number.17

B. Proposal 

To implement the terms of the DoddFrank Act by the effective date of 

October 1, 2010, the MSRB proposes to 

add subsection (i) to Rule A–3 to 

implement, among other things, a 

transitional provision for the Board’s 

fiscal year commencing October 1, 2010 

that would increase the size of the 

Board from 15 members to 21 members 

(who are knowledgeable of matters 

related to the municipal securities 

markets), with 11 public representatives 

and 10 regulated representatives. This 

transitional provision would be in effect 

until September 30, 2012. In addition, 

prior to October 1, 2010, the MSRB 

proposes to elect 11 new Board 

members, of which eight would be 

public representatives and three would 

be municipal advisor representatives. 

The MSRB proposes that the terms of 

these new Board members would expire 

on September 30, 2012. 

Of the 11 public representatives, the 

MSRB proposes that at least one would 

be an investor representative, at least 

one would be an issuer representative, 

and at least one would be a general 

public representative. With respect to 

the 10 regulated representatives, the 

MSRB proposes that at least one would 

be a broker-dealer representative, at 

least one would be a bank 

representative, and at least one (but not 

less than 30% of the total number of 

regulated representatives) would be an 

advisor representative, who shall not be 

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61808 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Notices 

18The Dodd-Frank Act was signed into law on 

July 21, 2010. The MSRB published a notice on July 

22, 2010, pursuant to which it received a number 

of additional recommendations for persons to serve 

as municipal advisor representatives on the Board. 

See MSRB Notice 2010–22 (July 22, 2010). 

19See supra note 5. 

20See MSRB Response Letter; see also MSRB 

Supplemental Response Letter. 

21See AGFS Letter I; WM Financial Letter. 

22See id. 

23See AGFS Letter I. 

24See WM Financial Letter. 

25See id. 

26See id. 

27See MSRB Response Letter; see also infra note 

30. 

28See MSRB Response Letter. 

29 15 U.S.C. 78o—4(b)(2)(B)(iv) (as amended by 

the Dodd-Frank Act). 

30See Independence Policy of the NYSE Euronext 

Board of Directors (stating a ‘‘Director is not 

independent if he or she is, or within the last year 

was, or has an immediate family member who is, 

or within the last year was a Member, allied 

member or allied person or approved person 

***’’). 

associated with a broker, dealer or 

municipal securities dealer. 

For purposes of determining whether 

an individual is a ‘‘public 

representative,’’ the MSRB proposes to 

add Rule A–3(h), among other things, to 

define the term ‘‘independent of any 

municipal securities broker, municipal 

securities dealer, or municipal advisor’’ 

to mean the individual has ‘‘no material 

business relationship’’ with any 

municipal securities broker, municipal 

securities dealer, or municipal advisor. 

The term ‘‘no material business 

relationship,’’ in turn, would mean that, 

at a minimum, the individual is not and, 

within the last two years, was not 

associated with a municipal securities 

broker, municipal securities dealer, or 

municipal advisor, and that the 

individual does not have a relationship 

with any municipal securities broker, 

municipal securities dealer, or 

municipal advisor, whether 

compensatory or otherwise, that 

reasonably could affect the independent 

judgment or decision making of the 

individual. The Board, or by delegation, 

its Nominating Committee, could also 

determine that additional circumstances 

involving the individual could 

constitute a ‘‘material business 

relationship’’ with a municipal 

securities broker, municipal securities 

dealer, or municipal advisor. 

To help ensure a fair nomination 

process, the MSRB also proposes, in its 

transitional provision under MSRB Rule 

A–3(i), to allow the Nominating 

Committee to solicit nominations for 

municipal advisor representatives by 

publishing a notice in a financial 

journal having general national 

circulation among members of the 

municipal securities industry on or after 

enactment of the Dodd-Frank Act. The 

proposal provides that the Nominating 

Committee shall accept 

recommendations for 14 days following 

the date of publication of such notice 

and shall make the names publicly 

available.18

The proposal also provides that prior 

to the formation of the Nominating 

Committee for purposes of nominating 

potential new members to the Board 

with terms commencing on October 1, 

2011, the Board shall amend the 

provisions of subsection (c) of Rule A– 

3 relating to the composition and 

procedures of the Nominating 

Committee to reflect the composition of 

the Board as provided under the DoddFrank Act, to assure that the Nominating 

Committee shall be composed of a 

majority of public representatives and to 

assure fair representation of bank 

representatives, broker-dealer 

representatives and advisor 

representatives, and ‘‘to reflect such 

other considerations consistent with the 

provisions of the Act and the DoddFrank Act as the Board shall determine 

are appropriate.’’ 

II. Discussion of Comments and MSRB’s 

Response 

The Commission received ten 

comment letters and the MSRB’s 

responses.19 The MSRB provided two 

responses to the comments.20 The 

comments and the MSRB’s responses 

are discussed in greater detail below. 

1. Comments Regarding Requirements 

Relating to Independence of Public 

Representatives 

Some commenters disagreed with the 

MSRB’s proposed definition of the term 

‘‘independent of any municipal 

securities broker, municipal securities 

dealer, or municipal advisor.’’ 21 In 

particular, these commenters did not 

agree with the proposed definition of 

‘‘no material business relationship’’ and 

the requirement that an individual is 

not and, within the last two years, has 

not been, associated with a municipal 

securities broker, municipal securities 

dealer, or municipal advisor.22 One 

commenter suggested that a five-year 

‘‘cooling off’’ period would be more 

appropriate.23 Another commenter 

stated that under the proposed 

definition of the term ‘‘independent of 

any municipal securities broker, 

municipal securities dealer, or 

municipal advisor,’’ it is unclear 

whether any independent municipal 

advisor would be appointed to the 

Board because potentially 100% of the 

Board members could be, or could have 

been, associated with, or employed by, 

a municipal securities broker or 

dealer.24 This commenter stated that it 

believes that an individual who has 

been affiliated with, or employed by, a 

municipal securities broker, dealer, or 

municipal advisor cannot be truly 

independent, regardless of when the 

affiliation or employment ended.25

Thus, the commenter recommended that 

public representatives of the Board 

should consist solely of individuals 

‘‘who have never been associated with, 

employed by and do not otherwise 

possess a material business relationship 

with a [sic] municipal securities 

brokers, municipal securities dealers, or 

municipal advisors.’’ 26

In response to these comments, the 

MSRB stated that it believes that ‘‘the 

two-year cooling off period is 

appropriate as a standard for 

independence’’ and referenced the one 

year cooling-off period imposed by 

other self-regulatory organizations 

(‘‘SROs’’) in determining the 

independence of public members.27

Further, the MSRB noted that the Board 

or the Nominating Committee could 

determine whether other circumstances 

involving the individual would 

constitute a ‘‘material business 

relationship’’ that would result in the 

person not being viewed as 

independent.28

The Commission understands 

commenters’ concerns regarding 

whether a public representative would 

be ‘‘independent of any municipal 

securities broker, municipal securities 

dealer, or municipal advisor’’ if the 

public representative previously has 

been associated with a municipal 

securities broker, municipal securities 

dealer, or municipal advisor, even 

where such association occurred at least 

two years prior to membership on the 

Board. Under Section 15B(b)(2)(B)(iv) of 

the Exchange Act,29 the MSRB must 

have rules establishing requirements 

regarding the independence of public 

representatives. The Commission 

believes the proposed requirements in 

Rule A–3(h) are consistent with the 

requirements of the Exchange Act and 

the rules and regulations thereunder 

applicable to the MSRB. In particular, as 

noted by the MSRB in the MSRB 

Response Letter, the proposal is 

consistent with and indeed, stricter 

than, cooling-off periods required by 

other SROs in determining whether 

public members are independent.30

Further, the proposed two-year cooling 

off period is a minimum requirement 

and, as noted by the MSRB in the MSRB 

Response Letter, the proposal would 

allow the Board, or by delegation, its 

Nominating Committee, to determine 

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31See NAIPFA Letter; Swap Financial Group 

Letter; AGFS Letter I; AGFS Letter II; WM Financial 

Letter; see also GFOA Letter. 

32See Swap Financial Group Letter. 

33See id. The commenter suggested that the four 

advisor representatives should represent each of the 

following categories: (1) General financial advisory 

firm with a national scope; (2) regional financial 

advisory firm whose client base is principally 

governmental entities; (3) financial advisory firm 

whose client base is obligors who borrow through 

tax-exempt conduit agencies; and (4) swap or 

financial products advisor. 

34See WM Financial Letter. 

35See id. 

36See GFOA Letter; see also AGFS Letter II 

(stating that independent advisor representatives 

should be equal in numbers to broker-dealer 

representatives and bank representatives as 

municipal securities dealers are in an adverse role 

in relation to municipal issuers, while municipal 

advisors represent only the municipal issuers). 

37See AGFS Letter I. 38See WM Financials Letter; NAIPFA Letter; 

GFOA Letter; Fieldman letter; AGFS Letter II. 39See BDA Letter. 40See id. 41See id. 42See SIFMA Letter. 43See id. 44See id. 45See GFOA Letter; see also NAIPFA Letter 

(stating that ‘‘fair representation also means that the 

issuers of municipal securities are appropriately 

represented’’). 46See GFOA Letter. 

47See id. 

48See id. 

49See Olson Letter. 

50See MSRB Response Letter. 

51See id. 

52See id. 

53See id. (noting, for example, the establishment 

of a new advisory council to help address 

municipal advisor issues). 

54See id. 

55See MSRB Response Letter. 

additional circumstances involving the 

individual that would constitute a 

‘‘material business relationship’’ with a 

municipal securities broker, municipal 

securities dealer, or municipal advisor. 

2. Comments Regarding Composition of 

the Board 

Several commenters expressed 

concerns that the representation of 

municipal advisors on the proposed 

Board is inadequate.31 For example, one 

commenter noted that during the 

transitional period (from October 1, 

2010 to September 30, 2012), advisor 

representatives would constitute less 

than 15% of the entire Board and 

consequently may be outnumbered by 

broker-dealer representatives and bank 

representatives on the Board.32 This 

commenter suggested that four out of 

the ten regulated representatives should 

be advisor representatives and that these 

four advisor representatives should 

represent a variety of advisors.33

Another commenter recommended that 

five out of the ten regulated 

representatives should be advisor 

representatives, four of whom would be 

independent municipal advisors who 

are not, and have not been, associated 

with, or employed by, a municipal 

securities broker, dealer, bank or 

underwriter.34 This commenter, 

however, noted that even with this 

increase in the number of municipal 

advisor representatives, such 

representatives would constitute only 

19% of the entire Board.35 Another 

commenter suggested that the number of 

independent advisor representatives on 

the Board should be equal to the 

number of bank and broker-dealer 

representatives on the Board.36 One 

commenter stated that due to the 

different services offered by municipal 

advisors, a strict limitation on the 

number of advisor representatives could 

not adequately represent this 

diversity.37 Five commenters stated that 

advisor representatives should be 

independent of bank and broker-dealer 

representatives because bank dealers 

and broker-dealers are already 

represented on the Board.38

One commenter stated that the Board 

should not require that at least 30% of 

regulated representatives be advisor 

representatives.39 This commenter 

stated that the proposal goes beyond the 

requirements of the Dodd-Frank Act and 

effectively increases the minimum 

number of advisor representatives.40

This commenter further stated that 

advisors who work for dealers should be 

eligible as advisor representatives.41

Another commenter generally supported 

the proposed amendments to Rule A–3, 

but suggested that after the transitional 

period, the Board should consider 

reducing its size back to 15 members 

and, at that time, reduce the number of 

advisor representatives on the Board to 

less than 30% of the regulated 

representatives.42 This commenter 

further noted that the Board should not 

establish, as a matter of policy, that 

advisors make up at least 30% of 

regulated representatives, especially 

because the Board has not established a 

minimum number of dealer or bank 

representatives.43 This commenter also 

stated that it believes that the 

requirement that at least one member of 

the Board be an advisor representative 

can be satisfied by representatives of 

‘‘independent’’ municipal advisors or of 

dealers or banks whose firms also 

provide municipal advisory services.44

One commenter suggested that the 

proposed MSRB Board does not provide 

adequate issuer representation.45 This 

commenter recommended that the 

public representatives on the Board be 

comprised of four issuers, four 

investors, and three general public 

members.46 The commenter believes 

that the issuer members should 

represent various-sized state and local 

governments.47 This commenter also 

recommended that ‘‘[a]s the MSRB 

determines the composition of future 

boards, these numbers—as a percentage 

of the total number of board members— 

should not be altered.’’ 48 Another 

commenter stated that the Board should 

be comprised of five investor 

representatives, five issuer 

representatives, and five vendor 

representatives.49

In its response, the MSRB stated that 

it believes that, during the transitional 

period, 30% regulatory representation 

on the Board for municipal advisors is 

appropriate because it will ensure fair 

representation of such entities, will 

assist the Board in its rulemaking 

process with respect to municipal 

advisors and ‘‘will inform the Board’s 

decisions regarding other municipal 

advisory activities while not detracting 

from the Board’s ability to continue its 

existing rulemaking duties with respect 

to broker-dealer and bank activity in the 

municipal securities markets.’’ 50 The 

MSRB also noted that, during the 

transitional period, the three municipal 

advisors on the Board are expected to be 

‘‘advisors that are not affiliated with 

broker-dealers or banks.’’ 51

At the same time, the MSRB noted 

that it does not believe that setting the 

minimum advisor representation at 30% 

of regulated representatives is too low.52

In support, the MSRB noted the 

processes it has, or will have, in place, 

to maximize municipal advisor 

participation in the rulemaking 

process.53 The MSRB also stated that, 

having reviewed the composition 

requirements of other SROs, ‘‘it is 

comfortable that the proposed size and 

composition of the MSRB represents 

best practices in SRO governance and 

will be effective in meeting the full 

range of obligations that the MSRB will 

be undertaking beginning on October 1, 

2010.’’ 54

With respect to comments regarding 

the composition of public 

representatives on the Board, the MSRB 

stated that ‘‘it is comfortable that the 

expanded number of public 

representatives will provide ample 

opportunity for municipal entity 

representation on the Board at levels 

above those that have historically 

occurred under the prior Board 

composition formulation that limited 

public representation to only five 

members.’’ 55 In addition, with respect to 

the one commenter that suggested that 

the Board should be comprised of five 

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56See Olson Letter. 

57See MSRB Response Letter. 

58See id. 

59See 15 U.S.C. 78o–4(b)(2)(B) (as amended by 

the Dodd-Frank Act). 

60See 15 U.S.C. 78o–4(b)(2)(B)(i) (as amended by 

the Dodd-Frank Act). 

61Section 6(b)(3) of the Exchange Act provides 

that: ‘‘An exchange may not be registered as a 

national securities exchange unless the Commission 

determines that * * * (3) The rules of the exchange 

assure fair representation of its members in its 

selection of its directors and administration of its 

affairs and provide that one or more directors shall 

be representative of issuers and investors and not 

be associated with a member of the exchange, 

broker, or dealer.’’ 15 U.S.C. 78f(b)(3). Section 

15A(b)(4) of the Exchange Act contains an identical 

requirement with respect to the rules of a national 

securities association. See 15 U.S.C. 78o–3(b)(4). 

62See, e.g., Securities Exchange Act Release No. 

58324 (August 7, 2008), 73 FR 46936 (August 12, 

2008) (stating that ‘‘the requirement under BSE ByLaws that at least 20% of the BSE Directors 

represent members * * * [is] designed to ensure 

the fair representation of BSE members on the BSE 

Board’’); Securities Exchange Act Release No. 53128 

(January 13, 2006), 71 FR 3550 (January 23, 2006) 

(stating that ‘‘the requirement in [Nasdaq’s] By-Laws 

that twenty percent of the directors be ‘Member 

Representative Directors’ * * * provides for the fair 

representation of members in the election of 

directors * * * consistent with the requirement in 

Section 6(b)(3) of the Exchange Act’’); Securities 

Exchange Act Release No. 48946 (December 17, 

2003), 68 FR 74678 (December 24, 2003) (stating 

that the amended Constitution of the New York 

Stock Exchange, which gives Exchange members 

the ability to nominate no less than 20% of the 

directors on the Board, satisfies the Section 6(b)(3) 

fair representation requirement); see also Securities 

Exchange Act Release No. 50699 (November 18, 

2004), 69 FR 71126 (December 8, 2004) (stating that 

‘‘[c]onsistent with the fair representation 

requirement, the [Commission’s] proposed [SRO] 

governance rules would require that the 

Nominating Committee administer a fair process 

that provides members with the opportunity to elect 

at least 20% of the total number of directors 

(‘member candidates’). * * * This ‘20% standard’ 

for member candidates comports with previouslyapproved SRO rule changes that raised the issue of 

fair representation’’). 63See, e.g., Securities Exchange Act Release No. 

56145 (July 26, 2007), 72 FR 42169 (August 1, 2007) 

(approving the composition of the FINRA (f/k/a 

NASD) Board of Governors to include three small 

firm Governors, one mid-size firm Governor, and 

three large-firm Governors, elected by members of 

FINRA according to their classification as a small 

firm, mid-size firm, or large firm). 

64See 15 U.S.C. 78o–4(b)(2)(B)(i) (as amended by 

the Dodd-Frank Act). 

65See 15 U.S.C. 78o–4(b)(1) (as amended by the 

Dodd-Frank Act). 

66See id. 

67See 15 U.S.C. 78o–4(b)(2) (as amended by the 

Dodd-Frank Act). In addition, the Dodd-Frank Act 

amended Section 15B of the Exchange Act to 

require municipal advisors to register with the 

Commission as of October 1, 2010. See Securities 

Exchange Act Release No. 62824 (September 1, 

2010), 75 FR 54465 (September 8, 2010) (adopting 

interim final temporary Rule 15Ba2–6T under the 

Exchange Act to require the temporary registration 

of municipal advisors on Form MA–T). 

68See 15 U.S.C. 78o–4(b)(2)(B) (as amended by 

the Dodd-Frank Act). 

69See NAIPFA Letter; GFOA Letter; Fieldman 

Letter; AGFS Letter II. 

70See NAIPFA Letter; Fieldman Letter; AGFS 

Letter II. 

investor representatives, five issuer 

representatives, and five vendor 

representatives,56 the MSRB noted that 

such composition formulation would 

not comply with the Dodd-Frank Act, 

which requires that of the public 

representatives, at least one must be an 

investor representative, at least one 

must be an issuer representative, and at 

least one must be a general public 

representative. 

The MSRB noted that the Board is 

aware that municipal advisors are not 

homogeneous and is committed to 

seeking out all categories of members 

based on various criteria.57 In addition, 

the MSRB stated that the proposal 

would establish the Board composition 

for a two year transitional period only 

and, at the end of the transitional 

period, the MSRB will be in a better 

position to make ‘‘long-term decisions’’ 

regarding representation, size and 

related matters.58

The Commission believes that the 

proposal is consistent with the 

requirements of the Exchange Act, and 

the rules and regulations thereunder 

applicable to the MSRB, including the 

fair representation requirements of the 

Exchange Act. Section 15B(b)(2)(B) of 

the Exchange Act requires, among other 

things, that the rules of the Board 

establish fair procedures for the 

nomination and election of members of 

the Board and assure fair representation 

in such nominations and elections of 

public representatives, broker-dealer 

representatives, bank representatives, 

and advisor representatives.59 Section 

15B(b)(2)(B)(i) of the Exchange Act 

provides that the number of public 

representatives of the Board must at all 

times exceed the total number of 

regulated representatives.60 The MSRB 

proposes that the Board consist of 11 

public representatives and 10 regulated 

representatives. Of those 10 regulated 

representatives, the MSRB proposes that 

at least one, and not less than 30%, 

shall be advisor representatives. 

Previously, the Commission has 

considered whether an SRO’s proposed 

governance rules are consistent with the 

Exchange Act’s requirements under 

Sections 6 and 15A for fair 

representation of SRO members 

generally.61 For example, the 

Commission has approved an SRO’s 

governance rules that require that the 

SRO’s members as a whole be able 

select at least 20% of the total number 

of directors of the exchange’s or 

association’s board.62 In addition, the 

Commission has previously found SRO 

rules that provide sub-categories of 

regulated persons with the right to 

select a specified number of directors to 

be consistent with the Exchange Act.63

Under the MSRB proposal, of the 10 

regulated representatives, at least one 

would be a broker-dealer representative, 

at least one would be a bank 

representative, and at least one, and not 

less than 30% of the total regulated 

representatives (i.e. three out of 10), 

would be an advisor representative. 

Section 15B(b)(2)(B)(i) of the Exchange 

Act requires the Board to consist of a 

majority of public representatives, 

leaving a minority of the Board available 

to achieve ‘‘fair representation’’ of the 

three sub-categories of regulated 

representatives.64 Accordingly, ‘‘fair 

representation’’ of each of the subcategories must necessarily mean 

something less than the 20% standard, 

in relation to an entire board, previously 

approved by the Commission for SRO 

members generally under Sections 6 and 

15A of the Exchange Act. 

The Commission also notes that 

Section 15B(b)(1) of the Exchange Act 

sets forth minimum representation 

requirements for bank, broker-dealer 

and advisor representatives.65 It does 

not mandate the specific number of any 

class of representative that should serve 

on the Board, nor does it set forth 

maximum Board composition or 

representation requirements.66 Thus, as 

with the interpretation of ‘‘fair 

representation’’ with respect to other 

SROs, the Commission has flexibility in 

determining what constitutes ‘‘fair 

representation’’ for purposes of the 

Board’s composition under Section 15B 

of the Exchange Act. Based on the 

constraints of Section 15B(b)(2)(B)(i) 

noted above, and the Commission’s 

consideration of ‘‘fair representation’’ in 

other contexts, the Commission believes 

that the MSRB’s proposal to ensure that 

representatives of municipal advisors 

(that are not associated with a broker, 

dealer or municipal securities dealer), 

which, for the first time will be subject 

to MSRB rulemaking,67 would 

constitute at least 30% of the directors 

that may be representatives of the three 

sub-categories of regulated 

representatives, is reasonable, and 

consistent with Section 15B(b)(2)(B) of 

the Exchange Act.68

3. Other Comments 

Four commenters discussed the 

MSRB’s process for determining the 

Board’s leadership for the next year.69

Three commenters made statements 

expressing concern about a lack of 

transparency to this leadership selection 

process, and stated their belief that the 

Board’s action was contrary to the goals 

of the Dodd-Frank Act and 

disenfranchises the new Board.70

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71See AGFS Letter I. The commenter suggested 

that the Board release all staff and Board member 

analyses and communications relating to: (1) the 

selection of the new officers and Board members, 

and the composition and structure of committees 

and advisory groups; (2) the need for regulation of 

municipal advisors; or (3) contacts with members 

of Congress and congressional staff members 

regarding municipal advisor regulation and the 

composition of the new independent Board. The 

commenter also opposed the manner in which the 

Board considers and takes actions with regard to its 

rules. See also AGFS Letter II (calling for the MSRB 

to hold open meetings on all rulemaking actions 

and selection of Board members and officers). 

72See Fieldman Letter. See also GFOA Letter. 

73See AGFS Letter I; Fieldman Letter; AGFS 

Letter II. 

74See MSRB Response Letter. 

75See MSRB Supplemental Response Letter. 

76See MSRB Response Letter; see also MSRB 

Supplemental Response Letter. 

77See id. 

78 In approving this proposed rule change, the 

Commission notes that it has considered the 

proposed rule’s impact on efficiency, competition 

and capital formation. 15 U.S.C. 78c(f). 

79 15 U.S.C. 78o–4(b)(2)(B) (as amended by the 

Dodd-Frank Act). 

80See id. 81See 15 U.S.C. 78s(b). 

Another commenter also expressed 

concern with the ‘‘secrecy around the 

election of officers during this past 

summer.’’ 71 One commenter 

recommended ‘‘reversing the July 

election and allowing the reconstituted 

public majority Board to determine its 

leadership.’’ 72 Two commenters 

suggested that there be substantially 

more transparency with regard to Board 

action.73

Although the provisions of the 

proposed rule change do not directly 

relate to these matters, the Commission 

notes that with respect to comments 

regarding the Board’s election of its 

officers for the 2011 fiscal year, in its 

initial response, the MSRB noted that 

officer elections are governed by MSRB 

Rule A–5(b), and that the MSRB 

followed the process set out in that 

rule.74 In addition, in a supplemental 

response, the MSRB has agreed to hold 

a ratification vote with respect to the 

prior election of the MSRB officers by 

the newly constituted Board at its first 

meeting in October.75 In addition, as 

noted above, the proposal provides that 

prior to the formation of the Nominating 

Committee for purposes of nominating 

potential new members to the Board 

with terms commencing on October 1, 

2011, the Board shall amend the 

provisions of subsection (c) of Rule A– 

3 relating to the composition and 

procedures of the Nominating 

Committee to reflect, among other 

things, the composition of the Board as 

provided under the Dodd-Frank Act and 

to assure that the Nominating 

Committee shall be composed of a 

majority of public representatives and to 

assure fair representation of bank 

representatives, broker-dealer 

representatives and advisor 

representatives. 

With respect to the comments 

regarding transparency of the Board’s 

governance process, the MSRB stated 

that it believes that these processes are 

transparent.76 The MSRB stated, 

however, that it would take the 

comments regarding these processes 

under advisement as its new Board is 

seated on October 1, 2010.77

III. Discussion and Commission’s 

Findings 

The Commission has carefully 

considered the proposed rule change, 

the comment letters received, and the 

MSRB’s responses to the comment 

letters and finds that the proposed rule 

change is consistent with the 

requirements of the Exchange Act and 

the rules and regulations thereunder 

applicable to the MSRB.78 In particular, 

the proposed rule change is consistent 

with Section 15B(b)(1) of the Act, which 

requires, among other things, that the 

Board shall consist of at least eight 

public representatives (with at least one 

investor representative, at least one 

issuer representative, and at least one 

general public representative) and seven 

regulated representatives (with at least 

one broker-dealer representative, at least 

one bank representative, and at least one 

advisor representative). The proposed 

rule change is also consistent with 

Section 15B(b)(2)(B) of the Act,79 which 

requires, among other things, that the 

rules of the Board shall establish fair 

procedures for the nomination and 

election of members of the Board and 

assure fair representation in such 

nominations and elections of public 

representatives, broker-dealer 

representatives, bank representatives, 

and advisor representatives.80

In the Commission’s view, the 

proposed composition of the Board is 

consistent with the requirements of the 

Exchange Act that there is fair 

representation on the Board of public 

representatives, broker-dealer 

representatives, bank representatives 

and advisor representatives. In addition, 

the composition of the Board with 

respect to advisor representatives will 

help assure that municipal advisors will 

have appropriate representation on the 

Board during this period of transition 

when, for the first time, municipal 

advisors will be subject to MSRB 

rulemaking. The Commission further 

believes that the proposed two-year 

‘‘cooling-off’’ period for public 

representatives is appropriate because it 

is a minimum requirement for 

establishing independence and it is 

consistent with other SRO requirements 

for establishing independence of board 

members. 

The Commission notes that the 

proposed rule change with respect to 

the composition of the Board is being 

implemented as a transitional provision 

that will be effective for two years, until 

September 30, 2012. During this period, 

the MSRB will be able to monitor the 

effectiveness of the structure of the 

Board to determine to what extent, if 

any, proposed changes might be 

appropriate. The Commission is 

sensitive to commenters’ concerns 

regarding fair representation. The 

Commission notes that the proposal by 

the MSRB for the establishment of a 

permanent Board structure must be filed 

with, and considered by, the 

Commission pursuant to Section 19(b) 

of the Exchange Act 81 before the 

proposal can be effective, as would rules 

the MSRB seeks to implement with 

respect to oversight of municipal 

advisors. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 

arguments concerning Amendment No. 

1, including whether Amendment No. 1 

is consistent with the Exchange 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 e-mail to rulecomments@sec.gov. Please include File 

Number SR–MSRB–2010–08 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–MSRB–2010–08. This file 

number should be included on the 

subject line if e-mail 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 

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82See MSRB Response Letter. 

83 15 U.S.C. 78o–4(b)(2)(B) (as amended by the 

Dodd-Frank Act). 

84 15 U.S.C. 78s(b)(2). 

85 15 U.S.C. 78o–4(b)(1) (as amended by the 

Dodd-Frank Act). 

86 15 U.S.C. 78o–4(b)(2) (as amended by the 

Dodd-Frank Act). 

87 15 U.S.C. 78s(b)(2). 

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 inspection and copying in 

the Commission’s Public Reference 

Room, 100 F Street, NE., Washington DC 

20549, on official business days 

between the hours of 10 a.m. and 3 p.m. 

Copies of such 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–2010–08 and should 

be submitted on or before October 27, 

2010. 

V. Accelerated Approval of Proposed 

Rule Change, as Modified by 

Amendment No. 1 

The Commission finds good cause for 

approving the proposed rule change, as 

modified by Amendment No. 1, before 

the 30th day after the date of 

publication in the Federal Register. The 

Commission notes that the proposal was 

published for notice and comment, and 

the Commission received ten comment 

letters, which comments have been 

discussed in detail above. Amendment 

No. 1 proposes to amend proposed Rule 

A–3(i)(i)(B)(3) to explicitly provide that, 

of the regulated representatives on the 

Board, ‘‘at least one, and not less than 

30 percent of the total number of 

regulated representatives, shall be 

associated with and representative of 

municipal advisors and shall not be 

associated with a broker, dealer or a 

municipal securities dealer.’’ The 

Commission notes that in the MSRB’s 

Response Letter, the MSRB expressed its 

expectation that the advisor 

representatives would be ‘‘advisors that 

are not affiliated with broker-dealers or 

banks.’’ 82 Amendment No. 1 provides 

additional clarification that the advisor 

representatives on the Board during the 

transitional period will be independent 

advisors not associated with brokers, 

dealers or municipal securities dealers. 

In addition, Amendment No. 1 

proposes that, with respect to the 

formation of the Nominating Committee 

for purposes of nominating potential 

new members of the Board with terms 

commencing on October 1, 2011, the 

Board shall amend the provisions of 

section (c) of Rule A–3 relating to the 

composition and procedures of the 

Nominating Committee, among other 

things, to assure that the Nominating 

Committee shall be composed of a 

majority of public representatives and to 

assure fair representation of bank 

representatives, broker-dealer 

representatives and advisor 

representatives. Section 15B(b)(2)(B) of 

the Exchange Act provides that the 

MSRB’s rules must, at a minimum, 

‘‘establish fair procedures for the 

nomination and election of members of 

the Board and assure fair representation 

in such nominations and elections of 

public representatives, broker dealer 

representatives, bank representatives, 

and advisor representatives.’’ 83 In 

addition, as discussed above, Section 

15B(b)(2)(B)(i) of the Exchange Act 

provides that the MSRB’s rules shall 

provide that the number of public 

representatives of the Board shall at all 

times exceed the total number of 

regulated representatives. Amendment 

No. 1 proposes that the Nominating 

Committee would reflect the new 

composition of the Board with a 

majority public representation and with 

fair representation of bank 

representatives, broker-dealer 

representatives and advisor 

representatives. 

The Commission believes that 

Amendment No. 1 is consistent with the 

requirements of the Exchange Act and 

finds good cause, consistent with 

Section 19(b)(2) of the Act,84 to approve 

the proposed rule change, as modified 

by Amendment No. 1, on an accelerated 

basis. 

VI. Conclusion 

For the foregoing reasons, the 

Commission finds that the proposed 

rule change, as modified by Amendment 

No. 1, is consistent with the 

requirements of the Exchange Act and 

the rules and regulations thereunder 

applicable to the MSRB, and in 

particular, Sections 15B(b)(1) 85 and 

15B(b)(2) 86 of the Exchange Act. 

It is therefore ordered that, pursuant 

to Section 19(b)(2) of the Exchange 

Act,87 the proposed rule change (SR– 

MSRB–2010–08), as modified by 

Amendment No. 1 be, and it hereby is, 

approved on an accelerated basis. 

By the Commission. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–25108 Filed 10–5–10; 8:45 am] 

BILLING CODE 8010–01–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

[DOT Docket No. DOT–OST–2010–0074] 

Future of Aviation Advisory Committee 

(FAAC) 

AGENCY: U.S. Department of 

Transportation, Office of the Secretary 

of Transportation. 

ACTION: The Future of Aviation 

Advisory Committee (FAAC); Notice of 

Meeting. 

SUMMARY: The Department of 

Transportation, Office of the Secretary 

of Transportation, announces the fourth 

meeting of the FAAC, which will be 

held in the Los Angeles area. This 

notice announces the date, time and 

location of the meeting, which will be 

open to the public. The purpose of 

FAAC is to provide advice and 

recommendations to the Secretary of 

Transportation to ensure the 

competitiveness of the U.S. aviation 

industry and its capability to effectively 

manage the evolving transportation 

needs, challenges, and opportunities of 

the global economy. 

DATES: The meeting will be held on 

October 20, 2010, from 8:30 a.m. to 4:30 

p.m. 

ADDRESSES: The meeting will be held at 

the offices of the Federal Aviation 

Administration’s Western-Pacific 

Region Headquarters Building, 15000 

Aviation Boulevard, Lawndale, CA 

90261. 

FOR FURTHER INFORMATION CONTACT: 

Pamela Hamilton, Designated Federal 

Official, Future of Aviation Advisory 

Committee, 202–267–9677, 

FAAC@dot.gov. 

SUPPLEMENTARY INFORMATION: The 

advisory committee will also meet on 

the following date this year: 

• December 15 

Location: U.S. Department of 

Transportation Headquarters, West 

Atrium, 1200 New Jersey Avenue, 

SE., Washington, DC 20590. 

Members of the public may review the 

FAAC charter and minutes of FAAC 

meetings at http://www.regulations.gov 

in docket number DOT–OST–2010– 

0074 or the FAAC Web site at http:// 

www.dot.gov/faac. 

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