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SEC Corrects Rule Error re: Advisors' Political Contributions

May 21, 2012
[ By Howard Haykin ] The SEC made a technical amendment to Rule 206(4)-5 under the Investment Advisers Act of 1940 (“Advisers Act”) to correct the definition of "covered associate" which included an inadvertent error when published in the Federal Register on 7/19/11. Background Information. The SEC adopted rule 206(4)-5 in July 2010 to prohibit an investment adviser from providing advisory services for compensation to a government client for 2 years after the adviser or certain of its executives or employees ("covered associates") make a contribution to certain elected officials or candidates.  In November 2010, the Commission proposed new rules and rule amendments under the Advisers Act to implement provisions of the Dodd-Frank Reform Act. In that release, the SEC also proposed several amendments to rule 206(4)-5, including a minor change to the rule’s definition of a "covered associate" to replace the word "individual" with the word "person."  The proposed change would have specified that a legal entity, not just a natural person, that is a general partner or managing member of an investment adviser would meet the definition of "covered associate." Nearly one year later, the SEC adopted many of the new rules and rule amendments set forth in the Implementing Proposing Release, including amendments to rule 206(4)-5.  The Commission specified in the “Discussion” section of the Implementing Adopting Release that it was not adopting the proposed amendment to the definition of "covered associate" -  i.e., that the definition would continue to use the word "individual."  However, the text of rule 206(4)-5(f)(2)(i) published in the "Text of Rule and Form Amendments" section of the Implementing Adopting Release, and subsequently in the Federal Register, incorrectly reflected the replacement of the word "individual" with the word "person," as though that proposed change had been adopted. That was incorrect, and to reverse this mistake, the SEC is making a technical amendment to rule 206(4)-5(f)(2)(i) to replace the word "person" with the word "individual." The amendment the Commission is adopting does not make substantive or material modifications to any collection of information requirements as defined by the Paperwork Reduction Act of 1995, as amended. SEC Staff Contacts. Vanessa Meeks, Attorney-Adviser, Melissa Roverts, Branch Chief, at (202) 551-6787, or IArules@sec.gov, Office of Investment Adviser Regulation, Division of Investment Management. For further details, go to:   [SEC Final Rule Release IA-3403, 5/9/12].