WSR 08-14-072

PROPOSED RULES

DEPARTMENT OF

FINANCIAL INSTITUTIONS
(Securities Division)

[ Filed June 26, 2008, 9:32 a.m. ]

Continuance of WSR 08-09-126.

Exempt from preproposal statement of inquiry under WSR 07-15-011.

Title of Rule and Other Identifying Information: In order to allow interested persons additional time to submit comments, the securities division is continuing the rule-making proceeding concerning the proposed amendment to its rules to provide further clarification of when a person holds himself or herself out as a "financial planner" or "investment counselor." The rules the division has proposed to amend are set forth in WAC 460-24A-040 and 460-24A-045.

Hearing Location(s): Department of Financial Institutions, 150 Israel Road S.W., Room 319, Tumwater, WA 98501, on August 5, 2008, at 1:00 p.m.

Date of Intended Adoption: August 6, 2008.

Submit Written Comments to: Faith L. Anderson, Department of Financial Institutions, Securities Division, P.O. Box 9033, Olympia, WA 98507-9033, e-mail fanderson@dfi.wa.gov, fax (360) 704-6480, by August 5, 2008.

Assistance for Persons with Disabilities: Contact Carolyn Hawkey, P.O. Box 9033, Olympia, WA 98507-9033, by July 29, 2008, TTY (360) 664-8126 or (360) 902-8774.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The securities division has proposed to amend its rules to clarify that a person who uses a term or abbreviation thereof, or engages in any conduct, that would lead a reasonable person to believe that the person is holding himself or herself out as a "financial planner" or "investment counselor" holds himself or herself out as a "financial planner" or "investment counselor" and is therefore subject to registration as an investment adviser under RCW 21.20.0040 unless that person falls within the exception set forth in WAC 460-24A-045 for those that would not otherwise be considered an investment adviser. In order to achieve this goal, the division proposed amendments to WAC 460-24A-040 to provide that a person not only holds himself or herself out as a "financial planner" or "investment counselor" when the person uses any of the terms already listed in that section, but also when the person "uses any other term or abbreviation thereof, or engages in any conduct, that would lead a reasonable person to believe that the person is holding himself or herself out as a 'financial planner' or 'investment counselor.'" The division also proposed amendments to the exception for persons that would otherwise be considered investment advisers set forth in WAC 460-24A-045 to make minor changes to accommodate the proposed amendments to WAC 460-24A-040. Text of the proposed amendments to the division's rules accompanies this notice.

Reasons Supporting Proposal: The amendments proposed by the division should be adopted to provide greater clarity regarding when a person holds himself or herself out as an investment adviser, particularly given the growing use of professional designations that state or imply that a person has special expertise, certification, or training in financial planning, including the growing use of senior designations and certifications. The division has concerns that these types of designations are being used by persons that are not registered as investment advisers.

Statutory Authority for Adoption: RCW 21.20.450, 21.20.005(6), 21.20.040(4).

Statute Being Implemented: Chapter 21.20 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of financial institutions, securities division, governmental.

Name of Agency Personnel Responsible for Drafting: Faith L. Anderson, 150 Israel Road S.W., Olympia, WA 98501, (360) 725-7825; Implementation: Scott Jarvis, 150 Israel Road S.W., Olympia, WA 98501, (360) 902-8700; and Enforcement: Michael E. Stevenson, 150 Israel Road S.W., Olympia, WA 98501, (360) 902-8824.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The Securities Act of Washington, chapter 21.20 RCW, and the existing rules adopted thereunder already subject persons who hold themselves out as "financial planners" or "investment counselors" to registration as investment advisers. Therefore, the adoption of the amendments to existing rules proposed in this notice will not add any additional compliance burdens for those subject to the rules but will provide greater clarity to those subject to these rules. If any costs are borne by businesses in connection with the proposed rules, these costs will be no more than minor. As such, the agency is not required to prepare a small business economic impact statement under RCW 19.85.030.

A cost-benefit analysis is not required under RCW 34.05.328. The department of financial institutions is not one of the agencies listed in RCW 34.05.328.

June 25, 2008

Scott Jarvis

Director

OTS-1465.5


AMENDATORY SECTION(Amending WSR 00-01-001, filed 12/1/99, effective 1/1/00)

WAC 460-24A-040   Use of certain terms.   (((1))) For the purposes of RCW 21.20.040(((3))) (4), ((use of any term, or abbreviation for a term, including the word)) a person holds himself or herself out as a "financial planner" or ((the word)) "investment counselor" ((is considered the same as the use of either of those terms alone.

(2) For the purposes of RCW 21.20.040(3), terms that are deemed similar to "financial planner" and "investment counselor" include, but are not limited to,)) when the person:

(1) Uses any of the following terms or abbreviations thereof:

(a) Financial consultant;

(b) Investment consultant;

(c) Money manager;

(d) Investment manager;

(e) Investment planner;

(f) Chartered financial consultant ((or its abbreviation)) (ChFC); or

(g) ((The abbreviation CFP.)) Certified financial planner (CFP); or

(2) Uses any other term or abbreviation thereof, or engages in any conduct, that would lead a reasonable person to believe that the person is holding himself or herself out as a "financial planner" or "investment counselor."

[Statutory Authority: RCW 21.20.450. 00-01-001, 460-24A-040, filed 12/1/99, effective 1/1/00; 97-16-050, 460-24A-040, filed 7/31/97, effective 8/31/97. Statutory Authority: RCW 21.20.040(2) and 21.20.450. 93-01-113, 460-24A-040, filed 12/21/92, effective 1/21/93; 90-13-029, 460-24A-040, filed 6/12/90, effective 7/13/90.]


AMENDATORY SECTION(Amending WSR 97-16-050, filed 7/31/97, effective 8/31/97)

WAC 460-24A-045   Holding out as a financial planner or investment counselor -- Exception.   A person ((using a term deemed similar to "financial planner" or "investment counselor")) who would otherwise be deemed an investment adviser under WAC 460-24A-040(((2))) will not be considered ((to be holding himself out as a financial planner for purposes of)) an investment adviser under RCW 21.20.005(6) and 21.20.040(4) under the following circumstances:

(1) The person is not in the business of providing advice relating to the purchase or sale of securities, and would not, but for ((his)) the use of ((such a)) certain terms or abbreviations thereof as set forth in WAC 460-24A-040(1) or engaging in certain conduct set forth in WAC 460-24A-040(2), be an investment adviser required to register pursuant to RCW 21.20.040; and

(2) The person does not directly or indirectly receive a fee for providing investment advice. Receipt of any portion of a "wrap fee," that is, a fee for some combination of brokerage and investment advisory services, constitutes receipt of a fee for providing investment advice for the purpose of this section; and

(3) The person delivers to every customer, at least forty-eight hours before accepting any compensation, including commissions from the sale of any investment product, a written disclosure including the following information:

(a) The person is not registered as an investment adviser or investment adviser ((salesperson)) representative in the state of Washington;

(b) The person is not authorized to provide financial planning or investment advisory services and does not provide such services; and

(c) A brief description of the person's business which description should include a statement of the kind of products offered or services provided (e.g., the person is in the business of selling securities and insurance products) and of the basis on which the person is compensated for the products sold or services provided; and

(4) The person has each customer to whom a disclosure described in subsection (3) of this section is given sign a written dated acknowledgment of receipt of the disclosure; and

(5) The person shall retain the executed acknowledgments of receipt required by subsection (4) of this section and of the disclosure given for so long as the person continues to receive compensation from such customers, but in no case for less than three years from the date of execution of the acknowledgment;

(6) If the person received compensation from the customer on more than one occasion, the person need give the customer the disclosure described in subsection (3) of this section only on the first occasion unless the information in the disclosure becomes inaccurate, in which case the person must give the customer updated disclosure before receiving further compensation from the customer.

[Statutory Authority: RCW 21.20.450. 97-16-050, 460-24A-045, filed 7/31/97, effective 8/31/97. Statutory Authority: RCW 21.20.040(2) and 21.20.450. 93-01-113, 460-24A-045, filed 12/21/92, effective 1/21/93.]

Washington State Code Reviser's Office