Comments on Nevada’s Revised Proposed Fiduciary Duty Regulations

August 2, 2022

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Via Electronic Submission

Erin Houston
Securities Division
Office of the Secretary of State
2250 Las Vegas Boulevard North, Suite 400
North Las Vegas, NV 89030

 

Re:      Notice of Draft Regulations and Request for Comment

Dear Ms. Houston:

The Investment Adviser Association[1] (IAA) appreciates the opportunity to comment on the Securities Division’s (Division) revised proposed regulations regarding fiduciary duty.[2] The IAA’s members are investment adviser firms registered with the U.S. Securities and Exchange Commission (SEC) under the Investment Advisers Act of 1940 (Advisers Act). We therefore have a strong interest in ensuring that the Division does not extend an additional layer of substantive regulation to SEC-registered investment advisers (SEC Advisers), which would be contrary to the National Securities Markets Improvement Act of 1996 (NSMIA). The IAA is pleased to see that the Division added language in the proposed regulations stating that the provisions of the regulation would only apply to an SEC Adviser as permitted by NSMIA.[3] We write to ask the Division to ensure that this language is included in the final regulation.

We appreciate the Division’s efforts to make clear that the proposed regulations would not apply to SEC Advisers, except as permitted by NSMIA. The text of the proposed regulations includes specific statements to this effect in two sections. Sections 5(3)(b) and 6(2) both provide that those sections apply to an SEC Adviser only “[a]s permitted by section 203A of the Investment Advisers Act of 1940 and [NSMIA].”[4] While this specific language is not included in other sections, such as those relating to recordkeeping requirements[5] and custody,[6] we read the broad language in proposed Section 4, which states that the entire section of the Nevada Administrative Code (NAC) that includes the draft regulations “must be interpreted and applied in harmony with” NSMIA,[7] to mean that the proposed regulations would only apply to SEC Advisers as permitted by NSMIA.

We appreciate your consideration of the IAA’s comments and would be happy to provide any additional information that may be helpful. Please contact the undersigned at (202) 293-4222 if we can be of further assistance.

Respectfully Submitted,

Gail C. Bernstein
General Counsel

William A. Nelson
Associate General Counsel

 

cc:
The Hon. Gary Gensler, Chair, Securities and Exchange Commission
The Hon. Hester M. Peirce, Commissioner, Securities and Exchange Commission
The Hon. Caroline A. Crenshaw, Commissioner, Securities and Exchange Commission
The Hon. Mark T. Uyeda, Commissioner, Securities and Exchange Commission
The Hon. Jaime Lizárraga, Commissioner, Securities and Exchange Commission
William A. Birdthistle, Director, Division of Investment Management, Securities and Exchange Commission

 

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[1] The IAA is the leading organization dedicated to advancing the interests of investment advisers. For more than 80 years, the IAA has been advocating for advisers before Congress and U.S. and global regulators, promoting best practices and providing education and resources to empower advisers to effectively serve their clients, the capital markets, and the U.S. economy. The IAA’s member firms manage more than $35 trillion in assets for a wide variety of individual and institutional clients, including pension plans, trusts, mutual funds, private funds, endowments, foundations, and corporations. For more information, please visit www.investmentadviser.org.

[2] Barbara K. Cegavske, Nevada Secretary of State, Notice of Workshop to Solicit Comments on Revised Proposed Regulations, Agenda, and Small Business Impact Statement, June 30, 2022, available at https://www.nvsos.gov/sos/home/showpublisheddocument/10702/637921955784035765.

[3] The IAA addressed NSMIA and its implications for SEC Advisers in earlier letters to the Division and we refer you to those letters for these discussions. See Letter from Gail Bernstein, IAA, to Diana Foley (Mar. 1, 2019), available at https://www.investmentadviser.org/wp-content/uploads/2021/10/IAA_Comment_Letter_on_Nevada_Draft_Fiduciary_Regulations.pdf; Letter from Gail Bernstein and Paul Glenn, IAA, and Tamara K. Salmon, Investment Company Institute, to Diana J. Foley (Oct. 2, 2017), available at https://higherlogicdownload.s3.amazonaws.com/INVESTMENTADVISER/aa03843e-7981-46b2-aa49-c572f2ddb7e8/UploadedImages/publications/IAA-ICI-Letter-Nevada-12-2-2017.pdf (IAA Letters).

[4] Proposed Sections 5(3)(b) and 6(2) of NAC Chapter 90.

[5] Proposed Sections 13, 15, 15, 16, 17 and 18 of NAC Chapter 90.

[6] Proposed Section 7 of NAC Chapter 90.

[7] Proposed Section 4 of NAC Chapter 90.