[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3485]


[[Page Unknown]]

[Federal Register: February 15, 1994]


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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-33603; File No. SR-NASD-93-66]

 

Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change by National Association of Securities Dealers, Inc. Relating to 
Filing Requirements for Use of Mutual Fund Rankings and Elimination of 
Sunset Provisions in Pre-Filing Requirements of Advertising and 
Government Securities Rules

February 8, 1994.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''), 15 U.S.C. 78s(b)(1), notice is hereby given that on November 
4, 1993, the National Association of Securities Dealers, Inc. (``NASD'' 
or ``Association'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission''), and amended on February 7, 1994,\1\ the 
proposed rule change as described in Items I, II, and III below, which 
Items have been prepared by the NASD. The Commission is publishing this 
notice to solicit comments on the proposed rule change from interested 
persons.
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    \1\Amendment No. 1 superseded the original rule filing.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The NASD is proposing to amend Article III, Section 35 of the NASD 
Rules of Fair Practice to require filing of advertisements and sales 
literature relating to investment companies, to make the pre-filing 
requirement of Article III, Subsection 35(c)(2) of the Rules of Fair 
Practice and in Subsection 8(c)(1)(B) of the Government Securities 
Rules permanent, and to properly reference the ``Advertising Regulation 
Department'' throughout Article III, Section 35 of the Rules of Fair 
Practice and the Government Securities Rules. Below is the text of the 
proposed rule change. Proposed new language is italicized; proposed 
deletions are in brackets.
Rules of Fair Practice
* * * * *
Communications With the Public
Sec. 35
* * * * *
(c) Filing Requirements and Review Procedures
    (1) Advertisements and sales literature concerning registered 
investment companies (including mutual funds, variable contracts and 
unit investment trusts) not included within the requirements of 
Subsection (c)(2) of this Section, and public direct participation 
programs (as defined in Article III, Section 34 of the Rules of Fair 
Practice) shall be filed with the Association's Advertising Regulation 
Department within 10 days of first use or publication by any member. 
Filing in advance of use is recommended. Members are not required to 
file advertising and sales literature which have previously been filed 
and which are used without change. Any member filing any investment 
company advertisement or sales literature pursuant to this Subsection 
that includes or incorporates rankings or comparisons of the investment 
company with other investment companies shall include a copy of the 
ranking or comparison used in the advertisement or sales literature.
    (2) Advertisements concerning collateralized mortgage obligations 
registered under the Securities At of 1933, and advertisements and 
sales literature concerning registered investment companies (including 
mutual funds, variable contracts and unit investment trusts) that 
include or incorporate rankings or comparisons of the investment 
company with other investment companies where the ranking or comparison 
category is not generally published or is the creation, either directly 
or indirectly, of the investment company, its underwriter or an 
affiliate, shall be filed with the Association's Advertising Regulation 
Department for review at least 10 days prior to use (or such shorter 
period as the Department may allow in particular circumstances) for 
approval and, if changed or expressly disapproved by the Association, 
shall be withheld from publication or circulation until any changes 
specified by the Association have been made or, in the event of 
disapproval, until the advertisement has been refiled for, and has 
received, Association approval. Any member filing any investment 
company advertisement or sales literature pursuant to this Subsection 
shall include a copy of the data, ranking or comparison on which the 
ranking or comparison is based. [This subsection (c)(2) shall remain in 
effect for one year from November 16, 1993 unless modified or extended 
prior thereto by the Board of Governors.]
* * * * *
Government Securities Rules
* * * * *
Communications With the Public
Sec. 8
* * * * *
(c) Filing Requirements and Review Procedures
    (1) Members shall file advertisements for review with the 
Association's Advertising Regulation Department as follows:
* * * * *
    (B) advertisements concerning collateralized mortgage obligations 
shall be filed with the Association's Advertising Regulation Department 
for review at least 10 days prior to use (or such shorter period as the 
Department may allow in particular circumstances) for approval and, if 
changed or expressly disapproved by the Association, shall be withheld 
from publication or circulation until any changes specified by the 
Association have been made or, in the event of disapproval, until the 
advertisement has been refiled for, and has received, Association 
approval. [This subsection (c)(1)(B) shall remain in effect for one 
year from November 16, 1993 unless modified or extended prior thereto 
by the Board of Governors.]
* * * * *

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the NASD included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The NASD has prepared summaries, set forth in Sections 
(A), (B), and (C) below, of the most significant aspects of such 
statements.

(A) Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    As the number of mutual funds has increased substantially in recent 
years, so has the number of mutual fund ranking entities (``Ranking 
Entities''). Ranking Entities, as well as mutual funds and fund 
affiliates, categorize and rank mutual funds by, for example, fund 
type, performance over a given period of years, total return, 
standardized yield calculated pursuant to Commission rules, the 
variations in sales charges, and risk/reward. References to such 
rankings in mutual fund advertisements and sales literature have also 
increased substantially in recent years as members have attempted to 
boost the sale of fund shares by touting the performance of various 
mutual funds.
    The NASD Board of Governors believes that it is important for the 
Association to be able to review and regulate the use of ranking 
materials and the development of customized rankings in order to 
prevent the misleading use of such rankings. The NASD is, therefore, 
proposing to amend Article III, Section 35(c) of the NASD Rules of Fair 
Practice to require that copies of mutual fund rankings and the data on 
which the rankings are based be submitted to the Association's 
Advertising Regulation Department review. The proposed rule change 
requires members filing advertisements or sales literature for review 
which use or incorporate mutual fund rankings to include in the filing 
a copy of the ranking or comparison. The NASD also has proposed 
Guidelines for the Use of Rankings in Mutual Fund Advertisements and 
Sales Literature (``Guidelines'') on which the NASD review will be 
based.\2\
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    \2\On November 4, 1993, the NASD submitted a proposed rule 
change with the Commission File No. SR-NASD-93-69) for Commission 
approval. The Commission intends to publish notice of the Guidelines 
in the Federal Register concurrently with notice of the instant 
proposed rule change.
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    Subsection 35(c)(1) is proposed to be amended to require that any 
member that files any investment company advertisements or items of 
sales literature pursuant to Subsection 35(c)(1) which include or 
incorporate rankings or comparisons of the investment company with 
other investment companies, shall include a copy of the ranking or 
comparison used in the advertising or sales literature. The 
requirements of this provision will permit the staff to immediately 
determine whether the use of the ranking complies with the Guidelines, 
and avoid the need for the NASD staff to research the ranking or 
attempt to obtain a copy of the source information in order to verify 
the accuracy of the material.
    Subsection 35(c)(2), which currently requires certain 
advertisements to be filed by members 10 days prior to use, is proposed 
to be amended to require such pre-use filing for all investment company 
advertisements or items of sales literature which incorporates rankings 
or comparisons of the investment company with other investment 
companies where the ranking or comparison is not generally published or 
is the creation, directly or indirectly, of the investment company, its 
underwriter or an affiliate.\3\ While the NASD is concerned about 
permitting ranking categories to be created by investment companies or 
their affiliates, rather than by a Ranking Entity, it recognizes that 
customized ranking may provide meaningful information to the investor. 
Such filing also must include a copy of the data, ranking or comparison 
on which the ranking or comparison is based.
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    \3\The proposed Guidelines permit the use of a ranking based on 
a category or subcategory created by a fund or a fund affiliate 
rather than by a Ranking Entity, so long as the ranking is based on 
the performance measurements of a Ranking Entity.
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    The NASD is also proposing to amend Article III, Subsection 
35(c)(2) of the Rules of Fair Practice and Subsection 8(c)(1)(B) of the 
Government Securities Rules to eliminate sunset provisions relating to 
collateralized mortgage obligations (``CMOs''). This change will make 
the pre-filing requirement for CMO advertisements permanent.\4\
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    \4\The NASD simultaneously filed, with the original filing of 
this proposed rule change, proposed rule change SR-NASD-93-64 
requesting a grant of temporary accelerated approval to extend the 
sunset provisions for one year to provide an opportunity for SEC 
review and publication for comment of this proposed rule change. The 
SEC granted accelerated approval to that proposed rule change. See 
Securities Exchange Act Release No. 33174 (Nov. 9, 1993), 58 FR 
60712 (Nov. 17, 1993) (approving File No. SR-NASD-93-64).
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    Finally, the NASD is proposing to modify references to the 
Advertising Department to reference the Advertising Regulation 
Department in Article III, Section 35 of the Rules of Fair Practice and 
the Government Securities Rules.
    The NASD believes that the proposed rule change is consistent with 
the provisions of Section 15A(b)(6) of the Act\5\ in that the rule 
ensures that the use of rankings of investment companies in advertising 
and sales literature is accurate and presents investors with fair and 
meaningful data upon which to make an informed investment decision. 
With respect to the proposed elimination of the sunset provisions for 
the prefiling of CMO advertisements, the Board believes that the 
positive regulatory benefits seen since implementation of the 
provision, i.e., the reduction in misleading advertising, warrants 
making the prefiling requirement provision permanent.
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    \5\15 U.S.C. 78o-3.
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(B) Self-Regulatory Organization's Statement on Burden on Competition

    The NASD does not believe that the proposed rule change will result 
in any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act, as amended.

(C) Self-Regulatory Organization's Statement on Comments on the 
Proposed Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self regulatory organization consents, the Commission will:

    A. By order approve such proposed rule change, or
    B. Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing. Persons making written submissions 
should file six copies thereof with the Secretary, Securities and 
Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549. 
Copies of the submission, 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 inspection and copying in the 
Commission's Public Reference Room. Copies of such filing will also be 
available for inspection and copying at the principal office of the 
NASD. All submissions should refer to File Number SR-NASD-93-66 and 
should be submitted by [insert date 21 days from the date of 
publication].

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority, 17 CFR 200.30-3(a)(12).
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-3485 Filed 2-14-94; 8:45 am]
BILLING CODE 8010-01-M