[Federal Register Volume 59, Number 143 (Wednesday, July 27, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-18252] [[Page Unknown]] [Federal Register: July 27, 1994] ======================================================================= ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-34420; File No. SR-NASD-94-14] Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Order Approving Proposed Rule Change Relating to Application for Membership in the National Association of Securities Dealers, Inc. July 20, 1994. On May 4, 1994, the National Association of Securities Dealers, Inc. (``NASD'' or ``Association'') filed with the Securities and Exchange Commission (``SEC'' or ``Commission'') a proposed rule change\1\ pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'')\2\ and Rule 19b-4 thereunder.\3\ The rule change amends Sections 1(b) and 1(c) to Article III of the NASD By-Laws and Schedule C to the By-Laws to clarify the process by which an applicant applies for membership in the NASD. --------------------------------------------------------------------------- \1\The NASD amended the proposed rule change three times subsequent to its original filing on March 11, 1994. The first amendment changed the requirement that an applicant for membership in the NASD submit a copy of its ``current submission to the Securities and Exchange Commission pursuant to Rule 15b1-2(c) under the Securities Exchange Act of 1934'' to require that the applicant submit ``Form BD filed with the Central Registration Depository.'' This amendment is technical in nature in that it corrects a deficiency that arose out of the 1992 amendments to the broker- dealer registration process which deleted Rule 15b1-2(c) and requires that Form BD be submitted to the NASD. See Securities Exchange Act Release No. 31660 (Dec. 28, 1992), 58 FR 11 (Jan. 4, 1993) (adoption of rule amendments to broker-dealer registration and reporting requirements). The second amendment reflected the results of the NASD membership vote concerning the NASD's proposed rule change. The change was submitted to a vote of the NASD membership in NASD Notice to Members 94-22 (Apr. 1994), and was approved by the membership, as required by Article XVII, Section 1 of the NASD By-Laws, by a vote of 1,879 in favor, 161 opposed, and 6 not voting out of 2,046 ballots received. Finally, the third amendment provided minor wording changes to Schedule C of the Schedules to the By-Laws, Part I, Section 2(f) and further clarified the NASD's basis for proposing certain other changes; this amendment was technical in nature and did not have any substantive impact. \2\15 U.S.C. Sec. 78s(b)(1) (1988). \3\17 CFR 240.19b-4 (1994). --------------------------------------------------------------------------- Notice of the proposed rule change together with its terms of substance was provided by issuance of a Commission release and by publication in the Federal Register.\4\ No comments were received in response to the Commission release. This order approves the proposed rule change. --------------------------------------------------------------------------- \4\Securities Exchange Act Release No. 34156 (June 3, 1994), 59 FR 29839 (June 9, 1994). --------------------------------------------------------------------------- I. Description of the Rule Change The NASD seeks to amend its By-Laws and Rules with respect to the procedural aspects of the membership application process. The NASD has identified instances where its By-Laws and rules are inconsistent and where its actual practices are inconsistent with its rules. This rule change corrects these aberrations and further clarifies the membership application process. A. Amendments Concerning the Role of the District Committee in the Membership Application Process The NASD By-Laws currently provide that any application for membership shall be referred to the District Committee of the NASD district in which the applicant has its principal place of business. The By-Laws further provide that the appropriate District Committee shall determine whether the applicant satisfies the NASD's admission requirements.\5\ In contrast, the NASD's rules, Schedule C to the By- Laws, provide that the District Office staff initially determine an applicant's eligibility for membership. The rules do, however, further set forth procedures for review by the District Committee, upon request by the applicant, of the District Office's determination.\6\ --------------------------------------------------------------------------- \5\NASD Manual, By-Laws, Art. III, Secs. 1(b) & (c), (CCH) 1311. \6\Id., Schedules to the By-Laws, Schedule C, Part I, Secs. (1) & (2), (CCH) 1783. --------------------------------------------------------------------------- According to the NASD, the actual practice is for the appropriate District Committee to determine an applicant's eligibility for membership. The NASD has determined to amend its By-Laws and Schedule C to allow each District Committee to designate a Subcommittee to act, under limited circumstances, on behalf of the District Committee. The proposed rule change, therefore, amends the NASD By-Laws and Schedule C to provide that all initial applications for membership be reviewed by either the District Committee or a Subcommittee of the District Committee, with a right of appeal to the full District Committee.\7\ --------------------------------------------------------------------------- \7\The NASD has also amended the By-Laws by deleting the explicit requirement that determinations of the District Committee (and now Subcommittees designated by the District Committee) be made by a majority of its members. The NASD indicated that it removed this requirement because it believes that the requirement that a determination be made by a vote presumes that the vote will be a majority of the members of the District Committee or Subcommittee designated by the District Committee. File No. SR-NASD-94-14, Amendment No. 3. --------------------------------------------------------------------------- B. Amendments to Schedule C The NASD has also submitted ministerial amendments to Schedule C designed to clarify the NASD's procedures concerning the application process. These include amendments to Part I of Schedule C to the By- Laws: Subsection (1)(a), clarifying that an applicant must provide other relevant information and documents requested by the District Office staff; Subsection (1)(a)(6), clarifying that an applicant must provide other relevant information and documents requested by the District Office staff; Subsection (1)(b), clarifying that the scheduling of an applicant's pre-membership interview and the determination of which responsible personnel shall appear on behalf of the applicant at such interview will be determined by the District Office staff; Subsection (2)(a) clarifying that it is the determination of the designated Subcommittee, rather than the District Office, which will be reviewed by the District Committee upon request of the applicant; Subsection (2)(a) clarifying that the applicant's request for review must be filed within 15 calendar days after notification of the Subcommittee's determination; Subsection (2)(b) clarifying that, in connection with review by the District Committee, an applicant is entitled to appear before a Hearing Subcommittee of the District Committee and that no member of the District Committee who served as a member of the Subcommittee originally designated to review the applicant's submission and no member of the Hearing Subcommittee shall participate in the determination resulting from the District Committee's review; Subsection (2)(c) clarifying that the District Committee's determination of the record developed before it shall be made independent of the determination of the Subcommittee designated by the District Committee; Subsection (2)(d) clarifying that the District Committee's determination shall be subject to review by the National Business Conduct Committee (``NBCC'') upon request made by the applicant filed within 15 calendar days after the date of notification to the applicant by the District Committee of its determination; Subsection (2)(e) clarifying that in connection with review by the NBCC, the applicant has the right to appear before a Subcommittee of the NBCC; Subsection (2)(f) clarifying that the NBCC's determination of the record developed before it shall be made independent of the determination of the Subcommittee designated by the District Committee, and shall constitute final action for the NASD for purposes of Subsection (2)(h) to Part I of Schedule C to the By-Laws unless called for discretionary review by the Board of Governors; Subsection (2)(f) clarifying that a decision by the Board pursuant to its power of discretionary review shall constitute final action for purposes of Subsection (2)(h) to Part I of Schedule C to the By-Laws and that such determination and its rationale shall be communicated to the applicant in writing; New subsection (2)(g) clarifying that review by the Board of Governors of NBCC determinations is discretionary\8\ and may occur solely at the request of one or more governors and not at the request of the applicant; --------------------------------------------------------------------------- \8\This discretionary review of the Board shall be in accordance with the resolutions of the Board governing the review of NBCC determinations. The Board may affirm, reverse or modify an NBCC decision. The commencement of the review shall operate as a stay of any action by the Subcommittee designated by the District Committee and any determination by the NBCC until a decision is reached by the Board. --------------------------------------------------------------------------- Subsection (2)(h) (formerly subsection (2)(g)) clarifying that an applicant may apply for review to the Commission of any determination by the NBCC or the Board; Subsection (2)(i) (formerly subsection (2)(h)) clarifying that it applies to determinations of restrictions placed on the applicant made by the NBCC or a Subcommittee designated by the District Committee, as well as to such determinations made by the Board or a District Committee; Subsection (3)(a) clarifying that review and removal or modification of restrictions placed on the applicant shall be done by a Subcommittee designated by the District Committee; Subsection (3)(b) clarifying that modifications of restrictions shall be subject to review by the District Committee and the NBCC, as well as by the Board and the Commission; and Subsection (3)(c) clarifying that the refusal by a Subcommittee designated by the District Committee to remove or modify restrictions shall also be subject to review, but only upon request of the member filed with the District Committee within ten calendar days after the date of notification of such refusal. II. Discussion The Commission has determined to approve the NASD's proposal. The Commission believes that the rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to the NASD, including the requirements of Section 15A(b)(8) of the Act.\9\ Section 15A(b)(8) requires, in part, that the rules of the NASD be designed to provide a fair procedure concerning the denial of membership in the NASD and prohibiting or limiting access to services of the NASD. --------------------------------------------------------------------------- \9\15 U.S.C. 78o-3(b)(8). --------------------------------------------------------------------------- This rule change clarifies the NASD's membership application process by eliminating the inconsistencies between the NASD's by-Laws and the Schedules to the By-Laws concerning the administration of this process. In addition, this rule change clarifies the procedures set forth in the Schedules to the By-Laws for accepting, denying or accepting with limitations an application for membership. III. Conclusion In conclusion, for the reasons stated above, the Commission finds that the rule change is designed to provide a fair procedure concerning the denial of membership in the NASD and prohibiting or limiting access to services of the NASD. The Commission therefore finds that the proposed rule change is consistent with the requirements of the Act. It is therefore ordered, pursuant to Section 19(b)(2) of the Act, that the proposed rule change SR-NASD-94-14 be, and hereby is, approved. For the Commission, by the Division of Marker Regulation, pursuant to delegated authority.\10\ --------------------------------------------------------------------------- \10\17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- Margaret H. McFarland, Deputy Secretary. [FR Doc. 94-18252 Filed 7-26-94; 8:45 am] BILLING CODE 8010-01-M