[Federal Register Volume 60, Number 112 (Monday, June 12, 1995)]
[Notices]
[Pages 30906-30907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14323]



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SECURITIES AND EXCHANGE COMMISSION
[Release Nos. 33-7177; 34-35815; IC-21117]


Securities Transactions Settlement

June 6, 1995.
AGENCY: Securites and Exchange Commission.

ACTION: Grant of exemption.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
exempting transactions involving certain insurance contracts from the 
scope of Rule 15c6-1.

EFFECTIVE DATE: The exemption from Rule 15c6-1 for insurance contracts 
will be effective on June 7, 1995.

FOR FURTHER INFORMATION CONTACT:
Jerry Carpenter, Assistant Director, Christine Sibille, Senior Counsel, 
or Cheryl Oler, Attorney, at 202/942-4187, Office of Securities 
Processing Regulation, Division of Market Regulation, Securities and 
Exchange Commission, 450 Fifth Street, N.W., Mail Stop 5-1, Washington, 
D.C. 20549.

SUPPLEMENTARY INFORMATION: On October 6, 1993, the Commission 
adopted Rule 15c6-1 \1\ under the Securities Exchange Act of 1934 
(``Exchange Act'') which establishes three business days after the 
trade date (``T+3'') instead of five business days (``T+5'') as the 
standard settlement time frame for most broker-dealer securities 
transactions.\2\ Rule 15c6-1 becomes effective June 7, 1995.\3\

    \1\ 17 CFR 240.15c6-1 (1994).
    \2\ Securities Exchange Act Release No. 33023 (October 6, 1993), 
58 FR 52891.
    \3\ As adopted, Rule 15c6-1 was to become effective June 1, 
1995. In order to provide for an efficient conversion the Commission 
changed the effective date to June 7, 1995. Securities Exchange Act 
Release No. 34952 (November 9, 1994), 59 FR 59137.
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    Rule 15c6-1 covers all securities other than exempted securities, 
government securities, municipal securities,\4\ commercial paper, 
bankers' acceptances, or commercial bills. The rule contains a specific 
exemption for sales of unlisted limited partnership interests and 
alternate settlement time frames for certain firm commitment offerings 
of new issues.\5\

    \4\ Pursuant to Municipal Securities Rulemaking Board rules, 
transactions in municipal securities are required to settle by T+3. 
Securities Exchange Act Release No. 35427 (February 28, 1995), 60 FR 
12798.
    \5\ Securities Exchange Act Release No. 35705 (May 11, 1995), 60 
FR 26604.
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    Certain insurance contracts, including variable annuity contracts 
and variable life insurance contracts, have been deemed to be 
securities under the Securities Act of 1933 (``Securities Act''),\6\ 
and other insurance contracts, such as certain fixed dollar annuity 
contracts that include a market value adjustment provision, may fall 
within the definition of securities under the Exchange Act 
(collectively, these contracts are referred to hereinafter as insurance 
securities products). Accordingly, as adopted, the scope of Rule 15c6-1 
includes purchases and sales of such securities issued by an insurance 
company.\7\

    \6\ Securities and Exchange Commission v. Variable Annuity Life 
Insurance Co. of America, et al., 359 U.S. 65, 79 S.Ct. 618, 3 
L.Ed.2d 640 (1959) (variable annuity contracts are ``securities'' 
which must be registered with the Commission under the Securities 
Act); Securities Act Release No. 5360, Securities Exchange Act 
Release No. 9972, Investment Co. Act Release No. 7644, Investment 
Advisors Act Release No. 359 (January 31, 1973) (a public offering 
of variable life insurance contracts involved an offering of 
securities required to be registered under the Securities Act).
    \7\ Within the context of this order, the definition of an 
insurance company is set forth in Section 2(a)(17) of the Investment 
Company Act of 1940 (``Investment Company Act''). 15 U.S.C. 
Sec. 80a-2(a)(17). An insurance company that sells and distributes 
insurance securities products may be acting as a broker and a dealer 
as defined in Sections 3(a)(4) and 3(a)(5) of the Exchange Act. 
There are, however, certain circumstances in which an insurance 
company that issues and distributes insurance securities may not be 
required to register with the Commission as a broker-dealer. The 
Commission staff, for example, has expressed the view that if an 
insurance company establishes a wholly-owned subsidiary to engage in 
the offer and sale of insurance securities, and the subsidiary 
complies with all applicable rules and regulations, including the 
requirement to direct and supervise all persons engaged directly or 
indirectly in the offer and sale of securities, it would not 
recommend enforcement action to the Commission if the insurance 
company itself did not register with the Commission. Securities 
Exchange Act Release No. 8389 (August 29, 1968), 33 FR 13005. 
Consistent with those specifications, the staff of the Division of 
Market Regulation has further expressed circumstances in which an 
insurance company may not be required to register as a broker-
dealer. See, e.g., Principal Marketing Services, Inc. (June 2, 
1988); Pacific Mutual Life Insurance Company (April 13, 1989); 
Allstate Life Insurance Company and Lincoln Benefit Life Company 
(September 12, 1988); and Time Insurance Company (October 17, 1989).
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    The American Council of Life Insurance (``ACLI'') has requested 
that the Commission exempt from Rule 15c6-1 purchases or redemption 
transactions of variable annuity contracts, variable life insurance 
contracts, and certain fixed dollar annuity contracts.\8\ According to 
ACLI, the complex nature and various unique processing requirements 
involved in the purchase or sale of insurance securities products 
cannot practically be condensed into a T+3 settlement cycle.

    \8\ Letters from Robert S. McConnaughey, Senior Counsel, ACLI, 
to Brandon Becker, Director, Division of Market Regulation, 
Commission (April 18, 1995 and May 17, 1995).
    The Commission recognizes that the mechanics of purchases and 
redemptions of insurance securities products are distinct from those of 
other securities and that, because of the time required to complete 
necessary preparations, such transactions typically require more 
protracted settlement periods. Specifically, the Commission believes 
that compliance with the unique requirements of state and federal law, 
as well as of the particular administrative procedures, applicable to 
insurance securities products demands additional time beyond the 
standard settlement process, and supports an exemption of such 
securities from Rule 15c6-1. For example, the Commission notes that the 
purchase process for a variable life insurance contract involves the 
assessment of insurability of the contract purchaser and the acceptance 
of the mortality risk before a contract can be issued for delivery.\9\ 
Processing of an annuity contract may be protracted by substantial 
review to determine that any requirements imposed under the Internal 
Revenue Code (``IRC'') or the Employee Retirement Income Security Act 
(``ERISA'') are met.

    \9\ This assessment is time consuming because it may involve 
medical examinations, laboratory tests, and review of medical 
records.
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    In addition, such insurance securities products are subject to 
extensive federal and state regulation on timing of certain 
actions.\10\ For example, once processing for a contract is complete, 
many states require that the insurer provide the purchaser with the 
right to return the contract for any reason within a specified time of 
delivery, generally ten days, and to receive a refund of the premium or 
the contract's cash value without imposition of surrender charges.\11\

    \10\ Insurance companies are regulated primarily by the states 
in which they are organized and operate. In addition, federal 
regulations govern some aspects of insurance contract issuance 
affecting the timing of such transactions. For example, Rule 22c-
1(c) under the Investment Company Act requires that an insurer price 
a variable annuity contract within certain time frames.
    \11\ E.g., New York Insurance Law Sec. 4240(13) (McKinney 
1985). [[Page 30907]] 
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    Likewise, the redemption or withdrawal process for insurance 
securities products often extends beyond the T+3 time frame. With 
respect to annuity contracts, the effectiveness of a withdrawal request 
may be delayed by the need for additional information or instructions 
from the contract owner with respect to the withholding of proceeds or 
payments to the Internal Revenue Service. In addition, while the 
processing of a withdrawal may take place mechanically through the 
insurer's systems, various circumstances may give rise to additional or 
preliminary manual processing which can lengthen the withdrawal 
process.\12\ Withdrawals also may require insurers' compliance with 
applicable IRC provisions or ERISA requirements, as well as various 
administrative procedures which are relevant only to insurance 
securities products and not to other securities. Such compliance may 
demand extra processing time for withdrawals.\13\

    \12\ For example, contracts between insurers and contract owners 
may contain special rights restriction provisions which limit the 
right to effect withdrawals or impose other restrictions originating 
from, among other things, a tax lien or divorce decree. Such 
contracts usually require manual processing which results in delay 
of the actual processing of the withdrawal.
    \13\ Variable annuities, for example, can be used to fund a 
variety of plans, including tax sheltered annuities, each of which 
has its own set of complex tax rules regarding withdrawals. Certain 
variable life insurance contracts may become subject to 
classification as modified endowment contracts which have taxable 
predeath distributions. Consequently, some insurers undertake 
additional examination of withdrawal transactions to determine prior 
to their completion if the contracts at issue could be classified as 
a modified endowment contract. Payment of death benefits on variable 
life insurance contracts and on variable annuity contracts 
frequently require extended processing time because insurance 
companies cannot make payments until they receive and review all 
documentation relevant to the claims and in some instances conduct 
an investigation of the claims.
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    The various administrative processes and the requirements under 
state and federal law which pertain to insurance securities products 
add complexity and time to the purchase and sale of such securities. 
These circumstances support the exemption of such securities from the 
scope of Rule 15c6-1.
    Furthermore, permitting a longer settlement cycle for transactions 
involving insurance securities products does not appear to adversely 
affect the market risk concerns which the T+3 settlement cycle seeks to 
address. In adopting Rule 15c6-1, the Commission stated that three day 
settlement would reduce risk by decreasing the time between trade 
execution and settlement during which the value of securities could 
deteriorate.\14\ While insurance securities products are securities, 
neither the insurance company nor purchaser is subject to the same 
settlement risks attendant to the purchase of most securities. 
Moreover, insurance securities products are not traded in secondary 
market.

    \14\ Securities Exchange Act Release No. 33023 (October 6, 
1993), 58 FR 52891 [File No. S7-5-93]. The other reasons given by 
the Commission for the rule's adoption, coordination between the 
derivative and cash markets and encouragement of greater efficiency 
in clearing agency and broker-dealer operations, are not applicable 
to insurance securities products.
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    Likewise, withdrawal or redemption of an insurance securities 
product bears less risk to insurers and contract owners. Extensive 
state regulations exist to ensure that insurers meet their obligations 
to pay withdrawal proceeds to contract owners. Accordingly, an 
exemption from Rule 15c6-1 for insurance securities products does not 
appear to be inconsistent with the purposes of Rule 15c6-1.
    The Commission believes that an exemption is appropriate to provide 
issuers with the time needed to settle transactions involving insurance 
securities products. Such an exemption should not affect the current 
regulatory scheme governing insurance securities products, including 
the relevant sections and rules under the Investment Company Act and 
the Securities Act pertaining to the purchase and sale of securities 
issued by insurance companies. Accordingly, the Commission finds that 
such exemption is consistent with the public interest and the 
protection of investors.
    It is hereby ordered that a contract for the purchase or sale of 
any security issued by an insurance company as defined in Section 
2(a)(17) of the Investment Company Act of 1940\15\ (``Investment 
Company Act'') that is funded by or participates in a ``separate 
account'' as defined in Section 2(a)(37) of the Investment Company 
Act,\16\ including a ``variable annuity contract'' as defined in Rule 
0-1(e)(1) under the Investment Company Act \17\ or a ``variable life 
insurance contract'' as defined in Rule 6e-2(c)(1) or Rule 6e-
3(T)(c)(1) under the Investment Company Act,\18\ or any other insurance 
contract registered as a security under the Securities Act of 1933,\19\ 
shall be exempt from the requirements of Rule 15c6-1.\20\ This 
exemption is subject to modification or revocation at any time the 
Commission determines that such modification or revocation is 
consistent with the public interest or the protection of investors.

    \15\ 15 U.S.C. 80a-2(a)(17).
    \16\ 15 U.S.C. 80a-2(a)(37).
    \17\ 17 CFR 270.0-1(e)(1).
    \18\ 17 CFR 270.6e-2(c)(1) and 270.6e-3(T)(c)(1).
    \19\ 15 U.S.C. 77a-77mm.
    \20\ 17 CFR 240.15c6-1 (1994).

    For the Commission by the Division of Market Regulation pursuant 
to delegated authority.\21\

    \21\ 17 CFR 200.30-3(a)(55).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 95-14323 Filed 6-9-95; 8:45 am]
BILLING CODE 8010-01-M