[Federal Register Volume 60, Number 168 (Wednesday, August 30, 1995)]
[Notices]
[Pages 45202-45204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21500]



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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-36151; File No. SR-NASD-95-15]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change by National Association of Securities Dealers, Inc. Relating to 
a Statement of Policy To Establish Internal NASD Procedures Delegating 
to the NASD Staff and the Fixed Income Committee Authority To Review 
Requests by Members for Exemptions From Rule G-37(b) of the Municipal 
Securities Rulemaking Board

August 24, 1995.
    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 August 
23, 1995,\1\ the National Association of Securities Dealers, Inc. 
(``NASD'' or ``Association'') filed with the Securities and Exchange 
Commission (``SEC'' or ``Commission'') 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.

    \1\ The NASD initially submitted the proposed rule change on 
April 15, 1995. Amendment No. 1 deleted all portions of the proposed 
rule change addressing the ability of NASD members to apply to the 
Commission for review of any denial by the NASD of a member's 
request for exemption from Municipal Securities Board Rule G-37. 
Amendment No. 2 revised the proposed rule change to clarify the 
types of violations of Rule G-37 for which a member could request 
exemptions.
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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 adopt a statement of policy to establish 
internal NASD procedures delegating to the NASD staff and the Fixed 
Income Committee the authority to review requests by members for 
exemptions from Rule G-37 of the Municipal Securities Rulemaking Board 
(``MSRB''). MSRB Rule G-37 \2\ prohibits members from engaging in 
municipal securities business if certain political contributions have 
been made to municipal issuers.\3\ Below is the text of 

[[Page 45203]]
the proposed text change. New language is italicized.

    \2\ MSRB Manual, General Rules, Rule G-37 (CCH) para.3681.
    \3\ The proposed statement of policy would establish internal 
NASD procedures and would not amend the NASD Code of Procedure or 
other NASD rules.
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Procedure of the Board of Governors for the Granting of Exemptions From 
MSRB Rule G-37

    1. The Board of Governors (``Board'') delegates authority to John 
E. Pinto, Executive Vice President, Regulation Business Line, to 
authorize a member of the staff to review requests of NASD members for 
exemptions pursuant to MSRB Rule G-37(i).
    2. The staff authorized to review exemption requests shall issue a 
written decision to the member which shall set forth the decision and 
that the member may request a review of the staff decision by the Fixed 
Income Committee of the NASD within 15 calendar days of the date of the 
decision.
    3. The Board delegates authority to the Fixed Income Committee, or 
a subcommittee thereof, to review the appeal of a member from a 
decision of the staff with respect to the member's request for an 
exemption form MSRB Rule G-37.
    4. The review conducted by the staff of the Regulation Business 
Line and the Fixed Income Committee, or a subcommittee thereof, of a 
member's request for exemption will be on the written record, including 
any submissions made by the member in support of its request for 
exemption.
    5. The decision of the Fixed Income Committee, or a subcommittee 
thereof, may be reviewed by the Board solely upon the request of one or 
more Governors. Such review, which may be undertaken solely at the 
discretion of the Board, shall be in accordance with resolutions of the 
Board governing the review of the Fixed Income Committee decisions. In 
reviewing any decision of the Fixed Income Committee, the Board may 
affirm, modify or reverse the decisions of the Fixed Income Committee 
or remand the matter to the Fixed Income Committee with appropriate 
instructions.
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

    The Commission approved MSRB Rule G-37 on April 7, 1994.\4\ MSRB 
Rule G-37(b) prohibits any broker, dealer, or municipal securities 
dealer from engaging in municipal securities business with any issuer 
within two years after any contribution to an official of that issuer 
made by that broker, dealer, or municipal securities dealer, any 
municipal finance professional associated with that broker, dealer, or 
municipal securities dealer, or any political action committee 
controlled by that broker, dealer, or municipal securities dealer. The 
two year prohibition, however, is not triggered by contributions, by a 
municipal finance professional to issuer officials for whom that 
municipal finance professional was entitled to vote if such 
contribution in total, did not exceed $250 per official per election. 
Subsequently, on June 3, 1994, the Commission granted accelerated 
approval to an amendment to MSRB Rule G-37 \5\ to provide a procedure 
for a broker, dealer, or municipal securities dealer to seek exemptive 
relief from MSRB Rule G-37(b) if that broker, dealer, or municipal 
securities dealer discovers that a prohibited political contribution 
was made. Pursuant to Release 34-34160, subsection (i) to MSRB Rule G-
37 permits the NASD to exempt, conditionally or unconditionally, an 
NASD member who is prohibited from engaging in municipal securities 
business with an issuer pursuant to subsection (b) of MSRB Rule G-37 
from that prohibition. MSRB Rule G-37(i)(i) provides that the NASD 
shall consider among other factors, whether such exemption is 
consistent with the public interest, the protection of investors and 
the purposes of this rule. MSRB Rule G-37(i)(ii) sets forth further 
criteria for the granting of the exemption by requiring that the MSRB 
member have in place procedures designed to ensure compliance with the 
rule,\6\ had no actual knowledge of the contributions, has taken 
appropriate steps to obtain return of the contribution(s), and has 
taken other remedial measures as may be appropriate.

    \4\ Securities Exchange Act Release No. 33868 (April 7, 1994), 
59 FR 17621 (April 13, 1994).
    \5\ Securities Exchange Act Release No. 34160 (June 3, 1994), 59 
FR 30376 (June 13, 1994) (``Release 34-34160)''.
    \6\ The MSRB clarified its view regarding effective compliance 
procedures for Rule G-37 in a letter dated March 14, 1995 from 
Christopher A. Taylor, Executive Director, MSRB, to John E. Pinto 
Jr., Executive Vice President--Regulation, NASD. That letter states 
that the MSRB believes that Rule G-37 requires a dealer to have 
information regarding each contribution made by the dealer, dealer-
controlled political action committees and municipal finance 
professionals so that it can determine where and with whom it may or 
may not engage in municipal securities business. In addition, the 
dealer must have information on executive officer contributions and 
political party payments and consultant hiring practices for 
disclosure purposes. Moreover, the dealer must ensure that those 
persons and entities subject to MSRB Rule G-37 are not causing the 
dealer to violate MSRB Rule G-37. Furthermore, the dealer must 
ensure that other people and entities hired to assist in municipal 
securities activities (e.g., consultants) are not being directed to 
make contributions, or otherwise being used as conduits, in 
violation of MSRB Rule G-37.
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    Release 34-34160 states that the MSRB believes that exemptions from 
MSRB Rule G-37 should be granted only if a disgruntled employee 
contributes to an issuer official for the purpose of injuring the 
member or if an employee makes a number of small contributions during 
an election cycle (e.g., four years) which, when consolidated, amount 
to slightly over the $250 de minimis exemption (such as contributions 
totalling $255). It also states that the MSRB would expect that the 
exemption not be routinely requested by dealers and that exemptions 
would be granted by the NASD only in limited circumstances.\7\

    \7\ Release 34-34160 also states that the MSRB will seek 
information from the NASD regarding the granting of any exemptions 
in order to monitor the implementation of this provision, and to 
determine if any changes are necessary.
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    In order to implement a procedure for reviewing requests for NASD 
member exemptions anticipated under MSRB Rule G-37, the NASD proposes 
to adopt a statement of policy that would establish an NASD internal 
procedure to grant exemptions from MSRB Rule G-37. The proposed 
statement of policy would be an internal procedure and would not amend 
the NASD Code of Procedure or other NASD rules.
    The NASD proposes that the initial determination on whether to 
grant a member's request for exemption from MSRB Rule G-37 be made by 
the staff of the Regulation Business Line, as assigned by the Executive 
Vice President of Regulation, which will issue a written decision. If 
the staff determines to deny the member's request for exemption, the 
written decision must include a statement advising the member that it 
has 15 days in which to appeal the initial staff determination to the 
Fixed Income Committee of the NASD.
    The NASD proposes that the Fixed Income Committee, or a 
subcommittee thereof, be delegated authority by the 

[[Page 45204]]
Board to review the appeal of a member regarding a NASD staff denial of 
an exemption from MSRB Rule G-37.
    The decision of the Fixed Income Committee, or a subcommittee 
thereof, may be reviewed by the Board solely upon the request of one or 
more Governors. Such a review would be undertaken solely at the 
discretion of the Board and will be in accordance with resolutions of 
the Board. In reviewing any decision of the Fixed Income Committee, the 
Board may affirm, modify or reverse a decision of the Fixed Income 
Committee or remand the matter to the Fixed Income Committee with 
appropriate instructions.
    The NASD believes that the Fixed Income Committee is the 
appropriate reviewing body as the members of the Fixed Income Committee 
would have the requisite knowledge regarding the municipal business 
necessary to weigh the member's argument that the requested exemption 
would comply with the provisions and intent of MSRB Rule G-37. In 
addition, the use of the Fixed Income Committee would ensure uniformity 
throughout the country on the granting of such exemptions which the 
MSRB intended to be granted very infrequently. The appeal of such 
matters to a national committee also has the advantage of all 
determinations being made in one forum, thereby avoiding disparate 
applications of the exemptive provision that might occur if the NASD's 
District Business Conduct Committees were assigned this responsibility.
    The NASD believes that the proposed rule change is consistent with 
the provisions of Section 15A(b)(2) of the Act in that it establishes a 
procedure to enforce compliance with MSRB Rule G-37 whereby the NASD 
staff and the Fixed Income Committee may review member requests for 
exemption from MSRB Rule G-37 and may grant exemptions only within the 
limited circumstances anticipated by the MSRB and MSRB Rule G-37 as 
approved by the Commission. Moreover, the NASD believes the proposed 
rule change is consistent for the reasons discussed above with the 
provisions of Section 19(g)(1)(B) of the Act, which requires that the 
NASD, absent reasonable justification or excuse, enforce compliance 
with MSRB rules.

(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 submissions 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-95-15 and 
should be submitted by September 20, 1995.

    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. 95-21500 Filed 8-29-95; 8:45 am]
BILLING CODE 8010-01-M