[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Notices]
[Pages 54898-54899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26572]



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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-36403; File No. SR-NASD-95-15]


Self-Regulatory Organizations; Order Approving 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

October 20, 1995.
    On April 15, 1995,\1\ the National Association of Securities 
Dealers, Inc. (``NASD'' or ``Association'') filed with the Securities 
and Exchange Commission (``SEC'' or ``Commission'') a proposed rule 
change pursuant to Section 19(b)(1) of the Securities Exchange Act of 
1934 (``Act''),\2\ and Rule 19b-4 thereunder.\3\ The proposed rule 
change adopts a statement of policy to establish internal NASD 
procedures \4\ 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'').\5\

    \1\ The NASD submitted two amendments to the proposed rule 
change prior to publication of notice in the Federal Register, and 
one amendment subsequent to publication of notice in the Federal 
Register. Amendment No. 1, submitted on August 15, 1995, 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, submitted on August 23 revised the 
proposed rule change to clarify the types of violations of Rule G-37 
for which a member could request exemptions. Amendment No. 3, 
submitted on October 20, 1995, amends the NASD Code of Procedure by 
adding a footnote to the title referencing the procedures 
established in the proposed rule change.
    \2\ 15 U.S.C. 78s(b)(1).
    \3\ 17 CFR 240.19b-4.
    \4\ The internal NASD procedures established pursuant to the 
statement of policy will not amend existing rules contained in the 
NASD Code of Procedure or other existing NASD rules.
    \5\ MSRB Manual, General Rules, Rule G-37 (CCH) para. 3681. MSRB 
Rule G-37 prohibits members from engaging in municipal securities 
business if certain political contributions have been made to 
municipal issuers.
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    Notice of the proposed rule change, together with the substance of 
the proposal, was provided by issuance of a Commission release 
(Securities Exchange Act Release No. 36151, August 24, 1995) and by 
publication in the Federal Register (60 FR 45202, August 30, 1995). No 
comment letters were received. This order approves the proposed rule 
change.
    The Commission approved MSRB Rule G-37 on April 7, 1994.\6\ 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 \7\ 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 

[[Page 54899]]
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,\8\ 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.

    \6\ Securities Exchange Act Release No. 33868 (April 7, 1994), 
59 FR 17621 (April 13, 1994).
    \7\ Securities Exchange Act Release No. 34160 (June 3, 1994), 59 
FR 30376 (June 13, 1994) (``Release 34-34160'').
    \8\ The MSRB clarifies 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 minimus 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.\9\

    \9\ 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 rule change 
adopts a statement of policy that establishes an NASD internal 
procedure to grant exemptions from MSRB Rule G-37. As noted above, the 
statement of policy is an internal procedure and does not amend 
existing rules contained in the NASD Code of Procedure or other 
existing NASD rules.
    The statement of policy provides that the staff of the Regulation 
Business Line, as assigned by the Executive Vice President of 
Regulation initially will issue a written decision concerning whether 
to grant a member's request for exemption from MSRB Rule G-37. 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 statement of policy provides that the Board will delegate 
authority to the Fixed Income Committee, or a subcommittee thereof, to 
review the appeal of a member regarding an NASD staff denial of an 
exemption from MSRB Rule G-37.
    The Board may review a decision of the Fixed Income Committee, or a 
subcommittee thereof, 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 the 
relevant subcommittee, or remand the matter to the Fixed Income 
Committee with appropriate instructions.
    The statement of policy reflects the NASD's belief that the Fixed 
Income Committee is the appropriate reviewing body because the members 
of the Fixed Income Committee should 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 NASD stated that it 
believes that vesting authority with the Fixed Income Committee should 
ensure that uniform standards are applied throughout the country to 
requests for exemptions from Rule G-37, and that these standards should 
effectuate the intent of the MSRB that the NASD grant such exemptions 
under very limited circumstances, as noted above.
    The Commission finds that the rule change is consistent with the 
provisions of Section 15A(b)(2) of the Act because it establishes a 
procedure to enforce compliance with MSRB Rule G-37 that is intended to 
effectuate the intent of the MSRB that the NASD grant exemptions only 
under the limited circumstances contemplated by the MSRB. The 
Commission also finds that, for the reasons set forth above, the rule 
change is consistent 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.
    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that the proposed rule change SR-NASD-95-15 be, and hereby is, 
approved.

    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. 95-26572 Filed 10-25-95; 8:45 am]
BILLING CODE 8010-01-M