[Federal Register Volume 63, Number 204 (Thursday, October 22, 1998)]
[Notices]
[Pages 56670-56684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28321]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-40555; File No. SR-NASD-98-48]


Self-Regulatory Organizations; Order Granting Approval to 
Proposed Rule Change and Notice of Filing and Order Granting 
Accelerated Approval to Amendment Nos. 3 and 4 to Proposed Rule Change 
by the National Association of Securities Dealers, Inc., Relating to 
the Selection of Arbitrators in Arbitrations Involving Public Customers

I. Introduction

    On July 10, 1998, the National Association of Securities Dealers, 
Inc., (``NASD'' or ``association'') through its wholly-owned 
subsidiary, NASD Regulation, submtited to the Securities and Exchange 
Commission (``Commission''), pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to amend Rule 10308 to set forth 
new procedures to be used to select arbitrators for arbitrations 
involving public customers.\3\ Under the new procedures, NASD 
regulation will allow the parties to an arbitration to rank arbitrators 
from lists generated primarily using an automated process, providing 
parties with a larger role in determining the composition of their 
arbitration panels. NASD Regulation also is proposing conforming 
changes to Rules 10104, 10309, 10310, 10311, 10312, and 10313. In 
addition, NASD Regulation proposes to amend Rule 10315 concerning the 
scheduling of the first meeting of the parties and the arbitration 
panel to reflect that such meetings usually occur prior to the first 
hearing of an arbitration proceeding. Finally, NASD Regulation proposes 
to correct in its rules the name of the NASD Regulation committee that 
addresses arbitration and related matters, the National Arbitration and 
Mediation Committee.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ NASD Regulation filed a proposed rule change to use a 
similar list selection process for intra-industry arbitrations (SR-
NASD-98-64), which the Commission is approving on an accelerated 
basis simultaneously with this filing.
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    The proposed rule change, together with the substance of the 
proposal, was published for comment in Securities Exchange Act Release 
No. 40261 (July 24, 1998) 63 FR 40761 (July 30, 1998). Three comment 
letters were received in response to the proposal.\4\ NASD Regulation 
filed Amendment Nos. 3 and 4 to the proposed rule change \5\ on August 
14, 1998 and September 4, 1998, respectively. The NASD also responded 
to the comment letters.\6\ Below is the text of the proposed rule 
change contained in the Amendment Nos. 3 and 4. Proposed new language 
is italicized; proposed deletions are in brackets.
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    \4\ See letters from Stephen G. Sneeringer, Chairman, Securities 
Industry Association (``SIA'') Arbitration Committee, to Jonathan G. 
Katz, Secretary, Commission, dated August 19, 1998 (``SIA Letter''); 
Scot D. Bernstein (``Bernstein''), Law Offices of Scot D. Bernstein, 
to Jonathan G. Katz, Secretary, Commission, dated August 19, 1998 
(``Bernstein Letter''); and Richard P. Ryder (``Ryder''), Securities 
Arbitration Commentator, to Jonathan G. Katz, Secretary, Commission, 
dated September 2, 1998 (``Ryder Letter'').
    \5\ Amendment No. 3 amends the definition of ``non-public 
arbitrator'' to incorporate the standard terminology ``municipal 
securities dealer'' and to add an explicit reference to government 
and municipal securities to make clear that employees of banks or 
other financial institutions who engage in government or municipal 
securities transactions are included in the definition; by 
reordering proposed Rule 10308(b)(1) to make it more clear and to 
conform it to previously approved amendments to Rule 10308 and Rule 
10302; by amending Rule 10308(b)(1) to clarify parties' right to 
change the panel composition if they all agree; to clarify in the 
rule language what information will be available with regard to the 
initial conflict of interest review by NLSS; to clarify in the rule 
language that the information on each arbitrator forwarded to the 
parties is employment information for a 10 year period and any other 
background information; to clarify in the rule language that a 
ranking of ``1'' means the most preferred arbitrator; to clarify in 
the rule language that when the Director must appoint an unranked 
arbitrator the Director will provide the parties Rule 10308(b)(6) 
information and the parties shall have the right to object to the 
arbitrator as provided in Rule 10308(d)(1); to delete the reference 
in the rule to parties acting cooperatively to rank arbitrators; and 
to reorder Rule 10312(d), (e), and (f) and to clarify the 
information contained in those paragraphs. See letter from John M. 
Ramsay, Vice President and Deputy General Counsel, NASD Regulation, 
to Katherine A. England, Assistant Director, Market Regulation, 
Commission, dated August 14, 1998 (``Amendment No. 3'').
    Amendment No.4 amends Rule 10308(c)(5) to state that the 
Director must chose one of the public arbitrators as chairperson of 
the arbitration panel, subject to certain parameters; amends Rule 
10308(c)(3) to eliminate the exception where a Director could 
determine not to consolidate a party's rankings with the other 
parties if he or she determines that their interests are 
``sufficiently divergent;'' amends Rule 10313 to align the time 
period with previous revisions to rules 10312 and 10315; to clarify 
the effective date of the proposed rule change; and to respond to 
the comment letters. See letter from Alden S. Adkins, Senior Vice 
President and General Counsel, NASD Regulation, to Katherine A. 
England, Assistant Director, Market Regulation, Commission, dated 
September 4, 1998 (``Amendment No. 4'').
    \6\ See Amendment No. 4 and letter from Alden S. Adkins, Senior 
Vice President and General Counsel, NASD Regulation, to Katherine A. 
England, Assistant Director, Market Regulation, Commission, dated 
September 11, 1998 (``Response Two'').
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10308. Selection of Arbitrators in Customer Disputes

* * * * *

[[Page 56671]]

(a) Definitions

    (1) through (3) No change
    (4) ``non-public arbitrator''
    The term ``non-public arbitrator'' means a person who is otherwise 
qualified to serve as an arbitrator and:
    (A) is, or within the past three years, was:
    (i) associated with a broker or a dealer (including a government 
securities broker or dealer or a municipal securities [broker or] 
dealer);
    (ii) through (iv) No change
    (B) through (C) No change
    (D) is an employee of a bank or other financial institution and 
effects transactions in securities, including government or municipal 
securities, and commodities futures or options or supervises or 
monitors the compliance with the securities and commodities laws of 
employees who engage in such activities.
    (5) through (7) No change
    (b) Composition of Arbitration Panel; Preparation of Lists for 
Mailing to Parties
    (1) Composition of Arbitration Panel
    (A) Claims of $50,000 or Less [General Rule Regarding Panel
    Composition] [(i)]
    If the amount of a claim is $50,000 or less, the Director shall 
appoint an arbitration panel composed of one public arbitrator, unless 
the parties agree [otherwise] to the appointment of a non-public 
arbitrator.
    (i) If the amount of a claim is $25,000 or less and an arbitrator 
appointed to the case requests that a panel of three arbitrators be 
appointed, the Director shall appoint an arbitration panel composed of 
one non-public arbitrator and two public arbitrators, unless the 
parties agree to a different panel composition.
    (ii) If the amount of a claim is greater than $25,000 and not more 
than $50,000 and a party in its initial filing or an arbitrator 
appointed to the case requests that a panel of three arbitrators be 
appointed, the Director shall appoint an arbitration panel composed of 
one non-public arbitrator and two public arbitrators, unless the 
parties agree to a different panel composition.
    [(ii) If the amount of a claim is more than $50,000, the Director 
shall appoint an arbitration panel composed of one non-public 
arbitrator and two public arbitrators, unless the parties agree 
otherwise.]
    (B) [Special Request] Claims of More than $50,000. If the amount of 
a claim is more than $50,000, the Director shall appoint an arbitration 
panel composed of one non-public arbitrator and two public arbitrators, 
unless the parties agree to a different panel composition.
    [If the amount of a claim is greater than $25,000 and not more than 
$50,000 and the claimant requests that a panel of three arbitrators be 
appointed, the Director shall appoint an arbitration panel composed of 
one non-public arbitrator and two public arbitrators, unless the 
parties agree otherwise.]
    (2) through (3) No change
    (4) Preparation of Lists
    (A) Except as provided in subparagraph (B) below, the Neutral List 
Selection System shall generate the lists of public and non-public 
arbitrators on a rotating basis within a designated geographic hearing 
site and shall exclude arbitrators based upon conflicts of interest 
identified within the Neutral List Selection System database.
    (B) No change
    (5) No change
    (6) Information About Arbitrators
    The Director shall send to the parties employment history for each 
listed arbitrator for the past 10 years and [any] other background 
information [disclosed by the arbitrator under Rule 10312 relating to 
personal or financial interests or the existence of a relationship that 
gives rise to an appearance of a conflict of interest or bias]. If a 
party requests additional information about an arbitrator, the Director 
shall send such request to the arbitrator, and shall send the 
arbitrator's response to all parties at the same time. When a party 
requests additional information, the Director may, but is not required 
to, toll the time for the parties to return the ranked lists under 
paragraph (c)(2).

(c) Striking, Ranking, and Appointing Arbitrators on Lists

    (1) Striking and Ranking Arbitrators
    (A) No change
    (B) Ranking--Panel of One Arbitrator
    Each party shall rank all of the arbitrators remaining on the list 
by assigning each arbitrator a different, sequential, numerical ranking 
, with a ``1'' rank indicating the party's first choice, a ``2'' 
indicating the party's second choice, and so on.
    (C) Ranking--Panel of Three Arbitrators
    Each party shall rank all of the public arbitrators remaining on 
the list by assigning each arbitrator a different, sequential, 
numerical ranking, with a ``1'' rank indicating the party's first 
choice, a ``2'' indicating the party's second choice, and so on. Each 
party [and] separately shall rank all of the non-public arbitrators 
remaining on the list, using the same procedure.
    [(D) Joint Action Permitted
    All claimants may act jointly and all respondents, including third-
party respondents, may act jointly to file a single list that reflects 
their unanimous agreement as to the striking and ranking of 
arbitrators. If multiple claimants or respondents do not act jointly, 
the rankings of multiple claimants or respondents will be consolidated 
as described in paragraph (b)(3)(A).]
    (2) No change
    (3) Process of Consolidating Parties' Rankings
    [(A) General Rule] The Director shall prepare one or two 
consolidated lists of arbitrators, as appropriate under paragraphs 
(b)(2) or (b)(3), based upon the parties' numerical rankings. The 
arbitrators shall be ranked by adding the rankings of all claimants 
together and all respondents together, including third-party 
respondents, to produce separate consolidated rankings of the claimants 
and the respondents. The Director shall then rank the arbitrators by 
adding the consolidated rankings of the claimants, the respondents, 
including third-party respondents, and any other party together, to 
produce a single consolidated ranking number, excluding arbitrators who 
were stricken by any party.
    [(B) Exception If the Director determines that the interests of a 
party are sufficiently different from the interests of other claimants 
or respondents, the Director may determine not to consolidate the 
rankings of that party with the rankings of the other claimants or 
respondents.]
    (4) Appointment of Arbitrators
    (A) No change
    (B) Discretion to Appoint Arbitrators Not on List
    If the number of arbitrators available to serve from the 
consolidated list is not sufficient to fill a panel, the Director shall 
appoint one or more arbitrators to complete the arbitration panel. [; 
provided, however,] U[u]nless the parties agree otherwise, the Director 
may not appoint a non-public arbitrator under paragraphs (a)(4)(B) or 
(a)(4)(C). The Director shall provide the parties information about the 
arbitrator as provided in paragraph (b)(6), and the parties shall have 
the right to object to the arbitrator as provided in paragraph (d)(1).
    (5) Selecting the Chairperson for the Panel
    The parties shall have 15 days from the date the Director sends 
notice of the names of the arbitrators to select a chairperson. If the 
parties cannot agree, the Director shall appoint [one of the public 
arbitrators as the chairperson. Unless all parties agree otherwise, the 
Director shall not appoint as the chairperson a public arbitrator who: 
(A) is an attorney, accountant, or other

[[Page 56672]]

professional, and (B) has devoted 50% or more of his or her 
professional or business activities; within the last two years, to 
representing or advising public customers in matters relating to 
disputed securities or commodities transactions or similar matters.] a 
chairperson from the panel as follows:
    (A) The Director shall appoint as the chairperson the public 
arbitrator who is the most highly ranked by the parties as long as the 
person is not an attorney, accountant, or other professional who has 
devoted 50% or more of his or her professional or business activities, 
within the last two years, to representing or advising public customers 
in matters relating to disputed securities or commodities transactions 
or similar matters.
    (B) If the most highly ranked public arbitrator is subject to the 
exclusion set forth in subparagraph (A), the Director shall appoint as 
the chairperson the other public arbitrator, as long as the person also 
is not subject to the exclusion set forth in subparagraph (A).
    (C) If both public arbitrators are subject to the exclusion set 
forth in subparagraph (A), the Director shall appoint as the 
chairperson the public arbitrator who is the most highly ranked by the 
parties.
    (6) No change

(d) Disqualification and Removal of Arbitrator Due to Conflict of 
Interest or Bias

    (1) through (2) No change
    (3) Vacancies Created by Disqualification or Resignation
    Prior to the commencement of the earlier of (i) the first 
prehearing conference or (ii) the first hearing,  [I]if an arbitrator 
appointed to an arbitration panel is disqualified or is otherwise 
unable or unwilling to serve, [resigns from an arbitration panel,] the 
Director shall appoint from the consolidated list of arbitrators the 
arbitrator who is the most highly ranked available arbitrator of the 
proper classification remaining on the list. If there are no available 
arbitrators of the proper classification on the consolidated list, the 
Director shall appoint an arbitrator of the proper classification 
subject to the limitation set forth in paragraph (c)(4)(B). The 
Director shall provide the parties information about the arbitrator as 
provided in paragraph (b)(6), and the parties shall have the right to 
object to the arbitrator as provided in paragraph (d)(1).
    (e) No change
* * * * *

Rule 10312. Disclosures Required of Arbitrators and Director's 
Authority To Disqualify

    (a) through (c) No change
* * * * *
    (d) Prior to the commencement of the earlier of (i) the first 
prehearing conference or (ii) the first hearing, the Director may 
remove an arbitrator based on information disclosed pursuant to this 
Rule.
    (e) Prior to the commencement of the earlier of (i) the first 
prehearing conference or (ii) the first hearing, t[T]he Director shall 
inform the parties to an arbitration proceeding of any information 
disclosed to the Director under this Rule unless either the arbitrator 
who disclosed the information withdraws [from being considered for 
appointment] voluntarily as soon as [and immediately after] the 
arbitrator learns of any interest or relationship described in 
paragraph (a) that might preclude the arbitrator from rendering an 
objective and impartial determination in the proceeding, or the 
Director removes the arbitrator.
    [(e) Prior to the commencement of the earlier of (i) the first 
prehearing conference of (ii) the first hearing, the Director may 
remove an arbitrator based on information disclosed pursuant to this 
Rule.]
    (f) After the commencement of the earlier of (i) the first 
prehearing conference or (ii) the first hearing, the Director's 
authority to remove an arbitrator from an arbitration panel ceases. 
During this period, the Director shall inform the parties of any 
information disclosed by an arbitrator under this Rule.

Rule 10313. Disqualification or Other Disability of Arbitrators

    In the event that any arbitrator, after the commencement of the 
earlier of (i) the first prehearing conference or (ii) the first 
hearing [session] but prior to the rendition of the award, should 
become disqualified, resign, die, refuse or otherwise be unable to 
perform as an arbitrator, the remaining arbitrator(s) shall continue 
with the hearing and determination of the controversy, unless such 
continuation is objected to by any party within 5 days of notification 
of the vacancy on the panel.

II. Background and Description

    NASD Regulation developed a rule that provides parties in 
arbitration with more input into the selection of arbitrators. Under 
the proposal, parties will select their arbitrators from lists provided 
by NASD Regulation. In a one-arbitrator panel case, the parties to the 
arbitration will be provided a list of public arbitrators, and, in a 
three-arbitrator panel case, the parties will be provided a list of 
public and a list of non-public arbitrators.\7\ The parties will use 
the lists to express numerical preferences for the arbitrators listed 
and those rankings will determine the outcome of the arbitrator 
selection process, unless all ranked arbitrators decline to serve 
because they are unavailable, recuse themselves, or are disqualified 
because of conflicts of interest.
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    \7\ For ease of reference, the NASD focused the discussion in 
this rule filing on of the process of selecting a three-person 
arbitration panel.
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    The lists of arbitrators will be generated by computer from an 
arbitrator database called the Neutral List Selection System 
(``NLSS'').\8\ However, the Director of Arbitration (``Director'') also 
has the discretion to supplement the NLSS process in response to party 
requests.
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    \8\ The term ``Neutral List Selection System'' is defined in 
proposed Rule 10308(a)(3).
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    The proposed rule change is divided into five parts.\9\ Paragraph 
(a) contains definitions. Paragraph (b) specifies how lists of public 
and non-public arbitrators will be compiled and forwarded to the 
parties. Paragraph (c) specifies how the parties indicate their 
preferences by numerical rankings and how the Director reconciles the 
preferences of the parties, selects the arbitrators, selects the 
chairperson if the parties do not make the selection, and, if 
necessary, disqualifies an arbitrator before the arbitrator is 
appointed. Paragraph (d) describes generally how parties and the 
Director may remove a person from serving as an arbitrator if the 
person has a conflict of interest or a bias. Paragraph (e) specifies 
that the Director has discretionary authority to resolve issues arising 
in the administration of the list selection process.
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    \9\ The NASD has filed a proposed rule change to apply a similar 
list selection process to intra-industry disputes, which the 
Commission is approving on an accelerated basis simultaneously with 
this filing. See SR-NASD-98-64.
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    NASD Regulation amended several other rules in the Rule 10000 
Series in order to make the Rule Series 10000 consistent. Proposed 
amendments to those rules are discussed at the end of the discussion of 
the proposed changes to Rule 10308.

Definitions--Paragraph (a)

    Paragraph (a) of Rule 10308 of the proposed rule change contains 
seven definitions: ``day,'' ``claimant,'' ``Neutral List Selection 
System,'' ``non-public arbitrator,'' ``public arbitrator,'' 
``respondent'' and ``send.''

[[Page 56673]]

    The definition of ``non-public arbitrator'' at paragraph (a)(4) 
largely retains the existing definition in the Rule 10000 Series of an 
arbitrator who is deemed to be ``from the securities industry,'' but it 
adds to that defined term persons employed by banks and other financial 
institutions who are engaged in securities activities or in the 
supervision of such activities.
    The definition of ``public arbitrator'' at paragraph (a)(5) of Rule 
10308 also largely retains the existing definition in the Rule 10000 
series. The proposed rule change clarifies the securities-related 
activities or affiliations that would exclude an arbitrator from the 
``public arbitrator'' classification. For example, the proposed rule 
change adds that persons employed by banks and other financial 
institutions who are engaged in securities activities or in the 
supervision of such activities may not be public arbitrators.
    ``Immediate family member'' is defined in proposed Rule 
10308(a)(5)(B) with reference to the person's familial or economic ties 
to the person associated with the securities or commodities 
industry.\10\ A person who has a close familial, personal, or 
economically dependent relationship with an associated person can be 
viewed as biased in favor of the securities or commodities industry 
even though he or she is not involved directly with the identified 
industry.\11\
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    \10\ ``Immediate family member'' means:
    (i) a family member who shares a home with a person engaged in 
the conduct or activities described in paragraphs (a)(4)(A) through 
(D);
    (ii) a person who receives financial support of more than 50 
percent of his or her annual income from a person engaged in the 
conduct or activities described in paragraph (a)(4)(A) through (D); 
or
    (iii) a person who is claimed as a dependent for federal income 
tax purposes by a person engaged in the conduct or activities 
described in paragraph (a)(4)(A) through (D).
    \11\ As under existing rules, a small group of persons will 
continue to be excluded from serving as either public or non-public 
arbitrators (e.g., spouses and immediate family members of 
registered representatives). Excluded by subparagraph (a)(5) from 
serving as public arbitrators, such persons are also excluded from 
serving under subparagraph (a)(4) as non-public arbitrators because 
a non-public arbitrator must have the professional securities 
experience (or the related qualifications) listed in subparagraph 
(a)(4). For example, unless the spouse of a registered 
representative was also employed in the securities or commodities 
industry (or engaged in one of the business activities related to 
the securities industry), that person might not posses securities 
industry experience (or the related qualifications) and therefore 
could not serve as a non-public arbitrator. In addition, because of 
the marital relationship, the spouse would be excluded from serving 
as a public arbitrator.
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    The term ``Neutral List Selection System'' defines the new software 
program that will implement the proposed list selection rule. NASD 
Regulation defines ``Neutral List Selection System'' as ``the software 
that maintains the roster of arbitrators and performs various functions 
relating to the selection of arbitrators.'' \12\ Among other things, 
NLSS will maintain the roster of arbitrators, identify arbitrators as 
public or non-public, screen arbitrators for conflicts of interest with 
parties, list arbitrators according to geographic hearing sites and, on 
occasion, by expertise, and consolidate the numerical rankings that 
parties assign to listed arbitrators.
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    \12\ Proposed Rule 10308(a)(3).
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    Two other terms, ``claimant'' and ``respondent,'' are defined in 
paragraph (a) to simplify certain aspects of the rule. Under proposed 
Rule 10308(a)(2), if one or more persons files a single claim they will 
be treated as one claimant. A parallel definition is proposed for 
respondents; one or more persons who file the same answer will be 
treated as one respondent.\13\ The Office of Dispute Resolution 
(``ODR'') views claimants who file one claim or respondents who file 
one answer as generally having sufficiently similar interests in the 
outcome of the proceeding to be considered as one party for purposes of 
the list selection process.\14\ This approach will simplify 
consolidating the parties' preferences for arbitrators described 
below.\15\
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    \13\ Proposed Rule 10308(a)(6).
    \14\ The consolidated process is described in greater detail 
below. However, it should be noted that a group of claimants that 
does not file a single claim, or, similarly, a group of respondents 
that does not file a single answer, does not obtain an advantage in 
the consolidation process or in the weighting of their preferences 
for arbitrators. For example, if in a case there are two claimants 
who are not viewed as one claimant under the rule, and one 
respondent, the two claimants' arbitrator rankings will be weighted 
as only 50% of the total; the one respondent's arbitrator rankings 
be weighted as the other 50%.
    \15\ The terms ``day'' and ``send'' are also defined in 
paragraph (a).
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Composition of Arbitration Panel; Compilation of Lists of Arbitrators 
for Parties' Selection--Paragraph (b)

    Proposed Rule 10308(b)(1) states the number of arbitrators that the 
Director should appoint to a panel, general panel composition 
requirements, and exceptions to those requirements. If the claim is 
$50,000 or less, the claim generally will be heard by a single public 
arbitrator, unless the parties agree to the appointment of a non-public 
arbitrator.\16\ If the claim is more than $50,000, a panel of two 
public arbitrators and one non-public arbitrator will hear the dispute, 
unless the parties agree to a different panel composition.\17\ Under 
proposed paragraph (b)(1)(i), if the claim is $25,000 or less and an 
arbitrator appointed to the case requests that a panel of three 
arbitrators be appointed, the Director will appoint an arbitration 
panel composed of one non-public and two public arbitrators, unless the 
parties agree to a different panel composition.\18\
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    \16\ See Proposed Rule 10308(b)(1)(A)(i) and Amendment No. 3. 
Under proposed paragraph (b)(1)(A)(ii) of Rule 10308, a claimant 
with a claim valued greater than $25,000 and not more than $50,000 
may request a three-person arbitration panel. Obtaining a three-
person panel under this subparagraph then obligates the parties to 
pay hearing session deposit fees for a three-person panel under Rule 
10332. An arbitrator appointed to the case may also request a three 
arbitrator panel. See Amendment No. 3.
    \17\ See Proposed Rule 10308(b)(1)(A)(ii) and Amendment No. 3.
    \18\See Amendment No. 3.
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    Under proposed paragraphs (b)(2) and (b)(3) of Rule 10308, the 
Director will send lists of names of arbitrators for ranking to the 
claimant and the respondent. When only one arbitrator will hear the 
proceeding, the Director will send the parties one list of public 
arbitrators.\19\ When three arbitrators will hear the proceeding, the 
Director will send the parties two lists, one containing the names of 
public arbitrators and the other containing the names of non-public 
arbitrators.\20\ When the parties agree to change the panel 
composition, references in the balance of the rule to a panel would be 
interpreted accordingly. For example, if the parties agree to a panel 
composed of three public arbitrators, under proposed paragraph 
(c)(1)(C) the parties would rank a list of public arbitrators only; the 
Director would not send the parties a list of non-public arbitrators. 
In addition, if the panel composition varies from that provided in 
proposed paragraph (b)(1)(A) or (B), NLSS is not capable of processing 
all combinations. NLSS can generate the lists and consolidate the 
rankings for one-person panel of either public or non-public 
classification. For a three-person panel, NLSS can only generate the 
lists and consolidate the rankings for a panel composed of one non-
public and two public arbitrators or three non-public arbitrators.\21\
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    \19\ Proposed Rule 10308(b)(2).
    \20\ Proposed Rule 10308(b)(3).
    \21\ Although the parties could agree to changes in panel 
composition, NASD Regulation states that experience indicates that 
composition changes for disputes involving customers is almost never 
requested.
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(i) Director's Minimum Numbers for Lists
    Subparagraphs (b)(2) and (b)(3) of proposed Rule 10308 do not set a 
fixed ratio of arbitrators or a minimum number of arbitrators that ODR 
must

[[Page 56674]]

list. ODR, however, has established the following guidelines. For a 
panel of one arbitrator, the Director intends to provide five names of 
public arbitrators whenever possible, but not less than three names. 
For a panel of three arbitrators, the Director intends to provide lists 
that contain up to 10 public arbitrator names and five non-public 
arbitrator names; when that is not possible, the Director will provide 
a public arbitrator list of not less than six names, and a non-public 
arbitrator list of not less than three names. To the extent possible, 
NASD Regulation expects that, for a three-person panel, the list of 
public arbitrators will contain approximately twice as many names as 
the list of non-public arbitrators. The Director's ability to provide 
full lists of names will vary and depends on the number of available 
arbitrators and the demands on the arbitrator roster. Circumstances may 
arise where a small arbitrator roster in a particular hearing location 
(for example, Richmond, Va., Norfolk, Va., Alaska, or Hawaii), combined 
with a high demand for arbitrators, would prevent the Director from 
meeting the objectives.
    To address possible arbitrator shortages, NASD Regulation plans to 
combine arbitrator rosters from near-by hearing locations. For example, 
under proposed paragraph (b)(2), the list to be sent to the parties 
should contain, at a minimum, three names of public arbitrators. If, 
with one hearing location coded into NLSS, NLSS does not generate the 
names of three public arbitrators, the Director will return to NLSS, 
add a second hearing location code, and generate a list of public 
arbitrators that will include the additional arbitrators. The second 
hearing location coded will be one that is geographically close to the 
first hearing location code.
(ii) NLSS Functions and Capabilities
    Proposed paragraphs (b)(2), (3), and (4) of Rule 10308 together 
state the four factors which are used by NLSS to generate the list or 
lists of arbitrators by ``selecting'' or ``sorting'' the NLSS database. 
The four factors are arbitrator classification, hearing location code, 
rotation,\22\ and conflicts of interests \23\ identified within the 
NLSS database.\24\
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    \22\ The NLSS rotation feature also may be described as a 
``first-in-first-out'' feature. For a case that will be heard by one 
public arbitrator, the following steps would apply. As an 
arbitrator's name rises to the top of the list of all arbitrators 
who are, for example, public arbitrators and found in one hearing 
location, the arbitrator's name will be generated by NLSS, absent an 
identified conflict of interest, on a list for ranking by parties to 
an arbitration. Once the arbitrator's name is sent to the parties, 
even if the arbitrator is later not appointed an arbitrator for the 
panel, NLSS places such arbitrator at the bottom of the computerized 
NLSS list. Thus, an arbitrator may be listed, and thereafter rotated 
to the bottom of the NLSS list even if: (1) the arbitrator recuses 
him or herself; (2) the arbitrator is not ranked highly enough by 
the parties to be appointed or the arbitrator was struck; or (3) the 
arbitrator is ranked highly enough to serve, is contacted, has no 
conflict of interest or bias that would disqualify him, but is 
unavailable to serve.
    When a three person panel will be appointed, generally two 
public arbitrators and one non-public arbitrator are needed. For the 
generation of the list of non-public arbitrators and the list of 
public arbitrators, the same process would be used. For the 
selection of the non-public arbitrators, the first five non-public 
arbitrators in the system will be rotated forward for the first 
arbitration case. However, if, for example, the case is against Firm 
X and the first person that NLSS generates, Arbitrator A51000, is 
employed by Firm X, NLSS will not select Arbitrator A51000 but will 
skip over him or her and will list the next person classified as a 
non-public arbitrator. Arbitrator A51000 will remain at the top of 
the internal NLSS rotating list for non-public arbitrators, and the 
NLSS will generate his or her name when next requested to produce 
the names of non-public arbitrators for a case in the same hearing 
location. The process for obtaining the list of public arbitrators 
is the same.
    \23\ Proposed Rule 10308(b)(4). NLSS can identify only obvious, 
disclosed conflicts of interest. For example, NLSS recognizes a 
conflict of interest when the member firm that is the respondent is 
also the employer of an arbitrator rotating forward in NLSS. NLSS 
would not list such a person on a non-public arbitrator list being 
generated for that case.
    \24\ See Amendment No. 3.
---------------------------------------------------------------------------

    Under proposed Rule 10308(b)(4)(B), the automated NLSS selection 
process that generates the arbitrators may be altered in order to add a 
fifth factor, expertise. Expertise has three subcategories: (1) subject 
matter expertise (also known as a controversy code); (2) security 
expertise (also known as a security code); and (3) case expertise (also 
known as a qualification code).
    Two of these types of expertise, subject matter expertise and 
security expertise, are factors that may be included in the NLSS's 
selection or sorting process at the option of a party as provided in 
proposed paragraph (b)(4)(B) of Rule 10308.
    First, a party may request for listing arbitrators who possess 
certain types of subject matter expertise.\25\ The NLSS will add the 
additional factor and sort or select for placement on the lists some 
arbitrators having the subject matter expertise identified unless such 
arbitrators are not available.\26\
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    \25\ An arbitrator is deemed to have certain subject matter 
expertise if he or she represents on an NASD arbitration intake form 
that he or she possesses it. ODR does not verify such 
representations.
    \26\ NLSS selects based upon the areas of subject matter 
expertise that have been coded for the NLSS. If not coded into the 
NLSS, ODR does not have the administrative capacity to identify 
arbitrators who might possess in-depth knowledge in the desired 
subject (e.g., bankruptcy is not a category of expertise identified 
in the NLSS; ``churning'' and ``suitability'' are subject matter 
categories that are identified.). The areas of subject matter 
expertise that are coded in NLSS are those that previously have been 
identified in arbitrator disclosure forms. NASD Regulation plans in 
the future to update and to amend the designated subject matter 
areas. At that time, NASD Regulation will make corollary changes to 
NLSS.
---------------------------------------------------------------------------

    The second subcategory of expertise, security expertise, is also 
added to the NLSS selection process at the option of a party. There are 
22 security subcategories, listing various types of securities or other 
financial instruments (e.g., common stock, municipal bonds, stock index 
futures, Ginnie Maes, etc.), and a party may indicate whether expertise 
regarding a particular instrument is desired. The same procedure 
described above regarding NLSS selection to accommodate the additional 
factor of subject matter expertise will apply if a party opts to 
include security expertise in the NLSS selection process. If available 
in the hearing location, certain arbitrators may be included in the 
arbitrator lists generated by NLSS. However, the Director is not 
obligated to provide a list that contains one or more names having the 
requested security expertise.
    The third type of expertise, case expertise, will be a factor in 
the NLSS selection process at the option of the Director or at the 
request of the parties; the category is very narrow and its use is 
primarily to aid in the administration of a case. Case expertise 
contains only three subcategories: injunctive relief cases; employment 
law cases; and large and complex cases. Only one of the subcategories, 
that identifying expertise in large and complex cases, is relevant for 
any customer arbitration and is very infrequently utilized.\27\ When 
used, the NLSS will search for the names of arbitrators, if such 
arbitrators exist, in the appropriate hearing location with expertise 
in large and complex cases.
---------------------------------------------------------------------------

    \27\ The two other types of case expertise, expertise involving 
injunctive relief and employment issues, are used only in intra-
industry arbitrations.
---------------------------------------------------------------------------

(iii) Conflicts-of-Interest
    During the preparation of the arbitrator lists, two types of 
conflict-of-interest checks will occur. The first is the check for 
conflicts of interests between parties and potential arbitrators that 
will be performed as part of the automated NLSS process that was noted

[[Page 56675]]

above.\28\ The second process will be a review for conflicts of 
interest performed manually by ODR, which will occur after the NLSS 
creates a list of arbitrators, but before the list is finalized. ODR 
will perform a review based upon information that each arbitrator 
discloses to ODR and, for non-public arbitrators, additional 
information found in the Central Registration Depository (``CRD''). 
After a review of available information, ODR may remove an arbitrator 
based upon such disclosure.\29\ If arbitrators are eliminated during 
this process, ODR will replace them by returning to NLSS so that the 
minimum number of public arbitrators, and, if applicable, non-public 
arbitrators, are on the list or lists that will be mailed to the 
parties.
---------------------------------------------------------------------------

    \28\ See discussion regarding proposed Rule 10308(b)(4)(A) and 
Note 23, supra.
    \29\ At this stage of the arbitrator appointment process, ODR 
staff would not make telephone inquiries.
---------------------------------------------------------------------------

    After the parties receive the lists, the parties also will have the 
ability to review information disclosed by the potential arbitrators to 
determine if a conflict of interest exists. Under proposed paragraph 
(b)(6) of Rule 10308, for each arbitrator listed, the Director will 
provide the parties with the arbitrator's employment history for the 
past 10 years and other background information. This information may 
help parties to discover a conflict of interest between a party or its 
witnesses and the arbitrator listed and permits the parties to make 
more informed decisions during the process of ranking and striking the 
listed arbitrators. Under paragraph (b)(6), the parties may request 
additional information from the arbitrators; any response by an 
arbitrator is forwarded to all parties. If a party identifies a 
conflict of interest, the party's remedy is to strike the person from 
the list, in the process described in greater detail below.\30\
---------------------------------------------------------------------------

    \30\ Proposed Rule 10308(c)(1)(A).
---------------------------------------------------------------------------

(iv) Transmittal to Parties
    The Director shall send the lists to all parties approximately 30 
days after the respondent's answer is due, or, if there are multiple 
respondents, approximately 30 days after the last answer is due. If 
there is a third-party claim, the Director shall send the lists 
approximately 30 days after the third-party respondent's answer is due 
or, if there are multiple third-party respondents, approximately 30 
days after the last answer is due.\31\ Under proposed paragraph (a)(7) 
of Rule 10308, ``send'' means to send by first class mail, facsimile, 
or any other method available and convenient to the parties and the 
Director, and the lists and all other transmissions between the parties 
and the Director shall be sent using one of these methods.
---------------------------------------------------------------------------

    \31\ Proposed Rule 10308(b)(5).
---------------------------------------------------------------------------

Striking, Ranking, and Appointing Arbitrators--Paragraph (c)

    Generally, paragraph (c) of proposed Rule 10308 sets forth the 
method by which a party strikes and ranks arbitrators and the 
procedures ODR will use to consolidate the parties' preferences and 
appoint an arbitration panel. Under paragraph (c), the parties rank the 
arbitrators on the list according to the parties' preferences, and 
strike arbitrators to remove them from consideration. Proposed 
paragraph (c) will implement the most important feature of the list 
selection rule, that of allowing a party to exercise significant 
influence over the composition of the party's arbitration panel.
(i) Striking and Ranking Arbitrators
    Proposed paragraph (c)(1) provides the basic structure for the 
parties to exercise their influence in selecting arbitrators for their 
arbitration proceeding. First, each claimant and each respondent may 
strike any one or more arbitrators from the list (or lists, if there 
are two lists) for any reason, including the party's concern that the 
arbitrator may have a conflict of interest. Second, the party ranks 
each arbitrator remaining on the list by assigning the arbitrator a 
different numerical ranking. A ``1'' rank indicates the party's first 
choice, a ``2'' indicates the party's second choice, and so on, until 
all the arbitrators are ranked.\32\ When a party receives one list of 
public arbitrators and one list of non-public arbitrators, the party 
must rank arbitrators on each list separately.\33\ As noted above, all 
claimants who file a single claim are treated as one claimant; and 
similar treatment is accorded to all respondents who file one answer. 
Multiple claimants and multiple respondents may act jointly to 
determine which arbitrators to strike and how to rank the remaining 
arbitrators on the lists in order for persons who are parties to have 
their preferences for arbitrators weighed appropriately.\34\
---------------------------------------------------------------------------

    \32\ This language explaining the ranking was added to the rule 
language in proposed Rule 10308(c)(1)(B) and (C). See Amendment No. 
3.
    \33\ Proposed Rule 10308(c)(1).
    \34\ Proposed paragraph (c)(1)(D) of Rule 10308, which addresses 
multiple-party concepts, has been deleted because NASD Regulation 
believes that it is implicit that parties may act cooperatively to 
rank arbitrators. See Amendment No. 3.
---------------------------------------------------------------------------

    Under proposed paragraph (c)(2), each party's lists of arbitrators 
reflecting the party's strikes and rankings must be returned to the 
Director not later than twenty days after the Director's letter 
communicating the lists was sent. If a party does not timely return the 
lists, the Director shall treat the party as having retained all the 
arbitrators on the lists and as having no preferences. If the lists are 
returned but a party fails to rank an arbitrator on a list, the 
Director will assign the arbitrator the next lower ranking after the 
lowest-ranked arbitrator on that list. For example, if a party ranks 
arbitrators on a list containing ten public arbitrators by striking six 
arbitrators and ranking arbitrators A, B, and C, as ``1,'' ``2,'' and 
``3,'' respectively, and fails to rank public arbitrator D, ODR will 
assign arbitrator D a ranking of ``4.''
    If a party fails to rank more than one arbitrator on the same list 
or gives two or more arbitrators on the same list the same numerical 
ranking, then the Director shall rank the multiple, unranked 
arbitrators in the same order of preference that the list originally 
generated by NLSS reflected and transmitted to the parties for their 
ranking. (When NLSS generates a list, the person listed first is ranked 
as high or higher by NLSS selection factors than the person listed 
second, third, and so on. Generally, this NLSS ranking is not relevant 
because the ranking by the parties is the basis for appointing 
arbitrators. NLSS ``ranking'' only becomes relevant when the parties 
fail to rank, or improperly rank multiple arbitrators on a list.) \35\
---------------------------------------------------------------------------

    \35\ In this process, when only the four factors are considered 
in the NLSS-list generation process (e.g., arbitrator 
classification, hearing location code, rotation, and no identified 
conflicts of interest), the person who has taken part in the fewest 
list selection processes (i.e., having a higher rotation number) 
would be placed higher on the NLSS-generated list than a person who 
has participated in more list selection processes. (e.g., P, a 
public arbitrator in Richmond, Virginia who has participated in the 
list selection process six times would be listed more highly by NLSS 
than Z, a public arbitrator from Richmond, Virginia who has 
participated in the list selection process seven times, if both were 
generated for the same list. Therefore, if a party failed to rank 
both P and Z, the Director would refer to the original NLSS-
generated list and rank P more highly than Z.) If additional factors 
are introduced, such as subject matter expertise, those persons 
having the greatest cluster of desired factors or characteristics 
would be listed most highly on the NLSS-generated lists and that 
ordering would be used by the Director for the default ``ranking'' 
process that is used only when the parties fail to rank multiple 
arbitrators.
---------------------------------------------------------------------------

(ii) Consolidating Parties' Rankings
    After the claimant and respondent have returned their lists to the 
Director, the Director implements the parties' preferences for 
arbitrator selection using the process described in proposed paragraph 
(c)(3) of Rule 10308. Under

[[Page 56676]]

proposed paragraph (c)(3), the Director, using the NLSS, creates a 
consolidated list of the public arbitrators, and, if non-public 
arbitrators are also ranked, a second consolidated list of non-public 
arbitrators, using a one or two-step consolidation process.
    Since generally all parties who file a single claim are treated as 
one claimant and all respondents who file one answer are treated as one 
respondent, in most cases, the Director will consolidate the parties' 
preferences for arbitrators using a one-step process. The Director will 
add the consolidated rankings of the claimant and the respondent to 
produce a single consolidated list for the public arbitrators and, if 
necessary, a second consolidated list for the non-public 
arbitrators.\36\ NLSS performs the consolidation functions.
---------------------------------------------------------------------------

    \36\ Proposed Rule 10308(c)(3).
---------------------------------------------------------------------------

    When there are multiple claimants or respondents, the Director will 
use a two-step consolidation process. First, the Director will 
consolidate all rankings of the multiple claimants or respondents. For 
example, if there are two respondents, R#1 and R#2, the rankings of R#1 
and R#2 are added together, resulting in one consolidated respondent 
ranking for each listed public arbitrator and a second consolidated 
respondent ranking for each listed non-public arbitrator. This first 
step in the two-step consolidation process may be avoided by 
cooperation. The parties may file a list to which the parties have 
jointly agreed. The first step of the consolidation process, 
consolidating all the preferences of multiple claimants and, 
separately, those of multiple respondents, prevents numerous parties on 
the claimant or respondent side of the case from having a greater 
influence in the selection of the arbitrators. By consolidating the 
rankings of parties on the same side, the process ensures that 
claimants' and respondents' choices will have the same weight in the 
arbitrator selection process. Second, as previously described, the NLSS 
will consolidate the rankings of the claimants and the respondents to 
produce a single consolidated list for public arbitrators and, if 
necessary, a second list for non-public arbitrators.\37\
---------------------------------------------------------------------------

    \37\ Proposed Rule 10308(c)(3). The proposed rule also 
accommodates the interests of a party added to the case if the party 
is added before the Director has consolidated the other parties' 
rankings. Proposed Rule 10308(c)(6).
---------------------------------------------------------------------------

    NASD Regulation has eliminated the exception to the general rule 
for consolidation of all claimants or all respondents, which had stated 
that in instances where the Director determines that the interests of a 
claimant or a respondent (including a third party respondent) are so 
substantially different from the interests of other claimants or 
respondents, the Director may determine not to consolidate the 
numerical rankings of that party with the numerical rankings of the 
other claimants (or with the other respondents, as the case may 
be).\38\
---------------------------------------------------------------------------

    \38\ See Amendment No. 4, deleting proposed Rule 10308(c)(3)(B).
---------------------------------------------------------------------------

    Numerical ties between two or more arbitrators during consolidation 
will be broken by NLSS by the following principles. First, NLSS will 
break a tie during consolidation by preferentially ranking one 
arbitrator above another based upon which of the tied arbitrators has a 
set of rankings, that, when compared, result in the smallest numerical 
difference between the claimant ranking and the respondent ranking. A 
second principle that governs tie-breaking within NLSS is that, given 
an equal difference in the consolidated ranking, an arbitrator who was 
listed higher (as more preferred) on the list as originally generated 
by the NLSS and transmitted to the parties will be given a more 
preferred or higher ranking in order to break this type of tie.
(iii) Appointing Arbitrators
    Proposed Rule 10308(c)(4) states the steps the Director will take 
to appoint arbitrators after consolidation occurs. If the arbitration 
is to be heard by one public arbitrator, the Director contacts the 
public arbitrator ranked highest on the public arbitrator list. If the 
Director were required to appoint a three-person arbitration panel, the 
Director would contact the next two highest ranked arbitrators to 
determine if they were available to serve and, if not disqualified, 
would appoint them. If necessary, due to the unavailability or 
disqualification of one of the two arbitrators, the Director would then 
contact the third highest ranked arbitrator, and invite him or here to 
serve. The Director would refer to the second list, generated according 
to the same principles, to determine which non-public arbitrator should 
be contacted first.
    The contact is to determine if the arbitrator is available and, 
after provided the issues of the cases and the names of the parties, if 
the arbitrator is aware of any conflicts of interest or bias or other 
reason that may preclude the arbitrator from rendering an objective and 
impartial decision. Based upon the information that the arbitrator has 
previously provided, any information provided to the Director under 
Rule 10312,\39\ and any information obtained from any other source, the 
Director shall determine if the arbitrator should be disqualified. If 
the Director determines that the arbitrator should not be disqualified 
and that the arbitrator is available, the Director appoints the 
arbitrator.\40\
---------------------------------------------------------------------------

    \39\ Current Rule 10312, also discussed below, requires an 
arbitrator to disclose, with respect to a particular case and the 
issues, parties, and witnesses in the case, any information which 
might preclude the arbitrator from rendering an objective and 
impartial determination in the case.
    \40\ Proposed Rule 10308(c)(4).
---------------------------------------------------------------------------

    NASD Regulation will establish a time frame to guide its staff when 
a listed arbitrator is contacted but fails to respond to ODR's 
inquiries regarding availability and disqualification. For example, if 
an arbitrator is telephoned and fails to respond, ODR will eliminate 
such arbitrator and contact the next listed arbitrator after an 
appropriate period. NASD Regulation undertakes to exercise its 
discretion in fairness to the parties waiting for their arbitration 
cases to be resolved.
(iv) Selecting a Chairperson
    Under the proposal, the Director will notify the parties of the 
appointments and request that the parties appoint a chairperson. The 
parties may jointly select one of the arbitrators (including the non-
public arbitrator) to be the chairperson of the panel.\41\ If the 
parties fail to appoint a chairperson by mutual agreement within 15 
days, the Director will appoint the chairperson. The Director will 
appoint the public arbitrator most highly ranked by the parties, as 
long as that person is not an attorney or other professional who has 
devoted 50% or more of his or her professional or business activities, 
within the past two years, to representing or advising public customers 
in adversarial proceedings concerning disputed securities or 
commodities transactions or related matters.\42\ If the most highly 
ranked public arbitrator is subject to this exclusion, the Director 
shall appoint the other public arbitrator as chairperson, unless that 
person is also subject to the same exclusion. If both public 
arbitrators are subject to this exclusion, the Director shall appoint 
the most highly ranked public arbitrator as chairperson.\43\
---------------------------------------------------------------------------

    \41\ Proposed Rule 10308(c)(5).
    \42\ See Amendment No. 4.
    \43\ See Amendment No. 4.
---------------------------------------------------------------------------

(v) When the Consolidated List Is Insufficient
    Under proposed Rule 10308(c)(4), if the Director is not able to 
appoint the

[[Page 56677]]

number of arbitrators needed for the panel using the consolidated list, 
the Director may appoint other arbitrators from the NLSS roster as 
necessary. If the Director is required to appoint a non-public 
arbitrator, the Director may not appoint a non-public arbitrator who 
meets the criteria set forth in paragraph (a)(4)(B) or (a)(4)(C), 
unless the parties otherwise agree. A non-public arbitrator in proposed 
paragraph (a)(4)(B) is one who is retired from the securities or 
commodities industry; proposed paragraph (a)(4)(C) describes a non-
public arbitrator who is a professional who devotes 20 percent or more 
of his or her professional time to clients who are engaged in any of 
the securities or commodities business activities described in 
subparagraph (a)(4). The rule requires that the Director choose a non-
public arbitrator who is active and fully involved in the securities or 
commodities industry or related industry. When the Director appoints a 
non-public arbitrator in this stage of the proceeding, the parties no 
longer have the ability to strike.\44\
---------------------------------------------------------------------------

    \44\ Under the proposal, the Director provides the parties 
information about the arbitrator as provided in proposed paragraph 
(b)(6). Based upon that information, the parties have the right to 
object to the arbitrator as provided in proposed paragraph (d)(1) of 
Rule 10308. See Amendment No. 3. This means that although a party 
does not have the right to strike an arbitrator appointed under the 
process described in proposed (c)4)(B) of Rule 10308, a party 
retains the right to request that the Director consider 
disqualifying an arbitrator appointed pursuant to proposed Rule 
10308(c)(4)(B).
---------------------------------------------------------------------------

Arbitrator Disclosures and Removing Arbitrators--Paragraph (d)

    Proposed Rule 10308(d)(1) provides a mechanism for the Director to 
disqualify an arbitrator after the arbitrator has been appointed by the 
Director under proposed paragraph (c)(4). As noted previously, during 
the period that a party is reviewing and ranking the lists of 
arbitrators (see paragraphs (c) (1) and (2)), a party has an unlimited 
right to eliminate a listed arbitrator by striking the arbitrator from 
the list, and may do so to eliminate an arbitrator who the party 
believes may not be impartial or fair, among other reasons. Proposed 
paragraph (d)(1) applies after the parties have exercised this 
unlimited right to strike, the arbitrator lists have been consolidated, 
the arbitrators have made disclosures to the Director under Rule 10312 
regarding the specific parties, issues and witnesses in the case as 
discussed below, and the arbitrators have been appointed.\45\
---------------------------------------------------------------------------

    \45\ As noted above, disqualification issues that arise after 
the Director, using NLSS, has begun consolidating parties' preferred 
arbitrators, may be addressed by the Director directly as part of 
the appointment process described in paragraph (c)(4).
---------------------------------------------------------------------------

    An arbitrator has a continuing obligation under Rule 10312 of the 
Code to disclose to the Director any circumstances that might preclude 
the arbitrator from rendering an objective and impartial determination 
in an arbitration, including a direct or indirect financial or personal 
interest in the outcome of the arbitration, or any existing or past 
financial, business, professional, family or social relationships with 
a party, counsel, or representative (or, when later identified, a 
witness) that might affect impartiality or might reasonably create an 
appearance of partiality or bias. Generally, the ODR, in turn, must 
disclose to the parties any information the arbitrators provide.
    Under paragraph (d)(1), a party or the Director may raise a 
disqualification issue, and the Director may disqualify an arbitrator 
already appointed. The Director may not make any decision to disqualify 
an arbitrator, however, after the commencement of the earlier of two 
events: (i) the first prehearing conference or (ii) the first 
hearing.\46\ At that point or thereafter, if a party believes that an 
arbitrator should be disqualified, the matter must be raised before the 
arbitration panel. Vacancies created as a result of a disqualification 
or because the arbitrator is otherwise unable to or unwilling to serve 
\47\ under proposed paragraph (d)(1), prior to the commencement of the 
earlier of 1) the prehearing conference or 2) the first hearing,\48\ 
are filled by the Director by referring to the appropriate consolidated 
list from which the panelists were originally obtained (proposed Rule 
10308(d)(3)) or, if there are no persons remaining on the consolidated 
list, by a person the Director selects under proposed Rule 
10308(c)(4)(B). Under the proposal, the Director provides the parties 
information about the replacement arbitrator(s) as provided in proposed 
paragraph (b)(6), and the parties have the right to object to that 
arbitrator as provided in proposed paragraph (d)(1).\49\
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    \46\ Proposed Rule 10308(d)(2).
    \47\ See Amendment No. 3.
    \48\ See Amendment No. 3.
    \49\ See Amendment No. 3.
---------------------------------------------------------------------------

Discretionary Authority--Paragraph (e)

    Under paragraph (e) of Rule 10308, the Director's authority to 
exercise discretionary authority is stated explicitly. In paragraph 
(e), the Director has authority to resolve a problem that arises 
relating to the appointment of arbitrators or any other procedure under 
the rule if (i) the rule does not have an applicable provision, or (ii) 
the application of a specific provision in the rule would not result in 
a resolution of the underlying problem because the facts and 
circumstances are unanticipated or unusual.

Miscellaneous Related Proposed Rule Changes

Proposed Conforming Amendments

    NASD Regulation is proposing conforming amendments to Rules 10104, 
10309, 10310, 10311, 10312, and 10313.
    NASD Regulation proposes to make parallel amendments to Rule 10104 
and Rule 10309. NASD Regulation proposes to amend Rule 10104 to reflect 
that the specific provisions of proposed Rule 10308, rather than the 
general provisions of Rule 10104, regarding the composition and 
appointment of arbitration panels, apply to arbitrations involving 
public customers. Rule 10104 would not apply to a question regarding 
the composition and appointment of such arbitration panels unless none 
of the specific provisions in proposed Rule 10308 would be 
applicable.\50\ NASD Regulation proposes the same type of amendment to 
Rule 10309, a similarly general provision relating to the composition 
of arbitration panels.
---------------------------------------------------------------------------

    \50\ The NASD has stated that Rule 10104 and certain other rules 
in the Rule 10000 Series may be amended further or rescinded when a 
list selection rule applicable to intra-industry arbitration 
proceedings is approved. NASD Regulation has filed a proposed rule 
change to apply the NLSS to panel selection in intra-industry 
arbitrations, as well as in customer arbitrations (SR-NASD-98-64) 
which is being noticed and granted accelerated approval 
simultaneously with this rule approval. See Securities Exchange Act 
Release No. 40556 (October 14, 1998).
---------------------------------------------------------------------------

    NASD Regulation proposes to amend Rule 10310 and 10311 to make both 
of them inapplicable to proceedings subject to Rule 10308. Under Rule 
10310, NASD Regulation notifies parties of arbitrators appointed, and 
under Rule 10311, parties have the right to a pre-emptory challenge of 
an arbitrator. Because proposed Rule 10308 deals with both types of 
procedures, NASD Regulation proposes to amend Rules 10310 and Rule 
10311 so that neither will apply to arbitration proceedings involving 
public customers.
    NASD Regulation is proposing to amend Rule 10312 to make it 
consistent with proposed Rule 10308. Both Rules contain provisions 
regarding an arbitrator's obligation to disclose information to the 
Director and disqualification based upon such disclosure. The proposed 
changes to Rule 10312 state explicitly when the Director's authority to 
disqualify an arbitrator terminates, and provide an arbitrator the 
option to withdraw from

[[Page 56678]]

an arbitration panel prior to disclosure of arbitrator information to 
the parties. A final change in Rule 10312 makes the timing of a 
disclosure consistent with the parallel provision in proposed Rule 
10308. Specifically, under proposed Rule 10312(d), prior to the 
commencement of the earlier of 1) the prehearing conference or 2) the 
first hearing, the Director may remove an arbitrator based upon Rule 
10312 information.\51\ Under proposed Rule 10312(e), in the same time 
frame, the Director must disclose any Rule 10312 information to the 
parties unless the arbitrator voluntarily withdraws as soon as the 
arbitrator learns of any conflict, or the Director removes the 
arbitrator.\52\ Finally, under proposed Rule 10312(f), after 
commencement of the earlier of the prehearing conference or the first 
hearing, the Director shall disclose any Rule 10312 information 
disclosed by an arbitrator to the parties.\53\
---------------------------------------------------------------------------

    \51\ See Amendment No. 3.
    \52\ See Amendment No. 3.
    \53\ See Amendment No. 3. The Director does not have authority 
after this time period to remove an arbitrator.
---------------------------------------------------------------------------

    The proposed changes to Rule 10313 are necessary because Rule 10313 
incorporates by reference certain procedures in Rule 10311. That rule, 
if amended, will not apply to arbitrations involving public customers. 
Accordingly, NASD Regulation proposes to amend the last sentence of 
current Rule 10313 so that, for arbitration proceedings involving 
public customers, a party may exercise the right to challenge a 
replacement arbitrator within the time remaining prior to the next 
scheduled hearing session by notifying the Director in writing of the 
challenged arbitrator's name and the basis for such challenge. NASD 
Regulations also proposes to amend the first sentence of Rule 10313 to 
clarify that if an arbitrator becomes disqualified or otherwise unable 
to serve after the start of the earlier of the pre-hearing conference 
or first hearing but prior to rendition of an award, the remaining 
arbitrator(s) shall continue on, unless a party objects. \54\
---------------------------------------------------------------------------

    \54\ See Amendment No. 4.
---------------------------------------------------------------------------

Proposed Amendments to Rule 10315

    In the past, the first formal meeting of the arbitration panel and 
the parties generally was the first hearing. As the arbitration process 
has evolved, NASD Regulation has encouraged most arbitration panels to 
hold prehearing conferences. For most arbitrations currently, the first 
formal meeting of the arbitration panel and the parties is a prehearing 
telephone conference. NASD Regulation proposes to amend Rule 10315 
regarding the scheduling of the first meeting to reflect the current 
practice.
    NASD Regulation also proposes to amend from eight business days to 
15 business days the period that NASD has for giving notice of the 
first meeting to the parties and the arbitrators. The period is being 
amended to conform to the 15 business day period set forth in Rule 
10310, which formerly also was a period of eight business days.

Proposed Amendments to Various Rules to Correctly Identify Committee 
Name

    The committee of NASD Regulation that addresses arbitration matters 
is the National Arbitration and Mediation Committee. NASD Regulation 
proposes to amend each rule in which the outdated term ``National 
Arbitration Committee'' is used by replacing the outdated term with the 
current committee name, the ``National Arbitration and Mediation 
Committee.'' \55\
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    \55\ See, e.g., Rule 10102, Rule 10103, Rule 10104 referenced 
specifically above, Rule 10301, and Rule 10401.
---------------------------------------------------------------------------

Date of Effectiveness

    The Association intends to make the rule change effective on a date 
to be stated in a Notice to Members (``NTM''). Depending on the date of 
the Commission's approval, however, the effective date may be less than 
30 days following publication of the NTM announcing the Commission's 
approval. When effective, the rule changes will apply to any 
arbitration case filed with the Association if the Association has not 
mailed or otherwise transmitted to the parties a notice stating the 
names of the arbitrators appointed to hear the arbitration.
    A case will be subject to current Rule 10308 for the purpose of 
selecting an arbitration panel, if, before the effective date of the 
rule change, the Association identifies the arbitrator (in a case 
having one arbitrator) or the three-arbitrator panel (in a case having 
three arbitrators) and mails or otherwise transmits a letter or other 
written communication to the parties notifying the parties of the names 
of the arbitrators. As of the effective date, the newly adopted changes 
to all other rules will apply to the case (e.g., amendments to Rule 
10104, Rules 10309 through 10313, and Rule 10315), as will those parts 
of newly adopted Rule 10308 relating to the actions or functions to be 
performed after a panel is appointed (initially) if such actions or 
functions can be performed without reference to party ranking of 
arbitrators. (See, e.g., proposed Rule 10308(c)(5) regarding selecting 
a chairperson. The parties will be allowed by agreement to select a 
chairperson; however if the parties did not select a chairperson by 
agreement, the Director will exercise authority under newly adopted 
Rule 10308(e) in order to select a chairperson because the Director 
will not have party rankings of arbitrators to rely upon and, thus, 
will not be able to act in accordance with certain provisions of 
paragraph (c)(5). A case will be subject to newly adopted Rule 10308 
if, as of the rule change effective date, the Association has not 
mailed or otherwise transmitted a letter or other written communication 
to the parties notifying the parties of the names of the arbitrators 
appointed to hear the arbitration. In this instance, the other newly 
adopted rule changes will also apply to the case as of the effective 
date.
    The Association believes that this is the most appropriate approach 
to provide the benefits of list selection to the greatest number of 
parties as quickly as possible. List selection provides the parties 
additional input into the arbitration proceeding; the Association 
believes that applying the new process for the appointment of 
arbitrators to certain cases filed shortly before the date of 
effectiveness will provide the benefits to such parties. Moreover, the 
Association does not believe that any party will suffer an unfair 
surprise if the list selection rule and the other rule changes are 
applied to an arbitration filed prior to the effective date. Finally, 
in order to implement the proposed rule change, the Association must 
make a number of operational changes. The administrative burdens of 
fully implementing the list selection process nationwide are many, and 
the Association believes that the benefits of implementing the new 
procedures rapidly and system-wide outweigh the benefits, if any, 
obtainable from continued use of the old system.

III. Summary of Comments

    The three commenters \56\ generally support the proposed rule 
change as an

[[Page 56679]]

improvement over the current method for selecting arbitrators, but 
suggest improvements to the proposed rule.\57\
---------------------------------------------------------------------------

    \56\ A fourth comment letter was received on October 6, 1998; 
the comment period ended on August 20, 1998. See letter from 
Theodore G. Eppenstein (``Eppenstein''), Eppenstein & Eppenstein, to 
Jonathan G. Katz, Secretary, Commission, dated October 1, 1998. The 
issues raised by this commenter were the same as those raised by 
other commenters except for one issue that is not germane to this 
proposed rule change and one new issue. Eppenstein argues that the 
arbitration panel for customer arbitrations should be composed 
exclusively of public arbitrators. The Commission does not believe 
that the proposed rule change raises this issue because the 
composition of the three member arbitration panel for customer 
arbitrations currently is two public members and one non-public 
member, and is not substantively amended by this proposed rule 
filing. Eppenstein also argues that there should be a mandatory 
tolling provision for the time within which the parties have to 
respond and submit their arbitrator rankings in the event they wish 
to request additional information on the arbitrators. The Commission 
believes that the proposed rule change reasonably accommodates the 
needs of the parties both by lengthening the time for the parties to 
engage in due diligence from the time period in the current rule, 
and by specifically providing that the Director may use his or her 
discretion to toll the time period for the parties to return their 
ranked lists. See proposed Rule 10308(b)(6). The Commission expects 
NASD Regulation to monitor the operation of the list selection 
process carefully to see whether the proposed time frames operate 
appropriately.
    \57\ See supra note 4.
---------------------------------------------------------------------------

    The SIA believes that the Director should have the ability to 
remove an arbitrator until after the first pre-hearing conference, up 
until the start of the first hearing; the proposed rule states that the 
Director can remove an arbitrator up until the commencement of either 
the pre-hearing conference or the first hearing.\58\ NASD Regulation 
states that it has made changes to Rule 10308(d) and a series of 
related rules to reflect this new time frame, in order to reflect a 
basic principle that an arbitration is administered and controlled by 
the arbitrator or the arbitration panel after the arbitrators have 
begun to address the issues that are the subject of the arbitration. 
Thus, NASD Regulation believes that as of the beginning of the first 
meeting among the parties and the arbitrators, it is no longer 
appropriate or consistent with arbitration principles for the 
Association to intervene in the arbitration in order to disqualify an 
arbitrator.\59\
---------------------------------------------------------------------------

    \58\ SIA Letter. The SIA believes that the pre-hearing 
conference itself could expose some evident bias, or an inability or 
unwillingness on the part of the arbitrator to be impartial; 
therefore, the Director should retain the ability to remove an 
arbitrator until after the pre-hearing conference.
    \59\ See Amendment No. 4.
---------------------------------------------------------------------------

    The SIA also believes that the NASD should reexamine the rationale 
behind the automatic exclusion of any immediate family member of 
registered representatives or others who work in the securities 
industry from serving as public or non-public arbitrators.\60\ The SIA 
argues that there is no reason that a spouse or dependent child of a 
securities industry professional should be presumptively adjudged to be 
incapable of being a capable, effective and impartial arbitrator. In 
addition, the SIA argues that the mechanics of the list selection 
method make the parties' attorneys able to deal with any perceived 
problems or biases, by either ranking such candidates low on their list 
or not ranking them at all. The SIA does not believe that the NASD, at 
a time when it is trying to expand and more fully train its arbitrator 
pool, should collectively eliminate an entire category of arbitrators 
based upon a perceived bias.\61\ NASD Regulation responds that the 
exclusion of ``immediate family member'' from classification as public 
arbitrators is a practical, realistic view of how such persons should 
be classified, and reflects how most claimants would view such persons. 
NASD Regulation believes that if such persons were classified as public 
arbitrators, and then their background information (including a 
description of their relationship to a spouse or family member engaged 
in securities activities) was distributed to the parties, most 
claimants would routinely strike those people or request that the 
Director disqualify them. NASD Regulation also states that this would 
only benefit a small group of people desiring to serve as arbitrators, 
while creating a perception of unfairness, raising costs, an increasing 
delays.\62\
---------------------------------------------------------------------------

    \60\SIA Letter.
    \61\ Scot D. Bernstein (``Bernstein'') argues that the 50% 
support standard used to classify a person as an immediate family 
member'' of a person generally engaged in the securities industry 
should be lowered to 10%, effectively broadening this group of 
persons. See Bernstein Letter. NASD Regulation responds that it 
believes the 50% standard is generally appropriate, and also notes 
that a person who falls below the 50% standard may be excluded later 
in the arbitration selection process by a party who strikes him or 
her or by the Director during a conflict of interest review. See 
Amendment No. 4.
    \62\ See Amendment No. 4.
---------------------------------------------------------------------------

    Bernstein argues that the size of the list of arbitrators given to 
the parties should be larger and that the number of strikes allowed 
each party should be smaller.\63\ He argues that unlimited strikes, 
combined with a small list, will lead to either party being able to 
void a list simply by striking everyone on the list, which would give 
the selection authority back to the NAD.\64\ Similarly, Richard P. 
Ryder (``Ryder''), does not believe that the proposed rule change will 
actually result in most arbitrators being selected by the parties 
themselves, but that administrative appointments will occur in a 
substantial number of cases because too few candidates will remain 
after the parties have struck the nominees on the list.\65\
---------------------------------------------------------------------------

    \63\ Bernstein suggests lists that provide no less than twelve 
public arbitrators and six non-public arbitrators.
    \64\ See Bernstein Letter.
    \65\ See Ryder Letter.
---------------------------------------------------------------------------

    NASD Regulation, although recognizing this fear, believes that the 
rule should be implemented as proposed and monitored to see how often 
the Director must appoint arbitrators not previously reviewed and 
ranked by the parties to a panel because one or both parties have 
struck every arbitrator listed.\66\ NASD Regulation will revist the 
issue of limiting the number of strikes if the Director appoints 
unranked arbitrators frequently because of the parties exercising their 
unlimited strike rights. NASD Regulation believes that the current 
proposed number of arbitrators on each list provides a sufficiently 
large number of arbitrator choices and provides a standard that will 
generally be attainable.\67\
---------------------------------------------------------------------------

    \66\ See Amendment No. 4.
    \67\ Id.
---------------------------------------------------------------------------

    Bernstein argues that there should be a second round of list 
selection with a larger list if the first round fails, in order to fill 
any vacancies. He argues that this is more in line with the Task 
Force's recommendation and closer to the goals of allowing parties to 
choose their arbitrators and keeping the NASD out of the selection 
process.\68\ He also argues that the NASD's concerns over the cost of a 
second round of list selection should be disregarded as well, in part 
because the costs are small compared to the savings that mandatory 
arbitration affords the member firms. Ryder suggests that instead of 
having only one round of selection, NASD Regulation should give the 
parties the choice between having one round and a default to staff 
appointment (but within the same time frame as proposed in the rule) or 
a second round approach but with a shorter time limit within which the 
parties must respond to the lists; this shorter time frame would result 
in more arbitrators being freed up more quickly for other simultaneous 
proceedings.\69\ Ryder also suggests staggering first round lists in a 
locale where there are simultaneous cases, by allowing NASD Regulation 
more time to generate and send lists to parties in other cases. NASD 
Regulation could then take arbitrators rejected by the first 
arbitration and put them back into the pool for other cases. In any 
event, Ryder suggests that the Commission require the NASD to keep 
statistics on how often administrative appointments occur under the 
proposed system, and that the NASD should explore a practical, flexible 
solution to the limited

[[Page 56680]]

supply objection to a second round list selection.
---------------------------------------------------------------------------

    \68\ Bernstein argues that the NASD's concern about a limited 
number of arbitrators related to the large caseload is not a reason 
to not have a second round of selection. He states that the same 
number of arbitrators will be appointed to a case regardless of how 
they are chosen, and that the size of the available pool of 
arbitrators will not be affected if a second round were implemented 
because those arbitrators not chosen would simply rotate to the 
bottom of the list.
    \69\ See Ryder Letter.
---------------------------------------------------------------------------

    NASD Regulation responds that they will not impose a second round 
at this time because of the scarcity of arbitrators in certain 
locations, the substantially greater costs, and the significant delays 
in empaneling an arbitrator or an arbitration panel.\70\ However, after 
the NASD has had some experience administering the rule, it will 
reconsider whether to add an additional round of list selection.\71\
---------------------------------------------------------------------------

    \70\ See Amendment No. 4 and Response Two.
    \71\ Id.
---------------------------------------------------------------------------

    Bernstein objected to the procedure in the proposal for selecting a 
chairperson, and suggests that the highest-ranked public arbitrator 
selected by the parties be the chairperson. In addition, Bernstein 
argues that advocates for public investors should not be excluded from 
serving as chair of the arbitration panel, and that a rule that 
disqualifies advocates for public investors from chairing arbitration 
panels is inconsistent with investor protection.\72\ In response, NASD 
Regulation amended proposed Rule 10308(c)(5) to provide that the 
Director will appoint the highest ranked pubic arbitrator, unless that 
person represents or advises customers in matters relating to the 
securities or commodities industry for fifty percent of his or her 
time, in which case the Director would appoint the other public 
arbitrator. If both public arbitrators are subject to the exclusion, 
the Director will appoint the highest ranked public arbitrator.\73\
---------------------------------------------------------------------------

    \72\ Bernstein argues that attorneys who represent public 
investors are not subject to the same financial pressure on their 
decisions as are representatives of industry participants, yet an 
attorney who derives 19% of his or her income from representing 
industry participants is allowed to chair a panel under the proposed 
rule.
    \73\ See supra notes 42 and 43 and accompanying text, and 
Amendment No. 4.
---------------------------------------------------------------------------

    Bernstein also argues that some of the descriptive text in the 
proposed rule filing regarding the administration of ODR should be 
included in the rule language so that the NASD's interpretations cannot 
be changed without Commission approval.\74\ NASD Regulation argues that 
is has stated the basic operational aspects of the rule in the rule 
text and it is not appropriate to describe all of the operational 
details relating to the NLSS software in the rule text or in the rule 
filing because to do so would make the rule very unclear and confusing 
to all but a few readers.\75\ However, the Association has described in 
general and clear terms those aspects of the NLSS that are essential 
functions of the proposed list selection rule.
---------------------------------------------------------------------------

    \74\ See Bernstein Letter. For example, he argues that: 1) the 
standards for exclusion from serving as an arbitrator based upon 
conflicts of interest as a function of current employment should be 
included in the rule (and that both current and former employment 
should be a basis for exclusion); 2) the standards that apply to a 
Director's rulings on for cause challenges should be included in 
proposed Rule 10308(d)(1); 3) the method of operation of the list 
selection software and the selection rules that will be used when 
that software cannot be used, should be a matter of public record 
and should be stated in the rule; 4) the standards for all 
determinations made by the software (geographic proximity, conflicts 
of interests, subject matter expertise, ranking and rotation) should 
be included in the rule; 5) the number of arbitrators required to be 
on a list should be a part of the rule; 6) the arithmetic method 
that the NASD will use to consolidate the rankings of parties on the 
same side should be explained in the text and in the rule; 7) the 
standards for what would constitute ``sufficiently divergent'' when 
a Director can decline to consolidate rankings of parties when their 
interests diverge sufficiently should be explained in detail; 8) the 
standards for when the NASD manually performs a conflict of interest 
check should be made public; 9) the time that prospective 
arbitrators will have to respond to the NASD's call should be 
specified in the rule; and the NASD should be obligated to attempt 
to reach a selected arbitrator at all available telephone and 
facsimile numbers for that arbitrator in the NASD's database; and 
10) the rule should state that the NASD and its staff shall not 
communicate with the proposed arbitrators or otherwise operate in 
such a manner as to influence the outcome of the selection process.
    \75\ See Amendment No. 4.
---------------------------------------------------------------------------

    NASD Regulation states that the arithmetic method will be used for 
consolidating rankings was explained in a detailed, multi-part example. 
The Association does not believe that the rule text would be clearer by 
incorporating examples of calculations in the text. In addition, the 
Association has explained in detail in the rule filing its aspirations 
regarding providing parties with a certain number of listed 
arbitrators, and declines to provide an exact minimum number of 
arbitrators in the proposed rule because the number of available 
arbitrators varies from place to place.
    In response to Bernstein's suggestion that under proposed Rule 
10308 the Association should address conflicts that may arise based 
upon the past employment of an arbitrator or a party, as well as 
conflicts-of-interest based upon current employment, NASD Regulation 
points out that the rule filing indicates that the initial conflict-of-
interest review performed by NLSS is limited to readily apparent 
conflicts of interest,\76\ but that there are subsequent checks 
performed by the Director that include all possible relationships, 
including past employment that allow the Director to determine whether 
an arbitrator has a conflict of interest and should not be appointed or 
must be disqualified after appointment.\77\ The Association also 
declines to state in proposed Rule 10308 a standard by which the 
Director will judge claims of an arbitrator's conflict of interest, 
arguing that the Director applies the facts as presented to assess 
whether a bias or a conflict of interest is present or may be present, 
and that the present Code does not contain an express standard.\78\ 
Also, NASD Regulation states that it would inappropriately limit the 
ability of the Association staff to administer cases to specify how the 
Association must attempt to communicate with a listed arbitrator to 
determine if the arbitrator is available to serve on a panel. 
Generally, however, the Association intends to contact the arbitrators 
by telephone.\79\
---------------------------------------------------------------------------

    \76\ Such as whether the arbitrator is currently employed by, or 
currently has a securities account with, the respondent.
    \77\ See Amendment No. 4.
    \78\ The Association's treatment of divergent interests (among 
respondents or claimants) is previously addressed, supra note 38 and 
related text.
    \79\ See Amendment No. 4.
---------------------------------------------------------------------------

    Bernstein asks how many strikes are allocated to each party when 
there is more than one party on a side and their bankings are 
consolidated. Bernstein also argues that the proposed rule should 
require the NASD to publish, on its website and possibly in hard-copy 
form for each case in which a list of arbitrators is proposed, the 
following information: date; geographic location; case number; and 
names of arbitrators included in the list of lists of proposed 
arbitrators. He argues that this is necessary in order for the public 
to be able to verify that the rotation required by the rule is 
occurring. NASD Regulation declines to publish the arbitrators names in 
the rotation because its would create an enormous administrative 
burden. In addition, NASD Regulation states that the NLSS and new list 
selection process are subject to review internally by the Audit 
Committee,\80\ and to SEC oversight.\81\
---------------------------------------------------------------------------

    \80\ NASD Regulation states that the Audit committee is 
comprised of independent Governors of the NASD Board of Governors.
    \81\ See Amendment No. 4.
---------------------------------------------------------------------------

    Bernstein argues that the reference in proposed Rule 10308(c)(4)(A) 
to the Directors' ability to disqualify arbitrators should cross-
reference all provisions under which disqualification may occur, and as 
previously argued, should contain the standards for disqualification. 
NASD Regulation responds that the Director, the staff, and all NASD 
arbitrators must look to and follow ``The Arbitrators Manual'' and 
``Code of Ethics for Arbitrators in Commercial Disputes'' (``Code of 
Ethics''), regarding the arbitrator's duty to disclose conflicts of 
interest, the appearance of bias, the assessment of challenges relating 
to an arbitrator's

[[Page 56681]]

opinion or bias, business or personal relationships, previous or 
current involvement with a party or witness, or financial interests, 
and an arbitrator's ethical responsibilities to determine issues of 
disqualification and withdrawal.\82\ NASD Regulation states that every 
arbitrator must review and understand ``The Arbitrator's Manual'' and 
the Code of Ethnics as part of mandatory arbitrator training, and any 
time that the Director must resolve a disqualification issue, the 
Director will refer to these provisions.\83\
---------------------------------------------------------------------------

    \82\ ``The Arbitrator's Manual,'' (Oct. 1996 ed.), pp. 2-6, App. 
A. The Code of Ethics was developed jointly by the American Bar and 
American Arbitrator Association. See Amendment No. 4.
    \83\ See Amendment No. 4.
---------------------------------------------------------------------------

    Bernstein also proposes that proposed Rules 10308(d)(2) and 
10312(f) should state that after the Director's authority to disqualify 
an arbitrator has ceased, the panel still has that authority, as 
consistent with the descriptive text of the proposal.\84\ NASD 
Regulation declines to make the amendments because the manner in which 
disqualification and withdrawal issues are treated is set forth in 
``The Arbitrator's Manual'' and the Code of Ethics. At all times, 
including the period when the Director's authority to disqualify an 
arbitrator has ended, an arbitrator must consult ``The Arbitrator's 
Manual'' and the Code of Ethics, Canon II, regarding the arbitrator's 
duty to disclose conflicts of interest, issues of bias, and his or her 
ethical responsibilities to determine if withdrawal as an arbitrator is 
required. Under Cannon II. E., of the Code of Ethics, an arbitrator 
``should withdraw'' if requested to do so by all the parties because of 
alleged partiality or bias. If requested to withdraw for such reasons 
by less than all of the parties, the arbitrator ``should withdraw'' 
unless ``the arbitrator, after carefully considering the matter, 
determines that the reason for the challenge is not substantial, and 
that he or she can nevertheless act and decide the case impartially and 
fairly, and that withdrawal would cause unfair delay or expense to 
another party or would be contrary to the ends of justice.'' The 
Association stated that its experience is that arbitrators apply the 
Code of Ethics more rigorously than a strict reading requires.\85\
---------------------------------------------------------------------------

    \84\ In addition, Bernstein argues that the standards for 
removal in such cases should be the same as those that apply to for-
cause challenges, and that the arbitrator against whom the challenge 
or recusal motion is made should not be permitted to participate in 
any vote or other decision regarding that issue.
    \85\ See Amendment No. 4.
---------------------------------------------------------------------------

    Bernstein believes that due diligence and expertise concerning 
Ponzi schemes and other illegal securities or transactions should be 
included as an identified area of subject matter expertise. He also 
believes that limited partnerships should be included in the list of 
``various types of securities or other financial instruments'' in which 
an arbitrator may have expertise. NASD Regulation notes that the topic 
of due diligence is too broad and vague to be entered into NLSS as a 
subject matter category, and that ``underwriting'' is currently a 
subject matter expertise category. Also, NASD Regulation wishes to 
defer receiving proposals to expand the various types of expertise 
until a later date.
    Finally, Bernstein argues that proposed Rule 10313, which currently 
provides for no challenge other than a for-cause challenge to 
replacement arbitrators, should allow for a peremptory challenge of the 
replacement arbitrator because the industry, which is requiring the 
public to ``give up the right to a judge and jury and come instead to 
the industry's forum,'' should prevent the appearance of 
impropriety.\86\ NASD Regulation responds that this change is 
consistent with the other provisions of proposed Rule 10308. Thus, 
although the parties are provided an unlimited right to strike an 
arbitrator in the early stages of a proceeding, generally, under the 
new procedures, when an arbitrator is appointed later in the preceding, 
the parties may challenge the arbitrator for cause only. The 
Association agrees with Bernstein's suggestion that the replacement 
arbitrator the Director appoints should be obtained from an NLSS-
derived ``list of one.'' To replace an arbitrator under Rule 10313, and 
in the other instances where the Director must appoint an arbitrator 
not previously ranked by the parties (see, e.g., paragraphs (c)(4)(B) 
and (d)(3) of proposed Rule 10308), the Director will return to the 
NLSS and obtain a ``list of one,'' using the primary factors previously 
input into NLSS to generate the list of arbitrators first sent to the 
parties. The association does not believe it is necessary to specify in 
proposed Rule 10308 and proposed Rule 10313 that the Director will use 
NLSS in this manner to perform these rule functions.\87\
---------------------------------------------------------------------------

    \86\ Bernstein also adds that the rule should specify that the 
replacement arbitrator will be a ``list of one'' selected by the 
computer (ie. the next arbitrator in the rotation).
    \87\ See Amendment No. 4.
---------------------------------------------------------------------------

IV. Discussion

    The Commission finds that the proposed rule change is consistent 
with the requirements of the Act and the rules and regulations 
thereunder applicable to a national securities association, and, in 
particular, with the requirements of Section 15A(b)(6),\88\ which 
require, among other things, that the Association's rules must be 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, and, in general, to 
protect investors and the public interests.\89\ Specifically, the 
Commission believes that allowing parties greater input into the 
selection of the arbitrators to hear their cases will help ensure a 
more fair and neutral arbitration process.
---------------------------------------------------------------------------

    \88\ 15 U.S.C. 78o-3.
    \89\ In approving this rule, the Commission notes that it has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    The Commission believes that the NASD's list selection procedures 
and methodology, as proposed, provide for the protection of investors 
in the selection of arbitrators and will benefit all users of the 
arbitration program. The Commission believes that the computerized 
generation of the lists of arbitrators should help ensure greater 
confidence in the fairness and neutrality in the selection of the 
arbitrators, while at the same time allowing the Director the 
flexibility to supplement the NLSS process if necessary.\90\ The 
Commission notes that the arbitrators will be selected by the computer 
using a rotation method, rather than on a random basis,\91\ so that all 
arbitrators are placed on a selection list with the same 
regularity.\92\ The Commission also notes that the NLSS is designed to 
sort arbitrators based on certain factors that should help ensure a 
neutral list of arbitrators who will be better suited to the particular 
arbitration. The NLSS sorts arbitrators based on whether an arbitrators 
is public or non-public, and based on hearing location, rotation, and 
whether any clear conflict of interest exists between a party and 
potential arbitrators. In addition, NLSS can also sort arbitrators by 
subject matter expertise, security expertise, and case expertise. The 
Commission believes that the subject matter, security, and case 
expertise categories are a reasonable

[[Page 56682]]

attempt at this time to ``personalize'' an individual arbitration, and 
that it is not necessary for the NASD to expand upon them as it begins 
to implement its selection process.
---------------------------------------------------------------------------

    \90\ At the request of a party, the Director can add a procedure 
that is outside the NLSS capability, but that may legitimately be 
considered in the selection of an arbitration panel.
    \91\ See Notice Release.
    \92\ The NASD states that the random selection method does not 
always produce perfect randomness, which could lead to some 
arbitrators being chosen more often than others over time.
---------------------------------------------------------------------------

    The Commission believes that the list selection method provides 
adequate measures to identify potential or actual conflicts of interest 
between a party and an arbitrator, both prior to compilation of the 
list and selection of the arbitrators, and once an arbitrator or an 
arbitration panel is selected. The NLSS performs two conflict-of-
interest checks. First, the NLSS checks for any obvious, disclosed 
conflict of interest between parties and potential arbitrators that can 
be identified in the NLSS database while generating the list, such as 
when the respondent member firm is also the employer of an arbitrator 
in NLSS.\93\ Second, ODR will perform a manual conflict of interest 
review after the list is created but before it is finalized and sent to 
the parties.\94\ The Commission believes that checking for conflicts of 
interest before the list is forwarded to the parties will likely 
eliminate arbitrators that would have been struck by a party later, and 
will result in those arbitrators being replaced (through the NLSS) 
before the lists are sent to the parties, which should help avoid 
limiting the parties' choices at the selection stage. While reviewing 
the lists, parties can review any information on the arbitrators that 
ODR has in its possession, including employment history for the past 
ten years, in order to make their own determination as to conflict of 
interest concerns, and may request additional information from the 
arbitrators under Rule 10312(b)(6). In addition, once the parties have 
ranked the arbitrators and the lists have been consolidated into one 
list, the Director performs another determination as to whether to 
disqualify an arbitrator.\95\ If the arbitrator is not disqualified, 
and is available, the Director appoints the arbitrator.
---------------------------------------------------------------------------

    \93\ The Commission does not believe it is necessary for the 
NASD to include in the rule language the standards for exclusion 
from serving as an arbitrator based upon conflicts of interest as a 
function of current employment, or that the standards for the manual 
conflict of interest review need to be included in the rule language 
or made public. NASD Regulation has stated the basic operational 
aspects of the rule in the rule language and the rule filing. The 
addition of more detail to the text may be confusing.
    \94\ The Commission notes, in response to a comment, that even 
though the initial conflict of interest review performed by NLSS is 
limited to readily apparent conflicts of interest (such as current 
employment), the subsequent manual checks include a wider range of 
possible relationships, including past employment. See Amendment No. 
4.
    \95\ The Director contacts each arbitrator to determine if he or 
she is available to serve. At this time, the Director will provide 
the arbitrator with the issues of the case and the names of the 
parties, and determine whether the arbitrator is aware of any 
conflict of interest or bias or other reason that may preclude the 
arbitrator from rendering an objective and impartial decision. Based 
upon the information previously provided by the arbitrator, any 
information provided under Rule 10312, and any information from any 
other source, the Director determines if the arbitrator should be 
disqualified. The Commission does not believe it is necessary for 
the NASD to specify in the rule language a response time for each 
arbitrator contacted, or that the NASD should be obligated to 
attempt to reach a selected arbitrator at all available telephone 
and facsimile numbers for that arbitrator. The Commission also does 
not believe it is necessary for NASD Regulation to specify how it 
shall communicate with proposed arbitrators to determine if they are 
available to serve.
---------------------------------------------------------------------------

    The Commission also finds that the conflict of interest safeguards 
in place after a panel is appointed are adequate to help protect 
investor interests by providing that any new information on the 
arbitrators that may lead to a conflict of interest is disclosed to the 
parties, unless the arbitrator is removed or resigns. Each arbitrator 
has a continuing obligation under Rule 10312 to disclose any 
circumstances that might preclude the arbitrator from rendering an 
impartial and objective determination to the Director, who has the 
ability to remove an arbitrator up until the start of the earlier of 
the the pre-hearing conference or the first hearing.\96\ After this 
point, a party must raise a disqualification matter with the 
arbitration panel.\97\ Finally, the Director must disclose information 
about a replacement arbitrator appointed by the Director to the 
parties, who can object to the arbitrator, at which time the Director 
can decide to disqualify the arbitrator. To replace an arbitrator (and 
in other instances where the Director must appoint an unranked 
arbitrator), the Director will return to the NLSS to obtain a ``list of 
one,'' using the primary factors previously input into NLSS to generate 
the initial list of arbitrators sent to the parties.\98\ The Commission 
notes that the Director and all arbitrators must review and abide by 
``The Arbitrators Manual'' and the Code of Ethics regarding the 
arbitrator's duty to disclose conflicts of interest, the appearance of 
bias, the assessment of challenges relating to an arbitrator's opinion 
or bias, business or personal relationships, previous or current 
involvement with a party or a witness, or financial interests, and an 
arbitrator's ethical responsibilities to determine issues of 
disqualification or withdrawal.\99\
---------------------------------------------------------------------------

    \96\ The Director must disclose this information to the parties 
unless the Director disqualifies the arbitrator or the arbitrator 
voluntarily withdraws. After the commencement of the earlier of the 
pre-hearing conference or the first hearing, the Director must 
disclose any new information on the arbitrators to the parties.
    The Commission does not believe it is necessary for the NASD to 
include in the rule text the standards that apply to a Director's 
ruling on a for-cause challenge to an arbitrator already appointed, 
because the Director applies the facts of each situation as 
presented, based upon the Code of Ethics developed by the American 
Bar Association and American Arbitration Association, to assess 
whether a conflict exists or may exist. The Commission also notes 
that the present Code does not contain a more express standard.
    \97\ The Commission believes it is reasonable to limit the 
Director's authority to remove an arbitrator after the commencement 
of the earlier of the pre-hearing conference or the first hearing, 
to reduce party concerns about NASD Regulation's influence over 
particular cases, and because it is reasonable for the arbitration 
to be administered and controlled by the arbitrators once the 
arbitrators have begun to address the issues in the arbitration. 
Accordingly, it is reasonable for NASD Regulation to decide that, 
based upon NASD Regulation's characterization of its past experience 
with arbitrator recusals, it is no longer appropriate for the 
Director to be able to remove an arbitrator after the earlier of the 
pre-hearing conference or the first hearing. The Commission does not 
believe it is necessary for the NASD to state more explicity the 
procedures to disqualify an arbitrator in the rule text because the 
manner in which disqualification and withdrawal issues are treated 
is addressed in the Code of Ethics and ``The Arbitrators Manual.'' 
See supra note 82 and accompanying text.
    \98\ See Amendment No. 4.
    \99\ See Amendment No. 4.
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    In addition, the Commission believes that the proposed rule change 
provides for sufficient public representation on each arbitration panel 
by requiring a majority of public arbitrators on each arbitration 
panel, unless all of the parties agree to a differenct panel 
composition. The Commission notes that the NASD staff classifies 
arbitrators as public or non-public based on the information it 
receives for that arbitrator.\100\ The Commission also believes that 
the method for selecting a chairperson when the parties do not agree is 
reasonable. In response to a comment, NASD Regulation amended the 
process to provide that the Director will first attempt to appoint the 
highest ranked public arbitrator on the panel as the chairperson.\101\
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    \100\ The Commission believes that the NASD's definition of 
``immediate family member'' as a person who receives more than 50% 
of his or her annual income from a person generally engaged in the 
securities industry and its exclusion of such persons from serving 
as public arbitrators is a reasonable view of how such persons 
should be classified, so as to guard against any perceived bias or 
conflict of interest.
    \101\ See Amendment No. 4. The Director will chose the highest 
ranked public arbitrator unless that arbitrator meets the exclusion 
for representing certain investor interests, in which case the 
Director will appoint the other public arbitrator as chairperson. If 
both public arbitrators are subject to the exclusion, the Director 
will appoint the highest ranked public arbitrator as chairperson. 
See supra noted 42 and 43 and accompanying text.

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[[Page 56683]]

    The Commission believes that the ODR's guideline \102\ for the 
minimum number of arbitrators on each list forwarded to the parties is 
reasonable to provide a pool of arbitrators for the parties to choose 
from to select an arbitration panel. The Commission notes that, for a 
three arbitrator panel, NASD Regulation has undertaken to provide a 
public list that contains at least two times as many names as the non-
public list, to the extent feasible. In addition, to address possible 
arbitrator shortages, the Director can combine arbitrators from nearby 
hearing locations when necessary.\103\ The Commission recognizes that 
there are times when the parties will strike all the names on a list 
and notes that one commenter expressed a concern with the number of 
arbitrators on each list, but believes that it is not necessary at this 
time to require a larger list of arbitration. The Commission notes that 
requiring a larger number of arbitrators on the list might not be 
feasible, given the limited number of arbitrators. The Commission also 
notes that NASD Regulation has stated it will monitor how often the 
Director must appoint unranked arbitrators because one or both parties 
have struck all the names on the list.
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    \102\See supra Background and Description Section. The 
guidelines state that for one arbitrator, NASD Regulation should 
supply a public list with 3 to 5 arbitrators. For a three arbitrator 
panel, the NASD should supply a public list with 6 to 10 arbitrator 
names, and a non-public list with 3 to 5 arbitrator names.
    \103\ The Commission believes it is reasonable not to specify a 
minimum number of arbitrators in the actual rule text because the 
number arbitrators varies from place to place, and notes that NASD 
Regulation has explained its guidelines in the proposed rule change.
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    The Commission also believes it is reasonable to allow each party 
unlimited strikes because this should allow parties greater control in 
choosing the composition of the arbitration panel, and reducing the 
number of strikes could limit a party's ability to strike an arbitrator 
he or she does not want on the panel. The Commission recognized the 
possibility that a respondent and/or respondents acting together could 
use the unlimited strikes to strike all the arbitrators from the list, 
resulting in the Director choosing the panel.\104\ However, the 
Commission believes it is reasonable at this time to implement the 
proposed rule change as proposed, with the number of arbitrators 
suggested and unlimited strikes, and notes that NASD Regulation states 
it will reevaluate the issue of limiting the number of strikes if it 
finds that the Director appoints unranked arbitrators too frequently 
due to the parties' exercise of their unlimited strike rights.
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    \104\ See Bernstein Letter. The Commission also believes that 
the process for ranking arbitrators when the parties fail to rank 
them, or improperly rank multiple arbitrators, is reasonable.
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    The Commission also finds that a one-round list selection method 
(as opposed to a two-round procedure as suggested by commenters) is 
reasonable and consistent with the Act in that it supports the goals of 
arbitration as a less expensive and less time-consuming method of 
resolving disputes, while at the same time providing a process by which 
parties have greater control over the selection of arbitrators. The 
Commission notes that although NASD Regulation initially considered a 
two-round, two-list selection method, it concluded that the operational 
burdens of administering such a process, especially given the limited 
number of arbitrators relative to the large caseload, would be too 
great. Also, NASD Regulation was concerned that a two-round, two-list 
selection method would significantly delay the empaneling of the 
arbitrators and would be too costly. The Commission also stresses that 
NASD Regulation will reconsider whether to add an additional round of 
list selection after it has gained some experience in administering the 
rule.
    The Commission believes it is reasonable to consolidate all 
claimants' rankings, and all respondents' rankings, whether through all 
the claimants (or respondents) jointly ranking arbitrators and 
submitting one set of rankings, or the Director, using the NLSS, 
creating a consolidated list for each side. The Commission notes that 
the consolidation gives claimants and respondents equal weight in the 
rankings when the two sides are subsequently consolidated. The 
Commission also notes that in response to a comment that proposed Rule 
10308(c)(3)(B) may have provided certain parties the potential to 
unfairly weight the arbitration panel, NASD Regulation amended proposed 
Rule 10308(c)(3) to eliminate the Director's ability to determine not 
to consolidate the rankings of a claimant (or respondent) with the 
rankings of the other claimants (or respondents) if he or she 
determined there interests were sufficiently divergent.\105\ Also, the 
Commission finds that the methodology for consolidating claimants' and 
respondents' rankings to create one list for public and one for non-
public (if necessary), and for appointing arbitrators from that list, 
is reasonable.\106\
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    \105\ See Amendment No. 4.
    \106\The Commission finds that NASD Regulation adequately 
explained in detail and with examples the method that will be used 
to consolidate rankings, both on each side and them both sides 
together, and that it is not necessary to include examples of 
calculations in the rule text.
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    In summary, the Commission notes that list selection is a new 
process designed to allow parties greater control over the selection of 
their arbitrators, and that there were different approaches that the 
NASD could have taken to obtain this goal. The Commission believes that 
the NASD has created reasonable procedures for implementing the new 
process that should give investors and other parties more input into 
the selection of the arbitration panel and which are consistent with 
the Act.\107\ The Commission also believes the NASD has stated the 
basic operational principles in the rule language.
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    \107\ The Commission also finds the changes to related rules to 
conform those rules to the proposed changes to Rule 10308 
reasonable.
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    The Commission finds good cause to approve Amendment Nos. 3 and 4 
to the proposed rule change prior to the thirtieth day after the date 
of publication of notice of filing thereof in the Federal Register. 
Specifically, Amendment No. 3 amends the actual rule language to 
clarify and strengthen the proposed rule change by, in part, amending 
the definition of ``non-public arbitrator'' to incorporate standard 
terminology and to add an explicit reference to government and 
municipal securities; by re-ordering proposed Rule 10308(b)(1) to make 
it more clear and to conform it to previously approved amendments to 
Rule 10308 and Rule 10302; by amending Rule 10308(b)(1) to clarify a 
party's right to change the panel composition if they all agree; to 
clarify in the rule language what information will be available with 
regard to the initial conflict of interest review by NLSS; to clarify 
in the rule language that the information on each arbitrator forwarded 
to the parties is employment information for a 10 year period and any 
other background information; to clarify in the rule language that a 
ranking of ``1'' means the most preferred arbitrator; to clarify in the 
rule language that when the Director must appoint an unranked 
arbitrator the Director will provide the parties (b)(6) information and 
the parties shall have the right to object to the arbitrator as 
provided in (d)(1); and to delete the reference in the rule to parties 
acting cooperatively to rank arbitrators, since that ability is 
implicit.
    Similarly, Amendment No. 4 also amends the proposed rule change in 
response to comments received to strengthen the proposal by providing 
generally for the highest ranked public

[[Page 56684]]

arbitrator to be the chairperson of the panel, to eliminate the 
exception to consolidation of parties' rankings for parties with 
``sufficiently divergent'' interests, and to amend the time frame in 
proposed Rule 10313 to align it with the time frames set forth in 
proposed Rule 10312 and 10315. Accordingly, because the changes in 
Amendment Nos. 3 and 4 are technical in nature and serve to clarify and 
strengthen the proposal, the Commission believes that it is consistent 
with Section 15A(b)(6) of the Act to approve Amendment Nos. 3 and 4 to 
the proposal on an accelerated basis.
    Interested persons are invited to submit written data, views, and 
arguments concerning Amendment Nos. 3 and 4 to the rule proposal, 
including whether the amendments are consistent with the Act. 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 at the Commission's Public 
Reference Room. Copies of such filing also will be available for 
inspection and copying at the principal office of the NASD. All 
submissions should refer to File No. SR-NASD-98-48 and should be 
submitted by November 12, 1998.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\108\ that the proposed rule change (SR-NASD-98-48), including 
Amendment Nos. 3 and 4 on an accelerated basis, is approved.
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    \108\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\109\
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    \109\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 98-28321 Filed 10-21-98; 8:45 am]
BILLING CODE 8010-01-M