[Federal Register Volume 64, Number 2 (Tuesday, January 5, 1999)]
[Notices]
[Pages 555-561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-77]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-40853; File No. SR-NASD-98-57]


Self-Regulatory Organizations; Order Granting Approval to 
Proposed Rule Change and Amendment Nos. 1 and 2, and Order Granting 
Accelerated Approval to Amendment No. 5 Thereto, by the National 
Association of Securities Dealers, Inc. Relating to Amendments to NASD 
Membership and Registration, Investigation and Sanctions, Conduct and 
Code of Procedure Rules

December 28, 1998.

I. Introduction

    On August 7, 1998, the National Association of Securities Dealers, 
Inc. (``NASD'' or ``Association''), through its regulatory subsidiary, 
NASD Regulation, Inc. (``NASD Regulation'') submitted to the Securities 
and Exchange Commission (``SEC'' or ``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 the NASD 
Membership and Registration, Investigation and Sanctions, Conduct and 
Code of Procedures rules. The proposed rule change was amended on 
August 17, 1998,\3\  and further amended on August 26, 1998.\4\ These 
amendments both clarified and corrected the language of the 
proposal.\5\ On November 13, 1998,\6\ the NASD further amended the 
proposal, to respond to suggestions in a comment letter.\7\ \8\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Letter from Joan C. Conley, Secretary, NASD Regulation to 
Katherine A. England, Assistant Director, Division of Market 
Regulation (``Division''), SEC, dated August 17, 1998 (``Amendment 
No. 1'').
    \4\ E-mail from Eric Moss, Attorney, NASD Regulation of Mandy 
Cohen, Attorney, Division, SEC, dated August 26, 1998 (``Amendment 
No. 2'').
    \5\ In addition, on September 25, 1998 and October 30, 1998, 
NASD Regulation filed nonstantive amendments granting extensions of 
time for Commission action. See Letters from Eric Moss, Attorney, 
NASD Regulation to Katherine A. England, Assistant Director, 
Division, SEC, dated September 25, 1998 and October 29, 1998 
(``Amendment No. 3 and Amendment No. 4,'' respectively). On December 
22, 1998, the NASD filed another non-substantive amendment changing 
the effective date of the proposed rule change to 30 days after 
publication of the proposal in the NASD Notices to Members. Letter 
from Alden S. Adkins, Sr. Vice President and General Counsel, NASD 
Regulation to Katherin A. England, Assistant Director, Division, 
SEC, dated December 22, 1998 (``Amendment No. 6'').
    \6\ Letter from Alden S. Adkins, Sr. Vice President and General 
Counsel, NASD Regulation to Katherine A. England, Assistant 
Director, Division, SEC, dated November 10, 1998 (Amendment No. 
5'').
    \7\ This comment letter is more fully discussed below in Section 
IV, Comments and Responses, See. Letter from Anne C. Flannery and 
Ben A. Indek, Morgan Lewis & Bockius, LLP, to Jonathan G. Katz, 
Secretary, SEC, dated October 6, 1998 (``Flannery Letter'').
    \8\ The NASD again agreed to extend the time for Commission 
action by letter from Eric Moss, Office of General Counsel, NASD 
Regulation to Katherine A. England, Assistant Director, Division, 
SEC, dated November 30, 1998.
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    The proposed rule change was published for comment in the Federal 
Register on September 3, 1998.\9\ One comment letter was received on 
the proposal.\10\ This Order approves the proposed rule change, as 
amended and grants accelerated approval to Amendment No. 5 to the 
proposed rule change.\11\
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    \9\ Securities Exchange Act Release No. 40378 (August 27, 1998), 
63 FR 47064 (September 3, 1998). Amendment Nos. 1 and 2 were 
included in this release.
    \10\ See supra note 7, and infra Section IV, Comments and 
Responses.
    \11\ The Commission also solicits comments on Amendment No. 5. 
Amendment Nos. 3 and 4, which extend the time for Commission action, 
are non-sustantive, and therefore do not require publication for 
notice and comment. Amendment No. 6 is also non-substantive, and 
therefore does not require publication for notice and comment.
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II. Background

    In November 1994, the NASD Board of Governors appointed the Select 
Committee on Structure and Governance (``Select Committee'') to review 
the NASD's corporate governance structure and to recommend changes to 
enable the NASD to better meet its regulatory and business obligations, 
including its oversight of the Nasdaq market.
    On August 8, 1996, the Commission issued an order pursuant to 
Section 19(h)(1) of the Act \12\ (``SEC Order''),\13\ including 
fourteen undertakings (``Undertakings''), and a related report pursuant 
to Section 21(a) of the Act (``21(a) Report'').\14\ In these documents, 
the Commission indicated that the NASD had not complied with its own 
rules and had failed to satisfy its self-regulatory obligations under 
the Act to enforce such rules and the federal securities laws. Shortly 
thereafter, following the recommendations of the Select Committee, the 
NASD proposed to reorganize its corporate structure. The NASD retained 
ultimate policymaking, oversight, and corporate authority as the parent 
holding company and statutory self-regulatory organization, while 
granting substantial deference to the operating subsidiaries in the 
areas of their respective jurisdictions. Nasdaq was given sole 
responsibility to operate and oversee the Nasdaq market and other over-
the-counter markets, while NASD Regulation was given responsibility for 
regulation and member and constituent services. The Rules of the 
Association (``Rules''), including those sections governing the conduct 
and review of disciplinary proceedings, member admissions procedures 
and denial of access decisions, were substantially revised. The 
revisions to the corporate structure were first proposed and adopted in 
mid-1996 and were approved by the Commission on August 7, 1997,\15\ 
Additional revisions to the corporate structure were approved on 
November 14, 1997,\16\ and in the months following,\17\ while various 
other proposals, including revision of the procedures governing the 
automated systems, are still pending.\18\ The proposed amendments 
supplement previous changes to the Rules of the Associations adopted in 
response to the SEC Order and related documents.
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    \12\ 15 U.S.C. 78s(h)(1).
    \13\ Securities Exchange Act Release No. 37538 (August 8, 1996), 
SEC's Order Instituting Public Proceedings Pursuant to Section 
19(h)(1) of the Securities Exchange Act of 1934, Making Findings and 
Imposing Remedial Sanctions, In the Matter of the National 
Association of Securities Dealers, Inc. Administrative Proceeding 
File No. 3-9056. Section 21(a) of the Act is set forth at 15 U.S.C. 
78u(a).
    \14\ SEC, Report and Appendix to Report Pursuant to Section 
21(a) of the Securities Exchange Act of 1934 Regarding the NASD and 
the Nasdaq Stock Market (August 8, 1996).
    \15\ Securities Exchange Act Release No. 38908 (August 7, 1997) 
62 FR 43385 (August 13, 1997) (File No. SR-NASD-97-28).
    \16\ Securities Exchange Act Release No. 39326 (November 14, 
1997) 62 FR 62385 (November 21, 1997) (File No. SR-NASD-97-71).
    \17\ Securities Exchange Act Release No. 39470 (December 19, 
1997), 62 FR 67197 (December 30, 1997) (File No. SR-NASD-97-81); 
Securities Exchange Act Release No. 39483 (December 22, 1997), 63 FR 
117 (January 2, 1998) (File No. SR-NASD-97-90); Securities Exchange 
Act Release No. 39494 (December 29, 1997), 63 FR 586 (January 6, 
1998) (File No. SR-NASD-97-97); Securities Exchange Act Release No. 
39671 (February 17, 1998), 63 FR 9893 (February 26, 1998) (File No. 
SR-NASD-98-13); Securities Exchange Act Release No. 40213 (July 15, 
1998), 63 FR 39619 (July 23, 1998) (File No. SR-NASD-98-36); 
Securities Exchange Act Release No. 40026 (May 26, 1998), 63 FR 
30789 (June 5, 1998) (File No. SR-NASD-97-34); Securities Exchange 
Act Release No. 40252 (July 23, 1998), 63 FR 40759 (July 30, 1998) 
(File No. SR-NASD-98-46).
    \18\ See, e.g., File No. SR-NASD-98-88 (revising listing and 
delisting procedures).

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[[Page 556]]

III. Description of the Proposal

    NASD Regulation is proposing changes to the Rules of the 
Association that include: (A) the amendment and consolidation of 
certain non-summary procedures in the Rule 9510 Series, including those 
related to failure to provide information, statutory disqualification 
and failure to pay dues and fines; (B) the streamlining of default 
decisions, by measures including the consolidation of various 
procedures into a single rule series and the revision of review 
procedures; (C) the modification of pre-use filing requirements for 
advertising materials; (D) the refinement of certain elements of the 
Association's non-summary disciplinary processes, including amendment 
of complaints and the introduction of new evidence upon review; (E) the 
revision of various procedural technicalities, including the issuance 
of decisions in settled cases, the effective date of certain sanctions, 
and several others.

A. Refinement of Non-Summary Procedures

    According to NASD Regulation, in a summary proceeding, the 
Association may impose a suspension, limitation, or prohibition before 
holding a hearing. In a non-summary proceeding, a respondent is given 
notice and an opportunity for a hearing before the Association takes 
any action against a respondent. In this proposal, the NASD has 
reorganized and simplified its rules by grouping procedures by type--a 
``summary proceeding'' or a ``non-summary proceeding''--rather than by 
the issue or malfeasance addressed by the particular rule.
1. Denials of Access, Failure To Pay Arbitration or Settlement Awards 
and Imposition of Pre-Use Advertising Requirements
    As approved today, the Rule 9510 Series will be simplified by 
deleting certain non-summary proceedings, consolidating them with other 
rules, and by replacing certain current procedures with simpler 
measures located in other parts of the Rules. This proposal refines the 
scope of the Rule 9510 Series and removes redundant provisions. As 
revised, this series will govern summary proceedings authorized by 
Section 15A(h)(3) of the Act, including statutory disqualification and 
failure to provide information; and non-summary proceedings imposing 
suspension or cancellation for failure to comply with an Association 
arbitration award or a settlement agreement, limitation or denial of 
access to Association systems, such as the Nasdaq workstation, and an 
advertising pre-use filing requirement.\19\ Finally, the rule series 
will be amended to clarify that the Association may, rather than shall, 
initiate non-summary proceedings, to more accurately reflect the NASD's 
prosecutorial discretion.\20\
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    \19\ Proposed Rule 9511. The pre-use advertising requirements 
are set forth in proposed Rules 2210 and 2220
    \20\ See proposed Rule 9513. this rule is further amended to 
make technical corrections to cross-references to Rule 9511.
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2. Suspension and Cancellation for Failure To Provide Information
    a. Procedural Changes. the procedures addressing a member or 
associated person's failure to provide requested information are 
currently located in both the Rule 9510 and 8220 Series. As proposed, 
these sections will be consolidated in a revised Rule 8220 Series.
    Currently, the Rule 8220 Series authorizes the national 
Adjudicatory Council (``NAC'') to initiate a suspension proceeding for 
failure to provide requested information, while the Rule 9510 Series 
authorizes the Association staff to initiate similar action for the 
same purpose. As amended, only the Department of Enforcement of NASD 
Regulation, acting under Board-delegated authority, will be responsible 
for initiating these proceedings, and will be designated as a party in 
the subsequent proceedings.\21\ NASD Regulation points out that this is 
consistent with the Department of Enforcement's authority in 
disciplinary proceedings governed by the rule 9200 Series.\22\
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    \21\ Proposed Rule 8221.
    \22\ See Article VII, Section 2 of the NASD By-Laws and the 
Delegation Plan.
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    The proposed changes to the Rule 8220 series amend several hearing 
procedures. First, under proposed Rule 8222(a), a member or associated 
person may file a request for hearing directly with the NASD Regulation 
Office of General Counsel, that is responsible for arranging such 
hearings, rather than the NAC, as currently required.
    Second, proposed Rule 8222(b)(1) expands the pool of persons 
eligible for serving on the subcommittee conducting the hearings. 
Previously, only former members of the NASD Regulation Board of 
Directors, and the NASD Board of Directors could serve with current and 
former NAC members on the subcommittee. The proposal adds current 
members of these boards to the pool. At least one member, however, will 
have to be a current NAC member.
    Third, proposed Rule 8222(b)92) lengthens the period during which a 
hearing must be held, from 20 to 30 days. NASD Regulation represents 
that 20 days is not sufficient time to find panelists and coordinate 
the schedules of the panelists, the parties, and their attorneys. NASD 
Regulation asserts that the increased time period will not prejudice 
the member or associated person because once a hearing is requested, a 
suspension or cancellation is stayed pending completion of the 
proceeding.
    Fourth, Rule 8222(b)(3), as amended by the proposal, will allow the 
Association to withhold certain privileged documents, such as attorney 
work product.\23\
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    \23\ The confidential documents are listed in Rule 9521. This 
provision is based upon a provision currently found in Rule 9514(e).
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    Fifth, the proposed Rule 8222(b)(7) requires that any additional 
information required by a hearing subcommittee be distributed to the 
parties not less than one business day before the subcommittee renders 
its decision.
    Finally, the Rule 8220 Series is revised to require service by 
overnight commercial courier. NASD Regulation believes this will ensure 
efficient service.
    b. Call for Review. Proposed Rule 8223(b) revises the call for 
review process by placing the authority to conduct a review with a 
review panel, rather than the full NASD Board. NASD Regulation believes 
the proposed rule change will permit suspension or cancellation 
proceedings to be concluded in a more timely manner. The NASD Board 
Executive Committee is a smaller body designed to meet on an as-needed 
basis and can convene more easily than the NASD Board. A review by the 
NASD Board is generally deferred until the next NASD Board meeting, 
which could be as much as two months later.\24\ The review panel in 
most cases could conveniently arrange its review around the Executive 
Committee meetings because most of the participants would be the same.
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    \24\ The NASD Board generally meets every two months.
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    The ability of any Governor to call the proceeding for review 
remains intact. The review panel will be composed of

[[Page 557]]

the members of the NASD Board Executive Committee and the Governor who 
called the proceeding for review. The Governor who called the review 
would serve in lieu of an Executive Committee member who has the same 
classification (Industry, Non-Industry, or Public) as the calling 
Governor. NASD Regulation states that it would design procedures for 
selecting the Executive Committee member excused in such a way to 
prevent his or her exclusion from every panel.
    NASD Regulation believes the review panel composition is also 
consistent with the SEC Order because a respondent in a proceeding will 
still have the benefit of a balanced body conducting the review. 
Pursuant to NASD By-Laws, as revised to be consistent with the SEC 
Order, the NASD Board Executive Committee must reflect the percentages 
of Non-Industry and Public Governors on the NASD Board. The percentage 
would be maintained on the review panel by having the Governor 
initiating the call for review serve as a substitute for an Executive 
Committee member of the same classification.
    c. Reinstatement Provisions. The reinstatement provisions set forth 
in proposed Rule 8225 are amended to provide that requests to terminate 
a suspension should be filed with the Department of Enforcement. If the 
Department of Enforcement denies the request, a further request for 
relief may be filed with the NASD Regulation Office at General Counsel. 
If the request is filed within 30 days after service of the underlying 
suspension decision, the review panel that made the underlying 
suspension decision shall render the termination of suspension 
decision. NASD Regulation notes that the review panel would be most 
familiar with the decision and the issues during this period. If the 
request is filed more than 30 days after service of the underlying 
suspension decision, the NAC shall render the termination of suspension 
decision. NASD Regulation believes this will ensure that the review 
panel's responsibilities are concluded shortly after its decision is 
rendered and will not continue for an indefinite period.
    d. Public Disclosure. Proposed Interpretive Material 8310-2 
provides for the release of disciplinary information to the public. The 
proposed rule change is amended to permit the NASD to release 
information about suspensions and cancellations imposed under the Rule 
8220 Series, unless the NAC determines otherwise. NASD Regulation 
explained that the NAC may determine not to release such information if 
a member subject to a suspension quickly cures the failure to provide 
information and the suspension is quickly terminated.
3. Statutory Disqualification
    a. Member Obligations. The proposed amendments clarify certain 
procedures and expedite statutory disqualification proceedings, 
necessary to protect investors. Proposed Rule 9522(b) provides that a 
member has an independent obligation to initiate a statutory 
disqualification proceeding. Proposed Rule 9522 provides that if a 
member fails to respond to a statutory disqualification notice by 
filing a written request for relief within ten days, the member's 
membership may be canceled and the associated person's registration may 
be revoked, unless an extension of time is granted by the NAC for good 
cause shown.
    b. Expedited Review. Proposed Rule 9525 provides for expedited 
review of statutory disqualification proceedings when the Statutory 
Disqualification Committee requests an expedited review and the NASD 
Board Executive Committee determines that such action is necessary for 
the protection of investors. The review panel shall be composed of the 
NASD Board Executive Committee, except that the Governor who called the 
review shall serve on the review panel in lieu of an Executive 
Committee member who has the same classification (Industry, Non-
Industry, or Public) as the Governor. The procedures for selecting the 
Executive Committee member to be excused shall be designed in such a 
way as to prevent his or her exclusion from every panel. NASD 
Regulation believes this change will allow the eligibility proceeding 
to be concluded in a more timely manner for the protection of 
investors.
4. Failure To Pay Dues, Fines and Other Penalties
    The proposed Rule 9530 Series sets forth procedures for suspending 
or canceling the membership of a member or the registration of an 
associated person for failure to pay fees, dues, assessments, or other 
charges. Procedures for such a cancellation or suspension are currently 
set forth in Rule 9510 Series. The proposed rule change provides that 
the NASD Treasurer is authorized to initiate such proceedings by 
sending a notice to the member or associated person. The hearing will 
be conducted by a hearing officer, who will be authorized to suspend or 
cancel the membership of a member or the registration of a person. The 
hearing procedures are modeled after proposed Rule 8220 Series.
    The proposed rule change does not include a call for review 
because, according to NASD Regulation, the issues to be resolved in 
this type of proceeding are narrow and largely administrative. NASD 
Regulation believes that it is more efficient to have one hearing 
officer conduct the hearing and render a final decision. Moreover, NASD 
Regulation notes that hearing officers are well-suited to resolve the 
issues presented in hearings for failure to pay fees due to their 
training and experience in the NASD's disciplinary proceedings under 
the Rule 9200 Series and in non-summary proceedings for failure to pay 
arbitration awards under the Rule 9510 Series. Appeal to the Commission 
following completion of this proceeding is still available, 
however.\25\
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    \25\ See Proposed Rule 9533.
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5. General Procedures
    The hearing and decision provisions in proposed Rule 9514 are also 
revised. First, proposed Rule 9514(a)(1) provides that a member or 
person who requests a hearing must set forth specific grounds for 
setting aside the notice rather than specifying the type of action the 
member seeks to reverse or oppose at the hearing. Second, the proposed 
rule provides that a member who receives notice of an advertising pre-
filing requirement under Rule 2210 or 2220 has 30 days to request a 
hearing. Currently, Rule 9514 does not address pre-use filing 
requirements and any request for a hearing in a non-summary proceeding 
must be filed within seven days. According to NASD Regulation, the 
additional time is provided in advertising pre-use filing requirements 
because members may need additional time to consider whether to comply 
with or contest the requirements. Third, proposed Rule 9514(f)(5) 
authorizes the Office of Hearing Officers to act as custodian for non-
summary proceedings for a failure to comply with an arbitration award 
or settlement agreement related to a NASD arbitration or mediation. 
Under Rule 9514(b)(1), hearing officers serve as the adjudicators in 
such proceedings, and according to NASD Regulation, the Office of 
Hearing Officers is the appropriate custodian in place of the NASD 
Regulation Office of General Counsel. Finally, proposed Rule 9514 has 
been amended to contain cross references to Rules 2210 and 2220.
    Proposed Rule 9516 is amended to provide that requests for 
reinstatement may be made after either a summary or non-summary 
proceeding under the Rule 9510 Series. Currently,

[[Page 558]]

reinstatement is available only after a non-summary proceeding.

B. Streamlining of Default Decisions

    The proposed amendments to Rules 9215, 9241, 9269, and 9312 are 
designed to clarify and consolidate the NASD Code of Procedure 
(``Code'') default provisions, and to shorten the call for review 
period for default decisions to 25 days.
1. Consolidation of Default Provisions
    Currently, Rule 9269 is devoted exclusively to defaults resulting 
from a failure to appear at a hearing. Defaults, however, also occur as 
a result of failing to file an answer or as a result of failing to 
appear at a pre-hearing conference. The proposed amendments consolidate 
many of the default provisions in Rule 9269. Accordingly, proposed Rule 
9269 will address defaults resulting from a failure to appear at a 
hearing, as well as a failure to answer a complaint and a failure to 
appear at pre-hearing conference.
    The default rules have also been clarified by the proposed rule 
change. Proposed Rule 9269(b) clarifies that default decisions issued 
by hearing officers should contain the same information as decisions 
issued in litigated cases. Subsection (c) of proposed Rule 9269 
provides that either the Review Subcommittee or the NAC may, upon 
filing a motion and a showing of good cause, set aside a default 
judgment. Furthermore subsection (d) of proposed Rule 9269 clarifies 
that default judgments must be appealed within 25 days after service of 
the decision, and that sanctions are effective 30 days after service of 
the decision (other than bars and suspensions which are effective 
immediately). These time periods are already set forth in Rules 9311(a) 
and 9360, respectively.
2. Calls for Review by General Counsel
    Proposed Rule 9312 is amended to shorten the period when the 
General Counsel may call a default decision for review. Currently, the 
General Counsel has 45 days to determine whether to call a default 
decision for review, which is the same call period for litigated 
decisions. Twenty-five days, however, is the period proposed for 
calling for review a default decision. NASD Regulation believes that 
the additional 20 days for the call decision is appropriate for 
litigated decisions because the NAC or the Review Subcommittee may 
prefer to wait and see if an appeal will be filed. According to NASD 
Regulation, appeals of default decisions, however, are infrequent, and 
the call decisions generally are made within the 25 day period. NASD 
Regulation believes that shortening the call period for default 
decisions is practicable, and will have the effect of putting default 
decisions (which often involve bars and expulsions) into effect sooner.

C. Modification of Pre-Use Filing Requirements

    In addition to amending the procedures under which pre-use filing 
requirements are imposed, the NASD also proposes to amend the 
substantive provisions in Rules 2210(c)(4) and 2220(c). These rules 
require members to file advertisements, sales literature, and 
educational materials before they are used. The Rules currently provide 
that a District Business Conduct Committee (``DBCC'') may impose pre-
use filing requirements and may conduct a hearing if the member opposes 
the pre-use requirement. These provisions, however, are consistent with 
the SEC Order \26\ and therefore, have not been utilized since August 
1996. The proposed rule change would vest authority to impose a pre-use 
filing requirement solely with the NASD Regulation staff, specifically 
the Advertising/Investment Companies Regulation Department. Moreover, 
any hearing requested regarding the requirement would be conducted by a 
hearing officer or other adjudicator, as set forth in the non-summary 
proceedings of the Rule 9510 Series, rather than by DBCC.
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    \26\ SEC Order, supra note 13.
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D. Refinement of Disciplinary Process

1. Amendment of Complaints Prior to Responsive Pleadings
    The proposed change to Rule 9212 will enable the Department of 
Enforcement to amend complaints once as a matter of course, without 
hearing officer approval, prior to the filing of responsive pleadings. 
The current rule requires the Department of Enforcement to file a 
motion to amend any complaint, and the hearing officer must grant such 
motion before a complaint can be amended. NASD Regulation notes that 
generally such motions are granted if filed before responsive pleadings 
are filed. NASD Regulation believes the motion requirement for the 
first amendment can be eliminated without unfairness to respondents, 
and that the change is consistent with most judicial practice.\27\
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    \27\ Amendment No. 5 notes that this practice is consistent with 
the Federal Rules of Civil Procedure.
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2. Introduction of New Evidence Upon Review
    Proposed Rule 9346(b) would impose a requirement that motions to 
introduce new evidence in appealed or called cases be made within 30 
days of service of the index to the record as required under Rule 9321. 
Rule 9346(b) currently requires that motions to introduce new evidence 
in a NAC proceeding be made within 30 days of service of the notice of 
appeal (or within 35 days of service of notice of a call for review). 
NASD Regulations believes, however, that a motion to introduce new 
evidence generally can be best made after the parties have received 
copies of the official index to the record.

E. Miscellaneous Technical Revisions

1. Issuance of Decisions in Settled Cases
    Proposed Rule 9270 establishes that the issuance of decisions, in 
settled cases, is to be done by the General Counsel. Rule 9270 
currently requires that decisions relating to accepted offers of 
settlement be issued by the Office of Hearing Officers. According to 
NASD Regulation, returning decisions relating to offers of settlement 
to the Office of Hearing Officers after acceptance by the NAC only 
introduces delay and the possibility of error. Moreover, NASD 
Regulation believes the proposed rule change will clarify that the 
Hearing Officers do not have authority to approve offers of settlement.
2. Effectiveness of Sanctions
    The proposed amendments to Rule 9360 generally provide that 
sanctions will continue to become effective 30 days after the date of 
service of the decision constituting final disciplinary action. The 
date, however, will no longer be established by the Chief Hearing 
Officer. NASD Regulation is proposing this change because the Chief 
Hearing Officer plays no part in the final stages of an appealed or 
called disciplinary proceeding. Proposed Rule 9360 also incorporated 
references to Rules 9349 and 9351 to clarify Proposed Rule 9360's 
applicability.
3. Reference to National Adjudicatory Council
    NASD Regulation is proposing to amend definition (m) of Association 
Rule 0120 to reflect that the NAC has replaced the National Business 
Conduct Committee (``NBCC''). The NAC is a committee of NASD Regulation 
that acts on behalf of the NASD Regulation Board of Directors with 
respect to disciplinary and related procedures.
    NASD Regulation noted that the NAC replaced the NBCC pursuant to

[[Page 559]]

corporate reorganization. The revision to the corporate structure were 
approved on November 14, 1997.\28\ Related changes to the rules 
describing the NAC's functions in disciplinary proceedings and related 
matters were approved on December 19, 1997.\29\
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    \28\ Release No. 34-39326, supra note 10.
    \29\ Securities Exchange Act Release No. 39470 (December 19, 
1997), 62 FR 67297 (December 30, 1997) (File No. SR-NASD-97-81).
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4. Location of Testimony
    NASD Regulation proposes to amend Rule 8210 to clarify that 
Association staff may specify the location at which a member, 
associated person, or other person subject to the Association's 
jurisdiction must testify for the purpose of an investigation, 
complaint, examination, or proceeding. NASD Regulation stated that its 
authority to specify a location has been recently questioned and 
believes the proposed rule change will clarify the Association's 
authority.

IV. Comments and Responses

    The Commission received one comment letter regarding the proposed 
rule change.\30\ Overall, the commenter agrees with the proposed rules, 
but believes the rules could be improved or supplemented in certain 
respects.
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    \30\ Flannery, supra note 9.
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A. Proposed Rule 9212

    The Flannery Letter suggested amending proposed Rule 9212. Proposed 
Rule 9212, as originally submitted and noticed, sought to enable the 
Department of Enforcement unlimited discretion to file amendments to 
complaints before responsive pleadings have been filed. As originally 
submitted, proposed Rule 9212 would have allowed the Department of 
Enforcement to file unlimited amendments without hearing officer 
approval.\31\ The Flannery Letter suggested that NASD Regulation be 
limited to a single amendment before the filing of responsive 
pleadings. The Flannery Letter noted that the Federal Rules of Civil 
Procedure limit parties to one amendment of right before responsive 
pleadings are filed.\32\
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    \31\ Currently, the Department of Enforcement must move to amend 
any complaint and a hearing officer must grant the motion before the 
complaint can be amended.
    \32\ See Federal Rule of Civil Procedure 15(a).
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    NASD Regulation agrees with the Flannery Letter and proposes to 
amend proposed Rule 9212 to limit the Department of Enforcement to one 
amendment as a matter of course before responsive pleadings are 
filed.\33\ The revised Rule 9212(b) follows. Additions are italicized; 
deletions are [bracketed].
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    \33\ See Amendment No. 5.
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9212. Complaint Issuance--Requirements, Service, Amendment, 
Withdrawal, and Docketing

* * * * *

(b) Amendments to Complaint

    The Department of Enforcement may file and serve an amended 
complaint that includes new matters of fact or law once as a matter 
of course at any time before the Respondent answers the complaint. 
Otherwise [After the Respondent answers], upon motion by the 
Department of Enforcement, the Hearing Officer may permit the 
Department to amend the complaint to include new matters of fact or 
law, after considering whether the Department of Enforcement has 
shown good cause for the amendment.

B. Proposed Rule 9215

    The Flannery Letter also suggested that Rule 9215 arguably could 
shorten the time period by which responsive pleadings are to be filed. 
Rule 9215(e) sets forth the time requirements for responsive pleadings. 
Currently, Rule 9215(e) requires that upon amendment of a complaint, 
the time for filing an answer is extended to 14 days after service of 
the amended complaint. The commenter pointed out that this could lead 
to the respondent having less time to respond than they would have been 
allowed if the complaint had not been amended.\34\
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    \34\ An answer must be served on all of the parties within 25 
days of service of the complaint. Rule 9215(a).
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    NASD Regulation agrees that Rule 9215(e) could have the effect 
described by the commenter. NASD Regulation responds, however, that 
this was not its intent. In response, NASD Regulation proposes to amend 
Rule 9215(e) to clarify that the time period by which responsive 
pleading are considered timely shall not be shortened by the filing of 
an amended complaint by the Department of Enforcement. The text of 
proposed rule 9215(e) follows. Additions are italicized: deletions are 
[bracketed].

9215. Answer to Complaint

(a) Form, Service, Notice

    Pursuant to Rule 9133, each Respondent named in a complaint 
shall serve an answer to the complaint on all other Parties within 
25 days after service of the complaint on such Respondent, and at 
the time of service shall file such answer with the Office of 
Hearing Officers pursuant to 9135, 9136, and 9137. The Hearing 
Officer assigned to a disciplinary proceeding pursuant to Rule 9123 
may extend such period for good cause. Upon receipt of a 
Respondent's answer, the Office of Hearing Officers shall promptly 
send written notice of the receipt of such answer to all Parties.
* * * * *

(e) Extension of Time To Answer Amended Complaint

    If a complaint is amended pursuant to Rule 9212(b), the time for 
filing an answer or amended answer shall be the greater of the 
original time period within which the Respondent is required to 
respond, or [extended to] 14 days after service of the amended 
complaint. If any Respondent has already filed an answer, such 
Respondent shall have 14 days after service of the amended 
complaint, unless otherwise ordered by the Hearing Officer, within 
which to file an amended answer.
* * * * *

C. Rule 9268

    Finally, the Flannery Letter made a recommendation that was 
unrelated to the proposed rule filing. The recommendation related to 
the determination of the time period when a hearing panel shall 
complete a decision. Currently, Rule 9268(a) provides that a hearing 
officer shall prepare a majority decision within 60 days of the ``final 
date allowed for filing proposed findings of fact, conclusions of law, 
and post-hearing briefs, or by a date established at the discretion of 
the Chief Hearing Officer.'' The Flannery Letter contends that when the 
60 day period runs from a date established by the chief hearing 
officer, a respondent has no way of knowing when a majority decision 
will be rendered. The Flannery Letter suggested that the chief hearing 
officer inform the parties of the date chosen to begin the 60 day 
period if it is different from the final date for all post-hearing 
filings.
    NASD Regulation has agreed to adopt a written policy pursuant to 
which it will send a letter to respondents informing them if a decision 
will not be prepared approximately 60 days after receipt of the 
transcripts or post hearing submissions, whichever is later. NASD 
Regulation believes that the issue is when the parties will receive a 
decision, not the starting date selected by the chief hearing officer.

V. Discussion

    The Commission finds that the proposed rule change, as amended, is 
consistent with the Act and the rules and regulations thereunder 
applicable to a national securities association.\35\ In particular, the 
Commission finds that the proposed rule change is consistent

[[Page 560]]

with the requirements of Sections 15A(b)(2), 15A(b)(6), 15A(b)(7), and 
15A(b)(8) of the Act.\36\
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    \35\ In reviewing this proposal, the Commission has considered 
its impact on efficiency, competition, and capital formation. 15 
U.S.C. 78c(f).
    \36\ 15 U.S.C. 78o-3(b)(2); 15 U.S.C. 78o-3(b)(6); 15 U.S.C. 
78o-3(b)(7); and 15 U.S.C. 78o-3(b)(8).
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    Section 15A(b)(2) requires national securities associations to have 
the capacity to enforce compliance by their members and persons 
associated with members, with the provisions of the Act, the rules and 
regulations thereunder, the rules of the Municipal Securities 
Rulemaking Board, and the rules of the association.
    Generally, the proposed rule change modifies the disciplinary 
procedures of the Association to enhance its membership oversight 
capabilities. For example, the proposed changes to Rules 2210 and 2220 
pre-use filing requirements, which replace DBCC action with that of the 
NASD Regulation staff, should provide a more independent and unbiased 
regulation and oversight of these matters. The proposed changes to Rule 
Series 8220 in providing and clarifying the procedures applied when 
members or associated person fail to provide requested information 
further the Association's ability to deal with these matters. Finally, 
the proposed changes to Rule 9510 Series in simplifying and 
consolidating the disciplinary procedures for summary and non-summary 
proceedings similarly enhance the Association's capacity and authority 
to enforce the provisions of the Act, the rules and regulations 
thereunder, the rules of the Municipal Securities Rulemaking Board, and 
the Rules of the Association.
    Section 15A(b)(6) provides, among other things, that the Rules of 
the Association must be designed to prevent fraudulent and manipulative 
acts and practices, to promote just and equitable principles of trade, 
to remove impediments to and perfect the mechanism of a free and open 
market and a national market system, and, in general, to protect 
investors and the public interest.\37\ The proposed rule change is 
consistent with the provisions of this section because, for example, 
the changes to the Rule 9520 Series should enhance investor protection 
by enabling more rapid identification of statutorily disqualified 
individuals. The proposed amendments expressly identify a member's 
obligation to initiate a statutory disqualification proceeding if it or 
one of its employees is subject to a statutory disqualification; and 
expedite review of statutory disqualification proceedings by 
streamlining the process for requesting expedited review.\38\ 
Similarly, the enhanced statutory disqualification provisions should 
help to prevent fraudulent and manipulative act and practices, to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general, to protect investors and the public 
interest by ensuring that members and associated persons are qualified 
and eligible for membership and when necessary, seeks to ensure prompt 
disqualification.
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    \37\ 15 U.S.C. 78o-3(b)(6).
    \38\ Under the Proposal, as approved, the Statutory 
Disqualification Committee can request expedited review by the NASD 
Executive Committee if such action is necessary for the protection 
of investors.
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    Moreover, proposed Interpretative Material 8310-2 is also 
consistent with the provision of Section 15A(b)(6) because it allows 
prompt release of disciplinary information to the public. The 
Commission believes disseminating disciplinary information to the 
public serves to prevent fraudulent and manipulative acts and practices 
and protects investors and the public interest by acting as a deterrent 
to violating the rules of the Association. The Commission also believes 
that publication of disciplinary information also serves to notify the 
public of those persons who have committed rule violations.
    Section 15A(b)(7) requires that members and persons associated with 
members be appropriately disciplined for violation of any provision of 
the Act, the rules and regulations thereunder, the rules of the 
Municipal Securities Rulemaking Board, or the rules of the 
association.\39\ Proposed Rule 8220 Series provides for appropriate 
discipline for the failure to provide requested information. If a 
member fails to provide requested information, the NAC may suspend or 
cancel the member. The proposed Rule 9510 Series also provides for the 
appropriate discipline of members. This series governs certain summary 
and non-summary proceedings such as, among other things, summary 
proceedings authorized by Section 15A(h)(3) of the Act, non-summary 
proceedings to suspend or cancel a member for failing to comply with an 
arbitration award, or for failing to meet qualification requirements or 
if a member cannot be permitted to continue to have access with safety 
to investors, creditors, members, or the Association. The proposed rule 
change is consistent with Section 15A(b)(7) of the Act, as shown by 
these examples, because it provides an appropriate mechanism for 
disciplining members and persons associated with members for violations 
of the Act, the rules and regulations thereunder, the rules of the 
Municipal Securities Rulemaking Board, and the rules of the 
Association.
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    \39\ 15 U.S.C. 78o-3(b)(7).
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    Finally, Section 15A(b)(8) of the Act requires that the rules of 
the association provide a fair procedure for the disciplining of 
members and person associated with members.\40\ The proposed rule 
change is consistent with the provisions of this section. For example, 
the review procedures of the Rule 8220 Series, which addresses the 
procedure for suspending or canceling a member for failing to provide 
requested information, have been revised to enhance the fair discipline 
of members.
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    \40\ 15 U.S.C. 78o-3(b)(8)
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    Currently, decisions of the appointed subcommittee are reviewed by 
the full NASD Board. Proposed Rule 8223(b) is revised to place the 
review authority with the NASD Board Executive Committee. The call for 
review by any governor, however, remains intact but is also revised. If 
a governor calls a decision for review, that governor shall serve on 
the NASD Board Executive Committee to review the decision. That 
governor shall serve in place of an executive committee member who 
shares the same classification (Industry, Non-Industry, or Public) as 
the calling governor. The Commission believes that by having the 
calling governor serve on the review committee, the governor should be 
able to more fully develop and investigate the reasons why he or she 
called the decision for review.
    The Commission also notes that the procedure for the calling 
governor to serve on the review panel ensures that a balanced panel 
will conduct the review. The percentages of executive committee members 
remain intact as the calling governor is appointed to serve as a 
substitute for an executive committee member of the same 
classification. These revisions should provide members with more 
balanced and fair procedures for reviewing cancellation and suspension 
decisions.\41\
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    \41\ The Commission notes that the changes in the procedures of 
a call for review by a governor set forth in Rule 8223 are also 
proposed in Rule 9525. Proposed Rule 9525 addresses expedited 
reviews of statutory disqualifications and contains the same 
procedures as proposed Rule 8223. The Commission finds that the 
proposed changes to Rule 9525 are also consistent with Section 
15A(b)(8) for the reasons set forth above for proposed Rule 8223.
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    In addition, the proposed change of the review panel should also 
foster fairness in disciplinary proceedings. By placing the review 
authority with the NASD Board Executive Committee,

[[Page 561]]

proceedings should be concluded in a more timely manner. As NASD 
Regulation noted, the NASD Board Executive Committee is a smaller body 
designed to meet on an as-needed basis that can convene more easily 
than the NASD Board.
    Proposed Rule 9212 is also consistent with the requirements of 
Section 15A(b)(8). The rule is amended to provide that the Department 
of Enforcement is entitled one amendment of a complaint, as a matter of 
course, before responsive pleadings are filed. The Commission finds 
that this ensures fairness of disciplinary procedures by expediting 
pre-hearing proceedings by deleting the requirement of hearing officer 
approval for the first amendment. Respondents are also protected. By 
requiring hearing officer approval of all subsequent amendments, 
respondents will not be subject to unchecked delays caused by unlimited 
amendments.
    The proposed changes to the Rule 9530 Series also help ensure that 
disciplinary procedures are fair. The proposed Rule 9530 Series sets 
forth the procedures for suspending or canceling the membership of a 
member or the registration of an associated person who fails to pay 
fees, assessments, or other charges. Under this rule series, a hearing 
officer conducts the hearing and makes the final decision as to 
canceling or suspending the membership of a member or the registration 
of a person. NASD Regulation notes that there is no call for review of 
a hearing officer decision because the issues resolved are narrow and 
largely administrative.
    The Commission finds that the procedures set forth in the proposed 
Rule 9530 Series promote fair disciplinary procedures. The proposed 
rule change consolidates and clarifies the procedures for failure to 
pay dues, assessments, or other charges. Having the same hearing 
officer conduct the hearing and render the decision provides members 
with expedited review and prompt resolution of claims.
    The Commission finds good cause for approving Amendments No. 5 to 
the proposed rule change before the thirtieth day after the date of 
publication of notice thereof in the Federal Register.\42\ As discussed 
in Section IV above, Amendment No. 5 revises proposed Rules 9212 and 
9215. The amendment to proposed Rule 9212 states that the Department of 
Enforcement shall be able, once as a matter of course, to amend 
complaints with hearing officer approval before a respondent files an 
answer. The original proposal allowed the Department of Enforcement 
unlimited amendments to complaints without hearing officer approval. 
The amended proposed rule should prevent unnecessary delays in 
proceedings and ensure fairness by providing hearing officer oversight 
of multiple amendments.
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    \42\ The Commission notes that Amendment Nos. 3 and 4 are non-
substantive amendments granting the Commission extensions of time to 
act which do not require publication for notice and comment. 
Amendment No. 6 is also a non-substantive amendment changing the 
effective date of the proposed rule change which does not require 
publication of notice and comment.
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    The amendment to proposed Rule 9215 provides that if the Department 
of Enforcement amends a compliant the respondent shall not be affected 
by a shorter time period in which to answer. The amended proposal 
clarifies that the respondent will either be afforded the full 
remaining period allowed under Rule 9215(a) or fourteen days from 
service of the amended complaint, whichever is greater. The amended 
proposed rule change promotes fairness because it protects a 
respondent's ability to adequately answer complaints by ensuring that 
he has sufficient time.
    For these reasons, the Commission believes that good cause exists, 
consistent with Section 19(b) of the Act,\43\ to approve Amendment No. 
5 to the proposed rule change on an accelerated basis.
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    \43\ 15 U.S.C. 78s(b).
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VI. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning Amendment No. 5. Persons making written submission 
should file six copies thereof with the Secretary, Securities and 
Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 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 other 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 will also be available for inspection and copying at the 
principal office of the NASD. All submissions should refer to file No. 
SR-NASD-98-57 and should be submitted by January 26, 1999.

VII. Conclusion

    It is therefore Ordered, pursuant to Section 19(b)(2) of the 
Act,\44\ that the proposed rule change, as amended, (SR-NASD-98-57) is 
approved.

    \44\ 15 U.S.C. 78s(b)(2).
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    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\45\
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    \45\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-77 Filed 1-4-99; 8:45 am]
BILLING CODE 8010-01-M