[Federal Register Volume 64, Number 246 (Thursday, December 23, 1999)]
[Notices]
[Pages 72125-72129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33346]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-42240; File No. SR-NASD-99-45]
Self-Regulatory Organizations; Notice of Filing of Proposed Rule
Change by the National Association of Securities Dealers, Inc. Relating
to Amendments to the Public Disclosure Program
December 16, 1999.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on September 15, 1999, the National Association of Securities Dealers,
Inc. (``NASD'' or ``Association''), through its wholly owned subsidiary
NASD Regulation, Inc. (``NASD Regulation''), filed with the Securities
and Exchange Commission (``Commission'' or ``SEC'') the proposed rule
change as described in Items I, II, and III below, which Items have
been prepared by NASD Regulation. On December 1, 1999, NASD Regulation
submitted Amendment No. 1 to the proposed rule change.\3\ The
Commission is publishing this notice of the rule change, as amended, to
solicit comments on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See letter from Alden S. Adkins, Senior Vice President and
General Counsel, NASD Regulation, to Katherine A. England, Assistant
Director, Division of Market Regulation (``Division''), Commission,
dated December 1, 1999. In Amendment No. 1, NASD Regulation
clarifies certain proposed changes to the Public Disclosure Program
and submits Form U-6 as an exhibit (``Amendment No. 1''). The
Commission notes that the Form U-6 is being submitted to help the
public determine what additional information will be disclosed
through the Public Disclosure Program and is not the subject matter
of this rule filing.
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I. Self-Regulatory Organization's Statement of the Terms of
Substance of the Proposed Rule Change
NASD Regulation proposes to amend Interpretive Material 8310-2(a),
which concerns the Public Disclosure Program. Proposed new language is
italicized; proposed deletions are in brackets.
IM-8310-2. Release of Disciplinary Information
(a) [The Association shall, in response to a written inquiry,
electronic inquiry, or telephonic inquiry via a toll-free telephone
listing, release certain information contained in its files regarding
the employment and disciplinary history of members and their associated
persons, including information regarding past and present employment
history with Association members; all final disciplinary actions taken
by federal, state, or foreign securities agencies or self-regulatory
organizations that relate to securities or commodities transactions;
all pending disciplinary actions that have been by federal or state
securities agencies or self-regulatory organizations that relate to
securities and commodities transactions and are required to be reported
on Form BD or U-4 and all foreign government or self-regulatory
organization disciplinary actions that relate to securities or
commodities transactions and are required to be reported on Form BD or
U-4; and all criminal indictments, information or convictions that are
required to be reported on Form BD or Form U-4. The Association will
also release information required to be reported on Form BD or Form U-4
concerning civil judgments and arbitration decisions in securities and
commodities disputes involving public customers, pending and settled
customer complaints, arbitrations and civil litigation, current
investigations involving criminal or regulatory matters, terminations
of employment after allegations involving violations of investment-
related statutes or rules, theft or wrongful taking of property,
bankruptcies less than ten years old, outstanding judgments or liens,
any bonding company denial, pay out or revocation, and any suspension
or revocation to act as an attorney, accountant or federal contractor.]
In response to a written inquiry, electronic inquiry, or telephonic
inquiry via a toll-free telephone listing, the Association shall
release certain information contained in the Central Registration
Depository regarding a current or former member, an associated person,
or a person who was associated with a member within the preceding two
years, through the Public Disclosure Program. Such information shall
include:
(1) the person's employment history and other business experience
required to be reported on Form U-4;
(2) currently approved registrations for the member or associated
person;
(3) the main office, legal status, and type of business engaged in
by the member; and
(4) an event or proceeding--
(A) required to be reported under Item 23 on Form U-4;
(B) required to be reported under Item 11 on Form BD; or
(C) reported on Form U-6.
The Association also shall make available through the Public
Disclosure Program certain arbitration decisions against a member
involving a securities or commodities dispute with a public customer.
The Association shall not release through the Public Disclosure Program
social security numbers, residential history information, or physical
description information, or information that the Association is
otherwise prohibited from releasing under Federal law.
* * * * *
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, NASD Regulation included
statements concerning the purpose of and basis for the proposed rule
change and discussed any comments it received on the proposed rule
change. The text of these statements may be examined at the places
specified in Item IV below. NASD Regulation has prepared summaries, set
forth in sections A, B, and C below, of the most significant aspects of
such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
NASD Regulation's Public Disclosure Program is described in
Interpretive Material 8310-2 of the NASD Rules (``the
Interpretation''). Under the Public Disclosure Program, NASD Regulation
releases to the public certain information reported on uniform forms
\4\
[[Page 72126]]
to the Central Registration Depository (``CRD'') regarding the
employment history, other business experience \5\ and disciplinary
history of NASD members and associated persons. The NASD's practice is
and will continue to be to provide such information on a per associated
person or per member basis. The primary purpose of the Public
Disclosure Program is to help investors make informed choices about the
individuals and firms with whom they may wish to do business.
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\4\ The uniform forms are Form BD (the Uniform Application for
Broker-Dealer Registration); Form BDW (the Uniform Request for
Broker-Dealer Withdrawal); Form U-4 (the Uniform Application for
Securities Industry Registration or Transfer); Form U-5 (the Uniform
Termination Notice for Securities Industry Registration); and Form
U-6 (the Uniform Disciplinary Action Reporting Form). Except for the
Form U-6, all of these forms have been approved by the Commission.
See Securities Exchange Act Release No. 41594 (July 2, 1999), 64 FR
37586 (July 12, 1999) (order adopting the amended Form BD);
Securities Exchange Act Release No. 41356 (April 30, 1999), 64 FR
25144 (May 10, 1999) (order adopting the amended Form BDW);
Securities Exchange Act Release No. 41560 (June 25, 1999), 64 FR
36059 (July 2, 1999) (order approving the new Forms U-4 and U-5).
\5\ Employment experience includes the last ten years of full-
and part-time work, self-employment, military service, unemployment,
and full-time education. The Form U-4 also requires registered
persons to report certain other business experience on page 2 of the
Form.
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NASD Regulation has determined that the Interpretation governing
the Public Disclosure Program should be amended to ensure that
disclosure practices are clearer and fairer to NASD members, associated
persons, and the public.\6\ The proposed rule change would affect only
information released through the Public Disclosure Program. NASD
Regulation is not proposing any change to the uniform forms or
requesting authority to delete or change any information in CRD records
that would require agreement from state regulators.
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\6\ To that end, the Interpretation has been reformatted to make
it easier to read and understand. The Interpretation has been
amended to conform to style and grammatical conventions followed in
the NASD Rules, e.g., using singular nouns. In addition, certain
words and phrases in the Interpretation have been conformed to usage
in the uniform forms. All of these changes are clarifying, non-
substantive amendments.
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Persons Subject to the Interpretation. Since the inception of the
Public Disclosure Program, NASD Regulation's practice has been to
release information about a current or former member or associated
person. The current Interpretation, however, refers to the release of
information about ``members'' or ``their associated persons,'' which
the NASD By-Laws define as current members and persons currently
associated with members.\7\ The Interpretation does not explicitly
address the issue of disclosure regarding former members and associated
persons.
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\7\ See Articles I(q) and (ee) of the NASD By-Laws.
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The proposed rule change would explicitly address disclosure on
former members and associated persons. Persons who would be subject to
disclosure under the Program would include: (1) Current and former NASD
members; (2) persons currently associated with an NASD member; and (3)
persons who have been associated with an NASD member within the
preceding two years. NASD Regulation believes that it is inappropriate
to continue public disclosure indefinitely for an individual who has
chosen to leave the securities industry. Instead, NASD Regulation
believes it should strike a balance between an investor's interest in
being easily able to obtain information about a former associated
person and that person's desire for privacy once he has left the
securities industry. A two-year disclosure period coincides with the
period in which an individual can return to the industry without being
required to requalify by examination and the initial period in which an
individual remains subject to the jurisdiction of the Association.\8\
NASD Regulation notes, however, that with the exception of part II of
the Form U-5 Internal Review Disclosure Reporting Page (``DRP''),\9\
there is currently no mechanism for a former associated person or
member to submit information to amend or update a disclosure record.
Accordingly, NASD Regulation intends to clearly identify the scope of
the disclosure information for former associated persons or members.
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\8\ See NASD Rules 1021(c) and 1031(c); NASD By-Laws Article V,
Section 4. Article V, Section 4 of the By-Laws provides that a
person whose association with a member has been terminated or
revoked shall continue to be subject to the NASD's jurisdiction for
certain specified purposes. Under that provision, the two-year
period begins on the effective date of the termination, and may be
extended under certain circumstances. For purposes of disclosure
under the Public Disclosure Program, the two-year period would begin
on the effective date of the termination and would not be extended
beyond the initial two-year period. The effective date of
termination is the date that the Form U-5 is captured by the CRD
system. Conversation between Mary Dunbar, Office of General Counsel,
NASD Regulation, and Joseph P. Corcoran, Attorney, Division,
Commission on December 10, 1999.
\9\ Part II of the Form U-5 Internal Review DRP provides a
current or former registered representative an opportunity to
provide a summary of the circumstances relating to an internal
review reported on a Form U-5 by a former employer.
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Release of Information Reported on Forms U-5 and U-6. NASD
Regulation currently releases under the Public Disclosure Program those
events and proceedings that are required to be reported on Form U-4 and
Form BD. The Interpretation currently does not explicitly address
events and proceedings reported on Form U-5 or Form U-6.
Form U-6 is filed by state securities regulators and self-
regulatory organizations (``SRO'') to report disciplinary and other
matters that are also required to be reported on Form U-4 or Form
BD.\10\ Form U-6 includes DRPs in five categories: (1) Bankruptcy/SIPC/
Compromise with Creditors; (2) Civil Judicial; (3) Criminal; (4)
Regulatory Action; and (5) SRO Arbitration/Reparation. The format of
the Form U-6 DRPs parallels the format of the DRPs used for the Forms
U-4, U-5, and BD for those categories. Generally speaking, the Form U-6
reports the identifying information on the subject of the filing (i.e.,
the individual or entity), the regulator reporting the action, and a
brief description of the matter being reported, including its status or
final solution.
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\10\ If a state securities regulator or SRO chooses to report
regulatory information to CRD, it must use a Form U-6 for the
information to be available through the Public Disclosure Program.
Regulators also are able to report on Form U-6 matters involving
individuals or entities that are not currently registered, provided
the events being reported to CRD would be required to be reported if
the individuals or entities were registered or attempted to become
registered.
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Until 1996, the NASD only released information actually reported on
Form U-4 or Form BD. In 1996, the NASD proposed and the Commission
approved a rule change that permitted the NASD to release information
``required to be reported'' on Form U-4 or Form BD.\11\ NASD Regulation
proposed the change because in some instances, it possessed information
about a currently registered person that should have been reported on
the person's Form U-4, but the amended Form U-4 had not yet been
submitted. NASD Regulation proposed the rule change so that it could
release all information that it possessed that was required to be
reported on the Forms U-4 and BD, even if the registered person or firm
was not current in its filings, thereby ensuring that investors
received more complete information.
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\11\ See Securities Exchange Act Release No. 37797 (October 9,
1996), 61 FR 53984 (October 16, 1996).
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NASD Regulation currently interprets the ``required to reported''
standard as follows. For current members and associated persons, NASD
Regulation interprets the ``required to be reported'' standard to
include all information reported on Form U-4 or Form BD, as well as
information that has been reported on a Form U-5 or Form U-6 that
should be, but has not yet been, reported on a Form U-4 or Form BD. For
example, a former employer of a currently registered representative may
report a customer complaint against that registered representative by
amending his Form U-5. NASD Regulation includes information about this
complaint in any public disclosure report it issues about the
registered representative, even if the current employer of the
registered person has not updated his Form U-4 to reflect the
complaint.
[[Page 72127]]
For former members and associated persons, the ``required to be
reported'' standard has a different result because once an association
or membership is terminated, there is no longer a requirement to report
on Form U-4 or Form BD, respectively. Consequently, when NASD
Regulation receives a public disclosure request for a former associated
person or member, NASD Regulation releases all information reported to
CRD up to the date of the termination of association or membership.
However, events and proceedings reported on an initial or amended Form
U-5 or Form BDW,\12\ or on Form U-6 after an individual has terminated
his association or after termination of a firm's membership, are not
released under the Program. If a former associated person or member
reapplies and is approved for NASD registration or membership, NASD
Regulation resumes public disclosure under the ``required to be
reported'' standard, which includes releasing all information reported
on any uniform form during any period of active or inactive
registration or membership.
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\12\ The Commission notes that copies of a firm's Form BDW is
available to the public through the Commission's Public Reference
Room.
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Under the proposed rule change, NASD Regulation would begin
releasing information reported on Form U-6 for former members and
associated persons, subject to the two-year time limitation discussed
above. There are several reasons for this change. First, the
information reported on Form U-6 is provided by regulators and SROs,
and therefore NASD Regulation believes that it is highly reliable.
Second, the information reported on Form U-6 may be particularly
valuable to a public investor who who done business with a former
member of associated person who has recently left the industry. Third,
the proposed rule change would make disclosure of Form U-6 information
more consistent between currently registered members and associated
persons and former members and associated persons. Finally, the
proposed rule change would result in more consistent disclosure by the
Program and the states; some of which currently release information
reported on all uniform forms, whether or not it is currently
reportable on a uniform form.
NASD Regulation does not release information that has been reported
on a Form U-5 regarding former registered persons because that
information may not have been reviewed by such individuals and may not,
as a result, include their comments on, or concurrence with, the
information. NASD Regulation does not propose any change to this policy
in this filing.
Release of Arbitration Decisions Involving Members. NASD Regulation
makes all arbitration awards rendered in its forum available pursuant
to NASD Rule 10330(f). Interested persons may obtain hard copies of
such awards upon request by contacting the Office of Dispute
Resolution. In addition, for the convenience of investors, NASD
Regulation makes available through the Public Disclosure Program
information on awards rendered in the arbitration forum administered by
the NASD that involve securities or commodities disputes between
members and public customers.\13\
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\13\ CRD obtains information regarding awards involving members
from its Office of Dispute Resolution because members are not
required to report arbitration awards on Form BD.
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Clarification of Information Not Released Through Program. A number
of members and associated persons have asked whether social security
numbers, home addresses, or physical description information reported
on the uniform forms are released through the Public Disclosure
Program. NASD Regulation does not release such information, and the
proposed rule change clarifies this policy.
The proposed rule change also clarifies that NASD Regulation will
not release information through the Public Disclosure Program that it
is otherwise prohibited from releasing under Federal law, e.g.,
criminal history record information provided by the Federal Bureau of
Investigation.\14\ The criminal history information that is released
through the Public Disclosure Program is the information provided by
the associated person or the member on the uniform forms.
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\14\ 28 CFR 50.12(b).
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Disconintinuing Release of Certain Factually Incorrect Information.
NASD Regulation also would like to inform the Commission of NASD
Regulation's intention to exercise discretion in discontinuing public
disclosure of a limited category of factually incorrect information
that may be contained in the CRD. NASD Regulation occasionally receives
requests to expunge an event from CRD where the person who was the
subject of the CRD filing can demonstrate that it was factually
impossible for him to have been involved in the event (e.g., a person
was named in an arbitration as a branch manager of a firm, and the
person was working at a different firm at that time). NASD Regulation
and the North American Securities Administrators Association
(``NASAA'') agree that such information can be expunged from the CRD if
the person obtains a court order of expungement. However, obtaining a
court order can be time-consuming and expensive. NASD Regulation
believes that information that can be proven to be factually incorrect
should be expunged from the CRD system without a court order and is
discussing this issue with NASAA. NASD Regulation and NASAA also are
currently discussing other circumstances in which expungement orders
are appropriately honored.\15\ Until an agreement is reached with NASAA
on expunging factually incorrect information from the CRD system, NASD
Regulation intends to discontinue releasing such information via the
Public Disclosure Program. NASD Regulation will develop guidelines to
implement this policy. The policy will provide some measure of
assurance that this type of factually incorrect information is not
provided to investors or other members of the public.
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\15\ See Notices to Members 99-09 and 99-54.
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Automation of Public Disclosure Reports. Currently, when NASD
Regulation receives a public disclosure request, NASD Regulation staff
reviews the CRD record of the subject of the request, identifies events
that must be disclosed under the Interpretation, and manually prepares
a summary report for the requester. With the deployment of Web CRD,\16\
NASD Regulation's Internet-based registration system, the staff plans
to discontinue the manual preparation of these reports. Instead, staff
will use a computer program that automatically generates a report after
drawing information directly from the Web CRD data base. The computer
program will draw the information from specified fields in WEB CRD that
parallel fields on the Forms U-4, U-6,, and BD (and Form U-5 in the
limited circumstances discussed above). The report then will be sent by
regular or electronic mail to the requester. This approach removes the
NASD Regulation staff from the preparation of the reports, provides for
consistent disclosure without manual intervention, and allows the
information that is actually reported to Web CRD on the uniform forms
or from the NASD Regulation Office of Dispute Resolution \17\ to be
reported to the public.\18\
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\16\ See Securities Exchange Act Release No. 41326 (April 22,
1999), 64 FR 23366 (April 30, 1999)(notice of filing of SR-NASD-98-
96, which describes Web CRD).
\17\ See supra note 13.
\18\ As part of the transition from Legacy CRD to Web CRD,
information that was reported prior to the deployment of Web CRD was
converted from the Legacy CRD system and brought into the Web CRD
database structure. Because of differences between the current and
previous uniform registration forms, data was necessarily
reformatted. In nearly all cases, information was converted as filed
(i.e., information reported on a Form U-4 in Legacy CRD was
converted to Web CRD as Form U-4 information, albeit reformatted).
In certain circumstances, however, information submitted on
different uniform forms relating to the same disclosure event was
combined in the data conversion; this occurred only if there were
inconsistencies reported regarding such event. For example, of a
Form U-4 reported that a regulatory action became final but did not
report the date of the final action, and a Form U-6 reported both
the regulatory action and the date, the date of the final action was
populated to the Form U-4 on Web CRD. NASD Regulation will include
an explanation of the data conversion process in all public
disclosure reports provided pursuant to the Program.
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[[Page 72128]]
One significant consequence of this approach is that the
automatically generated reports will include verbatim any comment
submitted by a registered representative, firm, or regulator in
response to the last question on the Disclosure Reporting Pages of the
uniform forms. This question typically asks for a summary of the
circumstances or details relating to the disclosure event. These
comments are not currently included in the manual reports prepared by
the staff and may contain customer names. They also may contain
confidential account information or language that is offensive or
potentially defamatory, although that is far less likely.
Because these comments have not been included previously in the
manual reports, NASD Regulation does not intend to begin using these
automated reports until the SEC approves this proposed rule change.
Upon approval, NASD Regulation will inform members and registered
persons via a Notice to Members and other communications that it is
inappropriate, and may subject members to regulatory sanctions or civil
liability, to submit offensive or potentially defamatory language on
the uniform forms.\19\ NASD Regulation also is considering developing
electronic notices that would appear on the electronic screen when
forms are being completed on-line advising Web CRD users of this issue.
NASD Regulation would undertake to conduct a continuing program to
educate members and registered persons on this issue.
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\19\ For example, if a Form contained egregiously offensive
language, NASD Regulation may take disciplinary action against the
member and/or registered person under NASD Rule 2110, which requires
them to observe just and equitable principles of trade and high
standards of commercial honor.
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After implementation of automated reports, NASD Regulation will
address objections to disclosure of customer names, confidential
customer information, or offensive or potentially defamatory language
on a case-by-case basis as follows. After receiving an objection, NASD
Regulation will identify the filer of the uniform form (i.e., a member
firm, regulator, or self-regulatory organization) containing the
language in controversy and notify the filer of the objections. NASD
Regulation will provide the filer with the opportunity to amend the
filing to remove the language in controversy. If the filer determines
not to amend, NASD Regulation will apply a balancing test to weigh the
value of the language in controversy for regulatory and investor
protection purposes against the objector's asserted privacy rights and/
or defamation claims.\20\ Based on the outcome of this test, NASD
Regulation may determine to redact the language in controversy from
reports prepared under the Public Disclosure Program. NASD Regulation
will inform any requester of a report that has been redacted of the
reasons for the redaction. NASD Regulation staff anticipates that
objections to disclosure will be infrequent. If objections are more
frequent than anticipated, NASD Regulation staff will consider
alternative approaches.
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\20\ If its impossible for a filer to amend, e.g., the firm is
defunct and the person is no longer registered, then NASD Regulation
also will apply the balancing test and proceed as described above.
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Other. In Notice To Members 98-71, the NASD requested comment on
whether public disclosure of certain non-investment-related crimes
should be discontinued after ten years. In response, the NASD received
nearly 100 comments. The NASD is still considering this issue in light
of the comments, and therefore the issue is not addressed in this
filing.
2. Statutory Basis
NASD Regulation believes that the proposed rule change is
consistent with the provisions of Section 15A(b)(6) \21\ of the Act,
which requires, among other things, that the Association's rules must
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 interest. NASD Regulation believes
that the proposed rule change is consistent with Section 15A(b)(6) \22\
because it strikes an appropriate balance between: (1) Investor's
interest in obtaining accurate and up-to-date information about current
or former members or associated persons; and (2) members' and
associated persons' interests in having accurate information provided
through the Public Disclosure Program; and (3) former associated
persons' interest in protecting their privacy after leaving the
securities industry. By expanding the availability of Form U-6
information, the proposed rule change also will provide investors and
the public with additional information about former associated persons
with whom they have done business. NASD Regulation also believes that
the proposed rule change is consistent in all respects with Section
15a(i),\23\ particularly the provision for immunity from liability for
actions taken or omitted in good faith with respect to the Public
Disclosure Program.
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\21\ 15 U.S.C. 78o-3(b)(6).
\22\ Id.
\23\ This Section requires the NASD to establish and maintain a
public disclosure program. 15 U.S.C. 78o-3(i).
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B. Self-Regulatory Organization's Statement on Burden on Competition
NASD Regulation does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purpose of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
Written comments were nether solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing
for Commission Action
Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) By order approve such proposed rule change, or
(B) Institute proceeding to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
is 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 20549-0609. Copies of
the submission, all subsequent amendments, all written statements with
respect to the proposed
[[Page 72129]]
rule change that refiled with the Commission, and all written
communications relating to the proposed rule change between the
Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for inspection and copying in the Commission's Public
Reference Room. Copies of such filing will also be available for
inspection and copying at the principal office of the NASD. All
submissions should refer to File No. JR-NASD-99-45 and should be
submitted by January 13, 2000.
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\24\
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\24\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-33346 Filed 12-22-99; 8:45 am]
BILLING CODE 8010-01-M