[Federal Register Volume 68, Number 107 (Wednesday, June 4, 2003)]
[Notices]
[Pages 33545-33548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13938]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-47936; File No. SR-NASD-2003-57]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change, Amendment No. 1, and Amendment No. 2 Thereto by the National 
Association of Securities Dealers, Inc. Relating to Revisions to the 
Uniform Application for Securities Industry Registration or Transfer 
(Form U-4) and Uniform Termination Notice for Securities Industry 
Registration (Form U-5)

May 28, 2003.
    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 April 8, 2003, the National Association of Securities Dealers, Inc. 
(``NASD'' or ``Association'') filed with the Securities and Exchange 
Commission (``SEC'' or ``Commission'') the proposed rule change as 
described in Items I, II, and III below, which Items have been prepared 
by NASD. On April 16, 2003, NASD submitted Amendment No. 1 to the 
proposed rule change.\3\ On April 30, 2003, NASD submitted Amendment 
No. 2 to the proposed rule change.\4\ The Commission is publishing this 
notice to solicit comments on the proposed rule change, as amended, 
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 Patrice M. Gliniecki, Vice President and 
Deputy General Counsel, NASD, to Katherine A. England, Assistant 
Director, Division of Market Regulation (``Division''), SEC, dated 
April 16, 2003 (``Amendment No. 1''). In Amendment No. 1, NASD 
stated that the rule filing would be effective on July 14, 2003, 
instead of June 30, 2003.
    \4\ See letter from Patrice M. Gliniecki, Vice President and 
Deputy General Counsel, NASD, to Katherine England, Assistant 
Director, Division, SEC, dated April 29, 2003 (``Amendment No. 2''). 
In Amendment No. 2, NASD amended the filing to correct typographical 
errors on pages 51 of 100 and 68 of 100 of the filing. On page 51 of 
100, the NASD added the following language to renumbered question 
14D(1)(e): ``denied, suspended, or revoked your registration license 
or.'' On page 68 of 100, the NASD eliminated the word ``or'' before 
``commodities exchange.''
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    NASD is proposing to revise the Uniform Application for Securities 
Industry Registration or Transfer (``Form U-4'') and Uniform 
Termination Notice for Securities Industry Registration (``Form U-5'') 
to: (1) Add disclosure questions to the ``Regulatory Disciplinary 
Actions'' subsection of section 14 (Disclosure Questions) of the Form 
U-4 to elicit information regarding events that might cause a person to 
be subject to a statutory disqualification as a result of additional 
categories of statutory disqualification in the Act created by passage 
of the Sarbanes-Oxley Act of 2002 (``Sarbanes-Oxley Act''); (2) add a 
Disclosure Reporting Page (``DRP'') and a question to the Form U-5 that 
parallels the Form U-4 DRP relating to terminations for cause; (3) 
streamline the language associated with questions on the Form U-4 
relating to fingerprinting requirements; and (4) make certain 
technical, clarifying, and conforming changes to facilitate accurate 
reporting and filing.
    The text of the proposed rule change and the Exhibits related 
thereto are available at the principal offices of NASD and at the 
Commission.

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 included statements 
concerning the purpose of and the 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 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 \5\
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    \5\ The NASD requested that the Commission make certain non-
substantive organizational changes to the Purpose section (and the 
corresponding numbered introductory text throughout the notice). In 
addition, the NASD requested that the Commission include footnotes 
in the notice that specifically provide the new definitions for the 
following new defined Form U-4 terms: (1) ``Affiliated Firm;'' (2) 
``Federal Banking Agency;'' and (3) ``Final Order.'' Telephone 
conference between Shirley H. Weiss, Office of General Counsel, NASD 
Regulation, Richard E. Pullano, Chief Counsel and Associate 
Director, CRD/Public Disclosure, NASD Regulation, Elizabeth Badawy, 
Senior Policy Liaison, Division, Commission, and Christopher B. 
Stone, Special Counsel, Division, Commission (May 22, 2003).
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    The Form U-4 is the Uniform Application for Securities Industry 
Registration or Transfer. Representatives of broker-dealers and 
investment advisers must use this form to become registered in the 
appropriate jurisdictions and/or with appropriate self-regulatory 
organizations (``SROs''). The Form U-5 is the Uniform Termination 
Notice for Securities Industry Registration. Broker-dealers and 
investment advisers must use this form to terminate registration of an 
individual in the various SROs and jurisdictions. (Form U-4 and Form U-
5 are together hereinafter referred to as the ``Forms.'')
    The proposed revisions to the Forms would (1) Add disclosure 
questions to the ``Regulatory Disciplinary Actions'' subsection of 
Section 14 (Disclosure Questions) of the Form U-4 to elicit information 
regarding events that might cause a person to be subject to a statutory 
disqualification as a result of additional categories of statutory 
disqualification in the Act created by passage of the Sarbanes-Oxley 
Act; (2) add a DRP and a question to the Form U-5 that parallels the 
DRP and Form U-4 question relating to terminations for cause; (3) 
streamline the language associated with questions on the Form U-4 
relating to fingerprinting requirements; and (4) make certain 
technical, clarifying, and conforming changes on the Forms to 
facilitate accurate reporting.\6\
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    \6\ On April 6, 2003, the North American Securities 
Administrators Association, Inc. (''NASAA'') voted to approve the 
proposed listed Forms revisions at its Membership meeting.

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[[Page 33546]]

New Disclosure Questions Required by Enactment of the Sarbanes-Oxley 
Act
    Section 604 of the Sarbanes-Oxley Act amended the Act by adding new 
categories of ``statutory disqualification.'' Under the expanded 
definition, members and their associated persons may be subject to a 
statutory disqualification (i.e., may be required to obtain regulatory 
approval before becoming a member of NASD or becoming associated with 
an NASD member) if they are subject to certain orders issued by a state 
securities commission or state insurance commissioner (or any agency or 
officer performing like functions); state authorities that supervise or 
examine banks, savings associations, or credit unions; an appropriate 
federal banking authority, or the National Credit Union Administration. 
Specifically, persons (including members) may be subject to a statutory 
disqualification based on orders issued by the above agencies that (1) 
bar a person from association or from engaging in the business of 
securities, insurance, banking, savings association activities, or 
credit union activities or (2) are based on violations of any laws or 
regulations that prohibit fraudulent, manipulative, or deceptive 
conduct.\7\
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    \7\ Section 15(b)(4)(H) of the Act, 15 U.S.C. 78o(b)(4)(H).
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    The Form U-4 has historically been the vehicle for the reporting of 
events that may cause a person to become subject to statutory 
disqualification. NASD generally takes the lead in amending the Forms. 
Accordingly, with the concurrence of a working group of regulators, 
including state regulators, representatives of other SROs, and SEC 
observers, NASD is proposing to amend section 14 (Disclosure Questions) 
of the Form U-4 to elicit reporting of regulatory actions that may now 
make individuals subject to a statutory disqualification under the 
expanded definition of ``statutory disqualification'' in the Act 
created by passage of the Sarbanes-Oxley Act.
    The proposed rule change renumbers current Regulatory Action 
Disclosure Question 14D on the Form U-4 as Question 14D(1), adds 
Question 14D(2) to mirror the language in section 15(b)(4)(H) of the 
Act,\8\ and modifies the ``Regulatory Action DRP'' on the Forms. To aid 
in reporting events under Question 14D(2), NASD proposes amending the 
``Specific Instructions'' section of the Form U-4 with respect to 
section 14 (Disclosure Questions). NASD proposes adding two new defined 
terms, ``final order'' \9\ and ``federal banking agency,'' \10\ to the 
``Explanation of Terms'' section of the Form U-4. NASD also proposes 
amending the ``Regulatory Action'' DRP on the Form U-4 to aid in 
reporting events required to be reported pursuant to the Sarbanes-Oxley 
Act.
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    \8\ Id.
    \9\ The new term ``final order'' is to be defined in the Form U-
4 as follows: FINAL ORDER, for purposes of Question 14D(2), means a 
written directive or declaratory statement issued by an appropriate 
federal or state agency (as identified in Question 14D(2)) pursuant 
to applicable statutory authority and procedures, that constitutes a 
final disposition or action by that federal or state agency.
    \10\ The new term ``federal banking agency'' is to be defined in 
the Form U-4 as follows: FEDERAL BANKING AGENCY shall include any 
Federal banking agency as defined in Section 3 of the Federal 
Deposit Insurance Act (12 U.S.C. 1813(q)).
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Form U-5 DRP and Question Addition Relating to Terminations for Cause
    NASD proposes adding to the Form U-5 a new disclosure question 
(Question 7F) and corresponding DRP to mirror Question 14J on the Form 
U-4. This question would allow firms to report that an individual was 
terminated after allegations of certain violations, fraud, wrongful 
taking of property, or failure to supervise, and would further clarify 
the individual's obligation to report the termination on the Form U-4. 
Currently, NASD staff must rely on the reason for termination or a 
firm-initiated internal review as reported (by the former employing 
firm) on an individual's Form U-5 to determine whether that individual 
is required to answer Question 14J (on the Form U-4) affirmatively. The 
new Question 7F on the Form U-5 should clarify for NASD staff and 
terminated individuals the basis for and circumstances surrounding the 
termination (and whether it requires an affirmative answer on the 
corresponding Form U-4 question) and will enable firms appropriately to 
identify and provide supporting details regarding terminations for 
cause. Similarly, NASD proposes adding ``resign or resigned'' as an 
explained term on the Form U-5 to parallel the same term on the Form U-
4 for purposes of the new Question 7F.
Modifications to the Form U-4 Relating to Fingerprinting Requirements
    NASD proposes to streamline the language associated with questions 
under section 2 (Fingerprint Information) and section 6 (Registration 
Requests with Affiliated Firm) on the Form U-4 to clarify 
fingerprinting requirements, including electronic filing 
representations, exceptions to the fingerprint requirement, and 
fingerprint requirements for investment adviser representative only 
applicants. In conjunction with the proposed changes relating to the 
fingerprint questions, NASD is proposing to amend the ``Specific 
Instructions'' section of the Form U-4 with respect to section 2 
(Fingerprint Information) and Section 6 (Registration Requests with 
Affiliated Firms).
    Under section 2 (Fingerprint Information), NASD proposes to modify 
the ``Electronic Filing Representation'' subsection to address two 
situations that are not adequately covered by the current language. The 
first involves a firm's submitting fingerprint results on behalf of an 
individual whose fingerprints were processed through another SRO, in 
lieu of submitting fingerprint cards. The second occurs when a firm is 
seeking registration for an individual who (1) is currently employed by 
the firm (usually in an unregistered capacity) and (2) previously has 
been fingerprinted (either through NASD or another SRO).
    The current electronic filing representation states that the firm 
is submitting or will promptly submit fingerprint cards as required by 
applicable SRO rules. In the two situations described above, firms will 
not be submitting fingerprint cards contemporaneously with, or within 
30 days of, filing a Form U-4. The proposed language will allow firms 
and individuals to represent that the filing firm has continuously 
employed the individual since the last submission of a fingerprint card 
to NASD (and therefore is not required to resubmit a card at this time) 
or has continuously employed the individual since the individual had 
his or her fingerprints processed through another SRO, and the 
individual will submit (or has submitted) the processed results to the 
Central Registration Depository (``CRD'') system.
    Also, under section 2 (Fingerprint Information), NASD proposes to 
modify the ``Exceptions to the Fingerprint Requirement'' subsection. 
Currently, firms can claim an exception to the fingerprint requirement 
by affirming that the individual has been continuously employed by the 
filing firm in an unregistered capacity (and had previously submitted a 
fingerprint card in connection with that employment) or meets one or 
more exemptions under SEC Rule 17f-2.\11\ The proposed modification to 
the ``Exceptions to the Fingerprint Requirement'' questions would allow 
a firm to select the specific permissive exemption under SEC Rule 17f-
2(a)(1)(i)

[[Page 33547]]

and/or (a)(1)(iii).\12\ Additional proposed changes to section 2 
(Fingerprint Information) will clarify fingerprint filing requirements 
for investment adviser representative only applicants.
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    \11\ 17 CFR 240.17f-2.
    \12\ SEC Rule 17f-2, 17 CFR 240.17f-2, governs the 
fingerprinting requirements of securities personnel. SEC Rule 17f-
2(a)(1)(i), 17 CFR 240.17f-2(a)(1)(i), permits an exemption for 
persons who are not engaged in the sale of securities; do not 
regularly have access to the keeping, handling, or processing of 
securities, monies, or books and records; and do not have 
supervisory responsibility over persons engaged in such activities. 
SEC Rule 17f-2(a)(1)(iii), 17 CFR 240.17f-2(a)(1)(iii), generally 
exempts the partners, directors, officers, and employees of a 
broker-dealer that is engaged exclusively in the sales of certain 
securities, such as variable contracts, limited partnership 
interests, and unit investment trusts.
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    Individuals use the Form U-4 to register with states in an 
investment adviser representative capacity (shown as ``RA'' on the Form 
U-4). Some states have advised NASD that individuals are confused about 
which radio button \13\ to select when applying solely for registration 
as an investment adviser. In some cases, these individuals have 
previously submitted a fingerprint card for registration with a broker-
dealer. NASD proposes to amend the ``Investment Adviser Representative 
Only Applicants'' section by adding additional instructions under the 
heading ``Fingerprint Information for Affiliated Firms'' that will 
explain the fingerprint filing requirements for these applicants.
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    \13\ A ``radio button'' is a navigation and selection device 
that allows a filer to select a particular option in an electronic 
filing environment.
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    The proposed language will clarify the circumstances under which an 
individual may need to file a fingerprint card when submitting an 
application for state licensure as an investment adviser representative 
notwithstanding having previously submitted a fingerprint card with an 
unaffiliated broker-dealer. The proposed language will also address 
situations in which an investment adviser representative previously has 
satisfied a state fingerprint requirement by allowing the 
representative to make that representation on the Form U-4.\14\
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    \14\ This addition should be particularly helpful to investment 
adviser representatives who became licensed in a jurisdiction 
through the submission of a hard copy Form U-4 before that 
jurisdiction accepted electronic filings via the Investment Adviser 
Registration Depository and who are now being ``transitioned'' onto 
an electronic system via an electronically filed Form U-4 amendment.
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    Under section 6 (Registration Requests With Affiliated Firms) of 
the Form U-4, NASD is proposing to add a fingerprint question to 
section 6 (Registration Requests with Affiliated Firms) on the Form U-4 
to create appropriate options for individuals requesting new 
registrations with a firm affiliated with the filing firm.\15\ The 
proposed ``Electronic or Other Filing Representation'' subsection will 
provide three additional radio buttons. Filers can select the current 
standard representation (i.e., ``I am submitting, have submitted, or 
promptly will submit to the appropriate SRO a fingerprint card * * 
*''). In the alternative, the proposed representations would enable the 
individual to indicate that (1) he or she has been employed 
continuously by the filing firm since the last submission of a 
fingerprint card and he or she is not required to resubmit a 
fingerprint card; or (2) the individual has been employed continuously 
by the filing firm and his or her fingerprints have been processed by 
an SRO other than NASD and the individual is submitting, has submitted, 
or promptly will submit the processed results for posting to the CRD. 
Section 6 (Registration Requests With Affiliated Firms) will also 
contain a radio button that allows the applicant to select an exemption 
to the fingerprint requirement pursuant to SEC Rule 17f-2.\16\
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    \15\ The new term ``Affiliated Firm'' is to be defined in the 
Form U-4 as follows: AFFILIATED FIRM means a broker-dealer under 
common ownership or control with the filing firm.
    \16\ 17 CFR 240.17f-2.
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Conforming Changes
    (1) NASD proposes replacing all references to ``NASD Regulation'' 
or ``NASD Regulation, Inc.'' with ``NASD'' consistent with NASD's 
current corporate structure. NASD also proposes changing ``U-4'' to 
``U4'' and ``U-5'' to ``U5.''
    (2) NASD proposes making grammatical and other modifications that 
will make the Form U-4 and Form U-5 more consistent and better clarify 
the disclosure information that is required to be reported on the 
Forms. For example, NASD proposes rewording the summary field of the 
DRPs on the Form U-4 and Form U-5 to emphasize that those fields are 
optional for comments by representatives and firms, respectively.
    (3) NASD proposes modifying the Customer Complaint DRP on both 
Forms to distinguish the fields that are required for reporting a 
customer complaint, arbitration and/or litigation. The proposed changes 
add instructions and rearrange the questions in a more logical order; 
however, the content of the customer complaint disclosure question and 
DRP fields will not change.
    (4) NASD proposes revising the language in Question 14F (on Form U-
4) to clarify the intent of the reporting obligation.\17\
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    \17\ Currently, Question 14F asks, ``Has your authorization to 
act as an attorney, accountant or federal contractor ever been 
revoked or suspended?'' The proposed Question 14F asks, ``Have you 
ever had an authorization to act as an attorney, accountant or 
federal contractor that was revoked or suspended?''
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    (5) NASD proposes changes to the current hair and eye color codes 
to match the codes used by the Federal Bureau of Investigation's 
fingerprint system.
    (6) NASD proposes other consistency changes that relate to bolding 
or highlighting certain instructions in the DRPs to facilitate 
appropriate reporting on the Forms.
2. Statutory Basis
    NASD believes that the proposed rule change is consistent with the 
provisions of section 15A(b)(6) \18\ of the Act, which requires, among 
other things, that the Association's rules 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 interest. NASD believes that the proposed rule change is 
designed to accomplish these ends by making changes to the Forms that 
would (1) add disclosure questions to elicit reporting of events that 
may cause a person to be subject to a statutory disqualification as a 
result of the expansion of the federal definition of statutory 
disqualification based on the enactment of the Sarbanes-Oxley Act; (2) 
add a DRP and a question to the Form U-5 (new Question 7F) that 
parallels Question 14J on the Form U-4 DRP relating to terminations for 
cause; (3) streamline the language associated with questions on the 
Form U-4 relating to fingerprinting requirements; and (4) make other 
technical, clarifying, and conforming changes that are intended to 
facilitate accurate reporting.
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    \18\ 15 U.S.C. 78o-3(b)(6).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    NASD does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

[[Page 33548]]

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 NASD consents, the Commission will:
    A. by order approve such proposed rule change, as amended, or
    B. institute proceedings to determine whether the proposed rule 
change, as amended, 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 
change, as amended, 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 rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for inspection and 
copying in the Commission's Public Reference Room. Copies of such 
filing will also be available for inspection and copying at the 
principal office of the NASD. All submissions should refer to File No. 
SR-NASD-2003-57 and should be submitted by June 25, 2003.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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J. Lynn Taylor,
Assistant Secretary.
[FR Doc. 03-13938 Filed 6-3-03; 8:45 am]
BILLING CODE 8010-01-P