[Federal Register Volume 74, Number 235 (Wednesday, December 9, 2009)]
[Notices]
[Pages 65180-65190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29338]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61107; File No. SR-FINRA-2009-070]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of Proposed Rule Change To Adopt NASD 
Interpretive Material 2210-2 Into the Consolidated Rulebook as FINRA 
Rule 2211

December 3, 2009.
    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 October 20, 2009, Financial Industry Regulatory Authority, Inc. 
(``FINRA'') (f/k/a National Association of Securities Dealers, Inc. 
(``NASD'')) 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 substantially prepared by 
FINRA. The Commission is publishing this notice 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.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    FINRA is proposing to adopt FINRA Rule 2211 (Communications with 
the Public About Variable Insurance Products) as a replacement for NASD 
Interpretive Material 2210-2 (Communications with the Public About 
Variable Life Insurance and Variable Annuities), which would be 
deleted.
    The text of the proposed rule change is available on FINRA's Web 
site at http://www.finra.org, at the principal office of FINRA and at 
the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, FINRA 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. FINRA 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
    FINRA proposes to update and consolidate the rules governing firm 
communications with the public about variable insurance products other 
than institutional sales material. The core of these rules is found in 
NASD Interpretive Material 2210-2 (Communications with the Public About 
Variable Life Insurance and Variable Annuities) (``IM-2210-2''). FINRA 
adopted IM-2210-2 in 1993 and has issued related interpretations in 
various publications since then. Through the review of communications 
submitted by firms to FINRA's advertising filings program, the FINRA 
Advertising Regulation Department (``Department'') staff has developed 
additional interpretations of IM-2210-2.
    FINRA proposes to replace IM-2210-2 with new FINRA Rule 2211. Rule 
2211 would differ from IM-2210-2 in a number of respects. Certain 
provisions of IM-2210-2 would be shortened and simplified. Other 
changes would address areas that have experienced significant changes 
since IM-2210-2 was first issued, particularly with respect to the use 
of riders and hypothetical illustrations. Proposed Rule 2211 also would 
codify some of the Department's interpretations of IM-2210-2 that have 
developed through FINRA's advertising filings program.
Definitions
    Paragraph (a) of the proposed rule would define certain terms used 
in the proposed rule. The definitions section is not intended to define 
insurance-related terms in other contexts beyond the scope of this 
rule.\3\
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    \3\ Certain other terms are defined in the text of the rule and 
others are defined where used below.
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Product Identification and Liquidity
    Proposed paragraphs (b) and (c) would address product 
identification and liquidity issues raised by variable insurance 
product communications. These provisions would shorten and simplify the 
provisions currently contained in paragraphs (a)(1) and (a)(2) of IM-
2210-2.
    Proposed paragraph (b) would require that all communications 
clearly identify the type of variable insurance product discussed 
within the communication and would prohibit communications from 
representing or implying that a variable insurance product is a mutual 
fund.
    Proposed paragraph (c) would prohibit communications from falsely 
implying that variable insurance products are short-term, liquid 
investments. Paragraph (c) also would require any presentation 
regarding liquidity or access to account values to be balanced by a 
description of the potential effect of all charges, penalties or tax 
consequences resulting from a redemption or surrender. In addition, any 
discussion of loans and withdrawals would have to explain their impact 
on account values, death benefits or other contract benefits, including 
potential policy lapses. These requirements generally reflect 
provisions contained in IM-2210-2.\4\
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    \4\ See NASD IM-2210-2(a)(2).
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Guarantee Claims and Riders
    FINRA recognizes the need to communicate the features of guarantees 
and riders through sales material; however, it is equally important 
that these communications discuss guarantees and riders in a fair and 
balanced manner.
    IM-2210-2 addresses claims about guarantees but does not 
specifically address riders. The proposal would incorporate the 
concepts concerning guarantee claims in IM-2210-2 and also include 
specific provisions regarding riders.\5\
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    \5\ The proposal would define the term ``rider'' as ``an 
additional provision to a contract or an additional contract that 
adds or excludes coverage at an identifiable cost.'' See proposed 
FINRA Rule 2211(a)(6).
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    Similar to IM-2210-2, proposed paragraph (d)(1) would prohibit 
firms from exaggerating the relative benefits of a guarantee or an 
insurance company's financial strength or credit rating. Any 
presentation of a guarantee would have to provide a balanced discussion 
of applicable limitations or qualifications. In addition, under 
proposed paragraph (d)(2), communications regarding guarantees would 
have to disclose the extent to which the investment return and 
principal value of an investment option are not guaranteed and will 
fluctuate.
    Proposed paragraph (d)(3) would require communications that discuss 
a guarantee or rider to explain its costs and limitations, and if 
applicable, that it is an optional feature of the contract that may not 
benefit all investors.
    Proposed paragraph (d)(4) would apply if a communication includes a 
guaranteed amount, benefit base, or similar contract accumulation value 
that is not available for withdrawal in cash. Typically variable 
insurance contracts reference benefit bases or similar accumulation 
values in the context of

[[Page 65181]]

guaranteed minimum withdrawal benefit (GMWB) or guaranteed minimum 
income benefit (GMIB) riders. Investors may be confused as to the 
nature of these values and believe incorrectly that they reflect the 
current cash withdrawal value of the investor's underlying investment 
options. Such communications would have to clearly disclose that the 
accumulation value is not available in cash or, if applicable, the 
restrictions to and reductions taken when receiving such value in cash.
Qualified Plans
    FINRA has previously expressed concerns with recommendations to 
purchase a variable annuity through a tax-qualified account, such as an 
individual retirement account, because a variable annuity does not 
provide any additional tax deferred treatment of earnings beyond the 
treatment provided by the tax-qualified retirement plan itself. FINRA 
recognizes that there may be reasons other than tax deferral to 
recommend the purchase of a variable annuity through a tax-qualified 
account. However, FINRA has reminded firms that a registered 
representative should recommend the purchase of a variable annuity 
through a tax-qualified account only when other benefits, such as 
lifetime income payments, family protection through the death benefit 
or guaranteed fees, support the recommendation.\6\
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    \6\ See Notice to Members 99-35 (May 1999) (The NASD Reminds 
Firms Of Their Responsibilities Regarding The Sales Of Variable 
Annuities).
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    The same rationale applies to communications concerning a variable 
insurance product offered through a tax-qualified retirement plan. 
Accordingly, proposed paragraph (e) would prohibit any such 
communication from indicating that the tax-deferred treatment of 
earnings is available only through investment in the contract, and 
would require disclosure that the variable insurance product does not 
provide any additional tax-deferred treatment of earnings beyond the 
treatment of earnings provided by the retirement plan. The proposed 
requirements are consistent with the review of communications by the 
Department.
Historical Performance
    Proposed paragraph (f) would govern the various types of variable 
insurance product historical performance that a firm may include in 
communications. These provisions generally reflect positions that the 
Department has taken through the filings review program.

Variable Annuity Performance

    Proposed paragraph (f)(1) would provide that firms may present 
historical performance in communications regarding registered variable 
annuities only in accordance with Rule 482 under the Securities Act of 
1933 (``Securities Act'') or Rule 34b-1 under the Investment Company 
Act of 1940, as applicable.

Variable Life Insurance Policy Performance

    Proposed paragraph (f)(2) would allow firms to present historical 
performance information in communications regarding variable life 
insurance policies, subject to certain conditions. The standards 
imposed by this paragraph generally reflect standards that the 
Department previously has published regarding variable life insurance 
policy performance information.\7\ At a minimum, this performance must 
reflect the deduction of all fees and charges applicable at the 
investment option level.\8\
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    \7\ See ``Presentation of Variable Life Insurance Performance In 
Member Communications,'' Regulatory & Compliance Alert (Winter 2001) 
pp. 3-4.
    \8\ ``Investment option'' would be defined as ``a registered 
open-end management investment company (or series thereof) offered 
through the separate account.'' See proposed FINRA Rule 2211(a)(3). 
Thus, this provision would require, at a minimum, the deduction of 
expenses imposed at the underlying fund (sub-account) level, but not 
the deduction of expenses imposed at the separate account or 
contract level.
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    Communications that present variable life insurance policy 
performance also would have to prominently disclose:
     Whether the performance reflects the deduction of 
additional fees and charges disclosed in the prospectus other than at 
the investment option level;
     The fees and charges disclosed in the prospectus not 
deducted from the performance (e.g., life insurance premiums); and
     That if all fees and charges disclosed in the prospectus 
had been deducted, the performance quoted would have been lower.
    Proposed paragraph (f)(2)(C) would require communications that 
present variable life insurance policy performance to urge investors to 
obtain a personalized hypothetical illustration. Upon such investor 
request, a firm would be required to provide an illustration that 
reflects all applicable fees and charges disclosed in the prospectus, 
including the cost of insurance. The illustration also would have to 
conform to the provisions governing assumed rate hypothetical 
illustrations contained in proposed paragraph (g) discussed below, and 
would have to be customized to reflect an individual investor's 
characteristics and preferences.\9\
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    \9\ See proposed FINRA Rule 2211(a)(5).
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    Presentations of investment option performance in variable life 
insurance communications would have to be consistent with the standards 
for the presentation of registered open-end management investment 
company performance in paragraphs (b)(3), (b)(4), (b)(5), (d), (e) and 
(g), as applicable, of Securities Act Rule 482. Thus, such performance 
would have to be accompanied by the same required performance-related 
disclosures contained in Securities Act Rule 482(b)(3) and (b)(4) (as 
applicable), and be presented in a manner that satisfies the 
requirements of Securities Act Rule 482(b)(5). Quotations of 
performance would have to meet the standards of Securities Act Rule 
482(d) (in the case of non-money market funds) or (e) (in the case of 
money market funds), and would have to be current to the most recent 
calendar quarter ended prior to the submission of the communication for 
publication as required by Securities Act Rule 482(g). These proposed 
requirements reflect current industry practice with respect to 
communications containing variable life insurance performance.

Pre-Dated Performance

    Proposed paragraph (f)(3) would allow, but not require, firms to 
present the performance of an investment option that occurred during 
the period prior to its availability through the separate account of a 
variable insurance product. For example, this provision would allow a 
firm to show an investment option's entire performance history, even if 
the investment option became available through the separate account 
subsequent to its inception. This provision reflects current FINRA 
policy to permit pre-dated performance,\10\ subject to certain 
conditions.
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    \10\ See IM-2210-2(b)(1). See also ``Variable Annuity 
Performance,'' Regulatory & Compliance Alert (Summer 2002) pp. 8-9.
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    First, any such presentation would have to meet the requirements of 
paragraphs (f)(1) and (f)(2), as applicable.
    Second, the pre-dated performance could not reflect the performance 
of a fund that is not available as an investment option through the 
separate account. Thus, presentation of the performance of a similar 
``clone'' fund

[[Page 65182]]

that is not available through the separate account would not be 
permitted.
    Third, for pre-dated performance for registered variable annuities:
     If the investment option had been available through the 
separate account for more than one year, the pre-dated performance 
would have to be accompanied by the investment option's performance 
commencing on the date it became available through the separate 
account;
     The performance would have to be, or be accompanied by 
performance that is, net of all expenses that are required to be 
deducted from standardized performance under Securities Act Rule 482; 
and
     The communication would have to identify the period during 
which the pre-dated performance occurred.

Combined Historical Performance

    Proposed paragraph (f)(4) would allow, but not require, a firm to 
present combined performance reflecting a static allocation of multiple 
investment options. This provision would allow firms to show 
performance based on a one-time allocation of multiple investment 
options at the beginning of the illustrated time period, subject to 
certain conditions.
    First, the communication would have to present the individual 
performance of each investment option included within the combined 
performance. This performance would have to be consistent with the 
requirements of paragraphs (f)(1), (f)(2) and (f)(3), as applicable.
    Second, the communication would have to disclose the names of the 
investment options included in the combined performance, the investment 
percentage allocated to each investment option for purposes of the 
combined performance calculation, and that the combined historical 
performance is hypothetical because it is based on assumed investment 
allocations.

Historical Performance Illustrations

    Proposed paragraph (f)(5) would allow, but not require, a firm to 
present an illustration based on the historical performance of 
individual investment options or combination of investment options 
using assumed dollar investments, subject to certain conditions.
    First, the illustration would have to be accompanied by historical 
performance that satisfies the requirements of paragraphs (f)(1), 
(f)(2), (f)(3) and (f)(4), as applicable. Second, the illustration 
would have to present dollar values that are net of fees imposed at the 
investment option level, and for registered variable annuity 
illustrations, net of all expenses that are required to be deducted 
from standardized performance under Securities Act Rule 482. Third, the 
illustration would have to prominently explain that the illustration is 
based on a hypothetical dollar investment and that it is not intended 
to predict or project future performance.

Historical Performance of Selected Investment Options

    Under proposed paragraph (f)(6), in some cases, a firm may present 
the performance of one or more investment options without presenting 
the performance of all investment options available through the 
separate account. In such situations, the firm would have to disclose 
that the investment options depicted are not the only ones offered 
within a product.
Illustrations Based on Assumed Rates of Return
    Proposed paragraph (g) would address the use of illustrations that 
are based on assumed rates of return rather than on investment options' 
historical performance. Currently, IM-2210-2 provides standards for 
assumed rate illustrations for communications concerning variable life 
insurance policies in order to demonstrate how the product operates. 
Through its review of communications in the filings program, the 
Department has permitted assumed rate illustrations for variable 
annuities that demonstrate how the product operates where the 
communications adhere to the standards set forth in IM-2210-2.\11\ 
Under the proposal, firms could present hypothetical illustrations 
based on assumed rates of return to demonstrate the way any variable 
insurance product operates, subject to a number of conditions.
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    \11\ Historically, the SEC staff has permitted some assumed rate 
illustrations in variable annuity prospectuses to illustrate the 
pay-out phase.
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Requirements for All Assumed Rate Illustrations

    First, the proposal preserves the requirement that all 
illustrations must show investment results that are based on an assumed 
gross annual rate of return of 0%. Second, the illustration would have 
to be presented in a format that is readily understandable and depicts, 
at a minimum, year-by-year account values. Third, the illustration 
would have to clearly label and define all values and disclose the 
gross and net rates of return depicted.\12\
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    \12\ FINRA asserts that because the SEC's registration statement 
of separate accounts organized as unit investment trusts that offer 
variable life insurance policies (Form N-6) no longer requires a 
registrant to include a hypothetical illustration, FINRA has 
proposed to eliminate the current requirement that the methodology 
and format of hypothetical illustrations be modeled after the 
required illustrations in the prospectus. See NASD IM-2210-
2(b)(5)(A)(i).
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    Fourth, the illustration would have to reflect either an arithmetic 
average of all investment option expenses or a weighted average of 
investment option expenses.\13\ If a firm chose to use a weighted 
average, the illustration would have to identify the investment options 
being used and the investment amount allocated to each option. In 
addition, if a firm used an illustration that employed a weighted 
average of expenses with more than one customer, the illustration would 
have to reflect the current actual weighted average of investment 
options held by all investors through the separate account.\14\
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    \13\ The proposal would define ``arithmetic average of 
investment option expenses'' as ``the number obtained by dividing 
the sum of all investment option expenses by the number of 
investment options offered through the separate account.'' See 
proposed FINRA Rule 2211(a)(1). The proposal would define ``weighted 
average of investment option expenses'' as an average of investment 
option expenses that is proportional to the allocation of assets to 
each investment option.
    \14\ FINRA has permitted firms to reflect a weighted average of 
fund level expenses in variable life insurance hypothetical 
illustrations used with more than one customer, subject to certain 
conditions. The illustration must be accompanied or preceded by a 
policy prospectus, and the illustration must be accompanied by a 
general illustration that reflects the arithmetic average of 
underlying fund expenses. See ``Fund Level Expenses in Variable Life 
Hypothetical Illustrations,'' Regulatory & Compliance Alert (Spring 
2002) p. 12. FINRA proposes to alter the requirements applicable to 
the use of a weighted average of expenses with more than one 
customer by no longer requiring that they be accompanied by a 
prospectus, and by requiring the illustration to reflect the current 
actual weighted average of investment options held by all investors 
through the separate account.
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    Fifth, the illustration would have to reflect the maximum 
guaranteed charges for each assumed gross annual rate of return shown 
in the illustration.\15\ The proposal also would permit illustrations 
to show each assumed gross annual rate of return net of the variable 
insurance product's current charges in addition to the maximum 
guaranteed charges.\16\
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    \15\ The proposal would define ``maximum guaranteed charges'' as 
``the maximum recurring and non-recurring charges as disclosed in 
the prospectus of a variable insurance product that all investors 
incur at the variable insurance contract level. If an illustration 
is intended to demonstrate the way an optional rider operates, 
`maximum guaranteed charges' also includes the maximum recurring and 
non-recurring charges applicable to the rider. This term includes 
the cost of insurance for purposes of a communication concerning a 
variable life insurance policy.'' See proposed FINRA Rule 
2211(a)(4).
    \16\ IM-2210-2 also permits a firm illustration to reflect a 
variable insurance product's current charges in addition to its 
maximum guaranteed charges. See NASD IM-2210-2(b)(5)(iii).

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    Sixth, the illustration would have to explain prominently that its 
purpose is to show how the performance of the investment accounts could 
affect the policy cash value and contract benefits, that the 
illustration is hypothetical and that it does not project or predict 
future performance.
    Proposed paragraph (g)(7) would allow firms to present in 
illustrations results based on assumed gross annual rates of return in 
addition to the 0% return required by paragraph (g)(1). Firms may show 
either results based on a single assumed positive or negative rate of 
return, or multiple assumed rates of return reflecting the historical 
performance of a broad-based securities index. In all cases, assumed 
rates of return would have to be net of maximum guaranteed charges.\17\
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    \17\ See proposed Rule 2211(g)(5).
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Single Assumed Rates of Return

    Proposed paragraph (g)(7)(A) would allow firms to show investment 
results based on an assumed positive gross annual rate of return of up 
to 10%.\18\ If an illustration assumes that a customer's money is 
invested in a particular investment option or options, the assumed rate 
of return would have to be reasonable given the investment option's 
objectives. For example, generally it would not be reasonable to assume 
a 10% rate of return if the illustration assumed that the customer 
invested only in a money market investment option.
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    \18\ FINRA has permitted assumed rates of return of up to 12% 
per annum, as long as they are accompanied by illustrations showing 
a 0% assumed rate of return. See, e.g., ``Internal Rates of Return 
in Variable Life Hypothetical Illustrations,'' Regulatory & 
Compliance Alert (Winter 1998), pp. 31-32. FINRA proposes to 
decrease the maximum single assumed rate of return to 10% per annum.
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    Proposed paragraph (g)(7)(B) would allow firms to show investment 
results based on an assumed negative gross annual rate of return. 
Typically, firms have requested the ability to present a negative 
assumed annual gross rate of return to show the benefits of a rider 
that is intended to protect investors in a down market. If a negative 
assumed rate of return is used, the illustration also would have to 
show separate hypothetical results that are based on an assumed 
positive gross annual rate of return of at least 5% and not more than 
10%. The illustration would not have to show investment results that 
are based on an assumed 0% gross annual rate of return as otherwise 
required by proposed paragraph (g)(1).
    The purpose of requiring the presentation of investment results 
based on a positive rate of return in addition to the negative return 
is because, over the long term (despite the recent downturn), market 
returns have been positive. FINRA does not believe it is useful to show 
illustrations where the annual rate of return is constantly negative 
without balancing such an illustration by also showing a positive rate 
of return.

Multiple Assumed Rates of Return

    Proposed paragraph (g)(7)(C) would allow a firm to present an 
illustration based on multiple assumed rates of return that vary year 
by year. Currently, the Department allows multiple-rate illustrations 
based on so-called ``random'' rates that are determined by the firm. 
Under proposed paragraph (g)(7)(C), any illustration that used multiple 
rates of return would have to be based on the actual performance of a 
broad-based securities market index for the period shown by the 
illustration. ``Random-rate'' illustrations would no longer be allowed.
    The broad-based securities market index would have to be one that 
is used as a basis for comparison in discussions of fund performance in 
prospectuses of available investment options. Thus, for example, if the 
prospectus for an equity investment option shows the performance of the 
Standard & Poor's 500 Index as the basis of comparison, the actual 
performance of this index could be used in an assumed rate 
illustration.\19\ The illustration also would have to disclose the 
broad-based securities market index used and that the index does not 
reflect the performance of any investment option. Additionally, the 
performance of the broad-based securities index would have to be 
current as of at least the most recent calendar year ended prior to the 
date of use of the illustration.
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    \19\ Assumed rates of return based on the actual performance of 
a broad-based securities market index would not be subject to the 
10% maximum set forth in paragraph (g)(2). In addition, to the 
extent a broad-based securities market index reflects negative 
performance in certain years, the illustration would not be required 
also to show an assumed positive rate of return as required under 
paragraph (g)(3).
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    FINRA believes that requiring firms to use the actual performance 
of a broad-based securities market index, rather than so-called 
``random'' rates, is appropriate for two reasons. First, the historical 
performance of market indices allows investors to see how a variable 
insurance product would have operated under actual market conditions, 
rather than under some assumed random series of returns. Second, the 
use of broad-based securities market indices would enhance comparisons 
between products, since many illustrations would use the same index.
Use of Rankings
    Proposed paragraph (h) would address the use of rankings in 
variable insurance products communications. This provision would permit 
firms to include rankings of investment options in advertisements and 
sales literature, provided that their use is consistent with the 
standards contained in NASD Interpretive Material 2210-3 (Use of 
Rankings in Investment Companies Advertisements and Sales Literature).
Investment Analysis Tools
    Proposed paragraph (i) would address the use of investment analysis 
tools in connection with the offer or sale of variable insurance 
products. Investment analysis tools are interactive technological tools 
that present the likelihood of various investment outcomes for named 
investments or investment strategies. Often these tools employ Monte 
Carlo simulations \20\ to project a range of possible outcomes for 
certain investments. Proposed paragraph (i) would allow the use of such 
tools, provided that the firm complies with NASD Interpretive Material 
2210-6 (Requirements for the Use of Investment Analysis Tools). 
Illustrations that were created through the use of an investment 
analysis tool would have to comply with the provisions of proposed 
paragraph (g), and the investment analysis tool could not project 
performance based on rates of return that exceed those permitted by 
proposed paragraph (g). In addition, firms would have to either employ 
a tool, the results of which reflected the deduction of maximum 
guaranteed charges, or employ a tool that provided the user with a 
personalized hypothetical illustration that reflects these charges.
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    \20\ A Monte Carlo simulation is a method for evaluating 
particularly complex models.
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2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the 
provisions of Section 15A(b)(6) of the Act,\21\ which requires, among 
other things, that FINRA rules must be designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, and, in general, to protect investors and the 
public interest. FINRA believes that the proposed rule change will help 
ensure that firm communications about

[[Page 65184]]

variable insurance products are fair, balanced and not misleading.
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    \21\ 15 U.S.C. 78o-3(b)(6).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA 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

    In July 2008, FINRA published Regulatory Notice 08-39 (the 
``Notice'') requesting comment on the proposed rule, as well as on 
certain proposed changes to NASD Interpretive Material 2210-1 
(Guidelines to Ensure That Communications With the Public Are Not 
Misleading).\22\ A copy of the Notice is attached as Exhibit 2a.\23\ 
The comment period expired on September 30, 2008. FINRA received 16 
comments in response to the Notice. A list of the commenters in 
response to the Notice is attached as Exhibit 2b, and copies of the 
comment letters received in response to the Notice are attached as 
Exhibit 2c.\24\ Commenters generally supported the proposed rule 
change, but had comments on a number of specific provisions. A summary 
of the comments and FINRA's response is provided below.
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    \22\ FINRA is proposing separate changes to other rules 
governing communications with the public, including NASD IM-2210-1 
but excluding NASD IM-2210-2. See Regulatory Notice 09-55 (Sept. 
2009). Accordingly, the proposed changes to NASD IM-2210-1 have been 
removed from this rule proposal.
    \23\ The Commission notes that although Exhibit 2a was attached 
to the rule filing made by FINRA it is not attached to this notice.
    \24\ The Commission notes that although Exhibit 2c was attached 
to the rule filing made by FINRA it is not attached to this notice.
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Application of Proposed Rule
    The proposal would apply to all communications with the public 
about variable insurance products other than institutional sales 
material. The CAI \25\ opposed applying the proposed rule to 
correspondence, and requested guidance as to whether the proposal would 
apply to group variable contracts. The CAI and the ICI also recommended 
that FINRA amend NASD Rule 2211(d)(1) to make clear that the proposal 
would not apply to institutional sales material.
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    \25\ Please refer to attached Exhibit 2b for a list of 
abbreviations assigned to commenters.
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    FINRA believes that it is appropriate to apply the proposal to all 
communications that reach retail investors. The current definition of 
``correspondence'' includes any written letter or electronic mail 
message and any market letter distributed by a firm to (A) one or more 
existing retail customers; and (B) fewer than 25 prospective retail 
customers within any 30 calendar-day period. Because correspondence is 
sent to retail investors, FINRA believes it is important that they 
receive the same level of protection as investors that view other 
communication categories, such as advertisements and sales literature.
    The proposal would apply to communications concerning group 
variable contracts, unless otherwise specified. FINRA Rule 0150 
provides that business activities relating to exempted securities 
(which include group variable contracts) are subject to IM-2210-2. 
FINRA therefore believes it is appropriate to continue to apply the 
proposal to communications concerning group variable contracts.
    FINRA does not believe it is necessary to amend NASD Rule 
2211(d)(1). NASD Rule 2211 is not the subject of this rule filing, and 
the proposal already expressly excepts from its coverage institutional 
sales material.
Definitions
    The CAI recommended that the definitions of ``arithmetic average of 
investment option expenses'' and ``weighted average of investment 
option expenses'' be revised to clarify that they refer to investment 
option expenses after reimbursements and waivers of such expenses. 
While FINRA does not believe it is necessary to revise the definitions, 
generally the Department currently permits expense averages to be net 
of waivers and reimbursements. FINRA intends to continue this practice.
    New York Insurance suggested revised language for the definition of 
``cost of insurance'' to refer to ``the actual mortality charges 
deducted according to the terms of the contract from premiums, account 
values or taken as a reduction of investment credits,'' rather than 
``the actual cost of life insurance protection for a variable life 
insurance policy.'' While FINRA acknowledges that New York Insurance's 
recommended language is technically correct under normal circumstances, 
FINRA is concerned that firms may attempt to categorize insurance costs 
as falling outside the definition if it is too technical. Accordingly, 
FINRA is retaining the current definition.
    The CAI and Transamerica questioned how the definition of ``maximum 
guaranteed charges'' would apply to a contract that has optional 
features that are not riders to the contract. In such a situation, 
FINRA would expect firms to select the most expensive option in 
calculating a contract's maximum guaranteed charges.
    New York Insurance sought clarification that a personalized 
hypothetical illustration is a communication with the public for 
purposes of NASD Rule 2210. Written (including electronic) 
communications prepared for delivery to a single retail customer are 
considered to be correspondence under NASD Rules 2210 and 2211 and 
therefore fall within the definition of communication with the 
public.\26\
---------------------------------------------------------------------------

    \26\ See Notice to Members 03-38 (July 2003), page 386.
---------------------------------------------------------------------------

    New York Insurance suggested adding ``at an identifiable cost'' to 
the end of the definition of ``rider.'' The CAI noted that riders 
generally are separate from an insurance contract. FINRA has revised 
the definition of ``rider'' to reflect these comments.
    The CAI recommended that FINRA define ``guarantee.'' Because what 
constitutes a guarantee will always be based on the facts and 
circumstances, FINRA believes it best not to define this term within 
the rule.
Product Identification
    Proposed paragraph (b) would prohibit communications from 
representing or implying that variable insurance products are mutual 
funds. The CAI, the ICI, and Mutual Trust all argued that firms should 
be permitted to describe underlying investment options of variable 
insurance products as mutual funds. CLWLC supported the prohibition, 
and recommended that the provision be revised to require registered 
representatives to identify in what ways variable insurance products 
differ from mutual funds. People's supported the requirement that 
communications clearly identify the type of product discussed.
    IM-2210-2 currently prohibits communications from representing or 
implying that a variable insurance product or its underlying account is 
a mutual fund. FINRA has found that investors often are confused about 
the differences between variable products and mutual funds, and 
accordingly believes that it is important to maintain this prohibition. 
The proposal only addresses communications concerning variable 
insurance products, and does not address sales practices.\27\

[[Page 65185]]

Accordingly, FINRA does not believe it would be appropriate to modify 
the proposal to impose sales practice obligations on registered 
representatives.
---------------------------------------------------------------------------

    \27\ NASD Rule 2821, which the SEC approved in 2007, 
specifically addresses broker-dealers' compliance and supervisory 
responsibilities concerning the sale of deferred variable annuities. 
See Regulatory Notice 07-53 (Nov. 2007) (SEC Approves New NASD Rule 
2821 Governing Deferred Variable Annuity Transactions).
---------------------------------------------------------------------------

Liquidity
    The AARP, CLWLC, New York Insurance and People's all supported the 
prohibition in proposed paragraph (c) on falsely implying that variable 
insurance products are short-term liquid investments. Mutual Trust 
opposed this requirement, arguing that some variable insurance products 
do not have surrender charges.
    CLWLC favored the current language in IM-2210-2(a)(2) regarding 
surrender charges and taxes over the proposed language.\28\ CLWLC also 
argued that communications should be required to disclose that the 
death benefit offered by many variable products is of little benefit, 
since it is very unlikely that the aggregate value of sub-account 
investments net of withdrawals will have declined since the initial 
investment. In addition, CLWLC recommended that the proposal require 
disclosure regarding the tax penalty consequences of early withdrawals.
---------------------------------------------------------------------------

    \28\ NASD IM-2210-2(a)(2) provides that, ``[c]onsidering that 
variable life insurance and variable annuities frequently involve 
substantial charges and/or tax penalties for early withdrawals, 
there must be no representation or implication that these are short-
term, liquid investments. Presentations regarding liquidity or ease 
of access to investment values must be balanced by clear language 
describing the negative impact of early redemptions. Examples of 
this negative impact may be the payment of contingent deferred sales 
loads and tax penalties, and the fact that the investor may receive 
less than the original invested amount. With respect to variable 
life insurance, discussions of loans and withdrawals must explain 
their impact on cash values and death benefits.''
---------------------------------------------------------------------------

    New York Insurance recommended that the provision be revised to 
require a description of the potential effects of a withdrawal on 
contract benefits, such as the termination of a no-lapse provision. New 
York Insurance recommended that the provision's language reference the 
potential impact on contract benefits as well as death benefits. PIABA 
recommended requiring a mandatory plain English disclosure in lieu of 
the proposal's more general language.
    In response to these comments, FINRA has revised the last sentence 
of paragraph (c) to reference the potential impact of early withdrawals 
on account values, death benefits or other contract benefits, and to 
specifically reference potential policy lapses. FINRA believes the 
prohibition of falsely implying that a variable contract is short-term 
and liquid is reasonable. This provision only prohibits false 
statements; moreover, most variable insurance products are not designed 
to be short-term, liquid investments.
    FINRA does not agree that a variable insurance product's death 
benefit is of little value, particularly given the recent market 
downturn. FINRA also believes the proposal already requires disclosure 
regarding the tax consequences of early withdrawal. While FINRA 
supports plain English disclosure, FINRA believes that each firm should 
tailor its disclosure based on the features of the product being 
promoted.
Guarantee Claims and Riders
    Proposed paragraph (d)(1) originally provided that a communication 
may not exaggerate the relative benefits of a guarantee or an insurer's 
financial strength or rating, and provided that discussions of 
guarantees must disclose all material applicable limitations or 
qualifications. The ICI opposed the requirement to disclose all 
material applicable limitations and qualifications every time a 
guarantee is mentioned. PIABA recommended that the proposal require a 
disclosure that, if an insurance company fails, a guarantee may not be 
paid.
    In response to the ICI's comment, FINRA has revised the second 
sentence of paragraph (d)(1) to provide, ``[p]resentations of 
guarantees must provide a balanced discussion of applicable limitations 
and qualifications.'' FINRA does not believe it is necessary to 
reference an insurance company's possible failure, as the proposal 
already prohibits exaggeration of an insurance company's financial 
strength and rating.
    New York Insurance recommended specific language to address 
discussions of benefit bases or contract accumulation values that are 
not available for withdrawal in connection with riders. FINRA has added 
a new paragraph (d)(4) based on the suggested language.
    Proposed paragraph (d)(2) originally required communications that 
discuss guarantees to disclose that the investment return and principal 
value of the investment option are not guaranteed and will fluctuate. 
New York Insurance recommended adding ``the extent to which'' before 
``the investment return.'' FINRA has added this language.
    Proposed paragraph (d)(3) originally required communications that 
discussed the circumstances under which a guarantee or rider will 
benefit the customer to be fair and balanced considering the 
circumstances under which the guarantee or rider will not benefit the 
customer. The CAI, NAVA, Transamerica and the ICI all opposed this 
provision as unclear, unworkable and unnecessary given that Rule 2210 
already imposes a fair and balanced standard on all communications. In 
light of these comments, FINRA has deleted this paragraph.
    Proposed paragraph (d)(4) originally provided that any 
communication that discusses a rider must explain the rider, its costs 
and limitations, and the fact that the rider is an optional feature of 
the contract. The CAI opposed this requirement as unnecessary in light 
of Rule 2210's fair and balanced standard, and commented that the 
provision should exclude riders that are of an insurance nature that 
are governed by state law, such as nursing home riders. Princor opposed 
the provision, arguing that customers should rely on the prospectus. 
CLWLC supported the provision.
    In light of these comments, FINRA has revised this paragraph (now 
numbered paragraph (d)(3)) to provide that communications that discuss 
a guarantee or rider must explain its costs and limitations, and if 
applicable, that it is an optional feature of the contract that may not 
benefit all investors. FINRA does not agree that this provision should 
exclude riders governed by state insurance law, since that would 
exclude all communications concerning riders. FINRA also does not agree 
that disclosure is unnecessary in communications given that customers 
can read the prospectus. FINRA always has judged a communication based 
on the language contained in the communication itself.
Qualified Plans
    The CAI, CLWLC, and People's all supported proposed paragraph (e)'s 
requirements concerning communications that promote investment in a 
variable insurance product through a tax-qualified plan, subject to 
certain comments. The CAI argued that this provision is not relevant to 
a group variable contract. CLWLC argued that the provision should 
require a firm to perform a suitability analysis before a sale through 
a qualified plan. PIABA argued that the rule should require a 
disclosure that insurance products generally are not suitable for IRAs.
    While it is true that group variable contracts are sold only 
through tax-qualified plans, FINRA believes that it is important that a 
customer understand that the variable insurance product offers no 
additional tax benefits. NASD Rules 2310 and 2821 already require firms 
to perform a suitability analysis before recommending a variable 
insurance product, so FINRA does not

[[Page 65186]]

believe it would be either necessary or appropriate to impose 
suitability requirements via this rule. In light of these disclosure 
and suitability requirements, FINRA also finds it unnecessary to 
require an additional disclosure that insurance products are generally 
not suitable for IRAs. With regard to suitability obligations, for 
instance, FINRA has emphasized that firms recommending that a customer 
purchase a deferred variable annuity to fund an IRA (or other tax 
deferred account or vehicle) ``must ensure that features other than tax 
deferral make the purchase of the deferred variable annuity for the IRA 
(or other tax deferred account or vehicle) appropriate.'' \29\
---------------------------------------------------------------------------

    \29\ SEC Approves New NASD Rule 2821 Governing Deferred Variable 
Annuity Transactions, Regulatory Notice 07-53 (Nov. 2007).
---------------------------------------------------------------------------

Historical Performance

Variable Annuity Performance

    Proposed paragraph (f)(1) originally provided that firms may 
present the historical performance of variable annuities only in 
accordance with the requirements of Securities Act Rule 482 and Rule 
34b-1 under the Investment Company Act of 1940. The ICI supported this 
provision. The CAI and NAVA requested clarification that this provision 
does not apply to unregistered variable annuities. The provision has 
been revised to refer only to registered variable annuities, since 
Rules 482 and 34b-1 do not apply to unregistered variable annuities.

Variable Life Insurance Policy Performance

    Proposed paragraph (f)(2) originally set forth standards for 
presenting the performance of investment options available through 
variable life insurance products. Proposed paragraph (f)(2)(C) requires 
such presentations to urge investors to obtain a personalized 
hypothetical illustration that reflects all applicable fees and charges 
disclosed in the prospectus. Proposed paragraph (f)(2)(D) required any 
presentation of investment option performance to be consistent with the 
standards for mutual fund performance presentations under Securities 
Act Rule 482.
    The ICI requested clarification that such performance need not be 
accompanied by a statutory prospectus, since a previous Regulatory and 
Compliance Alert article on this topic required that such performance 
be accompanied or preceded by a prospectus. PIABA argued that any 
performance must also be net of all expenses imposed at the insurance 
contract level. Transamerica commented that paragraph (f)(2)(C) should 
be revised to specify which fees and charges must be deducted. 
Transamerica also requested that FINRA reference the specific 
provisions of Rule 482 with which investment option performance 
presentations must comply.
    Proposed paragraph (f)(2) would not require a firm to accompany the 
performance of a variable life insurance contract investment option 
with the contract's prospectus. FINRA does not believe it would be 
appropriate to require any investment option performance to be net of 
insurance contract-level expenses, given that policy premiums will vary 
widely based on the age, health and gender of the insured. Instead, the 
rule would require the communication to urge investors to obtain a 
personalized hypothetical illustration that is net of insurance 
contract-level expenses. FINRA does not believe it is either necessary 
or appropriate to try to enumerate all insurance-related expenses that 
must be deducted from a personalized illustration, since they will vary 
by issuer and contract. Paragraph (f)(2)(D) has been revised 
specifically to reference the Securities Act Rule 482 standards with 
which presentations of investment option performance must comply.

Pre-Dated Performance

    Proposed paragraph (f)(3) sets forth the requirements for the 
presentation of the performance of an investment option that occurred 
during the period prior to its availability through the separate 
account of a variable insurance product (``pre-dated performance''). 
Paragraph (f)(3)(A) originally provided that, if the investment option 
has been available through the separate account for more than one year, 
the pre-dated performance must be accompanied by performance of the 
investment option for the period commencing on the date the investment 
option became available through the separate account.
    The CAI argued that this provision should be deleted as redundant, 
since Securities Act Rule 482 already requires performance beginning 
when an investment option becomes available through the separate 
account. The ICI requested clarification that this provision simply 
requires the presentation of ``standardized'' performance under Rule 
482. The CAI and the ICI also commented that this provision should not 
apply to the performance of an investment option in variable life 
insurance sales material, since it is not subject to Rule 482.
    The purpose of this provision is to make clear that pre-dated 
performance that appears in variable annuity sales material is ``non-
standardized'' performance, which must be accompanied by the investment 
option's standardized performance: that is, an investment option's 
performance beginning on the date it became available through the 
separate account. Although, in FINRA's view, this requirement 
duplicates those under Rule 482, FINRA believes it is useful to remind 
firms of their obligations to show standardized performance. FINRA 
believes that variable life insurance sales material is not subject to 
Rule 482, and accordingly, FINRA has moved this language to new 
paragraph (f)(3)(C), which sets forth the requirements that apply to 
pre-dated variable annuity performance.
    Proposed paragraph (f)(3)(B) originally required pre-dated 
performance of variable annuities to be, or be accompanied by 
performance that is, net of the product's maximum guaranteed charges. 
The CAI, the ICI, NAVA and Transamerica all objected to the required 
deduction of maximum guaranteed charges for pre-dated performance on 
the ground that this standard is inconsistent with Rule 482. Given this 
concern, FINRA has revised this provision to no longer require the 
deduction of maximum guaranteed charges. Instead, the proposal now 
would require in paragraph (f)(3)(C)(ii) that pre-dated variable 
annuity performance be, or be accompanied by performance that is, net 
of all expenses required to be deducted from the performance of an 
investment option pursuant to Rule 482.
    Proposed paragraph (f)(3)(C) originally provided that pre-dated 
performance would be allowed only if there has been no significant 
change to the investment objectives, strategies or policies of the 
investment option during the period for which performance is shown. The 
CAI and ICI objected to this provision, asserting that is inconsistent 
with SEC policy regarding when investment company past performance may 
be presented. New York Insurance suggested additional clarifying 
language. FINRA did not intend to create a standard that differs from 
SEC policy. Accordingly, this paragraph has been deleted.
    Proposed paragraph (f)(3)(D) (now renumbered as paragraph 
(f)(3)(B)) would prohibit the inclusion of performance of a fund that 
is not available as an investment option through the separate account. 
The CAI and the ICI requested clarification that this provision would 
not prohibit the

[[Page 65187]]

use of feeder fund performance that incorporates a master fund's prior 
track record if the feeder fund is available for investment through the 
separate account. So long as SEC rules and interpretations permit the 
feeder fund to incorporate a master fund's prior track record, this 
provision would not prohibit the use of such performance.
    FINRA also has revised proposed paragraph (f)(3)(E) (now renumbered 
as paragraph (f)(3)(C)(iii)), which originally required communications 
to identify the period during which the pre-dated performance occurred 
and to explain that the performance pre-dates the availability of the 
investment option through the separate account. Paragraph 
(f)(3)(C)(iii) now only applies to registered variable annuity pre-
dated performance, and requires only that the communication identify 
the period during which the pre-dated performance occurred.

Combined Historical Performance

    Proposed paragraph (f)(4) addresses the presentation of the 
combined performance of multiple investment options. The CAI requested 
clarification that this provision would not require ``standardized'' 
combined investment option performance for purposes of Rule 482, since 
the provision already would require presentation of the standardized 
performance of each individual investment option that is included in 
the combined performance. FINRA has deleted language in this paragraph 
to make clear that combined performance would not have to be 
``standardized'' performance for purposes of Rule 482.
    New York Insurance suggested additional language to address 
situations in which combined performance reflects periodic rebalancing 
of investment option allocations. FINRA did not intend to permit this 
provision to allow combined performance to reflect periodic rebalancing 
of investment options. Accordingly, FINRA has added language to make 
clear that this provision only allows combined performance reflecting a 
static allocation of multiple investment options.

Historical Performance Illustrations

    Proposed paragraph (f)(5) sets forth the requirements for an 
illustration that uses the historical performance of one or more 
investment options. Paragraph (f)(5)(A) originally required performance 
used in historical illustrations to be net of fees imposed at the 
investment option level, and for variable annuity illustrations, net of 
maximum guaranteed charges. The CAI, NAVA and Princor objected to the 
requirement to deduct maximum guaranteed charges for variable annuity 
historical illustrations, asserting that Rule 482 does not require 
deduction of such expenses for historical performance. As with 
paragraph (f)(3), FINRA has revised paragraph (f)(5)(A) to require for 
variable annuity historical illustrations the deduction of all expenses 
required to be deducted under Rule 482.
    Proposed paragraph (f)(5)(B) originally would have required such 
illustrations to present year-by-year account values in a tabular or 
bar-chart format. The CAI and Transamerica objected to this standard, 
asserting that it differs from the standard for assumed-rate 
illustrations under proposed paragraph (g)(5). FINRA has eliminated 
this paragraph.
    The ICI suggested that the proposal define the term 
``illustration'' and clarify that it does not apply to step-by-step 
examples of how guaranteed withdrawal benefits work if such examples 
resemble similar examples contained in variable annuity prospectuses. 
Because what qualifies as an illustration will always be based on the 
facts and circumstances, FINRA does not believe it would be useful or 
appropriate to define the term ``illustration'' in the rule. FINRA also 
believes that the factual scenario presented by the ICI is best 
resolved through the Department's filings review program.
Illustrations Based on Assumed Rates of Return

General Comments

    Paragraph (g) sets forth the requirements for variable insurance 
product illustrations that employ an assumed rate of return. Regardless 
of the assumed rate used, like IM-2210-2, the proposal would require 
the illustration to show results that are net of a product's maximum 
guaranteed charges. The CAI, the ICI, NAVA, PMLI, Princor and 
Transamerica all opposed the requirement to deduct a product's maximum 
guaranteed charges, and argued that the rule should permit assumed rate 
illustrations to employ a product's current charges instead. Several 
commenters requested clarification that a firm could show an assumed-
rate illustration that deducts a product's current charges if 
accompanied by an illustration that is net of the maximum guaranteed 
charges. These commenters noted that IM-2210-2 permits such 
illustrations.
    FINRA believes that it is important to maintain IM-2210-2's 
requirement to deduct a product's maximum guaranteed charges. The 
purpose of an assumed rate illustration is to show how the product 
would perform based on certain assumptions. FINRA believes that an 
investor should have available an illustration showing what would 
happen if a product's expenses were increased to the maximum 
permissible level. FINRA, however, intends to continue to allow 
illustrations to show results that are net of the current charges if 
accompanied by results that are net of the maximum guaranteed charges. 
Accordingly, new proposed paragraph (g)(5) has been added to make this 
standard clearer.
    The CAI requested clarification that the proposal would not require 
firms to deliver a variable insurance product prospectus with an 
assumed-rate illustration. The proposal would not require delivery of a 
prospectus unless separately required by SEC rules.
    The term ``gross annual rate of return'' is used in proposed 
paragraph (g) to describe a product's hypothetical return prior to the 
deduction of expenses. New York Insurance recommended that the proposal 
be modified to add a definition of this term in proposed paragraph (a) 
to make clear that it is not net of either investment option-level 
expenses or contract-level expenses. While this description is correct, 
FINRA does not believe a definition is necessary. The proposal requires 
results based on any gross rate of return used in an assumed-rate 
illustration to be net of both the product's maximum guaranteed charges 
and either an arithmetic or weighted average of its investment option 
expenses. Accordingly, FINRA believes that these requirements eliminate 
the need for such a definition.
    PIABA commented that illustrations should show results that are net 
of all charges imposed on a customer, including insurance related 
charges. The term ``maximum guaranteed charges'' includes charges for 
insurance, so FINRA believes the proposal already meets this standard.

Single Assumed Rates of Return

    Proposed paragraph (g)(2) (renumbered as paragraph (g)(7)(A)) would 
cap the maximum positive assumed rate of return that an illustration 
may employ at 10% per annum. Currently IM-2210-2 allows assumed rate 
illustrations to employ a positive rate of return of up to 12% per 
annum. The CAI and NAVA questioned the need to reduce this maximum rate 
absent a compelling explanation. New York Insurance, on the other hand, 
commented that the maximum should be further lowered to 8% per annum. 
The ICI agreed with the 10% cap, but recommended that FINRA monitor

[[Page 65188]]

market conditions going forward to see if further changes may be 
necessary. FINRA believes that historical trends indicate that a 10% 
cap is sufficiently high to show how a product may operate in the 
future and is not inclined to raise this cap.
    The CAI also argued that paragraph (g)(7)(A) should be modified to 
allow multiple fixed-rate illustrations, such as allowing 10% per annum 
for the first 15 years and 6% thereafter. FINRA has proposed a separate 
provision (paragraph (g)(7)(C)) for multiple-rate illustrations and 
does not believe it necessary or appropriate to create a rule allowing 
multiple fixed-rate illustrations.
    Proposed paragraph (g)(2) originally stated that positive assumed 
rates of return had to be ``reasonable considering market conditions 
and the available investment options.'' The CAI objected to the 
``reasonableness'' standard, since it is impossible for firms to 
predict whether future market returns will be higher or lower. In light 
of this concern, FINRA has modified this provision (now contained in 
paragraph (g)(7)(A)) to require only that an assumed rate of return be 
reasonable in light of the investment objectives of any particular 
investment option or options that are named in the illustration.
    Lerner recommended that all illustrations be required to use the 
same low, middle and high gross annual rates of return to promote a 
level playing field. FINRA does not believe it is either necessary or 
appropriate to require illustrations to employ the same rates of 
return, since they may be used to illustrate different time periods and 
different investment strategies or options.
    Proposed paragraph (g)(3) (now renumbered as paragraph (g)(7)(B)) 
originally would have permitted an illustration to employ a negative 
assumed gross rate of return, provided that it was accompanied by 
illustrations showing results based on a 0% gross rate of return and a 
positive gross rate of return between 5% and 10% per annum. The CAI, 
Princor and Transamerica all argued that requiring an illustration 
employing a 0% gross rate of return in addition to an illustration 
employing a positive gross rate of return was unnecessary. FINRA agrees 
that showing a positive assumed gross rate of return in addition to a 
negative assumed gross rate of return is sufficient to balance the 
illustration, and accordingly the proposal has been revised to delete 
the 0% assumed rate requirement for negative assumed rate 
illustrations.

Multiple Assumed Rates of Return

    Proposed paragraph (g)(7)(C) would permit for the first time 
assumed-rate illustrations that employ the returns of a broad-based 
securities market index. The CAI, the ICI, NAVA and Transamerica all 
supported this provision, but requested clarification of what the term 
``broad-based securities market index'' means. The CAI and the ICI 
requested that FINRA substantially delay implementation of this 
provision assuming the SEC approves it given the lead time firms will 
need to revise their internal systems. JNSC recommended that this 
provision be modified to permit the use of the actual returns of 
various asset classes published by independent third parties. Lerner 
suggested that FINRA create and publish its own benchmarks to be used 
in illustrations. New York Insurance opposed this provision because of 
the risks of relying on historical performance.
    FINRA intends the term ``broad-based securities market index'' to 
refer to an index that can be used as a basis for comparison to an 
investment company's own performance in its prospectus. SEC Form N-1A 
defines the term ``broad-based securities market index'' as ``one that 
is administered by an organization that is not an affiliated person of 
the Fund, its investment adviser, or principal underwriter, unless the 
index is widely recognized and used.'' \30\ The term ``broad-based 
securities market index'' as used in paragraph (g)(7)(C) has the same 
definition. FINRA does intend to give firms sufficient time to adjust 
their internal systems to comply with this provision. FINRA does not 
agree that the actual returns of asset classes should be permitted due 
to the difficulty of verifying such data. FINRA does not wish to create 
and publish performance benchmarks for assumed-rate illustrations.
---------------------------------------------------------------------------

    \30\ SEC Form N-1A, Item 27(b)(7), Instruction 5, under the 
Investment Company Act of 1940.
---------------------------------------------------------------------------

    While FINRA recognizes New York Insurance's concerns regarding 
historical performance, FINRA believes that the use of the actual 
performance of a broad-based securities index will reduce the 
likelihood that a firm will ``game'' an illustration by selecting 
multiple assumed rates that produce the highest possible results for 
the illustration. FINRA also has added to paragraph (g)(7)(C) a 
requirement that the performance of the broad-based securities market 
index must be current as of at least the most recent calendar year 
ended prior to the date of use of the illustration.

Other Assumed-Rate Illustration Requirements

    Proposed paragraph (g)(2) would require that illustrations be 
presented in a format that is readily understandable and depicts, at a 
minimum, year-by-year account values. The CAI opposed the requirement 
to show year-by-year account values, and recommended that the rule 
permit line graphs to accompany a table. The rule would permit the use 
of line graphs; however, FINRA believes it is important for investors 
to see how a product would work on a year-by-year basis.
    Proposed paragraph (g)(4) would require an illustration to either 
reflect an arithmetic average of all investment option expenses, or 
reflect a weighted average of expenses. If a weighted average is 
employed, the illustration would have to identify the investment 
options being used and the amount of investment allocated to each 
option, and if used with more than one customer, the illustration would 
have to reflect the current actual weighted average of investment 
options held by all investors through the separate account.
    The AARP supported this standard, but recommended that it require 
delivery of a prospectus to each investor who receives the 
illustration. The CAI recommended that the provision be modified so 
that an illustration used with multiple customers could reflect the 
weighted average of expenses based on investors in a particular 
product, if the product employs a separate account used for multiple 
products. The CAI also requested clarification of what expenses must be 
deducted if an investor requests an illustration of specific fund or 
funds, and suggested that other methodologies for calculating expenses 
be allowed. The CAI, the ICI and Transamerica requested clarification 
that the current requirement to deliver an illustration based on an 
arithmetic average of expenses no longer applies with regard to 
weighted average illustrations used with multiple customers.
    FINRA believes that requiring delivery of a prospectus would not 
assist a customer in understanding an illustration. Instead, FINRA 
believes that all disclosure necessary for an investor to understand an 
illustration should appear in the illustration itself. The CAI's 
comments regarding separate accounts used with multiple products appear 
to be technical in nature and best resolved through the Department's 
filings review program rather than through rule language. If a single 
customer requested an illustration of a particular investment option or 
options,

[[Page 65189]]

the proposal would permit the illustration to be net of weighted 
average of those options' expenses. FINRA does not favor allowing other 
methods of calculating expenses, since it could result in misleading or 
inconsistent illustrations. The proposal would not require delivery of 
an arithmetic average illustration with a weighted average illustration 
that complied with the proposal's requirements.
    Paragraph (g)(6) (previously numbered paragraph (g)(8)) originally 
would have required disclosure that the illustration's purpose is to 
show how performance of the investment accounts could affect the policy 
cash value and death benefits. The CAI and New York Insurance noted 
that illustrations also are used to show how performance can affect 
other contract benefits in addition to the death benefit. FINRA has 
substituted the term ``contract benefits'' for ``death benefits'' in 
this paragraph.
Investment Analysis Tools
    Proposed paragraph (i) would allow firms to use investment analysis 
tools in connection with the offer and sale of variable insurance 
products, subject to certain conditions, including the deduction of 
maximum guaranteed charges from the results based on any assumed rates 
of return. The CAI argued that this provision should allow a firm to 
deduct current charges instead of the maximum guaranteed charges. For 
the same reasons FINRA does not agree with this comment regarding 
assumed rate illustrations, FINRA is not making this change to 
paragraph (i).
    New York Insurance recommended that the results produced by an 
investment analysis tool be subject to the assumed-rate illustration 
limitations of paragraph (g). FINRA agrees that an investment analysis 
tool should not be a vehicle to evade the requirements otherwise 
applicable to assumed-rate illustrations. Accordingly, paragraph (i) 
has been revised to provide that illustrations created through the use 
of an investment analysis tool must comply with the provisions of 
paragraph (g) and the tool may not project performance based on rates 
of return that exceed those permitted by paragraph (g).

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 proceedings 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 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number SR-FINRA-2009-070 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-FINRA-2009-070. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). 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, 100 F Street, 
NE., Washington, DC 20549, on official business days between the hours 
of 10 a.m. and 3 p.m. Copies of such filing also will be available for 
inspection and copying at the principal office of FINRA. All comments 
received will be posted without change; the Commission does not edit 
personal identifying information from submissions. You should submit 
only information that you wish to make available publicly.
    All submissions should refer to File Number SR-FINRA-2009-070 and 
should be submitted on or before December 30, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
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    \31\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.

Exhibit 2b

Alphabetical List of Written Comments Regulatory Notice 08-39 (July 
2008)

 1. Letter from Albert Akerman, David Lerner Associates, Inc. 
(``Lerner'') (September 29, 2008)
 2. Letter from Jed Bandes, Mutual Trust Co. of America Securities 
(``Mutual Trust'') (August 14, 2008)
 3. Letter from Dennis P. Beirne, People's Securities (``People's'') 
(September 23, 2008)
 4. Letter from Franklin L. Best, Jr., Penn Mutual Life Insurance 
Company (``PMLI'') (September 30, 2008)
 5. Letter from David Certner, AARP (``AARP'') (September 29, 2008)
 6. Letter from Michael P. DeGeorge, NAVA, Inc. (``NAVA'') (September 
30, 2008)
 7. Letter from Craig A. Hawley, Jefferson National Securities 
Corp.(``JNS'') (September 30, 2008)
 8. Letter from William A. Jacobson Esq., Cornell Law School Securities 
Law Clinic (``CLWLC'') (September 30, 2008)
 9. Letter from Courtney John, Transamerica Capital, Inc. 
(``Transamerica'') (September 29, 2008)
 10. Letter from Dennis P. Lauzon, State of New York Insurance 
Department (``New York Insurance'') (September 30, 2008)
 11. Letter from Ronald Nelson (``Nelson'') (August 15, 2008)
 12. Letter from Chad Oppedal, Princor Financial Services Corp. 
(``Princor'') (September 30, 2008)
 13. Letter from H. Mark Saunders (``Saunders'') (August 14,2008)
 14. Letter from Laurence S. Schultz, Public Investors Arbitration Bar 
Association (``PIABA'') (September 30, 2008)
 15. Letter from Sutherland Asbill & Brenan, Committee of Annuity 
Insurers (``Cal'') (September 30, 2008)
 16. Letter from Heather Traeger, Investment Company Institute 
(``ICI'') (September 30, 2008)

[[Page 65190]]

 17. Letter from Carl B. Wilkerson, ACLI Financial Security (``ACLI'') 
(September 30, 2008)

[FR Doc. E9-29338 Filed 12-8-09; 8:45 am]
BILLING CODE 8011-01-P