Guidance

NASD staff declines to extend tolling period to meet qualification requirements related to implementation of Title II of the Gramm-Leach-Bliley Act of 1999.

Variable annuity and variable life insurance products (collectively, “variable insurance products" or “variable products”) are being marketed and sold to a large number of investors. While variable insurance products may be appropriate investments for some investors, concerns have been raised about the sale of these products. This prompted the staffs of the Securities and Exchange Commission (“SEC” or “Commission”) and NASD (“Staff”) to conduct examinations of broker-dealers that sell variable insurance products. This report summarizes the findings of those examinations. 

Based on certain representations and compliance with the requirements of SEC Rule 17a-4(i), third party may provide recordkeeping services to its NASD member clients, such that the member clients would not be required to individually download and separately retain copies of documents required pursuant to Rule 2790(b).

In an effort to assist member firms' compliance efforts, NASD is issuing this regular communication, "Improving Examination Results." This document has two sections: "Examination Priorities" and "Frequently Found Violations," both of which relate to the Department of Member Regulation's routine examinations of firms. While each firm must establish its own compliance programs and supervisory procedures, we felt it may be helpful to share our overall priorities.

April 2004

Use of third parties to aid in compliance with NASD Rule 2790(b).

As part of its efforts to combat abusive market timing in mutual funds, the SEC intends to propose a mandatory redemption fee on short-term trades. On November 17, 2003, the SEC requested that NASD convene a working group of industry experts to consider how this initiative may be affected by the use of mutual fund omnibus accounts. This memorandum summarizes the views expressed by members of the Omnibus Account Task Force (Task Force) established by NASD.

Rule 2740 would not prohibit an underwriter in a fixed price offering from paying to another broker/dealer that is unable to participate in the underwriting syndicate an advisory fee or a referral fee to the extent that such payment does not directly or indirectly discount the fixed offering price for any purchaser in the offering.

Further interpretive advice to members concerning the sale of hedge funds.

Secondary market trading in Fidelity Nasdaq Composite Index Tracking Stock would be consistent with the requirements of NASD Rules 2110, 2420, 2830(c), (g), and (i), and Interpretive Material 2830-2.

In a letter to NASD Chairman and Chief Executive Officer Robert R. Glauber, dated January 15, 2003, former Securities and Exchange Commission (“SEC”) Chairman Harvey L. Pitt requested that NASD, joined by the Securities Industry Association (“SIA”) and the Investment Company Institute (“ICI”), convene a task force to recommend industry-wide changes to address errors and missed opportunities to provide discounts in the calculation of sales loads charged on the purchase of mutual fund shares that carry a front-end sales load.

For purposes of reporting to TRACE only, a member may enter only bona fide commissions in the "commission" field and may charge a commission only in specified transactions.

Member that serves as investment consultant and sub-administrator for certain mutual funds, but does not serve as either the principal underwriter or an investment adviser or sub-adviser to the funds, may state in its public communications that it does not offer proprietary products.

Fairness, integrity and efficiency make the U.S. capital markets the most successful in the world. In the past decade, more than 5,600 domestic and foreign enterprises raised an aggregate of over $500 billion through IPOs in U.S. markets. These IPOs served as an engine for corporate growth and active participation by all sectors of the investment community, from venture capitalists to large institutions and individual investors.

Transactions in certain medium term notes, purchased and re-sold to retail customers during the offering period, should not be reported to TRACE as set forth in Rule 6230(e)(1) because the transactions are part of a primary distribution.