

[Federal Register: September 13, 2007 (Volume 72, Number 177)]
[Notices]               
[Page 52403-52414]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13se07-89]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-56375; File No. SR-NASD-2004-183]

 
Self-Regulatory Organizations; National Association of Securities 
Dealers, Inc. (n/k/a Financial Industry Regulatory Authority, Inc.); 
Notice of Filing of Amendment Nos. 3 and 4 and Order Granting 
Accelerated Approval of the Proposed Rule, as Amended, Related to Sales 
Practice Standards and Supervisory Requirements for Transactions in 
Deferred Variable Annuities

September 7, 2007.

I. Introduction

    On December 14, 2004, the National Association of Securities 
Dealers, Inc. (``NASD'') filed with the Securities and Exchange 
Commission (``Commission''), pursuant to section 19(b)(1) of the 
Securities Exchange Act of 1934 \1\ (``Exchange Act'' or ``Act'') and 
Rule 19b-4 \2\ thereunder, proposed new Rule 2821 (``Proposed Rule 
2821'') relating to the sales practice standards and supervisory and 
training requirements applicable to transactions in deferred variable 
annuities.\3\ Proposed Rule 2821, as amended by Amendment No. 1, was 
published for comment in the Federal Register on July 21, 2005.\4\ The 
Commission received approximately 1500 comments on the proposal.\5\ 
NASD filed Amendment No. 2 on May 4, 2006, which addressed the comments 
and proposed responsive amendments. Amendment No. 2 was published for 
comment in the Federal Register on June 28, 2006.\6\ The Commission 
received approximately 1950 comments on Amendment No. 2.\7\ To further 
explain and modify certain provisions of Proposed Rule 2821 in response 
to comments, NASD filed Amendment No. 3 on November 15, 2006 and 
Amendment No. 4 on March 5, 2007. Amendment No. 4 supersedes all of the 
previous amendments in their entirety. All of the comments that the 
Commission has received are available on the Commission's Internet Web 
site (http://www.sec.gov/rules/sro.shtml). This order provides notice 

of Amendment Nos. 3 and 4 to the proposed rule and approves the 
proposed rule as amended on an accelerated basis.\8\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ On July 26, 2007, the Commission approved a proposed rule 
change filed by NASD to amend NASD's Certificate of Incorporation to 
reflect its name change to Financial Industry Regulatory Authority 
Inc., or FINRA, in connection with the consolidation of the member 
firm regulatory functions of NASD and NYSE Regulation, Inc. See 
Exchange Act Release No. 56146 (July 26, 2007); 72 FR 42190 (Aug. 1, 
2007).
    \4\ See Exchange Act Release No. 52046A (July 19, 2005); 70 FR 
42126 (July 21, 2005) (SR-NASD-2004-183).
    \5\ Approximately 1300 of these comments, primarily from 
licensed insurance professionals and variable product salespersons, 
are virtually identical. These letters are referred to herein, and 
on the list of comments on the Commission's Web site as ``Letter 
Type A.'' The Commission also received multiple copies of other 
letters, which we refer to as Letters Type B, C, D, E, F, G and H, 
below.
    \6\ See Exchange Act Release No. 54023 (June 21, 2006); 71 FR 
36840 (June 28, 2006) (SR-NASD-2004-183).
    \7\ Approximately 1700 of these comments, primarily from 
licensed insurance professionals and variable product salespersons, 
are virtually identical. These letters are referred to herein as 
``Letter Type B.''
    \8\ NASD granted consent for the Commission to approve the 
proposed rule beyond the timeframes set forth in section 19(b)(2) of 
the Act.
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II. Description of the Proposal

    Proposed Rule 2821 would create recommendation requirements 
(including a suitability obligation), principal review and approval 
requirements, and supervisory and training requirements tailored 
specifically to transactions in deferred variable annuities. It is 
intended to supplement, not replace, NASD's other rules relating to 
suitability, supervisory review, supervisory procedures, and training. 
Thus, to the extent Proposed Rule 2821 does not apply to a particular 
transaction, NASD's general rules on suitability, supervisory review, 
supervisory procedures, and training continue to govern when 
applicable.\9\ The text of the proposed rule is available on FINRA's 
Web site (http://www.finra.org), at FINRA's principal office, and at 

the Commission's Public Reference Room.
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    \9\ The general suitability obligation requires a broker-dealer 
to consider its customer's ability to understand the security being 
recommended, including changes in the customer's ability to 
understand, monitor, and make further decisions regarding securities 
over time.
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    Proposed Rule 2821 would apply to the purchase or exchange of a 
deferred variable annuity and to an investor's initial subaccount 
allocations.\10\ It

[[Page 52404]]

would not apply to reallocations of subaccounts or to subsequent 
premium payments made after the investor's initial purchase or 
exchange.\11\ It also generally would not apply when an investor's 
purchase or exchange of a deferred variable annuity is made within a 
tax-qualified, employer-sponsored retirement or benefit plan.\12\ If, 
however, a member recommends a deferred variable annuity to an 
individual plan participant, then Proposed Rule 2821 would apply to 
that purchase (or exchange) and to the initial subaccount allocations.
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    \10\ As NASD noted in Amendment No. 2, the proposed rule focuses 
on customer purchases and exchanges of deferred variable annuities, 
areas that, to date, have given rise to many of the sales practice 
abuses associated with variable annuity products. See Exchange Act 
Release No. 52046A, at 3-5 (discussing various questionable sales 
practices that NASD examinations and investigations have uncovered 
and the actions NASD has taken to address those practices). The 
proposed rule would thus cover a standalone purchase of a deferred 
variable annuity and an exchange of one deferred variable annuity 
for another deferred variable annuity. For purposes of the proposed 
rule, an ``exchange'' of a product other than a deferred variable 
annuity (such as a fixed annuity) for a deferred variable annuity 
would be covered by the proposed rule as a ``purchase.'' The 
proposed rule would not cover customer sales of deferred variable 
annuities, including the sale of a deferred variable annuity in 
connection with an ``exchange'' of a deferred variable annuity for 
another product (such as a fixed annuity). However, recommendations 
of customer sales of deferred variable annuities are covered by Rule 
2310, NASD's general suitability rule.
    \11\ NASD's general suitability rule, Rule 2310, would continue 
to apply to reallocations of subaccounts.
    \12\ Proposed Rule 2821 defines such plans as either a 
``qualified plan'' under section 3(a)(12)(C) of the Act or a plan 
that meets the requirements of Internal Revenue Code sections 
403(b), 457(b), or 457(f).
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    Proposed Rule 2821 has four main requirements. First, in order to 
recommend the purchase or exchange of a deferred variable annuity, a 
member would be required to have a reasonable basis to believe that the 
transaction is suitable in accordance with NASD's general suitability 
rule, Rule 2310.\13\ In particular the member must have a reasonable 
basis to believe that:
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    \13\ See Proposed Rule 2821(b)(1)(A).
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     The customer has been informed, in general terms, of 
various features of deferred variable annuities; \14\
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    \14\ See Proposed Rule 2821(b)(1)(A)(i). The proposed rule lists 
the following features as examples for purposes of this requirement: 
(1) Potential surrender period and surrender charge; (2) potential 
tax penalty if customers sell or redeem deferred variable annuities 
before reaching the age of 59\1/2\; (3) mortality and expense fees; 
(4) investment advisory fees; (5) potential charges for and features 
of riders; (6) the insurance and investment components of deferred 
variable annuities; and (7) market risk.
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     The customer would benefit from certain features of 
deferred variable annuities, such as tax deferred growth, 
annuitization, or a death or living benefit;\15\ and
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    \15\ See Proposed Rule 2821(b)(1)(A)(ii).
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     The particular deferred variable annuity that the member 
is recommending, the underlying subaccounts to which funds are 
allocated at the time of the purchase or exchange of the deferred 
variable annuity, and the riders and similar product enhancements are 
suitable (and in the case of an exchange, the transaction as a whole 
also is suitable) for the customer based on the information the person 
associated with the member is required to make a reasonable effort to 
obtain pursuant to subparagraph (b)(2) of the proposed rule.\16\
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    \16\ See Proposed Rule 2821(b)(1)(A)(iii).
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    Prior to recommending that a customer exchange a deferred variable 
annuity, a registered representative must not only have a reasonable 
basis to believe that the exchange is consistent with the suitability 
determinations in subparagraph (b)(1)(A) of the proposed rule, but must 
also consider whether:
     The customer would incur a surrender charge, be subject to 
the commencement of a new surrender period, lose existing benefits, or 
be subject to increased fees or charges; \17\
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    \17\ See Proposed Rule 2821(b)(1)(B)(i).
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     The customer would benefit from product enhancements and 
improvements; \18\ and
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    \18\ See Proposed Rule 2821(b)(1)(B)(ii).
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     The customer's account has had another deferred variable 
annuity exchange within the preceding 36 months.\19\
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    \19\ See Proposed Rule 2821(b)(1)(B)(iii).
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    The associated person recommending the transaction would be 
required to document these considerations and sign this documentation. 
He or she would also have to make reasonable efforts to obtain from the 
customer information regarding the customer's age, annual income, 
financial situation and needs, investment experience, investment 
objectives, intended use of the deferred variable annuity, investment 
time horizon, existing assets (including investment and life insurance 
holdings), liquidity needs, liquid net worth, risk tolerance, tax 
status, and such other information used or considered to be reasonable 
by the member or person associated with the member in making 
recommendations to customers.\20\
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    \20\ See Proposed Rule 2821(b)(2).
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    Second, a registered principal would have to review the transaction 
and determine whether he or she approves of it prior to transmitting 
the customer's application to the issuing insurance company for 
processing, but no later than seven business days after the customer 
signs the application.\21\ The registered principal may approve the 
transaction only if he or she has determined that there is a reasonable 
basis to believe that the transaction would be suitable based on all of 
the factors contained in paragraph (b) (``Recommendation 
Requirements'') of the proposed rule.\22\
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    \21\ See Proposed Rule 2821(c). NASD has determined that relief 
is needed to allow certain broker-dealers to complete their review 
of deferred variable annuity transactions as required by proposed 
NASD Rule 2821 without becoming fully subject to Exchange Act Rule 
15c3-3 and being required to maintain higher levels of net capital 
in accordance with Exchange Act Rule 15c3-1. Consequently, NASD has 
requested relief from Rules 15c3-3 and 15c3-1 for these broker-
dealers. In conjunction with the Commission's approval or proposed 
rule 2821, it is also granting exemptions from Rules 15c3-1 and 
15c3-3 of the Exchange Act to allow NASD members to comply with 
proposed Rule 2821 without becoming fully subject to Exchange Act 
Rule 15c3-3 and being required to maintain higher levels of net 
capital in accordance with Rule 15c3-1.
    NASD initially submitted a request for relief to the staff prior 
to the consolidation of its member firm regulatory functions with 
NYSE Regulation, Inc. This request was replaced by a subsequent 
request from the consolidated entity, FINRA. For readability, this 
second request is referred to as an NASD request throughout this 
order.
    \22\ See Proposed Rule 2821(c).
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    For purposes of reviewing deferred variable annuity purchases and 
exchanges, a registered principal must treat all transactions as if 
they have been recommended.\23\ However, if a registered principal 
determines that a transaction, which is not suitable based on the 
factors contained in paragraph (b), was not recommended, he or she may 
nonetheless authorize the processing of it if the customer has been 
informed of the reason why the transaction has not been approved and 
the customer affirms that he or she wants to proceed with the 
transaction.\24\
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    \23\ Id.
    \24\ Id.
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    The registered principal that reviews the transaction must document 
and sign the determinations that the proposed rule requires him to 
make.\25\ He or she must complete this documentation regardless of 
whether he or she approves, rejects, or authorizes the transaction.\26\
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    \24\ Id.
    \25\ Id.
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    Third, Proposed Rule 2821 would require members to develop and 
maintain supervisory procedures that are reasonably designed to achieve 
compliance with the proposed rule.\27\ Members would be required to 
implement surveillance procedures to determine if associated persons 
``have rates of effecting deferred variable annuity exchanges that 
raise for review whether such rates of exchanges evidence conduct 
inconsistent with the applicable provisions of [the rule], other 
applicable NASD rules, or the federal securities laws (`inappropriate 
exchanges').'' \28\ Members would also be required to have policies and

[[Page 52405]]

procedures reasonably designed to implement corrective measures to 
address inappropriate exchanges and the conduct of associated persons 
who engage in inappropriate exchanges.\29\
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    \27\ See Proposed Rule 2821(d).
    \28\ Id.
    \29\ Id.
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    Fourth, Proposed Rule 2821 would require members to develop and 
implement training programs that are tailored to educate registered 
representatives and registered principals on the material features of 
deferred variable annuities and the requirements of the proposed 
rule.\30\
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    \30\ See Proposed Rule 2821(e).
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III. Summary of Comments on Amendment No. 2

    In its solicitation of comments on Amendment No. 2, the Commission 
stated that it would consider the comments it previously received,\31\ 
and that commenters could reiterate or cross-reference previously 
submitted comments.\32\ The Commission has considered all of the 
comments it received, including commenters' reiterations of and cross-
references to previously submitted comments. While the summary below 
refers to some comments previously submitted, it primarily discusses 
new comments on portions of the proposed rule that Amendment No. 2 did 
not change and comments on those provisions of the proposed rule that 
Amendment No. 2 modified. It also discusses comments received in 
response to Amendment No. 1 that are relevant to the timing of 
principal review provision in paragraph (c) of the proposed rule.
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    \31\ See Exchange Act Release No. 54023 (June 21, 2006); 71 FR 
at 36846 n.84.
    \32\ Id.
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A. General Comments

    A number of commenters reiterated their general opposition to the 
proposed rule, viewing it as unnecessary, arguing that NASD has not 
demonstrated a need for it, and stating that strong enforcement against 
broker-dealer sales practice abuses provides the best deterrent to 
negative market conduct.\33\ Some commenters also stated that existing 
NASD rules and the prospectus adequately inform and protect 
investors.\34\
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    \33\ See, e.g., Letters from Stephen A. Batman, CEO, 1st Global 
Capital Corp. (July 19, 2006) (``1st Global Letter II''); Carl B. 
Wilkerson, Vice President and Chief Counsel, American Counsel of 
Life Insurers (July 19, 2006) (``ACLI Letter IV''); Gary A. Sanders, 
Senior Counsel, Law and Government Relations, National Association 
of Insurance and Financial Advisors and Thomas F. Korb, Vice 
President of Policy and Public Affairs, Association for Advanced 
Life Underwriting (July 19, 2006) (``NAIFA/AALU Letter II''); Letter 
Type B. See also Letter Type D. Unless otherwise noted, all letters 
are addressed to the Commission.
    \34\ See, e.g., Letters from Dale E. Brown, CAE, Executive 
Director and CEO, Financial Services Institute (July 19, 2006) 
(``FSI Letter II''); Ari Burstein, Associate Counsel, Investment 
Company Institute (July 19, 2006) (``ICI Letter II''); 1st Global 
Letter II; ACLI Letter IV; Letter Type B. Two commenters suggested 
that the Commission delay action on the proposed rule until there is 
some resolution to the Commission's point-of-sale proposal. See ACLI 
Letter IV; FSI Letter II. Another commenter stated that it is not 
clear how the proposed rule would work with the Commission's point-
of-sale proposal, especially with regard to the disclosure of 
material features. See Letter from W. Thomas Conner and Eric A. 
Arnold, Sutherland Asbill and Brennan LLP on behalf of Committee of 
Annuity Insurers (July 19, 2006) (``CAI Letter II'').
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    A few commenters suggested that the proposed rule must take into 
account an estimate of its competitive and economic impact and asserted 
that the proposed rule must be subject to a cost/benefit analysis.\35\ 
One commenter took the position that the proposed rule would impose 
economic and competitive burdens upon broker-dealers.\36\ The commenter 
stated that the rule would require expensive new systems and operation 
changes that could initially total more than $200,000 for broker-
dealers to implement and monitor enterprise-wide.\37\ It also 
maintained that the ongoing costs of complying with the proposed rule 
would be significant and immeasurable.\38\ That commenter did not, 
however, provide any specific information about the system changes it 
foresaw, or how it arrived at its $200,000 estimate.
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    \35\ See Letter from Joan Hinchman, Executive Director, 
President and CEO, National Society of Compliance Professionals, 
Inc. (July 19, 2006) (``NSCP Letter''); ACLI Letter IV; NAIFA/AALU 
Letter II.
    \36\ ACLI Letter IV.
    \37\ Id.
    \38\ Id.
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    Some commenters stated that the proposed rule would impose a burden 
on competition.\39\ One of these commenters stated that the proposed 
rule would disparately impact smaller companies without state-of-the-
art technological resources.\40\ In its view, small to mid-sized 
companies may be forced out of the annuity market, thereby reducing 
competition and eliminating consumer options.\41\ One commenter posited 
three ways in which the proposed rule would burden competition, 
stating:
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    \39\ See e.g., ACLI Letter IV; NAIFA/AALU Letter II; NSCP 
Letter.
    \40\ NSCP Letter.
    \41\ Id.
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     The proposed rule would disrupt enterprise-wide uniformity 
of compliance procedures. Compliance with the proposed rule would cost 
more than compliance procedures for other products, and thus would make 
variable annuities more expensive to sell than other products.
     Conversion to the proposed rule would provide openings for 
inadvertent and transitional violations and may dampen distributors' 
enthusiasm for selling a product with suitability and supervision 
standards that are different from all other securities.
     Other products have had greater incidences of disciplinary 
actions and do not have specific supervision and suitability standards 
``that would dampen distributors' sales enthusiasm for fear of 
regulatory reprisals or technical violations.'' \42\
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    \42\ ACLI Letter IV. Another commenter agreed that the proposed 
rule would place those that sell variable annuities at a competitive 
disadvantage in comparison with those who market other types of 
investments. See NAIFA/AALU Letter II. Two commenters also stated 
that adopting product specific suitability requirements and 
supervisory procedures would inhibit sales because registered 
representatives would be less inclined to sell the product. See 
Letter from Michael P. DeGeorge, General Counsel, National 
Association for Variable Annuities (July 19, 2006) (``NAVA Letter 
III''); FSI Letter II.
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    This commenter also argued that the rule targets deferred variable 
annuities in a discriminatory and burdensome fashion without 
appropriate rationale.\43\
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    \43\ ACLI Letter IV.
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    Some commenters stated that implementation of the proposed rule 
would have unintended consequences.\44\ For example, two commenters 
asserted that the proposed rule would raise barriers to access for 
investors who could benefit from owning a deferred variable 
annuity.\45\ A few commenters also believed that the product-specific 
requirements of the proposed rule would signal to investors that 
something is wrong with the product.\46\ One commenter stated that the 
proposed rule would cause expenses and fees to rise, which in turn 
would lead consumers to look to other, less expensive investment 
products that may not be as appropriate for their needs.\47\
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    \44\ See, e.g., Letter from Rick Dahl, CCO, Sorrento Pacific 
Financial LLC (July 19, 2006) (``Sorrento Letter''); FSI Letter II; 
NAVA Letter III; NAIFA/AALU Letter II.
    \45\ See FSI Letter II; Sorrento Letter.
    \46\ See Letter from W. Burk Rosenthal, President, Rosenthal 
Retirement Planning, LP (July 19, 2006); FSI Letter II; NAVA Letter 
III.
    \47\ See NAIFA/AALU Letter II.
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    NASD responded to concerns regarding the need for the proposed 
rule, the process by which it developed and revised the proposed rule, 
and the statutory requirements for its rulemaking in a letter to the 
Commission.\48\ With respect to concerns

[[Page 52406]]

that the proposed rule is not necessary, NASD reiterated that its 
examinations, investigations, and informal discussions with its members 
have uncovered numerous instances of questionable sales practices in 
connection with the purchase or exchange of deferred variable 
annuities, including unsuitable recommendations, and misrepresentations 
and omissions.\49\ It also stated that member supervision and training 
procedures are inadequate.\50\ NASD noted that these problems stem from 
the unique complexities of deferred variable annuities, which can cause 
confusion both for the individuals who sell them and for the customers 
who purchase or exchange them.\51\ Despite issuing Notices to Members, 
Regulatory and Compliance Alerts, and Investor Alerts, NASD found that 
these problems continue to exist.\52\ NASD stated that recent joint 
reviews with the Commission, as well as NASD examinations and 
enforcement actions, demonstrate that an informal approach has not been 
sufficiently effective at curbing the sales practice abuses in this 
area.\53\
    NASD also discussed its ``measured approach'' to the rulemaking 
process.\54\ After NASD determined that a rule specific to deferred 
variable annuities was necessary and appropriate, it issued Notice to 
Members 04-45 (June 2004) to solicit comments from the public prior to 
submitting the proposed rule to the Commission.\55\ In addition, NASD 
sought input on the proposal from five NASD standing committees, 
including two committees with subject matter expertise in variable 
annuities.\56\ NASD Regulation, Inc.'s Board of Directors then approved 
the proposal and NASD's Board of Governors had an opportunity to review 
it.\57\ NASD modified the proposed rule in light of comments it 
received from all of these sources prior to filing it with the 
Commission.\58\
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    \48\ See Letter from James S. Wrona, Associate Vice President, 
NASD (Aug. 31, 2006) (``NASD Response Letter'').
    \49\ Id. at 2.
    \50\ Id.
    \51\ Id.
    \52\ Id.
    \53\ Id.
    \54\ Id. at 3.
    \55\ Id.
    \56\ Id. at 4.
    \57\ Id. at 4. NASD noted that its Board of Governors is 
composed of both industry and non-industry members and that one 
member must be a representative of an insurance company. Id. at 4, 
nt. 6. Similarly, NASD Regulation, Inc.'s Board of Directors is 
composed of both industry and non-industry members, and one member 
must be a representative of an insurance company or an affiliated 
NASD Member. Id. at 4, nt. 6.
    \58\ Id. at 4.
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    In addition, NASD stated that nothing in section 15A, Section 19, 
or any other provision of the Act requires it to generate a competitive 
impact statement or otherwise engage in a cost/benefit analysis.\59\ It 
also noted that, as required under section 19(b)(1) of the Act,\60\ 
NASD submitted to the Commission a concise general statement of the 
basis and purpose of the proposed rule.\61\
    As discussed in Part IV below, in approving a proposed NASD rule, 
the Commission must find that the rule is consistent with the 
requirements of sections 15A(b)(6) and 15A(b)(9) of the Act. Section 
15A(b)(6) requires, among other things, the rules of a national 
securities association to 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.\62\ Section 15A(b)(9) provides that proposed rules may 
not create a ``burden on competition not necessary or appropriate in 
furtherance of the purposes of [the Act].'' \63\ NASD addressed the 
consistency of the proposed rule with these requirements, stating:
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    \59\ Id.
    \60\ 15 U.S.C. 78s(b)(1).
    \61\ NASD Response Letter at 4.
    \62\ 15 U.S.C. 78o-3(b)(6). See also 15 U.S.C. 78c(f) (the 
Commission must consider whether the action will promote efficiency, 
competition and capital formation when it is required to consider 
whether an action is necessary or appropriate in the public 
interest).
    \63\ 15 U.S.C. 78o-3(b)(9).

    NASD believes that the proposed rule will enhance firms' 
compliance and supervisory systems and provide more comprehensive 
and targeted protection to investors regarding fraud and 
manipulative acts, promote just and equitable principles of trade, 
and increase investor protection * * *. Like all regulation, NASD's 
rules often impose compliance obligations on the regulated entities. 
In every case, the compliance burdens associated with a new rule 
will vary from firm to firm depending on the firm's customer base, 
business model, and a variety of other factors. Section 15A(b)(9) of 
the Act does not, therefore, require that NASD rules impose no 
economic burden on NASD members or burden on competition, but rather 
that any such burdens are necessary and appropriate to further the 
purposes of the Act * * *. NASD believes that the proposed rule is 
consistent with, and promotes the goals of the Act.\64\
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    \64\ NASD Response Letter at 4-5.
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B. Comments on Proposed Rule 2821(b)--Recommendation Requirements

1. Comments on Proposed Rule 2821(b)(1)(A)--Renumbered Proposed Rule 
2821(b)(1)(A)(i)
    As proposed in Amendment No. 2, Proposed Rule 2821(b)(1)(A) would 
have required registered representatives to have a reasonable belief 
that the customer has been informed of the material features of 
deferred variable annuities in general prior to recommending a 
particular variable annuity to a customer.\65\ One commenter stated 
that the rule should clarify what constitutes the material features of 
a deferred variable annuity, and should have a safe harbor to protect 
good faith attempts to disclose the required information.\66\ Some 
commenters reiterated their support for a plain-English disclosure 
document to be provided to investors in addition to the prospectus.\67\
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    \65\ In response to Amendment No. 1, commenters stated this 
provision would amount to a de facto requirement to provide written 
disclosure to customers. See, e.g., Letters from Beth L. Climo, 
Executive Director, American Bankers Insurance Association/ABA 
Securities Association (Sept. 20, 2005); Carl B. Wilkerson, Vice 
President and Chief Counsel, America Council of Life Insurers (Sept. 
19, 2005) (``ACLI Letter II''), Thomas M. Yacovino, Vice President, 
A.G. Edwards & Sons, Inc. (Sept. 20, 2005); Roger C. Ochs, 
President, HD Vest Financial Services (Sept. 20, 2005); Michael P. 
DeGeorge, General Counsel, National Association for Variable 
Annuities (Sept. 19, 2005) (``NAVA Letter II''); Thomas R. Moriarty, 
President, Intersecurities, Inc. (Sept. 16, 2005) (``Intersecurities 
Letter''); Ira D. Hammerman, Senior Vice President and General 
Counsel, Securities Industry Association (Sept. 19, 2005) (``SIA 
Letter I''); Ronald C. Long, Senior Vice President, Wachovia 
Securities, LLC (Sept. 19, 2005) (``Wachovia Letter''). Commenters 
also asserted that this disclosure, along with the other disclosures 
already provided to investors who purchase or exchange deferred 
variable annuities, would be redundant and would overwhelm 
investors. See e.g., Letter from Leesa M. Easley, Chief Legal 
Officer, World Group Securities, Inc. (Sept.8, 2005); ACLI Letter 
II; Intersecurities Letter; NAIFA/AALU Letter II; NAVA Letter II; 
SIA Letter I.
    \66\ FSI Letter II.
    \67\ See, e.g., Letters from Patricia Struck, President, North 
American Securities Administrators Association (July 21, 2006) 
(``NASAA Letter II''); Jill I. Gross, Director of Advocacy, Pace 
Investor Rights Project (July 19, 2006) (``Pace Letter II''); Robert 
S. Banks, Jr., President, Public Investors Arbitration Bar 
Association (July 20, 2006).
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    The substance of this provision remained the same in Amendment No. 
3, but in response to comments NASD explicitly stated that the type of 
disclosure required is generic and not specific to the particular 
deferred variable annuity being recommended. The provision now provides 
that the member or person associated with the member must have a 
reasonable basis to believe that ``the customer has been informed, in 
general terms, of various features of deferred variable annuities * * 
*.
2. Comments on Proposed Rule 2821(b)(1)(B)--Renumbered Proposed Rule 
2821(b)(1)(A)(ii)
    As proposed in Amendment No. 2, Proposed Rule 2821(b)(1)(B) would 
have required a registered representative to

[[Page 52407]]

have a reasonable basis to believe that a customer would benefit from 
the unique features of a deferred variable annuity prior to 
recommending the purchase or exchange of one. Amendment No. 2 included 
tax-deferred growth, annuitization and death benefits as a non-
exhaustive list of unique features.
    Some commenters stated that the standard should be that the 
customer ``could'' benefit from the features because stating that the 
customer would benefit implies a level of certainty and guarantee that 
cannot be known at the time of the purchase or exchange.\68\ Other 
commenters also suggested deleting the modifier ``unique,'' stating 
that the features NASD lists as examples are not unique to deferred 
variable annuities.\69\ In the alternative, one of these commenters 
suggested that NASD expand the list of features it gives as examples to 
include features such as living benefits.\70\
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    \68\ See, e.g., Letter from Ira D. Hammerman, General Counsel, 
Securities Industry Association (July 19, 2006) (``SIA Letter II''); 
ACLI Letter IV; NAVA Letter III. These commenters noted that this 
comment is also applicable to Proposed Rule 2821(c)(1)(A). See supra 
note 120.
    \69\ See, e.g., ACLI Letter IV; CAI Letter II; FSI Letter II; 
NAVA Letter III. These commenters noted that this comment is also 
applicable to Proposed Rule 2821(c)(1)(A). See supra note 120.
    \70\ CAI Letter II.
---------------------------------------------------------------------------

    NASD agreed that some other products have features similar to those 
of a deferred variable annuity, and in Amendment No. 2 deleted the 
reference to ``unique.'' NASD also adopted commenters' suggestion to 
include ``living benefits'' in the list of features and modified the 
proposed rule accordingly in Amendment No. 3.
3. Comments on Proposed Rule 2821(b)(2)
    The proposed rule would require registered representatives to make 
reasonable efforts to obtain a variety of information about a customer, 
including age, financial situation and needs, liquid net worth and 
intended use of the deferred variable annuity, prior to recommending a 
purchase or exchange of a deferred variable annuity to that 
customer.\71\ A number of commenters raised interpretive issues about 
or questioned the relevance of particular information.\72\ NASD 
declined to amend this provision in response to these comments.
---------------------------------------------------------------------------

    \71\ In response to Amendment No. 1, some commenters urged NASD 
to eliminate this provision, stating that NASD Rules 2310 and 3110, 
as well as Rule 17a-3(a)(17)(i)(A) under the Act, should govern the 
information that members are required to gather in making 
recommendations to purchase or exchange deferred variable annuities. 
See e.g., Letters from Daniel A. Riedl, Senior Vice President and 
Chief Operating Officer, Northwestern Mutual Investment Services 
(Sept. 16, 2005) (``NMIS Letter''); M. Shawn Dreffein, President and 
Chief Executive Officer, National Planning Holdings, Inc. (Sept. 9, 
2005); John L. Dixon, President, Pacific Select Distributors, Inc. 
(Sept. 16, 2005); NAVA Letter II.
    \72\ Three commenters stated that the proposed rule should not 
require a registered representative to obtain information if the 
customer declines to provide it upon request. Letter from Kerry 
Cunningham, Head of Risk Management, ING Advisors Network (July 20, 
2006) (``ING Advisors Letter II''); ACLI Letter IV; FSI Letter II. 
One commenter stated that the information should be obtained during 
the sales process and not necessarily before any recommendation is 
made. ING Advisors Letter II. One commenter stated that the 
registered representative should make a reasonable effort to 
determine overall investment objectives but not intended use. Id. A 
number of commenters questioned the difference between the intended 
use of a deferred variable annuity and the customer's investment 
objective. See, e.g., Letters from Timothy J. Lyle, Senior Vice 
President and Chief Compliance Officer, Contemporary Financial 
Solutions (July 19, 2006) (``Contemporary Financial Letter''); 
Timothy J. Lyle, Senior Vice President and Chief Compliance Officer, 
Mutual Service Corporation (July 19, 2006) (``Mutual Service Letter 
II''); FSI Letter II; ING Advisors Letter II. Some commenters 
suggested that a customer's life insurance holdings are not relevant 
to a deferred variable annuity suitability analysis. See, e.g., CAI 
Letter II; Contemporary Financial Letter; FSI Letter II; Mutual 
Service Letter II; NAVA Letter III; Sorrento Letter; SIA Letter II.
---------------------------------------------------------------------------

4. Comments on Proposed Rule 2821(c)--Principal Review and Approval
a. General Comments
    As proposed in Amendment No. 2, the principal review and approval 
requirements of paragraph (c) would have applied to both recommended 
and non-recommended transactions.\73\ Commenters stated that the 
factors a registered principal considers should adequately reflect the 
differences between recommended and non-recommended transactions.\74\ 
These commenters noted that if a transaction is not recommended, a 
principal may not have information regarding a customer's overall 
investment portfolio and would need to request that information from 
the customer.\75\
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    \73\ In response to Amendment No. 1, some commenters objected to 
requiring principal review of transactions that are not recommended. 
See, e.g., Letters from Frances M. Stadler, Deputy Senior Counsel, 
Investment Company Institute (Sept. 19, 2005) (``ICI Letter''); 
Henry H. Hopkins, Darrell N. Braman and Sara McCafferty, T. Rowe 
Price Investment Securities, Inc. (Sept. 19, 2005) (``T. Rowe Price 
Letter''); NMIS Letter. One commenter noted that the information 
that would be needed for a principal review is not currently 
required to be collected for non-recommended annuity transactions. 
See T. Rowe Price Letter. Some commenters also stated that requiring 
review for non-recommended transactions would allow principals to 
second guess investors' decisions. See, e.g., ICI Letter; NMIS 
Letter.
    \74\ See Letter from Darrell N. Braman, Vice President and 
Associate Legal Counsel and Sarah McCafferty, Vice President and 
Associate Legal Counsel, T. Rowe Price Associates, Inc. (July 19, 
2006) (``T. Rowe Price Letter II''); ICI Letter II.
    \75\ ICI Letter II; T. Rowe Price Letter II.
---------------------------------------------------------------------------

    In Amendment No. 3, NASD noted some commenters stated that 
customers should be free to decide whether they want to purchase a 
deferred variable annuity, and thus the proposed rule's principal 
review requirements should not apply to non-recommended 
transactions.\76\ NASD agreed that a fully informed customer should be 
able to make his or her own investment decision and modified this 
portion of the proposed rule. As amended, a registered principal ``may 
authorize the processing [of a non-recommended transaction] if the 
registered principal determines that the transaction was not 
recommended and that the customer, after being informed of the reason 
why the registered principal has not approved the transaction, affirms 
that he or she wants to proceed with the purchase or exchange of the 
deferred variable annuity.'' \77\
---------------------------------------------------------------------------

    \76\ Amendment No. 3 is available on NASD's Web site at http://www.finra.org/web/groups/rules_regs/documents/rule_filing/p017909.pdf
.

    \77\ See Proposed Rule 2821(c).
---------------------------------------------------------------------------

    Two commenters took the position that the supervisory requirements 
of the proposed rule would run counter to established legal principles 
and the rules, systems, and divisions of responsibility already in 
place.\78\ One of these commenters stated that the proposed rule would 
impose affirmative duties upon supervisory and compliance personnel to 
make individualized suitability determinations, in contravention of the 
letter and spirit of section 15(b)(4)(E) of the Act.\79\
---------------------------------------------------------------------------

    \78\ See NAIFA/AALU Letter II; NSCP Letter. In response to 
Amendment No. 1, several commenters stated that the proposed 
principal review requirement was unduly duplicative of NASD Rule 
3110. See Letters from Deirdre B. Koerick, Vice President, Lincoln 
Investment Planning, Inc. (Sept. 19, 2005); Jennifer B. Sheehan, 
Assistant Vice President and Counsel, Massachusetts Mutual Life 
Insurance Comp. (Sept. 19, 2005); ACLI Letter IV; NAVA Letter II; 
SIA Letter II.
    \79\ NSCP Letter.
---------------------------------------------------------------------------

    Another commenter stated that the proposed rule should provide 
specific standards for principal review of age, liquidity needs, and 
the dollar amount involved.\80\ In that commenter's view, permitting 
firms to set their own standards would invite abuse.\81\ NASD's initial 
filing \82\ with the Commission and Amendment No. 1 \83\ would have

[[Page 52408]]

required members to establish standards with respect to a variety of 
factors, including the customer's age and the extent to which the 
amount of money invested in the deferred variable annuity exceeds a 
stated percentage of the customer's net worth. NASD stated in Amendment 
No. 2 that ``while conceptually appealing, the establishment of 
specific thresholds would unnecessarily limit a firm's discretion in 
establishing procedures that adequately address its overall operations. 
NASD did not intend to require a firm to reject all deferred variable 
annuity transactions involving person over a particular age or dollar 
amounts over a particular level. Rather, NASD intended only that 
principals consider the highlighted factors as part of their review, 
which is a facts and circumstances inquiry.'' \84\
---------------------------------------------------------------------------

    \80\ Pace Letter II.
    \81\ Id.
    \82\ NASD's initial filing is available at http://www.finra.org/web/groups/rules_regs/documents/rule_filing/p012780.pdf
.

    \83\ See supra note 4.
    \84\ Amendment No. 2 is available on NASD's Web site at http://www.finra.org/web/groups/rules_regs/documents/rule_filing/p016480.pdf
.

---------------------------------------------------------------------------

b. Comments on the Timing of Principal Review
    Amendment No. 2 would have required registered principals to review 
all purchases and exchanges of deferred variable annuities no later 
than two business days following the date when the customer's 
application is transmitted to the issuing insurance company.\85\ Two 
commenters stated that the basis for the two-day timeframe is arbitrary 
and has not been explained or justified.\86\ A few commenters viewed 
the proposed rule as prioritizing speed over diligence without adequate 
justification.\87\ One commenter stated that the timeframe was intended 
to allow principals to catch unsuitable sales before a contract has 
been issued, but contracts may be issued before the principal's review 
is completed even under the revised timeframe.\88\ One commenter stated 
that ``free look'' provisions that are available under some states'' 
insurance laws offer a greater opportunity to redress unsuitable 
sales.\89\
---------------------------------------------------------------------------

    \85\ Pursuant to Amendment No. 1, registered principals would 
have been required to review all purchases and exchanges prior to 
transmitting a customer's application to the issuing insurance 
company for processing.
    \86\ See ACLI Letter IV; FSI Letter II.
    \87\ See, e.g., FSI Letter II; NAIFA/AALU Letter II; NSCP 
Letter. Another commenter stated that difficulty complying with the 
timeframe would force some broker-dealers to cancel contracts once 
the insurance company has already issued them. See CAI Letter II.
    \88\ CAI Letter II.
    \89\ ACLI Letter IV. In NASD's initial filing with the 
Commission, it disagreed with commenters who suggested that state-
required ``free look'' periods make early principal review 
unnecessary. NASD explained that a ``free look'' period allows the 
customer to terminate the contract without paying any surrender 
charges and receive a refund of the purchase payments or the 
contract value, as required by applicable state law. Free-look 
periods, which vary by state law, typically range from ten to thirty 
days. NASD went on to state that allowing a suitability analysis to 
be reviewed by a principal long after an insurance company issues a 
deferred variable annuity contract would be inconsistent with an 
adequate supervisory system and would make it difficult for a member 
to quickly identify problematic trends. NASD's initial filing is 
available on its Web site at http://www.finra.org/web/groups/rules_regs/documents/rule_filing/p012780.pdf
.

---------------------------------------------------------------------------

    Numerous commenters stated that it would be difficult to comply 
with the revised timeframe.\90\ Two commenters remarked that the 
supervisory review timeframe does not take into account the varied 
business models of member firms.\91\ These commenters stated that in 
some instances, the registered principal who reviews transactions is 
stationed at the issuing insurance company.\92\ In those instances, the 
commenters stated that those individuals might not be able to serve as 
the reviewing principal because the triggering event is the 
transmission to the insurance company.\93\ One commenter also noted 
that the proposed rule would not accommodate instances in which the 
application is transmitted to the issuing insurance company and the 
member firm simultaneously.\94\
---------------------------------------------------------------------------

    \90\ See, e.g., CAI Letter II; Contemporary Financial Letter; 
FSI Letter II; ING Advisors Letter II; Mutual Service Letter II; 
NAVA Letter III; NSCP Letter; Sorrento Letter.
    \91\ See NSCP Letter; T. Rowe Price Letter II.
    \92\ Id.
    \93\ Id.
    \94\ NSCP Letter. This commenter noted that when this occurs, 
the application is reviewed by the insurance company and the member 
firm simultaneously.
---------------------------------------------------------------------------

    Commenters stated that it would be especially difficult to comply 
with the proposed timeframe when the principal needs to get additional 
information from the customer, registered representative, or Office of 
Supervisory Jurisdiction (``OSJ'') manager.\95\ One commenter stated 
that fear of missing the deadline may discourage principals from 
seeking this additional information.\96\ Another commenter suggested 
that a review should be required to take place no later than two 
business days following the date the member transmits the application 
or no later than two business days after receipt by the insurance 
company to accommodate instances in which the customer sends the 
application directly to the insurance company.\97\
---------------------------------------------------------------------------

    \95\ See, e.g., CAI Letter II; Contemporary Financial Letter; 
FSI Letter II; ING Advisors Letter II; Mutual Service Letter II; 
NAVA Letter III; NSCP Letter; Sorrento Letter.
    \96\ CAI Letter II.
    \97\ T. Rowe Price Letter II.
---------------------------------------------------------------------------

    In Amendment No. 4, NASD modified the proposed rule to further 
address these comments.\98\ As amended, the proposed rule would require 
a principal to review the transaction prior to transmitting a 
customer's application to the issuing insurance company for processing, 
but no later than seven business days after the customer signs the 
application.\99\
---------------------------------------------------------------------------

    \98\ NASD also amended the timing or principal review 
requirement in Amendment No. 3. That amendment would have required 
principals to review the transaction no later than two business days 
after the application was sent to the issuing insurance company if 
no additional contact was necessary with the customer or the 
registered representative. If additional contact was needed with 
either the customer or the registered representative, then review 
would have had to be completed within five business days of the 
application being sent to the issuing insurance company. The 
Commission received several comments on this timing provision, all 
of which are available on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml.
) Commenters stated that the limited 

review period in Amendment No. 3 was problematic and arbitrary. 
These commenters also suggested requiring principal review to be 
completed within a reasonable time period, not to exceed the 
expiration of the free look period, following the date the broker-
dealer transmits the application to the issuing insurance company. 
See e.g., Letter from Dale E. Brown, Executive Director and CEO, 
Financial Services Institute (Mar. 5, 2007) (``FSI Letter III''); 
Letters Type E and F.
    Comments addressing subparagraph (b)(1)(A) of Amendment No. 3 
stated that requiring registered representatives to ``determine'' 
whether a transaction was suitable, rather than having a 
``reasonable basis to believe'' it, raised the bar for suitability 
determinations. See e.g., FSI Letter III and Letters Type E and F. 
In Amendment No. 4, NASD revised this language to require registered 
representatives to have ``a reasonable basis to believe'' that the 
deferred variably annuity is suitable.
    Commenters also stated the reference in subparagraph 
(b)(1)(A)(i) to the ``various'' features of deferred variable 
annuities created an ``unacceptable level of ambiguity'' and that 
the prior proposal's use of ``material'' features was preferable. 
See e.g., FSI Letter III and Letters Type E and F.
    \99\ In response to Amendment No. 4, commenters requested that 
the Commission seek additional comment on the proposed rule. Letter 
from Clifford Kirsch, Sutherland Asbill and Brennan LLP on behalf of 
Committee of Annuity Insurers (April 9, 2007) (``CAI Letter III''); 
Letters Type G and H. One commenter stated that commenters have not 
had an opportunity to address whether Amendment No. 4 causes any 
unintended consequences regarding the safeguarding of customer funds 
at the broker-dealer for as many as seven days and to provide 
feedback regarding the contours of the proposed no-action relief 
from Exchange Act Rules 15c3-1 and 15c3-3. CAI Letter III. See also 
infra notes 101-112 and accompanying text.
---------------------------------------------------------------------------

    One commenter addressed the safeguarding of customer funds during 
the principal review and stated that ``clarification is needed 
regarding the degree of flexibility afforded to firms with respect to 
the safekeeping of customer funds during the review period. Rather than 
dictating specific procedures, firms should be permitted

[[Page 52409]]

to design procedures tailored to their business model.''\100\ Exchange 
Act Rule 15c3-3 requires broker-dealers to safeguard customer funds and 
securities. While Rule 15c3-3 requires that a broker-dealer promptly 
forward checks and include as a credit in the reserve formula all 
customer free credit balances, it does not specify any specific 
procedures that a broker-dealer must use to be in compliance with the 
rule. Rather, it allows a broker-dealer to tailor its procedures to its 
particular business model. NASD Rule 2821 will not affect the 
applicability of Exchange Act Rule 15c3-3 with respect to the 
safeguarding of customer funds.
---------------------------------------------------------------------------

    \100\ CAI Letter III.
---------------------------------------------------------------------------

    The Commission also received comments on the timeframe for 
principal review proposed in Amendment No. 4.\101\ Some commenters 
addressed NASD's requested no-action relief \102\ and highlighted 
related implementation issues.\103\
---------------------------------------------------------------------------

    \101\ Letter from Eric A. Arnold and Clifford E. Kirsch, 
Sutherland Asbill and Brennan LLP on behalf of Committee of Annuity 
Insurers (May 24, 2007) (``CAI Letter IV''); Letters Type G and H.
    \102\ See supra note 21.
    \103\ See CAI Letter IV.
---------------------------------------------------------------------------

    One commenter addressed situations in which an insurer's contract 
issuance unit is physically resident at the same location as one of the 
insurer's captive broker-dealer offices, and both areas share personnel 
with one another.\104\ It asked for clarification of whether receipt of 
customer applications by broker-dealer personnel for principal review 
in these co-located situations would be considered a transmittal to the 
issuing insurance company for processing under proposed Rule 
2821(c).\105\ NASD responded by stating that in these situations ``[it] 
would consider the application ``transmitted'' to the insurance company 
only when the broker-dealer's principal, acting as such, has approved 
the transaction, provided that the affiliated broker-dealer ensures 
that arrangements and safeguards exist to prevent the insurance company 
from issuing the contract prior to principal approval by the broker-
dealer.\106\
---------------------------------------------------------------------------

    \104\ Id.
    \105\ Id.
    \106\ See Letter from James S. Wrona, Associate Vice President, 
FINRA (Aug. 10, 2007).
---------------------------------------------------------------------------

    The Commission believes that NASD can address implementation 
issues, to the extent they arise, during the proposed six month 
implementation period. Notably, the revised timeframe in Amendment No. 
4 is substantially similar to the timeframe that NASD proposed and that 
the Commission published for comment in Amendment No. 1, which would 
have required a principal to review a transaction prior to sending the 
application to the insurance company for processing. The Commission 
received numerous comments on the timing of principal review provision 
as it was proposed in Amendment No. 1.\107\ While some commenters 
supported it because they believed it would give principals sufficient 
time for a thorough review and provide greater assurances that 
unsuitable transactions would not be consummated,\108\ others objected 
to it.\109\ Some commenters were concerned that members would be 
subject to liability for market changes affecting the value of the 
deferred variable annuity during the delay for supervisory review.\110\ 
Some commenters stated that a delay in pricing the contract would be 
unfair to customers.\111\ Others stated that the timing deadline would 
require costly reprogramming of broker-dealers' electronic processing 
systems that forward contracts to the insurance company and the 
registered representative's home office at the same time.\112\
---------------------------------------------------------------------------

    \107\ A summary of these comments addressing Amendment No. 1 was 
published in the Federal Register along with the Commission's notice 
of Amendment No. 2. See supra notes 4 and 6.
    \108\ Letters from Patricia Struck, President, North American 
Securities Administrators Association (September 20, 2005) and 
Rosemary J. Shockman, President, Public Investors Arbitration Bar 
Association (Sept. 9, 2005).
    \109\ See, e.g., Letters from W. Thomas Conner and Eric A. 
Arnold, Sutherland Asbill & Brennan on behalf of The Committee of 
Annuity Insurers (Sept. 19, 2005) (``CAI Letter I''); John S. 
Simmers, CEO, ING Advisors (Sept. 19, 2005) (``ING Letter I''); ACLI 
Letter II; NAVA Letter II.
    \110\ Letters from Denise M. Evans, General Counsel, Associated 
Securities Corp. (Sept. 19, 2005) (``Associated Securities 
Letter''); John L. Dixon, President, Pacific Select Distributors 
(Sept. 16, 2005) (``Pacific Select Letter''); and Julie Gerbert, 
Vice President, United Planners' Financial Services of America 
(Sept. 19, 2005) (``United Planners Letter'').
    \111\ ACLI Letter II; Pacific Select Letter; and United Planners 
Letter.
    \112\ CAI Letter I; NMIS Letter.
---------------------------------------------------------------------------

    One commenter stated that the interaction of this provision with 
other Commission and NASD rules could limit a firm's ability to review 
applications thoroughly.\113\ Another stated that time-linking the 
application process with supervisory review would impair the goal under 
the Investment Company Act of 1940 of timely processing.\114\
    A few commenters stated that the time deadline would not work in 
the context of direct sales because in those sales an insurance company 
may not know of an applicant's interest in a deferred variable annuity 
until it receives the application.\115\ Another stated that the timing 
deadline would not take into account situations in which the registered 
principal is housed in the insurance company.\116\
---------------------------------------------------------------------------

    \113\ ING Letter I.
    \114\ ACLI Letter II.
    \115\ CAI Letter I; NAVA Letter II; T. Rowe Price Letter I. In 
direct sales, customers may apply for an annuity contract by calling 
the insurance company or by completing an application on the 
Internet. NAVA Letter II. Receipt of the application is frequently 
the first time the insurance company even knows that the customer 
has filled out an application. Id.
    \116\ NMIS Letter.
---------------------------------------------------------------------------

    A few commenters also stated that their current supervisory 
structure as an Office of Supervisory Jurisdiction would be incapable 
of dealing with the prior approval requirement and they would be forced 
to eliminate this form of supervisory structure.\117\ One commenter 
stated the requirement could overwhelm principals,\118\ and another 
stated that it would require members to allocate two to three times the 
supervisory staff for deferred variable annuities than for any other 
product.\119\
---------------------------------------------------------------------------

    \117\ Letter from Shawn M. Mihal, Chief Compliance Officer, 
Great American Advisors (Sept. 19, 2005) and ING Letter I. These 
comments were submitted in response to Amendment No. 1, which would 
have required principals to review customers' applications prior to 
transmitting them to the issuing insurance company for processing. 
The commenters assumed that there would be no relief from Rules 
15c3-1 and 15c3-3, and thus broker-dealers would have to forward 
checks (along with applications) to the insurance company by noon of 
the next business day after receiving those checks. Based on this 
assumption, the commenters indicated that there would not be 
sufficient time for representatives to forward the paperwork to the 
OSJ manager and the OSJ manager to review the application within the 
time parameters required by Rules 15c3-1 and 15c3-3. These timing 
concerns have been addressed by the Commission's exemptions from 
Rules 15c3-1 and 15c3-3 to allow NASD members to comply with the 
proposed rule without becoming fully subject to Exchange Act Rule 
15c3-3 and being required to maintain higher levels of net capital 
in accordance with Rule 15c3-1. See Exchange Act Release No. 56376 
(Sept. 7, 2007).
    \118\ Wachovia Letter.
    \119\ Associated Securities Letter.
---------------------------------------------------------------------------

c. Proposed Rule 2821(c)--Principal Review and Approval
    In Amendment No. 2, NASD listed a variety of factors that a 
registered principal would be required to consider in reviewing the 
purchase or exchange of a deferred variable annuity. In Amendment No. 
3, NASD modified this provision to require registered principals to 
consider all of the factors that a registered representative must 
consider in Proposed Rule 2821(b) (``Recommendation Requirements'') and 
eliminated the references to the considerations in subparagraph (c)(1) 
(``Principal Review and Approval'') of the proposed rule. NASD also 
moved the considerations relating to exchanges

[[Page 52410]]

that were in subparagraph (c)(1)(D) of Amendment No. 2 to paragraph (b) 
in Amendments Nos. 3 and 4. By doing this, NASD added these 
determinations to those factors a registered representative must 
consider and retained them as considerations for principal review.
i. Comments on Proposed Rule 2821(c)(1)(A) as Amended by Amendment No. 
2--Principal Review and Approval
    The rule, as amended by Amendment No. 2, would have required 
principals to consider the extent to which the customer would benefit 
from the unique features of a deferred variable annuity. A number of 
commenters remarked that their comments on proposed Rule 2821(b)(1)(B) 
are equally applicable to this provision and that ``would'' should be 
changed to ``could'' and that the modifier ``unique'' should be 
deleted.\120\ In response to comments, NASD changed ``unique'' to 
``various.'' As amended by Amendment No. 3, the rule would require 
registered principals to have a reasonable basis to believe that the 
customer has been informed, in general terms, of the various features 
of deferred variable annuities.\121\
---------------------------------------------------------------------------

    \120\ See, e.g., ACLI Letter IV; FSI Letter II; NAVA Letter III; 
SIA Letter II. See also supra notes 68 and 69.
    \121\ See Proposed Rule 2821(b)(1)(A)(i).
---------------------------------------------------------------------------

ii. Comments on Proposed Rule 2821(c)(1)(C) as Amended by Amendment No. 
2--Principal Review and Approval
    The rule, as amended by Amendment No. 2, would have required 
principals to consider the extent to which the amount of money invested 
would result in an undue concentration in a deferred variable annuity 
or deferred variable annuities in the context of the customer's overall 
investment portfolio. Two commenters stated the term ``undue 
concentration'' is imprecise and capable of multiple 
interpretations.\122\ Some commenters also viewed the proposed 
requirement to consider the customer's liquidity needs as subsuming the 
apparent intent of this provision.\123\ In Amendment No. 3, NASD 
deleted this provision.
---------------------------------------------------------------------------

    \122\ See, e.g., NAVA Letter III; ACLI Letter IV. Two other 
commenters noted that NASD should provide more guidance on what 
would amount to an ``undue concentration'' because deferred variable 
annuities often take significant portions of a customer's assets. 
See FSI Letter II; Sorrento Letter.
    \123\ See, e.g., ACLI Letter IV; CAI Letter II; NAVA Letter III.
---------------------------------------------------------------------------

iii. Comments on Proposed Rule 2821(c)(1)(D)(ii) as Amended by 
Amendment No. 2--Principal Review and Approval
    The rule, as modified by Amendment No. 2 would have required 
registered principals to consider the extent to which the customer 
would benefit from any potential product enhancements and improvements 
in the case of an exchange of a deferred variable annuity. One 
commenter stated that ``would'' should be changed to ``could'' because 
whether a customer benefits is determined years after the contract is 
purchased and depends on market performance.\124\ In Amendment No. 3, 
NASD deleted this specific paragraph, but, provided in paragraph (b) 
(``Recommendation Requirements'') that principals must consider, in the 
case of an exchange, whether the customer would benefit from any 
potential product enhancements and improvements in their review.\125\
---------------------------------------------------------------------------

    \124\ See NAVA Letter III.
    \125\ See Proposed Rule 2821(c) and Proposed Rule 
2821(b)(1)(B)(ii).
---------------------------------------------------------------------------

iv. Comments on Proposed Rule 2821(c)(1)(D)(iii) as Amended by 
Amendment No. 2--Principal Review and Approval
    The rule, as modified in Amendment No. 2, would have required 
principals, in the case of an exchange of a deferred variable annuity, 
to consider the extent to which the customer's account has had another 
deferred variable annuity exchange within the preceding thirty-six 
months. One commenter, while supporting this provision, believed that 
the registered principal should also review the total sales production 
of variable annuities of associated persons to detect unsuitable sales 
and other potential abuses.\126\ A number of commenters stated that it 
would be difficult to comply with this requirement.\127\ In their view, 
principals may have a difficult time obtaining this information, 
especially if the exchange occurred at another broker-dealer.\128\ 
These commenters also stated that customers may not want to share this 
kind of information, citing privacy concerns or policy concerns with 
the other broker-dealers.\129\
    One commenter stated that the proposed rule should specify whether 
principals have to collect information on exchanges that occurred at 
the reviewing firm only or also on exchanges that occurred at other 
broker-dealers.\130\ Two commenters argued that the proposed rule 
should clarify whether a registered principal is only obligated to 
consider prior exchange information if it is available to him or her at 
the time of his or her review.\131\
---------------------------------------------------------------------------

    \126\ See NASAA Letter II.
    \127\ See, e.g., CAI Letter II; Contemporary Financial Letter; 
FSI Letter II; Mutual Service Letter II; Sorrento Letter; T. Rowe 
Price Letter II.
    \128\ Id.
    \129\ Id.
    \130\ See CAI Letter II.
    \131\ See Contemporary Financial Letter; Mutual Service Letter 
II.
---------------------------------------------------------------------------

    One commenter stated that the provision would impose substantial 
administrative and supervisory costs on broker-dealers, which would 
have to implement cumbersome and expensive additional surveillance 
tools.\132\ Another commenter stated the proposed rule should clarify 
the level of inquiry and documentation necessary to comply with this 
provision.\133\ In Amendment No. 3, NASD eliminated this specific 
provision, but provided in paragraph (b) (``Recommendation 
Requirements'') that principals must consider, in the case of exchange, 
the extent to which the customer account has had another deferred 
variably annuity exchange within the preceding thirty-six months.\134\ 
NASD has stated that it will announce the effective date of the 
proposed rule change in a Notice to Members to be published no later 
than 60 days following Commission approval and that the effective date 
will be 120 days following publication of the Notice to Members 
announcing Commission approval. NASD has indicated that it may address 
the type of implementation issues commenters raised with respect to 
determining whether a customer's account has had a deferred variable 
annuity exchange within the preceding 36 months in connection with that 
Notice to Members.
---------------------------------------------------------------------------

    \132\ See NSCP Letter.
    \133\ See CAI Letter II.
    \134\ See Proposed Rule 2821(c) and Proposed Rule 
2821(b)(1)(B)(iii).
---------------------------------------------------------------------------

d. Comments on Proposed Rule 2821(c)(2)--Principal Review and Approval
    The proposed rule would require the registered principal who 
reviewed and approved, rejected, or authorized the transaction to 
document and sign the determinations that he or she is required to make 
pursuant to subparagraph (c) of the proposed rule.
    As proposed in Amendment No. 2, the principal who approves a 
transaction would have been required to sign the registered 
representative's suitability determination. One commenter stated that 
this provision should be eliminated because ``it would establish an 
unprecedented standard of requiring principals to fully endorse all of 
the considerations leading to the

[[Page 52411]]

salespersons' recommendations.'' \135\ In this commenter's view, the 
principal's role should be to affirm the fact that the salesperson 
elicited information for completion of the suitability documents.\136\ 
In Amendment No. 3, NASD eliminated the requirement that registered 
principals sign the registered representative's suitability 
determinations.
---------------------------------------------------------------------------

    \135\ See ACLI Letter IV.
    \136\ Id.
---------------------------------------------------------------------------


    5. Comments on Proposed Rule 2821(d)--Supervisory Procedures
    The rule, as modified by Amendment No. 2, would have required 
members to implement procedures and require principals to consider 
whether the associated person effecting the transaction has a 
particularly high rate of effecting deferred variable annuity 
exchanges.
    Two commenters argued that the phrase ``particularly high rate'' is 
vague and unworkable.\137\ A number of commenters noted that the 
proposed rule implies that principals would have to implement a 
transaction-by-transaction review and stated that members should be 
able to rely on exception reports as an effective solution to 
unsuitable exchanges.\138\ One commenter also requested clarification 
regarding what should happen if a registered representative does have a 
particular high rate of exchanges.\139\ NASD modified this provision in 
Amendment No. 3, eliminating the reference to a ``particularly high 
rate'' of exchanges.
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    \137\ See ACLI Letter IV; FSI Letter II.
    \138\ See ACLI Letter IV; CAI Letter II; FSI Letter II; NAVA 
Letter III.
    \139\ See CAI Letter II. The commenter questioned whether the 
principal has to reject the transaction or just give it closer 
scrutiny.
---------------------------------------------------------------------------

6. Comments on Proposed Rule 2821(e)--Training
    As provided in Amendment No. 2, members would be required to 
develop and document specific training policies or programs reasonably 
designed to ensure that associated persons who effect and registered 
principals who review transactions in deferred variable annuities 
comply with the requirements of the proposed rule and that they 
understand the material features of deferred variable annuities. 
Several commenters questioned the need for this specific requirement, 
as well as the standards applicable to the training.\140\ NASD declined 
to amend this provision in response to comments.
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    \140\ One commenter stated there is no need for additional 
training requirements because NASD Rule 2310 requires registered 
representatives to understand the material features of the products 
they sell. See FSI Letter II; Letter Type C. Other commenters 
believed this provision is duplicative of the Firm Element portion 
of NASD's continuing education requirements. See, e.g., 1st Global 
Letter II; FSI Letter II. One commenter believed the training 
requirements would interfere with members' efficient and effective 
allocation of training resources. See FSI Letter II. A number of 
commenters also suggested members' programs be held to the standard 
of being ``reasonably designed to achieve compliance'' with the 
proposed rule. See, e.g., Contemporary Financial Letter; ING 
Advisors Letter II; Mutual Service Letter II.
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7. NASD's Response to Comments
    As discussed above, in response to the comments received on 
Amendment No. 1 NASD amended portions of the proposed rule and 
responded to comments. NASD also filed a response to the comments 
received on Amendment No. 2 with the Commission addressing concerns 
regarding the need for the proposed rule, the regulatory process that 
NASD undertook in developing the proposed rule, and the statutory 
requirements for SRO rulemaking.\141\ In Amendment Nos. 3 and 4, NASD 
further responded to comments and modified the proposed rule.
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    \141\ See NASD Response Letter.
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IV. Discussion and Commission Findings

    The Commission has reviewed carefully Proposed Rule 2821, the 
comments, and NASD's responses to the comments, and believes that NASD 
has responded appropriately to the concerns raised by the commenters. 
The Commission finds that Proposed Rule 2821, as amended, is consistent 
with the requirements of the Act and the rules and regulations 
thereunder applicable to a national securities association, and, in 
particular, with section 15A(b)(6) of the Act, which requires, among 
other things, that the rules of a national securities association 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.\142\
---------------------------------------------------------------------------

    \142\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

    Over approximately the past three years, the majority of informal 
actions brought against broker-dealers as a result of NASD examinations 
of variable annuity sales have involved the failure to establish or 
follow written supervisory procedures.\143\ During this time period, 
NASD also brought numerous enforcement actions charging broker-dealers 
with failing to supervise sales of variable annuities.\144\ In 
addition, NASD's examinations found a substantial number of unsuitable 
recommendations and instances of failing to obtain customer account 
information.\145\ It also brought numerous enforcement actions for 
making unsuitable recommendations.\146\
---------------------------------------------------------------------------

    \143\ See infra note 148.
    \144\ See infra note 150.
    \145\ See infra note 148.
    \146\ See infra note 150.
---------------------------------------------------------------------------

    The proposed rule is designed to curb sales practice abuses in 
deferred variable annuities. Its recommendation requirements provide a 
specific framework for a broker-dealer's suitability analysis of these 
securities. By setting forth factors that a broker-dealer must 
specifically consider in recommending deferred variable annuities and 
requiring the registered representative to obtain certain information 
from his or her customers, the proposed rule should improve 
communications between registered representatives and customers 
regarding these securities. The supervisory review component should 
foster a thorough analytical review of every deferred variable annuity 
transaction in a timeframe that will limit the possibility of 
unsuitable recommendations and transactions. The proposed rule as a 
whole is geared to protecting investors by requiring firms to implement 
more robust compliance cultures, and to give clear consideration of the 
suitability of these complex products.
    Commenters asserted that the proposed rule, because it is product 
specific, would result in significant burdens on competition. Pursuant 
to the Act's requirement, the Commission has considered the impact of 
Proposed Rule 2821 on efficiency, competition and capital 
formation,\147\ as well as whether the rule would impose any burden on 
competition not necessary or appropriate in furtherance of the 
Act.\148\ We note that other products, including options and penny 
stocks, are subject to product-specific regulations, due to their 
complexity or their history of sales practice abuses. NASD has 
demonstrated through its history of examinations, enforcement actions, 
and guidance to members that regulating variable annuities like other 
products has not been sufficient to curb sales practice abuses. 
Moreover, we note that the Act allows the Commission to approve a self-
regulatory organization rule that imposes burdens on competition so 
long as those burdens are necessary or appropriate in furtherance of 
the purposes of the Act.\149\ We believe that to the extent the

[[Page 52412]]

proposed rule imposes burdens on competition, these burdens are 
necessary or appropriate in furtherance of the purposes of the Act, and 
particularly the purpose of protecting investors.
---------------------------------------------------------------------------

    \147\ 15 U.S.C. 78c(f).
    \148\ 15 U.S.C. 78o-3(b)(9).
    \149\ Id.
---------------------------------------------------------------------------

    Commenters also expressed the view that Proposed Rule 2821 may 
impose compliance costs on broker-dealers that exceed their costs of 
complying with rules applicable to other products. The complexity of 
deferred variable annuities warrant more targeted regulation. NASD has 
attempted over the past few years to address problematic and unsuitable 
sales through non-rulemaking means, but has not found that approach to 
be successful. We agree with NASD that Proposed Rule 2821 will lead 
firms to enhance their compliance and supervisory systems, which in 
turn will provide more comprehensive and targeted protection to 
investors.\150\
---------------------------------------------------------------------------

    \150\ See NASD Response Letter.
---------------------------------------------------------------------------

    While NASD has issued a number of Notices to Members and Regulatory 
and Compliance Alerts regarding the suitability of deferred variable 
annuities,\151\ it continues to encounter numerous questionable sales 
practices through its examinations,\152\ as well as through its 
investigations and informal discussions with its members.\153\ Just 
within the last few years, NASD has brought a number of cases involving 
failures to supervise, suitability violations, and misrepresentation in 
connection with purchases and exchanges of deferred variable 
annuities.\154\
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    \151\ See Notice to Members 96-86 and Notice to Members 99-35. 
In 2002, NASD issued a Regulatory & Compliance Alert, entitled 
``NASD Regulation Cautions Firms for Deficient Variable Annuity 
Communications,'' that, among other things, discussed NASD's 
discovery of unacceptable sales practices regarding variable 
annuities. In another Regulatory & Compliance Alert in 2002, 
entitled ``Reminder--Suitability of Variable Annuity Sales,'' NASD 
emphasized, in part, that an associated person must be knowledgeable 
about a variable annuity before he or she can determine whether a 
recommendation to purchase, sell or exchange the variable annuity is 
appropriate. NASD has also issued a number of Investor Alerts 
regarding variable annuities. In 2001, NASD issued an Investor Alert 
entitled ``Should You Exchange Your Variable Annuity?'' highlighting 
important issues that investors should consider before agreeing to 
exchange a variable annuity. In 2003, NASD issued an Investor Alert 
entitled ``Variable Annuities: Beyond the Hard Sell,'' which 
cautioned investors about certain inappropriate sales tactics and 
highlighted the unique features of these products.
    \152\ From July 2004 to April 2007, NASD completed a total of 
807 routine examinations involving the review of variable annuities. 
See Letter from James S. Wrona, Associate Vice President, NASD (May 
15, 2007) (``NASD Examination/Enforcement Update Letter''). These 
examinations resulted in 92 Letters of Caution, 45 Compliance 
Conferences, and 4 Acceptance, Waiver and Consent letters, in which 
a respondent accepts a finding of a violation, consents to the 
imposition of sanctions, and agrees to waive the right to a hearing. 
Id. While the majority of these actions involved the failure to 
establish or follow written supervisory procedures, a number of 
actions related to the failure to obtain and maintain customer 
account information, unsuitable recommendations, and the failure to 
comply with standards relating to communications with the public. 
Id. These findings do not include cause examinations, many of which 
result in formal action that is captured by enforcement actions, 
discussed in note 150 below. Id. Nor do the findings include 
information from special examination initiatives. Id.
    \153\ See NASD Response Letter.
    \154\ See, e.g., Phillip Nelson, NASD Case No. 2006004829701 
(April 3, 2007) (providing misleading communication to customer 
regarding a variable annuity); Victoria C. Smotherman, NASD Case No. 
2006003897501 (March 21, 2007) (fraudulently inducing purchases of 
variable annuities); Donna Vogt, NASD Case No. EAF0400730002 (Feb. 
21, 2007) (making unsuitable variable annuity recommendations); 
Raymond James Financial Services, Inc., NASD Case No. EAF0400730001 
(Jan. 31, 2007) (failing to properly supervise by permitting 
producing branch managers to supervise themselves and by not 
properly reviewing variable annuity sales and exchanges); Peter F. 
Esposito, NASD Case No. 2005002689601 (Dec. 8, 2006) (submitting 
falsified account information to his firm concerning the liquidation 
of a variable annuity); Quick & Reilly, Inc., NASD Case No. 
E102003158301 (Dec. 1, 2006) (failing to supervise variable annuity 
sales); Waddell & Reed, Inc., NASD Case No. E062004029603 (Nov. 24, 
2006) (failing to supervise sales of variable annuities where 
unregistered persons were selling such products); David L. McFadden, 
NASD Case No. E2005000226001 (Nov. 15, 2006) (fraudulent and 
unsuitable sales of variable annuities, mutual funds, and exchange 
traded fund shares); CCO Investment Services, Corp., NASD Case No. 
E112005014002 (Oct. 16, 2006) (failing to, among other things, 
supervise variable annuity sales); Daniel Carlos Lacey, NASD Case 
No. E062004000201 (Aug. 11, 2006) (making unsuitable recommendations 
regarding variable annuities exchanges); Michael K. Maunsell, NASD 
Case No. 2005001939501 (Aug. 2, 2006) (making unsuitable variable 
annuity recommendations); Carole G. Ferraro, NASD Case No. 
E0520030291 (July 21, 2006) (making unsuitable recommendations 
regarding variable annuities); Jerry Swicegood, NASD Case No. 
2005002683001 (July 13, 2006) (falsifying documents related to 
variable annuity exchanges); Eric J. Brown, NASD Case No. 
E112003006903 (June 27, 2006) (making unsuitable recommendations and 
false statements regarding variable annuities); Joseph Vitetta, NASD 
Case No. E10200412250 (June 8, 2006) (making unsuitable 
recommendation regarding a variable annuity, among other 
violations); AmSouth Investment Services, Inc., NASD Case No. 
E052004025802 (May 24, 2006) (failing to establish and maintain 
reasonable supervisory system in connection with sales of variable 
annuities and mutual funds); Charles Snyder, NASD Case No. 
E112004042001 (May 2, 2006) (making unsuitable variable annuity 
recommendations); Frank P. Grasse, No. EL120030533 (April 17, 2006) 
(falsifying customer information on variable annuity applications); 
Tyler M. Kerrigan, NASD Case No. E0520030355 (March 10, 2006) 
(recommending unsuitable variable annuity transactions); Angelisa 
Savage-Bryant, NASD Case No. E072004064201 (March 6, 2006) 
(misrepresentation in connection with a variable annuity exchange); 
Brian Carr, NASD Case No. E9B2003043802 (Feb. 22, 2006) (making 
unsuitable variable annuity recommendations); John Babiarz, NASD 
Case No. 2005002047301 (Feb. 10, 2006) (making unsuitable variable 
annuity recommendations); Michael Lancaster, NASD Case No. 
E8A20040995-01 (Nov. 30, 2005) (making unsuitable recommendations 
regarding variable annuity subaccounts); Lawrence LaBine, NASD Case 
No. C3A20040045 (Nov. 22, 2005) (unsuitable recommendations to five 
customers involving variable annuity subaccounts and mutual funds); 
Mansell R. Spedding, NASD Case No. E0220030907 (Sept. 21, 2005) 
(unsuitable subaccount allocation recommendation for variable 
annuity); Rita N. Raymer, NASD Case No. E0520030131 (Aug. 16, 2005) 
(unsuitable recommendations of variable annuities); NY Life Sec., 
Inc., NASD Case No. E0520040104 (July 22, 2005) (failing to 
adequately supervise sales of variable annuities and mutual funds); 
Paul Olsen, NASD Case No. E3A20030539 (June 23, 2005) (negligently 
failing to tell customers about fees associated with variable 
annuity exchanges); Bambi Holzer, NASD Case No. E0220020787 (June 
17, 2005) (negligently misrepresenting certain aspects of variable 
annuities); Ilene L. Sonnenberg, NASD Case No. C0520050024 (May 11, 
2005) (recommending unsuitable variable annuity); Raymond James & 
Assocs., Inc., NASD Case No. C0520050020 (May 10, 2005) (finding 
that registered representative made unsuitable recommendations and 
firm failed to maintain and enforce written supervisory procedures 
regarding sales of variable annuities); Issetten Hanif, NASD Case 
No. C9B20040086 (Apr. 6, 2005) (unsuitable recommendations regarding 
variable annuity and mutual fund exchanges); Lawrence Labine, NASD 
Case No. E02020513 (Nov. 19, 2004) (unsuitable variable annuity 
recommendation); Edward Sadowski, NASD Case No. C9B040102 (Nov. 17, 
2004) (unsuitable variable annuity recommendation); James B. 
Moorehead, NASD Case No. C05040073 (Nov. 11, 2004) (failing to 
gather suitability information for variable annuity sales); Juan Ly, 
NASD Case No. C07040094 (Nov. 9, 2004) (unsuitable variable annuity 
switches and misrepresentations); Jenny Chin, NASD Case No. 
E04030619 (Oct. 29, 2004) (misrepresentation and omissions regarding 
variable annuities); Glenn W. Ward, NASD Case No. C05040075 (Oct. 
14, 2004) (recommending unsuitable variable annuity); Bernard E. 
Nugent, NASD Case No. C11040031 (Sept. 1, 2004) (unsuitable 
recommendation involving the liquidation of mutual fund shares to 
purchase a variable annuity); Samuel D. Hughes, NASD Case No. 
C07040067 (Aug. 19, 2004) (unsuitable variable annuity switches, 
unauthorized sub-account allocations, and misrepresentations); 
SunAmerica Sec., Inc., NASD Case No. C05040051 (July 12, 2004) 
(lacking adequate written supervisory procedures concerning review 
of variable annuity and variable universal life contracts); Jamie 
Engelking, NASD Case No. E3A020441 (July 2, 2004) (unsuitable 
variable annuity recommendation); Pan-American Fin. Advisers, NASD 
Case No. C05040034 (June 15, 2004) (failing to have adequate 
supervisory procedures for variable annuity sales); Scott Weier, 
NASD Case No. E04010714 (May 27, 2004) (unsuitable variable annuity 
recommendations); Gregory Jurkiewicz, NASD Case No. E3A030436 (May 
4, 2004) (unsuitable variable annuity recommendation); Michael H. 
Tew, NASD Case No.C05040010 (Apr. 7, 2004) (unsuitable 
recommendations regarding variable annuities); Steve Morgan, NASD 
Case No. E3A020410 (Mar. 12, 2004) (unsuitable variable annuity 
recommendation); Donald Lacavazzi, NASD Case No. C11040009 (Feb. 24, 
2004) (recommending unsuitable variable annuity switching); Michael 
Blandchard, NASD Case No. C11040005 (Feb. 16, 2004) (unsuitable 
variable annuity recommendations); Prudential Inv. Mgmt. and 
Prudential Equity Group, Inc., NASD Case No. C05040008 (Jan. 29, 
2004) (failing to supervise and maintain accurate records relating 
to variable annuity replacement sales); Waddell & Reed, Inc., NASD 
Case No. CAF040002 (Jan. 14, 2004) (failing to ascertain suitability 
of recommended variable annuity exchanges and failure to supervise). 
NASD Enforcement actions are available at http://www.nasd.com/RegulatoryEnforcement/MonthlyDisciplinaryActions/index.htm
.


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[[Page 52413]]

    Some commenters expressed the view that NASD must wait before 
instituting rulemaking and show that a ``demonstrable problem'' 
exists.\155\ While we believe NASD's examinations and enforcement 
actions over the years clearly demonstrate an entrenched problem in the 
sales culture for these products, nothing in the Act requires NASD to 
make such a showing. Rather, the Act requires the Commission to 
determine that a proposed rule is consistent with the Act and consider 
whether the proposed rule would promote efficiency, competition and 
capital formation.\156\ So long as its proposed rules meet the 
requirements of the Act, NASD can--and indeed should--be proactive in 
addressing problems in the sale of securities.
---------------------------------------------------------------------------

    \155\ See supra note 33 and accompanying text.
    \156\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    Some commenters also took the position that the proposed rule 
should be subject to a cost/benefit analysis.\157\ The Act sets forth 
what the Commission must consider in determining whether to approve a 
proposed self-regulatory organization rule. It also sets forth 
requirements that the self-regulatory organizations must meet. The Act 
does not require a cost/benefit analysis with respect to proposed self-
regulatory organization rules that are filed with, and approved by, the 
Commission.
---------------------------------------------------------------------------

    \157\ See supra notes 35-38 and accompanying text.
---------------------------------------------------------------------------

    As a practical matter, however, NASD considered the costs and 
benefits of the rule as the rule was developed and modified, and NASD's 
members were actively involved in shaping the proposed rule. As NASD 
stated in its response to comments on Amendment No. 2 ``[i]ndustry 
members are keenly aware of the potential costs and burdens that can 
result from rulemaking and, as is often the case, they raised and NASD 
considered such issues at multiple stages of the rulemaking 
process.''\158\
---------------------------------------------------------------------------

    \158\ As discussed in detail above, in its response to comments 
to Amendment No. 2, NASD noted the steps it went through as it 
developed the proposed rule prior to filing it with the Commission. 
It published the proposed rule in a Notice to Members and solicited 
comment. The proposal also went to five NASD standing committees 
(including two committees with subject matter expertise regarding 
variable annuities) for consultation and comment. NASD considered 
the public's and the committees' comments and modified the proposed 
rule in response. The NASD Regulation, Inc. Board of Directors then 
approved the proposed rule and the NASD Board of Governors had an 
opportunity to review it. These NASD boards include members of the 
broker-dealer and insurance industries. For detail on the 
composition of the boards, see NASD's Response Letter.
---------------------------------------------------------------------------

Accelerated Approval of Amendment Nos. 3 and 4

    As set forth below, the Commission finds good cause to approve 
Amendment Nos. 3 and 4 to the proposed rule, as amended, prior the 
thirtieth day after the date of publication of the notice of Amendment 
Nos. 3 and 4 in the Federal Register. The revisions and clarifications 
in Amendment Nos. 3 and 4 were made in response to comments.
    In Amendment No. 3, NASD modified the Recommendation Requirements 
in paragraph (b) of the proposed rule. Amendment No. 2 required members 
to have a reasonable basis to believe the customer has been informed of 
the material features of a deferred variable annuity. NASD revised the 
proposed rule to specify that a member must have a reasonable basis to 
believe that a customer has been informed ``in general terms of the 
various features'' of deferred variable annuities. NASD made this 
change in response to comments to clarify that the customer need only 
be informed about the features of deferred variable annuities in 
general terms, rather than be informed about the specific features of 
the deferred variable annuity the member might recommend.
    In addition, in Amendment No. 3, NASD incorporated the factors that 
a firm must consider when exchanging deferred variable annuities in the 
recommendation requirements rather than in the principal review and 
approval requirements, while maintaining a requirement that principals 
consider these factors. NASD also eliminated two of the considerations 
relating to exchanges in response to comments: the extent to which the 
customer would benefit from the unique features of a deferred variable 
annuity and the extent to which the customer's age or liquidity needs 
make the investment inappropriate.
    Moreover, in Amendment No. 3, NASD revised the proposed rule in 
response to comments relating to the applicability of the proposed rule 
to non-recommended transactions. NASD clarified that while principals 
are to treat all transactions as recommended, a principal may authorize 
the processing of a transaction if it determines that the transaction 
was not recommended and that the customer affirms that he or she wants 
to proceed after being informed of the reason why the registered 
principal has not approved the transaction.
    In Amendment No. 3, NASD also modified the supervisory procedures 
provisions of the rule in response to comments that the term 
``particularly high rates of effecting deferred variable annuity 
exchanges'' was vague. NASD revised the proposed rule to require 
implementation of surveillance procedures to review associated persons' 
rates of effecting deferred variable annuity exchanges for consistency 
with the proposed rule, other NASD rules and the federal securities 
laws. NASD also clarified that members must have policies and 
procedures reasonably designed to implement corrective measures to 
address inappropriate exchanges.
    In addition, in Amendment No. 3, NASD revised the required 
timeframe for principal review, which it further revised in Amendment 
No. 4. As amended by Amendment No. 4, the principal must review the 
application prior to transmitting it to the issuing insurance company 
for processing, but no later than seven business days after the 
customer signs the application. This ``prior to transmittal'' standard 
was also incorporated in Amendment No. 1, and the Commission received a 
substantial number of comments on this standard. Although Amendment No. 
1 did not explicitly limit the timeframe for principal review to no 
more than seven days, provisions of Exchange Act Rule 15c3-3 would have 
operated to limit the time in which broker-dealers could hold customer 
funds. In light of NASD's requested exemption from Rule 15c3-3, the 
seven-day limit on principal review in Amendment No. 4 would replace 
that rule's time limitation for transactions subject to that exemption 
with a more workable limit.
    Thus, the Commission finds good cause to approve Amendment Nos. 3 
and 4 to the proposed rule, as amended, prior to the thirtieth day 
after the date of publication of the notice of Amendment Nos. 3 and 4 
in the Federal Register.

V. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning Amendment Nos. 3 and 4, including whether the 
proposed rule is consistent with the Act.\159\ Comments may be 
submitted by any of the following methods:
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    \159\ The Commission will consider the comments we previously 
received. Commenters may reiterate or cross-reference previously 
submitted comments.
---------------------------------------------------------------------------

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to rule-comments@sec.gov. Please include 

File Number SR-NASD-2004-183 on the subject line.

[[Page 52414]]

Paper Comments

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

    All submissions should refer to File Number SR-NASD-2004-183. 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-NASD-2004-183 and should be 
submitted on or before October 4, 2007.

VI. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the 
Act,\160\ that the proposed rule, as amended (SR-NASD-2004-183), be, 
and it hereby is, approved.
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    \160\ 15 U.S.C. 78s(b)(2).

    By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. E7-18022 Filed 9-12-07; 8:45 am]

BILLING CODE 8010-01-P
