NASD Notice to Members 98-47
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Executive Summary Interpretive Material 2310-3 (IM-2310- NASD On May 29, 1998, the Securities and 3) describes members’ suitability obli- Exchange Commission (SEC) gation in making recommendations to approved amendments to National institutional customers. The primary Notice to Association of Securities Dealers, considerations under IM-2310-3 Inc. (NASD®) Rule 3110 (the Books include the customer’s capability to and Records Rule) that (i) change evaluate risk independently and the Members the definition of “institutional account” extent to which individual judgment is to include the accounts of investment exercised when making investment 98-47 advisers that are now required to decisions. register with the states pursuant to the National Securities Markets Accounts Of Registered Improvement Act of 1996 (NSMIA), Investment Advisers and (ii) exclude certain customer SEC Approves Changes accounts from the requirement to NSMIA and new rules recently To Books And Records obtain certain tax and employment adopted by the SEC under the Requirements information from the customer. Investment Advisers Act of 1940 (Advisers Act) reallocated regulatory Questions concerning this Notice oversight of investment advisers may be directed to Joseph E. Price, between the SEC and the states. Counsel, Advertising/Investment Under the new rules, advisers to reg- Suggested Routing Companies Regulation, NASD Regu- istered investment companies and Senior Management lation, Inc., at (202) 728-8877 or those with assets under manage- Robert J. Smith, Assistant General ment of at least $25 million generally Advertising Counsel, Office of General Counsel, will register exclusively with the SEC. Continuing Education NASD RegulationSM, at (202) 728- Most others will register exclusively 8176. with the states. Corporate Finance Executive Representatives The Books and Records Rule pro- Government Securities Discussion vides that, for purposes of both the The Books and Records Rule Books and Records Rule and the Institutional requires that members obtain certain Suitability Rule, the term “institutional Insurance information for all accounts. The account” includes the account of an Internal Audit Rule requires that, for accounts other investment adviser registered with than institutional accounts and the SEC. Consequently, advisory Legal & Compliance accounts limited to money market accounts that were considered to be Municipal funds, members must make reason- “institutional accounts” when the able attempts to obtain: (i) a cus- Retail Customer Information provi- Mutual Fund tomer’s tax identification or social sion in the Books and Records Rule Operations security number; (ii) a customer’s was adopted became excluded from Options occupation and the name and the definition because they migrated address of the employer; and to state regulation under NSMIA. Registered Representatives (iii) information about whether the Registration customer is an associated person of The amendments take into account Research another member (Retail Customer the bifurcation of investment adviser Information). regulation between the SEC and the Syndicate states by changing the definition of Systems Similarly, NASD Conduct Rule 2310 “institutional account” in subpara- (Suitability Rule) requires members graph (c)(4) of the Books and Trading to make reasonable efforts to obtain Records Rule to include both invest- Training certain information, such as the cus- ment advisers required to register Variable Contracts tomer’s financial status and invest- with the SEC and those required to ment objectives, from retail customers register with the states. The amend- prior to the execution of a transaction. ments treat the state-regulated advi- NASD Notice to Members 98-47 July 1998 353 sory accounts as “institutional in order to meet any other regulatory shares that are not recommended by accounts” for purposes of the Books obligations that may exist. the member or its associated per- and Records Rule and the Suitability sons, each member shall also make Rule. reasonable efforts to obtain, prior to Text Of New Rule the settlement of the initial transac- Accounts Limited To Mutual (Note: New language is underlined; deletions tion in the account, the following Fund Shares are bracketed.) information to the extent it is applica- ble to the account: A primary purpose of obtaining Retail 3100. Books and Records, and Customer Information is to help a Financial Condition (A) customer’s tax identification or member evaluate the suitability of a Social Security number; recommendation. NASD Regulation 3110. Books and Records has determined that the requirement (B) occupation of customer and to obtain Retail Customer Informa- (a) Requirements name and address of employer; and tion is burdensome and largely unnecessary as it applies to mem- Each member shall keep and pre- (C) whether customer is an associat- bers who distribute directly marketed serve books, accounts, records, ed person of another member; and mutual funds and other unsolicited memoranda, and correspondence in accounts that are limited to mutual conformity with all applicable laws, (3) for discretionary accounts, in fund shares and for which no recom- rules, regulations and statements of addition to compliance with subpara- mendations are made. With regard policy promulgated thereunder and graphs (1) and (2) above, and Rule to the requirement in the Books and with the Rules of this Association. 2510(b) of these Rules, the member Records Rule to obtain a customer’s shall: tax identification or social security (c) Customer Account Information number, the tax laws already impose (A) obtain the signature of each per- obligations on funds to obtain this Each member shall maintain son authorized to exercise discretion information.1 The requirement in the accounts opened after January 1, in the account; Books and Records Rule to deter- 1991 as follows: mine whether a customer is an asso- (B) record the date such discretion is ciated person of another member (1) for each account, each member granted; and also is unnecessary because NASD shall maintain the following informa- Conduct Rule 3050, which provides tion: (C) in connection with exempted the obligations of executing mem- securities other than municipals, bers when the member knows that a (A) customer’s name and residence; record the age or approximate age of person associated with an employing the customer. member has an interest in an (B) whether customer is of legal age; account, expressly excludes (4) For purposes of this Rule and accounts that are limited to transac- (C) signature of the registered repre- Rule 2310 the term “institutional tions in mutual fund shares. sentative introducing the account account” shall mean the account of: and signature of the member or part- The amendments thus revise sub- ner, officer, or manager who accepts (A) a bank, savings and loan associ- paragraph (c)(2) of the Books and the account; and ation, insurance company, or regis- Records Rule to exclude mutual tered investment company; funds that are not recommended by (D) if the customer is a corporation, the member or its associated per- partnership, or other legal entity, the (B) an investment adviser registered sons from the obligation to obtain names of any persons authorized to either with the Securities and Retail Customer Information. Mem- transact business on behalf of the Exchange Commission under Sec- bers are still required to make rea- entity; tion 203 of the Investment Advisers sonable efforts to obtain Retail Act of 1940 or with a state securities Customer Information for retail (2) for each account, other than an commission (or any agency or office accounts that are not subject to institutional account, and accounts in performing like functions); or these limitations. This change will which investments are limited to not affect the need to obtain any transactions in [money market funds] (C) any other entity (whether a natu- information from customers or others open-end investment company ral person, corporation, partnership, NASD Notice to Members 98-47 July 1998 354 trust or otherwise) with total assets of at least $50 million. Endnote 1 If a customer refuses to provide tax identifi- cation, Internal Revenue Service rules require a fund to withhold 31 percent of all redemptions or distributions. © 1998, National Association of Securities Dealers, Inc. (NASD). All rights reserved. NASD Notice to Members 98-47 July 1998 355 Executive Summary pants in the securities industry do not NASD On May 18, 1998, the Securities and take unfair advantage of their “insider Exchange Commission (SEC) position” in the industry to the detri- approved amendments to National ment of public investors. Notice to Association of Securities Dealers, Inc. (NASD®) Interpretive Material The Interpretation prohibits members 2110-1 (IM-2110-1) and Rule 2720, from retaining the securities of hot Members revising certain provisions of the issues in their own accounts and pro- Free-Riding and Withholding Inter- hibits members from allocating such 98-48 pretation (Interpretation). These securities to directors, officers, amendments address direct and indi- employees, and associated persons rect owners of broker/dealers, invest- of such members and other ment grade debt offerings, foreign broker/dealers. It also restricts mem- investment companies, secondary ber sales of hot issue securities to SEC Approves offerings, issuer directed share pro- the accounts of specified categories Amendments To Free- grams, and accounts under the