[Congressional Record Volume 160, Number 25 (Tuesday, February 11, 2014)]
[House]
[Pages H1746-H1748]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1530
                 SMALL CAP LIQUIDITY REFORM ACT OF 2013

  Mr. GARRETT. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 3448) to amend the Securities Exchange Act of 1934 to 
provide for an optional pilot program allowing certain emerging growth 
companies to increase the tick sizes of their stocks, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 3448

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Small Cap Liquidity Reform 
     Act of 2014''.

     SEC. 2. LIQUIDITY PILOT PROGRAM FOR SECURITIES OF CERTAIN 
                   EMERGING GROWTH COMPANIES.

       (a) In General.--Section 11A(c)(6) of the Securities 
     Exchange Act of 1934 (15 U.S.C. 78k-1(c)(6)) is amended to 
     read as follows:
       ``(6) Liquidity Pilot Program for Securities of Certain 
     Emerging Growth Companies.--
       ``(A) Quoting increment.--Beginning on the date that is 90 
     days after the date of the enactment of the Small Cap 
     Liquidity Reform Act of 2014, the securities of a covered 
     emerging growth company shall be quoted using--
       ``(i) a minimum increment of $0.05; or
       ``(ii) if, not later than 60 days after such date of 
     enactment, the company so elects in the manner described in 
     subparagraph (D)--
       ``(I) a minimum increment of $0.10; or
       ``(II) the increment at which such securities would be 
     quoted without regard to the minimum increments established 
     under this paragraph.
       ``(B) Trading increment.--In the case of a covered emerging 
     growth company the securities of which are quoted at a 
     minimum increment of $0.05 or $0.10 under this paragraph, the 
     Commission shall determine the increment at which the 
     securities of such company are traded.
       ``(C) Future right to opt out or change minimum 
     increment.--
       ``(i) In general.--At any time beginning on the date that 
     is 90 days after the date of the enactment of the Small Cap 
     Liquidity Reform Act of 2014, a covered emerging growth 
     company the securities of which are quoted at a minimum 
     increment of $0.05 or $0.10 under this paragraph may elect in 
     the manner described in subparagraph (D)--
       ``(I) for the securities of such company to be quoted at 
     the increment at which such securities would be quoted 
     without regard to the minimum increments established under 
     this paragraph; or
       ``(II) to change the minimum increment at which the 
     securities of such company are quoted from $0.05 to $0.10 or 
     from $0.10 to $0.05.
       ``(ii) When election effective.--An election under this 
     subparagraph shall take effect on the date that is 30 days 
     after such election is made.
       ``(iii) Single election to change minimum increment.--A 
     covered emerging growth company may not make more than one 
     election under clause (i)(II).
       ``(D) Manner of election.--
       ``(i) In general.--An election is made in the manner 
     described in this subparagraph by informing the Commission of 
     such election.
       ``(ii) Notification of exchanges and other trading 
     venues.--Upon being informed of an election under clause (i), 
     the Commission shall notify each exchange or other trading 
     venue where the securities of the covered emerging growth 
     company are quoted or traded.
       ``(E) Issuers ceasing to be covered emerging growth 
     companies.--
       ``(i) In general.--If an issuer the securities of which are 
     quoted at a minimum increment of $0.05 or $0.10 under this 
     paragraph ceases to be a covered emerging growth company, the 
     securities of such issuer shall be quoted at the increment at 
     which such securities would be quoted without regard to the 
     minimum increments established under this paragraph.
       ``(ii) Exceptions.--The Commission may by regulation, as 
     the Commission considers appropriate, specify any 
     circumstances under which an issuer shall continue to be 
     considered a covered emerging growth company for purposes of 
     this paragraph after the issuer ceases to meet the 
     requirements of subparagraph (L)(i).
       ``(F) Securities trading below $1.--
       ``(i) Initial price.--
       ``(I) At effective date.--If the trading price of the 
     securities of a covered emerging growth company is below $1 
     at the close of the last trading day before the date that is 
     90 days after the date of the enactment of the Small Cap 
     Liquidity Reform Act of 2014, the securities of such company 
     shall be quoted using the increment at which such securities 
     would be quoted without regard to the minimum increments 
     established under this paragraph.
       ``(II) At ipo.--If a covered emerging growth company makes 
     an initial public offering after the day described in 
     subclause (I) and the first share of the securities of such 
     company is offered to the public at a price below $1, the 
     securities of such company shall be quoted using the 
     increment at which such securities would be quoted without 
     regard to the minimum increments established under this 
     paragraph.
       ``(ii) Average trading price.--If the average trading price 
     of the securities of a covered emerging growth company falls 
     below $1 for any 90-day period beginning on or after the day 
     before the date of the enactment of the Small Cap Liquidity 
     Reform Act of 2014, the securities of such company shall, 
     after the end of such period, be quoted using the increment 
     at which such securities would be quoted without regard to 
     the minimum increments established under this paragraph.
       ``(G) Fraud or manipulation.--If the Commission determines 
     that a covered emerging growth company has violated any 
     provision of the securities laws prohibiting fraudulent, 
     manipulative, or deceptive acts or practices, the securities 
     of such company shall, after the date of the determination, 
     be quoted using the increment at which such securities would 
     be quoted without regard to the minimum increments 
     established under this paragraph.
       ``(H) Ineligibility for increased minimum increment 
     permanent.--The securities of an issuer may not be quoted at 
     a minimum increment of $0.05 or $0.10 under this paragraph at 
     any time after--
       ``(i) such issuer makes an election under subparagraph 
     (A)(ii)(II);
       ``(ii) such issuer makes an election under subparagraph 
     (C)(i)(I), except during the period before such election 
     takes effect; or
       ``(iii) the securities of such issuer are required by this 
     paragraph to be quoted using the increment at which such 
     securities would be quoted without regard to the minimum 
     increments established under this paragraph.
       ``(I) Additional reports and disclosures.--The Commission 
     shall require a covered emerging growth company the 
     securities of which are quoted at a minimum increment of 
     $0.05 or $0.10 under this paragraph to make such reports and 
     disclosures as the Commission considers necessary or 
     appropriate in the public interest or for the protection of 
     investors.
       ``(J) Limitation of liability.--An issuer (or any officer, 
     director, manager, or other agent of such issuer) shall not 
     be liable to

[[Page H1747]]

     any person (other than such issuer) under any law or 
     regulation of the United States, any constitution, law, or 
     regulation of any State or political subdivision thereof, or 
     any contract or other legally enforceable agreement 
     (including any arbitration agreement) for any losses caused 
     solely by the quoting of the securities of such issuer at a 
     minimum increment of $0.05 or $0.10, by the trading of such 
     securities at the increment determined by the Commission 
     under subparagraph (B), or by both such quoting and trading, 
     as provided in this paragraph.
       ``(K) Report to congress.--Not later than 6 months after 
     the date of the enactment of the Small Cap Liquidity Reform 
     Act of 2014, and every 6 months thereafter, the Commission, 
     in coordination with each exchange on which the securities of 
     covered emerging growth companies are quoted or traded, shall 
     submit to Congress a report on the quoting and trading of 
     securities in increments permitted by this paragraph and the 
     extent to which such quoting and trading are increasing 
     liquidity and active trading by incentivizing capital 
     commitment, research coverage, and brokerage support, 
     together with any legislative recommendations the Commission 
     may have.
       ``(L) Definitions.--In this paragraph:
       ``(i) Covered emerging growth company.--The term `covered 
     emerging growth company' means an emerging growth company, as 
     defined in the first paragraph (80) of section 3(a), except 
     that--
       ``(I) such paragraph shall be applied by substituting 
     `$750,000,000' for `$1,000,000,000' each place it appears; 
     and
       ``(II) subparagraphs (B), (C), and (D) of such paragraph do 
     not apply.
       ``(ii) Security.--The term `security' means an equity 
     security.
       ``(M) Savings provision.--Notwithstanding any other 
     provision of this paragraph, the Commission may--
       ``(i) make such adjustments to the pilot program specified 
     in this paragraph as the Commission considers necessary or 
     appropriate to ensure that such program can provide 
     statistically meaningful or reliable results, including 
     adjustments to eliminate selection bias among participants, 
     expand the number of participants eligible to participate in 
     such program, and change the duration of such program for one 
     or more participants; and
       ``(ii) conduct any other study or pilot program, in 
     conjunction with or separate from the pilot program specified 
     in this paragraph (as such program may be adjusted pursuant 
     to clause (i)), to evaluate quoting or trading in various 
     minimum increments.''.
       (b) Sunset.--Effective on the date that is 5 years after 
     the date of the enactment of this Act, section 11A(c)(6) of 
     the Securities Exchange Act of 1934 (15 U.S.C. 78k-1(c)(6)) 
     is repealed.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New 
Jersey (Mr. Garrett) and the gentleman from Delaware (Mr. Carney) each 
will control 20 minutes.
  The Chair recognizes the gentleman from New Jersey.


                             General Leave

  Mr. GARRETT. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days within which to revise and extend their 
remarks and submit extraneous materials for the Record on H.R. 3448, as 
amended, currently under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New Jersey?
  There was no objection.
  Mr. GARRETT. Mr. Speaker, I yield myself such time as I may consume.
  I rise in support of H.R. 3448, the Small Cap Liquidity Reform Act of 
2013. This bill, approved by a vote of 57-0 in the Financial Services 
Committee last year, represents yet again another bipartisan and 
commonsense effort by the House to promote small business capital 
formation.
  I want to thank the gentleman from Wisconsin (Mr. Duffy) for all of 
his hard work and leadership in bringing this very important piece of 
legislation to the floor. I also would like to thank Mr. Carney from 
Delaware for all of his hard work and support for this legislation as 
well.
  What are we talking about here?
  Today, many small, publicly traded companies are finding it more and 
more difficult to attract investor demand and trading liquidity for 
their stocks. As a result, these companies may have trouble obtaining 
the investor capital they need for their companies to grow and create 
jobs.
  H.R. 3448 would begin to address this liquidity crunch by testing, 
through a pilot program, whether increasing the minimum trading 
increment, also called the ``tick'' size, for certain emerging growth 
company stocks, or EGCs, from a penny to 5 cents or 10 cents would 
promote liquidity by incentivizing market makers and others investors 
to trade these stocks, and by concentrating this trading interest 
around fewer price points.
  All of this may sound like a lot of Wall Street and stock market 
jargon, but at its core this bill is a simple bill aimed at helping 
small American companies obtain the capital that they need from 
investors so that they can grow their businesses.
  What the bill does is leave most of the details of designing and 
administering the tick size pilot program to the experts at the SEC. As 
a result, the SEC should have the discretion it needs to devise a pilot 
program that reflects the views of all market participants and 
interested parties, and that generates the maximum amount of deep and 
useful data on how different tick sizes impact trading liquidity in 
small-cap stocks.
  By first establishing a temporary pilot program, this bill will 
ensure that any potential and permanent changes to tick sizes that may 
be done sometime in the future will be done only in a thoughtful, 
incremental, and data-driven manner.
  The data generated from this pilot program may also be useful into 
how other aspects of the stock market work, but on this point, let me 
be clear. This bill is focused on improving small business capital 
formation. This is not a bill to reform the fundamental structure of 
U.S. equity markets, nor is it intended to be a substitute for a more 
detailed, holistic review by the SEC of how these markets work.
  Ultimately, there are no guarantees that a tick size pilot program 
will achieve the desired results and that the benefits of any future 
action on tick sizes will outweigh the cost, but we should all be 
agreed that this commonsense approach will help small businesses grow. 
It is worth trying, and we need many more like it.
  Again, I will conclude by saying that this bill was approved by the 
Financial Services Committee 57-0. In addition, many market 
participants, as well as SEC Chair White; at least two of her 
colleagues, Commissioners Gallagher and Piwowar; and the SEC's Advisory 
Committee on Small and Emerging Companies, have all vocally supported 
the concept of a tick size pilot program.
  So I hope that this legislation will serve as a final push forward 
getting this tick size program forward and moving off the ground. I 
urge my colleagues to, again, promote small business capital formation 
by passing H.R. 3448, and I urge my friends over in the Senate to take 
up this bill immediately as well.
  With that, I reserve the balance of my time.
  Mr. CARNEY. Mr. Speaker, I yield myself such time as I may consume.
  I rise in support of H.R. 3448. I would like to thank Mr. Garrett, 
chairman of the Capital Markets Subcommittee. Particularly, I would 
like to thank the gentleman from Wisconsin (Mr. Duffy) for his good 
work on this piece of legislation. I certainly enjoyed working with him 
on it.
  I particularly want to applaud Mr. Duffy for his willingness to 
address concerns raised by stakeholders, members of the committee, and 
those we heard from during the hearing on this bill. I appreciate his 
commitment to working in a bipartisan way in developing good and 
workable policy in this legislation.
  As has been already said, the purpose of our bill is really pretty 
simple. We know that small businesses are the engine of job creation in 
this country. We want to encourage investors to take a closer look at 
small businesses and invest in them so that they can continue to grow 
and create jobs once they have gone public.
  In my home State of Delaware, as a corporate center, we have a lot of 
people who spend a lot of time paying attention to corporate formation 
and corporate governance. In a former life as the State secretary of 
finance and as Lieutenant Governor, I worked with a lot of these 
people. They have been following the trends over the past 10 years, and 
they have seen and observed the decline in IPOs and the changes in the 
growth of emerging growth companies after going public.
  That is why last year I worked with my colleague, Mr. Fincher from 
Tennessee, on a provision in the JOBS Act that created an onramp for 
companies to go public. The bill has already been credited with helping 
fuel the recent uptick we have seen in the initial public offerings, 
which is very good for job

[[Page H1748]]

growth in this economy. H.R. 3448 builds on that work by helping 
companies grow after their IPO.
  Our hope, as has been described, is that increasing the increments 
that stocks trade in will draw more attention to these small emerging 
growth companies. We hope that brokers will spend more time and 
resources researching these companies and, ultimately, encourage 
greater investment in them. This increased coverage from brokers and 
analysts will help small companies grow and create jobs.
  We have heard concerns about some unintended consequences that 
increased tick size could have, which is why this bill instructs the 
SEC to conduct a pilot program to better examine the effects and 
effectiveness of larger spreads. Additionally, this bill gives the SEC 
the flexibility to implement a pilot program in a way that will produce 
the best information on how to proceed afterwards.
  Thanks to members and staff on both sides of the aisle working 
closely together, we were able to come up with a bill that makes sense 
and that addresses the concerns that we heard from other members, from 
stakeholders, and from the Financial Services Committee hearing that we 
had.

  The four amendments accepted in the committee were all consistent 
with our original objective. Each improved the bill based on input that 
we received from members and stakeholders.
  This bill is truly a bipartisan effort. As Mr. Garrett pointed out, 
it passed out of the committee on a 57-0 vote. As with any piece of 
legislation, once we got into the weeds, it turned out to be a little 
bit more complicated than we initially thought, but the end result is a 
good product that Members on both sides of the aisle can support.
  I want to close by again thanking Mr. Duffy and his staff for their 
hard work and for working together with us and involving us in the 
discussions about the particulars of this bill.
  I urge Members on both sides of the aisle to support H.R. 3448, the 
Small Cap Liquidity Reform Act of 2013.
  I yield back the balance of my time.
  Mr. GARRETT. Mr. Speaker, I yield such time as he may consume to the 
gentleman from Wisconsin (Mr. Duffy), the prime sponsor of this 
legislation and the gentleman who has been the driving force behind 
this idea.
  Mr. DUFFY. Thank you, Mr. Chairman, for yielding time.
  As both you and the gentleman from Delaware mentioned, it is pretty 
remarkable that on the Financial Services Committee, a committee which 
comes together and doesn't always agree on the particulars of every 
debate that we have, that this bill came out with a vote of 57-0, 
moving it forward, which I think underscores the fact that there was a 
lot of work put in on the front end, making sure we were working out 
the kinks and the concerns.
  I am very appreciative of Mr. Carney from Delaware and all the effort 
and help he put in, and for Mr. Garrett's help in making sure that we 
could put a package together that we can get a lot of folks to buy 
into.
  We all realize that job creation, especially in a slower moving 
economy, is incredibly important. Job creation at the higher levels 
comes from our small businesses, our emerging growth companies. As Mr. 
Carney earlier referenced, that is why Financial Services came together 
and passed a bill out of the House, along with the Senate moving it, 
and the President signing, the JOBS Act, which helped emerging growth 
companies actually get on the onramp and go public, accessing more and 
better capital.
  What we have seen, though, are a few concerns from those small 
emerging growth companies that are going public that they are not as 
easily accessing capital as I thought they may. That is why we have 
come together to start a pilot program to see if we can enhance the 
interest and the capital and liquidity of these emerging growth 
companies.
  It really is not very complicated, as Mr. Garrett indicated. This is 
a 5-year pilot program. So if things don't go as expected, the program 
will end. If it goes as well as we think it may, we can continue this 
on permanently.
  We are truly looking at small emerging growth companies--those that 
have revenue of less than $750 million a year. Again, the small, fast-
growing companies. It is a small space of the market. It is only 2 
percent of trading on and off exchanges.
  There has been a lot of debate as we have done this about what is an 
appropriate model to use when we increase the tick size. Do we do a 
trade-at, a quote-at, midpoint matches? A lot of people came to us with 
a lot of different ideas. All of us realized there is a larger debate 
going on right now that involves our ``dark pools'' and our exchanges.
  To be very clear, no one here who worked on this legislation wants to 
impact that debate in this field. The intent of this bill is not to 
influence that debate at all. It is really very specifically and 
narrowly tailored to help small businesses as they look for additional 
capital to grow and create more jobs.
  That is why we have given the SEC the ability to set up different 
baskets or different segments. One can be a trade-at, one can have 
price improvement of a different variation, but allowing us to get good 
quality data that will help us make decisions as we move forward.
  One other thing: companies that may not want to participate will have 
the option to opt out if they don't feel like this kind of a program 
would work for them.
  I just want to say I very much appreciate the gentleman from Delaware 
and the chairman from New Jersey for all the effort they have put into 
this bill. I hope that our colleagues, after seeing the great support 
that we had in the committee, will support this bill today.

                              {time}  1545

  Mr. GARRETT. Mr. Speaker, I believe the gentleman from Delaware has 
already yielded back. So, at this point, I would just like to again 
thank the gentleman from Delaware for his work, the gentleman from 
Wisconsin for his leadership on this issue.
  And, also on his page, I saw written in a large number was the magic 
number 57-0. I hope that does send a resounding message over to the 
other body, to the Senate, to do as they have not been doing for the 
last 14 months, which is to take up some of these good job-creation 
bills, a bill that helps promote jobs and small businesses in this 
country.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from New Jersey (Mr. Garrett) that the House suspend the 
rules and pass the bill, H.R. 3448, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. CARNEY. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion will be postponed.

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